Basic Concepts of South African Law of Evidence PDF

Basic concepts 1  Facts in issue and facts relevant to the facts in issue ‘The facts in issue (facta probanda) are those facts which a party must prove in order to succeed; the facts relevant to the facts in issue (facta probantia) are those facts which...

Basic concepts 1  Facts in issue and facts relevant to the facts in issue ‘The facts in issue (facta probanda) are those facts which a party must prove in order to succeed; the facts relevant to the facts in issue (facta probantia) are those facts which tend to prove or disprove the facts in issue.’ The singular for facta probanda is factum probandum and for facta probantia is factum probans. Principles 19 In simple terms, facta probantia is the evidence you rely on to prove or disprove facta probanda. 2  Facts in issue and facts relevant to the facts in issue Rex v Strauss 2 All SA 37 (A) “In a criminal trial there is always some factum probandum, some proposition or state of affairs, which has to be proved and the evidence produced must satisfy the Court of the factum probandum before it can convict.” 3  Facts in issue and facts relevant to the facts in issue Wholesale Housing Supplies (Pty) Ltd v Rich Rewards Trading 556 (Pty) Ltd and Others (22189/2016) ZAWCHC 215 (29 October 2021) para 11 – ‘every fact’ which has to be proved is ‘facta probanda’ and ‘every piece of evidence necessary to prove each fact’, is the ‘facta probantia’. 4  Facts in issue and facts relevant to the facts in issue The facts in issue are generally determined by substantive law whereas the rules of procedure, the law of evidence, determine the facts relevant to the facts in issue. In both civil and criminal matters, the number of facts in issue may be reduced by means of formal admission. Once the facts have been formally admitted, the state or the plaintiff does not have to prove them. Principles 20 5  Evidence, probative material and proof of a fact There is a difference between “evidence” and “probative material”. However, in practice South African courts ‘are not entirely consistent in distinguishing between the two.’ Evidence consists of oral evidence made in court under oath, affirmation or admonition (oral evidence); documents (documentary evidence); photographs; and objects (real evidence) produced in court. Principles 20 – 21; Bellengere, The Law of Evidence in South Africa, Basic Principles, 33 – 34. 6  Evidence, probative material and proof of a fact However, apart from evidence, proof may also be furnished by other means. All relevant information presented to court is referred to as probative material. These include formal admissions, judicial notice, presumptions and statements under section 115. In other words, evidence is a subset of probative material. Principles 20 – 21; Bellengere, The Law of Evidence in South Africa, Basic Principles, 33 – 34. 7  Evidence, probative material and proof of a fact In Director of Public Prosecutions v Maraba and Others (AA01/2016) ZALMPPHC 6 (4 August 2016) para 9, the court held that even though an admission by an accused during explanation of plea is not evidence, it is still probative material. Medical evidence could also be probative material 8  Evidence, probative material and proof of a fact “Proof of a fact means that the court has received probative material with regard to such a fact and has accepted such a fact as being the truth for the 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 a fact has been proved.” In order to reach a conclusion, the court will have to evaluate the probative material before it. Different standards of proof in criminal and civil matters. Principles 21. 9  Evidence, probative material and proof of a fact S v Mapeyi and Others ZAWCHC 256 (9 February 2012) "The court determines the factual basis of a case before pronouncing a finding, by evaluating the evidence and probative material presented during the course of the trial. The court’s findings are based on factors such as the credibility of the witnesses, their reliability and the probabilities...The court must analyse and evaluate the probability or improbability of each party’s version on disputed issues and will assess the weight of the probative material, in order to determine whether the party carrying the burden of proof, has proved its allegations in accordance with the applicable standard of proof." 10  Conclusive proof and prima facie proof In the case of conclusive proof, rebuttal is no longer possible. “It is proof which is taken as decisive and final.” On the other hand, “prima facie proof implies that proof to the contrary is (still) possible. In the absence of proof to the contrary, prima facie proof will, generally speaking, become conclusive proof.’ Principles 22. Many sections in the Criminal Procedure Act refer to prima facie proof. For example, section 231 "Any document— (a) which purports to bear the signature of any person holding a public office; and (b) which bears a seal or stamp purporting to be a seal or stamp of the department, office or institution to which such person is attached, shall, upon the mere production thereof at criminal proceedings, be prima facie proof that such person signed such document.” 11  Admissibility and weight of evidence Admissibility relates to the question of whether the evidence ‘can in law properly be put before court.’ If the answer is yes, then it is admissible. If the answer is no, it is inadmissible. It is only when it is held admissible that the court assesses (evaluates) its weight (is it enough to establish the accused’s guilt beyond reasonable doubt, for example). ‘There are no degrees of admissibility. Evidence is either admissible or inadmissible.’ Principles 22 12  Conditional admissibility In rare instances, ‘evidence may be admitted on condition that some basis defect which renders it inadmissible is cured during the course of the trial.” For example, section 3(3) of the Law of Evidence Amendment Act (evidence admitted provisionally on condition that the person on whose credibility the probative value of the evidence depends will later come to court and testify). See Principles 22 – 23. 13 Circumstantial and direct evidence In the case of circumstantial evidence, the court is called upon to draw inferences based on the circumstances surrounding the case because the witness had ‘made no direct assertions with regard to the fact in issue.’ It furnishes ‘indirect proof.’ Direct evidence is ‘when a fact in issue is proved directly by such evidence.’ Principles 23 14 Circumstantial and direct evidence Rex v Strauss 2 All SA 37 (A) “Very often it is impossible to prove the factum probandum by the direct testimony of a witness. In such cases the process of proof consists of proving by the testimony of witnesses the existence of certain evidentiary facts from which the factum probandum can be inferred. The proof of the existence of such evidentiary facts may in some cases only be possible by the proof of other evidentiary facts from which their existence can be inferred. The evidentiary facts from which the factum probandum is inferred are usually called circumstantial evidence in relation to the factum probandum, but it is clear that the basic evidentiary facts upon which the whole structure of the proof rests are proved by the direct evidence of a witness. But even here a reservation is necessary because much testimony which is spoken of as direct evidence is often, in reality, not testimony as to an actual fact which has been observed by the testifying witness, but the statement by him of an inference drawn by him from a group of related facts which he has observed. When he says he saw A shoot B he is in reality giving a result which he has arrived at by inference from his observations. This shows that the line between direct and circumstantial evidence is not an easy one to draw. If direct evidence of overt acts were required it would in many cases be impossible to produce it, and the Legislature could not have intended to make proof impossible in such cases. 15 Primary evidence and secondary evidence The distinction between the two is important with regard to documentary evidence. That is because of the ‘best evidence rule’ which was very important before the invention of, for example, photocopying machines. It is a question of the “original” (primary) against a photocopy or oral evidence (secondary). Principles 23 – 24 S v Thabethe and Others (Appeal) (08/2022) ZAFSHC 306 (3 August 2023) para 41 'The question whether the best evidence rule has been satisfied for the admissibility of a document is a factual question.' The rule, although ‘in retreat’ is still relevant - Maseti v S 2014 (2) SACR 23 (SCA) para 33 It is not applicable to secondary evidence - Nedbank Limited v Yacoob (A3074/2020) ZAGPJHC 421 (30 August 2021) para 26 16  Hearsay evidence Section 3(4) of the Law of Evidence Amendment Act provides that ‘For the purposes of this section - “hearsay evidence” means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.’ See Griffiths v S (AR189/2016) ZAKZPHC 13 (6 April 2017) para 92 for an explanation of the definition 17  Informal admissions, formal admissions and confessions ‘A Confession by definition is an admission of all the elements of the offence charged, a full acknowledgement of guilt.’ S v Zuma and others 1995(1) SACR 568 (CC), para 27. In Libazi and another v S 1 All SA 246 (SCA), para 8, it was held that ‘a confession is generally…“an unequivocal acknowledgement of guilt, the equivalent of a plea of guilty before a court of law” and that ‘An admission is an acknowledgment of fact. When proved or made formally during judicial proceedings, it dispenses with the need for proof in regard to that fact.’ Maluleke v S ZALMPTHC 3 (26 January 2024) para 22, a statement which does not meet the requirements of a confession can be recorded as a formal admission in terms of s 220 of Criminal Procedure Act 18 Informal admissions, formal admissions and confessions An informal admission is usually made out of court and can easily be explained away. A formal admission is normally made in court or in pleadings and is considered to be the ‘conclusive proof’ of the facts admitted. Principles 470. 19  Informal admissions, formal admissions and confessions In S v Van der Westhuizen 2011 (2) SACR 26 (SCA), para 34, it was held that ‘[f]or so long as a formal admission stands, it cannot be contradicted by an accused, whether by way of evidence or in argument. To hold otherwise would defeat the purpose of s 220, eliminate the distinction between a formal admission in terms of that section, and an informal admission which may be qualified or explained away, and thereby lead to confusion in criminal trials.’ 20  Judicial notice ‘A court may accept certain facts as proved even though no evidence was led to prove such facts. This process if known as judicial notice.’ Facts of general knowledge (for example, that Cape Town is in South Africa) and facts of specific knowledge (for example, the UWC is in Bellville) can be judicially noticed. Principles 24. 21  Presumptions Rebuttable presumptions (for example, the presumption that a person who is always in the company of prostitute and has no known source of income is presumed to be living on the earnings of prostitution) and irrebuttable presumptions (for example, at common law that a child below a given age does not have that capacity to commit an offence). Principles 25. See also Child Justice Act – age of criminal capacity 22