Law of Evidence and Litigation Techniques PDF 2024 AQA

IIE Learn Module Outline LAEV8411 Law of Evidence and Litigation Techniques LAEV8411 MODULE OUTLINE 2024 (Firs...

IIE Learn Module Outline LAEV8411 Law of Evidence and Litigation Techniques LAEV8411 MODULE OUTLINE 2024 (First Edition: 2020) This guide enjoys copyright under the Berne Convention. In terms of the Copyright Act, no 98 of 1978, no part of this manual may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any other information storage and retrieval system without permission in writing from the proprietor. The Independent Institute of Education (Pty) Ltd is registered with the Department of Higher Education and Training as a private higher education institution under the Higher Education Act, 1997 (reg. no. 2007/HE07/002). Company registration number: 1987/004754/07. © The Independent Institute of Education (Pty) Ltd 2024 Page 1 of 33 IIE Learn Module Outline LAEV8411 Table of Contents Introduction.................................................................................................................................. 3 Using this Module Outline........................................................................................................... 4 This Module on Learn................................................................................................................... 5 Icons Used in this Document and on Learn................................................................................. 6 Module Resources........................................................................................................................ 7 Module Purpose......................................................................................................................... 10 Module Outcomes...................................................................................................................... 10 Assessments............................................................................................................................... 11 Module Pacer............................................................................................................................. 14 Glossary of Key Terms for this Module...................................................................................... 33 © The Independent Institute of Education (Pty) Ltd 2024 Page 2 of 33 IIE Learn Module Outline LAEV8411 Introduction Welcome to the Law of Evidence. When it comes to what regulates matters of evidence, we look to common law, case law, various pieces of legislation such as the Law of Evidence Amendment Act 45 of 1988 and the Criminal Procedure Act 51 of 1977. As with all fields of our law, the Law of Evidence and its sources are informed by the principles, values and rights that come from the Constitution of the Republic of South Africa, 1996, as the supreme law of the land. The development of the body of rules that make up the Law of Evidence has come mostly from case law. It therefore forms part of the procedural/adjectival area of law, and we find evidence is central to civil trials, criminal trials, inquests, and many other tribunals where there is a dispute that requires resolution. Our lives are surrounded by situations where evidence is important. Consider a situation like witnessing a motor vehicle collision. Would you be able to remember the colours of the vehicles that collided with one another? who was at fault? What time was it in the day? What colour was the traffic light at the time of the collision? As a legal practitioner, you will have to master the techniques of gathering and preparing evidence in a manner that it is both admissible in court and that assists in strengthening your client’s case. The purpose of this module is to provide you with an overview of the Law of Evidence in respect of criminal and civil trials. Obviously, it is important for students to study the history and development of the Law of Evidence in order to understand the current approach in respect of admissibility and presentation of evidence. Therefore, this module will place an emphasis on the admissibility and presentation of evidence as read with, among other sources, the South African Constitution, 1996 and the Criminal Procedure Act 51 of 1977. Throughout this module, you will engage with definitions, explanations and practical exercises which will help you to acquire the knowledge which is essential in respect of implementing the rules of evidence correctly. The laws of evidence in a skilled legal practitioner’s hands prove to be a formidable weapon in court. Please remember that in order to get the most out of this module, it is essential that you actually read all the prescribed texts, case law, and sections of prescribed work before lectures. When doing so, keep a pen or pencil handy, and make notes, questions, and comments as you read so that you engage more deeply with the content. You can dramatically improve your comprehension and levels of enjoyment in law by doing so! We hope you will enjoy the module and take the opportunity to use the knowledge and experience gained in mastering this module when studying other subjects, and ultimately in your area of legal practice. © The Independent Institute of Education (Pty) Ltd 2024 Page 3 of 33 IIE Learn Module Outline LAEV8411 Using this Module Outline This module outline has been developed to support your learning. Please note that the content of this module is on Learn as well as in the prescribed material. You will not succeed in this module if you focus on this document alone. This document does not reflect all the content on Learn, the links to different resources, nor the specific instructions for the group and individual activities. Your lecturer will decide when activities are available/open for submission and when these submissions or contributions are due. Ensure that you take note of announcements made during lectures and/or posted within Learn in this regard. © The Independent Institute of Education (Pty) Ltd 2024 Page 4 of 33 IIE Learn Module Outline LAEV8411 This Module on Learn Learn is an online space, designed to support and maximise your learning in an active manner. Its main purpose is to guide and pace you through the module. In addition to the information provided in this document, you will find some of the following when you access Learn: A list of prescribed material; A variety of additional online resources (articles, videos, audio, interactive graphics, etc.) in each learning unit that will further help to explain theoretical concepts; Critical questions/activities to guide you through the module’s objectives; Collaborative and individual activities with time-on-task estimates to assist you in managing your time around these; Revision questions, or references to revision questions, after each learning unit. Kindly note: Unless you are completing this as a distance module, Learn does not replace your contact time with your lecturers and/or tutors. LAEV8411 is a Learn module, and as such, you are required to engage extensively with the content on the Learn platform. Effective use of this tool will provide you with opportunities to discuss, debate, and consolidate your understanding of the content presented in this module. You are expected to work through the learning units on Learn in your own time – especially before class. Any contact sessions will therefore be used to raise and address any questions or interesting points with your lecturer, and not to cover every aspect of this module. Your lecturer will communicate submission dates for specific activities in class and/or on Learn. © The Independent Institute of Education (Pty) Ltd 2024 Page 5 of 33 IIE Learn Module Outline LAEV8411 Icons Used in this Document and on Learn The following icons are used in all your modules on Learn: Icon Description A list of what you should be able to do after working through the learning unit. Specific references to sections in the prescribed work. Questions to help you recognise or think about theoretical concepts to be covered. Sections where you get to grapple with the content/ theory. This is mainly presented in the form of questions which focus your attention and are aimed at helping you to understand the content better. You will be presented with online resources to work through (in addition to the textbook or manual references) and find some of the answers to the questions posed. Opportunities to make connections between different chunks of theory in the module or to real life. Real life or world of work information or examples of application of theory, using online resources for self-exploration. REMEMBER: You need to log onto Learn to: Access online resources such as articles, interactive graphics, explanations, video clips, etc. which will assist you in mastering the content; and View instructions and submit or post your contributions to individual or group activities which are managed and tracked on Learn. © The Independent Institute of Education (Pty) Ltd 2024 Page 6 of 33 IIE Learn Module Outline LAEV8411 Module Resources Prescribed Schwikkard, P.J. and Van der Merwe, S.E. Principles of Evidence (2023) Material (PM) for 5th Ed. Juta this Module ISBN: 9781485140689 The Constitution of the Republic of South Africa, 1996 Legislation (with the relevant sections set out in the relevant learning units) The Civil Proceedings Evidence Act 25 of 1965 The Criminal Procedure Act 51 of 1977 The Law of Evidence Amendment Act 45 of 1988 The Electronic Communications and Transactions Act 25 of 2002 Journal articles Nortje JGJ and Myburgh DC The search and seizure of digital evidence by forensic investigators in South Africa (2019) PER/PELJ 1 (paragraphs 1, 2.3, 2.4 and 5) Case Law R v Solomons 1959 (2) SA352 (A) Makin v AG for New South Wales 1894 AC 57 DPP v Boardman 1975 AC 421 R v Bond 1906 2 KB 389 Member of the Executive Council for Health, Eastern Cape v Z M (576/2019) ZASCA (14 December 2020) Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd 1989 (3) SA 759 (W) Herbst v R 1925 SWA 77 80 S v Ndaba 1981 (3) SA 782 (N) Ruto Flour Mills Ltd v Adelson1958 (4) SA 235 (T) Holtzhauzen v Roodt 1997 (4) SA 766 (W) Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E) R v Rowton 1865 Le & CA 520 ER S v Hlati 2000 (2) SACR 325 (N) R v Roberts 1942 Cr App R 102 © The Independent Institute of Education (Pty) Ltd 2024 Page 7 of 33 IIE Learn Module Outline LAEV8411 Miranda v Arizona 384 US 436 (1966) S v Melani and Others 1996 (1) SACR 335 (E) 348i – 349a S v Mathebula & Another 1997 (1) SACR (W) 19f – 20a S v Huma 1995 (2) SACR 411 (W) 419 Shabalala v Attorney General of Transvaal 1996 (1) SA 725 (CC) Rex v Van Schalkwyk 1938 AD 543 Davids and Special Investigating Unit CCMA (GALB 2-11) 27 September 2011 available at: https://heinonline.org/HOL/P?h=hein.journals/iljuta33&i=1616 S v Mphala 1998 (1) SACR 388 (W) S v Pillay & Others 2004 (2) SACR 419 (SCA) S v Mthembu 2008 (2) SACR 407 (SCA) S v Ndhlovu & Others 2002 (2) SACR 325 (SCA) S v Yawa & Another 1993 SACR 487 (A) Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA) S v Msane 1977 (4) SA 758 (N) S v Ndiki and Others 2008 (2) SACR 252 (Ck) Jafta v Ezemvelo KZN Wildlife 2008 (10) BLLR 954 (LC) R v O’Linn 1960 (1) SA 758 SA 545 (N) S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) S v Zuma 1995 (1) SACR 568 (CC) Doorewaard and Another v S 2021 (1) SACR 235 (SCA) Rex v Mataung 1949 (2) SA 414 (O) R v Blom 1939 AD 188 S v Masuku and Another 1969 (2) SA 375 (N) S v Moti 1998 (2) SACR 245 (SCA) S v Webber 1971 (3) SA 754 (A) S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC) S v Van Der Meyden 1999 (1) SACR 447 (W) 448 f - g Pillay v Krishna 1946 AD 946 Web resources Judge President’s Practice Directive 2 of 2020 (Gauteng Division of the High Court of South Africa, Pretoria)[https://www.ppv.co.za/wp- content/uploads/2020/01/Judge-President%E2%80%99s- Practice-Directive-2-of-2020.pdf] The South African Judiciary - Court Online o An Overview Of The System © The Independent Institute of Education (Pty) Ltd 2024 Page 8 of 33 IIE Learn Module Outline LAEV8411 [https://www.judiciary.org.za/index.php/court-online/about- court-online] o Evidence Management Application in court/chambers [https://www.judiciary.org.za/index.php/caselines/case-lines- explanation/72-court-online/343-evidence-management- application-in-court-chambers] Recommended Web resources Readings, Digital, The South African Judiciary - and Web https://www.judiciary.org.za/index.php Resources The South African Police Service - https://www.saps.gov.za/index.php The Department of Justice, South Africa - https://www.justice.gov.za/index.html Parliament of the Republic of South Africa - https://www.parliament.gov.za/ Please note that a number of additional resources and links to resources are provided throughout this module on the Learn platform. You are encouraged to engage with these as they will assist you in mastering the various objectives of this module. They may also be useful resources for completing any assignments. You will not, however, be assessed under examination conditions on any additional or recommended reading material. Module Overview You will find an overview of this module on Learn under the Module Information link in the Course Menu. Assessments Find more information on this module’s assessments in this document and on the Student Portal. © The Independent Institute of Education (Pty) Ltd 2024 Page 9 of 33 IIE Learn Module Outline LAEV8411 Module Purpose The purpose of this module is to provide students with an overview of the Law of Evidence with regard to both civil and criminal matters. Emphasis is placed on the admissibility and presentation of evidence as read with the Constitution, 1996. Module Outcomes MO1 Critically evaluate the definition of evidence and evidential material. Distinguish between the rules of the inquisitorial and accusatorial trial MO2 procedures. Explain the concept of relevance of evidence and to distinguish between MO3 evidence and proof. Explain the burden of proof in civil and criminal matters and to critically evaluate MO4 the evidentiary standard required. Describe the different kinds of evidence i.e. oral evidence, real evidence, MO5 documentary evidence and evidence of uncertain classification. MO6 Critically evaluate the methods by which various kinds of evidence are to be presented in court, the rules of trial and the exclusion of relevant evidence which is inadmissible as a result of being unconstitutionally obtained. © The Independent Institute of Education (Pty) Ltd 2024 Page 10 of 33 IIE Learn Module Outline LAEV8411 Assessments Integrated Curriculum Engagement (ICE) Minimum number of ICE activities to complete 4 Weighting towards the final module mark 10% Formatives Test Assignment Weighting 30% 25% Duration 1 hour Approximately 10 hours Write/Submit after LU 2 LU 4 Learning Units covered LUs 1 and 2 LUs 2,3 and 4 Resources required N/A Additional research required Summative Examination Weighting 35% Duration 2 hours Total marks 120 Open/Closed book Closed book Resources required None Learning Units covered All © The Independent Institute of Education (Pty) Ltd 2024 Page 11 of 33 IIE Learn Module Outline LAEV8411 Assessment Preparation Guidelines Format of the Assessment Preparation Hints Test The test for this module will Ensure that you work through all the relevant activities, assess your understanding exercises, and revision questions on Learn and in your of Learning Unit 1 and 2 of textbook. this module and will include Brainstorm possible questions based on the learning a series of short and outcomes and objectives provided. Then complete medium-length questions, these as practise-tests. as well as one longer Engage with your lecturer concerning any questions or question. queries you may have on the module content. You will be expected to During both your preparation for the test and during apply, as well as recall the test itself, pay attention to the instruction words information as per your (like list, apply, describe etc.) and to the mark objectives for these learning allocations of each question to ensure that you are able units. to provide the correct depth and detail in your answers. Make sure that you have mastered the objectives in Learning Unit 1 and 2. Assignment The assignment will assess Read through the prescribed chapters and content for your ability to integrate and Learning Unit 2,3 and 4 and ensure that you have apply the content in engaged in close and detailed reading of the indicated Learning Unit 2,3 and 4 of material before you proceed with your written analysis. this module. Engage with your lecturer concerning any questions or queries you may have on the module content. Remember to analyse all elements required and ensure that your assignment is proofread and polished for style, language, and syntax. Improve the quality of your assignment by using the provided rubric and addressing any areas of concern prior to submitting it for marking. © The Independent Institute of Education (Pty) Ltd 2024 Page 12 of 33 IIE Learn Module Outline LAEV8411 Examination The examination will assess Consult your examination brief for this module, which all learning units in this will be made available prior to your examination. Make module and will include sure that you practise answering the sample questions both theory and in the brief so that you become familiar with the kinds application-type questions. of questions likely to appear in the examination itself. Engage with your lecturer concerning any questions or You will be expected to queries you may have on the module content. respond to short, theory- Ensure that you work through all the activities, based questions, as well as exercises, and revision questions on Learn and in your analysis essay-type textbook. questions. You must have completed close readings of your prescribed material to ensure that you have prepared adequately for your examination for this module. Pay close attention to the instruction words (like list, apply, describe, analyse etc.) and to the mark allocations of each question to ensure that you provide the correct depth and detail in your answers. Make sure that you are comfortable in responding to all the objectives for all learning units. Brainstorm possible questions based on the learning outcomes and objectives provided. © The Independent Institute of Education (Pty) Ltd 2024 Page 13 of 33 IIE Learn Module Outline LAEV8411 Module Pacer Code Programme Contact Sessions Credits LAEV8211 BLAW2 48 Lecture hours 15 Learning Unit 1 Introduction to the Concept of the Law of Evidence Overview: The Law of Evidence, as a branch of the Law of Procedure, concerns the rules that govern the admissibility of evidence in both criminal and civil trials in South Africa. Currently, there is no all-embracing statute governing this area of law, and as such, various sources regulate how courts adjudicate on the proof of facts in order to make a finding on a case before them. It is imperative for any legal practitioner to understand which evidence is admissible in a civil or criminal matter and which will ultimately prove his or her case. As such, it is vital that students grasp the distinction between different categories of evidence and sources of this area of law. In this learning unit, we will look at a broad introduction to the law of evidence, the sources of the law of evidence, the impact that is made on it by the Constitution of the Republic of South Africa, 1996, the difference between substantive and adjectival law, as well as the difference between inquisitorial and accusatorial procedure, and some of the general principles that underlie this branch of the law. Please work through Themes 1 and 2 on Learn, together with the relevant sections of your prescribed source/s. To ensure that you are working towards mastering the objectives for this learning unit, please also ensure that you complete the following activities on Learn: It is advisable that you begin to create your own Glossary of Terms (in addition to what has been provided) for this subject so that you have a reference document as you make progress. This will help you to stay familiarised with terms and concepts that may be “foreign” to you at present within this dynamic field of law. © The Independent Institute of Education (Pty) Ltd 2024 Page 14 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 1: Theme Breakdown Sessions: Theme 1: Introduction to the Law of Prescribed Material (PM) 1–4 Evidence Related LO1: Explain the key concepts for Law of PM: Chapters Outcomes: Evidence using your own words. 1 (1.1, 1.2, 1.4, 1.5 MO001 LO2: Identify the sources of the Law of 2 (2.1 to 2.15) MO002 Evidence. 3 (3.1 to 3.4) and LO3: Discuss the impact of the 4 (4.1 to 4.3) Constitution, 1996, on the Law of Evidence. LO4: Differentiate between substantive and adjectival law. LO5: Differentiate between accusatorial and inquisitorial procedure. Theme 2: Principles of Evidence PM: Chapter 4 (4.3.1 to LO6: Explain the following key concepts 4.3.4) using your own words: Burden of proof. Irrebuttable presumption. Estoppel. Parole evidence. Rectification. © The Independent Institute of Education (Pty) Ltd 2024 Page 15 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 2 Relevance and Admissibility of Evidence – Selected Categories Part 1 Overview: The first obstacle in presenting any piece of evidence to a court, in a criminal or civil case, is showing that the evidence is relevant to the matter before it. Relevance is a threshold requirement that must be met before the court can consider the value that the evidence may have in deciding the case. Once evidence is shown to be relevant, that evidence will be admissible in court, unless it is excluded by some other rule of law or evidence. The basic test for the relevance of evidence is whether there is a connection between such evidence and the case in question. It is often useful to ask whether it would be logical to introduce the relevant evidence in court. If the answer to this question is no, then the evidence will generally not be admitted in court. In this learning unit, we will look at selected categories of evidence, which includes similar fact evidence, opinion evidence, and character evidence; as well as the law as it pertains to previous consistent statements. Please work through Themes 1, 2, 3 and 4 on Learn, together with the relevant sections of your prescribed source/s. To ensure that you are working towards mastering the objectives for this learning unit, please complete the following activities on Learn: © The Independent Institute of Education (Pty) Ltd 2024 Page 16 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 2: Theme Breakdown Sessions: 5 – 10 Theme 1: Similar Fact Evidence Prescribed Material (PM) Related LO1: Explain why similar fact evidence PM: Chapter 7 (7.1 to 7.7) Outcomes: may be inadmissible. MO001 LO2: Describe the “Makin Formulation”. S 210 in the Criminal MO002 LO3: Apply the requirements for similarity Procedure Act 51 of 1977 MO003 to a given scenario. MO004 LO4: Explain the concept of “coincidence”. R v Solomons 1959 (2) MO005 LO5: Apply the relevant principles of SA352 (A) similar fact evidence to a given scenario. Makin v AG for New South Wales 1894 AC 57 DPP v Boardman 1975 AC 421 R v Bond 1906 2 KB 389 Theme 2: Opinion Evidence PM: Chapter 8 (8.1 to 8.6.4) LO6: Explain what opinion evidence is. LO7: Differentiate between fact and Member of the Executive opinion as perceived in the Law of Council for Health, Eastern Evidence. Cape v Z M (576/2019) LO8: Explain the basis of the opinion rule. ZASCA (14 December LO9: Discuss when a lay person’s opinion 2020) will be accepted. LO10: Discuss when an expert witness is Colgate Palmolive (Pty) Ltd v necessary/permitted. Elida-Gibbs (Pty) Ltd 1989 LO11: Differentiate between hearsay and (3) SA 759 (W) expert opinion in a given scenario. LO12: Apply the principles of opinion Herbst v R 1925 SWA 77 80 evidence to a given scenario. S v Ndaba 1981 (3) SA 782 (N) Ruto Flour Mills Ltd v Adelson1958 (4) SA 235 (T) Holtzhauzen v Roodt 1997 (4) SA 766 (W) © The Independent Institute of Education (Pty) Ltd 2024 Page 17 of 33 IIE Learn Module Outline LAEV8411 Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E) Theme 3: Character Evidence PM: Chapter 6 (6.1 to 6.3) LO13: Explain the legal concept of character. R v Rowton 1865 Le & CA LO14: Discuss the categories of persons 520 ER and circumstances to which character evidence applies in court. S v Hlati 2000 (2) SACR 325 LO15: Apply principles of character (N) evidence to a given scenario. S 197 of the Criminal Procedure Act 51 of 1977 Theme 4: Previous Consistent Statements PM: Chapter 9 LO16: Analyse the meaning of a previous (9.1, 9.2, 9.4, 9.8, 9.9, 9.10, consistent statement with reference 9.11, and 9.12) to: R v Roberts 1942 Cr App R Its definition. 102 The rationale for its exclusion as a form of evidence. Part VI of the Civil The exceptions to the general rule. Proceedings Evidence Act 25 LO17: Apply to a given scenario when of 1965 previous consistent statements are inadmissible or admissible taking S 213 of the Criminal into consideration: Procedure Act 51 of 1977. Part VI of the Civil Proceedings Evidence Act 25 of 1965. Res Gestae. Refreshing memory. Statements made at arrest of discovery of incriminating articles. S 213 of the Criminal Procedure Act 51 of 1977. © The Independent Institute of Education (Pty) Ltd 2024 Page 18 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 3 Admissibility of Relevant Evidence – Selected Categories Part 2 Overview: As previously mentioned, the first obstacle in presenting any piece of evidence to a court, in a criminal or civil case, is showing that the evidence is relevant to the matter before it. Relevance is a threshold requirement that must be met before the court can consider the value that the evidence may have in deciding the case. Once evidence is shown to be relevant, that evidence is admissible in court unless it is excluded by some other rule of law or evidence. In this learning unit, we will continue looking at the relevance and admissibility of selected categories of evidence, which includes the concept of privilege, unconstitutionally obtained evidence, hearsay, informal admissions, and the law as it pertains to confessions in criminal trials. Please work through Themes 1, 2, 3, 4 and 5 on Learn, together with the relevant sections of your prescribed source/s. To ensure that you are working towards mastering the objectives for this learning unit, please complete the following activities on Learn: Learning Unit 3 Theme Breakdown Sessions: Theme 1: Privilege Prescribed Material (PM) 11 – 20 Related LO1: Discuss the accused’s right to remain PM: Outcomes: silent and privilege against self- Chapter 10 MO003 incrimination, in relation to the 10.2.3.1, 10.2.3.2 MO004 following: 10.2.3.1.1,10.3, MO005 Pre-trial; 10.5 MO006 Trial; Ascertainment of bodily features; Chapter 11 Legal professional privilege; and 11.1 to 11.5.1.7 Marital privilege. LO2: Apply the principles of private privilege Section 35 of the South to a given scenario. African Constitution, 1996. LO3: Differentiate between public and private privilege. Miranda v Arizona 384 US LO4: Discuss state privilege in relation to the 436 (1966) following: Detection of crime and protection of S v Melani and Others informers; 1996 (1) SACR 335 (E) 348i – 349a © The Independent Institute of Education (Pty) Ltd 2024 Page 19 of 33 IIE Learn Module Outline LAEV8411 Access to police docket for purposes of trial; and S v Mathebula & Another Trial. 1997 (1) SACR (W) 19f – LO5: Apply the principles of state privilege 20a to a given scenario. S v Huma 1995 (2) SACR 411 (W) 419 Ss 200 – 204 of the Criminal Procedure Act 51 of 1977 Section 32 of the South African Constitution, 1996 Shabalala v Attorney General of Transvaal 1996 (1) SA 725 (CC) Rex v Van Schalkwyk 1938 AD 543 Theme 2: Unconstitutionally obtained PM: Chapter 12 evidence 12.1 to 12.4.5. LO6: Analyse the two-legged test for 12.7.1 determining exclusion of 12.8 to 12.9.2. unconstitutionally obtained evidence, 12.10 to 12.11 keeping in mind the rights in s 35 of the Constitution, 1996, with reference S 35 (5) of the South to: African Constitution, 1996 Trial fairness. Admission of evidence being Davids and Special detrimental to the administration of Investigating Unit CCMA justice. (GALB 2-11) 27 September Good faith or absence thereof in 2011 available at: police conduct. https://heinonline.org/HO Procedural Matters. L/P?h=hein.journals/iljuta Entrapment. 33&i=1616 [Accessed 16 Civil matters. February 2022]. © The Independent Institute of Education (Pty) Ltd 2024 Page 20 of 33 IIE Learn Module Outline LAEV8411 LO7: Apply the principles of unconstitutionally obtained evidence to S v Mphala 1998 (1) SACR a given scenario. 388 (W) S v Pillay & Others 2004 (2) SACR 419 (SCA) S v Mthembu 2008 (2) SACR 407 (SCA) Theme 3: Hearsay PM: Chapter 13 LO8: Analyse hearsay evidence with 13.1 to 13.2.1. reference to the following aspects: 13.2.7 and 13.4 to Exclusion of hearsay evidence; 13.7.4). Admission of hearsay evidence; and Chapter 14 Discretion for admission/exclusion of 14.1 to 14.3 hearsay evidence. Chapter 15 15.1 to 15.3.3 LO9: Analyse the exceptions in relation to Chapter 17 hearsay evidence with reference to the 17.4 to 17.7 following: Common law; Civil Proceedings Evidence Statutory law; and Act 25 of 1965 The Constitution, 1996. LO10: Apply the principles of hearsay S 3 of the Law of Evidence evidence to a given scenario. Amendment Act 45 of 1988 Criminal Procedure Act 51 of 1977 S v Ndhlovu & Others 2002 (2) SACR 325 (SCA) S v Yawa & Another 1994 (2) SACR 709 (SE) Theme 4: Informal admissions LO11: Differentiate between formal PM: admissions and informal admissions. Chapter 16 (16.1, 16.2, LO12: Analyse the requirements for 16.3, 16.4, 16.5, 16.6, admissibility in relation to informal 16.7) admissions. © The Independent Institute of Education (Pty) Ltd 2024 Page 21 of 33 IIE Learn Module Outline LAEV8411 LO13: Discuss the nature of vicarious Makhathini v Road admissions and exceptions to them Accident Fund 2002 (1) SA with reference to case law. 511 (SCA) LO14: Discuss “statements without prejudice” in relation to informal S v Ndhlovu and Others admissions. 2002 (1) SACR 325 (SCA) LO15: Analyse admissions of the accused in relation to informal admissions. S 219A of the Criminal LO16: Apply the principles concerning Procedure Act 51 of 1977 informal admissions to a given scenario. S 35(1)(c) of the South African Constitution, 1996 Theme 5: Confessions in Criminal Trials LO17: Discuss the rationale for excluding PM Chapter 17 (17.1, involuntary admissions and 17.2, 17.3, 17.4, 17.5, confessions. 17.6, 17.7, 17.8, 17.9, LO18: Differentiate between admissions and 17.10) confessions. LO19: Analyse the meaning of a confession. S 218 of the Criminal LO20: Analyse the requirements for the Procedure Act 51 of 1977 admissibility of a confession. LO21: Explain the burden of proof in relation S 35 of the Constitution, to a confession. 1996 LO22: Discuss the procedure of a trial- within-a-trial concerning admissibility of a confession. LO23: Analyse the legal position in respect of inadmissible confessions which subsequently become admissible. LO24: Discuss the admissibility of facts discovered as a consequence of an admissible or inadmissible admission or confession. © The Independent Institute of Education (Pty) Ltd 2024 Page 22 of 33 IIE Learn Module Outline LAEV8411 LO25: Discuss law reform in regard to confessions. LO26: Apply principles in relation to confessions to a given scenario. © The Independent Institute of Education (Pty) Ltd 2024 Page 23 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 4 Admissibility of Relevant Evidence – Selected Categories Part 3 Overview: As previously mentioned, the first obstacle in presenting any piece of evidence to a court, in a criminal or civil case, is showing that the evidence is relevant to the matter. Each category of evidence brings with it several important issues which need to be studied in order to ascertain its admissibility. These different categories of evidence may also be presented to the court in specific ways, so it is important to have an adequate understanding of each. Evidence can be presented in court in a variety of forms, such as by way of affidavit, through data messages or verbally. Some of the more common ways of presenting evidence in court include witness testimony, typed documents, CCTV footage, photographs and computer simulations of the event in question. In this learning unit, we will continue looking at the relevance and admissibility of selected categories of evidence, which includes oral evidence, real evidence, documentary evidence, and electronic evidence; and the law as it pertains the competence and compellability of witnesses. Please work through Themes 1,2,3 and 4 on Learn, together with the relevant sections of your prescribed source/s. To ensure that you are working towards mastering the objectives for this learning unit, please complete the following activities on Learn: This unit includes the established categories of evidence. The challenge you will experience in this unit is mastering all of them plus a fairly recent category of evidence, namely electronic evidence. Data messages have been granted the legal functional equivalence of written (or paper-based) documents. For purposes of this unit, it is advisable that you familiarise yourself with the relevant sections of the Electronic Communications and Transactions Act 25 of 2002 (Hereafter referred to as ECTA). © The Independent Institute of Education (Pty) Ltd 2024 Page 24 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 4: Theme Breakdown Sessions: Theme 1: Oral evidence Prescribed Material (PM) 21 – 28 Related LO1: Discuss the principles of presentation PM: Chapter 18 (18.1 to Outcomes: in relation to oral evidence at 18.15) MO003 various stages in civil and criminal MO004 trials with reference to: Ss 158 (2)(a) and 170A of MO005 aspects of examination-in-chief; the Criminal Procedure Act MO006 aspects of cross-examination; and 51 of 1977. Aspects of re-examination. LO2: Analyse oral evidence with reference to the following: The intermediary and related procedures. Evidence via closed circuit television or similar electronic media. Evidence on commission in criminal cases. Evidence on commission in civil cases. LO3: Apply the principles of oral evidence to a given scenario. Theme 2: Real evidence and documentary PM: Chapter 19 evidence o 19.1 to 19.7 LO4: Provide examples of real evidence. Chapter 20 LO5: Differentiate between the o 20.1 to 20.3.2 advantages and disadvantages of different categories of real evidence S v Msane 1977 (4) SA 758 with reference to: (N) Appearance of persons. Fingerprints. S v Ndiki and Others 2008 (2) Photographs, films, audio, and video SACR 252 (Ck) recordings. Inspections in loco. Ss 234,236 and 237 of the Handwriting. Criminal Procedure Act 51 of DNA Identification. 1977 LO6: Apply the principles of real evidence to a given scenario. Ss 19 and 23 of the Civil LO7: Provide examples of documentary Proceedings Evidence Act 25 evidence. of 1965 © The Independent Institute of Education (Pty) Ltd 2024 Page 25 of 33 IIE Learn Module Outline LAEV8411 LO8: Discuss the admissibility of documentary evidence. LO9: Analyse issues of authenticity surrounding obtaining and retrieving documentary evidence. LO10: Apply the principles of documentary evidence to a given scenario. Theme 3: Electronic evidence PM: Chapter 21 (21.1, 21.2.2 LO11: Discuss the admissibility of to 21.5) electronic evidence. LO12: Analyse whether data messages are Ss 11,12,15,22,23 and 24 of admissible as real or documentary the Electronic evidence. Communications and LO13: Evaluate recent discussion on digital Transactions Act 25 of 2002 evidence in the sphere of electronic evidence. Jafta v Ezemvelo KZN LO14: Apply the principles of electronic Wildlife 2008 (10) BLLR 954 evidence to a given scenario. (LC) S v Ndiki and Others 2008 (2) SACR 252 (Ck) Judge President’s Practice Directive 2 of 2020 (Gauteng Division of the High Court of South Africa, Pretoria)[https://www.ppv.c o.za/wp- content/uploads/2020/01/Ju dge-President%E2%80%99s- Practice-Directive-2-of- 2020.pdf] The South African Judiciary - Court Online o An Overview Of The System o [https://www.judiciary. org.za/index.php/court- © The Independent Institute of Education (Pty) Ltd 2024 Page 26 of 33 IIE Learn Module Outline LAEV8411 online/about-court- online] o Evidence Management Application in court/chambers o [https://www.judiciary. org.za/index.php/caseli nes/case-lines- explanation/72-court- online/343-evidence- management- application-in-court- chambers] Nortje JGJ and Myburgh DC The search and seizure of digital evidence by forensic investigators in South Africa (2019) PER/PELJ 1 (paragraphs 1, 2.3, 2.4 and 5) Theme 4: Witnesses PM: Chapter 22 LO15: Discuss the various aspects relating 22.1 to 22.4, 22.9 to competence and compellability of 22.10, 22.11) witnesses. LO16: Discuss the following categories of S 35 (5) of the South African witnesses: Constitution, 1996 Children. The accused and co-accused. R v O’Linn 1960 (1) SA 758 Spouses. SA 545 (N) LO17: Analyse the case of R v O’Linn on when and how a witness is allowed to refresh his/her memory on certain aspects. LO18: Apply the principles in relation to witnesses in a given scenario. © The Independent Institute of Education (Pty) Ltd 2024 Page 27 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 5 Proof Without Evidence Overview: The general rule in the law of evidence is that all facts that are relevant in a matter must be proven by the parties by presenting evidence. Several exceptions to this rule exist, however, and there are certain categories of “fact” that a court may admit at a trial without evidence being adduced on that specific fact. In this learning unit, we will look at the law as it pertains to formal admissions, judicial notice and presumptions of law. Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your prescribed source/s. To ensure that you are working towards mastering the objectives for this learning unit, please complete the following activities on Learn: © The Independent Institute of Education (Pty) Ltd 2024 Page 28 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 5: Theme Breakdown Sessions: Theme 1: Formal admissions Prescribed Material (PM) 29 – 32 Related LO1: Analyse the nature and rationale of PM: Chapter 26 (26.1, 26.2, Outcomes: formal admissions. 26.3, 26.4, 26.5, 26.6) MO003 LO2: Explain what the courts require with MO004 reference to the “intention of the S 15 of the Civil Proceedings MO005 maker” and a formal admission. Evidence Act 25 of 1965. MO006 LO3: Discuss principles relating to formal admissions in relation to: S 220 of the Criminal Civil proceedings. Procedure Act 51 of 1977. Criminal proceedings. LO4: Discuss formal and informal admissions made by the cross- examiner in trial proceedings. LO5: Apply the principles concerning formal admissions to a given scenario. Theme 2: Judicial Notice LO6: Discuss the procedure for when PM: Chapter 27 (27.1 to judicial notice will operate as an 27.4.3 and 27.5.6 and 27.6, alternative to evidence being led. 27.6.1) LO7: Explain the limits of judicial notice and examples thereof. S 39 of the South African LO8: Apply the principles in relation to Constitution, 1996 judicial notice in a given scenario. S 224 of the Criminal Procedure Act 51 of 1977 S 5 of the Civil Proceedings Evidence Act 25 of 1965 S 1 of the Law of Evidence Amendment Act 45 of 1988 Theme 3: Presumptions of law LO9: Discuss the following in relation to PM: Chapter 28 presumptions of law: 28.1 to 28.3.3 and General principles. Chapter 29 Presumption of fact. 29.1 to 29.2.2 The presumption of innocence in the Constitution, 1996. © The Independent Institute of Education (Pty) Ltd 2024 Page 29 of 33 IIE Learn Module Outline LAEV8411 LO10: Differentiate between rebuttable S 35 of the South African and irrebuttable presumptions of Constitution, 1996 law. LO11: Apply the principles in relation to S v Bhulwana; S v Gwadiso presumptions in a given scenario. 1996 (1) SA 388 (CC) S v Zuma 1995 (1) SACR 568 (CC) © The Independent Institute of Education (Pty) Ltd 2024 Page 30 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 6 Weight of Evidence, Standards and Burden of Proof Overview: Once evidence has been presented to the court by the parties to the matter, the court (in both criminal and civil trials) is tasked with assessing the evidence. Only then may a court make a ruling that is valid. To do so, the courts are required to analyse and assess the weight of the probative material before them, and then determine whether the party carrying the burden of proof has proved its allegations in accordance with the applicable standard of proof. Accordingly, the burden and standard of proof plays a central role to the court’s function and the validity of a judgement. This burden of proof can either be to prove the facts beyond reasonable doubt or on a balance of probabilities, depending on whether the trial is criminal or civil in nature. In addition, the burden to prove facts does not remain vested with one party alone but shifts between the parties, depending on the presumptions and legal principles that are applicable to the matter. In this learning unit, we will look at specific issues in the evaluation of evidence and the burden and standard of proof in civil and criminal matters respectively. Please work through Themes 1 and 2 on Learn, together with the relevant sections of your prescribed source/s. To ensure that you are working towards mastering the objectives for this learning unit, please complete the following activities on Learn: The challenge in this study unit is identifying and understanding the principles in respect of onus/burden of proof, weight/sufficient evidence, circumstantial evidence, and corroboration in civil and criminal trials. © The Independent Institute of Education (Pty) Ltd 2024 Page 31 of 33 IIE Learn Module Outline LAEV8411 Learning Unit 6: Theme Breakdown Sessions: Theme 1: Evaluation of evidence Prescribed Material (PM) 33 – 36 (specific issues) Related LO1: Analyse the evaluation of evidence with PM: Chapter 30 (30.1, 30.3, Outcomes: reference to: 30.4, 30.5 to 30.5.4, 30.11 to MO001 Corroboration. 30.11.6, 30.3.2.11, 30.3.2.12, MO002 Circumstantial evidence. 30.3.21) MO003 Witness credibility. MO004 The cautionary rule. Ss 208 – 209 of the Criminal MO005 LO2: Apply the principles of evaluating Procedure Act 51 of 1977 MO006 evidence to a given scenario. S 16 of the Civil Proceedings Evidence Act 25 of 1965 Doorewaard and Another v S 2021 (1) SACR 235 (SCA) Rex v Mataung 1949 (2) SA 414 (O) R v Blom 1939 AD 188 S v Masuku and Another 1969 (2) SA 375 (N) S v Moti 1998 (2) SACR 245 (SCA) S v Webber 1971 (3) SA 754 (A) Theme 2: The Burden of proof in criminal PM: Chapter 31 and civil trials 31.1 and 31.2, 31.6 LO3: Discuss the burden of proof with Chapter 32 reference to: 32.1, 32.2, 32.3, 32.5, Onus of proof. 32.7 Evidentiary proof. The criminal standard of proof. S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC) LO4: Discuss the burden of proof with reference to: S v Van Der Meyden 1999 (1) The nature of the burden of proof. SACR 447 (W) 448 f - g The incidence of burden of proof. Pillay v Krishna 1946 AD 946 Evidential burden. The civil standard of proof. © The Independent Institute of Education (Pty) Ltd 2024 Page 32 of 33 IIE Learn Module Outline LAEV8411 Glossary of Key Terms for this Module Term Definition My Notes Admissibility Specific evidence will be admitted during trial which the court will consider in coming to a decision Cautionary rule Legal rules that prescribe a particular approach in evaluation of evidence by the court Corroboration Evidence that supports (or contradicts?) evidence in court Evidence Material that is produced in court as proof Evidentiary The party that has the duty to lead evidence burden (or rebut a presumption) Expert evidence Evidence presented in court by someone that has a relevant skill or qualification Onus of proof The party that has the burden of proof during a trial Presumption When evidence may be accepted in court without proof (by operation of a rule) Probative value Weight/value of evidence © The Independent Institute of Education (Pty) Ltd 2024 Page 33 of 33