STUDY UNIT 20

Question 1

FACTA PROBANDA:

Answer 1

are the facts we have to prove to win our case, are considered to be essential elements of our case.

Question 2

FACTA PROBANTIA:

Answer 2

are the various pieces of information we have to present to the court in the form of evidence to prove the facta probanda.

Question 3

FORMAL TRUTH:

Answer 3

the court’s findings of what probably happened is referred to as FORMAL TRUTH.

Question 4

BURDEN OF PROOF:

Answer 4

the word “proof” in the term “burden of proof” relates to the concept of presenting evidence that the court can rely on.

Question 5

THE TERM “BURDEN OF PROOF” IS USED TO REFER TO TWO DISTINCT CONCEPTS:

Answer 5

1. the question of which party has to prove their case in order to win
2. the question: what standard of proof is required in a particular case?

Question 6

WHAT IS EVIDENTIARY BURDEN?

Answer 6

is the burden that rests on a party at any particular point of the trial to lead enough evidence to force the other side to respond

Question 7

IMPORTANT FEATURES OF THE EVIDENTIARY BURDEN:

Answer 7

1. it is a concept that is entirely procedural in nature
2. it is clear that the evidentiary burden can rest on either side in the trial
3. we often refer to the evidentiary burden in the context of establishing a prima facie case
4. who does the evidentiary burden rest on first and when does it shift?

Question 8

Apply for discharge?

Answer 8

if an accused feels like the State has not discharged its evidentiary burden, the accused can apply for a discharge in terms of s174 of the CPA

Question 9

S v Lubaxa TEST:

Answer 9

whether there is evidence on which a reasonable man might convict?