real evidence

Question 1

What is real evidence?

Answer 1

A: Real evidence is an object that, upon proper identification, becomes evidence itself. Examples include murder weapons, letters, or the physical appearance of a witness.

Question 2

How is real evidence admitted in court?

Answer 2

A: The party wishing to produce real evidence must call a witness who can identify the material object, in the absence of a formal admission by the opposing party. If relevant and not subject to exclusionary rules, it is marked as an exhibit and made available for inspection by the court.

Question 3

How should the court describe an exhibit?

Answer 3

A: The court should carefully describe the exhibit so that details may be recorded without making observations requiring expert knowledge.

Question 4

What role does a witness play in explaining real evidence?

Answer 4

The witness will explain where the exhibit was found, how it was used, or why they claim to own it.

Question 5

What are the options for presenting real evidence?

Answer 5

Option 1: The exhibit is inspected by the court at trial.

Option 2: Real evidence can be proved with a properly identified photograph.

Option 3: Oral evidence describing real evidence not produced at court is admissible.

Option 4: Immediate real evidence is presented for court inspection along with identification and descriptions by the witness.

Question 6

What does real evidence involving a person’s physical appearance include?

Answer 6

A: It includes a person’s physical characteristics (size, strength, dexterity), which can be relevant to their guilt or innocence, and can serve as real evidence of a person’s approximate age.

Question 7

When is the use of physical appearance to determine age excluded?

Answer 7

A: When the precise age of the accused is an element of the crime.

Question 8

What does Section 337 CPA state about estimating age in criminal proceedings?

Answer 8

If insufficient evidence of age is available, the judge may estimate the age based on appearance or available information, deemed correct unless proven otherwise and affecting lawful conviction.

Question 9

Describe the process of fingerprint evidence collection and comparison.

Answer 9

A police officer lifts a print, sends it for comparison with suspect’s prints by an expert. Similarity points are marked, and seven points of similarity can prove the prints are from the same person. Comparison evidence can be given orally or by affidavit

Question 10

What does S v Ramgobin require for the admissibility of audio and visual recordings?

Answer 10

The recordings must be original, unaltered, related to the incident, faithful, identifiable, and sufficiently intelligible.

Question 11

What did S v Baleka state about the admissibility of recordings?

Answer 11

A: Recordings need only to have prima facie probative value to be admissible.

Question 12

What is the preferred approach regarding electronic evidence?

Answer 12

Treating electronic evidence as equivalent to documentary evidence, as highlighted in S v Brown where data messages were treated as documentary evidence due to their potential for manipulation.

Question 13

What does Section 1 of the Electronic Communications and Transactions Act define?

Answer 13

It defines ‘data’ as electronic representations of information in any form and refers to the output of information by/in an electronic medium as ‘data’ or a ‘data message’ or an ‘electronic transaction.’

Question 14

What does Section 15(1) of the ECT Act state about the admissibility of electronic evidence?

Answer 14

In any legal proceedings, the rules of evidence must not deny the admissibility of a data message on the grounds that it is in electronic form or not in its original form if it is the best evidence the person adducing it could reasonably obtain.

Question 15

What does Article 9 MLEC (Model Law on Electronic Commerce) state about data messages?

Answer 15

A: Data messages should not be denied admissibility as evidence in legal proceedings solely because they are in electronic form.

Question 16

What are the conditions for admitting hearsay evidence according to Section 3(1) of the LEAA?

Answer 16

Consent is given by the party against whom it is sought to be admitted.

The person on whose credibility the probative value of the evidence depends will testify later.

Admission would be in the interests of justice.

Question 17

How did the court classify data messages in MTN Service Provider case?

Answer 17

A: The court classified data messages as real evidence and ruled that the principle of ‘functional equivalent’ does not free data messages from the normal structures of the law of evidence, but only from those referred to in section 15 of the ECT Act. Any hearsay evidence in data messages must meet the criteria in section 3 of the LEAA.

Question 18

What must be given due evidential weight according to Section 15(2) of the ECT Act?

Answer 18

A data message.

Question 19

What factors must the court consider in assessing the evidential weight of a data message under Section 15(3) ECT Act?

Answer 19

• The reliability of the manner in which the data message was generated, stored, or communicated.
• The reliability of the manner in which the** integrity of the data message was maintained**.
• The manner in which its originator was identified.
• Any other relevant factor.

Question 20

What does Section 14 of the ECT Act state about the evidentiary weight of electronic evidence?

Answer 20

A: The evidentiary weight can be challenged if the evidence has not remained complete and unaltered from when it was first generated in its final form.

Question 21

What concerns does Section 15(3)(a) of the ECT Act address?

Answer 21

A: It addresses concerns regarding the reliability of the system or process that generated, stored, or communicated the electronic evidence.

Question 22

What can be disputed under Section 15(3)(b) of the ECT Act?

Answer 22

A: The identity of the author or originator of the electronic evidence

Question 23

What does Section 15(4) of the ECT Act state about business records?

Answer 23

A: A data message made in the ordinary course of business, or a copy/printout certified to be correct by an officer, is admissible in evidence and provides rebuttable proof of the facts contained.

Question 24

What did Ndlovu v Minister of Correctional Services and Another clarify about electronic evidence?

Answer 24

A: Section 15(4) provides for the admissibility of data messages made in the ordinary course of business or certified copies thereof.

Question 25

What are the general requirements for data messages to be considered real evidence?

Answer 25

A: They must comply with the requirements for documentary evidence, except the third requirement if Section 15(1)(b) applies:

• Statements must be relevant and admissible.
• Authenticity must be proven.
• Normally, the original document must be produced.

Question 26

What does Section 15(1)(b) of the ECT Act exempt?

Answer 26

A: It exempts the requirement to produce the original document if it is the best evidence that could reasonably be obtained.

Question 27

What did Ex Parte Rosch state about printouts?

Answer 27

A: Printouts are real evidence as they are created automatically without human input, thus preventing dishonesty or human error.

Question 28

What is the significance of Ndiki in relation to electronic evidence?

Answer 28

It stated that evidence depending solely on the reliability and accuracy of the computer system or programs constitutes real evidence.

Question 30

What distinction does S v Kidson make regarding the admissibility of recorded conversations?

Answer 30

A: The distinction between 3rd party monitoring (by those not part of the conversation) and participant monitoring (by a party to the conversation).

Question 31

What was the court ruling in S v Kidson regarding participant monitoring?

Answer 31

A: Secret recordings of conversations constituting participant monitoring are admissible evidence in court proceedings.

Question 32

What does Section 4(1) of RICA state about intercepting communications?

Answer 32

A: Any person, other than a law enforcement officer, may intercept any communication if they are a party to it, unless done for committing an offence. Parties may record communication with or without consent, provided it is not intended for an offence.

Question 33

Who is considered a ‘party to the communication’ under Section 1 of RICA?

Answer 33

A: A person who might be listening, but not actively participating in the communication.

Question 34

What is judicial notice?

Answer 34

A: The law of evidence allowing judicial officers to accept the truth of certain facts known to them even if no evidence was led to prove those facts.

Question 35

What is the rationale behind judicial notice?

Answer 35

A: It expedites the trial, saves time and costs, and promotes uniformity in decision making.

Question 36

What happens when judicial notice is taken?

Answer 36

A: A precedent is established, and evidence is not admissible to rebut a judicially noticed fact. The court informs parties of its intention to take judicial notice of certain facts.

Question 37

What is the Rule of Convenience in judicial notice?

Answer 37

A: Judicial notice must be taken of South African law, and parties may not lead evidence to clarify the nature or ambit of a South African legal rule, but they can do so by way of argument.

Question 38

What does Section 232 of the Constitution state about Customary International Law?

Answer 38

A: Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

Question 39

What does Dugard on International Law state about international law in courts?

Answer 39

A: International law is not foreign law, so courts may take judicial notice of it as if it were part of common law, provided it meets the requirements of urus and opinion juris.

Question 40

What does Section 1 of the LEAA say about judicial notice?

Answer 40

A: Judicial notice may be taken of both indigenous and foreign law, but caution is needed with indigenous law as it is not written down and can change over time.

Question 41

What did Gallo Africa Ltd establish about foreign law in courts?

Answer 41

A: The court can take judicial notice of foreign law if it is ascertainable with sufficient certainty. If not, it must be proved by expert evidence, and it’s presumed that there is no difference between South African law and foreign law unless proven otherwise.

Question 42

What does the Plascon Evans Rule authorize?

Answer 42

A: It authorizes the court to make a final order in application proceedings without hearing oral evidence if the facts in the respondent’s affidavit, together with the admitted facts in the applicant’s affidavits, justify the order. It does not apply to interlocutory matters.

Question 43

What are the exceptions to the Plascon Evans Rule?

Answer 43

A: When allegations or denials are far-fetched or clearly untenable.

Question 44

What is the distinction between judicial notice and reception of evidence?

Answer 44

A: The distinction lies in the effect of the enquiry. Evidence led by a witness to assist the court in forming their view is not an example of reception of evidence.

Question 45

What must presiding officers take judicial notice of according to the general rule?

Answer 45

A: They must take judicial notice of certain laws and matters noticed by well-established practices or precedents of the courts.

Question 46

What types of facts are judicially noticed?

Answer 46

A: Facts well known to all reasonable persons (general knowledge) or to a reasonable court in a specific jurisdiction (facts of local notoriety).

Question 47

What did Grootkraal Community v Botha establish about judicial notice?

Answer 47

A: The court may take judicial notice of material when it is readily available and reliable, and facts which are not general knowledge but are readily ascertainable from sources of indisputable authority may be judicially noticed.