Law of Evidence Flashcards
1
Q
Formative factors of the Anglo American System
A
doctrine of Precedence : ( define, same jurisdiction, same facts, of a higher court ruling)
oaths still used
accusatorial ( judge passive, he who alleges must prove)
2
Q
The Constitution
A
Chapter 2 Fundamental rights
s36 the limitation clause
s39( 1) - foreign and international Law
similar to the Canadian charter
3
Q
The Oath
A
S163- accused refuses to take the oath confirms his guilt
s164- the court need to the ensure that the witness or person understand the oath ( minor or mentally ill individual)
4
Q
sources of law of evidence
A
SA law of evidence is not codified
Constitution
Legislation ( CPA, CPEA, LEAA)
cases set precendent
5
Q
Difference between Substantive and Formal Law
A
- Substantive is material ( determines the rights and duties and powers, determines the remedies due to infringement, facts in issue, common law RD_L )
- Formal Law ( non-material) - determines the procedure and proof, determines the probative facts that prove the FIS, common law is EL)
6
Q
Admissibility
A
Determines the rule that determines what qualifies as evidence.
most rules are negative in nature
PCS,SF,CE,CF,OE) are generally inadmissible
other evidence
Competence and compellability
Privilege , Hearsay, Documents
7
Q
Nature and Origin of our our System
A
Accusatorial
Doctrine of Precedent
the use of a jury system
Proof of Admissibility ( Trial within a trial)
8
Q
Wrongfully Obtained Evidence
A
Gives the judge three options rigid inclusion ( Eng) rigid exclusion (US ) compromise ( Canadian) - balance the interests of the accused and the community.
9
Q
Judicial discretion
A
• The court has no discretion to allow inadmissible evidence, except in the case of hearsay. • The court has a limited discretion to exclude admissible evidence if o The probative force of the evidence is slight and the prejudice is potentially high; or o If the evidence should be excluded according to public policy. • This discretion is provided by s35(5) of the constitution. • The court may allow inadmissible evidence if the counter party gives permission, but this permission must be qualified.
10
Q
Relevance
A
- The relevance rule is negatively stated: irrelevant evidence is inadmissible. This rule is stated in s210 of the Criminal Procedure Act.
- Evidence is relevant if there is a logical connection between the evidence and the fact in issue.
- Relevant evidence must have a minimum degree of probative force, i.e. it must be possible to draw a reasonable inference from the fact concerned regarding the fact in issue
11
Q
PREVIOUS CONSISTENT STATEMENT
Origin
A
Admissibility means that a fact is able to prove or disprove a fact in an issue in order to be relevant. • When referring to a fact in an issue, both primary and secondary facts in issue are referred to.
• S252 of the Criminal Procedure Act provides that the origin of previous consistent statements lies in English law as it was on the 30th of May 1961 if there is no relevant legislation or amendments.
• A previous consistent statement is defined as a statement (written or oral) made by a witness before its repetition in court. Such a statement must have been made previously and must be concurrent with the present statement.
12
Q
MOST COMMON SITUATIONS WHEN RAISED
A
The question of previous consistent statement can be raised during o The examination in chief
▪ The prosecutor can refer the witness to his previous statement
▪ The witness was asked about what another witness said to them.
▪ The prosecutor refers the witness to a statement in the docket. o
Cross-examination (the state witness can be asked if he also related the version given in the court to someone else; o Re-examination (the prosecutor refers the witness to an earlier statement as a previous consistent statement; or o When the accused repeats a statement he made earlier during his plea.
13
Q
REASON FOR RULE
A
- The general rule is that previous consistent statements are inadmissible due to irrelevancy.
- The rule exists to prevent self-corroboration.
- Factors to consider include: o Fabrications; o Insufficient evidential value; o Unreliability;
- If the person adducing the evidence can justify its relevance, the reason for its inadmissibility falls away.
- The fact can only be admissible if it falls within a common law exception.
14
Q
COMMON LAW EXCEPTIONS
A
- Rebutting allegations of recent fabrication.
- Previous identification/recognition.
- Complaints by victims of sexual offenses.
- Memory refreshing.
- Statements procured by scientific methods. • Previous statements by the accused
15
Q
REBUTTING AN ALLEGATION OF A PREVIOUS CONSISTENT STATEMENT
A
Attorneys allege the reference to a previous consistent statement to test the memory and credibility of the
witness.
It’s also a ploy of cross examiners to imply fabrications.
In order to repair the damage done in cross examination, a previous consistent statement can be proven.
o However, its contents don’t become admissible, only the fact that the previous consistent statement
was made.
This exception serves
16
Q
PREVIOUS IDENTIFICATION/RECOGNITION
A
.1 Of the accused
This only proves consistency i.e. the fact that the witness was able to identify the accused at another time.
Identity parades must comply with strict rules and regulations.
Dock identifications have little value unless that witness knew the accused before.
Identikit
o The court in S v M held that they are inadmissible, but they should be admissible.
o These serve as previous consistent statements if they were repeated by the witness of the artist at
the trial.
Conduct of the accused,
o If evidence is given at the trial regarding the conduct of the accused, and the witness’s statement
corresponded with such evidence, there was no previous consistent statement.
Identification from photos
o These are admissible, but their probative force is suspect.
o It is admissible to give photographs to potential witnesses to try to identify the accused.
o Photos should be shown under similar regulations as those applied in identity parades
o The factors to be considered include the number of photos shown, the quality of the photos and any
similarities in the features of the photographed persons.
Voice parades must be conducted in a manner similar to identification parades.
7.2 Identification of something or someone other than the accused
Previous identification of something or somebody other than the accused is mostly applicable to prior
statements in which the accused is identified, but is not restricted thereto.
Previous statements may refer to other persons or things e.g. the murder weapon
17
Q
COMPLAINTS BY VICTIMS OF SEXUAL OFFENCES
A
This exception to the rule is linked to the nature of the crime, and not the sex of the victim.
Regarding rape, absence of consent is needed.
Examples of these offences include sodomy, incest, rape, assault, indecent assault etc.
A victim’s statement must meet certain requirements for it to be admissible.
8.1Requirements
The complainant must be the victim.
o In certain crimes there can be no victim e.g. sodomy only has co-accused and accomplices.
o Physical contact with the victim is required.
o Persons who may not or cannot consent are considered to be victims e.g. juveniles and mentally ill
persons.
A complaint must have been made voluntarily.
o This means that there could have been no undue pressure on the victim to tell, and or the victim
should not have been intimidated into telling.
o The statement may consist of answers to questions if no leading or suggestive questions were asked.
The victim must testify.
o Therefore the victim must be a competent witness.
o This doesn’t amount to hearsay.
o This is done in order to prove consistency.
The complaint must have been made at the first reasonable opportunity to the first reasonable person.
o Factors to consider here include the relationship between the victim and the perpetrator, the age of
the victim, the victim’s ability to testify et
18
Q
What may be proved and its purpose
A
Both the fact that there was a complaint, and the specific allegations in the charge may be proven.
The person adducing a previous consistent statement may want to:
o Rebut the defense of consent;
o Show that a suspicion that other facts are illogical is unfounded; or
o Rebut the suspicion of a lack of credibility.
Therefore, the general purpose is to show consistency where credibility is under attack.
The circumstances of the complainant may be adduced to show consistency e.g. emotional stress, injuries,
manner of dress etc.
19
Q
Previous consistent statement v conduct
A
A previous consistent statement and conduct is not the same thing.
Evidence of the emotional state of the victim can be admissible to prove the physical condition of the victim.
o In S v S 1990 (1), the court held that the shaken condition of the woman concerned served as
corroboration for her insistence that she was raped.
The physical condition of the victim has nothing to do with a previous consistent statement when the
evidence was given by another person.
o This evidence is circumstantial.
o However, it may corroborate the fact in issue
20
Q
MEMORY REFRESHING
A
It is admissible for a witness to refresh their memory from a previous document.
However, the document itself is not admissible as evidence unless the parties agree for it to be admitted
21
Q
STATEMENTS PROCURED BY SCIENTIFIC METHODS
A
E.g. hypnosis, polygraph tests etc
The courts won’t accept this type of evidence because its reliability is suspect.
Other rules of evidence must be considered e.g. opinion evidence.
These methods may be of value to the police during their investigation into the matter
22
Q
PREVIOUS STATEMENTS MADE BY THE ACCUSED
A
This could take the form of a document containing a statement made by the accused to another.
Depending on the nature of the contents, such a document may be admissible.
Such a document usually contains:
o Incriminating statements e.g. admissions. Such documents are admissible if they meet the
requirements for the admissibility of admissions.
o Exculpatory/self-serving statements. Generally, these documents cannot be admitted in the accused’
favour.
However, the exception is in the case of a statement made during arrest or when certain
objects are found upon them. Then these documents will be admissible to prove the attitude
and reaction of the accused at the time of questioning.
This type of statement can also be used to show consistency on the part of the accused.
o Partly exculpatory and incrimination statements. If the previous statement consists of both an
admission, and self-serving statements, the whole statement is admissible
23
Q
SIMILAR FACTS
A
Relevance depends on the facts’ ability to prove or rebut the fact in issue.
This rule is subject to the
exclusionary rules, similar fact evidence being one of them.
o Similar facts are admissible in both civil and criminal courts.
o However, criminal courts are more reluctant to admit similar fact evidence than civil courts
24
Q
S255 states that the law applicable to similar fact evidence is that which applied on the 30th May 1961
A
Similar facts refer to at least two sets of facts that seem to be similar.
o The first set of facts is the facts at issue.
o The second are the probative material.
o Such a fact can be referred to as en element of the crime/delict, motive, or intention.
o Van Der Merwe states that similar facts refer to one’s conduct on an occasion(s) other than the
occasion in dispute, which is of such a nature that it is logically connected or substantially similar to
the other occasion.
25
General rule
The general rule regarding similar fact evidence is that it’s inadmissible i.e. the court can’t infer that
something happened just because similar events happened on other occasions.
o The court may not infer that a person committed a wrongful act just because they have a propensity
to perform wrongful acts.
The reason for the rule:
o No reasonable inference can be drawn from them.
o They are irrelevant.
o It is a waste of time to admit side issues.
o The accused may be unfairly surprised at court and not prepared to defend himself
o It would result in the police merely looking for someone with a previous conviction similar to the act
in question.
26
NEXUS PROVIDING RELEVANCE
```
Continuous conduct
Improbability of coincidence
Common source
Common locality:
Rebuttal of an otherwise available defense:
Striking similarity:
```
27
APPLICATION OF THE RULE
```
The act:
Opportunity, means, and ability:
Identity/alibi:
Intention
Systematic conduct:
Negligence:
Motive
```
28
STATUTORY APPLICATION
S197 – the character of the accused during cross examination.
S211
Except where otherwise provided by the Criminal Procedure Act, or where the fact of previous convictions is
an element of an offence, evidence of previous convictions may not be led.
S227 – The character of the victim of accused in sexual offences
29
QUANTUM OF PROOF
Similar facts may be used to corroborate other facts.
| The existence of similar fact evidence may enhance the value of other evidence
30
CIVIL CASES
1.1 Plaintiff
The plaintiff’s character is usually irrelevant.
In certain cases, it can be relevant e.g. defamation, breach of faith, seduction and divorce.
1.2 Defendant
The defendant’s character is irrelevant.
Except in obvious cases it is relevant e.g. fraud, adultery, and seduction.
31
CRIMINAL CASES
2.1 Accused
Evidence of his good character is irrelevant (logically). But evidence may be led to prove good character if
the character of the accused is relevant to the offence.
Evidence of bad character is also usually irrelevant. Except if:
o The evidence is admissible as similar fact evidence;
o The evidence is relevant to the proof and therefore admissible; or
o The accused led evidence of his good character; the prosecutor may lead evidence of his bad
character if the question of character is strictly relevant to the charge (s197).
Note : s197 regulates the cross examination regarding character, but not regarding leading evidence of bad
character.
2.2 Opponent’s witness
Character may only be challenged if it is relevant to the witness’s credibility.
There are requirements to be met in order to challenge a witness’s credibility:
o The question must be relevant to credibility;
o Only a generally bad reputation, or unreliability may be proven; and
o It the evidence is only relevant to show previous lies, it is inadmissible.
A witness’s credibility can be challenged by evidence of a previous inconsistent statement. But such a
statement will only be relevant if it relates to the subject matter of the proceedings.
o The attorney must explain the surrounding circumstances of the statement, and he must put the
statement to the witness.
o Such a statement can only be proved if the witness denies to statement.
2.3 The character of a party’s own witness
The party may not impeach the credibility of their own witness.
But if the witness unexpectedly becomes a hindrance, the accused may:
o Lead evidence contradicting the witness’s statement;
o Declare the witness a hostile witness; or
o Prove a previous inconsistent statement against him.
The previous inconsistent statement must be put to the witness. If he admits the statement, if must be
handed in to the court, but if he denies it, the attorney must prove it against the witness.
2.4 The character of the complainant
The complainant is considered to be an ordinary witness. However, he is more likely to have a motive to
incriminate the accused.
Therefore, the question must be asked to what extent the complainant’s previous behavior can be used as
evidence to prove that his testimony is untrustworthy?
S227 of the Act states that rap
32
COLLATERAL FACTS
According to the court in S v Sinkankanka, the term ‘collateral’ isn’t readily susceptible to a comprehensive
definition which will fit all cases.
Therefore, there is no general test to determine collateral facts.
The Supreme Court of Appeal equates the English test for collateral facts with the criterion for relevance.
All facts that on the face of it are unconnected to the facts in issue should be treated as collateral facts.
Collateral facts are subordinate facts. There are 2 types:
o Facts affecting the credibility of a witness.
o Facts proved as a condition to the admission of certain evidence.
Therefore, the general rule states that an answer relating to the credibility of a witness, or other collateral
matter, is final.
33
THE RULE
According to the traditional approach, answers to questions in cross-examination, and those emanating from
collateral facts, can't be rebutted by further evidence.
However, the modern approach differs.
o Answers to questions relating solely to credibility, as a general rule, are final, and are only rebuttable
if the answer is relevant.
o Therefore, if a person can prove that answers to questions don’t solely relate to credibility, but to
admissibility on other grounds, the general rule doesn’t feature.
The modern approach rule exists because it saves an unnecessary waste of time.
o It is also common sense that matters relevant to credibility are very wide, therefore, if all collateral
facts were admissible, the trial would be indefinitely prolonged.
34
EXCEPTIONS TO THE RULE
Previous inconsistent statements,
o The presiding officer must decide if the statement is relevant, and
o The person trying to prove such a statement must do so because the witness denied it.
o Such a statement need not have been made under oath.
Previous convictions of the accused.
o These are usually regarded as character or similar fact evidence.
o The underlying principle is the fact that that accused person was previously convicted of an offence
is collateral to the present offence.
o Therefore, s197 is an exception under collateral facts.
Bias.
o When the witness is biased towards a party, the question is relevant to the relationship between the
persons.
o Contradictory evidence may be adduced.
o As long as bias is clearly enunciated and compatible with the facts, the questions as evidence
thereabout are relevant and admissible.
o Hypothesis and general insinuations (based on speculations) are collateral facts and inadmissible,
and the answers thereto are final.
Physical or psychological defects influencing credibility.
o Expert medical evidence can be impeded by the credibility of the witness.
35
OPINION EVIDENCE
Opinion evidence is inadmissible as a general rule.
There are 2 exceptions:
o Layman evidence will be admitted is it is difficult to explain a matter without such evidence.
o Expert evidence is admissible if the matter requires such evidence, and the evidence falls within the
expert’s field of expertise.
This rule exists because:
o The witness appropriates the functions of the court, and there is the danger that the court will adopt
the witness’s views as his own.
o Only observations are relevant, and opinions entail the inference drawn from such an observation.
The rule in practice.
o Opinion evidence is often admissible, despite it containing an observation and an inference, because
it is often impossible to distinguish between an opinion and an observation.
o Such evidence may carry little value.
o Certain instances when opinion evidence is allowed include evidence of age, speed, intoxication,
handwriting etc.
o Whether certain opinion evidence is admissible is determined by laid down requirements
36
LAYMAN OPINION
The point of departure is that the court itself is a non-expert, and therefore can draw inferences from facts.
Therefore the layman’s opinion is irrelevant.
Certain requirements must be met before opinion evidence can become admissible
37
Requirements
The witness must be competent.
The grounds for the opinion must be stated.
o This prevents the court from being misled.
o The court can judge the witness’s reasoning and reject the opinion if it is unfounded.
o The witness may be questioned regarding facts upon which the opinion is founded.
o The court has no discretion in this regard. Therefore grounds must always be stated.
There must be non-substitution.
o This means that the court mustn’t substitute the witness’s opinion for his own.
o The ultimate issue doctrine states that a witness’s opinion on final or ultimate issues is inadmissible
because the court must decide thereupon.
o The exception to this is expert opinions because specific knowledge is required
38
Probative value of opinion evidence
Opinion evidence may be admissible, but it will be of little value, therefore conflicting evidence will be
sufficient to rebut it.
Such evidence is usually accepted as prima facie true, and therefore its value will only depend on whether or
not it is challenged (and to what extent it is challenged).
39
Examples of admissible layman opinion evidence
Handwriting.
o S228 makes a comparison between handwriting samples admissible.
Identification.
Speed, age, condition, value.
Intoxication.
o The facts and circumstances of the inference must be provided.
Matrimony.
o The fact that a man and a women have been living together for a long time permits the inference by
a witness that they were married.
Reputation.
o Regarding honesty and morality, op
40
EXPERT EVIDENCE
Expert evidence is admissible because the expert is better equipped to make inferences than the court.
Such evidence is only admissible when EXPERT evidence is given according to expert knowledge. All other
evidence given by the expert witness will constitute layman evidence.
However, due to technological advances and publication thereof, the courts are often able to make their own
expert inferences without the assistance of an actual expert.
o Judges often are able to take judicial notice of things that previously needed expert evidence.
40
EXPERT EVIDENCE
Expert evidence is admissible because the expert is better equipped to make inferences than the court.
Such evidence is only admissible when EXPERT evidence is given according to expert knowledge. All other
evidence given by the expert witness will constitute layman evidence.
However, due to technological advances and publication thereof, the courts are often able to make their own
expert inferences without the assistance of an actual expert.
o Judges often are able to take judicial notice of things that previously needed expert evidence.
41
Requirements for admissibility
The expert must be competent i.e. he must be qualified.
o He can be questioned regarding his expertise/knowledge/experience.
o The court will decide if he is competent.
o No specific qualifications are required.
He must state the grounds for his inference.
o Evidence must be linked to the facts of the case. If the expert doesn’t know the facts of the case, the
situation may be put to him hypothetically or he may be required to listen to the evidence of other
witnesses.
o However, the factual position must be correctly put to the witness before he is questioned.
o The facts and findings upon which the evidence is given must be stated.
o The stated grounds are relevant to the admissibility and the weight of the evidence.
Non-substitution.
o The court must decide if the expert evidence is acceptable.
o If the evidence is very technical (and the court can't draw conclusions of its own), the court will be
bound to rely on the evidence of the expert and will only decide on the witness’s credibility.
o Expert evidence may be compared to other expert evidence.
42
Formal requirements
The expert must be civilly subpoenaed.
o 14 days notice must be given to the opposing party.
o A summary of the evidence and reasons must be submitted to the opponent.
o Sometimes the court will dispense with these requirements.
S77 and s7 of the Criminal Procedures Act provides for the admissibility of expert evidence when a persons
mental condition is in question.
Expert evidence may be adduced by means of an affidavit or certificate in certain circumstances.
A subpoenaed witness is compelled to give evidence.
43
Examples
Handwriting.
o Any layman can see similarities and differences once they have been pointed out, therefore this
evidence will be treated with circumspection.
Finger printing
o The court is compelled to depend on the expert evidence.
o A conviction may follow solely from evidence of finger prints.
o A fingerprint expert may provide his evidence in an affidavit.
A shoe print is more reliable than a foot print.
Medical evidence.
o Motivation must be given.
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Probative value
The court will decide if the evidence is admissible.
The court must not blindly act upon expert evidence but must decide for itself if it can accept the opinion.
If the expert evidence isn’t challenged, it is regarded as prima facie proof.
The court can appoint an expert to act as an assessor during the trial.
45
COMPETENCE AND COMELLABILITY
Competence means that a witness is allowed by law to testify.
Compellability means that he must testify.
In general, every person who is able to communicate sensibly and to understand that he is expected to tell
the truth is a competent witness.
S192 – every witness in criminal proceedings is competent unless expressly excluded.
S8 of the Civil Proceedings Act provides the same in civil trials.
S193 – the court must decide if a witness is competent. There are 3 scenarios when a court must exercise its
discretion:
o The judge’s observation.
o The court must evaluate testimony.
o When formally proving competence in a trial-within-a-trial.
If a person is incapable of testifying the parties may not agree to the admission of his evidence
46
Incompetence due to state of mind
S194 – certain witnesses are incompetent due to their state of mind.
The following requirements must be met:
o There must be an affliction due to mental illness, imbecility, intoxication etc,
o Which deprives that witness of the proper use of his reason,
o Whilst testifying.
‘Deprived of the proper use of his reason’ does not include a person who is mentally retarded or feebleminded.
If a person becomes incompetent under s194 during proceedings, the evidence already given by him will
only stand:
o In so far as it is not disputed.
o In so far as the opposing party has completed cross-examination.
S9 – no intoxicated person deprived of the proper use of his reason may be competent.
o Therefore, he will regain his competence once sober.
The weight or value of this witness’s evidence may be influenced by his affliction.
47
Deaf mutes
Such witnesses are competent as far as they are able to communicate their evidence.
S161 – viva voce evidence includes sign language.
48
Children
A child is incompetent if they
o Have insufficient intelligence to testify, or
o Have no proper appreciation of speaking the truth.
S163 – unsworn or unaffirmed evidence is admissible if the child has been admonished by the presiding
officer in terms of s164 to tell the truth, the whole truth and noting but the truth.
S170A – evidence may be given through intermediaries and in a separate room.
For a child to be competent, he must meet certain common law requirements:
o He must be of the age, or have the knowledge, to be able to distinguish between right and wrong.
o S164 prescribes the manner in which the child may testify.
o The child must be in a separate room, and may possible require an intermediary.
o The court must refer to the cautionary rule.
Woji :
o There are no statutory requirements for a child’s evidence to be corroborated.
o It must be determined if the child is trustworthy.
o The child’s trustworthiness depends on:
His power of observation (is he intelligent enough to observe),
His powder of recollection (is he old enough to remember), and
His power of narration (can he understand the questions put to him and can he frame
express and intelligent answers).
o Other factors to be taken into account are:
Is the child honest (is he conscious of his duty to speak the truth) and
The nature of the evidence.
o There is a danger in believing this evidence if it is the only available evidence (cautionary rule).
o Children usually have vivid memories of unusual incidents
49
Spouses
A spouse is competent and sometimes compellable.
A spouse used to be completely barred from testifying against their spouse (under common law), but the
position has been changed by statute.
S196 – a spouse is a competent witness for the defense.
o Such a witness may be compellable for their spouse, but not for a co-accused.
o The evidence of an accused given upon his own application in his own defense at joint criminal
proceedings is admissible against a co-accused.
S195(1) – a spouse (including customary spouses) can be a competent witness for the state. However, they
are not compellable unless:
o There was a crime against the person or child of either of them;
o Any offence against a child;
o Maintenance;
o Bigamy;
o Incest;
o Abduction;
o Perjury.
S195(2) – ‘Marriage’ for these purposes includes customary marriages under indigenous law and any
religious marriage.
50
The accused
S196 – the accused is competent to testify in his own defense.
However, he isn’t compellable.
His evidence must be given under oath or affirmation.
51
Co-accused
This person is competent and sometimes compellable.
He can testify for the defense.
o An accused cannot compel his co-accused to testify.
o He may testify on his own behalf, but not on behalf of his co-accused.
o The prosecutor and the accused are entitled to cross-examine him.
If the co-accused are spouses,
o The fact that they are spouses is irrelevant.
o They can't compel each other to testify.
o Each may testify on his own behalf.
o Evidence against their spouse is admissible.
The co-accused may also be a prosecution witness. The state may only call a co-accused as a witness if:
o Charges are withdrawn;
o After pleading, they are formally acquitted and discharged;
o The co-accused pleads guilty and there is therefore no longer any dispute between him and the
state;
o Trials are separated.
The testimony of a co-accused state witness must be considered with caution, because there might be a
motive to incriminate.
Note: competence and compellability refers to a relationship between persons, while privilege refers
to a communication between persons.
52
) COMPELLABILITY?
```
Certain persons are not compellable:
o The president;
o Members of parliament;
o Diplomatic representatives;
o Judges (however, they can be subpoenaed in civil cases with the courts consent).
```
53
CONSEQUENCES OF REFUSAL TO TESTIFY
S189 of CPA endows the court with certain powers regarding recalcitrant witnesses.
o A hostile witness is a witness who won’t testify.
o A recalcitrant witness is a person who testifies but perjures.
The court can sentence such a witness to jail (for less than 2 years in civil matters, and less than 5 years on
criminal matters).
o This sentence can be repeated.
o The person will be imprisoned unless they can convince the court of a just excuse for having done so
(perjured)
54
PRIVILAGE
Privilege refers to the right to withhold relevant information.
o This can result in important information being withheld; therefore, the fairness of the trial could be
impeded.
o Privilege is justified by public policy.
A competent and compellable witness may not refuse to take the oath. However, he may appeal to his
privilege.
55
1) PRIVATE PRIVILAGE
This right may be waived.
| The person claiming the privilege must raise it himself
56
Matrimonial privilege
S198 – a partner to a marriage cannot disclose communications between spouses to such marriage made at
any time in the duration of the marriage. This also applies after divorce or annulment.
S199 – a witness cannot answer a question which their spouse, as a witness, couldn’t answer.
S10 of the Civil Proceedings Act is the same as s198 but doesn’t discriminate between civil and criminal
proceedings.
It is important to note that privilege protects communications between spouses.
o Therefore, a 3rd person who overheard the communication cannot claim the right to privilege.
o The communication need not have been confidential.
o This right protects the relationship between spouses.
Privilege applies to:
o The person to whom the statement was made;
o Not persons married under indigenous law; and
o Parties to divorce and annulment (not widow/widowers)
57
Occupational privilege
S201 – no legal representative is competent to give evidence against a client or previous client with regards
to professional communications.
This privilege exists in order to enable the client to freely consult without fear of their attorney being
compelled to testify.
The nature of the privilege:
o Statements regarding legal advice or litigation are protected from being made public.
o Only communications are privileged.
o The privilege belongs to the client.
o This right may be waived.
o The client forfeits this protection if he reveals the communication himself.
o 3
rd parties aren’t bound by the privilege.
o If it is in the interests of justice, the court may revoke the privilege.
The right may only be waived regarding a question, and not regarding the whole communication.
This privilege must meet certain requirements:
o The attorney must have acted in his official capacity (this includes pro bono work);
o The communication must have been confidential;
o The statement must have been made with the purpose of obtaining or giving legal advice or
litigation.
o The advice must have been proper (a request for information as to how to commit a crime isn’t
privileged).
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Privilege against self-incrimination
This refers to the right to remain silent.
o Both the accused and the witness have this right before and during trial.
S203 – witnesses are excused from answering self-incriminating questions.
S200 – such a person isn’t excused from answering questions to establish civil liability on his part.
S35 (1) of the constitution provides arrested persons with the right to :
o Remain silent;
o Be informed of his rights; and
o Not to be compelled to make admissions or confessions.
S35 (3) of the constitution further provides an accused person with the right to a fair trial (this includes not
being compelled to give self-incriminating evidence).
The purpose of this privilege is to encourage persons in the possession of evidence to give it without the fear
of prosecution.
The witness may not refuse to be sworn in on the grounds of self-incrimination – he must wait for the specific
question before he can claim his privilege.
Witnesses must be informed of their privilege by the presiding officer.
The court is entitled to refuse privilege if it isn’t self-incriminating.
The court may not anticipate the privilege by refusing to allow the question to be asked. The witness must
decide for himself whether or not to answer the question.
If the accused is a witness, he may claim this right, except with regard to crimes he’s committed.
o This is because he waived his right when he entered the witness box.
An admission of guilt amounts to a waiver of the privilege.
S204 makes provision for state witnesses.
o These witnesses must answer all questions put to them.
o They are usually indemnified from prosecution if they answer the questions openly and frankly.
o If they aren’t indemnified, their answers cannot be used against them.
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PUBLIC PRIVILEGE/ADMINISTRATION OF JUSTICE
The purpose of public privilege is to protect the interests of society
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Informers
An informer must inform voluntarily and be unidentified.
They may not be called as a witness.
A person who participates in a trap is identified and can be called as a witness.
The informer’s identification and information are privileged.
This privilege exists because it’s in the interests of the state that informers feel free to assist the police
without fear.
The presiding officer has a discretion to suspend the rule and allow the disclosure of the information.
Privilege doesn’t include:
o Police witnesses in criminal cases;
o Complainants in criminal cases; and
o Anyone whose identity need not be kept secret.
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Informers
An informer must inform voluntarily and be unidentified.
They may not be called as a witness.
A person who participates in a trap is identified and can be called as a witness.
The informer’s identification and information are privileged.
This privilege exists because it’s in the interests of the state that informers feel free to assist the police
without fear.
The presiding officer has a discretion to suspend the rule and allow the disclosure of the information.
Privilege doesn’t include:
o Police witnesses in criminal cases;
o Complainants in criminal cases; and
o Anyone whose identity need not be kept secret.
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Judicial officers
A judge or magistrate may not be questioned regarding the exercise of their functions.
They also need not give evidence about occurrences in court
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Police docket privilege
Previously, the docket (excluding the accused statement) was privileged information.
However, s32 of 108/96 provides for the right to access to information, and s35 provides for the right to a
free and fair trial (including the right to be informed of the charge against one)
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HEARSAY EVIDENCE
This is evidence regarding a statement made by X to a witness.
This evidence is usually unreliable, therefore it is generally inadmissible.
o This is because the person who made the statement wasn’t under oath and can't be cross-examined.
Before 1988, the English law applied.
o This law stated that hearsay evidence was inadmissible except in a few cases.
In 1988 the Law of Evidence Amendment Act gave a new definition to hearsay evidence and granted the
courts a judicial discretion to allow the evidence.
Therefore, the general rule provides that hearsay evidence is inadmissible.
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PROVISIONS OF THE LAW OF EVIDENCE AMENDMENT ACT
S9 repealed s216 and s223 of the Criminal Procedure Act.
o S216 provided that the common law regarding hearsay applied.
o S223 provided that a dying declaration was an exception to the rule against hearsay and was
therefore admissible.
S3 amounts to a codification of hearsay evidence. It states that
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(1) Hearsay evidence is inadmissible unless:
a. All parties agree to its admissibility;
b. The person on who’s credibility the probative value of the evidence depends testifies in person (the
person who made the statement); or
c. If the court is of the opinion that the evidence is admissible in the interests of justice, it must pay
regard to:
The nature of the procedure;
The nature of the evidence;
The purpose of the adducement;
Probative value of the evidence;
Why the evidence isn’t given by the person who made the statement;
Prejudice to other persons due to the admission; and
Other factors.
(2) The provisions of (1) don’t make evidence admissible when it was originally inadmissible for other
reasons e.g. previous consistent statement.
(3) Hearsay evidence is provisionally admissible in accordance with (1)(b) if the court is informed that the
person who originally made the statement will testify, and if he doesn’t do so, the evidence may be
struck out.
(4) Hearsay evidence is evidence (oral or written) of a statement made by X to a witness
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DEFINITION OF HEARSAY EVIDENCE
Originally (since Estate De Wet v De Wet 1924), this was a statement made by a person who wasn’t a
witness, which was tendered for the purpose of proving the truth of what was contained in a statement.
o This definition was ‘ascertainment-orientated’ i.e. the emphasis was on the purpose of the declarant
for making the statement.
In1983, the court in Paizes recommended the ‘declarant-orientated’ approach.
o This was accepted in by the Law Commission, and incorporated in s3 (4) of the 1988 Act.
o The question now falls on the credibility of the declarant, and not on the purpose of making the
declaration.
The new definition provides that hearsay evidence is evidence given by someone other than the person who
made the statement in court, in circumstances where it is important that the assertor be cross-examined.
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EXCEPTIONS TO THE RULE OF INADMISSIBILITY
The common law exceptions are a numerous clausus and can only be extended by legislation.
The following are statutory exceptions.
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S3 (1) ‘subject to the provisions of other law…’
E.g. the Births, Marriages and Deaths Registration Act.
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S3 (1)(a) consent by the opposing party
This is a type of plea bargaining section.
The agreement may be reached before or during the trial.
If the defendant isn’t represented, the court must be wary and explain the situation fully.
o The court must warn the defendant of the consequences of consent.
o The court must also inform the defendant that he in not obliged to consent.
Consent must be expressly given (not tacit or implied).
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3 S3 (1)(b) preliminary admissibility
The person giving hearsay evidence must inform the court that the declarant will testify.
If the declarant testifies, provisionally allowed hearsay evidence will become a previous consistent
statement.
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S3 (1)(c) judicial discretion
This section shouldn’t be used unless strongly warranted by the circumstances.
It must be in the interests of justice.
There are 7 factors the court must consider:
o The nature of the procedure (civil or criminal);
o The nature of the evidence;
o The purpose of the tendering;
o Probative value (hearsay evidence should be presented late in the trial because there will then be
more evidence on which to base its value);
o Why the evidence isn’t given by the person who made the statement;
o Prejudice to other persons due to the admission; and
o Other (these will depend on the facts of the case must always be in the interests of justice).
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Other limitations
S3(2) states that evidence that is admissible in regard to s3(1) must still comply with the requirements for
admissibility.
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DOCUMENTARY AND REAL EVIDENCE
1) THE 6 GOLDEN RULES WHEN DEALING WITH DOCUMENTS
1. Identify.
2. Typify/characterize.
a. Real (exhibit 1, 2, 3…)
i. Small – bring to court
ii. Inspection in loco
iii. Photograph s232
b. Document (exhibit a, b, c…)
i. Public
ii. Private
iii. Official
3. Common law or statutory law
4. Admissibility requirements.
a. Generally admissible
b. Genuine and authentic
c. Best evidence rule
5. Manner of presentation.
6. Effect or value
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THE DIFFERENCE BETWEEN A DOCUMENT AND A REAL EXHIBIT
2.1 Nature of real evidence
This is normally an object. It can also be a person.
Although this evidence is often accompanied by oral evidence (often someone has to identify the object and
place it in context), it is still evidence in its own right.
When an expert is called in to explain what an object is, this constitutes opinion evidence, but the object is
still real evidence.
These things are referred to as ‘exhibit 1, 2, 3 etc’.
An inspection in loco gives evidence of what was inspected
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Nature of documentary evidence
A document is defined as any written thing that is capable of being evidence.
o This definition is wide and includes films and tapes.
o According to the CPA, a document includes any device by which information can be recorded and
stored.
A document can provide strong evidence, but it can also be forged. Therefore, the courts developed
requirements aimed at ensuring the authenticity of the contents of the document.
o These requirements depend on what type of document is in question.
There are 3 kinds of documents:
o Public,
o Private, and
o Official.
It isn’t important upon which surface the writing is found.
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APPLIANCES AND DEVICES
Therefore, it is necessary to provide for new methods of evidence apart from the recognized categories (real,
documentary and personal/oral).
Synman is of the opinion that technological evidence can be classified into real and documentary evidence.
o If the evidence can be obtained from any surface, the question isn’t regarding the production, but
regarding the purposes for which the evidence is needed.
o If writing should be read and interpreted, it is documentary.
o If the evidence is only admissible on face value, it is real evidence.
For technological evidence to be relevant, it must be testified that the equipment was in proper working
order at that specific time.
Reliability can be accepted through judicial notice.
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Photos
A photo can be real evidence (e.g. a stolen item), or it can be documentary evidence (e.g. to show graffiti on
a wall).
It is usually presented with evidence as to who took the photo and the contents to be identified.
S232 of the CPA provides that a party may provide a photo (with leave of the court) instead of producing the
object itself in court.
o This is despite the availability of the actual object.
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Video tapes
The originality of the tape and its contents must be identified.
According to Mpumlo, a tape must be treated as real evidence; therefore, evidence of the authenticity and
originality thereof wouldn’t be required for its admissibility.
Defects affect the weight of the evidence, rather than the admissibility.
It must be shown that the contents are relevant
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Sound recordings
Audiotapes are generally regarded are documentary evidence.
However, tapes can be edited and amended. Therefore, the courts have to be convinced that they haven’t
been tampered with before they can be admitted.
The speaker must be identified.
Defects affect weight and not admissibility.
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Computers
A computer is mainly used to process and store information.
The product of a computer is usually a printout in documentary form.
There is a move towards regarding printouts as real evidence instead of documentary evidence.
The Computer Evidence Act of 1983 provides for the authentication of a printout by means of an affidavit by
someone who had an overview of the whole computer process.
o Such people are scarce and the act has been criticized.
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DIFFERENT TYPES OF DOCUMENTS
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Public documents
A public document is a document:
o Which has been draw up by a public official
o In the execution of a public duty,
o Which is intended for public used, and
o To which the public has a right of access.
Public documents may be tendered as an exception to the hearsay rule.
They need not be identified or authenticated.
Secondary evidence (copies) of the contents of such documents is admissible.
o S233 of the CPA and s18 of the Civil Proceedings Act are applicable regarding the admissibility of a
certified copy
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Official documents
An official document is a document in the custody or under the control of an official of the state.
Official documents are often, but not always, public documents.
Custody of a document is usually entrusted by statute.
S234 of CPA provides for the admissibility of a certified copy of an official document.
o The original can only be ordered with the consent of the attorney-general.
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Private documents
This is any document which isn’t a public document.
| Most documents are private, even if the public has access thereto e.g. newspaper.
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COMMON LAW ADMISSIBILITY REQUIREMENTS
5.1 Generally admissible
All other requirements in the law of evidence have been met.
E.g. contents must be relevant and admissible.
5.2 Genuine and authentic
This requirement means that the document must be what it claims to be.
This deals with the nature of the document e.g. a will, a contract.
The following persons may authenticate a document:
o The author or signatory.
o A witness.
o A person who can identify the signature.
o A lawful custodian or controller of the document.
Sometimes a document need not be authenticated:
o Documents older than 20 years.
o When the opposing party produced it and asked for it to be put before the court.
o When the court takes judicial notice of the document.
o When the opposing party acknowledges its authenticity.
o When statutory provisions create exceptions to the general rule apply.
o When foreign documents have been authenticated in their country of origin.
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Primary (best evidence rule)
Primary evidence means the original document.
The rule is that where the contents of the document are being proved, the original document must be
produced.
Generally, a document only has one original, however, the courts have recognized the possibility of there
being more than one original. This can be the case in carbon copies.
o Da Matta v Otto : carbon copies are not copies but simultaneously produced originals
There are exceptions to the rule that the contents of a document can only be proved by the presentation of
the document itself.
o Where the mere existence of the document has to be proved.
o Where the contents of the document are admitted.
o Where the original was destroyed, or after a reasonable search, could not be found.
o Where it would be impossible or inconvenient to produce the original (e.g. computer printouts).
o Where the opposing party is in possession of the original and, after reasonable notice calling on him
to produce it, he failed to do so.
o Where the document is a public or official document.
The prohibition of secondary evidence only applies when the contents of the document are proved by means
of evidence other than the document itself.
o E.g. the price of a product can be produced by an eye-witness, without having to present the invoice.
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Primary (best evidence rule)
Primary evidence means the original document.
The rule is that where the contents of the document are being proved, the original document must be
produced.
Generally, a document only has one original, however, the courts have recognized the possibility of there
being more than one original. This can be the case in carbon copies.
o Da Matta v Otto : carbon copies are not copies but simultaneously produced originals
There are exceptions to the rule that the contents of a document can only be proved by the presentation of
the document itself.
o Where the mere existence of the document has to be proved.
o Where the contents of the document are admitted.
o Where the original was destroyed, or after a reasonable search, could not be found.
o Where it would be impossible or inconvenient to produce the original (e.g. computer printouts).
o Where the opposing party is in possession of the original and, after reasonable notice calling on him
to produce it, he failed to do so.
o Where the document is a public or official document.
The prohibition of secondary evidence only applies when the contents of the document are proved by means
of evidence other than the document itself.
o E.g. the price of a product can be produced by an eye-witness, without having to present the invoice.
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MANNER OF PRESENTATION
6.1 A document in the possession of the party who wishes to prove it is usually produced and
identified by a competent witness
If the document is in the possession of a 3rd party, he/she can be compelled to bring the document to court
by a subpoena duces tecum.
There is no discovery procedure in criminal proceedings.
The accused and the state may both issue subpoenas.
In a case of an official private document, the attorney general must consent before the original may be
presented in a criminal case.
o This authorization is seldom needed because copies are usually easily available.
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Documents may be handed in from the bar or side-bar
This is only in exceptional cases.
E.g. if an act states that a certain type of document is admissible on mere presentation if it meets the
admissibility requirements.
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Opposing party admits admissibility requirements
Then the document may be handed in.
This doesn’t necessarily mean that the content of the document is admitted.
The opposing party may choose to admit the content of the document, and then the document is handed in
for practical reasons only.
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A party alleges that he doesn’t want to object to admissibility yet
The court will provisionally allow the document.
This has problems:
o Questioning on the document is usually allowed, and this might have to be scratched.
o The first party might not know of the admissibility of the evidence at the closure of its case.
o The second party might have to make a decision on giving evidence, depending on the admissibility
of the document.
A better approach would be to settle the matter in a trial within a trial.
o This gives the presenter the opportunity of convincing the court of the admissibility of the document.
o The ruling of the court often provides the parties with more certainty.
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EFFECT OR VALUE
Documents are used in court for various reasons:
o As substitutes for oral evidence.
o Used as a supplement to oral evidence.
o Aids to witnesses to refresh memory.
The legislator sometimes determines that certain documents contain prima facie evidence.
Certain statutory provisions provide that certain documents’ probative value is ‘deemed unless the contrary
is proven’.
o Many of these ‘deemed’ provisions have been declared unconstitutional.
