LEV3701 SG.pdf

© 2018 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria LEV3701/1/2019–2022 70655650 Shutterstock.com images used InDesign MNB_Style CONTENTS 968...

© 2018 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria LEV3701/1/2019–2022 70655650 Shutterstock.com images used InDesign MNB_Style CONTENTS 968 Page INTRODUCTION viii LEARNING UNIT 1: OVERVIEW 1 1.1 THE LAW OF EVIDENCE IS A WHOLE FIELD OF LAW 1 1.2 OVERVIEW OF THE LAW OF EVIDENCE 1 1.3 THE INEXACTNESS OF THE LAW OF EVIDENCE 3 1.4 THE IMPORTANCE OF THE LAW OF EVIDENCE 3 PART 1: General concepts and sources of the law of evidence 5 LEARNING UNIT 2: CONCEPTS IN THE LAW OF EVIDENCE 6 2.1 SUBSTANTIVE AND ADJECTIVE LAW 6 2.2 PROOF AND THE LAW OF EVIDENCE 7 LEARNING UNIT 3: SOURCES OF THE LAW OF EVIDENCE 10 3.1 HISTORICAL SOURCES 10 3.2 KNOWLEDGE SOURCES 10 3.2.1 The rights of arrested people 11 3.2.2 The rights of a detained person 11 3.2.3 The rights of any accused person 12 3.2.4 The limitation clause 12 3.2.5 Interpretation 12 3.3 RESIDUARY SECTIONS 13 3.4 THE LAW OF EVIDENCE AND CUSTOMARY LAW 14 3.4.1 Introduction 14 3.4.2 General 15 3.4.3 Some examples of evidence or types of evidence 17 PART 2: The presentation of evidence 19 LEARNING UNIT 4: STAGES IN THE TRIAL PROCESS AND THE PRESENTATION OF ORAL EVIDENCE 20 4.1 OVERVIEW OF EVENTS IN CRIMINAL AND CIVIL TRIALS 20 4.2 THE PRESENTATION OF ORAL EVIDENCE 21 4.2.1 Examination-in-chief 22 4.2.1.1 Credibility 22 4.2.1.2 Leading questions 22 4.2.1.3 Unfavourable and hostile witnesses 22 4.2.1.4 The witness may refresh her memory 23 4.2.2 Cross-examination 24 4.2.3 Re-examination 25 4.3 WITNESSES CALLED BY THE COURT 26 4.4 ARGUMENT 26 LEARNING UNIT 5: WITNESSES 28 5.1 PROCEDURE 29 (iii) LEV3701/1 5.2 COMPETENCE 29 5.2.1 General rule 29 5.2.2 Exceptions to the general rule 29 5.2.2.1 Children 29 5.2.2.2 Mentally disordered or intoxicated witnesses 30 5.2.2.3 Officers of the court 31 5.3 COMPELLABILITY 31 5.3.1 Spouses 31 5.3.1.1 Spouse as a state witness 32 5.3.1.2 The spouse as a defence witness 33 5.3.2 Accused persons 33 5.3.3 Co-accused 33 5.3.3.1 Co-accused as defence witness 34 5.3.3.2 Co-accused as prosecution witness 34 LEARNING UNIT 6: REAL EVIDENCE 37 6.1 INTRODUCTION 37 6.2 PERSONAL APPEARANCE 38 6.3 INSPECTIONS IN LOCO, DEMONSTRATIONS AND BODILY SAMPLES 39 6.4 FINGERPRINTS AND HANDWRITING 40 6.5 EVIDENCE DERIVED FROM A COMPUTER AND OTHER DIGITAL DEVICES 41 LEARNING UNIT 7: DOCUMENTARY EVIDENCE 43 7.1 ADMISSION OF DOCUMENTARY EVIDENCE 43 7.2 THE DEFINITION OF DOCUMENTARY EVIDENCE 44 7.3 PRODUCING THE ORIGINAL DOCUMENT 45 7.3.1 General 45 7.3.2 Exceptions (or the admissibility of secondary evidence) 46 7.3.2.1 General 46 7.3.2.2 The exception in the case of official documents 46 7.3.2.3 Other exceptions 47 7.4 PROOF OF AUTHENTICITY 47 7.4.1 General 47 7.4.2 Proving authenticity 48 7.4.3 Exceptions to the rule regarding authenticity 48 7.5 PUBLIC DOCUMENTS 50 7.6 STAMP DUTIES ACT 77 OF 1968 50 7.7 DISCOVERY, INSPECTION AND PRODUCTION OF DOCUMENTS 51 7.8 ELECTRONIC DOCUMENTS 51 LEARNING UNIT 8: EVIDENCE OF UNCERTAIN CLASSIFICATION 53 8.1 PRODUCTS OF MODERN TECHNOLOGY AS EVIDENCE 53 8.2 PHOTOGRAPHS AS EVIDENCE 54 8.3 VIDEO AND AUDIO AS EVIDENCE 54 8.4 COMPUTER OUTPUT AS EVIDENCE 55 8.4.1 Background to the ECT Act 55 8.4.2 Application of the ECT Act 56 PART 3: The admissibility of certain types of evidence 59 LEARNING UNIT 9: RELEVANCE AND ADMISSIBILITY OF EVIDENCE 60 9.1 INTRODUCTION 60 9.2 WHAT IS MEANT BY “RELEVANCE”? 61 9.2.1 Definition of relevance 62 9.2.2 The importance of “the issues” 63 (iv) 9.2.3 The potential weight of the evidence 64 9.2.4 The prejudicial effect of evidence 66 LEARNING UNIT 10: CHARACTER EVIDENCE 67 10.1 THE MEANING OF “CHARACTER” 67 10.2 CHARACTER OF THE PARTIES TO A CIVIL MATTER 68 10.3 THE CHARACTER OF PARTIES TO A CRIMINAL MATTER 68 10.3.1 Character of the accused 68 10.3.1.1 General 68 10.3.1.2 The accused’s good character 68 10.3.1.3 The accused’s bad character 68 10.3.1.4 Cross-examining the accused 69 10.3.1.5 The accused’s previous convictions 69 10.3.2 The character of witnesses other than the accused 70 10.3.3 The character of the complainant 70 LEARNING UNIT 11: PREVIOUS CONSISTENT STATEMENTS 73 11.1 DEFINITION OF A PREVIOUS CONSISTENT STATEMENT 73 11.2 THE RULE IN RESPECT OF ADMISSIBILITY 74 11.3 THE EXCEPTIONS TO THE RULE 75 11.3.1 General 75 11.3.2 Complaints in sexual cases 75 11.3.3 To rebut an allegation of fabrication 77 11.3.4 Other exceptions 77 LEARNING UNIT 12: HEARSAY 79 12.1 INTRODUCTION 80 12.2 DEFINITION OF HEARSAY 80 12.2.1 Evidence, oral or in writing 80 12.2.2 Probative value 80 12.2.3 Credibility of a non-witness 81 12.2.4 Depends upon 81 12.2.5 A person other than the witness 81 12.2.6 Summary 81 12.3 THE RULE IN RESPECT OF ADMISSIBILITY 82 12.4 THE EXCEPTIONS TO THE RULE 82 12.4.1 General 82 12.4.2 Consent 83 12.4.3 The other person testifies 83 12.4.4 The discretion of the court 84 12.4.5 Common law exceptions 84 12.4.6 Statutory exceptions 84 12.5 PRACTICAL APPLICATION OF ACT 45 OF 1988 85 12.6 DISTINGUISHING HEARSAY FROM CONFUSINGLY SIMILAR CONCEPTS 86 LEARNING UNIT 13: OPINION EVIDENCE 88 13.1 THE MEANING OF “OPINION” 88 13.2 ADMISSIBILITY OF OPINION EVIDENCE: GENERAL RULE 89 13.3 OPINION EVIDENCE GIVEN BY A LAYPERSON 89 13.4 THE ADMISSIBILITY AND EVALUATION OF EXPERT EVIDENCE 90 13.5 THE RULE IN HOLLINGTON V HEWTHORN 91 LEARNING UNIT 14: THE ADMISSIBILITY OF ADMISSIONS AND CONFESSIONS 93 14.1 DEFINITION OF AN ADMISSION 94 14.1.1 “A statement” 94 (v) LEV3701/1 14.1.2 “Or conduct” 94 14.1.3 “Adverse to the person making it” 95 14.2 VARIOUS FORMS OF ADMISSIONS 95 14.2.1 Unintentional admissions 95 14.2.2 Formal and informal admissions 96 14.2.2.1 The distinction 96 14.2.2.2 Proving a formal admission 97 14.2.2.2.1 In civil proceedings 97 14.2.2.2.2 In criminal proceedings 98 14.2.3 Vicarious admissions 99 14.2.4 Statements made without prejudice 99 14.3 DEFINITION OF A CONFESSION 100 14.4 THE ADMISSIBILITY OF AN ADMISSION IN CIVIL MATTERS 103 14.5 THE ADMISSIBILITY OF AN ADMISSION IN CRIMINAL MATTERS 103 14.5.1 Section 219A 103 14.5.2 “Made voluntarily” 103 14.5.3 Procedure 104 14.6 THE ADMISSIBILITY OF A CONFESSION 105 14.6.1 The first three requirements 105 14.6.2 The fourth requirement 106 14.6.3 Practical examples of the application of the requirements 107 14.6.4 The admittance of an otherwise inadmissible confession 107 14.7 DETERMINING THE ADMISSIBILITY OF ADMISSIONS AND CONFESSIONS 108 14.8 REQUIREMENTS FOR ADMISSIBILITY OF ADMISSIONS AND CONFESSIONS, AND THE CONSTITUTION 109 14.9 POINTING OUT OF FACTS IN CONSEQUENCE OF AN INADMISSIBLE ADMISSION OR CONFESSION 110 14.10 THE ADMISSIBILITY OF EVIDENCE OF A POINTING OUT 111 14.10.1 Decided cases 111 LEARNING UNIT 15: PRIVILEGE 115 15.1 GENERAL OVERVIEW 115 15.1.1 Private privilege 116 15.1.2 State privilege 116 15.2 PRIVILEGE AGAINST SELF-INCRIMINATION 116 15.2.1 Introduction 116 15.2.2 The accused 117 15.2.2.1 Trial proceedings 117 15.2.2.2 Pre-trial proceedings 117 15.2.3 The witness in criminal proceedings 118 15.2.4 The witness in civil proceedings 120 15.3 MARITAL PRIVILEGE 120 15.4 LEGAL-PROFESSIONAL PRIVILEGE 121 15.4.1 General 121 15.4.2 Statutory provision 121 15.4.3 Purpose of legal-professional privilege 121 15.4.4 Legal-professional privilege and the client 122 15.4.5 The requirements 122 15.4.5.1 Involvement of third parties 123 15.4.5.1.1 Agents 123 15.5 Definition of “agent” 123 15.5.5.1.1 Legal position of an agent 123 15.5.5.1.2 Independent third parties 123 15.6 PROFESSIONAL PRIVILEGE FOR OTHER PROFESSIONS 124 (vi) 15.7 POLICE DOCKET PRIVILEGE 124 15.7.1 General 124 15.8 The privilege today 125 PART 4: The evaluation of evidence 129 LEARNING UNIT 16: THE ONUS OF PROOF IN CRIMINAL AND CIVIL MATTERS 130 16.1 THE DISTINCTION BETWEEN THE ONUS OF PROOF AND THE EVIDENTIARY BURDEN 131 16.2 THE OPERATION OF THE EVIDENTIARY BURDEN AND THE ONUS OF PROOF IN CRIMINAL MATTERS 132 16.3 THE INCIDENCE OF THE ONUS OF PROOF IN CRIMINAL CASES 133 16.4 THE RIGHT TO SILENCE AND THE ONUS OF PROOF 133 16.5 THE STANDARD OF PROOF IN CRIMINAL MATTERS 134 16.6 THE ONUS OF PROOF IN CIVIL CASES 134 16.6.1 The incidence of the onus of proof in civil cases 134 16.6.2 Different issues may generate different onuses of proof 135 16.6.3 The standard of proof in civil cases 136 LEARNING UNIT 17: THE ASSESSMENT OF EVIDENCE 138 17.1 INTRODUCTION 138 17.2 BASIC PRINCIPLES 139 17.3 CIRCUMSTANTIAL EVIDENCE 139 17.3.1 What is circumstantial evidence? 139 17.3.2 The evaluation of circumstantial evidence 140 LEARNING UNIT 18: CORROBORATION AND THE CAUTIONARY RULE 142 18.1 DEFINITION OF CORROBORATION 143 18.1.1 Requirements for corroboration 143 18.2 THE CAUTIONARY RULE 144 18.2.1 Definition of the cautionary rule 144 18.3 SPECIFIC INSTANCES 145 18.3.1 Introduction 145 18.3.2 The accomplice 145 18.3.3 Evidence of identification 146 18.3.4 Children 147 18.3.5 The single witness 148 18.3.5.1 Who are single witnesses? 149 18.3.6 Cases of a sexual nature 149 18.3.7 Police traps and private detectives 150 18.3.8 More than one cautionary rule 150 PART 5: Tutorial assistance 153 STUDY ASSISTANCE: FEEDBACK ON ACTIVITIES 154 STUDY ASSISTANCE: GLOSSARY 156 (vii) LEV3701/1 INTRODUCTION 1 GENERAL We wish to extend a warm welcome to you as a student of the Law of Evidence. This 1 module is undoubtedly one of the most interesting you will encounter in your legal studies. In our new constitutional order, the law of evidence is dynamic and challenging and, in many instances, nobody is as yet certain where it may be going! For any lawyer intending to practise law through litigation in our courts one day, the law 2 of evidence is an indispensable tool. The same goes for any law enforcement official. The better you are at using this tool, the better lawyer or law enforcement official you will be. Unfortunately, the law of evidence is not always logical with one principle building on 3 another. It is noted for its casuistic development, which simply means that its principles developed in a rather random way as and when the need arose. The law of evidence does not, therefore, form a single, logical whole, but consists of a number of rather loosely related legal rules. 2 AIMS OF THIS STUDY GUIDE This study guide is aimed at providing you with a concise explanation of all the basic 4 concepts relating to the presentation, admissibility and assessment of evidence. It contains many practical examples of these concepts. It also allows you to test your grasp of the tutorial material on a regular basis. In fact, you will be responsible for putting together much of the material yourself. It therefore requires you to do a great deal of work yourself. You will find the module impossible to pass if you do a crash course in it just before the examination. However, if you work through this tutorial letter in the way we outline below, you should find it easy to pass the module and remember its content for years to come. 3 LITERATURE 3.1 Prescribed material The prescribed material is set out in Tutorial Letter 101. It consists mainly of prescribed 5 textbooks and tutorial letters. Do not underestimate the importance of tutorial letters. Most of the feedback from the activities in this tutorial letter will appear in other tutorial letters. The same applies to any developments that have taken place in the law of evidence since the writing of this tutorial letter. Other tutorial letters also contain additional information about matters such as group discussions (lectures for students), feedback on assignments, and your preparation for the examination. (viii) 3.2 Additional books The following books are the standard works for the law of evidence. Some are internationally 6 recognised. However, they are not prescribed books for this module:  Zeffertt DT & Paizes A. Essential Evidence (2010) LexisNexis Durban  Cross R & Tapper C. Cross on Evidence 12 ed (2010) Oxford University Press  Malek HM (ed). Phipson on Evidence 18 ed (2015) Sweet & Maxwell London  Van Niekerk SJ, Van der Merwe SE & Van Wyk AJ. Privilegies in die Bewysreg (1984) Butterworths Durban Students who are really enthusiastic about the law of evidence may want to have a look 7 at Wigmore’s monumental work, A Treatise on the Anglo-American System of Evidence in Trials at Common Law. It consists of ten parts numbering 800 to 900 pages each. Books on the law of criminal procedure are also useful for the law of evidence in criminal 8 cases. They include the following:  Du Toit E et al. Commentary on the Criminal Procedure Act (1987) Juta Cape Town  Kruger A. Hiemstra’s Criminal Procedure (2008) LexisNexis Durban 4 METHOD OF STUDY 4.1 General This study guide consists of 18 learning units. These learning units have been developed in 9 such a way that one unit should keep you busy for about a week. That leaves you enough time to complete the various activities which are included in the learning units, do your assignments (in addition to the activities), and prepare for the examination. The assignments which have been set for this module are included in Tutorial Letter 101. 10 Whether the assignments are compulsory or not will be made clear in this study guide. 4.2 The structure of the study guide 11 The guide follows the following general scheme: 12 Part 1: General concepts and sources of the law of evidence 13 Part 2: The presentation of evidence 14 Part 3: The admissibility of certain types of evidence 15 Part 4: The evaluation of evidence 16 Part 5: Tutorial assistance Part 1 briefly informs you about what the law of evidence is, what some of the basic 17 concepts mean, and where these concepts come from. In part 2, we teach you how evidence is presented in court. Part 3 discusses whether certain kinds of evidence are admissible or not and, in part 4, you learn how the admissible evidence presented in court (ix) LEV3701/1 is evaluated by the court in order to reach a conclusion. Part 5 contains tutorial assistance in the form of a glossary (list of technical terms) and feedback on some of the activities which you are expected to do. Each learning unit is based on the following format: 18 1. The list of sources is followed by an ORIENTATION. The information contained in this section provides background to help you to fit that particular learning unit into the larger picture of the law of evidence as a whole. Although you do not have to study this section, you should understand it. 2. Practically all learning units contain one or more ACTIVITIES. This may involve some reading or filling in a few words, or even writing a whole essay. By doing these activities you will test your understanding of the subject matter on an ongoing basis. Quite often you will be compiling your own tutorial material by doing these activities. Feedback on your answers will be given either at the back of this tutorial letter or in a number of other tutorial letters which you will receive during the course of the semester. Where you need to test your insight, feedback will be given in this tutorial letter since you need to know immediately if you are on the wrong track. Otherwise it will appear in other tutorial letters. All activities are numbered so that you can easily find the correct feedback. The end of an activity is indicated by a grey line. 3. Some practical examples will be provided. They are always indicated as follows: Example The accused is charged with shoplifting. The fact that the accused has previously been convicted of shoplifting is a similar fact. 4. A boxed section printed in a different typeface (eg, bold) is an explanatory note. The following is an example of such a note: The meaning of “freely and voluntarily” is really not complicated. Very often the difficulty lies in making a finding on the facts of the case. This is a major problem in most of the decisions which a court has to make – it is not so much the law that has to be applied which presents the difficulty, but finding out what really happened at the time of making the statement. These sections are generally used to explain something which students found 20 problematic in the past. If you understand the material well, you will often find that the explanatory note simply repeats what you have already grasped. This is fine and means that you may skip the note. 5. At the end of each learning unit there are some self-evaluation questions. These questions are very important and test your understanding of the study material. Feedback on these questions will be provided in a tutorial letter and this feedback is important for purposes of the examination. (x) 4.3 Working through a learning unit Each learning unit starts with a list of the sources you will need in order to study the 21 particular learning unit. This will help you to prepare yourself and to get hold of all the books and other materials that you may need. Any reference in this tutorial letter to the Constitution refers to the Constitution of the Republic of South Africa of 1996 (Act 108 of 1996). Whenever we have referred to the interim Constitution, this means the Constitution of the Republic of South Africa of 1993 (Act 200 of 1993). Any reference to Schwikkard refers to the prescribed textbook, Principles of Evidence. Consult Tutorial Letter 101 for the full particulars of this textbook. You should work through the learning unit at a pace which suits your own style of studying 22 and the time that you have available. Your aim in working through every learning unit should be to develop a complete understanding of the material contained in the learning unit, so that you will not only be in a position to understand the theory, but also to apply that knowledge and understanding in practice. 4.4 List of words and phrases If you feel unsure about the meaning of a word or phrase in this tutorial letter, turn to 23 the GLOSSARY for an explanation. 4.5 Using your textbook and casebook You are frequently referred to these two sources. If you are told to read from the textbook 24 or from a case, you need to do so in order to get some background. Remember, however, that all feedback on activities should be studied for the examination, even if the activity deals with work you were required only to read. If you are told to study a specific case or section in the textbook, you must do so because any number of questions may be set on that material. In this case, you should also keep your own notes in addition to those contained in the present tutorial letter. You will find that you cannot follow only one way of studying the law of evidence and that you will have to adapt your study methods according to the requirements of the particular learning unit. 5 ICONS USED IN THIS STUDY GUIDE Icon Description Overview. The overview provides the background to a particular topic or learning unit. Activity. This icon shows you the activities that you must do in order to develop a deeper understanding of the learning material. (xi) LEV3701/1  Example. This icon shows practical examples will be provided. Outcomes. This icon indicates which aspects of the particular topic or learning units you have to master. Summary. This section provides a brief summary of what was covered in a particular learning unit and what can be expected in the following learning unit(s). Self-evaluation. When you see the Self-evaluation icon you will be required to test your knowledge, understanding, and application of the material you have just studied. 6 CONCLUSION If you have not yet done so, you should now read Tutorial Letter 101. Once you have read 25 it, you will be ready to begin learning unit 1. Best of luck with your studies. We trust that you will enjoy this module and find it enriching. 26 (xii) Learning unit 1 Overview 27 You do not have to consult any source for this learning unit. Orientation The aim of this learning unit is to give you an overview of the entire field of the law of evidence in order to put the course in the proper perspective. Outcomes Once you have completed this learning unit, you should be able to: − explain what aspects of the law are covered by the law of evidence − demonstrate how the law of evidence is divided into three main branches − explain the different purposes of the three main branches of the law of evidence 1.1 THE LAW OF EVIDENCE IS A WHOLE FIELD OF LAW Although the course is divided into different learning units, this does not mean that 28 one should think of the law of evidence as something consisting of a number of different compartments. Every case that is heard in court may raise questions spanning the whole field of the law of evidence. At the same time, no case can escape the application of the law of evidence. 1.2 OVERVIEW OF THE LAW OF EVIDENCE 29 General concepts and sources of the law of evidence You will be taught certain basic concepts such as the definitions of the law of evidence, 30 of evidence and of evidential material. You should not attempt to venture any further without knowing these terms and their meanings. This section is followed by a brief reference to the sources of the law of evidence because unless one knows where the law of evidence comes from, it will be difficult to look for answers. 31 The presentation of evidence Next it is important to know the ways in which evidence is presented in court. The way in 32 which the evidence is presented depends on the nature of the evidence. Oral evidence is given by a witness, delivering her testimony from the witness box. Certain questions 1 LEV3701/1 may be asked by the various parties, and others may not. Real things may also be presented to the court as evidence. Often the information that is contained in some kind of document may be required, but documents cannot simply be handed to the court since many requirements need to be met before a document can be used. For one, the court generally needs to know that the document is indeed what it claims to be. With modern technology evidence might be available in forms that do not fit into any one of the traditional categories. The law of evidence still does not know exactly how to deal with these forms of evidence, even though new legislation in this regard has recently been passed. Finally, in certain cases, the court will accept some information without any evidence being presented on it; the court will simply take notice of well-known or easily determined facts, or some legal rule may provide for the presumption of a fact. 33 The admissibility of certain types of evidence The present guide also covers the basic legal rules which govern the admissibility of 34 evidence whether in civil or in criminal matters. Since the law of evidence teaches one how to go about proving one’s case in court, it is essential to know what evidence will be admissible and what will not. Admissible evidence can be used to prove one’s case whereas inadmissible evidence cannot. It serves no purpose to attempt to offer clearly inadmissible evidence in court as it will simply be thrown out by the court (referring to “the court” in this manner is another way of referring to the presiding judicial officer [the magistrate or judge, plus assessors where applicable] who has to make the factual findings). However, in many instances it may not be clear whether the evidence will be admissible or inadmissible. It is then for the court to decide whether or not to allow the evidence and, in order to do so, it has to apply the existing legal rules and principles to the questions before it. This task is not an easy one and only becomes somewhat easier with a good deal of experience. The basic principle is that all available evidence should be used in proving the case. Only 35 if there is some reason for excluding (or disallowing) evidence, can it be excluded. In the learning units that follow, you will learn about the reasons for excluding evidence. You will learn that  evidence can be admissible only if it deals with the problem in question (if it is relevant)  evidence concerning a prior statement by a witness that merely serves as corroboration for herself is inadmissible  evidence that merely deals with the character of a witness or a party rarely has any bearing on the question at hand, and is usually inadmissible  a witness should generally tell of her first-hand experiences and not of what she learnt from others (hearsay evidence)  a witness may not give evidence which amounts to taking over the court’s function of having to reach a conclusion (opinion evidence)  people who incriminate themselves (through admissions and confessions) have to do so absolutely voluntarily, otherwise those incriminating statements cannot be used against them  some evidence may be excluded simply because some higher value is believed to be protected by such exclusion (privilege) 2  evidence acquired in violation of the Bill of Rights in the Constitution may often have to be excluded 36 The evaluation of evidence Lastly, we consider the evaluation by the court of the evidence presented in order to reach 37 its decision. Once all the (admissible) evidence has been presented, it is the task of the court to evaluate this evidence in order to reach its findings. It has to consider the weight of the evidence. In this process, it has to determine which party has the burden of proof, and what the extent of this burden is – the amount (measure) of proof required in criminal cases is much greater than in civil cases. In the evaluation of evidence, the weight of the evidence is often determined by questions such as whether it is direct evidence of the questions in issue or merely circumstantial evidence; whether there are reasons to be cautious about the evidence; and the extent to which the various bits and pieces of the puzzle fit together and support and strengthen (corroborate) one another. 1.3 THE INEXACTNESS OF THE LAW OF EVIDENCE The law of evidence provides only the basic tools to enable the court to deal with all the 38 difficult decisions it has to make. At best, it is an inexact science which has to attempt to govern thousands of different possibilities that come up in every case. The answers provided by the law of evidence are often rather vague, in which case a student of the law of evidence should not try to find exact answers. 1.4 THE IMPORTANCE OF THE LAW OF EVIDENCE The importance of the law of evidence is beyond argument. It does not matter whether 39 the case is a criminal or a civil case; deals with the interpretation of a deceased person’s will; the terms of a contract; an application for an interdict to prevent someone from doing something; or a claim for damages of whatever nature: the law of evidence is always applicable. 40 3 LEV3701/1 41 4 Part 1 General concepts and sources of the law of evidence Contents Learning unit 2: Concepts in the law of evidence Learning unit 3: Sources of the law of evidence 42 5 LEV3701/1 Learning unit 2 Concepts in the law of evidence 43 You will need to consult the following source for this learning unit:  Schwikkard Orientation The main purpose of this learning unit is to enable you to place the law of evidence in its proper context in the legal world and to understand the concepts and definitions which are central to this field. In this regard, the glossary at the back of this tutorial letter might also prove useful. Outcomes Once you have completed this learning unit, you should be able to − distinguish between such concepts as evidence, evidential material and proof, and between substantive and adjective law − explain the difference between and cite examples of the different forms of probative (evidential) material − explain why the concept of proof lies at the heart of the law of evidence 2.1 SUBSTANTIVE AND ADJECTIVE LAW In the following diagram, you will see exactly how the law of evidence fits into the general 44 structure of the law. 45 6 In studying law, you will discover that there are two main branches of law. The first, which 46 we shall call substantive law, covers one’s legal rights and obligations. It tells one what one may or may not do. A subdivision of substantive law is, for instance, criminal law, which prohibits certain actions upon pain of punishment. Hence: “The general speed limit in respect of every public road or section thereof, other than a freeway, situated within an urban area, shall be 60 kilometres per hour.” The second branch, which we call adjective law (sometimes known as procedural law), prescribes the general procedure to be followed in court and legal transactions. A subdivision of adjective law is criminal procedure which prescribes, for instance, how a person should be brought before the court by way of arrest, summons or warning to appear, and how these rights are to be protected in court with regard to plea, the giving of evidence, and proof. The law of evidence is part of adjective law and governs the manner in which something is legally proven before the court as is expressed in the phrase: “The guilt of an accused person shall be proven beyond reasonable doubt”. 2.2 PROOF AND THE LAW OF EVIDENCE In preparation: 47 48 Read Schwikkard §§ 24–25. 49 Study the following terms in the glossary: “proof”, “evidence”, “evidentiary material”. 50 The law of evidence may be defined as follows: That field of law which generally regulates the proof of facts in a court of law. From the above definition it is clear that “proof” is central to the entire field of the law 52 of evidence. 53 “Proof” is explained by Schwikkard § 2 5 as follows: Proof of a fact means that the court has received probative material with regard to 54 such fact and has accepted such fact as being the truth for purposes of the specific case. Evidence of a fact is not yet proof of such fact: the court must still decide whether or not such fact has been proved. This involves a process of evaluation. 55 The process of evaluation is discussed towards the end of the present tutorial letter. The above explanation further requires clarity on the concepts “evidence” and “evidentiary 56 material”. In Schwikkard § 2 4, a distinction is made between evidence and the other constituent parts (parts making up a whole) of the concept “probative (evidentiary) material”. “Evidence” is explained as follows: “Evidence” essentially consists of oral statements made in court under oath or 57 affirmation or warning (oral evidence). But it also includes documents (documentary evidence) and objects (real evidence) produced and received in court. 7 LEV3701/1 Note, however, that evidence is only one form of evidentiary material. We will leave it 58 to you to find and write down the other forms of evidentiary material that Schwikkard mentions. Activity 2.1 Besides evidence, what other forms of evidentiary material are there? Try to give an example of each. Where possible, write down the references to decided cases in which these other kinds of evidentiary material were at issue................................................................................................................................................................................................................................................................................................................................................................... (Feedback in this study guide) 59 In R v V 1958 (3) SA 474 (GW) at 479B-E, Wessels J succinctly explains the distinction between 60 “evidence” and “proof” and, inadvertently, “evidentiary material”: In all criminal cases the Crown must prove the facts which are required to be 61 established beyond a reasonable doubt. Facts in issue are proved or established by means of admissible evidence (i.e. testimony, either on oath or after affirmation, or by means of affidavit), formal admissions tendered as such during the hearing of the matter and by presumptions. In my view it is not correct to state that an admission of a fact made during the hearing is evidence thereof, unless one disregards the distinction between evidence of a fact and proof thereof and uses the former word as a synonym for the latter. An admission of a fact in issue results in that fact being considered proved or established without receiving evidence in regard thereto. In appropriate circumstances a presumption has the same effect. The concepts that you have been working with are the basic building blocks that you 62 will use in the rest of this course. It will be worth your while to make quite sure that you understand all the types of evidentiary material and that you are able to distinguish between them and relate them to one another. Summary From the above, it appears that regulating the proof of facts is the main goal of the law of evidence. Evidence is only one type of evidentiary material that may be used in order to furnish proof in a case before a court of law. Evidentiary material has to be evaluated before the court can find whether it amounts to proof in the circumstances of a particular case. Evidence itself may be given in the form of oral evidence, documentary evidence and real evidence. 8  Self-evaluation Question 1 Does the word “evidence” only refer to oral evidence? Fully explain. Question 2 Is evidence the only form of evidentiary material? Fully explain with reference to authority. Question 3 Briefly explain the relationship between “proof” and the law of evidence. Question 4 Briefly explain, with reference to the two main branches of the law, how the law of evidence fits into the general structure of the law. 63 (Feedback in tutorial letter) 64 9 LEV3701/1 Learning unit 3 Sources of the law of evidence 65 You will need to consult the following sources for this learning unit:  Schwikkard  The Constitution: section 35  The Criminal Procedure Act 51 of 1977: sections 206 and 252  The Civil Proceedings Evidence Act 25 of 1965: section 42  The casebook Orientation In this learning unit, we will teach you how to distinguish between the historical and knowledge sources (kenbronne in Afrikaans) of the law of evidence and will explain what are known as “residuary sections” (also called “residuary clauses”) in South African legislation. Outcomes Once you have completed this learning unit, you should be able to: − distinguish between the historical and the knowledge sources, and between the different knowledge sources themselves − give content to the concept “residuary sections” 3.1 HISTORICAL SOURCES Historically, the substantive law of South Africa was mostly drawn from the principles of 66 Roman-Dutch law. The latter is therefore seen as the common law for that part of our criminal law which has not yet been legislated into statutory law. On the other hand, the procedural law of South Africa is mostly drawn from the principles of English law. English law is therefore seen as the common law for our law of evidence, which means that, if there is any uncertainty about an aspect of the South African law of evidence, the South African courts may have recourse to English law on that point. English law is therefore the historical source of our law of evidence. 3.2 KNOWLEDGE SOURCES Do not confuse the historical sources of our law of evidence with its knowledge sources. 67 The latter is a wider concept covering not only the historical sources but also relevant court cases and applicable South African legislation. The court cases create binding law, and 10 some of the most important ones are contained in the prescribed casebook. Legislation which applies particularly to the law of evidence is the Criminal Procedure Act 51 of 1977 and the Civil Proceedings Evidence Act 25 of 1965. Last, but not least, the Constitution of the Republic of South Africa 108 of 1996 applies. This 68 Act has given the Constitutional Court a testing right to declare existing (or new) legislation and common law unconstitutional. Many references to sections of the Constitution and the way in which these might affect the law of evidence will be made throughout the tutorial letter. An example of a piece of ordinary legislation is the Criminal Procedure Act 51 of 1977 to which copious reference will be made during the rest of this course. An example of a court case is Rusmarc SA v Hemdon Enterprises 1975 (4) SA 239 (A), which is relevant to the question of what further role English law may play in South Africa. The Constitution is the supreme source of law in South Africa and therefore an important 69 source of the law of evidence. The principal provisions of the Constitution affecting the law of evidence are the fundamental rights described in chapter 2 thereof. This is also known as the “Bill of Rights”. For our purposes, the most important of the rights are those described in section 35. These rights are mentioned below. But it is important to remember that until our courts decide otherwise, you may assume that the provisions of the Constitution apply only to criminal cases or civil matters where the state is involved, and not to civil cases in general. 3.2.1 The rights of arrested people 70 Section 35(1) of the Constitution provides that every arrested person shall have the right 1. to be informed, in an understandable language, that he or she has the right to remain silent, and about the consequences of making a statement (s 35(1)(a) and (b)) 2. not to be compelled to make a confession or admission which could be used in evidence against him or her (s 35(1)(c)) Note that these rights pertain only to arrested persons. Somebody who has not been 71 arrested, does not have these rights. 3.2.2 The rights of a detained person 72 Section 35(2) provides for the rights of a detained person, including the right 1. to be informed promptly of the reason for being detained (s 35(2)(a)) 2. to choose, and to consult with a legal practitioner, and to be informed of this right promptly (s 35(2)(b)) 3. to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly (s 35(2)(c)) 11 LEV3701/1 3.2.3 The rights of any accused person Section 35(3) provides that every accused person shall have the right to a fair trial, which 73 includes the right 1. to be informed of the charge with sufficient details to answer it (s 35(3)(a)) 2. to be presumed innocent, to remain silent during the plea proceedings as well as during the trial, and not to testify during the trial (s 35(3)(h)) 3. to adduce and challenge evidence and not to be a compellable witness against himself or herself (s 35(3)(i) and (j)) Keep in mind that only accused people have these rights, and therefore they arise only 74 once the arrested person is accused of (charged with) committing an offence. Section 35(5) provides that evidence obtained in a manner that violates any right in the 75 Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. This subject is dealt with in the learning unit dealing with the admissibility of admissions and confessions (learning unit 14). 3.2.4 The limitation clause Section 36(1) contains a provision which has become known as the “limitation clause”. 76 In terms of this provision, the rights which are granted by chapter 2 of the Constitution may be limited by statute or common law, but only if such limitation is reasonable and justifiable in an open and democratic society based on freedom and equality. 77 With regard to the above section, the following factors should be taken into account: 1. the nature of the right 2. the importance of the purpose of the limitation 3. the nature and extent of the limitation 4. the relationship between the limitation and its purpose 5. the least restrictive means to achieve the purpose Section 36(2) provides that no law may limit any right which is protected in the Bill of 78 Rights, except as provided in subsection (1) or any other provision of the Constitution. 3.2.5 Interpretation The manner in which the Constitution is to be interpreted is an issue which is best left 79 to the subjects Interpretation of Statutes and Constitutional Law. Nevertheless, what we can say here is that section 39(1) of the Constitution provides that, among other things, in interpreting chapter 2, the courts must consider international law and may have regard to comparable foreign law. As a result, decisions on the law of evidence in countries which may be considered as open and democratic and which have human rights charters, have become very important to any student of the law of evidence. In S v Zuma 1995 (1) SACR 568 (CC) at 582, the Constitutional Court gave some useful guidance on how such 12 decisions may be approached. The Canadian Charter of Rights is similar to the South African Bill of Rights because it also provides for rights which are limited by a limitation clause. This type of constitution requires a two-phased interpretation by the court. Firstly, the court must determine whether a right has been infringed. If so, in the second phase, it is determined whether the infringement can be justified by the limitation clause. The similarity of our Bill of Rights to the Canadian Charter is one reason why decisions by the Canadian Supreme Court are of particular importance when there are any questions about the interpretation of our Constitution. Other constitutions, such as that of the United States of America, have no limitation clause with the result that, from the outset, the rights they provide for have to be interpreted in such a way that their content will be in balance with other rights. Example Let us say that you would like to know what your rights are in the event of being arrested by the police. In the first place, you should consult the text of the relevant section of the Criminal Procedure Act. You should check whether this section is compatible with the Constitution. It may well have been struck out completely for being unconstitutional, as has happened with quite a few sections of the Act. If the section is constitutionally valid, you should still check to see how its provisions have been interpreted by the South African courts. 3.3 RESIDUARY SECTIONS 80 In preparation:  Read Schwikkard §§ 33–36. According to the Shorter Oxford Dictionary, “residuary” means “remainder, rest, that which 81 is left”. The residuary sections in the Criminal Procedure Act 51 of 1977 and the Civil Proceedings Evidence Act 25 of 1965 provide that parts of the English law of evidence will remain part of the South African law of evidence. The definition of a residuary section is therefore a section in a South African statute which incorporates a part of foreign law into our law, and thereby preserves something of the foreign law. Example Section 206 of the Criminal Procedure Act provides: The law as to the competency, compellability, or privilege of witnesses which was in force in respect of criminal proceedings on the thirtieth day of May 1961, shall apply in any case not expressly provided for by this Act or any other law. In this regard, Schwikkard § 3 2 distinguishes between “direct incorporation” of foreign 82 law by, for instance, South African statutes using the exact wording of foreign legislation, and “indirect incorporation” as in the case of residuary clauses, which simply determine that foreign law has to be followed in respect of topics for which no express local statutory law has been made. It was felt that residuary clauses which had indirectly incorporated English law should be changed before South Africa became a republic outside of the British 13 LEV3701/1 Commonwealth (as happened on 31 May 1961), as is proper for a totally independent country. Thus provisions such as the following in the Criminal Procedure Act 51 of 1977 now refer to the law as it was “on the thirtieth day of May, 1961”:  section 190(1), which deals with the credibility of witnesses  section 201, which deals with legal professional privilege  section 202, which deals with state privilege  section 203, which deals with the privilege against self-incrimination  section 206, which deals with the competence, compellability or privilege of witnesses  section 227, which deals with the character of an accused  section 252, which deals with the general admissibility of evidence On the civil side, section 42 of the Civil Proceedings Evidence Act 25 of 1965 provides that 83 the law on the competence and compellability of witnesses, as well as the examination and cross- examination of witnesses, which would have been applicable on 30 May 1961, will apply in any case where no provision had been made in terms of the Civil Proceedings Evidence Act or in terms of any other South African legislation. Activity 3.1 (1) What does section 252 of the Criminal Procedure Act 51 of 1977 determine? Briefly explain..................................................................................................................................................................................................................................................................................................................................................... (2) Explain what is meant by a “residuary clause” in South African law.............................................................................................................................................................................................................................................................................................................................................. 84 (Feedback in tutorial letter) 3.4 THE LAW OF EVIDENCE AND CUSTOMARY LAW 3.4.1 Introduction It is useful to discuss some interesting aspects from our customary law that relate to the 85 law of evidence. This discussion shows that many of our current evidentiary principles have good reason to exist, and also places them into an African context. Many of these principles therefore have a strong foundation in our customary law. This should also be seen in the context of section 39(2) and section 211(3) of the Constitution. The information provided below is based on research done by MW Prinsloo on customary law in Lebowa (see MW Prinsloo: Inheemse Publiekreg in Lebowa 1983). It focuses on a specific group of people since an overview of customary law of evidence principles from all the different 14 ethnic groups in South Africa and Africa would be far beyond the scope of the purposes stated above. It is not necessary to study these principles for examination purposes. 3.4.2 General It can be said that our customary law of evidence is based on custom as encapsulated 86 in customary idioms and proverbs. The idiomatic expressions and proverbs use figures of speech to express figurative meanings in culture. They are cited to provide points of comparison illustrating general truths and human behaviour during legal proceedings. Whilst they are unwritten and relatively informal, they are based on reasonableness and purposefulness. Their application in a given case is guided by their inherent principles. In the case of criminal proceedings the notion of a prosecutor is unknown, but the 87 court is represented by the Kgosi who puts the charge by way of a narration of what the accused did. The accused is then asked to respond. He or she may opt to do one of two things: accept guilt or deny the allegations and then tender evidence in defence prior to the complainant’s evidence. Where the accused simply denies the charge and does not offer any evidence, the court is obliged to call the complainant and his or her witnesses to give evidence regarding their case. Cross-examination is done during the presentation of the evidence and any of the elders 88 or accused persons may ask questions at any stage during such presentation. Thus there is no clear demarcation between evidence-in-chief, cross-examination and re-examination. Prinsloo observes that, in civil proceedings, the court can, based upon convenience, make an exception and rule that the respondent start with the presentation of evidence, for example, where the respondent alleges that he or she has already fulfilled his or her obligations with regard to the claim or that the case has already been heard. In general, the court can be said to determine the sequence of events. The formal closing of the presentation of evidence is unknown. A party therefore has the opportunity to supplement his or her evidence during questioning or at any stage of the trial. This includes calling any material witness to his or her case. He or she can present evidence a second time with or without leave of the court if the evidence is material to the verdict of the court. As is the case in our current law of evidence, it is important that the court consider the 89 evidentiary material presented by both parties. It is said: “tshekanoši e fiwa kgomo e swana”. This means that, where one party alone proves a case, such party receives the black cow; in other words, where only one side presents its case, such party will always be successful. An objective evaluation of the evidentiary material further forms the basis for determining the facts. It is said: “diphoofolo di bolawa ke dihlatse”. This means that wild animals are killed by the witnesses, that is, that a case is determined by evidence. As is the case in our law, the extent (amount) of evidentiary material is not determinative, but rather the quality of such material. The burden that has to be met in order to bring about a favourable outcome is the 90 presentation of evidence that will, according to a reasonable person, prove the allegation that has been made. This applies to both civil and criminal proceedings. 15 LEV3701/1 Unlike our current law, in some jurisdictions absolution or discharge of the accused 91 cannot take place before the respondent or accused has given evidence. Other tribes will, however, allow this to happen. If a case has been heard and judgment given, such judgment is the final decision in 92 the matter. It is said: “selepe sa re kgo! Se remile”. This literally means that, if the axe has chopped, a decisive conclusion has been reached. Stripped of its figurative meaning, it dictates that, once a decision has been made, no further correspondence on the matter will be entertained. In some jurisdictions, for instance among the Batswana, the same view is expressed as: “lefoko la kgosi le agelwa mosako”. This means that, once the Kgosi has given his decision, it is final. It is doubtful, however, if this approach would withstand constitutional scrutiny, notwithstanding the provisions of section 39(2) read with section 211(3) of our Constitution. A high premium is placed on witnesses who were witnesses to the offence or the issue 93 before the court. It is said: "molato o rerwa (ahlolwa) ke dihlatse”. This means that the facts of the case are determined by the evidence. Indeed, a high premium is also placed on direct evidence, that is, on the evidence of a person who was a witness to the facts first hand, for example, an eyewitness (hlatse ya leihlo) as opposed to “pudi ya tsela” (a wandering goat or a goat of the road), a witness to a contract or someone who overheard defamatory words. Of paramount importance is the questioning of such a witness to determine his or her 94 credibility. It is said: “kgomo e tshwarwa ka dinaka, motho o tshwarwa ka leleme”. Loosely translated, this means that “a bull is caught by its horns, a human by his [or her] tongue”. Stripped of its figurative meaning, it means that cross-examination can expose the truth, thereby discrediting or strengthening the credibility of such a witness. When a case has been made out against a party and he or she refuses to lead evidence 95 or, when giving evidence, refuses to answer certain questions that point to his or her guilt, the court can draw negative inferences. It is said: "mojakgogo oa itshesegwa, o re mafofa ke ya go lahla kae”. In other jurisdictions, as among the Batswana, it is said: “moloi ga nke a re ke a loya”. Loosely translated, this means that a witch never admits that she is a witch. So the facts will be there for all to see. Thus the guilty do not always accept their guilt despite mounting evidence against them. Circumstantial evidence is also used to corroborate other evidence. Evidence that the 96 respondent, for example, was found at night in the hut of the applicant’s wife can give rise to the inference that infidelity took place and can further support the applicant’s evidence. Presumptions are also present in our customary law. A commonly accepted presumption 97 is that an uninitiated man does not know the law and is also presumed to be a boy not worthy of attending to tribal issues or getting married. It is said: “Leshoboro ga le tsebe molao”. Another presumption is the presumptive validity of a claim. It is said: “lesepa la mpswa le 98 nkgela semetseng, la oma le a hlaba”. Loosely translated, this means that a dog’s excrement 16 smells whilst still fresh. It presupposes that, if one has a claim, it has to be brought within a reasonable time, otherwise it is presumed that it was not valid from the start. 3.4.3 Some examples of evidence or types of evidence Normal hearsay evidence (“pudi ya tsela” or, literally, “a goat of the road or a wandering 99 goat”) is not considered in order to determine a fact and a court can stop a witness who wants to present only hearsay evidence. A statement made by a party to a witness serves as evidence of a fact, but has little evidential value if the party denies such fact. A statement made by a deceased regarding the division of his estate among his children is not considered to be hearsay and is in any case the only sufficient proof in this regard. It is said: “lentšu la mohu ga le selwe”. This means that the request of a deceased person cannot be ignored. Evidence of previous convictions or character evidence is not admissible in customary- 100 law proceedings since it is not seen as relevant to the current case. A witness’s credibility is also not determined by his or her rank, occupation or character, but according to what he or she says or how he or she testifies. A court will, however, be cautious of a witness who has previously lied during testimony. Real evidence is accorded strong probative force. It is said: “legodu le swarwa ka morwalo”. 101 Loosely translated, this means that a thief is caught carrying or being in possession of the goods. This primarily emphasises the importance of real evidence as it is usually not contradicted. And, usually, if you are caught at night carrying someone else’s goat, it is enough evidence of theft by you as the possessor. Some extraordinary ways of proving matters also exist in our customary law, for example, 102 through divination and judgement tests. This is especially the case where direct evidence is lacking or the proof of facts is problematic, such as in cases involving alleged witchcraft, infidelity and theft. Divination usually involves a wizard pointing to a suspect by the “throwing of the bones”. Parties to the proceedings can also consult a traditional healer in secret and present his or her conclusion in court. The pointing out of the perpetrator by the traditional healer is not considered conclusive proof, but if two traditional healers point to a person or if such person is pointed out by means of divination, this is considered conclusive proof. Usually, these wizards do not come to a conclusion based solely on “throwing the bones”, but also consider other factors, such their knowledge of the crime and family matters, as well as their resourcefulness and ability to read the minds of the people present at the trial. Judgement tests take on different forms. For instance, the suspect may have to drink a concoction prepared by a traditional healer (ngaka). If affected by the drink, the suspect will be considered to be guilty. Summary Having distinguished between the historical sources and the knowledge sources of the South African law of evidence, we spent some time on the knowledge sources, especially the Constitution. We also looked at the factors that are relevant in the interpretation of the Constitution. The concept of residuary sections was also explained. These are those sections in South African statutes which incorporate foreign law into South African law 17 LEV3701/1  and thereby preserve that part of foreign law. We also considered some interesting aspects from our customary law that relate to the law of evidence. Self-evaluation Question 1 Mention the principal provisions of the Constitution of the Republic of South Africa, 1996, that affect the law of evidence. Question 2 Explain what is meant by “indirect incorporation” of foreign law into our law of evidence. Question 3 Explain how the limitation clause in section 36(1) of the Constitution functions. Question 4 Explain the difference between the historical and knowledge sources of our law of evidence. 103 (Feedback in tutorial letter) 104 18 Part 2 The presentation of evidence Contents Learning unit 4: Stages in the trial process and the presentation of oral evidence Learning unit 5: Witnesses Learning unit 6: Real evidence Learning unit 7: Documentary evidence Learning unit 8: Evidence of uncertain classification 105 19 LEV3701/1 Learning unit 4 Stages in the trial process and the presentation of oral evidence 106 You will need to consult the following sources for this learning unit:  Schwikkard  The casebook Orientation In this learning unit, we look at the procedures followed in a trial and, specifically, the presentation of oral evidence. Strictly speaking, the stages of a trial fall under the law of procedure and are covered in greater detail in the Criminal and Civil Procedure modules. Here we give only a brief sketch of some of the aspects of the procedure and then move on to a more detailed discussion of the actual examination of witnesses. Outcomes Once you have completed this learning unit, you should be able to: − distinguish between the various stages in the questioning of a witness − explain, in the correct order of occurrence, the different stages in the trial process 4.1 OVERVIEW OF EVENTS IN CRIMINAL AND CIVIL TRIALS The course of events in criminal and civil trials is quite similar in the sense that opposing 107 parties take turns to lead evidence. However, owing to the fundamental differences between civil and criminal trials, there are also certain differences in procedure. The following diagram illustrates the stages involved in a criminal trial: 20  108 109 In a civil trial, this diagram looks as follows: 110 4.2 THE PRESENTATION OF ORAL EVIDENCE Oral evidence is the most common means of adducing (presenting) evidence. This is 111 particularly true in criminal cases. The kind of case may, nevertheless, require that other evidence should be used. Many fraud cases, for example, require a lot of documentary evidence. The cause of action in a civil case will also determine the nature of the evidence required. 112 If the cause of action is breach of contract, there will usually be more documentary than oral evidence, although some oral evidence may be presented (documentary evidence is dealt with in learning unit 7). 21 LEV3701/1 113 As a general rule, oral evidence must be given under oath. The three significant stages in a trial in which oral evidence is presented are examination- 114 in-chief, cross-examination and re-examination. 4.2.1 Examination-in-chief Examination-in-chief is conducted by the party who calls the witness. If, for instance, 115 the defence calls witness A, then A will be questioned by the defence. If the state calls W as a witness then W will be questioned by the prosecutor, and so on. The purpose of examination-in-chief is to put relevant and admissible evidence before the court by making use of the question-and-answer method. 4.2.1.1 Credibility It should be kept in mind that the party who undertakes the examination-in-chief is not 116 allowed to attack the credibility of the witness. The reason for this should be obvious – the party calling a witness does so for the purpose of proving its case by relying on, among other things, the testimony of that witness. Impeaching the credibility of its own witness will certainly not further this purpose. The one exception to this rule is dealt with at 4.2.1.3 below. Questions about the witness’s previous convictions and bad character may not be asked. (This is dealt with in learning unit 10.) 4.2.1.2 Leading questions Generally, leading questions may not be asked during examination-in-chief. A leading 117 question is a question which suggests the answer or which assumes the existence of a disputed fact. A leading question may, however, be asked on undisputed facts. It should be kept in mind that the trial judge or magistrate always has a discretion to allow leading questions if she considers it necessary to serve the interests of justice or to expedite the proceedings. Example Nervous is called as a defence witness in the case against Sleazy, who is accused of rape. Sleazy’s legal representative asks Nervous the following questions: (1) Is your name Nervous? (2) Did you visit Sleazy’s house on the afternoon of the alleged crime? Question 1 is a leading question but it is admissible because the fact assumed by this question is undisputed. Question 2 is a leading question. It is inadmissible because it suggests the answer. 4.2.1.3 Unfavourable and hostile witnesses In 4.2.1.1, we mentioned that the party who undertakes the examination-in-chief may not 118 ask any questions which might raise doubts about the credibility of its own witness. The 22 party calling a particular witness will, however, be entitled to challenge the credibility of its own witness if the witness gives evidence which is unfavourable to the party that called her. An unfavourable witness is someone who merely gives unfavourable evidence. To counter 119 this evidence, the party calling this witness may lead other evidence which may contradict her evidence. However, if it becomes clear that the witness intends to prejudice the case of the party who has called her, that party may apply to court to have the witness declared a hostile witness. Once such a witness has been declared a hostile witness, she may be cross-examined by the party who called her. 4.2.1.4 The witness may refresh her memory 120 In preparation:  Read R v O’Linn 1960 (1) SA 545 (N) from 548A to H with the aid of the guidelines you will find in the casebook (you need to read only the stipulated page). As a general rule, witnesses are required to give independent oral testimony and are not 121 permitted to rely on or refer to an earlier record. However, owing to the fallibility of human memory and the complexity of some issues, a witness may be given time to refresh her memory as a necessary exception. The legal principles determining whether a witness may refresh her memory depend on 122 whether (1) the witness wants to refresh her memory before her testimony or during an adjournment, or whether (2) the witness wants to refresh her memory by referring to a document while in the witness box. The legal position in the case of (1) is quite simple: there is no general rule that prevents a 123 witness from reading her witness statement, or some other statement that was drawn up soon after the event, before testifying or during an adjournment. In fact, there are many reasons why this practice should be encouraged (see Schwikkard § 24 3 and § 24 4 if you are interested). Also, there are no particular legal principles which should be complied with before this can happen. The position is somewhat more complicated in the case of (2) above. In this regard, you 124 should complete the following activity: Activity 4.1 Read Schwikkard § 24 5 and then answer the following questions based on what you have read: (1) List the six requirements that should be met before a witness will be allowed to refresh her memory while in the witness box......................................................................................................................................................................................................................................................................................................................................... 23 LEV3701/1  (2) Why would a witness need to have personal knowledge of the recorded event?........................................................................................................................................................................................................................................................................................................................................ (3) Write a short note explaining the requirements related to the origins of a document which a witness wishes to consult to refresh her memory......................................................................................................................................................................................................................................................................................................................................... (4) What does it mean when it is said that the facts were still fresh in the mind of the witness when they were recorded?........................................................................................................................................................................................................................................................................................................................................ (5) When is it not compulsory to use the original document?........................................................................................................................................................................................................................................................................................................................................ (6) What are the legal principles regarding production of the document and how is this influenced by the Constitution?........................................................................................................................................................................................................................................................................................................................................ (7) How should a witness deal with any privilege that she may have in respect of information in the document?........................................................................................................................................................................................................................................................................................................................................ 125 (Feedback in tutorial letter) 4.2.2 Cross-examination After a witness has given evidence-in-chief, she is cross-examined by the opponent of 126 the party that called her. Where persons are tried jointly, they are referred to as “co-accused”. The practice is for the defence witness to be cross-examined first by the co-accused’s legal representative and then by the prosecution. 128 The purpose of cross-examination is 129 1. to elicit evidence that supports the cross-examiner’s case 130 2. to cast doubt on the credibility of the opposing party’s witness 24 131 A witness may also be asked leading questions during cross-examination. It should be clear that the scope of cross-examination is wider than that of examination-in- 132 chief, but its boundaries are not without limit. Questions asked during cross-examination must be relevant either to the issue or to the credibility of the witness. Questions about the accused’s previous convictions or bad character are beyond the scope of cross- examination and such questions may not be asked (this is dealt with in learning unit 10). Activity 4.2 Complete the following table by setting out the differences between examination-in- chief and cross-examination: Examination-in-chief Cross-examination Purpose? Party that undertakes this type of examination? Leading questions? Attack on credibility of witness? 133 (Feedback in tutorial letter) 4.2.3 Re-examination After having been cross-examined by the opponent, a witness may be re-examined by 134 the party that originally called her. The purpose of re-examination is to enable the witness to clear up any misleading impressions which may have resulted from the answers she gave in cross-examination. Re-examination is similar to examination-in-chief in mainly the following two ways: 135 1. it is undertaken by the party that called the witness 136 2. leading questions are not permissible An important facet of re-examination is that it is confined to matters arising from cross- 137 examination. A witness may be re-examined on a new matter only with leave of the court and, in this event, the opposing party will, of course, have the right to cross-examine the witness on any such new matter. 25 LEV3701/1  Activity 4.3 Complete the following table by setting out the differences between examination-in- chief and re-examination: Examination-in-chief Re-examination Purpose? Party that undertakes this type of examination? Leading questions? Attack on credibility of witness? 138 (Feedback in tutorial letter) 4.3 WITNESSES CALLED BY THE COURT In terms of section 186 of the Criminal Procedure Act 51 of 1977, the court may call 139 witnesses of its own accord and must do so if the evidence of these witnesses appears to be essential in order to make a just decision (see also Schwikkard § 23 4 3). However, our courts rarely rely on this provision owing to concerns about becoming too involved in the issue. There is no similar provision in civil cases and there the court may only call a witness with 140 the consent of the parties (Schwikkard § 23 5 4). 4.4 ARGUMENT Once all the evidence has been adduced by both parties but before the court evaluates 141 such evidence and comes to its decision, each party will be given the opportunity to “address the court in argument”. The parties will give the court their assessment of the evidence and will also argue the law that may be applicable, in the process referring the court to various sources of the law, including case law, statutes, textbooks, and so on. They will also refer to the strong points in their own case and to the weak points in the case of their opponents and, in this manner, will attempt finally to persuade the court to find in their favour. Summary Various forms of evidence may be adduced, including documentary evidence, real evidence and oral evidence. The nature of a case determines which means of adducing evidence will play the most important role in the case. Examination-in-chief is conducted by the party that calls the witness. Such party should not ask leading questions and should not attack the credibility of the witness, unless the witness has been declared a hostile witness. A witness may refresh her memory using a document which was drawn up at the 26  time when the facts about which she is to testify were still fresh in her memory, subject to certain requirements. Cross-examination is conducted by the opponent of the party which called that witness. Its purpose is primarily to cast doubt on the credibility of the witness. Re-examination is conducted by the party that calls the witness and its purpose is to enable the witness to clear up any misleading impressions which may have resulted from cross-examination. The court may also call witnesses, but this mainly happens in criminal cases. Before the court hands down judgment on the matter, both parties will be given the opportunity to address the court in argument. Self-evaluation Question 1 Explain the difference between cross-examination and re-examination. Question 2 Explain the difference between examination-in-chief and cross-examination. Question 3 List the six requirements that should be met before a witness will be allowed to refresh his or her memory while in the witness box. Question 4 Explain the practical significance of the phrase: “Each party will be given the opportunity to address the court in argument”. Question 5 Fully explain the difference between an “unfavourable” witness and a “hostile” witness. (Feedback in tutorial letter) 142 27 LEV3701/1 Learning unit 5 Witnesses 143 You will need to consult the following sources for this learning unit:  Schwikkard  The casebook  The Criminal Procedure Act 51 of 1977: sections 192, 194, 195 and 196(1)  The Civil Proceedings Evidence Act 25 of 1965: section 8  The Constitution: section 35(3) Orientation 144 In preparation:  Read Schwikkard §§ 22 1 and 22 2. In the learning units which follow, you are going to learn more about the means that are used in a trial to satisfy the standard of proof required in a specific case. In this learning unit, we look at two aspects of presenting one of the forms of evidence, namely oral evidence. These two aspects of oral evidence are the competence of witnesses to testify and the extent to which witnesses may be compelled to testify. You must understand the difference between the terms “competence” and “compellability”. Competence has to do with whether a particular person has the mental capacity to testify. As a general rule, all persons are considered to be competent to testify. The reason for this is that it is in the interests of justice that anyone who may have something to contribute to the resolution of a dispute, should do so. There are, however, instances where a person will be incompetent to testify. On the other hand, those who are competent to testify may be compelled or forced to do so. Again, subject to certain exceptions, all persons can be compelled to testify. When you work through this learning unit, you must also keep in mind the difference between competence and admissibility. Competence has to do with whether a certain person has the mental ability to testify in court. Persons who do not have this capacity are not competent to testify and, as such, the court cannot hear their evidence under any circumstances. Admissibility, on the other hand, has to do with the evidence of a person who is already a competent witness. Competence focuses on the person and admissibility focuses on the evidence of such a person. A competent and compellable witness who wishes to rely on a privilege, for example the privilege against self-incrimination, may not refuse to enter the witness box. He may claim his privilege only as each relevant question is put to him. 28  Outcomes Once you have completed this learning unit, you should be able to: − explain the general rule as to the competence and the compellability of a witness to testify, and the exceptions to the general rule − solve practical problems in this regard 5.1 PROCEDURE  Study Schwikkard § 22 3. 145 Parties cannot consent to the admission of an incompetent witness’s evidence. 5.2 COMPETENCE 5.2.1 General rule 146 In preparation:  Read section 192 of the Criminal Procedure Act 51 of 1977.  Read section 8 of the Civil Proceedings Evidence Act 25 of 1965. You will notice that section 192 refers to section 206 of the same Act. Section 206 states 147 that the law which was in force in respect of criminal proceedings on 30 May 1961, which relates to the competence and compellability of witnesses to testify, shall be applicable in any case not expressly provided for by the Criminal Procedure Act or any other law. This means that English law (as it was on 30 May 1961) is applicable. Section 206 is an example of a residuary clause, which was discussed in greater detail under the sources of the law of evidence. 5.2.2 Exceptions to the general rule We have mentioned that there are instances where a person is not competent to testify, 148 but that these instances are exceptions to the general rule. We will now discuss these exceptions. 5.2.2.1 Children 149 In preparation:  Read Schwikkard § 22 4. There is no statutory provision barring children under a certain age from testifying and 150 also no particular age above which a child is competent to testify. Children are therefore subject to the same general rule of presumed competency like all other persons, provided 29 LEV3701/1 that they understand what it means to tell the truth, have sufficient intelligence, and can communicate effectively. Evidence will usually be led in this regard and the child will be questioned by the parties to the issue. 5.2.2.2 Mentally disordered or intoxicated witnesses In preparation: 151  Read Schwikkard § 22 5.  Read section 194 of the Criminal Procedure Act 51 of 1977. Note that a person should only be withheld from giving evidence when his ability is of 152 such a nature that he cannot make a contribution to the matter before the court. Schmidt and Rademeyer (Bewysreg (2000) 218–219) are of the opinion that the following aspects are important in this regard: a person’s ability to observe, to remember his observations, and to communicate them to the court. In other words, he must be able to understand the necessity to speak the truth. A court will usually give a ruling as to the competence of such a person after questioning the witness and having heard evidence as to his mental condition. According to Schmidt and Rademeyer, the words “and who is thereby deprived of the proper use of his reason” indicate that only a certain degree of mental illness or imbecility of mind will make a person an incompetent witness. An imbecile, for example, will be allowed to give evidence if he has not been deprived of the proper use of his reason. The part of section 194 which states that “while so affected or disabled” indicates that such a person will only be incompetent for the duration of the affliction or disability. In the case of, for instance, a drunk person, this means that he will indeed be competent 153 to testify after having sobered up. In S v Katoo 2005 (1) SACR 522 (SCA), the court, in considering section 194 of the Criminal 154 Procedure Act 51 of 1977, held that the first requirement of the section is that it must be shown to the trial court that the witness suffers from (1) a mental illness or (2) that he or she labours under imbecility of mind due to intoxication or drugs or the like. Further, it must be established that, as a direct result of such mental illness or imbecility, the witness is deprived of the proper use of his or her reason. These two requirements must collectively be satisfied before a witness may be disqualified from testifying on the basis of incompetence. The evidence led in S v Katoo, the court said, fell short of establishing that the stated 155 requirements had been met. The psychologist’s evidence did not indicate that the complainant suffered from a mental illness. It merely established that she was, in the outdated terminology of the Act, an imbecile. Imbecility is not a mental illness and per se did not disqualify her as a witness. It is only imbecility induced by intoxication or drugs or the like that falls within the ambit of the section (and then only when the witness is deprived of the proper use of his or her reason). It was also clear from the evidence led that the complainant was not deprived of the proper use of her reason simply because she had limited mental capacity. 30 5.2.2.3 Officers of the court 156 In preparation:  Read Schwikkard §§ 22 7 and 22 8. It is in the interests of justice that presiding officers should remain objective with respect to 157 the cases over which they preside. For this reason, judges and magistrates are considered to be incompetent witnesses with respect to those cases over which they preside. But where a presiding officer is witness to a particular fact in the court over which he or she is presiding, he or she will be considered competent to testify to such fact in another court. Example Magistrate A presides in court A. He hears both the admission and the plea of the accused. The matter is subsequently postponed. The magistrate recuses himself (withdraws from the case) and the matter is continued before Magistrate B. Magistrate A is now a competent witness regarding the admission and the plea of the accused, and as such he can testify regarding this evidence. The general rule applies with regard to the question of whether a party’s legal representative 158 or the prosecutor is competent to testify. The legal representative and prosecutor are therefore presumed to be competent and compellable witnesses. It is, however, undesirable for a party’s legal representative or the prosecutor to testify in a case. Legal-professional privilege will in any event restrict the capability of a legal representative to testify against his or her client. (This privilege is discussed in learning unit 15 below.) 5.3 COMPELLABILITY 159 In preparation:  Read section 192 of the Criminal Procedure Act 51 of 1977.  Read Schwikkard § 22 2 again. It should by now be clear to you that only a competent witness may be a compellable 160 witness. As mentioned earlier, there are cases where a competent witness may not be a compellable witness. These cases can be divided into the following three main categories: spouses, the accused 161 and the co-accused. 5.3.1 Spouses 162 In preparation:  Read Schwikkard § 22 11. The general rule at common law was that the spouse of an accused person could not 163 testify for or against such an accused. This rule does not apply to civil proceedings any more. The spouse of a party is therefore a competent and compellable witness for and 31 LEV3701/1 against the party concerned although the rules regarding privilege may prevent a spouse from mentioning certain facts while giving evidence. With regard to criminal proceedings, specific rules are in force depending on whet