Evidentiary Aspects | Study Unit 7

Question 1

The presiding officer in RSA Adversarial System

Answer 1

The presiding officer acts as a facilitator or referee, keeping intervention to a minimum while the parties drive the matter.

Question 2

Witnesses in RSA Adversarial System

Answer 2

Witnesses:

• Prepared
• Called
• Led in evidence by the parties, not the presiding officer

Question 3

Exception to general procedure in RSA adverserial system

Answer 3

In civil cases, the presiding officer is authorized to call a witness with consent of both parties.

Question 4

Methods of Securing Attendance:

Answer 4

Informal Request: A casual request for a witness to appear in court.

Subpoena Duces Tecum: A formal legal order compelling a witness to:

• Appear in court and give testimony
• Provide a specific document to the Registrar of the Court for inspection

Question 5

Consequences for non-compliance with request

Answer 5

Civil cases: A warrant of arrest may be issued.

Criminal cases: Imprisonment for up to 3 months or a fine not exceeding R300.00.

Question 6

Conditions for Setting Aside a Subpoena:

Answer 6

1. If the requested evidence is irrelevant.
2. If the evidence is privileged (protected by law from being disclosed).
3. If issuing the subpoena is an abuse of power (unjust or excessive use of authority).

This way, subpoenas ensure witnesses’ attendance while balancing fairness and legality.

Question 7

Stages of Examination of Witnesses

Answer 7

Examination-in-Chief:

Cross-Examination:

Re-Examination:

Question 8

Examination-in-Chief

Answer 8

The party who called the witness begins by asking their questions.

The goal is to get the witness to provide evidence that supports their case.

Question 9

Cross-Examination:

Answer 9

The opposing party gets their turn to question the witness.

This aims to challenge the witness’s credibility and the evidence they’ve provided, trying to find inconsistencies or weaknesses.

Question 10

Re-examination

Answer 10

The original party who called the witness can question them again.

This is to clarify or address any issues raised during cross-examination.

Question 11

condition for examination of witnesses throughout all three stages

Answer 11

Only one witness is called and examined at a time, so it’s all about focusing on one person’s testimony at each stage

Question 12

Court’s Right to Question a Witness

Answer 12

Court’s Authority: The court can question a witness at any stage during the proceedings.

Leading Questions: Normally, leading questions (questions that suggest the answer) aren’t allowed, but when the court itself asks questions, this rule does not apply. However, it’s generally preferred to avoid leading questions to ensure the witness’s responses are not influenced.

Question 13

Timing of court’s right to question a witness

Answer 13

Civil Cases: The court may question the witness after the re-examination stage.

Criminal Cases: The court may question the witness at any time, except during the plea proceedings.

Question 14

Judge’s Conduct in S v. Rall:

Answer 14

• Judges must show impartiality and fairness throughout the trial.
• During questioning, the judge must maintain an unbiased stance.
• Judges should avoid questioning witnesses in a manner that could intimidate or unsettle them, which could affect their demeanor or credibility

Question 15

Judge’s conduct in criminal cases

Answer 15

The judge must always ensure that justice is served and that the truth is discovered.

Calling/Recalling Witnesses: The court has the authority to call a witness independently of the parties or to recall a witness.

• Cross-Examination with Court’s Leave: Such a witness can be cross-examined with the court’s permission.
• Rebuttal: The witness is then subject to rebuttal by the party who initially called them.

Question 16

Witness Called by the State:

Leading Evidence:

Answer 16

In criminal cases, the State leads the evidence first.

The Prosecutor addresses the court on the charge and the evidence supporting the allegations against the accused.

The Prosecutor then proceeds with leading a witness in evidence during the examination-in-chief according to section 150(2)(a) of the Criminal Procedure Act.

Question 17

Witnesses called by the State
Examination-in-Chief:

Answer 17

The Prosecutor examines the witness and presents admissible evidence to prove that the accused committed the offence mentioned in the indictment or charge sheet.

This also includes any other offences that might be considered a competent verdict on the charge.

Question 18

Witnesses called by the State
Cross-Examination:

Answer 18

The opposing party (defence) has the right and duty to cross-examine the State’s witness.

This is to challenge the witness’s testimony and attempt to find weaknesses or inconsistencies.

Question 19

Witnesses called by the State
Re-Examination:

Answer 19

​
Re-examination by the Prosecutor is optional.
​
It’s aimed at clarifying any issues raised during cross-examination.

Question 20

Witnesses called by the State
Re-Examination:

Answer 20

Re-examination by the Prosecutor is optional.

It’s aimed at clarifying any issues raised during cross-examination.

Question 21

Witnesses called by the State
Closing the Case:

Answer 21

The Prosecutor closes their case after all the State’s witnesses have testified.

Question 22

Witnesses called by the State
Application for Discharge:

Answer 22

At this stage, the defence may apply for the discharge of the accused under section 174 of the Criminal Procedure Act if they believe the State has not made a sufficient case.

The court also has the authority to grant a discharge on its own initiative (meru motu).

Question 23

Options for the Accused in Criminal Cases (if there is no discharge under s174 CPA) ito witnesse called by the defense

Answer 23

1. Active Defence (s151(1)(b)(i-ii) CPA):
2. Passive Defence:
3. Combined Active and Passive Defence Rights:

Question 24

1. Active Defence (s151(1)(b)(i-ii) CPA):

Answer 24

The accused testifies in their own defence.

The accused can call one or more defence witnesses.

Question 25

2. Passive Defence:

Answer 25

The accused closes their case without testifying and without calling any defence witnesses.

Question 26

3. Combined Active and Passive Defence Rights:

Answer 26

• As a constitutionally non-compellable witness (s35(3)(h)), the accused can refuse to testify.
• The accused may call one or more defence witnesses without testifying themselves.
• Alternatively, the accused may testify without calling any defence witnesses.

Question 27

courts duty ito these three options stated under witness called by defense

Answer 27

The court has a duty to explain these three options to an accused who has no legal representation.

Question 28

Right to Silence (S v. Brown)

Answer 28

An unrepresented accused must be informed that they have the right to remain silent.

No adverse inference can be drawn merely from the accused choosing to remain silent.

The accused must also be informed of the consequences of exercising this right, such as:

The Prosecution’s prima facie case will remain unchallenged.

In the absence of the accused’s account, the court will decide based on the Prosecution’s version.

Question 29

case law on Incrimination by Co-Accused:

Answer 29

**R v Simelane **

Rule:

If an accused has closed their case without testifying, and they are unexpectedly incriminated by a co-accused, they will be allowed to testify.

This is a critical exception to ensure fairness in the proceedings.

Question 30

Witness Called by Court (s186 CPA)

Answer 30

Court’s Authority: The court can subpoena any person as a witness at any stage of criminal proceedings if their evidence is deemed essential for a just decision.

Question 31

Examination/Cross-Examination (s166(2) CPA) (witnesses called by court)

Answer 31

The Prosecutor and the accused can examine or cross-examine any witness called by the court with the court’s permission.

Question 32

Limitations of s186 CPA:

Answer 32

The court cannot call the accused as a witness.

The accused can only testify upon their own application.

The court can recall an accused who has already testified if their evidence is deemed essential for a just decision.

Question 33

Impartiality of Judges
Impartiality as a Fundamental Requirement:

Answer 33

S v. Le Grange
The integrity of the justice system hinges on the impartiality of the judiciary.

It’s crucial that the public has confidence in the courts.

An impartial judge is disinterested in the outcome and open to persuasion by evidence and submissions.

Question 34

Bias:

Answer 34

Bias is when someone already has a fixed opinion about something before hearing all the facts.

Judicial Bias
Judicial Bias is when a judge is not fair and impartial. This means the judge favors one side over the other without considering all the evidence equally.

Impact of Bias
Impact: If a judge is biased, they can’t make a fair decision because they aren’t looking at the case objectively.

Addressing Bias
Recusal: Judges should step down from a case if they have any bias to ensure a fair trial.

Question 35

Request for Recusal (President of the Republic of South Africa vs South African Rugby Football Union [1999]):

Answer 35

Usual procedure: Counsel for the applicant meets with the judge in the presence of the opponent.

Grounds for recusal are presented to the judge, who is given an opportunity to respond.

Question 36

Test for Recusal:

Answer 36

The test is objective and the onus is on the applicant.

The question is whether a reasonable person would apprehend that the judge will not bring an impartial mind to the case.

Question 37

How is reasonableness assessed? ito recusal

Answer 37

Reasonableness is judged based on a judge’s oath to administer justice without fear or favor. Judges must set aside any irrelevant personal beliefs or biases.

Duty to Sit: Judges have an obligation to preside over cases unless there’s a valid reason to step down, like a potential bias.

Impartiality: A fair trial requires an impartial judge. If there’s a reasonable concern of bias, the judge should recuse themselves to ensure fairness.

Question 38

Examination Process for Witnesses in civil cases

Answer 38

Examination-in-Chief: The party who called the witness asks their questions first.

Cross-Examination: The opposing party questions the witness to challenge their testimony.

Re-Examination: The original party may ask follow-up questions to clarify any points raised during cross-examination (if applicable).

Question 39

Role of the Court in civil cases

Answer 39

Questioning: The court is authorized to ask questions to clear up any obscure points.

Maintaining Procedure: The court ensures that the parties follow the correct procedure in presenting evidence.

Impartiality: The court must do this without ‘descending into the arena,’ meaning the judge must maintain impartiality and not become actively involved in the dispute.

Question 40

General rule on duty to begin

Answer 40

The party who bears the onus of proof has the right (or duty) to present their case first.

Typically, this means the plaintiff, who has the responsibility to prove all the facts in issue.

Question 41

Exception to GR of duty to begin

Answer 41

If the plaintiff has established a prima facie case on the pleadings, which effectively calls for an answer from the defence right at the beginning, then the onus may shift to the defence to respond immediately.

Question 42

Plaintiff’s Presentation of Evidence ito witnesses called by parties

Answer 42

• Typically, the plaintiff starts by presenting their evidence.
• The plaintiff may testify on their own behalf.
• The plaintiff may also call other witnesses to testify on their behalf.
• After presenting all their evidence, the plaintiff will close their case.
• At this point, absolution from the instance (SU6) may be granted against the plaintiff.

Question 43

Order of Witnesses ito witnesses called by parties

Answer 43

There are no specific rules regarding the order in which witnesses should be called.

Question 44

GR of Court’s Authority in Civil Cases:

Answer 44

The court does not have the authority to call a witness in civil cases unless both parties give their consent.

Question 45

Exceptionn to GR of Court’s Authority in Civil Cases

Answer 45

If a witness has already testified, the court has the discretion to recall the witness for further examination or cross-examination.

Question 46

General rule on THE POSSIBILITY OF A CASE BEING REOPENED AND HOW EVIDENCE MAY BE PRESENTED IN
REBUTTAL

Answer 46

Once a party has closed their case, they are generally not permitted to present further evidence by calling additional witnesses.

Question 47

Exception 1 of General rule on THE POSSIBILITY OF A CASE BEING REOPENED AND HOW EVIDENCE MAY BE PRESENTED IN
REBUTTAL

Answer 47

The court may permit a party to present rebuttal evidence if a new matter is introduced during the opponent’s evidence.

This is allowed if the party could not have reasonably foreseen the new issue being presented.

Lecture Note: Emphasizes the importance of cross-examination.

Question 48

Exception 2 of General rule on THE POSSIBILITY OF A CASE BEING REOPENED AND HOW EVIDENCE MAY BE PRESENTED IN
REBUTTAL

Answer 48

If the Prosecution alleges that the accused possessed a particular qualification or acted in a specific capacity, and this is denied, or evidence is led to disprove the presumption, the Prosecution may:

Adduce any evidence

Submit any argument in support of the allegation

This can be done as if the Prosecution had not closed its case.

Question 49

another general rule THE POSSIBILITY OF A CASE BEING REOPENED AND HOW EVIDENCE MAY BE PRESENTED IN
REBUTTAL

Answer 49

General Rule:

A party who has closed their case will generally not be permitted to present further evidence by calling additional witnesses.

Question 50

exception 3 of General rule on THE POSSIBILITY OF A CASE BEING REOPENED AND HOW EVIDENCE MAY BE PRESENTED IN
REBUTTAL

Answer 50

To prove a previous inconsistent statement.

To introduce facts showing the witness is biased if such bias is denied under cross-examination.

To call a witness to express an opinion on the veracity of an opponent’s witness.

Question 51

exception 4 of General rule on THE POSSIBILITY OF A CASE BEING REOPENED AND HOW EVIDENCE MAY BE PRESENTED IN
REBUTTAL

Answer 51

An accused who has closed their case without testifying will be allowed to testify if they are later unexpectedly incriminated by a co-accused.

Question 52

Study Considerations (I-VIII) for Application to Reopen a Civil Case:

Answer 52

The specifics can vary, but typically revolve around ensuring that reopening a case is justified, and that no party is unfairly prejudiced by new evidence being introduced at a late stage.

Question 53

prerequisites for a successful
remittal and case law

Answer 53

S v. Wilmot outlines specific criteria for considering additional evidence after a trial has concluded:

1. Reasonably Sufficient Explanation: There must be a valid reason, based on potentially true allegations, for why the evidence was not presented during the trial.
2. Prima Facie Likelihood: The new evidence should have a reasonable chance of being true.
3. Material Relevance: The evidence must be significantly relevant to the trial’s outcome.

Witness Recollection: If a witness cannot remember certain events from their personal experience that are important to the case, this may also be considered.

Question 54

Schwikkard on Memory Loss in RSA Adversarial System:

Answer 54

Delay Between Events and Trial:

Time lapse between the actual events and the trial can cause witnesses to forget details.

Repeated Reconstruction and Re-Articulation:

Witnesses repeatedly retelling their stories to police officers, legal representatives, and others can distort their memories.

Examination Cues:

Cues from examination-in-chief and cross-examination can distort witness recollections.

Human Anxiety or Distress:

The stress of being on the witness stand can impact memory retention and recall.

Question 55

GR on Common Law Requirements for Refreshing the Memory of a Witness:

Answer 55

A witness is allowed to refresh their memory during cross-examination by referring to a document that records the pertinent events.

Question 56

Case law on Common Law Requirements for Refreshing the Memory of a Witness:

Answer 56

As Neser J stated in R v. Verachia, it is common for a statement to be taken from a witness, for the witness to prepare a statement themselves, for consultations to be held, and for the witness to read through their statement on the day they testify.

Question 57

list the 6 common law requirements

Answer 57

1. personal knowledge of the event;
2. Inability to recollect;
3. verification of the document used to refresh memory;
4. fresh in memory;
5. use of original document;
6. production of the documen

Question 58

Requirement for Personal Knowledge:

Answer 58

The witness must have firsthand knowledge of the events recorded in the document they’re using to refresh their memory.

A finding confirming the witness’s personal knowledge is necessary to avoid hearsay.

Question 59

❖ Inability to recollect.

Answer 59

➢ It must be shown that the witness is genuinely unable to recollect fully a matter on which he is being examined.

Question 60

❖ Verification of the document used to refresh memory.

Answer 60

The witness must have made the recording themselves for it to be used to refresh their memory.
1. where the recording took place
on the instructions of the witness (in which
event the original recorder should also
testify);
2. where the witness read the
record and accepted its accuracy (in which
NOTE event the original recorder need not testify)

Question 61

❖ Fresh in memory.

Answer 61

➢ Generally
▪ It must be shown that the facts were fresh in the mind
of the witness when he made the recording, or gave
the instruction, or read and verified the recording.
➢ Test
▪ The test is whether the writing came into being, or was
checked and verified, at a time when the facts were still
fresh in the memory of the witness.

Question 62

Case law on fresh in memeory

Answer 62

➢ R v Isaacs
The document used to refresh the witness’s memory must have been made or read by the witness soon after the events it describes. This ensures that the facts were still fresh in the witness’s memory** when the document was created or read.**

It is up to the court to decide whether the timing of the recording or reading makes it probable that the witness’s memory was accurate and reliable at that time.

Question 63

Use of original document.

Answer 63

➢ General
▪ The original document must be used where the witness
has no independent recollection that is, in the case of
past recollection recorded.
➢ Exceptions
▪ Where the opponent fails to object; or
▪ Where it can be shown that the original is not used, the
accuracy of the copy or extract must be proved.

Question 64

❖ Production of the document.

Answer 64

➢ General Rule
▪ A document used to refresh memory while the witness
is in the witness box must be available to the court and
the opponent in order to enable them to inspect it.

➢ Effect of Privileged Documents
▪ Option 1 → Waive the privilege so that the document
can be produced and used by the witness.
▪ Option 2 → Claim privilege so that the document
cannot be produced and the witness cannot use it.

Question 65

Evidence of Presence:

Answer 65

Evidence showing that the witness was present in the vicinity where and when the pertinent events occurred is crucial. This presence is considered probative of the witness’s requirement to have personal knowledge.

Question 66

Requirement for Genuine Inability to Recollect

Answer 66

It must be shown that the witness genuinely cannot fully recall the matter on which they are being examined.

This ensures that memory refreshing is justified and not used as a tool to improperly influence testimony.

Question 67

Requirement for Making the Recording

Answer 67

The witness must have made the recording themselves, with two exceptions:

If the recording was made under the instructions of the witness, the original recorder must also testify. This ensures the accuracy and context of the recording.

If the witness read the recording and accepted its accuracy, the original recorder does not need to testify, as the witness has verified the document themselves.