Principles of Evidence Juta PDF

 Page v Preface This edition, like the previous three, is an attempt to strike a balance between the theory of the law of evidence and its practical application in a constitutional setting. We hope that this fourth edition will be of assistance to both stud...

 Page v Preface This edition, like the previous three, is an attempt to strike a balance between the theory of the law of evidence and its practical application in a constitutional setting. We hope that this fourth edition will be of assistance to both students and practitioners and that it will alert them to the growing impact of the Bill of Rights on the traditional Anglo-South African law of evidence. We would like to thank the following people for their contributions: Wouter de Vos (author of chapter 22 and co-author of chapter 23), Eugene van der Berg (co-author of chapters 4 and 8), Justin de Jager (author of chapter 21) and Avinash Govindjee (co-author of chapter 4). We thank our publishers, Juta, for their encouragement and support. Marlinee Chetty oversaw production of this fourth edition. Her patience and professional approach are greatly appreciated. An attempt was made to state the law as at the end of May 2015. PJ Schwikkard Cape Town Steph van der Merwe Durbanville 22 September 2015  Page vii Contents Preface Mode of citation of principal works and sources Section A An Introduction to the Law of Evidence 1 An Introduction to the History and Theory of the Law of Evidence –S E van der Merwe 11 Introduction 12 Scope and Functions of the Law of Evidence 13 Early History and Development of the English Law of Evidence 131 The religious (primitive) stage 132 The formal stage 133 The rational stage (and development of the jury) 14 Procedural and Evidential Systems and Some Universal Principles of Fact-Finding 15 Ordinary Courts and Small Claims Courts: An Examination of Procedural and Evidential Differences 151 Small claims courts and the inquisitorial procedure and free system of evidence 152 Accusatorial versus inquisitorial procedure 153 Strict versus free system of evidence 16 Jurors and Assessors: Some Brief Comparative Remarks 17 Rules of Evidence in Criminal and Civil Proceedings 2 Basic Concepts and Distinctions –S E van der Merwe 21 Introduction 22 Facts in Issue and Facts Relevant to the Facts in Issue 23 Evidence and Argument 24 Evidence and Probative Material 25 Evidence and Proof 26 Conclusive Proof and Prima Facie Proof 27 Admissibility and Weight of Evidence 28 Conditional Admissibility 29 Circumstantial and Direct Evidence 2 10 Primary and Secondary Evidence 2 11 Hearsay 2 12 Relevance 2 13 Privilege 2 14 Formal and Informal Admissions 2 15 Confessions 2 16 Judicial Notice 2 17 Presumptions 2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the Burden of Rebuttal (Evidential Burden, “Weerleggingslas”)  Page viii 3 Sources of the South African Law of Evidence and the Impact of Constitutional Provisions –S E van der Merwe 31 Introduction 32 Original and Regional Incorporation of English Law: The Pre-Union Period 33 Criminal Proceedings: The Post-Union Period 34 Civil Proceedings: The Post-Union Period 35 Interpretation of the 30 May 1961 Provision 351 English decisions considered to be incorrect 352 South African rules of practice incompatible with English law 353 Rules inconsistent with constitutional provisions 36 Value of English Cases Decided after 30 May 1961 37 Value of Privy Council Decisions 38 Further Sources 39 Constitutional Provisions 4 The Law of Evidence and Substantive Law –E van der Berg and A Govindjee 41 Introduction 42 The Significance of the Distinction 43 The Burden of Proof 44 Irrebuttable Presumptions 45 Estoppel 46 Parol Evidence 461 The integration rule 462 Some exceptions 463 Rectification 464 The interpretation rule Section B The Admissibility of Relevant Evidence 5 Relevance and Admissibility –S E van der Merwe 51 Introduction 52 Rationale for the Exclusion of Irrelevant Evidence 53 The Meaning of Relevance and the Determination of Relevance 531 The issues (as the essential point of departure) 532 Reasonable or proper inference: assessing the potential weight of the evidence 533 Avoiding a proliferation or multiplicity of collateral issues 534 The risk of manufactured evidence 535 Prejudicial effect 536 The doctrine of precedent 537 The principle of completeness 538 Constitutional imperatives and the position of the accused 54 Proposals of the South African Law Reform Commission 6 Character Evidence –P J Schwikkard 61 Introduction  Page ix 62 Character in Criminal Cases 621 The character of the accused 622 Evidence of the accused’s bad character 623 Section 197 of the CPA 6231 Section 197(a) 6232 Section 197(b) 6233 Section 197(c) 6234 Section 197(d) 624 Section 211 of the CPA 625 Witnesses other than the accused 626 Character of the complainant 6261 Rape or indecent assault 6262 Crimen iniuria 63 Character in Civil Cases 7 Similar Fact Evidence –P J Schwikkard 71 Introduction 72 The Rationale for the Exclusion of Similar Fact Evidence 73 Formulating the Rule for Determining the Admissibility of Similar Fact Evidence 731 The formulation in Makin v Attorney-General for New South Wales 732 The inadequacies of the Makin formulation 733 A necessary proviso 7331 The nexus requirement 734 The dangers of categorisation 735 The formulation in DPP v Boardman 74 The Requirement of Similarity 741 The test of coincidence 742 Coincidence and a nexus 743 The degree of similarity 75 The Facts in Issue 76 Other Evidence 77 Examples of the Exclusion of Similar Fact Evidence 78 An Alternative Approach 8 Opinion Evidence –E van der Berg and S E van der Merwe 81 Introduction 82 Fact and Opinion: Some Comments 83 The Basis of the Opinion Rule 84 Lay Persons and Experts 85 The Opinion of a Lay Person 851 The compendious mode 852 Handwriting 853 Probative value of lay opinion 86 The Expert Witness 861 The expert witness: the need to lay a foundation 862 Reasons for opinion and probative value of the opinion 863 Hearsay and expert opinion 864 The expert referring to textbooks Page x 87 Procedural Aspects 88 The Rule in Hollington 9 Previous Consistent Statements –S E van der Merwe 91 Introduction 92 Rationale for the Exclusion of Previous Consistent Statements 93 An Example from Case Law 94 Exceptions to the General Rule 95 To Rebut a Suggestion of Recent Fabrication 96 Complaints in Sexual Cases 961 Voluntary complaint 9611 The common law 9612 The provisions of Act 32 of 2007 962 The victim must testify 9621 The common law 9622 The provisions of Act 32 of 2007 963 First reasonable opportunity 9631 The common law 9632 The provisions of Act 32 of 2007 964 Victim of sexual offence 9641 The common law 9642 The provisions of Act 32 of 2007 965 Limited evidential value 9651 The common law 9652 The provisions of Act 32 of 2007 966 Complaints in sexual cases: inferences and the provisions of ss 58 and 59 of Act 32 of 2007 9661 General background 9662 Inferences and ss 58 and 59 97 Identification 98 Part VI of the CPEA 99 Res Gestae 9 10 Refreshing Memory 9 11 Statements Made at Arrest or on Discovery of Incriminating Articles 9 12 Section 213 of the CPA Section C Exclusion of Relevant Evidence: Privilege 10 Private Privilege –P J Schwikkard 10 1 Introduction 10 2 The Privilege Against Self-incrimination and the Right to Remain Silent 10 2 1 The rationale 10 2 2 The witness in criminal proceedings 10 2 2 1 The scope of the privilege 10 2 3 The accused 10 2 3 1 Pre-trial proceedings  Page xi 10 2 3 1 1 Ascertainment of bodily features 10 2 3 1 2 Bail proceedings 10 2 3 2 Trial and plea proceedings 10 2 4 Other investigative inquiries 10 2 5 The witness in civil proceedings 10 3 Legal Professional Privilege 10 3 1 The rationale 10 3 2 The requirements for the existence of the privilege 10 3 2 1 Acting in a professional capacity 10 3 2 2 The communication must be made in confidence 10 3 2 3 For the purpose of obtaining legal advice 10 3 2 4 The client must claim the privilege 10 3 3 The scope of the rule 10 3 4 Waiver 10 3 5 Refreshing memory in the witness-box 10 3 6 Section 19 of the Legal Aid South Africa Act 39 of 2014 10 4 Other Professional Privileges? 10 5 Marital Privilege 10 6 Parent–Child Privilege 11 State Privilege (Public Interest Immunity) –S E van der Merwe 11 1 Introduction 11 1 1 Terminology 11 1 2 The differences between public and private privilege 11 1 3 Development of the English common law 11 2 State Privilege Prior to Constitutionalisation 11 2 1 The decision in Van der Linde v Calitz 11 2 2 Legislative interference (1969 to 1996) 11 3 State Privilege after Constitutionalisation 11 3 1 Impact of constitutional provisions 11 3 2 The balancing exercise 11 4 The Detection of Crime 11 4 1 Communications tending to expose the methods used to investigate crimes 11 4 2 Communications tending to reveal the identity of an informer 11 4 3 Extension of the informer’s privilege 11 4 4 The constitutionality of the informer’s privilege 11 4 5 Examples of statutes that exclude evidence of the identity of persons who have a statutory duty to report 11 4 5 1 Section 38(3) of the Financial Intelligence Centre Act 38 of 2001 (FICA) 11 4 5 2 Section 17(9) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 11 5 The Police Docket and Constitutional Provisions 11 5 1 Access for purposes of trial 11 5 1 1 Disclosure of contents not the equivalent of further particulars to the charge Page xii 11 5 1 2 Information which only becomes available after commencement of the trial  11 5 1The position of the undefended accused 3 11 5 1Position of suspects 4 11 5 1Further procedural and evidential matters 5 11 5 1Cross-examination on the basis of the state witness’ statement 6 11 5 1Abolition of the blanket docket privilege: defence interviews 7 with (potential) state witnesses 11 5 2 Access for purposes of a bail application 11 5 2 1 Constitutional validity of s 60(14) of the CPA 11 5 2 2 Duty and power of court to order state to disclose 11 5 2 3 Sections 60(14) and 335 of the CPA 11 5 2 4 Ethical duty of prosecutor 11 6 The Promotion of Access to Information Act 2 of 2000 11 6 1 The PAIA and mandatory protection of records privileged from production in legal proceedings 11 6 2 Non-applicability of the PAIA to records required for criminal or civil proceedings after commencement of such proceedings Section D Exclusion of Relevant Evidence: Unconstitutionally Obtained Evidence 12 Unconstitutionally Obtained Evidence –S E van der Merwe 12 1 Introduction 12 2 The Competing Interests 12 3 Rationale of the Inclusionary Approach 12 4 The Theoretical Basis and Practical Purpose of the Exclusionary Approach 12 4 1 The “preventive effect” argument 12 4 2 Due process in the context of a bill of rights 12 4 3 The doctrine of legal guilt 12 4 4 Judicial integrity 12 4 5 The principle of self-correction 12 4 6 Primary rules and the secondary rule (the exclusionary rule) 12 5 The Exclusionary Rule in the USA: A Brief Survey 12 5 1 The rule in Mapp 12 5 1 1 General principles limiting the ambit of the rule in Mapp 12 5 1 2 The “good faith” exception 12 5 1 3 The “independent source” exception 12 5 1 4 The “stop and frisk” exception 12 5 2 The Miranda-warnings 12 5 2 1 The ambit of the exclusionary rule in Miranda 12 5 2 2 The “public safety” exception 12 5 2 3 The “impeachment” exception 12 5 2 4 The “inevitable discovery” exception 12 6 Section 24(2) of the Canadian Charter: A Brief Survey 12 6 1 Seriousness of the state conduct infringing the Charter 12 6 2 Impact on the accused’s interests as protected by the Charter  Page xiii 12 6 3 The interest of society in an adjudication on the merits 12 6 4 Applying the three lines of inquiry to specific types of evidence 12 7 Position in South Africa Prior to s 35(5) of the Constitution 12 7 1 The Anglo-South African common-law inclusionary approach (and its development since constitutionalisation) 12 7 2 The interim Constitution 12 7 2 1 Protection of the constitutional right to a fair trial 12 7 2 2 The discretion to exclude unconstitutionally obtained real evidence 12 7 2 3 Public opinion and the repute of the system 12 8 Section 35(5) of the Constitution 12 8 1 Section 35(5): The threshold test 12 8 2 Section 35(5): The causal link between violation and procurement 12 8 3 Section 35(5) and “standing” 12 8 4 Section 35(5) and the admissibility of evidence unconstitutionally procured by private individuals 12 8 5 Section 35(5) and the limitations clause in s 36 12 8 6 Section 35(5) and a co-accused’s constitutional right to a fair trial 12 8 7 Section 35(5) and impeachment of the accused 12 8 8 Sections 35(5) and 37: Derogation in states of emergency 12 9 The First Leg of the Test in s 35(5): “must be excluded if... admission... would render the trial unfair” 12 9 1 Trial fairness 12 9 2 The content of the accused’s constitutional right to a fair trial 12 9 3 Trial fairness and the court’s discretion 12 9 4 The privilege against compelled self-incrimination: trial fairness and the court’s discretion 12 9 5 Waiver, trial fairness and the court’s discretion 12 9 6 Trial fairness and the court’s discretion: Self-incrimination, real evidence and evidence “emanating from the accused” 12 9 7 Trial fairness and the admissibility of derivative evidence 12 9 8 Trial fairness and the admissibility of identification evidence obtained at an identification parade held in the absence of the accused’s legal representative 12 10 The Second Leg of the Test in s 35(5): “if... admission... would otherwise be detrimental to the administration of justice” 12 10 1 The presence or absence of good faith (and reasonable) police conduct 12 10 2 Public safety and urgency 12 10 3 Nature and seriousness of the violation 12 10 4 The availability of lawful means or methods of securing the evidence 12 10 5 Real evidence 12 10 6 Inevitable discovery or discovery on the basis of an independent source 12 11 Section 35(5) and Procedural Matters 12 11 1 The trial within a trial Page xiv 12 11 2 The burden of proof: incidence and standard 12 12 Evidence Procured by Means of Entrapment (s 252A of the CPA and s 35(5) of the Constitution) 12 13 Civil Cases  Section E Hearsay 13 Hearsay –P J Schwikkard 13 1 Introduction 13 2 The Rationale for the Exclusion of Hearsay Evidence 13 2 1 Procedural context 13 2 2 Cost effectiveness 13 2 3 Best evidence 13 2 4 Complexity 13 2 5 Socially necessary 13 2 6 Safeguard against the abuse of power 13 2 7 A constitutional requirement 13 3 Section 3 of the Law of Evidence Amendment Act 45 of 1988 13 4 The Definition of Hearsay 13 5 Admission by Consent 13 6 The Provisional Admission of Hearsay 13 7 Discretion in Terms of Act 45 of 1988 13 7 1 The nature of the proceedings: s 3(1)(c)(i) 13 7 2 The nature of the evidence: s 3(1)(c)(ii) 13 7 3 The purpose for which the evidence is tendered: s 3(1)(c)(iii) 13 7 4 The probative value of the evidence: s 3(1)(c)(iv) 13 7 5 The reason why the evidence is not given by the person upon whose credibility the probative value depends: s 3(1)(c)(v) 13 7 6 Prejudice to opponents: s 3(1)(c)(vi) 13 7 7 Any other factor which in the opinion of the court should be taken into account: s 3(1)(c)(vii) 13 8 Procedural Issues 13 9 Conclusion 14 A Selection of Common-Law Exceptions to the Hearsay Rule: A Brief Perspective –P J Schwikkard 14 1 Common-Law Definition of Hearsay 14 2 Exceptions to the Hearsay Rule 14 2 1 Res gestae statements 14 2 1 1 Spontaneous statements 14 2 1 2 Composite acts 14 2 1 3 Declarations of state of mind 14 2 1 4 Declarations of physical sensations 14 2 2 Dying declarations 14 3 Remarks in Conclusion  Page xv 15 Selected Statutory Exceptions to the Hearsay Rule –P J Schwikkard 15 1 Introduction 15 2 Civil Proceedings Evidence Act 25 of 1965 (CPEA) 15 2 1 Proof of trial and conviction or acquittal of any person 15 2 2 Proof of certain facts by affidavit 15 2 3 Evidence of times of sunrise and sunset 15 2 4 Bankers’ books 15 2 5 General admissibility of documentary evidence as to facts in issue 15 2 5 1 Weight of admissible evidence 15 3 Criminal Procedure Act 51 of 1977 (CPA) 15 3 1 Proof of certain facts by affidavit 15 3 1 1 State departments, provincial administrations, courts of law, and banks 15 3 1 2 Denial of information furnished 15 3 1 3 Official acts 15 3 1 4 Facts requiring specialised skills 15 3 1 5 Precious metal and stones 15 3 1 6 Fingerprints, body-prints, bodily samples and crime scene samples 15 3 1 7 Dead bodies 15 3 1 8 Chain of custody 15 3 1 9 Discretion to call for oral evidence 15 3 1 10 The scope of s 212 15 3 1 11 The constitutionality of s 212 15 3 1 12 Affidavits by persons in a foreign country 15 3 2 Admission of written statements by consent 15 3 3 Evidence recorded at a preparatory examination or former trial 15 3 4 Admissibility of certain trade or business records 15 3 5 Part VI of the CPEA applied in criminal proceedings 15 3 6 Accounting records and documentation of banks 15 3 7 Presumptions pertaining to documents Section F The Admissibility and Proof of the Contents of Relevant Detrimental Statements 16 Informal Admissions –P J Schwikkard 16 1 Introduction 16 2 Requirements for Admissibility 16 3 Admissions by Conduct 16 3 1 Admissions by silence 16 3 2 Failure to answer letters 16 3 3 Statements in the presence of a party 16 3 4 Failure to cross-examine 16 4 Vicarious Admissions 16 4 1 Criminal trials 16 5 Examples of Exceptions to the Vicarious Admissions Rule Page xvi 16 5 1 Express or implied authority 16 5 1 1 Agents and employees  16 5 1 2 Partners 16 5 1 3 Legal representatives 16 5 1 4 Spouses 16 5 1 5 Referees 16 5 2 Acts and declarations in furtherance of a common purpose 16 5 3 Privity or identity of interest or obligation 16 5 3 1 Predecessors in title 16 5 3 2 Employer and employee 16 5 3 3 Nominal and real parties 16 6 Statements Made Without Prejudice 16 7 Admissions by the Accused 16 7 1 The requirements for admissibility 16 7 1 1 Section 35(1)(c) of the Constitution 16 7 2 Plea proceedings 16 7 3 The burden of proof 16 7 4 Trial within a trial 17 Confessions in Criminal Trials –P J Schwikkard 17 1 Introduction 17 1 1 The rationale for excluding involuntary admissions and confessions 17 2 The Importance of Distinguishing Between Admissions and Confessions 17 3 The Meaning of a Confession 17 3 1 Offences which place a burden of proof on the accused 17 3 2 Incriminating statements intended to be exculpatory 17 3 3 Exculpatory statements incriminating as to a lesser offence 17 4 Requirements for Admissibility 17 4 1 Generally 17 4 2 Freely and voluntarily 17 4 3 Sound and sober senses 17 4 4 Without being unduly influenced thereto 17 4 4 1 The test of undue influence 17 4 4 2 Statements made under statutory compulsion 17 4 5 Confessions made to peace officers 17 4 5 1 “Peace officer” 17 4 5 2 Confessions made to peace officers who are also magistrates and justices of the peace 17 4 5 3 Confessions confirmed and reduced to writing in the presence of a magistrate or justice of the peace and undue influence 17 5 The Burden of Proof 17 6 Procedure: Trial-Within-a-Trial 17 7 Inadmissible Confessions which Subsequently Become Admissible 17 8 Facts Discovered as a Consequence of an Inadmissible Admission or Confession 17 8 1 Section 218(2) 17 8 2 Evidence discovered as a consequence of a pointing out  Page xvii 17 8 3 Factors affecting admissibility 17 8 4 Facts discovered in consequence of information given by the accused 17 9 Confession (and Admission) Admissible Only Against Maker 17 10 An Argument for Law Reform Section G Kinds of Evidence and Presentation Thereof 18 Oral Evidence –S E van der Merwe 18 1 Introduction 18 2 Evidence Must Generally be Given on Oath or Affirmation 18 2 1 Unsworn evidence exceptionally allowed 18 2 2 Witness with no religious belief 18 3 Examination in Chief 18 3 1 Leading questions generally prohibited 18 3 2 Situations where leading questions are permitted 18 4 Impeachment of One’s Own Witness during Examination in Chief 18 5 Examination in Chief: Limited Use of Witness’s Previous Consistent Statement 18 6 Cross-Examination 18 6 1 The purpose and general scope of cross-examination 18 6 2 Leading questions 18 6 3 Who may be cross-examined 18 6 4 The duty to cross-examine 18 6 5 The limits of cross-examination 18 6 5 1 Curial courtesy 18 6 5 2 Misleading statements put by cross-examiner 18 6 5 3 Inadmissible evidence 18 6 5 4 Sections 197 and 211 of the CPA 18 6 5 5 Cross-examination as to credit 18 6 5 6 Section 166(3) of the CPA 18 6 5 7 Legal professional ethics 18 7 Procedural Matters Pertaining to Cross-examination 18 8 Re-examination 18 9 Examination by the Court 18 10 Examination of Witnesses Called by the Court 18 11 The Intermediary and Related Procedures 18 11 1 A general assessment of the use of an intermediary in the context of an adversarial trial 18 11 2 The essential content of the right to confront 18 11 3 The constitutionality of s 170A of the CPA 18 11 3 1 Section 170A as a constitutionally permissible limitation (s 36 of the Constitution) 18 11 3 2 Section 170A and the constitutional injunction “best interests of the child” (the paramountcy principle in s 28(2) of the Constitution) 18 11 3 3 The constitutionality of s 170A(7) 18 11 4 Principles and considerations in the application of s 170A Page xviii 18 11 5 Law reform proposals 18 12 Evidence by Means of Closed Circuit Television or Similar Electronic Media 18 13 Evidence on Commission in Criminal Cases 18 14 Evidence on Commission in Civil Cases 18 15 Interrogatories 18 16 Evidence by Way of Affidavit 18 17 Evidence in Former Proceedings 18 18 Preserved Evidence 19 Real Evidence –S E van der Merwe 19 1 Introduction 19 1 1 The court’s function and the limits of its observations 19 1 2 The situation where relevant real evidence is not produced 19 2 Appearance of Persons 19 2 1 Resemblance of child to reputed parent 19 2 2 Physical appearance as real evidence of approximate age 19 2 3 Court’s observation of witness for purpose of determining competency to testify 19 3 Tape Recordings 19 4 Fingerprints 19 5 Photographs, Films and Video Recordings 19 6 Inspections In Loco 19 7 Handwriting 19 8 Blood Tests, Tissue Typing and DNA Identification 19 9 Computer-generated and Computer-assisted Data 20 Documentary Evidence –P J Schwikkard 20 1 Introduction 20 2 “Document” 20 3 Admissibility requirements 20 3 1 The original document 20 3 2 Authenticity 20 3 3 Stamp duty 20 4 Civil Discovery 21 Electronic Evidence –J de Jager 21 1 Introduction 21 2 The Position Prior to the ECT Act 21 2 1 Civil proceedings 21 2 1 1 The Computer Evidence Act 57 of 1983 (now repealed) 21 2 2 Criminal proceedings 21 3 The Electronic Communications and Transactions Act 25 of 2002 (ECT Act) 21 3 1 The admissibility of electronic evidence 21 3 2 Assessing the evidential weight of data messages 21 3 3 The admissibility of business records in terms of s 15(4) 21 4 Data Messages as Real Evidence 21 5 Conclusion  Page xix Section H Witnesses 22 The Competence and Compellability of Witnesses –W L de Vos 22 1 Introduction 22 2 The General Rule 22 3 General Procedural Matters 22 4 Children 22 5 Mentally Disordered and Intoxicated Persons 22 6 Deaf and Speechless Persons 22 7 Judicial Officers 22 8 Officers of the Court 22 9 The Accused 22 10 The Accused and Co-Accused in the Same Proceedings 22 11 Spouses 22 11 1 Civil cases 22 11 2 Criminal cases 22 12 Husband and Wife as Co-Accused 22 13 Members of the National Assembly and National Council of Provinces 22 14 Heads of State and Diplomats 23 The Calling of Witnesses –W L de Vos and S E van der Merwe 23 1 Introduction 23 2 Witnesses: General Procedural Matters 23 2 1 Witnesses to wait outside 23 2 2 The oath, affirmation or admonition 23 3 Examination of Witnesses 23 4 Criminal Proceedings 23 4 1 Witnesses called by the state 23 4 2 Witnesses called by the defence 23 4 3 Witnesses called by the court 23 4 4 Witnesses recalled by the court 23 5 Civil Proceedings 23 5 1 The right or duty to begin 23 5 2 Witnesses called by the parties 23 5 3 Expert witnesses called by the parties 23 5 4 Witnesses called by the court 23 6 Reopening a Case and Evidence in Rebuttal 23 7 Witnesses Called on Appeal or Remittal for Further Evidence 24 Refreshing the Memory of a Witness –S E van der Merwe 24 1 Introduction 24 2 “Refreshing of Memory” Versus the Distinction Between “Present Recollection Revived” and “Past Recollection Recorded” 24 3 Refreshing of Memory Before the Witness Gives Evidence 24 4 Refreshing of Memory During an Adjournment 24 5 Refreshing of Memory While the Witness Is in the Witness-Box: The Common-Law Foundation Requirements Page xx  24 5 1 Personal knowledge of the event 24 5 2 Inability to recollect 24 5 3 Verification of the document used to refresh memory 24 5 4 Fresh in the memory 24 5 5 Use of the original document 24 5 6 Production of the document 24 6 The Probative Value of a Document Used to Refresh Memory 24 6 1 Present recollection revived 24 6 2 Past recollection recorded 24 6 3 Conduct of the cross-examiner 24 7 Remarks in Conclusion 25 Impeaching the Credibility of a Witness –S E van der Merwe 25 1 Introduction 25 2 Impeaching the Credibility of an Opponent’s Witness 25 2 1 Cross-examination as to credit on some collateral issue: the finality of the response 25 2 2 Cross-examination as to credit and the right to contradict a denial: previous convictions 25 2 3 Cross-examination as to credit and the right to contradict a denial: bias 25 2 4 Cross-examination on and proof of a previous inconsistent statement made by an opponent’s witness 25 2 5 Calling a witness to testify on veracity 25 3 Impeaching the Credibility of Your Own Witness 25 3 1 Calling another witness 25 3 2 Proving a previous inconsistent statement against your own witness 25 3 3 Cross-examination of your own witness: the hostile witness 25 3 4 The rule that a party may not cross-examine its own witness unless declared hostile: a constitutional perspective 25 4 Rules and Principles Which Govern the Proof and Probative Value of Previous Inconsistent Statements 25 4 1 Rules and principles governing proof 25 4 2 Substantive use of a previous inconsistent statement: proving the truth of its contents 25 5 Attacking the Credibility of an Accused on the Basis of an Unconstitutionally Obtained Prior Inconsistent Statement Section I Proof Without Evidence 26 Formal Admissions –P J Schwikkard and S E van der Merwe 26 1 Introduction 26 2 The Nature and Rationale of Formal Admissions 26 2 1 The distinction between formal and informal admissions 26 3 The Intention of the Maker 26 4 Civil Proceedings 26 4 1 Amendment of pleadings and withdrawal of a formal admission  Page xxi 26 4 2 Procedure for withdrawal 26 5 Criminal Proceedings: The Common Law and Section 220 of the CPA 26 5 1 The effect and withdrawal of a formal admission in criminal proceedings 26 5 2 The plea of guilty: s 112(1)(b) and s 113 of the CPA 26 5 3 The explanation of plea: s 115 of the CPA 26 5 4 The rules of practice and s 220 26 5 5 Formal admissions of facts outside the maker’s personal knowledge 26 5 6 Proof of undisputed facts: s 212B of the CPA 26 6 Formal and Informal Admissions by Cross-Examiner 27 Judicial Notice –P J Schwikkard and S E van der Merwe 27 1 The Nature of and Rationale for Judicial Notice 27 2 Judicial Notice and the Reception of Evidence 27 3 Procedure 27 4 The Limits of Judicial Notice: Basic Principles 27 4 1 Notorious facts (general knowledge) 27 4 2 Facts of local notoriety 27 4 3 Facts easily ascertainable 27 5 Assorted Examples 27 5 1 Animals 27 5 2 Racial characteristics 27 5 3 Political and constitutional matters 27 5 4 Matters of science and scientific instruments 27 5 5 Financial matters and commercial practices 27 5 6 Functioning of traffic lights 27 5 7 Historical facts, words and phrases 27 5 8 Crime 27 5 9 Social conditions 27 6 Law 27 6 1 Statute and common law 27 6 2 Public international law 27 6 3 Indigenous and foreign law 27 6 3 1 Foreign law 27 6 3 2 Indigenous law 27 7 Rule 31 of the Constitutional Court Rules 28 Rebuttable Presumptions of Law –P J Schwikkard 28 1 What Are Presumptions? 28 2 Some Reasons for Presumptions 28 3 The Classification of Presumptions 28 3 1 Irrebuttable presumptions of law 28 3 2 Rebuttable presumptions of law 28 3 3 Presumptions of fact 28 4 The Effect of Presumptions on the Burden of Proof 28 5 Some Examples of Presumptions 28 5 1 Marriage Page xxii 28 5 2 Bigamy 28 5 3 Legitimacy 28 5 4 Paternity of children born out of wedlock  28 5 5 Death 28 5 5 1 Presumption of death and dissolution of marriage 28 5 5 2 The date of death 28 5 6 Regularity 28 5 6 1 Letters 28 5 6 2 Validity of official acts 28 5 7 Res ipsa loquitur 29 A Constitutional Perspective on Statutory Presumptions –P J Schwikkard 29 1 Introduction 29 2 The Presumption of Innocence 29 2 1 Infringements of the presumption of innocence 29 2 2 Justifiable limitations Section J Weight of Evidence and Standards and Burdens of Proof 30 The Evaluation of Evidence –S E van der Merwe 30 1 Introduction 30 2 Basic Principles 30 2 1 Avoidance of piecemeal processes of adjudication 30 2 2 Inferences and probabilities to be distinguished from conjecture 30 3 Corroboration 30 3 1 The rule against self-corroboration 30 3 2 Ambit of the rule against self-corroboration 30 3 3 Corroboration of confessions 30 3 3 1 Scope of s 209 of the CPA 30 3 3 2 Plea procedures and s 209 of the CPA 30 3 3 3 Confirmation in a material respect 30 3 3 4 Confirmation in a material respect: other extra-curial confessions or admissions of the accused 30 3 3 5 Evidence aliunde the confession 30 4 Credibility: The Impact of Demeanour and Mendacity 30 5 Circumstantial Evidence 30 5 1 Cumulative effect 30 5 2 Inferences in criminal proceedings 30 5 3 Inferences in civil proceedings 30 5 4 The so-called presumptions of fact 30 6 Credibility of a Witness: Previous Experience of the Court 30 7 Presence in Court Before Testifying 30 8 Failure to Cross-Examine 30 9 Failure of a Party to Testify (and the Constitutional Right of an Accused to Refuse to Testify) 30 10 Failure to Call Available Witnesses 30 11 The Cautionary Rule: Function and Scope  Page xxiii 30 11 1 Instances of suspected deliberate false evidence 30 11 2 Evidence of identification 30 11 2 1 Dock identification 30 11 2 2 Evidence of identification at a formal identification parade 30 11 2 3 Identification evidence based on a photographic identification parade 30 11 2 4 Assessing an alibi 30 11 2 5 Voice identification 30 11 3 Children 30 11 4 The single witness 30 11 5 Abolition of the cautionary rule in sexual offences 30 11 6 Handwriting 30 12 The Rule in Valachia 30 13 Court required to give reasons 31 The Standard and Burden of Proof and Evidential Duties in Criminal Trials –P J Schwikkard and S E van der Merwe 31 1 Introduction 31 2 The Onus (“Bewyslas”) and Evidentiary Burden (“Weerleggingslas”) 31 3 The Ambit of the State’s Onus of Proof 31 3 1 Identity and every element of the crime 31 3 2 Statutory exceptions 31 3 3 Issues concerning the mental illness or mental defect of the accused 31 3 3 1 Criminal non-responsibility (incapacity) on account of mental illness or mental defect (s 78(1) of the CPA) 31 3 3 2 Non-triability on account of mental illness or mental defect (s 77 of the CPA) 31 4 Further Procedural Matters 31 4 1 Criminal defamation and the provisions of s 107 of the CPA 31 4 2 Procedural duty to introduce a defence 31 5 Application for Discharge 31 6 The Criminal Standard of Proof 32 The Standard and Burden of Proof and Evidential Duties in Civil Trials –P J Schwikkard 32 1 Introduction 32 2 The Nature and Incidence of the Burden of Proof 32 2 1 Impact of the Constitution 32 3 The Evidential Burden Distinguished 32 4 The Duty to Begin 32 4 1 Rule 39 of the Uniform Rules of Court 32 4 2 Magistrates’ Court Rule 29 32 5 The Term “Prima Facie Case” 32 6 Absolution from the Instance 32 7 Civil Standard of Proof Page xxiv Appendices Appendix A Constitution of the Republic of South Africa, 1996: Chapter 2 Bill of Rights (ss 7–39) Appendix B Judges’ Rules Appendix C Section 252A of the Criminal Procedure Act Table of Cases Table of Statutes Table of Rules Index  Page xxv Mode of citation of principal works and sources ASSAL Annual Survey of South African Law CPA Criminal Procedure Act 51 of 1977 CPEA Civil Proceedings Evidence Act 25 of 1965 Du Toit et al Commentary E du Toit, F J de Jager, A P Paizes, A St Q Skeen, S E van der Merwe Commentary on the Criminal Procedure Act (1987, as revised biannually) Hoffmann & Zeffertt L H Hoffmann & D T Zeffertt The South African Law of Evidence 4 ed (1988) Lansdown & Campbell A V Lansdown & J Campbell South African Criminal Law and Procedure vol V Criminal Procedure and Evidence (1982) LAWSA W A Joubert (ed), C W H Schmidt, D T Zeffertt, and revised by D P van der Merwe The Law of South Africa vol 9 Evidence First Reissue (1996) Schmidt & Rademeyer C W H Schmidt & H Rademeyer Bewysreg 4 ed (2000) Schmidt & Rademeyer Schmidt & Rademeyer Law of Evidence (2014) Wigmore H J Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common Law (1940) and revised editions (1961) Zeffertt, Paizes & Skeen The South African Law of Evidence (2003) Zeffertt & Paizes The South African Law of Evidence 2 ed (2009)  Page 1 Section A An Introduction to | the Law of Evidence 1 An Introduction to the History and Theory of the Law of Evidence –S E van der Merwe 2 Basic Concepts and Distinctions –S E van der Merwe 3 Sources of the South African Law of Evidence and the Impact of Constitutional Provisions –S E van der Merwe 4 The Law of Evidence and Substantive Law –E van der Berg and A Govindjee  Page 3 Chapter 1 An Introduction to the History and Theory of the Law of Evidence S E van der Merwe 11 Introduction 12 Scope and Functions of the Law of Evidence 13 Early History and Development of the English Law of Evidence 131 The religious (primitive) stage 132 The formal stage 133 The rational stage (and development of the jury) 14 Procedural and Evidential Systems and Some Universal Principles of Fact-Finding 15 Ordinary Courts and Small Claims Courts: An Examination of Procedural and Evidential Differences 151 Small claims courts and the inquisitorial procedure and free system of evidence 152 Accusatorial versus inquisitorial procedure 153 Strict versus free system of evidence 16 Jurors and Assessors: Some Brief Comparative Remarks 17 Rules of Evidence in Criminal and Civil Proceedings 1 1 Introduction Courts normally have to make a finding concerning the existence or non-existence of certain facts before pronouncing on the rights, duties and liabilities of the parties engaged in a dispute. In this process of litigation and adjudication the proof of facts is regulated by the law of evidence, which is a branch of the law of procedure. A factual basis is necessary to determine the rights, duties and liabilities which exist in terms of substantive law, for example the law of contract. Page 4 It should be borne in mind, however, that there are also certain procedural rights and duties which stem from the law of evidence, for example the right to cross-examine and the duty to adduce evidence. These rights and duties are of a procedural nature in the sense that they form part of or emanate from the body of rules governing the proof of facts in a court of law. The right to cross-examine and the duty to adduce evidence relate to the law of evidence, which in turn forms part of the law of procedure in its widest sense. | The law of evidence is closely linked to criminal and civil procedure and forms part of that branch of the law commonly referred to as “adjective law” or “adjectival law”. It will later become evident that in some instances it is not always easy to draw the line of demarcation between substantive law and the law of evidence as a branch of the law of procedure. However, this demarcation cannot be ignored: the substantive-law rights and duties of the parties to an action are determined by rules and principles which largely stem from Roman-Dutch law, whereas the English law of evidence serves as the common law of the South African law of evidence. 1 2 Scope and Functions of the Law of Evidence Procedural law gives practical meaning and effect to the rules of substantive law. It has often been said that substantive law might just as well not exist if there were no procedural machinery which could constantly transform the rules of substantive law into court orders and actual enforcements. The law of evidence governs the proof of facts in a court of law and therefore forms part of the procedural machinery that makes substantive law effective. The general scope of the law of evidence can be determined with reference to its specific functions. The main function of the law of evidence is to determine what facts are legally receivable (ie admissible) to prove the facts in issue. The law of evidence, however, also determines in what manner evidence should or may be adduced; what evidence may lawfully be withheld from a court of law; what rules should be taken into account in assessing the weight or cogency of evidence; and, further, what standard of proof should, in a given situation, be satisfied before a party bearing the burden of proof can be successful. 1 3 Early History and Development of the English Law of Evidence The early history and evolution of the English law of evidence can be divided into three basic, successive stages: the religious (primitive) stage, during which it was thought that one man should not sit in judgment upon another; the formal Page 5 stage, during which the oath was the primary mode of proof and mistakes in form were fatal; and, finally, the rational stage, during which the tribunal no longer merely verified procedural formalities but was required to employ its reasoning powers in the fact-finding process. 1 3 1 The religious (primitive) stage During this stage “trial by ordeal” was considered an almost perfect aid in truth-finding. The ordeal was popular in England and on the Continent. It was really an appeal to God (or the gods or the supernatural) to “decide” the factual dispute. The Anglo-Saxons employed several different kinds of ordeals. In the “ordeal of the accursed morsel” (also known as the corsnaed) the accused was required to swallow a dry morsel of bread, accompanied by a prayer that he should choke if he were guilty. In 1053 Godwin, the powerful Earl of Kent — whom Edward the Confessor had accused of murder — attempted to swallow his piece of bread, but choked and died (probably to the astonishment of all those who had attended the “trial”). This ordeal — and probably all other ordeals — might appear irrational and even absurd to the modern mind. But Paton and Derham maintain that there is a possible logical explanation in respect of the corsnaed: fear, brought about by feelings of guilt, dries the mouth and renders it more difficult to swallow a dry piece of bread! Would it be too far-fetched to suggest that the corsnaed was perhaps the early source of the modern rule that the demeanour of a witness may be taken into account as a factor affecting credibility? Trial by battle — a Norman novelty introduced after William the Conqueror’s invasion in 1066 — was a further ordeal in terms of which a dispute could be settled by a duel. Holdsworth says that trial by battle was not merely an appeal to physical force: “[I]t was accompanied by a belief that Providence will give victory to the right. The trial by battle is the judicium Dei  Page 6 par excellence.” It has been suggested that the early roots of the present accusatorial (adversarial) trial system can be traced to trial by battle: physical confrontation gradually developed into verbal confrontation. And it will later be shown that the right to confront witnesses by cross-examining them is not only a marked characteristic of the accusatorial trial system but also gave rise to, inter alia, the hearsay rule. 1 3 2 The formal stage The twelfth century witnessed an increase in human reason and “in the field of evidence... people were turning their backs on age old irrational methods”. In 1215 Pope Innocent III in the Fourth Lateran Council forbade priests to administer ordeals, thereby destroying the validity of an entire system of proof. Langbein explains that the attempt “to make God the fact finder for human disputes was being abandoned. Henceforth, humans were going to replace God in deciding guilt or innocence...”. In England the use of oath-helpers (later called “compurgators”) became very popular. The compurgators were not eye-witnesses but merely people who were prepared to state under oath that the oath of one of the parties should be believed. The party who was able to summon the largest number of compurgators “won” the case. Trial by compurgation was a formal procedure in the sense that the tribunal was still not required to weigh evidence. The oath and number of oaths were decisive. In virtually every age the oath has been thought to provide the strongest hold on the consciences of men. And even today the oath — however abused — plays an important role in the law of evidence. 1 3 3 The rational stage (and development of the jury) It was soon realised that the compurgators could make a more meaningful contribution. Page 7 The compurgators were no longer called upon to express a mere belief in the veracity of a party’s oath but were also expected to act as adjudicators, largely because of their knowledge of the events. A crude form of trial by jury developed, despite the personal knowledge that the “jurors” had. White describes the next development as follows: “As population increased and everyday activities grew more complex, it developed that neighbours knew little or nothing of the facts in dispute. It was then that witnesses who did know some facts were called in to supply the requisite information... [T]he jury laid aside its old character... The very thing... [ie personal knowledge]... that qualified a man for jury service in the olden times, at a much later date disqualified him.” In the seventeenth century it was finally decided that a witness “swears but to what he hath heard or seen to what hath fallen under his senses. But a jury-man swears to what he can infer and conclude from the testimony of such witnesses...” This distinction between a witness’s function (to testify) and a juror’s function (to determine facts on the basis of testimony presented by witnesses) had the important result that “jurors now were assumed to enter the box with a cognitive tabula rasa so that facts could be writ upon their minds through, for example, the medium of witnesses giving oral testimony...” The general receipt of oral testimony established the principle of orality, and personal knowledge of the event in dispute led to disqualification of a juror. The central notion of an impartial adjudicator was accepted. During the formative period of trial by jury the relative functions of judge and jury were also settled: the jurors determined the facts and the judges determined the law. This procedural distinction between the functions of judge and jury had important results: the judges (who had to decide matters of law) thought that the jury (who had to decide matters of fact) might be misled or distracted by, or might be inclined to attach undue weight to, certain categories or types of evidence which, according to the judges, were notoriously untrustworthy. The judges therefore considered the admissibility of evidence a matter of law. They then ruled, as a matter of law, that certain evidence was inadmissible, most notably character and hearsay evidence. These decisions to exclude certain evidence were decisions of law and fell within the ambit of the doctrine of precedent: stare decisis. The nineteenth and twentieth centuries witnessed a large number of statutory reforms in England as well as South Africa. The South African legislature has in the past been inclined to base its own legislation on principles contained in English legislation. Statutory reform has to a large extent been aimed at relaxing the strict evidential rules which owe their existence to trial by jury. Page 8 The exact extent of the jury’s influence on the historical development and modern rules of the Anglo-South African law of evidence is debatable. At the same time, however, it is equally true that a proper appreciation of some of the rules of evidence is only possible if these rules are constantly seen and evaluated within the context of trial by jury — despite the fact that trial by jury no longer exists. Trial by jury in civil and criminal cases was respectively (and finally) abolished in South Africa in 1927 and 1969. But we have retained an evidentiary system designed for jury trials. Most of our exclusionary rules — and even some of our rules pertaining to the evaluation of evidence — can be attributed directly to trial by jury. It may be said that the jury was perhaps the single most significant factor in shaping the law of evidence. But the adversarial method of trial, the principle of orality, the oath, the doctrine of precedent and the so-called best evidence rule collectively contributed to our present intricate system in terms of which facts should be proved in a court of law. The steady decline and gentle disappearance of the jury in South Africa theoretically opened the door for a more liberal and robust approach with regard to the admission of evidence normally excluded in a jury trial. But our courts are for various reasons obliged to follow the so-called strict system of evidence which emphasises the admissibility of evidence. Developments in our law of evidence have been and are largely brought about by legislative action, one example being the Law of Evidence Amendment Act 45 of 1988, which came into operation on 3 October 1988. This Act mainly changed rules relating to hearsay (see § 13 3 below), judicial notice (see § 27 6 3 below) and the competence and compellability of spouses (see § 22 11 2 below). 1 4 Procedural and Evidential Systems and Some Universal Principles of Fact-Finding There are basically two systems of evidence: the Anglo-American (or so-called strict or common-law) system and the Continental (or so-called free or civil-law system). The South African law of evidence belongs to the Anglo-American “family”. Most of the principles of the Anglo-American law of evidence stem from the English system of adversarial (accusatorial) trials before a lay jury as opposed to the Continental inquisitorial trials by professional judges adjudicating without the assistance of a true jury. It can be said that the Anglo- American procedural method of proving or ascertaining facts in a court of law is based upon adversarial principles and a strict system of evidence, whereas the Continental method is based upon inquisitorial principles and a free system of evidence. These procedural and evidential differences — which should be Page 9 understood in a broad historical and evolutionary context — really emphasise the simple truth that there is more than one solution to the problem of fact-finding. It is probably correct to say that all enlightened and refined procedural and evidential systems are honest attempts to discover and protect the truth. And in this respect there is much common ground despite the peculiar historical origins and ideological preferences that each system might have. Consider the following. First, it is a universal principle that protection of the truth cannot be sacrificed for the sake of mere simplicity, speed and convenience. Secondly, presentation of facts and adjudication of disputes must of necessity proceed in an orderly fashion: a lawsuit is “essentially a proceeding for the orderly settlement of a dispute between litigants”. Thirdly, resolution of legal disputes must be done in such a way that reasonable litigants leave court with the feeling that they were given a proper opportunity to state their respective cases, that their cases were presented in the best possible light and manner, and, further, that the issues were decided by an impartial trier. Fourthly, the law of procedure and evidence must at all times maintain a certain level of efficiency and effectiveness in order to ensure that the rules of substantive law — however impressive and all-embracing they may be — are not for all practical purposes relegated to the ranks of unenforceable norms. The procedural and evidential innovations which the South African legislature has introduced in respect of small claims courts should be assessed in the light of the above remarks — as well as the fact that small claims courts are seen as a proper and acceptable solution to the problem of legal costs which a litigant may encounter in enforcing a modest civil claim. 1 5 Ordinary Courts and Small Claims Courts: An Examination of Procedural and Evidential Differences The fundamental differences which exist between the Anglo-American and Continental systems can — from a theoretical and practical point of view and within the context of South African courts — perhaps be best explained by comparing the procedural and evidential system of our ordinary courts with that which exists in our small claims courts. South African small claims courts function along inquisitorial lines. Section 26(3) of the Small Claims Courts Act 61 of 1984 (hereafter “the Act”) provides that a party shall neither question nor cross-examine any other party to the proceedings (or a witness called by the latter party). The same section provides that the presiding commissioner “shall proceed inquisitorially to ascertain the relevant facts, and to that end he may question any party or witness at any stage Page 10 of the proceedings”. But there is a proviso in terms of which the presiding commissioner may in his discretion permit any party to put a question to any other party or any witness. The procedure in our ordinary courts is totally different. South African small claims courts are not bound by the ordinary Anglo-South African rules of evidence. They are not required to follow the strict system of evidence which is applied in the ordinary South African courts and which can also be referred to as the Anglo-American or common-law system. Section 26(1) of the Act provides that — subject to the provisions of chapter 5 of the Act — the rules of the law of evidence shall not apply in respect of the proceedings in a small claims court and that such a court “may ascertain any relevant fact in such manner as it may deem fit”. The adoption of an inquisitorial procedure and a free system of evidence in small claims courts might appear to be far-reaching and even somewhat radical — especially to the South African lawyer who is, in a procedural context, steeped in Anglo-American tradition, practice, rules and principles. But the procedural measures taken by the legislature in respect of small claims courts should be seen in the light of the peculiar characteristics and unique nature and purpose of small claims courts, namely accessibility and the promotion of procedural simplicity. Legal representation is not permitted in small claims courts. There are various valid reasons for such exclusion. For purposes of the present discussion, it is necessary only to refer to the following remarks and conclusions of the Hoexter Commission: (a) Legal representation “must inevitably tend to infuse into the proceedings that air of formality and technicality which is fundamentally alien to the real spirit of small claims procedures”. (b) One of the most obvious objections to legal representation “is the increased cost to the litigants... This is the very problem which small claims courts were designed to solve”. (c) If “the adjudicator maintains an actively inquisitorial role in the proceedings, the absence of legal representation results in an easier and speedier fact-finding process”. It is fairly evident from the above that procedural innovations were necessary in order to attain and maintain the advantages of small claims courts. And in principle there is certainly nothing wrong with or sinister in procedural innovations which are brought about to meet new and valid demands. After all, Page 11 small claims courts were created for the benefit of the public and the procedure in small claims courts had to be structured accordingly: “Die prosesreg dien die gemeenskap — nie die omgekeerde nie.” Other countries have taken similar steps in order to establish the viability and accessibility of small claims courts. For example, the New York small claims courts — which were established in 1918 — dispensed with traditional rules of practice, procedure, pleading and evidence and accepted the principle that decisions could be made with the aid of an informal fact-finding process. 1 5 1 Small claims courts and the inquisitorial procedure and free system of evidence In the Anglo-American world small claims courts have forced the adjudicator into a new procedural role. As early as 1913 Pound concluded that the adjudicator in a small claims court should not be a mere umpire, but should represent “both parties and the law” while actively seeking the truth largely if not wholly unaided. The Hoexter Commission took a similar view. The success or failure of the small claims courts largely depends on whether the commissioners, who are all trained in the tradition of the adversary system, are able to handle the inquisitorial characteristics of the small claims courts satisfactorily. And in this context it should also be borne in mind that the strict system of evidence is — historically and practically speaking — a concomitant of the adversarial model of fact-finding. The free system of evidence is to a large extent also a necessary novelty to the commissioner in a small claims court. A free system of evidence promotes procedural simplicity and avoids that air of procedural formality and sophistication which can create psychological barriers for litigants. Involved rules of evidence — and these are the true features of the strict system of evidence — make a trial “more complicated than is necessary, and... might well cause a gap between the courts and the people, and this will not increase faith in the administration of justice”. The principles of a free system of evidence are dealt with in greater detail in § 1 5 3 below. 1 5 2 Accusatorial versus inquisitorial procedure The accusatorial (adversarial) trial procedure — which finds its symbolic roots in the early ritual of trial by battle — has three leading features: the parties are in principle responsible for the presentation of evidence in support of their respective cases; the adjudicator is required to play a passive role; and much emphasis is placed upon oral presentation of evidence and cross-examination of witnesses. The adversarial model proceeds from the premises that greater approximation of the truth is possible if litigants are allowed to present their own evidence in a process which guarantees not only cross-examination of an opponent who Page 12 testifies but also all witnesses called by such opponent. This explains the emphasis upon “orality”. And cross-examination — which has been referred to as “the greatest legal engine ever invented for the discovery of truth” — is a vital procedural right in a system which makes it technically possible for a party to present only evidence which is favourable to his case. The right of parties to cross-examine explains why the adversarial trial model can to some extent afford and maintain the relative inactivity of the adjudicator. But the adversarial trial system certainly is not beyond criticism. First, it “presupposes for success some equality between the parties; when this is lacking the ‘truth’ becomes too often simply the view of the powerful”. Secondly, its very essence — the notion of opponents engaged in a forensic duel — can generate unnecessary conflict which is not necessarily conducive to the resolution or settlement of a dispute. Thirdly, much of the outcome of a case depends upon the ability, wit, energy, ruthlessness and even permissible rudeness which the cross-examiner might display. Fourthly, the “selfish” and partial manner in which parties are allowed to present evidence and the fact that the adjudicator may only in limited circumstances call witnesses may inevitably lead to a situation where the “procedural” or “formal truth” can be promoted at the expense of the “material truth”. Brett makes the following remarks in respect of the adversarial method of fact-finding: “... [O]bserve the practice of scientists and historians in carrying out their investigations... [A] lengthy search will fail to reveal one competent practitioner in either discipline who will willingly and in advance confine himself, in deciding any question involving factual data, to a choice between two sets of existing data proffered to him by rival claimants. In short, the inquisitorial method is the one used by every genuine seeker of the truth in every walk of life (not merely scientific and historical investigations) with only one exception the trial system in the common-law world.” In contradistinction to the adversarial model, the inquisitorial model is judge-centred. It proceeds from the premises that a trial is not a contest between two opposing parties but essentially an inquiry to establish the material truth. Judicial examination is accepted as the pivotal mechanism in the process of fact-finding. The emphasis is upon an inquiry conducted with the aid of such evidence as the inquirer deems fit. The absence of a right to cross- examine also explains why the inquisitorial procedure puts the written word — as a means of receiving evidence — to greater use than the adversarial system. The commissioner in the small claims court may in his discretion receive written or oral evidence, and may actively call for such evidence. Devlin remarks as follows: “The essential difference between the [adversarial and inquisitorial] systems... is apparent from their names: the one is a trial of strength and the other is an inquiry. The Page 13 question in the first is: are the shoulders of the party upon whom is laid the burden of proof... strong enough to carry and discharge it? In the second the question is: what is the truth of the matter? In the first the judge or jury are arbiters; they do not pose questions and seek answers; they weigh such material as is put before them, but they have no responsibility for seeing that it is complete. In the second the judge is in charge of the inquiry from the start; he will of course permit  the parties to make out their cases and may rely on them to do so, but it is for him to say what it is that he wants to know.” And Devlin continues: “The English say that the best way of getting at the truth is to have each party dig for the facts that help it; between them they will bring all to light. The inquisitor works on his own but has in the end to say who wins and who loses. Lord Denning denies that the English judge is ‘a mere umpire’ and says that ‘his object’ above all, is to find out the truth’. The real difference is, I think, that in the adversary system the judge in his quest for the truth is restricted to the material presented by the parties while in the inquisitorial system the judge can find out what he wants to know. Put in a nutshell, the arbiter is confined and the inquisitor is not.” It may be said — at the risk of over-simplification — that the inquisitorial procedure is a natural system of fact-finding in the sense that it dispenses with technical rules and is applied in our everyday activities. For example, a father inquiring into a dispute between his children acts inquisitorially in the sense that he will not merely rely upon information which the “parties” are prepared to submit; nor, for that matter, will he follow or adopt evidential rules which tell him in advance that he may not even receive certain “evidence”. Bentham (1748-1832) considered this “domestic or natural system” an acceptable “mode of searching out the truth”; and he accepted the “domestic forum” as the most nearly perfect tribunal, providing some basic scale model in terms of which English procedural law could be recast. Were it not for the fact that Bentham has been trapped for more than a century and a half in a state of mummification in a glass case at the University College of London, he probably would have taken great delight in observing a commissioner at work in a modern small claims court. “Hear” said Bentham “everybody who is likely to know anything about the matter, hear everybody but most attentively of all, and first of all those who are most likely to know most about it — that is the parties”. His approach to the law of evidence was also founded upon the hypothesis that the tribunal possesses the ability to weigh the various kinds of evidence even where the tribunal consists of judge and jury. It has rightly been said that the changes which he had advocated would have brought English procedure and evidence closer to the Continental practice. Page 14 1 5 3 Strict versus free system of evidence The strict system of evidence is to a large extent a concomitant of the adversarial system, whereas the inquisitorial trial is generally accompanied by a free system of evidence. This almost universal phenomenon can be explained on the basis that those countries which never experienced an extensive period of lay participation in the adjudication of disputes developed and accepted the idea of adjudication by a professional or “career” adjudicator who should not — and need not — be hampered by artificial rules relating to the exclusion of evidence. The central idea was and still is that in the adjudication of facts a professional judge need not be guided by rules of admissibility: the true issue in the process of adjudication is not one of admissibility, but weight; and the determination of weight is something which can and must be left to the professional judge. Sanders explains as follows: “Related to the inquisitorial method of procedure and the concomitant emphasis on utility is the principle of the free evaluation of evidence. Except for matters of privilege and personal incompetence to testify on grounds such as kinship, tender age or prior felony convictions, the civil law acknowledges no exclusionary rules of evidence, particularly no hearsay or opinion rule. In the eyes of civil lawyers most of the grounds which under the common law serve to preclude the admission of evidence merely affect the weight to be attached to a particular item of evidence, which, according to them, should be a matter for the judge’s free evaluation.” To the Anglo-American lawyer admissibility is largely a matter of law, whilst weight is a question of fact. But even in this context the Anglo-American approach is to make admissibility dependent upon the potential weight of the evidence.  Seen from this angle, it is but a small step for an Anglo-American lawyer or any other lawyer to disregard the first question (admissibility) and answer only the second and final one (weight). It may be argued that in small claims courts the general absence of formal preliminary findings as regards the admissibility of evidence might lead to a proliferation of evidence and a multiplicity of collateral issues. But it should be borne in mind that a commissioner in a small claims court “shall proceed inquisitorially to ascertain the relevant facts”. It is upon this basis that he controls the volume of evidence and not upon the basis Page 15 of artificial rules originally designed for jury trials, where it was feared that the evidence in dispute might distract or mislead the jury. Obviously, in both free and strict systems the adjudicators should always bear in mind that it “is one thing to say that a factor is relevant and an entirely different thing to say that it is cogent or persuasive”. The discretionary admission of hearsay in small claims courts apparently does not present any problems. In a paper delivered at the South African Law Conference in 1970 Mr Justice H C Nicholas remarked as follows with reference to the hearsay rule as it was then applied in our ordinary courts: “In South Africa, jury trials in civil cases were finally abolished many years ago. With the disappearance of the occasion for the hearsay rule, what necessity remains for its retention? The strongest reason which can be advanced is that hearsay evidence may be unreliable. That, however, is an objection which goes only to the weight of the evidence, which is a matter which can and should be determined by the Court. What advantage has a rule of exclusion, subject to certain arbitrary exceptions none of which have as their basis any real guarantee of the truth, over a rule of inclusion, which would admit all relevant evidence, and leave the assessment of its value to the Court? The answer is plainly that there is no advantage discernible.” The area of acute conflict between strict and free systems of evidence relates to hearsay. Continental countries, which never experienced an extensive period of lay participation in the form of a jury in the adjudication of disputes, see no reason for the general exclusion of hearsay. Anglo-American lawyers generally take great pride in their procedural and evidential system, and rightly so. But at the same time it would certainly be arrogant to look upon the combination of an inquisitorial procedure and a free system of evidence as an inferior fact- finding mechanism, especially in the context of small claims courts and in view of the fact that the “functional test to which all procedural rules should be subjected is their practical efficiency in providing machinery for the prompt and reasonably cheap settlement of disputes on lines that do justice to both parties”. 1 6 Jurors and Assessors: Some Brief Comparative Remarks In § 1 3 3 above it was pointed out that trial by jury has been abolished in South Africa. We have, nevertheless, retained the essential structure of a system designed for trial by jury. This can perhaps be justified in view of the increased use of lay assessors in lower courts. Assessors in lower courts and in the Page 16 High Court can to some extent be compared with jurors as they are all finders of fact and do not decide legal issues. But our system of adjudication differs materially from trial by jury. The role of jurors can briefly be summarised as follows: jurors are lay people and sole finders of fact. They listen to the evidence and hear arguments, and they receive a summing-up and instructions from the presiding judicial officer. They are then called upon in their capacity as sole finders of fact to consider and reach their verdict in the absence of the presiding judicial officer. And they are not required to advance reasons in support of their verdict. But in our system the judge or magistrate is at all times either a sole finder of fact or, where assessors are involved, a co-finder of fact. A judge must give reasons for his verdict. Magistrates almost invariably do give reasons for their verdict and are at any rate legally required to do so. It is true that the function of assessors can be compared with the function of jurors, because the function of assessors is — with one exception — also limited to fact-finding. But assessors — unlike a jury — must give reasons for their verdict. They either agree or disagree with the presiding judicial officer’s reasons and finding, and in the event of a disagreement must furnish their own reasons in a separate judgment which is read out in court by the presiding judicial officer. And assessors — unlike jurors — are under constant and immediate judicial guidance in the sense that a judge (or magistrate) and the assessors involved in the trial have joint deliberations in reaching their respective verdicts. During these deliberations the presiding judicial officer can and must draw the attention of lay assessors to certain rules which govern the evaluation of evidence. It has been suggested that our law of evidence can with ease accommodate lay persons as finders of fact because the basic infrastructure exists, namely, the concentrated trial, the principle of orality and the use of exclusionary Page 17 rules, like rules which exclude evidence of the bad character of the accused. However, a presiding judicial officer should ensure that his lay assessors grasp “the fundamentals of analysis of evidence”, for example, the cautionary rule in respect of a single witness and the fact that proof beyond reasonable doubt — and not proof on a balance of probability — is the standard of proof which the prosecution must satisfy for purposes of a conviction. In S v Gambushe Hurt J, having noted that lay assessors may be of considerable assistance in the sentencing enquiry, said the following: “[I]t is by no means clear that, in the average situation, [lay assessors] will be able to give the presiding officer any real assistance in reaching a decision as to the guilt or innocence of an accused person”. In S v Maphanga Labe J was less pessimistic. According to Seekings & Murray there is “no reason to think that lay assessors do not enrich the administration of justice”. The Constitutional Court has stressed the importance of ensuring that there is no reasonable apprehension of bias on the part of assessors. 1 7 Rules of Evidence in Criminal and Civil Proceedings This work is confined to the law of evidence as applied in criminal and civil proceedings. It will be noted that the “law of criminal evidence is much more extensive than the law of civil evidence”. There are numerous common-law, statutory and constitutional provisions which seek to protect accused persons from wrongful convictions and which seek to maintain a balance between the state (the prosecution) and the individual. The result is that there are also certain key areas where there are major differences between rules of evidence in criminal as opposed to civil proceedings. The most obvious difference is the standard of proof: the requirement in criminal cases “that guilt be proved beyond a reasonable doubt signals the seriousness of criminal convictions”. Page 18 In civil cases the party bearing the burden of proof need only prove his case on a balance of probability (see § 32 7 below). A court will also more readily, in terms of its discretion embodied in s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, admit hearsay for purposes of civil proceedings as opposed to criminal proceedings (see § 13 7 1 below). A further major difference between criminal and civil proceedings, relates to the rules which govern the competence and compellability of witnesses, including the parties (see §§ 22 9, 22 11 1 and 22 11 2 below).  The strict rules of evidence may also be relaxed according to the nature and purpose of the specific proceedings and issues. All the strict rules of evidence which apply in a criminal trial for purposes of determining the merits (ie, the question whether the accused must be acquitted or convicted), do not necessarily apply once the accused has been convicted and the stage is reached where evidence (information) is required for purposes of determining an appropriate sentence. Circumstances will dictate the extent to which the formal rules of evidence should be adhered to or relaxed, but the accused may in no circumstances be deprived of his constitutional right to a fair trial. The same approach applies to a bail application: a free system of evidence may be followed provided the bail applicant is not deprived of a fair bail hearing. Hearsay evidence, opinion evidence and character evidence are generally freely admitted in bail proceedings. In bail proceedings guilt or innocence is normally not the central issue. Liberty pending the final outcome of the trial or appeal, is the issue. Tapper Cross & Tapper on Evidence 12 ed (2010) 1. S v Thomo and Others 1969 (1) SA 385 (A) 394C-D (emphasis added): “It is of importance first to determine what conduct was established... Having thus determined the proper factual basis, the court can then proceed to consider what crime (if any) has [been] committed. The former enquiry is one of fact, the latter essentially one of law.” The student of the law of evidence will soon notice that the “factual basis” required for purposes of applying the relevant rules of substantive law, is not the equivalent of the absolute (or material) truth. The “factual basis” really refers to the procedural (or formal) truth, namely the truth that can be established to the extent permitted by principles, rules and fair trial norms which are not always aimed at promoting reliable factual outcomes. Pursuit of the truth remains subject to other values. See, eg, chs 10, 11 and 12 below. Furthermore, the applicable standards of proof (beyond reasonable doubt in a criminal case and on a balance of probability in a civil case) also indicate that proof of the absolute truth is not required to attain success. See chs 31 and 32. It should also be appreciated that insistence on proof of the absolute truth, would be wholly impractical given the realities of life. In conducting a case, lawyers and litigants have to cope with a variety of possible problems, ranging from dishonest or biased or honest but mistaken witnesses to lost or destroyed or fabricated evidence. See ch 4 below. See generally Botes v Van Deventer 1966 (3) SA 182 (A) 197. This case is discussed in § 16 4 below. See ch 3 below. See generally Esmein (transl by Simpson) A History of Continental Criminal Procedure with Special Reference to France: Continental Legal History Series vol V (1968) 617-9; Joubert 1982 TSAR 261. See generally Nokes An Introduction to Evidence 4 ed (1967) 18; Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 24-34, 67 and 81; Elton (ed) The Law Courts of Medieval England (1972) 25; Plucknett A Concise History of the Common Law (1956) 113-18; Kempin Historical Introduction to Anglo-American Law (1973) 54-7; Devlin Trial by Jury (1978) 6-7; Wakeling Corroboration in Canadian Law (1977) 8-9; Levy Origins of the Fifth Amendment: The Right against Self-incrimination (1968) 5-7. Diamond Primitive Law Past and Present (1971) 47, 297-312, 318, 386-7 and 390-1; Langbein Torture and the Law of Proof (1977) 6; Esmein (transl by Simpson) A History of Continental Criminal Procedure with Special Reference to France: Continental Legal History Series vol V (1968) 618; Hartland Primitive Law (1924) 191. Stein Legal Institutions: The Development of Dispute Settlement (1984) 25: “[I]n an age of faith, when there is a general belief in the direct intervention of divine providence in human affairs, it is not irrational to think that God knows what happened better than any human and that He will indicate which party was in the right.” Nokes An Introduction to Evidence 4 ed (1967) 18. However, cf Schwikkard Presumption of Innocence (1999) 2. Forsyth (transl by Morgan) History of Trial by Jury (1878) 68. See also § 30 2 below. Damaska “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure” 1973 121 U Pennsylvania LR 556 n110: “By irrational I mean procedural devices such as trial by ordeal, which rests on religious imaginings, especially the belief that the deity can be summoned to intervene in the screening of the guilty from the innocent.” Wigmore para 8. Paton & Derham A Text-book of Jurisprudence (1972) 597. See also § 30 4 below. Holdsworth in Goodhart & Hanbury (eds) A History of English Law vol 1 (1956) 308. Re “Oral v Written Evidence: The Myth of the Impressive Witness” 1983 57 Australian LR 679; Van der Merwe 1997 Stell LR 348 349. Van der Merwe 1991 Stell LR 281 290. See ch 13 below. Van Caenegem in Kuttner & Ryan (eds) Proceedings of the Second International Congress of Medieval Canon Law: Boston College 12-16 August 1963: Monumenta Juris Canonic Series C vol 1 (1965) 304.  Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 37; Kempin Historical Introduction to Anglo-American Law (1973) 55. Langbein Torture and the Law of Proof (1977) 6. Forsyth (transl by Morgan) History of Trial by Jury (1878) 63 gives an example of the use of compurgators. Accused A had to take the following oath: “By the Lord, I am guiltless, both in deed and counsel of the charge which B accuses me.” The compurgators then had to reply: “By the Lord, the oath is clear and unperjured which A has sworn.” See further § 25 3 below. Best A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law (1849) para 55. S v Munn 1973 (3) SA 734 (NC) 736H. See also generally S v Bothma 1971 (1) SA 332 (C) and S v Ndlela 1984 (1) SA 223 (N). See further s 162 of the CPA (as read with s 163) and s 39 of the CPEA (as read with ss 40 and 41). See Kahn 1991 SALJ 672 and 1992 SALJ 87, 307 and 666 and 1993 SALJ 322 for a general discussion and evaluation of the jury system, as well as the history of the jury in South Africa. See also generally De Vos 2008 TSAR 196. Eggleston Evidence, Proof and Probability (1978) 5 has pointed out that much of the “pecularity of the English law of evidence is due to the existence of the jury system and to the adversary nature of English legal proceedings”. This forms the essential backdrop to our system in South Africa. See § 1 6 below. White “Origin and Development of Trial by Jury” 1961 29 Tennessee LR 8 15. Bushell’s Case 124 ER 1006 1009. Forkosch “The Nature of Legal Evidence” 1971 59 California LR 1356 1373. Nokes An Introduction to the Law of Evidence 4 ed (1967) 35. See further § 1 6 below as regards the function of assessors in our system of adjudication. Section 3 of the Administration of Justice (Further Amendment) Act 11 of 1927. Abolition of Juries Act 34 of 1969. Van der Merwe 1991 Stell LR 281. See also § 24 1 below. The so-called best evidence rule is currently only of importance as regards documentary evidence. See § 20 3 below. See ch 3 below. Heydon Evidence: Cases and Materials 3 ed (1991) 3. Most of the rest of this chapter is based on an article previously published by Van der Merwe 1985 De Rebus 445-51. Van der Merwe “Accusatorial and Inquisitorial Procedures and Restricted and Free Systems of Evidence” in Sanders (ed) Southern Africa in Need of Law Reform (1981) 141. Mueller & Le Poole-Griffiths Comparative Criminal Procedure (1969) 50. Morgan “Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence” 1943 10 Univ of Chicago LR 285. See the Small Claims Courts Act 61 of 1984 (especially ss 26, 27 and 28). See the proviso to s 26(3) of Act 61 of 1984. See ch 18 below. Section 7(2) of Act 61 of 1984. See generally Ervine “Small Claims: The Central Research Unit Report and Beyond” 1984 Journal of the Law Society of Scotland 66 68. Hoexter JA was the chairman of the Commission of Inquiry into the Structure and Functioning of the Courts (hereinafter referred to as the “Hoexter Commission”). Paragraph 13 11 of the 4th interim report (RP 52/1982) of the Hoexter Commission. Paragraph 13 9 of the 4th interim report (RP 52/1982) of the Hoexter Commission. Paragraph 13 10 of the 4th interim report (RP 52/1982) of the Hoexter Commission. Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 8. Purdum “The Early History of Small Claims Courts” 1981 65 Judicature: The Journal of the American Judicature Society 31 32. Pound “The Administration of Justice in the Modern City” 1913 26 Harvard LR 302 319. Den Hollander 1975 Acta Juridica 332 349. See McEwan Evidence and the Adversarial Process The Modern Law 2 ed (1998) 1-30 and the sources referred to by Van der Merwe in 1991 Stell LR 281 284 n 18. Wigmore para 1367. Delisle Evidence: Principles and Problems (1984) 2. Frank Courts on Trial (1949) 85. Brett “Legal Decision Making and Bias: A Critique of an Experiment” 1973 45 Univ of Colorado LR 1 23. Section 26(2) of Act 61 of 1984. Devlin The Judge (1979) 54. Devlin The Judge (1979) 54.  Hart Essays on Bentham: Jurisprudence and Political Theory (1982) 31-2. Keeton & Marshall “Bentham’s Influence on the Law of Evidence” in Keeton & Shwarzenberger (eds) Jeremy Bentham and the Law: A Symposium (1948, reprint 1970) 86-7. Van der Westhuizen 1982 DR 477 478. Quoted by Hart Essays on Bentham: Jurisprudence and Political Theory 32. Further theories of Bentham are discussed by Twining Theories of Evidence: Bentham and Wigmore (1985) 19-100. Keeton & Marshall “Bentham’s Influence on the Law of Evidence” in Keeton & Schwarzenberger (eds) Jeremy Bentham and the Law: A Symposium 86. See generally Van der Merwe “Accusatorial and Inquisitorial Procedures and Restricted and Free Systems of Evidence” in Sanders (ed) Southern Africa in Need of Law Reform (1981) 141 144-6. See generally Capelletti & Perillo Civil Procedure in Italy (1965) 189. Many continental courts were originally bound by strict rules which regulated the evaluation of evidence. See generally Millar Civil Procedure of the Trial Court in Historical Perspective (1964) 22-3. These rules largely consisted of presumptions which were supposed to furnish “half proof” (semi probatio) or “full proof” (plena probatio). According to Kralik Introduction to the Continental Judicial Organization and Civil Procedure (1963) 8, the acceptance of a free system of evidence was a reaction to these strict rules. At 6-7 it is stated: “The principle of free... evaluation of evidence means that the court is not fettered by any formal rules of evidence... Behind this principle is a familiar history of dissatisfaction with a system of weighing evidence by artificial scales and tables... So the principle of free appreciation of evidence is now one of the most characteristic aspects of modern continental procedure. As compared with English and American law, continental law is less strict in regard to the admissibility of evidence and the procedure of prooftaking...” See further Van der Merwe 1991 Stell LR 281 294. Sanders 1981 CILSA 196 206-7. See § 5 3 2 below. Section 26(3) of Act 61 of 1984. S v Fourie 1973 (1) SA 100 (D) 102H-103A. See the addendum to the report (RP 78/1971) of the Commission of Inquiry into Criminal Procedure and Evidence 46. Paton & Derham A Text-book of Jurisprudence (1972) 593. See generally Van der Merwe 1991 Stell LR 281 306. On assessors, see generally Richings “Assessors in South African Criminal Trials” 1976 Crim LR 107; Van Zyl Smit & Isakow 1985 SAJHR 218; Van Zyl Smit 1979 SALJ 173 and 1984 SALJ 212; Swanepoel 1990 SACJ 174; Watney 1992 THHR 465. See s 93ter of the Magistrates’ Courts Act 32 of 1944 and Watney 1992 THRHR 465. See also generally Seekings & Murray Lay Assessors in South African Magistrates’ Courts (1998) 50. See s 145 of the CPA and Bekker “Assessore in Suid-Afrikaanse Strafsake” in Strauss (ed) Huldigings-bundel vir W A Joubert (1988) 32. R v Solomons 1959 (2) SA 352 (A) 363-4. In S v Gambushe 1997 (1) SACR 638 (N) 643b lay assessors in Magistrates’ Courts were referred to as “a sort of ‘mini-jury’.” See also S v Maphanga 2001 (2) SACR 371 (W) 374b. Two assessors can overrule a judge or magistrate on the facts. See generally s 145(4)(a) of the CPA and s 93ter(3)(e) of the Magistrates’ Courts Act 32 of 1944. See s 146(b) of the CPA; S v Maake 2011 (1) SACR 263 (SCA) at. The requirement that courts should furnish reasons, seeks to ensure that decisions are based on rational grounds. See S v Mokela 2012 (1) SACR 431 (SCA) at and Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC) at. See generally Ferreira Strafproses in die Laer Howe 2 ed (1979) 500. See generally S v Adams 2001 (1) SACR 59 (C). See also s 93ter(3)(c) to (e) of the Magistrates’ Courts Act 32 of 1944; S v Molawa; S v Mpengesi 2011 (1) SACR 350 (GSJ) at -. The furnishing of reasons in support of a verdict, is dealt with in greater detail in § 30 13 below. See s 93ter(1)(b) of the Magistrates’ Courts Act 32 of 1944. See s 146(d) of the CPA and s 93ter(3)(e) of the Magistrates’ Courts Act 32 of 1944. Van der Merwe 1991 Stell LR 281 306-7. See generally Erasmus 1990 Stell LR 348 355; Kötz 1987 TSAR 35 40. Dennis The Law of Evidence 3 ed (2007) 16 describes this principle as follows: “The principle of orality is the principle that evidence on disputed questions of fact should be given by witnesses called before the court to give oral testimony of matters within their own knowledge. Historically the principle is intimately connected with the importance attached by the common law to the oath, to the demeanour of the witness, and to cross-examination as guarantees of reliability. Oral testimony from witnesses physically present before the court also helps to legitimize the adjudication in other ways. It reinforces the drama and solemnity of the occasion, and it allows for maximum participation in decision-making in the sense that parties can confront their accusers and challenge the evidence against them in the most direct way possible by cross-examination. In the United States parties have constitutional rights, guaranteed by the Sixth Amendment, to confrontation and cross-examination of witnesses.” See also s 35(3) (i) of the Constitution of the Republic of South Africa. See further the discussion of S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) in § 13 7 6 below, as well as the discussion in § 18 1 below where reference is made to S v Adendorff 2004 (2) SACR 185 (SCA). See § 1 3 3 above. S v Gambushe supra 645b-c. S v Gambushe supra 644a. See further § 30 11 4 below. See generally S v Gambushe supra 642c. See further §§ 31 6 and 32 7 below. S v Gambushe supra 643h. 2001 (2) SACR 371 (W) 373d. Lay Assessors in South Africa’s Magistrates’ Court: Issues in Law, Race and Gender vol 6 (1998) 192. S v Jaipal 2005 (1) SACR 215 (CC). Dennis The Law of Evidence 17. Schwikkard Presumption of Innocence 15. In S v Baloyi 2000 (1) SACR 81 (CC) Sachs J also said at : “The requirement that the State must prove guilt beyond a reasonable doubt has been called the golden thread running through the criminal law, and a prime instrument for reducing the risk of convictions based on factual error.” See also generally Magmoed v Janse Van Rensburg and Others 1993 (1) SACR 67 (A), where Corbett CJ referred to the “general policy of concern for an accused person in a criminal trial” (at 100j) and the rule that there can be no conviction in the absence of proof beyond reasonable doubt furnished by the prosecution (at 101a). The small claims courts are a statutory example. See § 1 5 above. Application of the rules of evidence in arbitration proceedings, is discussed by Butler & Smith in LAWSA vol 1 at para 586. See also Whitear-Nel 2012 Stell LR 241. For an extensive and critical discussion of rules of evidence in the presentation of evidence or other information for purposes of sentencing, see Terblanche The Guide to Sentencing in South Africa 2 ed (2007) 96-103. It should be noted, eg, that the accused’s right under s 35(3)(h) of the Constitution to remain silent and not to testify during the proceedings, applies to the sentencing stage as well. See S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) at. S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) at. See also generally Van der Merwe in Du Toit et al Commentary 9-60 as well as Hendriks Die Aard van Borgverrigtinge met Spesifieke Verwysing na die Toepassing van die Reëls van die Bewysreg op Sodanige Verrigtinge (unpubl LLM thesis, Univ of Stellenbosch, 2004) 31-62. S v De Kock 1995 (1) SACR 299 (T) 310e. Although hearsay is admissible in bail applications, it will often carry less weight than the testimony of persons who had personal knowledge of the events. See S v Tshabalala 1998 (2) SACR 259 (C) 265g. The difference between admissibility and weight is explained in § 2 7 below. S v Hlongwa 1979 (4) SA 112 (D) 113H-114A. For valid qualifications and criticisms of this rule, see S v Lukas 1991 (2) SACR 429 (E) 437b-c and Van der Berg Bail A Practitioner’s Guide 2 ed (2001) 83. S v Patel 1970 (3) SA 565 (W) 566B-C. S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra at.  Page 19 Chapter 2 Basic Concepts and Distinctions S E van der Merwe 2 1 Introduction 2 2 Facts in Issue and Facts Relevant to the Facts in Issue 2 3 Evidence and Argument 2 4 Evidence and Probative Material 2 5 Evidence and Proof 2 6 Conclusive Proof and Prima Facie Proof 2 7 Admissibility and Weight of Evidence 2 8 Conditional Admissibility 2 9 Circumstantial and Direct Evidence 2 10 Primary and Secondary Evidence 2 11 Hearsay 2 12 Relevance 2 13 Privilege 2 14 Formal and Informal Admissions 2 15 Confessions 2 16 Judicial Notice 2 17 Presumptions 2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the Burden of Rebuttal (Evidential Burden, “Weerleggingslas”) 2 1 Introduction This chapter is of a preliminary nature. Most of the concepts identified or explained here, will be encountered again in the rest of this work. 2 2 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 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 | Page 20 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 ma