Chapter 16 - The African customary law of evidence Flashcards
Explain what the burden of proof is.
The burden of of proof is held to determine which party loses the case if the court does not have enough grounds to make a finding on an issue of fact. Such a situation is inconceivable in African customary law, because extrajudicial methods of proof are known. These extrajudicial methods of proof in African customary law have to do with referring the accused to a diviner (ngaka or inyanga) in order to make findings.
Explain what evidential burden is.
The principle is that a party must prove its claim in court. In a civil action, the plaintiff’s group must submit evidence that, together with other evidence submitted to the court and evidence obtained through questioning by the court, proves its claim. Otherwise, the judgment is given in favour of the defendant, and the plaintiff’s claim is disallowed. In criminal cases too, the principle is that a party must prove its claim in court.
Explain what measure of proof is.
The court plays an active role in the process of questioning and evaluating evidential material. Also, it is not only the parties concerned and their witnesses who may give evidence. The court is interested in the truth, and therefore, all evidence is tested and weighed. In African customary law, unlike in the general law of evidence, the measure of a balance or probabilities does not apply in civil cases. Likewise, in African customary law, the principle of beyond reasonable doubt, as conceived of in general law, does not apply in criminal cases. The primary aim of a customary hearing is not to prove who is right and who is wrong , it is to determine the truth and to reconcile the parties with each other, as well as with the court and the community.
List evidential material and means
- Admissions
- Judicial notice
- Presumptions
Explain what evidence is in depth.
Evidence is the oral statement made in court by party or witness, either voluntarily r in answer to question
Explain what circumstantial evidence is in depth.
Circumstantial evidence is used to supplement other evidence and other evidential material. From the evidence of a witness who saw the accused near the scene of an alleged crime at the moment of commission, it can therefore be concluded that the person was involved in the crime.
Explain what direct evidence is in depth.
It is the best form of evidence. Thus, the evidence of an eyewitness is considered important. It is also emphasised that a person who presumes or sees a potential wrong should take along a witness.
Explain what hearsay evidence is in depth.
It is admissible and is considered together with other evidence. Hearsay can also serve as a guideline in the questioning of the parties and their witnesses. However, a case relying mainly on hearsay has little chance of success.
Explain what concrete evidential material evidence is in depth.
A piece of clothing or some other personal belonging of an offender shown to the court has special evidential value, since no person would entrust a personal belonging to a stranger without reason.
Explain admissions as evidential material and means.
Civil cases are first discussed by the agnatic groups concerned. If this process does not lead to a settlement, the case is taken to the court of the headman. By that time, there must be reasonable clarity about the facts in dispute. It is therefore not necessary for the court to ask the parties to admit certain facts.
Explain judicial notice as evidential material and means.
The court takes notice of known facts without requiring that proof be submitted.
Explain presumptions as evidential material and means.
A presumption is an assumption made by the court about a fact that has not been proven directly by evidence. The following presumptions are known:
- The children of a married woman are the children of the husband.
- An adult is mentally sound, until there is evidence to the contrary.
- A person does not voluntarily entrust pieces of personal belongings to strangers.
- A person does not voluntarily remain prostrate so that another person may hit him or her on the back.
- An action is instituted without delay, Therefore, plaintiffs who fail to institute an action intend to harm their opponents.
- A person who refuses to answer a question in court is withholding information from the court.
Explain what extraordinary evidential material evidence is in depth.
In former times, the assistance of a traditional healer (inyanga) could be sought. I f the facts of the case were difficult to prove, the court would send the parties, accompanied by two or more messengers of the court, to an inyanga
Who is competent to give evidence or testify?
The general principle is that all persons, except those insane or intoxicated, are competent to testify in African customary court. Even a young child who can relate an incident or who can identify people can testify in court. Co-accused persons may also testify for or against one another. A person who is too intoxicated to testify is given time to sober up. A wife may testify for or against her husband, and the converse is also true. Chiefs and headmen may not act as witnesses in a case.
What is the procedure for giving evidence in a traditional court?
Evidence is not given under oath, therefore; perjury is unknown. No action is taken against a party or a witness who tells lies, if they do tell lies, it will merely harm their case.
