Aspirant Prosecutor Programme 2023 Study Guide PDF

Aspirant Prosecutor Programme Entry Examination Study Guide AIM OF THE STUDY GUIDE – ENTRY EXAMINATION The aim of this Study Guide is to set a curriculum for the entry examination of Aspirant Prosecutors. Duration of examination: 3 hours. 1 of 124 TABLE OF CONTENTS PART 1: LAW OF EVIDENCE (CAPITA SELECTA) TOPIC PAGE A Basic terms 2 B Kinds of evidence and presentation thereof 13 C Evaluation of evidence 28 D The standard and burden of proof in criminal trials 29 PART 2: CRIMINAL PROCEDURE (CAPITA SELECTA) TOPIC PAGE Section 6 Power to withdraw charge or stop prosecution 33 Section 18 Prescription of right to institute prosecution 33 Section 26 Entering of premises for purposes of obtaining evidence 34 Section 38 Methods of securing attendance of accused in court 35 Section 50 Procedure after arrest 35 Section 54 Summons - securing attendance of accused in magistrate's court 37 Section 55 Failure of accused to appear on summons 38 Section 57A Admission of guilt and payment of fine after appearing in court 40 Section 60 Bail application of accused in court 40 Section 63 Amendment of conditions of bail 45 Section 67 Failure of accused on bail to appear 45 Section 68 Cancellation of bail 46 Section 72 Accused may be released on warning in lieu of bail 47 Section 75 Summary trial and court of trial 48 Section 76 Charge-sheet and proof of record of criminal case 49 Section 79 Panel for purposes of enquiry and report under sections 77 and 49 78 Section 81 Joinder of charges 52 Section 82 Several charges to be disposed of by same court 52 Section 83 Charge where it is doubtful what offence committed 53 Section 84 Essentials of charge 53 Section 85 Objection to charge 53 Section 86 Court may order that charge be amended 54 Section 87 Court may order delivery of particulars 54 Section 88 Defect in charge cured by evidence 55 Section 89 Previous conviction not to be alleged in charge 55 Section 92 Certain omissions or imperfections not to invalidate charge 55 Section 95 Rules applicable to particular charges 56 Section 105 Accused to plead to charge 57 Section 106 Pleas 57 Section 110 Accused brought before court which has no jurisdiction 58 Section 112 Plea of guilty 58 Section 114 Committal of accused - sentence by regional court - plea of guilty 59 Section 115 Plea of not guilty and procedure with regard to issues 60 Section 116 Committal of accused for sentence by regional court – after trial 61 Section 150 Prosecutor may address court and adduce evidence 62 Section 153 Circumstances - proceedings do not take place in open court 63 Section 155 Persons implicated in same offence may be tried together 64 Section 156 Persons: separate offences same time / place may be tried 64 2 of 124 together Section 157 Joinder of accused and separation of trials 65 Section 160 Procedure at criminal proceedings where accused is absent 65 Section 166 Cross-examination and re-examination of witnesses 66 Section 168 Court may adjourn proceedings to any date 66 Section 169 Court may adjourn proceedings to any place 66 Section 174 Accused may be discharged at close of case for prosecution 67 Section 175 Prosecution / defence may address court at conclusion of 67 evidence Section 212 Proof of certain facts by affidavit or certificate 68 Section 213 Proof of written statement by consent 68 Section 220 Admissions 70 Section 225 Evidence of prints, bodily samples or bodily appearance of accused 70 Section 234 Proof of official documents 70 Section 235 Proof of judicial proceedings 71 Section 271 Previous convictions may be proved 71 Section 274 Evidence on sentence 72 Section 276 Nature of punishments 72 Section 332 Prosecution of corporations and members of associations 73 Section 342A Unreasonable delays in trials 75 PART 3 CRIMINAL LAW (CAPITA SELECTA) TOPIC PAGE A. Principles 77 B. Statutory offences 84 C. Common law crimes 90 PART 1: LAW OF EVIDENCE - CAPITA SELECTA [CPA = Criminal Procedure Act] [CPEA = Civil Proceedings Evidence Act] Source. Principles of Evidence (4th Edition) Internet: ISSN 2074-6911 Jutastat e-publications: PJ Schwikkard, J de Jager, W L de Vos and A Govindjee A. BASIC TERMS 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. For example, in a paternity case the identity of the father will be a factum probandum (ie, a fact in issue); sexual intercourse with the alleged father will be a factum probans (ie, a fact relevant to the fact in issue). Schmidt & Rademeyer make a further distinction between primary and secondary facta probanda. According to them, primary facta probanda would refer to those facts placed in 3 of 124 issue by the pleadings (in civil proceedings) and the plea (in criminal proceedings). Secondary facta probanda would refer to facta probantia which are in issue; for example, in a paternity suit it may be disputed that sexual intercourse took place at the material time. This is then a factum probans which is in dispute. The facts in issue are, generally speaking, determined by substantive law, whereas the rules of procedure — and in particular the law of evidence — determine the facts relevant to the facts in issue. In both criminal and civil matters the number of facts in issue at the initial stage of the case may be reduced by means of formal admissions. For example, where an accused is charged with murder it is necessary for the state to prove that the accused unlawfully and intentionally killed another person. Substantive law requires that these elements must be proved. During his explanation of plea in terms of s 115 of the CPA the accused may, however, admit that he killed a human being. At the same time he may dispute that the killing was unlawful. He may, for example, claim that the killing was justified by reason of self-defence. The fact that the accused killed the deceased may (with the consent of the accused) be recorded as a formal admission. The state need then prove only unlawfulness. In this way the rules of procedure and substantive law determine the facts in issue. Evidence and Probative Material There is a distinction between evidence and probative material. Our courts are not entirely consistent in distinguishing between the two. What follows is a simplified overview. “Evidence” essentially consists of oral statements made in court under oath or affirmation or warning (oral evidence). But it also includes documents (documentary evidence) and objects (real evidence) produced and received in court. Evidence, however, is not the only means of furnishing proof. It was pointed out that even though an accused's admission made during the explanation of plea in terms of s 115 of the CPA is not evidence by the accused, it still is “probative material” and there is therefore no impediment in the way of a trial court to use against the accused material furnished during such procedure. An explanation of plea is not given under oath or affirmation or warning and therefore cannot be classified as evidence. It was held that formal admissions do not constitute evidence. Formal admissions dispense with the need to adduce evidence to prove facts in issue, and must be classified as probative material. Judicial notice, similarly, cannot be classified as evidence It was confirmed that presumptions also do not constitute evidence 4 of 124 It is submitted that the term “probative material” is a convenient term to include not only oral, documentary and real evidence but also formal admissions, judicial notice, presumptions and also those statements made in terms of s 115 of the CPA and which do not amount to formal admissions. Probative material therefore refers to more than oral, documentary and real evidence. Evidence and Proof Proof of a fact means that the court has received probative material with regard to 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. The court will only act upon facts found proved in accordance with certain standards. In a criminal case the standard of proof is proof beyond a reasonable doubt. In a civil case the standard of proof is proof upon a balance of probability — a lower standard than proof beyond reasonable doubt. Conclusive Proof and Prima Facie Proof Conclusive proof means that rebuttal is no longer possible. It is proof which is taken as decisive and final. 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. Prima facie proof is sometimes used as a synonym for prima facie evidence (especially by the legislature). This approach is, strictly speaking, incorrect. Admissibility and Weight of Evidence The admissibility of evidence and weight of evidence should not be confused. Lansdown & Campbell state that: “If what is adduced can in law properly be put before the court, it is admissible. It is only once it has been or could be admitted that its persuasiveness, alone or in conjunction with other evidence, in satisfying the court as to the facta probanda has to be considered.” There are no degrees of admissibility. Evidence is either admissible or inadmissible. Evidence cannot be more or less admissible. Once admissible, however, it may carry more or less weight according to the particular circumstances of the case. The court weighs or evaluates evidence to determine whether the required standard of proof has been attained. It 5 of 124 is only after the evidence has been admitted and at the end of the trial that the court will have to assess the final weight of the evidence. It should be borne in mind, however, that the admissibility of evidence is in principle determined with reference to its relevance. In determining relevance reference must of necessity also be made to the potential weight of the evidence. This, however, is a preliminary investigation in order to determine whether such evidence, once admitted, would be of assistance when it must finally be decided whether the facts in issue have been proved. Circumstantial and Direct Evidence Circumstantial evidence often forms an important component of the information furnished to the court. In these instances the court is required to draw inferences, because the witnesses have made no direct assertions with regard to the fact in issue. These inferences must comply with certain rules of logic. Circumstantial evidence furnishes indirect proof. In a murder trial, for example, evidence may be given that A had a motive to kill B and was seen running from B's home with a bloodstained knife. Evidence, however, is direct when a fact in issue is proved directly by such evidence; for example, where witness C testifies that he saw A stabbing B in the latter's home. The distinction between direct and circumstantial evidence is of special importance in those instances where an accused decides not to testify in his own defence. Primary and Secondary Evidence The distinction between primary and secondary evidence is of importance with regard to documentary evidence. In the fifth edition of Cross on Evidence it was said: “Primary evidence is that which does not, by its very nature, suggest that better evidence may be available: 'Secondary evidence' is that which, by its very nature, does suggest that better evidence may be available. The original of a document is primary evidence, a copy secondary evidence, of its contents. The distinction is now mainly of importance in connection with documents, because their contents must, as a general rule, be proved by production of the original, but it used to be of much greater significance on account of the 'best evidence' rule which occupied a prominent place in books on the law of evidence in the eighteenth and early nineteenth centuries.” Hearsay 6 of 124 Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides: 3.(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless — (a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings; 4th Ed, 2016, ch 13-p 293 (b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or (c) the court having regard to — (i) the nature of the proceedings; (ii) the nature of the evidence; (iii) the purpose for which the evidence is tendered; (iv) the probative value of the evidence; (v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends; (vi) any prejudice to a party which the admission of such evidence might entail; and (vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice. (2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence. (3) Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection. (4) 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; 'party' means the accused or party against whom hearsay evidence is to be adduced, including the prosecution. Judicial Notice 7 of 124 It is in the nature of the accusatorial process that judicial officers should play a passive role and be aloof from the proceedings. This serves to enhance the principle of impartiality. A judicial officer must withdraw from a case (recuse himself) if he happens to have private information concerning the facts of the case before him. However, the law of evidence does to a limited extent allow a judicial officer to accept the truth of certain facts which are known to him even though no evidence was led to prove these facts. This process is known as judicial notice and must be distinguished from the procedure of receiving evidence. For example, a judicial officer may, without hearing evidence, accept the fact that Johannesburg is in South Africa and that there are twelve months in a year. These facts are so well known or can so easily be ascertained that evidence to prove them would be completely unnecessary and even absurd. In Cross & Tapper on Evidence the following reasons for the existence of the doctrine of judicial notice are identified: “In the first place, it expedites the hearing of many cases. Much time would be wasted if every fact which was not admitted had to be the subject of evidence which would, in many instances, be costly and difficult to obtain. Secondly, the doctrine tends to produce uniformity of decision on matters of fact where a diversity of findings might sometimes be distinctly embarrassing.” The process of judicial notice deprives the parties of an opportunity to cross-examine and consequently the courts apply the doctrine with caution. How do we distinguish between receiving evidence and the taking of judicial notice? The distinction is easy to make when judicial notice is taken without any inquiry. In such a case the court is relying on its own knowledge, which is something entirely different from the reception of evidence. However, the distinction is more difficult to make when the taking of judicial notice is preceded by either referring to texts or the hearing of evidence. “If learned treatises are consulted, it is not easy to say whether evidence is being received under an exception to the rule against hearsay or whether the judge is equipping himself to take judicial notice.” In McQuaker v Goddard the court, before taking judicial notice of the fact that camels are domesticated animals, consulted books about camels and heard evidence from witnesses regarding the nature of camels. The Court of Appeal in affirming the decision noted that the trial judge, when hearing the witness's testimony as to the nature of camels, had not been taking evidence in the ordinary sense — the witnesses were merely assisting him in “forming his view as to what the ordinary course of nature in this regard in fact is, a matter of which he is supposed to have complete knowledge. Special common-law and statutory rules apply where rules of law are concerned. 8 of 124 Notorious facts (general knowledge) According to Zeffertt & Paizes notorious facts can be divided into two categories: facts of general knowledge, and specific facts which are notorious within the locality of the court. Facts of general knowledge would include, for example, the fact that there is a national road network in South Africa and that these roads are public roads, the fact that chess, billiards and table-tennis are games of skill and the fact that there are seven days in a week. In R v African Canning Co (Swa) Ltd and Others it was said that notorious facts include elemental experience in human nature, commercial affairs and everyday life. Facts of local notoriety Facts may be judicially noticed even if they are not of general knowledge. However, the proviso is that these facts should be notorious among all reasonably well-informed people in the area where the court sits. In R v Levitt a local court took judicial notice of the fact that Franschhoek is not a small place and it contains a number of streets. Judicial notice has also been taken of the distance between well-known local places and that a specific local road is a public road within the local town or city in the jurisdiction of the court. In S v Van Den Berg the court held that it was a notorious fact that a particular company was mining rough and uncut diamonds in Oranjemund. Facts easily ascertainable Facts which are not generally known but which are readily and easily ascertainable should also be judicially noticed. However, they should be easily ascertainable from sources of indisputable authority, for example, maps and surveys issued under governmental or other reliable authority. Section 229 of the CPA contains provisions to the effect that certain official tables, approved in the Gazette, may on the mere production thereof serve as proof of the exact times of sunrise and sunset at specific places in South Africa. In S v Sibuyi and Others the court held that, although a court might take judicial notice of the accuracy of almanacs, diaries or calendars as regards days and months, they could not be regarded as indisputably accurate as regards the phases of the moon, setting and rising of the sun, or the state of the tides. The basis of the court's reasoning was that such evidence was hearsay and did not merit being admitted as an exception to the hearsay rule. The court also noted that such information could not even be regarded as being prima facie correct. Informal admissions 9 of 124 Admissions by silence. Admissions may be contained in a verbal or written statement and they may also be inferred from conduct. For example, in S v Shepard and Others it was held that a party's payment of an invoice was an admission that the services specified in that invoice had been performed. However, conduct does not need to be positive to constitute an admission, and an admission may be inferred from silence. The constitutional right to remain silent and the presumption of innocence will no doubt severely restrict the inferences that can be drawn from an accused's silence. Silence in the face of an accusation may amount to an admission when it forms the basis of a common-sense inference against a party. For example, in Jacobs v Henning the plaintiff, in bringing an action for damages for seduction, led evidence that the defendant, when confronted and accused by the plaintiff's father of having caused his daughter's pregnancy, remained silent and simply lowered his head. The court found that this conduct was sufficient corroboration of the plaintiff's version. Admission by failure to answer a letter. However, as responding to a letter requires a greater degree of positive conduct than an oral denial, the courts are more reluctant to draw such an inference. For example, in R v West, 63 where the accused had failed to respond to a letter from the complainant alleging that he was the cause of her pregnancy, the court held that an acknowledgement of paternity could not be inferred from his silence. In each case, before an admission can be inferred, it must be established in the light of the surrounding circumstances that it would be reasonable to draw the inference that the party did not respond because he acknowledged that the contents of the letter were true. Statements in the presence of a party. A statement made in the presence of a party may be put before the court in order that the court may assess whether the party's response to hearing the statement amounted to an acceptance of its truth. It is not necessary for the party to assent to the statement for an inference to be drawn, as agreement as to the truth of the statement may be inferred from silence. An inference may even be drawn from a denial if, for example, the court finds that the party's demeanour contradicts the denial. Failure to cross-examine 10 of 124 In certain circumstances the failure to cross-examine may also constitute an informal admission. The appellant in S v Mathlare had been convicted of rape in a regional court. On appeal it was alleged that the prosecution had failed to present formal evidence to the effect that the blood samples identifying the appellant as the father of the child conceived as a result of the rape were taken from himself, the child and the complainant. During the trial the source of the blood samples had not been raised in cross-examination, the cross- examination having focused on the reliability of the analysis of the samples and the conclusions drawn from such analysis. The appeal court held that the tenor of the defence cross-examination, in the particular context of the trial, constituted an informal admission of the source of the blood samples. In effect the failure to challenge the admissibility of the evidence at trial precluded the appellant from challenging its admissibility at the appeal stage. Vicarious Admissions As a general rule an admission is not admissible against anyone except its maker. A statement made out of court, by a person who is not a party to the suit, is excluded because it is hearsay in nature. It follows that an extra-curial statement will be admissible only if it can qualify as an exception to the hearsay rule. However, it has been argued that there are other reasons for excluding vicarious admissions and therefore such statements should not be admitted merely because they fall to be admitted as an exception to the hearsay rule. The Supreme Court of Appeal held in S v Litako and Others 88 that it had erred in S v Ndhlovu and Others in admitting admissions by a co-accused against other co-accused. It found that the rationale underlying the common-law prohibition against admitting an extra- curial admission by one co-accused against another had not been over-ridden by s 3 of the Law of Evidence Amendment Act 45 of 1988. In Ndhlovu the court also paid attention to the rationale underpinning the common-law rule: it considered the cautionary rule and other dangers of unreliability but found in the circumstances that there were sufficient safeguards to justify the admission of the co-accused's statements in the interest of justice. The effect of the Litako judgment is to reinstate a rigid category of inadmissible evidence irrespective of its relevance and reliability on the basis that the inherent dangers in admitting an extra-curial admission by one accused against another will always be too great to justify admission in the interests of justice. The correctness of the decision in Litako was confirmed by the Constitutional Court in S v Mhlongo; S v Nkosi. Theron AJ, writing for a unanimous Constitutional Court, relied heavily 11 of 124 on s 9(1) of the Constitution, which provides that everyone is equal before the law and entitled to equal protection and benefit of the law. Examples of Exceptions to the Vicarious Admissions Rule Agents and employees Statements made by an agent within the scope of his authority may be admitted against his principal. Admissions by employees are similarly admissible. However, where the admission relates to a matter on which the employee and employer have incurred joint liability the statement will be admitted on the basis that the employee and employer have an identity of interest. Agents are rarely specifically authorised to make admissions, but authorisation will be established if it is shown that the statement was one of a type or class which the agent was expressly or impliedly authorised to make. Partners An admission made by a partner concerning partnership affairs is admissible against his partners. Partners are subject to the same principles applicable to agents. However, as a consequence of the contractual liability of partners, admissions made after the dissolution of the partnership may be admitted against ex-partners if they pertain to a transaction which occurred before the dissolution of the partnership. Legal representatives An admission made at trial by a legal representative is admissible against the client. However, it must first be established that the legal representative was properly instructed. That a legal representative has general authority to act on behalf of his client will often be inferred from the surrounding circumstances. It is only admissions of fact that are vicariously admissible and not expressions of opinion on the evidence adduced. Spouses An admission by one spouse is generally inadmissible against the other spouse unless it relates to the joint interest of the spouses in the community estate, or in a deferred sharing of profits under the accrual system introduced by the Matrimonial Property Act. 104 However, the court may find on the facts that an express or implied agency has been created and apply the principles pertaining to agents. Acts and declarations in furtherance of a common purpose 12 of 124 If A, B and C are engaged in a common purpose, and A makes a statement in furtherance of that common purpose, it will be admissible against B and C. Such acts or statements are sometimes described as 'executive' to distinguish them from 'narrative statements', which are not made in furtherance of the common purpose but, rather, as an account or admission of past events, in which case they are not admissible against anyone other than the maker of that statement. Before executive statements can be admitted into evidence the conspiracy and the accused's participation in it must be proved. In deciding these preliminary issues, the court is permitted to look at the statements of the alleged conspirators. The Appellate Division in S v Ffrench-Beytagh held that “it is immaterial whether the existence of the conspiracy or the participation of the defendants be proved first, although either element is nugatory without the other”. There must be some evidence aliunde establishing the existence of the common purpose before the relevant statements can be considered at the end of the case. ‘Formal’ admissions by the Accused At common law an extra-judicial statement made by an accused may not be admitted into evidence unless it is proved to have been made freely and voluntarily. In this context the words “freely and voluntarily” have a technical and restricted meaning and an admission will be found to be involuntary only if it has been induced by a promise or threat proceeding from a person in authority. Part of s 219A of the CPA provides: “Evidence of any admission made extra-judicially by any person in relation to the commission of an offence, shall, if such admission does not constitute a confession to that offence and is proved to have been voluntarily made by the person, be admissible in evidence against him at criminal proceedings relating to that offence...” In S v Yolelo the Appellate Division held s 219A merely codified the common law as regards the meaning of voluntariness in relation to admissions. As the voluntariness of an admission will be compromised only if it has been induced by a promise or threat emanating from a person in authority, it is necessary to look more closely at the meaning of these terms. A threat or a promise will be found to have been made if a person, by means of words or conduct, indicates to the accused that they will be treated more favourably if they speak, or less favourably if they don't. Whether such a threat or promise was made will be a question of fact in each case. Proof of such threat or promise does not necessarily establish the absence of voluntariness. The test of whether the threat or promise actually affected the 13 of 124 accused's freedom of volition is subjective. It follows from the subjective nature of the test that the threat or promise must be operative on the mind of the accused at the time that the admission is made. This subjective test makes it impossible to specify precisely what will constitute a threat or a promise. Clearly, an admission induced by violence or a threat of violence will not be admissible, nor will an admission made in response to a promise of lenient treatment be admitted. However, an admission made under police interrogation will not necessarily be inadmissible. It will be excluded only if on the facts it appears that it was induced by a threat or promise. Similarly, whether or not an exhortation or invitation to speak amounts to a threat or a promise negating volition will depend on the surrounding circumstances. Section 35(1)(c) of the Constitution may well provide the courts with the opportunity for departing from the artificial and technical common-law interpretation of the requirement of “voluntariness”. Section 35(1)(c) reflects the accused's pre-trial privilege against self- incrimination. It provides that an arrested person shall have the right “not to be compelled to make any confession or admission that could be used in evidence against” him or her. There is nothing in s 35(1)(c) to suggest that admissions and confessions should be treated differently. Section 217 of the CPA requires a confession to be made freely and voluntarily whilst the maker is in his sound and sober senses and without having been unduly influenced thereto. In Rex v Barlin Innes CJ held that the requirement of undue influence pertaining to confessions was elastic and went beyond the ambit of voluntariness, which was restricted to an inducement, threat or promise coming from a person in authority. It can be argued that the constitutional entrenchment of the principles of due process and the right to a fair trial in s 35(3) as well as the wording of s 35(1)(c), which draws no distinction between admissions and confessions, favours an interpretation of voluntariness which is indistinguishable from undue influence. Confessions in Criminal Trials The Importance of Distinguishing Between Admissions and Confessions An argument is put forward as to why it is constitutionally unsound to distinguish between admissions and confessions in respect of the requirements for admissibility. However, the matter has not as yet come before the South African courts and both the common law and existing statutory provisions make it necessary to distinguish between admissions and confessions. This is because the requirements for admissibility are far more onerous in respect of confessions than is the case with admissions. Furthermore, s 209 of the CPA provides that an accused may be convicted of an offence on the single evidence of a 14 of 124 confession if the confession is confirmed in a material respect or if the offence is proved by evidence, other than such confession, to have been actually committed. Freely and voluntarily The requirements that the statement be made “freely and voluntarily” and “without undue influence” are treated as separate requirements, each having a distinct meaning. The requirement of freely and voluntary is assigned its common-law meaning: the statement must not be induced by a threat or promise emanating from a person in authority. Sound and sober senses Before a confession will be admitted into evidence it must be proved that the accused understood what he was saying. This is all that is meant by the requirement that the accused must be in his sound and sober senses. Consequently, the fact that the accused was intoxicated, or extremely angry, or in great pain will not in itself lead to the conclusion that this requirement has not been met, unless it is established that he could not have appreciated what he was saying. Without being unduly influenced thereto Undue influence will be present where some external factor operates so as to extinguish the accused's freedom of will. The undue influence need not emanate from a person in authority. Clearly violence or a threat of assault would constitute undue influence, but the concept includes subtler forms of influence such as the promise of some benefit, or an implied threat or promise. The view has been expressed that any practice that is repugnant to the principles upon which the criminal law is based, is an undue one. Even if a statement is found to have been made voluntarily, it will be excluded if it was induced because of undue influence. The test of undue influence - The subjective inquiry requires the undue influence to have been operative on the accused's mind when he made the statement. The subjective approach has allowed courts in the past to conclude that a confession made after lengthy interrogation, or after detention without trial, did not necessarily result in undue influence. Similarly, a breach of the will not automatically render a confession inadmissible and will merely be a factor the court will take into consideration in determining whether a confession has been made freely and voluntarily and without being unduly influenced thereto. Confessions made to peace officers 15 of 124 Section 217(1) of the CPA provides that where a confession is made to a peace officer who is not a magistrate or justice of the peace, the confession must be confirmed or reduced to writing in the presence of a magistrate or justice of the peace. Confessions made to peace officers who are also magistrates and justices of the peace Confessions made to peace officers who are also magistrates or justices of the peace need not be reduced to writing and will be admissible if they are made freely and voluntarily, in sound and sober senses, and without undue influence. In terms of s 217(1)(b)(ii) of the CPA, if a confession is reduced to writing and confirmed in the presence of magistrate, it is deemed to be admissible in evidence upon mere production and if it appears from the document that the confession was made freely and voluntarily, the confession is presumed to have been made freely and voluntarily in sound and sober senses and without undue influence. The Constitutional Court in S v Zuma and Others found that the presumption in s 217(1)(b)(ii) placed on the accused the burden of proving that the confession was not made freely and voluntarily and required him to discharge the onus on a balance of probabilities. The court concluded that s 217(1)(b)(ii) violated the provisions of the Interim Constitution and was invalid. Confessions confirmed and reduced to writing in the presence of a magistrate or justice of the peace and undue influence Now that there is no longer a shift in onus when a confession is reduced to writing and confirmed in the presence of a magistrate, the significance of the above factors may well be diminished. However, reduction to writing remains a requirement for admissibility where the confession is made to a peace officer who is not a magistrate or justice of the peace. Consequently the circumstances in which a confession was reduced to writing will remain a factor to be taken into consideration in determining whether a confession was made freely and voluntarily, in sound and sober senses and without undue influence. It is now clear that the prosecution will always bear the burden of proving that a confession was made freely and voluntarily in sound and sober senses and without undue influence. Procedure: Trial-Within-a-Trial The admissibility of a confession is determined at a trial-within-a-trial. The rationale is rooted in a rule of policy that self-incriminating statements should 16 of 124 not be coerced and that accused persons be in a position to challenge the voluntariness of their statements without running the risk of further incriminating themselves. It is the insulation of the evidence given at a trial within a trial from the main trial which allows the accused to do this. This insulation applies to both evidence given by the accused and witnesses. At this stage of the proceedings both prosecution and defence will adduce evidence as to the circumstances in which the confession was made. The judge and assessors will decide whether the requirements of admissibility have been met. In order to avoid potential prejudice to the accused the court will not consider the contents of a confession before determining whether it is admissible. The purpose of the inquiry is not to establish the accused's guilt or innocence but the admissibility of the confession, and the accused may not be cross-examined on the issue of his guilt. Consequently, at the trial within a trial the general rule is that an accused may not be cross-examined as to whether the confession is true or not. However, cross-examination of this nature may be allowed where the accused alleges that the confession is false and that the true authors were the police. The purpose of the cross-examination is to test the accused's credibility and not the truth of the confession. In such circumstances the prosecution may cross-examine on the contents of the confession and only those portions referred to in cross-examination may become part of the record. In S v Potwana and Others the court, when assessing evidence pertinent to the voluntariness of the confession, warned against attaching undue significance to the fact that an accused person lied with regard to the truth of the content of the confession. A confession (and admission) is admissible only against the person who made the confession and may not be admitted either directly or indirectly against any other person. This rule is also applicable to admissions and to evidence arising out of a pointing out that constitutes an admission (see s 219A of the CPA) In S v Jili the court distinguished between two types of evidentiary material that may arise out of a pointing out. The first kind are facts that are discovered as a result of the pointing out. These facts, which exist objectively, if found to be admissible can be taken into account for all purposes against all accused. The second is the fact that the accused did the pointing out. The relevance of this evidence is to establish the extent of the accused's knowledge by virtue of his ability to do the pointing out, which amounts to an admission and consequently is admissible only against the person who did the pointing out. B. KINDS OF EVIDENCE AND PRESENTATION THEREOF 17 of 124 Oral evidence. General: Evidence Must Generally be Given on Oath or Affirmation Section 162 of the CPA provides that no person shall be examined as a witness unless he has taken the oath in the form set out in the section. The oath must be administered by the judge, registrar, or presiding officer. Section 163 of the CPA allows a person who objects to taking the oath (either at all or in the prescribed form) to make an affirmation to speak the truth. An affirmation has the same legal effect as an oath and the maker of both an oath and affirmation may be charged with perjury or statutory perjury. The oath or affirmation may be administered through or by an interpreter instructed by the court. Section 39 of the CPEA provides that no person (other than a person referred to in ss 40 and 41 and may give evidence except on oath. The oath is to be administered in the manner which most clearly conveys to the witness the meaning of an oath and which the witness considers to be binding on his conscience. Section 40 provides for an affirmation to be made in lieu of an oath. A person who attends court in obedience to a subpoena duces tecum is not necessarily a witness and consequently need not take an oath unless he is required to prove the document (that is, where he is required to go into the witness-box and identify and hand in the document). Unsworn evidence exceptionally allowed. Section 164 of the CPA provides that any person, who is found not to understand the nature and import of the oath or affirmation, may in criminal proceedings give evidence without taking the oath or making an affirmation. There is, however, a proviso that he should be admonished by the judge or presiding officer to speak the truth. A person who falsely and wilfully states an untruth after he has been admonished may be charged with perjury or statutory perjury. Section 41 of the CPEA has similar provisions for the reception of unsworn evidence. A witness with no religious belief shall make an affirmation at the direction of the presiding officer. Examination in chief: The purpose of examination in chief is to present evidence favourable to the version of the party calling the witness. The method most frequently adopted is the question-and-answer technique. This method is used to control the witness so that he does not speak of 18 of 124 inadmissible or irrelevant matters. On the other hand, it is sometimes advisable to allow a witness to tell his story without interruption as, in this way, a person may tell a story more convincingly and clearly. 8 A mixture of these two approaches may be the happy medium provided the person leading the evidence has control of the witness so that he can prevent the introduction of inadmissible evidence. There is no rule as to which method should be employed; it lies within the discretion of the person leading the evidence. Strict adherence to the question-and-answer technique is normally unnecessary where the witness is experienced in court appearances (for example, a district surgeon or policeman). Leading questions generally prohibited. A leading question is one which either suggests the answer or assumes the existence of certain facts which might be in issue. The reason for the prohibition on leading questions is that the witness might be favourably disposed to the person calling him and readily adopt the suggested answer. Hoffmann & Zeffertt suggest that human laziness must also be considered; it is easy to say yes or no when asked something. However, not all questions which suggest a yes or no answer are leading questions. Wigmore states that questions may legitimately suggest to the witness the topic of the answer required, but not the specific tenor of the answer desired. In practice this distinction will depend on the circumstances of each case. Situations where leading questions are permitted. Leading questions are allowed with regard to introductory or uncontested matters. Most examinations commence by suggesting the witness's name (“Are you Joe Soap?”), his address (“Do you live at Jan Smuts Avenue?”) and his personal knowledge of a party (“Do you know the accused?”). Likewise, in a vehicle accident case the date, place and time of the accident may be led if these facts are not in dispute. It is often permissible to use leading questions with regard to such matters as identification of persons or things. The general rule is that leading questions may be asked in cross-examination. Limited Use of Witness's Previous Consistent Statement A party almost invariably presents the evidence in chief of his witnesses on the basis of earlier extra-curial written statements made by the witnesses concerned. These earlier statements may generally not be proved or quoted by the party conducting examination in chief. During examination in chief (and other stages of a trial) the earlier written statement serves an extremely limited purpose: it merely assists a party to examine his witness on facts falling within the latter's knowledge. But there are some instances where a witness's previous consistent oral or written statement may — either during examination in chief or during re-examination — be put to more use on 19 of 124 account of its relevance. A witness's previous written statement may also be used to refresh his memory whilst he is in the witness-box, but certain strict requirements must be satisfied. Cross-examination: Cross-examination is a fundamental procedural right. It is one of the essential components of the accusatorial or adversarial trial and a natural and integral part of our trial system, where emphasis is placed upon orality. Cross-examination is the name given to the questioning of an opponent's witness. It succeeds examination in chief. The essence of any defence should in principle be introduced during cross-examination. Failure to allow cross-examination constitutes a gross irregularity. The court has no right to prevent cross-examination — even if the purpose is to protect the witness. The purpose and general scope of cross-examination The purpose of cross-examination is to elicit facts favourable to the cross-examiner's case and to challenge the truth or accuracy of the witness's version of the disputed events. The scope of cross-examination is wider than that of examination in chief. The cross- examiner is also not restricted to matters covered by the witness in his evidence in chief. A number of methods may be used in cross-examination to test the reliability, credibility and observation of the witness. A witness may be asked the same question more than once in cross-examination in order to test the witness; but pointless repetition may be stopped by the court. The court should not forbid the cross-examiner the right to ask a witness to repeat something that has already been said in chief merely because it has already been said. But the court may curtail cross-examination where the cross-examiner endeavours to wear the witness down or where there are grounds to intervene on the basis of s 166(3) of the CPA Leading questions may as a rule be asked in cross-examination But there is a measure of dispute as to whether leading questions may be put to witnesses who are obviously favourably disposed to the cross-examiner. A court is obviously entitled to attach less weight to answers given to leading questions put by a cross-examiner to a favourable witness. A cross-examiner who wishes to put blatant leading questions to a favourable witness must therefore consider this risk. The right to cross-examine arises as soon as any witness of an opponent has been sworn or admonished or has made an affirmation. This right may be exercised even if the witness does not give evidence in chief. In the event of a joint trial, each accused is entitled to cross- examine a co-accused who has testified. A party may as a rule not cross-examine his own witness. 20 of 124 A party has a duty to cross-examine on aspects which he disputes. His failure to cross- examine may in appropriate cases have evidential consequences in that an adverse inference may be drawn against him, The rationale of this duty to cross-examine is that if it is intended to argue that the evidence of the witness should be rejected, he should be cross- examined so as to afford him an opportunity of answering points supposedly unfavourable to him. Generally the failure of the prosecutor to cross-examine an accused may be decisive. A failure to cross-examine by a simple peasant does not necessarily signify guilt. It is the duty of the court to tell an undefended accused to put relevant portions of his defence to a witness. he court must assist illiterate persons and undefended persons. There are limits beyond which cross-examination should not go. Curial courtesy. Vexatious, abusive, oppressive or discourteous questions may be disallowed. Much will depend, however, upon the demeanour of the witness who is being cross-examined. The court will allow a cross-examiner to cut a rude or sarcastic witness down to size,but will adopt a different approach where a witness is for no reason harassed by abusive cross- examination. The dignity of the court must, above all, be maintained. Cross-examination need not always be aggressive in order to be effective. Misleading statements put by cross-examiner Misleading or vague statements should not be put to a witness. A cross-examiner should take care before asserting that a witness has previously said something in his evidence which had in fact not been said; and the court should curb this type of questioning. Inadmissible evidence Inadmissible evidence may not be put to nor elicited from a witness. An accused may, for example, not be cross-examined on the basis of an inadmissible confession. Cross- examination on the basis of a privileged statement is also inadmissible. In criminal cases, generally, where an accused elicits unfavourable evidence which is inadmissible, this evidence does not become admissible. Sections 197 and 211 of the CPA In terms of ss 197 and 211 of the CPA an accused who gives evidence may neither be asked nor be required to answer any questions which tend to show that he has been convicted of or charged with any other offence apart from the one on which he is standing 21 of 124 trial. But s 197 also makes provision for specific instances where questions of this nature are admissible. Cross-examination as to credit This aspect and the rule that answers given to questions in cross-examination relating to collateral issues are final, A witness may be cross-examined as to his memory, perception, reliability, consistency, honesty and accuracy in relating his story. Fairly wide bounds are permitted in cross- examination. An answer to a question which solely concerns the credibility of a witness must be accepted as final. This is so as to prevent endless collateral issues from being investigated. It is sometimes difficult to decide whether an issue is sufficiently relevant to allow contradictory evidence to be led. There are, however, two situations where cross-examination as to credit may be followed up with contradicting evidence. A court must permit a fair measure of latitude in cross-examination and it must “avoid even suspicion that the defence is muzzled”.There are, however, situations where cross- examination is abused and degenerates “to a treadmill of repetition and a quagmire of irrelevancies”. Legal professional ethics Paragraph 3 3 of the Code of Conduct: Uniform Rules of Professional Ethics of the General Bar Council of South Africa requires advocates to observe the following ethical rules in cross-examining witnesses: (a) Questions which affect the credibility of a witness by attacking his character, but are not otherwise relevant to the actual enquiry, ought not to be asked unless the cross-examiner has reasonable grounds for thinking that the imputation conveyed by the question is well-founded or true. (b) An advocate who is instructed by his attorney that in his opinion the imputation is well-founded or true, and is not merely instructed to put the question, is entitled prima facie to regard such instructions as reasonable grounds for so thinking and to put the question accordingly. (c) An advocate should not accept as conclusive the statement of any person other than the attorney instructing him that the imputation is well-founded or true, without ascertaining, so far as is practicable in the circumstances, that such person can give satisfactory reasons for his statement. (d) Such questions, whether or not the imputations they convey are well-founded, should only be put if, in the opinion of the cross-examiner, the answers would or might materially affect the credibility of the witness; and if the imputation conveyed by the question relates to matters so remote in time or of such a character that it would not affect the 22 of 124 credibility of the witness, the question should not be put. (e) In all cases it is the duty of the advocate to guard against being made the channel of questions which are only intended to incense or annoy either the witness or any other person. Re-examination: Re-examination follows cross-examination and is conducted by the party who initially called the witness. A party has a right to re-examine. The purpose of re-examination is to clear up any point or misunderstanding which might have occurred during cross-examination; to correct wrong impressions or false perceptions which might have been created in the course of cross-examination; to give the witness a fair opportunity to explain answers given by him under cross-examination which, if unexplained, may create a wrong impression or be used to arrive at false deductions; to put before the court the full picture and context of facts elicited during cross-examination; or to correct patent mistakes made under cross-examination. Re-examination can be, and frequently is, a very important mechanism of presenting a full picture and thus of arriving at the truth. The right to re-examine is not restricted to matters raised for the first time during cross- examination. But new matters (that is, matters not introduced in evidence in chief) may only be canvassed with leave of the court, which should then allow further cross-examination on the new evidence. Re-examination is conducted in accordance with the rules which cover examination in chief; consequently leading questions will not be permitted. If part of a document has been referred to in cross-examination, the whole document may be referred to in re-examination. Examination by the Court The court has the right to question a witness at any stage of the proceedings and the rule against leading questions does not apply. But it is desirable that leading questions should be avoided. Very often questioning by the court takes place after re-examination. The main purpose of such questioning should be to clear up any points which are still obscure. The court should play a limited role. The judge who himself conducts the examination... descends into the arena and is liable to have his vision clouded by the dust of conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. it is said that it is difficult and undesirable to define precisely the limits within which judicial questioning should be confined. Certain broad limitations were mentioned: (a) the judge must conduct the trial so that his impartiality and fairness are manifest to all concerned; (b) a judge should refrain from questioning in such a way or to such an extent as to lose judicial 23 of 124 impartiality and objectivity; and (c) a judge should desist from questioning in a way which may intimidate or disconcert a witness so as to affect his demeanour or impair his credibility. In criminal cases a judge has more latitude, subject to the rules mentioned above, to intervene to see that justice is done and the truth ascertained. In civil proceedings his intervention should be less frequent. Section 115 of the CPA does not entitle a court to cross-examine an accused during the so- called explanation of plea procedure. Real evidence The court's function and the limits of its observations The court should describe the exhibit carefully so that the details may be embodied in the record. The court should not attempt to make any observations which require expert knowledge. But the court itself may obviously conduct any test where expert assistance would be superfluous, such as measuring exhibits. In Rex v Makeip the judge examined some plaster casts of footprints (which were exhibits) with a magnifying glass and also measured the distance between the various marks. The Appellate Division held that this procedure was permissible as it did not require more than ordinary knowledge or skill. There are situations where a court, having received real evidence for its inspection and assessment, can or should also receive expert evidence to enhance or contribute to the court's interpretation of the evidence. Tape recordings: Tape recordings may be admissible as real evidence. The main danger concerning this type of evidence is the possibility of editing or alteration of the tapes. The court should be satisfied that it is shown prima facie that the recording is original. The recording must also be sufficiently intelligible. Sometimes a transcript of the recording will be produced in evidence subject to the court being satisfied as to the accuracy of the transcription. In Hopes v HM Advocate a Scottish court held that a typist who prepared a transcript after playing over the recording many times could be considered an expert in respect of the particular recording. The transcript must be identified by the person who made it. 18 There must be evidence to identify the speakers. This may be done in several ways, for example, either by a person who heard the speech or conversation or by inference from what was said. Fingerprints 24 of 124 Evidence that fingerprints were found at the scene of the crime or on a particular object is often of strong probative value in linking the accused with the commission of a crime. The usual manner in which fingerprint evidence is obtained is as follows: a policeman will lift a print by means of folien from the object and then send off the folien and fingerprints taken from the suspect to a police expert stationed at a main centre; the expert will then compare the fingerprints of the suspect with those found at the scene; the expert will mount enlarged photographs of the two sets of prints side by side and mark the points of similarity. If the expert attends court, he will often re-take the accused's fingerprints and compare them with the prints found at the scene. Seven points of similarity are sufficient to prove beyond doubt that the prints were made by one and the same person. The evidence of comparison may be given orally or by affidavit (s 212(4) and (6) of the CPA). Once the court accepts that the witness is an expert it will as a general rule accept his evidence. The procedural requirements relating to comparative charts are set out in a number of cases. Footprints do not require explanation by an expert and the court is obviously not obliged to accept an opinion as to the identity. Photographs, Films and Video Recordings Photographs may be produced as real evidence of such matters as injuries or accident damage. A photograph may also be used where an item is too bulky to produce in court. Section 232 of the CPA expressly allows for the production of photographs. Witnesses may also identify persons by examining photographs. A photograph is a document in terms of Part VI of the CPEA (s 33) and may be admissible in both civil and criminal proceedings (s 222 of the CPA) if the photographer has acknowledged in writing that he is responsible for its accuracy. In other instances there must be evidence that the photograph is a true likeness of the items shown in it. The principles regarding the use of films as real evidence are the same as those for photographs. In S v Mpumlo and Others the court held that a video film was not a document but was real evidence which, so long as it satisfied the requirement of relevance, could be produced, subject to any dispute as to authenticity or interpretation. In that case a copy was produced, but this was said only to go against the weight that may be attached to the evidence. In S v Ramgobin and Others Milne JP held that there was no difference in principle between the admission of audio tapes and video recordings. Milne JP held that the state had to prove the following factors beyond a reasonable doubt: (a) originality; (b) that no interference had 25 of 124 taken place; (c) that they related to the incident in question; (d) that the recording was faithful; (e) that the identity of the speakers was identified; and (f) that the recordings were sufficiently intelligible. In S v Baleka and Others it was held that sound recordings and video recordings, and a combination of the two, are real evidence to which the rules relating to documentary evidence are not applicable Inspection in loco It is open to the court to hold an inspection in loco to observe the scene of an incident or the nature of an object which cannot be produced in court. The decision to hold an inspection in loco is solely within the discretion of the court. A court of appeal will be slow to hold that the trial court was wrong in refusing to hold an inspection. The power to hold inspections in loco is conferred on a court, in criminal cases, by s 169 of the CPA and in civil cases by Magistrates' Courts Rules rule 30(1)(d) and rule 39(16)(d) of the Uniform Rules of Court. An inspection in loco may achieve two main purposes: (a) it may enable the court to follow the oral evidence more clearly or (b) it may enable the court to observe some real evidence which is additional to the oral evidence. It is undesirable that an inspection in loco should take place after the evidence and arguments have been completed, because observations made by the court should be recorded and the parties should be afforded the opportunity of making submissions and leading evidence to correct an observation which seems to them to be incorrect. The inspection should be held in the presence of both parties. There is authority that the presiding officer may make the inspection on his own. The better view is that he should not do so. If witnesses point out items and places during the inspection, they should subsequently be called or recalled to give evidence on what was indicated at the inspection. 33 It is irregular for the inspection to be held in the presence of only one of the parties or his witnesses. Handwriting Comparisons of disputed writing with any writing proved to be genuine may be made by a witness. Such writings and the evidence of the witnesses may be submitted as proof or otherwise of the writing in dispute (s 228 of the CPA and s 4 of the CPEA). The writing submitted for comparison is real evidence. An expert in the comparison of handwriting is usually known as a “questioned document examiner”. Such an expert will usually mount the disputed writing side by side with the genuine writing and indicate points of similarity. The court is of course not bound by an expert's opinion. A layman may give evidence 26 of 124 concerning the comparison of writing that he knows. The Supreme Court of Appeal has found that a court may draw its own conclusions from its own comparisons. comparison. Blood Tests, Tissue Typing and DNA Identification The results of blood tests may be used in litigation. This is usually done in cases of driving under the influence of alcohol or driving with an excess blood-alcohol level. In paternity cases red blood cell tests can at the most give a negative result. All that can be said is that the alleged father could not have been the father. 38 The HLA tissue typing test may be used to prove paternity to a much more certain degree than red blood cell tests. In Van der Harst v Viljoen 39 evidence showed a probability of 99,85% that the defendant was the father. However, such testing is merely corroborative of the evidence of the complainant or plaintiff. In paternity cases it is disputed whether a person may be forced to submit to blood or tissue tests in civil cases by order of the Supreme Court. 40 However, if there is no such order and a party decides not to submit, the provisions of s 37 of the Children's Act 38 of 2005 must govern the situation (see § 28 5 4 below). A far more precise method of identification is to be found in the so-called DNA “fingerprinting”. 41 Section 36A(1) in Chapter 3 of the CPA, defines “DNA” as “deoxyribonucleic acid which is a bio-chemical molecule found in the cells and that makes each species unique...”. What follows is a very basic description of DNA as a means of identification, the scientific basis thereof and the process involved. Humans have 46 chromosomes in the nucleus of each somatic or body cell. These thread-like structures are composed of a linear arrangement of genes which in turn are made up of DNA (deoxyribonucleic acid). The DNA of each individual is unique, except for identical twins. A person's DNA resembles that of his or her parents because one member of each of the 23 chromosome pairs comes from the mother and one from the father. DNA can be extracted from cells taken from skin, bone, blood, hair follicles and semen. This DNA can then be used in laboratory tests to show a distinctive pattern of bands. This process is known as DNA fingerprinting. The pattern that is revealed can then be compared with other samples of DNA to determine if there is a match. Documentary Evidence Document 27 of 124 There appears to be no single common-law definition of what constitutes a document and it is probably prudent to simply acknowledge that the definition is very wide. In the words of Darling J in R v Daye a document is “any written thing capable of being evidence” and it does not matter what it is written on. “Document” has also been statutorily defined and varies between statutes. For example, s 33 of the CPEA defines a document as including “any book, map, plan, drawing or photograph” and s 221 of the CPA defines a document as including “any device by means of which information is recorded or stored”. The Electronic Communications and Transactions Act 25 of 2002 accommodates developments in technology by creating a new type of evidence, namely, a “data message”, which is defined as “data generated, sent, received or stored by electronic means and includes (a) voice, where the voice is used in an automated transaction; and (b) a stored record. Admissibility requirements There are two basic rules governing the admissibility of a document: the original document must be produced and the document must be authenticated. OF course, all the general rules of evidence must — where applicable — also be taken into account (for instance, the rule that would exclude irrelevant evidence). The original document Despite the long history of the original document requirement it is not always clear how to identify an original document. However, originality would appear to correspond with the original source of recording. It is consistent with the rationale of requiring the original in order to avoid error or falsification. This accords with case law. For example, it has been held that the form filled in at the post office and not the resultant telegram constitutes the original document. It also allows for the recognition of multiple originals in the case of carbon copies, initialled copies and even a roneod copy. Authenticity The requirement that a document be authenticated, generally means no more than tendering evidence of authorship or possession depending on the purpose for which it is tendered. This can be done in a variety of ways, these were described by Human J in Howard & Decker Witkoppen Agencies and Fourways Estates (Pty) Ltd v De Sousa 32 as follows: “The law in relation to the proof of private documents is that the document must be identified by a witness who is either (i) the writer or signatory thereof, or (ii) the attesting witness, or 28 of 124 (iii) the person in whose lawful custody the document is, or (iv) the person who found it in possession of the opposite party, or (v) a handwriting expert, unless the document is one which proves itself, that is to say unless it: (1) is produced under a discovery order, or (2) may be judicially noticed by the court, or (3) is one which may be handed in from the Bar, or (4) is produced under a subpoena duces tecum, or (5) is an affidavit in interlocutory proceedings, or (6) is admitted by the opposite party.” The effect of s 36 of the CPEA is that the only instance in which the evidence of an attesting witness is required to prove a document is in the case of a will. In all other cases the document may be proved by evidence identifying the author. Electronic evidence Criminal proceedings The approach which South African courts have taken to the admissibility of computer printouts in criminal proceedings was based on s 221 (for business records) and s 236 (for banking records) of the CPA. Section 221 provides for certain trade or business records to be admitted into evidence as proof of their contents if (a) they are compiled in the course of business from information supplied by persons having personal knowledge of the matters dealt with in the document; and (b) the person who supplied the information is dead, out of the country, physically or mentally unfit to attend as a witness, cannot be identified or found, or cannot reasonably be expected to recollect the matters dealt with in the document. In terms of the Act, a document includes any device by means of which information is recorded or stored and a statement includes any representation of fact whether made in words or otherwise. The question whether computer printouts are documents within the meaning of a document in s 221 was considered in S v Harper and Another. 32 Milne J took a similar approach to the finding in the Narlis decision by holding that the extended definition of a document in the CPA was not wide enough to cover a computer. In reaching his finding the judge stated that “... at any rate where the operations carried out by it are more than the mere storage or recording of information.” 34 In other words information obtained from computer printouts would be admissible only if the function of the computer was purely passive in that it merely recorded or stored the information. If the computer carried out active functions, over and above storage, then the fruits of its endeavours would be inadmissible. 29 of 124 The decision in S v Harper and Another was then applied in S v Mashiyi and Another, and s 221 was read to exclude computer printouts (in this case documents relating to fraudulent medical aid claims) that contained information “obtained after treatment by arrangement, sorting, synthesis and calculation by the computer.” In the Mashiyi judgment the court added its voice to the call “that this lacunae in our law be filled and for new legislation relating specifically to computer evidence in criminal cases be considered and promulgated.” 37 Such legislation is contained in the ECT Act, which came into operation soon after the Mashiyi judgment was handed down. Electronic Communications and Transactions Act 25 of 2002 (ECT Act) The ECT Act moves beyond the concept of “computer printouts” and focuses on the terms “data” and “data messages”. The Act defines data as “electronic representations of information in any form” and data messages as “data generated, sent, received or stored by electronic means and includes — (a) voice, where the voice is used in an automated transaction; and (b) a stored record.” Section 15 of the ECT Act regulates the admissibility and evidential weight of data messages, which is the focus of this chapter. However, the ECT Act further provides for the production of a data message in an original form, guidelines for judging the integrity of the data message, the production of the data message in court and the requirement to satisfy a court of the authenticity thereof. 45 In so far as the formal requirements of signature are concerned, s 13 provides for compliance by way of the use of an electronic signature 46 to be attached to a data message. The ECT Act is a comprehensive document, which aims to be an enabling piece of legislation that will permit and regulate the use of electronic data in civil and criminal proceedings. The admissibility of electronic evidence Section 15(1) permits the admissibility of electronic evidence by laying down the following general principle: “In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence — (a) on the mere grounds that it is constituted by a data message; or (b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.” The exact meaning of this provision requires close consideration of the established principle that the law excludes documents as hearsay because of doubts about the reliability of their content. Therefore, should s 15(1) be given too wide an interpretation by making all data messages admissible then it would undermine the established law which governs 30 of 124 manuscript documents. The court in Ndlovu v The Minister of Correctional Services And Another 48 took the view that s 15(1) facilitates admissibility by ousting evidence rules which would exclude electronic evidence purely because of its electronic origin. The printout concerned was identified as “a data message”. The court stated: “The data message must be relevant and otherwise admissible, be proved to be authentic and the original be produced, unless (in regard to the latter aspect) s 15(1)(b) applied.” Data Messages as Real Evidence The law of evidence in South Africa distinguishes a distinction between documentary evidence and real evidence. Relevant real evidence is admissible. The question is whether a data message may take the form of real evidence? In this regards a distinction needs to be drawn between “computer-generated” and “computer-assisted” data. In Ex Parte Rosch the court was called upon to consider the admissibility of a series of automatically generated computer print-outs regarding the details of telephone calls. The court held as follows: “On behalf of the appellant it was submitted that the admission of this document offends against the hearsay rule. In our view there is no substance in this submission. The computer is not a witness who stated what he did not himself know. The printout is real evidence in the sense that it came about automatically and not as result of any input of information by a human being. There is therefore no room for dishonesty or human error. The printout in the present case is similar to the radar diagram produced in the English case of The Statue of Liberty: Owners of the Motorship Sapporo Maro v Owner of Steam Tanker, Statue of Liberty 2 All ER 195 (PDA) where such a document was admitted as evidence.” On this basis the computer-generated printouts were treated as real evidence and held admissible. In S v Ndiki and Others Van Zyl J considered the admissibility of two kinds of computer print-outs. Some were generated by a computer following human input. These the judge classified as hearsay. But the print-outs produced without human intervention, were regarded as real evidence and were therefore held admissible. However, Van Zyl J noted that the admissibility of this evidence would be dependent on the accuracy and reliability of the computer, its operating system and its processes. The approach of the courts to treat computer generated evidence as real evidence overcomes the problem of treating all data messages as hearsay forms of evidence and is in keeping with the functional equivalence doctrine. The contrary view would result in the classification of evidence long considered as real evidence as hearsay simply because it takes an electronic form. Witnesses The Competence and Compellability of Witnesses 31 of 124 The General Rule In both civil and criminal proceedings the general rule is that every person is presumed to be competent and compellable to give evidence unless the matter of competence and compellability is regulated by statutory provisions or, where applicable, by the law as it stood “on the thirtieth day of May 1961”. It should be noted that in South Africa, following the English example, the parties to a civil suit are regarded as competent witnesses. In contrast to the English orientated approach continental systems generally, under the influence of the French model, do not regard the parties in civil proceedings as competent witnesses. In South Africa a party to a civil suit is not only competent to testify in his own cause but he can also be compelled by his opponent to give evidence for the latter. In other words, the plaintiff can call the defendant as a witness and vice versa. General Procedural Matters Parties cannot consent to the admission of an incompetent witness' evidence. The court must decide any question concerning the competence or compellability of any witness. The method of examining and deciding issues relating to competence or compellability is normally that of trial within a trial. It may be necessary for the court to hear evidence, for example, on the issue whether a deaf mute can communicate properly. However, the court can also decide the issue of competence on the basis of its own observations, without requiring a trial within a trial. A competent and compellable witness who refuses to attend the proceedings may be brought before the court by means of a warrant of arrest. Such a witness, or one who does attend but refuses to testify, may also be tried and punished summarily by the court for his failure or refusal. The witness concerned can, however, avoid punishment by presenting an acceptable excuse. Judicial Officers Judges and magistrates are not competent to give evidence in cases over which they preside or have presided. If they have personal knowledge of a fact in dispute, they should recuse themselves. They may then testify after recusal. No recusal is necessary where judicial notice may take place. If a judge is competent to testify in a given case, a subpoena may nevertheless not be issued against him without leave of the High Court Officers of the Court 32 of 124 Attorneys, advocates and prosecutors are competent witnesses in cases in which they are professionally involved. But it is extremely undesirable that they testify in such cases. By so doing they would compromise their independence with regard to the case and put their credibility at stake. The Accused An accused, whether or not charged jointly with another accused, is at any appropriate stage in criminal proceedings competent to testify in his own defence. He may not, however, be called as a witness except upon his own application. The accused is therefore a competent but non-compellable witness. It should be borne in mind, however, that an accused who has given evidence may be recalled by the court. The Accused and Co-Accused in the Same Proceedings An accused who testifies in his own defence may in the process give evidence favourable to a co-accused. But since every accused testifies only of his own volition, a co-accused cannot compel another accused to give evidence on his behalf. An accused may also incriminate a co-accused whilst giving evidence on his own behalf. But the state cannot call him as a witness for the prosecution since his competence is confined to being a witness in his own defence. It is only by terminating his status as an accused in the same proceedings as the co-accused that he can become a witness for the prosecution against his former co- accused. Such a change of status can be achieved in the following ways: (a) If the charge against the accused is withdrawn. This does not amount to an acquittal and the former accused can be prosecuted again. But by testifying he can in certain circumstances qualify for an indemnity from prosecution. (b) If the accused is found not guilty and discharged. In terms of s 6(b) of the CPA a prosecution may be stopped even after an accused has pleaded, in which event he must be acquitted. In such an instance the accused may not be prosecuted again but may be called as a state witness. (c) If the accused pleads guilty and the trials of the accused and his co-accused are separated. Furthermore, it is desirable that the accused should be convicted and sentenced before being called as a witness. (d) If the trials of the accused and his co-accused are separated for another valid reason. 47 In this event it is also desirable that the accused, if convicted, should be sentenced before being called to testify for the prosecution. 33 of 124 Since the former accused is ordinarily an accomplice, the cautionary rule in this regard will apply. Spouses The position regarding the competence and compellability of a spouse to be called as a witness for or against the other spouse depends on the nature of the proceedings A partner in a civil union as provided for by the Civil Union Act 17 of 2006 is also a spouse. This is clearly the effect of s 13(2)(b) of this Act, which provides that “husband, wife or spouse in any other law, including the common law, includes a civil union partner.” People married in terms of indigenous law or any system of religious law, are also considered spouses (see n 52 to § 22 11 2 below). Criminal cases In this context a distinction must be drawn between the case where the spouse of an accused testifies on behalf of the defence and where the spouse is called as a witness on behalf of the prosecution. For the sake of convenience the husband is in paragraphs (i) and (ii) below cast in the role of the accused, whilst his wife assumes the role of the witness. Witness for the defence The spouse of an accused is a competent witness for the defence, whether or not the accused is charged jointly with any other person. If the spouse is called to testify on behalf of the accused, she is both competentand compellable 50 to do so. The spouse is also a competent witness for any co-accused of the accused. But in this instance she cannot be compelled to testify. Witness for the prosecution The spouse of an accused is a competent witness for the prosecution, but as a rule she cannot be compelled to testify in this capacity. However, she is both a competent and compellable witness for the prosecution where the accused is charged with a crime falling within the following categories: (a) any offence committed against the person of either of them or of a child of either of them; (b) any offence under Chapter 8 of the Child Care Act 1983 committed in respect of any child of either of them; (c) any contravention of any provision of s 31(1) of the Maintenance Act 1998, or of such provision as applied by any other law; (d) bigamy; (e) incest as contemplated in s 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007; (f) abduction; (g) any contravention of any provision of s 2, 8, 10, 11, 12, 12A, 17 or 20 of the Sexual Offences Act 1957; (gA) any contravention of any provision of s 17 or 23 of Act 32 of 2007 as referred to in (e) above; (h) perjury committed in connection with or for the purpose of any judicial 34 of 124 proceedings instituted or to be instituted or contemplated by the one of them against the other, or in connection with or for the purpose of criminal proceedings in respect of any offence included in this subsection; (i) the statutory offence of making a false statement in any affidavit or any affirmed, solemn or attested declaration if it is made in connection with or for the purpose of any such proceedings as are mentioned in (h) above. The Calling of Witnesses Witnesses called by the state In criminal cases the state leads evidence first. Before any evidence is adduced the prosecutor may address the court for the purpose of explaining the charge and indicating, without comment, what evidence the state intends to adduce in support of its allegations against the accused. The prosecutor then calls his first witness and examines him in terms of the rules which govern examination in chief. In terms of s 150(2)(a) of the CPA the prosecutor may examine the witness and adduce such evidence as may be admissible to prove that the accused committed the offence referred to in the charge or any other offences which might be competent verdicts on the charge. At the completion of examination in chief the accused or his legal representative has a right 1 and a duty to cross-examine the witness. Cross-examination should not be conducted by the accused and his legal representative. The prosecutor has a right to re-examine the witness upon completion of cross-examination by the defence. The prosecutor may thereafter call the next witness (if any) and this witness will in turn be taken through examination in chief by the prosecutor, cross-examination by the defence, and (if necessary) re-examination by the prosecutor. The prosecutor closes his case after all the witnesses for the state have testified. At this stage the defence may apply for the discharge of the accused in terms of s 174 of the CPA. The court may also grant a discharge mero motu. Witnesses called by the court Section 186 of the CPA provides as follows: “The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed any person as a witness at such proceedings, and the court shall so subpoena a witness or so cause a witness to be subpoenaed if the evidence of such witness appears to the court essential for the just decision of the case.” This section introduces an inquisitorial element into our basically accusatorial trial system. 36 It is an irregularity if the court fails to call a witness whose evidence is essential for the just decision of the case. 35 of 124 In terms of s 166(2) of the CPA the prosecutor and the accused may, with leave of the court, examine or cross-examine any witness called by the court in criminal proceedings. Section 186 of the CPA does not empower the court to call the accused as a witness. The accused may testify only upon his own application. 38 The court may, however, recall an accused who testified in his own defence ( Witnesses recalled by the court Section 167 of the CPA determines, inter alia, that the court may recall and re-examine any person, including an accused, already examined at the proceedings and shall recall the person concerned if his evidence appears to the court essential to the just decision of the case. Refreshing the Memory of a Witness The law of evidence assigns great importance to the principle of orality in the adjudication of disputes. Witnesses are as a rule required to give independent oral testimony in the sense that they are generally not permitted to rely on, or refer to, a statement, note or document whilst testifying. This general rule creates the impression that preference is given to memory over writing as a means of “preserving evidence”. This preference can hardly be reconciled with the simple truth embodied in the saying “Ink does not loose its hold on paper, as facts do on the memory”. Be this as it may, the preference for oral evidence is a corner-stone of the common-law evidential system, where cross-examination plays a pivotal role: greater weight is attached to viva voce statements of witnesses than to their earlier recorded statements. Legislation has amended the position to a certain extent. Part VI of the CPEA (as read with s 222 of the CPA) 3 gives effect to the valid argument that the written statement of a witness may, depending upon circumstances, be more accurate than his recollection in court. In certain circumstances a prior written statement can in terms of Part VI be submitted in order to supplement — but not corroborate — the evidence of a witness who cannot recall an event or some details thereof. Part VI cannot, however, be relied upon in all circumstances. Where Part VI does not find application, recourse must be had to the common-law rules which provide for refreshing the memory of a witness. This procedure entails that a witness, who for some reason has forgotten a part (or all) of the events in respect of which he is to testify, may read or rely on his earlier record or statement in an attempt to refresh his memory. Refreshing the memory of a witness with the aid of his earlier record or statement is really a necessary exception to the general rule that witnesses must testify on the basis of an independent recollection of the relevant facts. Human memory is 36 of 124 fallible, especially in those situations where considerable time has lapsed between the actual event and the witness's narration in court. The complexity of some issues may also make it extremely difficult or impossible for a witness to testify without the aid of his earlier record. 7 In this context “record” may include an ordinary written statement, a tape recording, 8 a policeman's notebook, 9 hospital records, 10 a ship's logbook, 11 and entries in a family Bible. Refreshing the memory of a witness in the course of his testimony and whilst he is in the witness-box, may take place only if certain conditions have been met. These conditions are referred to as the common-law foundation requirements and are discussed in §§ 24 5–24 5 6 below. Evidence must also be led to show compliance with these conditions. It is also possible to distinguish between the situation where a witness refreshes his memory before being called upon to testify (see § 24 3 below) and the situation where refreshing of memory takes place during an adjournment (see § 24 4 below). In all these situations the distinction between “present recollection revived” and “past recollection recorded” (as explained in § 24 2 below) plays an important role. C. EVALUATION OF EVIDENCE It was pointed out that a court should first determine the factual basis of the case before pronouncing on the rights, duties and liabilities of the parties engaged in the dispute. The factual basis is determined by evaluating all the probative material admitted during the course of the trial. In Stellenbosch Farmers' Winery Group Ltd and Another v Martell Et Cie and Others Nienaber JA provided the following informative guidelines and principles in resolving factual disputes: “... To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c), the 37 of 124 court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised, probabilities prevail.” The difficult task of finally analysing and assessing the weight or cogency of probative material arises after all the parties have closed their respective cases and delivered their arguments. The presiding judge or magistrate — and assessors where they have been used — must then 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. A court must give reasons for its decision. Maguire once said that the rules of exclusion have kept Anglo-American lawyers so fully occupied that they have not yet satisfactorily explored the importance of evidential cogency; they ha

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