South African Law of Evidence: Sources & Principles

Sources and Impact

• The text identifies the sources of South African law of evidence and how constitutional provisions affect it

Fundamental Principles

• South African law of evidence is not based on Roman-Dutch authority
• Local statutes contain rules of evidence
• English law of evidence in force in South Africa on 30 May 1961 serves as common law where local statutes are silent
• The CPA and CPEA contain related provisions
• South Africa has local case law on evidence
• South African precedent is binding if cases align with English common-law rules and principles as of 30 May 1961
• Courts do not need to find applicable English cases in every instance
• Local precedent usually reflects the common-law position
• For a total gap, the court may look to English cases after 30 May 1961 for comparative guidance
• These cases are persuasive but not binding
• Support can be found from Anglo-American jurisdictions such as Australia, Canada, and the United States for decisions if a lacuna occurs

Constitution

• All rules of evidence must comply with constitutional provisions, as the South African Constitution is the supreme law
• The Constitution governs the validity of rules of evidence, making it an important source of law

Pre-Union Period

• Before 1910, English law was directly and indirectly incorporated into colonies that became the Union
• Direct incorporation came in the form of legislation of English common-law rules
• Indirect incorporation involved following English law for issues without local statutory provisions
• Some colonial statutes that directly and indirectly incorporated English law included:
  • Ordinance 72 of 1830 (Cape)
  • Law 17 of 1859 (Natal)
  • Ordinance 11 of 1902 (Orange Free State)
  • Proclamation 16 of 1902 (Transvaal)
• Both English statutory and common law were adopted at the original dates of incorporation
• Local courts followed English statutes as they stood on the original date of incorporation
• Local courts were not bound by subsequent English legislation
• Only English statutes in force in England in 1859 were applied in Natal per Law 17 of 1859 (Natal)
• Amendments to English common law by judicial precedents or legislation were applied

Indirect Incorporation

• Some statutes indirectly incorporated English law by referring to the law in the Supreme Court of Judicature in England
• Residuary sections were employed in Transvaal Proclamation of 1902 and Orange Free State Ordinance of 1902

Post-Union Period: Criminal Proceedings

• Early colonial legislation was superseded and consolidated by the Criminal Procedure and Evidence Act 31 of 1917
• The Criminal Procedure Act 56 of 1955 later replaced this Act
• English law was excluded by the latter Act where evidence matters were expressly dealt with in South African legislation
• English law had to be followed where the matter was specifically covered by a reference to the law as applied “in the Supreme Court of Judicature in England”
• Residuary clauses invoked English law for issues not expressly covered by South African legislation
• Direct references to another country laws were deemed inappropriate when the Union became a Republic
• The Criminal Procedure Amendment Act 92 of 1963 removed all references to “the Supreme Court of Judicature in England” from the Criminal Procedure Act 56 of 1955
• References were replaced to referencing law on the thirtieth May 1961, the day before South African became a Republic

Criminal Procedure Act 56 of 1955

• References to law as it stood on 30 May 1961 were generally retained by the CPA when it superseded the Criminal Procedure Act 56 of 1955 (except for sections 319(3) and 384) in 1977

Examples of specific topics in criminal proceedings covered by references to the law as it stood on 30 May 1961:

• Impeachment or support of witness credibility (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 the accused (s 227(1) of the CPA)
• Character of any female or male against or in connection with an indecent offence (s 227(1) as read with s 227(4) of the CPA)
• Evidence and sufficiency of evidence of appointment to public office (s 230 of the CPA)
• Aspects relating to hearsay used to be covered by references to the law as it stood on 30 May 1961
• Sections 216 and 223 of the CPA, which contained these hearsay provisions, have been repealed by s 9 of the Law of Evidence Amendment Act 45 of 1988
• The Law of Evidence Amendment Act 45 of 1988 regulates hearsay without reference to the law as it stood on the 30 May 1961
• Sections 206 and 252 of the CPA contain wide residuary sections

Post-Union Period: Civil Proceedings

• Various colonial provisions that introduced English law of evidence were consolidated when the CPEA came into operation in 1965
• Section 42 of the CPEA says the law of evidence in force for civil proceedings on 30 May 1961 shall apply in any case not provided for in the CPEA or any other South African legislation
• The law of evidence includes competency, compellability, examination and cross-examination of witnesses
• It is an indirect way of referring to English law
• Provisions applicable to civil proceedings in the provinces of the Union contained residuary provisions incorporating the English law for matters not specifically covered by South African statutes

Interpretation of the 30 May 1961 Provision

• In Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd, Coetzee J questions if South African law of evidence is English law petrified as at 30 May 1961 with no room for judicial development
• South African law of evidence remains to a certain extent frozen as at 30 May 1961
• Common law that must be followed consists of English legislation on various dates of original indirect incorporation as well English case law prior to 30 May 1961
• Courts have moved away from the binding effect of the “30 May 1961” provision
• Value of Privy Council decisions are mentioned
• Rules of evidence incompatible with constitutional provisions are not binding
• Section 206 of the CPA is a solid example of a residuary provision
• It states the law referring to competency, compellability, or privilege of witnesses in criminal proceedings on 30 May 1961 shall apply in this Act or any other law

S v Taylor

• Legal professionals pointed out it relies heavily on the law of England from that date
• Section 252 of the CPA determines the law as to the admissibility of evidence to apply in any case not expressly provided for by the CPA or any other law

Incorrect English Decisions

• Supreme Court of Appeal, as successor to the Privy Council, may deviate from an English decision if it is concluded that the English decision does not correctly apply to English law
• In the case of Van der Linde v Calitz the Appellate Division preferred an older Privy Council decision

South African Rules

• An English evidentiary principle may be rejected where an English evidentiary principle is obviously incompatible with South African law or a rule of practice (usus fori)
• The Appellate Division also created a binding rule of practice which has no counterpart in English law or practice

Rules inconsistent with Constitutional Provisions

• English decisions before 30 May 1961 must be ignored if incompatible and inconsistent with constitutional provisions
• An example is the constitutional right to a fair trial
• Applicable English common-law rules must be developed to promote the spirit, purport, and objects of the Bill of Rights

Post 30 May 1961 English Cases

• English decisions after 30 May 1961 are not binding on South African courts, but have persuasive force
• English decisions have strong persuasive force in the interpretation of those South African statutory provisions which make no reference to English law but enact rules similar to those in English law

Decisions of Privy Council

• The Privy Council Appeals Act 16 of 1950 abolished appeals from the Appellate Division to the judicial committee of the Privy Council
• Decisions post 1950 only have persuasive force
• Legal professionals highlight the order of precedents
  • Decisions of the Appellate Division
  • Pre-1950 Privy Council decisions
  • Pre-30 May 1961 decisions of the English appeal courts and House of Lords
• The Supreme Court of Appeal may disregard a pre-1950 Privy Council decision if convinced it was wrongly decided

Further Sources

• CPA, CPEA and the Law of Evidence Amendment Act 45 of 1988 are not comprehensive codes governing the law of evidence, but main sources
• Other statutes are mentioned in later chapters

Constitutional Provisions

• The South African legal system was constitutionalized on the 27th April 1994
• The Constitution of the Republic of South Africa, 1993 (hereafter the “interim Constitution”) came into operation
• It was followed by the Constitution of the Republic of South Africa, 1996
• Parliamentary sovereignty was replaced by a Constitution which is the supreme law
• Bill of Rights exists
• Any statutory or common-law rule which conflicts with the Bill of Rights must be declared unconstitutional unless it can be saved as a constitutionally permissible limitation
• Some common-law and statutory procedural and evidentiary rights of the criminally accused have hardened into constitutional rights
• Elements include:
  • Right to be informed of certain rights
  • Right to exercise a "passive defence right" and silent upon arrest
  • Be presumed innocent
  • Not incriminate oneself and not testify during trial
  • Right to adduce and challenge evidence
  • Right to a fair trial
• A fair trial also has an important impact on the application of rules of evidence
• This right has had an impact on police docket privilege
• The constitutional pre-trial right to be informed effects the admissibility of confessions and admissions

Conclusions

• Constitutional provisions have been invoked to declare certain statutory presumptions and reverse onus clauses unconstitutional
• The constitutionality of presumptions is discussed later
• Provisions have an impact on state privilege
• One of the far-reaching effects of the Constitution on South African law of evidence concerns the admissibility of unconstitutionally obtained evidence
• Evidence obtained that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or detrimental to the administration of justice
• Exclusion of unconstitutionally obtained evidence is discussed in a chapter
• There is “an inseparability between rules of evidence and constitutional entitlements”
• South African law of evidence must constantly be scrutinised in the light of constitutional provisions
• Canadian and American cases can be useful in interpreting the impact of the Constitution on the law of evidence, because both had constitutional provisions superimposed on their English common-law rules of evidence