Unit 7 part 2

Question 1

The two basic rules for Admissibility Requirements for document

Answer 1

➢ The original document must be produced.
➢ The document must be authenticated.

Question 2

Case law on the original document

Answer 2

➢ Weltz case
▪ Points out that this rule is ancient and that it doesn’t
make sense for it to still be part of the law.
▪ The original document is also the best evidence when
content of the document is directly in issue.
▪ A consequence of the original document requirement
is that secondary evidence may not be used to prove
the contents of a document

Question 3

Exception to Weltz case

Answer 3

If secondary evidence is the only
means of proving the document, it may be
admitted. It must meet one of these requirements:
(1) Document is lost or destroyed
(2) The document is in the possession of the
opposing party
(3) The document is in possession of a 3rd party
(4) It is impossible or inconvenient to produce
the original
(5) It is permitted by statute

Question 4

Putter case

Answer 4

▪ A thumb print will suffice as a signature.

Question 5

De Sousa on the proof of a private document

Answer 5

The document must be identified by a witness who
is either:
* (i) the writer or signatory thereof; or
* (ii) The attesting witness; or
* (iii) The person in whose lawful custody the
document is; or
* (iv) The person who** found it in possession of the
opposite party**; or
* A handwriting expert unless the document is one
which proves itself, that is to say unless it:

Question 6

When will a doc be one which proves itself?

Answer 6

(1) Is produced under a discovery order; or
(2) May be judicially noticed by the court; or
(3) Is one which may handed in from the Bar; or
(4) Is produced under subpoena duces tecum;
or
(5) Is an affidavit in interlocutory proceedings; or
(6) Is admitted by the opposite party.

Question 7

➢ Section 37 CPEA

Answer 7

▪ It is rebuttably presumed that a document is duly
executed if it is older than 20 years.

Question 8

What are preumptions

Answer 8

Presumptions are aids to reasoning and argumentation,
which assume the truth of certain matters for the purpose
of some given enquiry

Question 9

distinguish presumptions with basic
facts and those without.

Answer 9

❖ Presumptions without Basic Facts
➢ A presumption without a basic fact is simply a conclusion which is drawn until the contrary is proven.

❖ Presumptions with Basic Facts
➢ A presumption with a basic fact entails a conclusion to be drawn upon proof of the basic fact.

Question 10

Example of Presumption of Innocence

Answer 10

❖ Legal rhetoric is based on the argument from ignorance, which means to reach legal conclusions in the absence of sufficient vidence.
❖ For example, an accused is presumed innocent until the contrary (his guilt) can be proven beyond a considerable doubt.

Question 11

Presumption of law
❖ Irrebuttable Presumptions

Answer 11

➢ These presumptions furnish conclusive proof of the fact presumed and cannot be rebutted by evidence to the
contrary.

Question 12

❖ Rebuttable Presumptions

Answer 12

➢ These presumptions compel the provisional assumption of a fact.
➢ The assumption will stand until negated by contrary
evidence

Question 13

➢ Rex v Fourie

Answer 13

▪ The presumption must be accepted as proof of the fact
presumed, until rebutted.

Question 14

Presumption of fact

Answer 14

A presumption of fact is essentially a logical conclusion or inference that a court can draw based on the evidence presented.

It is not a certainty but rather an assessment of what is likely true given the circumstances.

The court has the discretion to decide whether or not to adopt the presumption.

If the inference suggested by the presumption does not hold up logically under the given evidence, the court is not compelled to accept it.

Question 15

Arthur case

Answer 15

▪ The distinction between presumptions of law and
presumptions of fact is in truth the difference between
things that are in reality presumptions and things that
are not presumptions at all.

There is in truth but one kind of presumption, and the
term ‘presumptions of fact’ should be disregarded as
useless and confusing.

Question 16

Section 42 CPEA – Oral Evidence (NB)

Answer 16

➢ Evidence in criminal and civil cases must be given:
▪ Orally
▪ By the witness
▪ In the presence of the parties
▪ In court and
▪ From memory
➢ The Demeanor of the witness at trial is relevant to the
credibility of the witness.

Question 17

Exception to s42 of CPEA

Answer 17

➢ Intermediary, video conferencing facilities, on commission and by way of interrogatories.

Question 18

❖ Why is this the rule?

Answer 18

• Parties should have the opportunity to cross-examine the witness
• and challenge the truth and accuracy or not of the Witness testimony
• by putting the opposing party’s version to the witness and affording the witness the opportunity to
• respond thereto in the presence of the parties, in court,
• and from memory

Question 19

The limits of cross examination

Answer 19

❖ Curial Courtesy
➢ Unnecessary rudeness will not be tolerated.
This rudeness extends to vexatious, abusive, oppressive or discourteous questions, which may be disallowed so as to not harass
➢ Court will still allow a cross examiner to cut a rude witness down to size.

Question 20

S v Omar

Answer 20

The court has an obligation to guarantee a fair trial.

The court must intervene to stop any rudeness or improper conduct, even if the witness’s counsel does not object.

Prosecutor’s Conduct:

In this case, the prosecutor’s behavior during cross-examination was considered inappropriate. The prosecutor was described as hectoring (aggressively bullying), rude, and unreasonable.

Even though the accused’s counsel did not object to this behavior, the presiding officer (judge) still had a responsibility to ensure that the accused received a fair trial.

The presiding officer must also require all parties in court to behave properly and maintain decorum.

Question 21

❖ Misleading statements put by cross examiner (case)

Answer 21

➢ S v Kubeka
▪ It is permissible to test a witness’s version of events.
▪ However, this does not extend to purposefully
misleading the witness.

Question 22

❖ Inadmissible evidence (NB)

Answer 22

➢ Inadmissible evidence cannot be put to nor elicited from a
witness.
➢ Cannot be cross examined on an inadmissible confession
or privileged statement.

Question 23

s197 GR

Answer 23

An accused who testifies in their own trial cannot be asked about past convictions or charges unrelated to the current case.

Question 24

S197 Exceptions

Answer 24

Good Character:
* If the accused’s legal representative questions a witness to establish the accused’s good character.
* If the accused testifies about their own good character.
* If the defense strategy involves questioning the character of the complainant or any other prosecution witness.

Same Offence or Same Facts:
* If the accused gives evidence against another person charged with the same offence or a related offence.

Receiving Stolen Property:
If the charge involves receiving stolen property, the accused may be questioned about prior convictions and character.

Admissible Evidence:
If evidence of other offences is relevant to proving the accused’s guilt in the current case.

Question 25

Understanding good character

Answer 25

Evidence of Good Character:
* When the accused makes a point to mention their good character separately from the facts of the case, they aim for it to be considered favorably. This is done specifically to influence how they are viewed in court.

Canvassing of Relevant Facts:
* Simply presenting relevant facts during testimony does not count as giving evidence of good character, even if those facts incidentally make the accused look good. The focus must be on how those facts pertain directly to the case, not on the character of the accused.

Question 26

Stirland Key points

Answer 26

When an accused brings their character into question, their entire character, including their past record, becomes subject to cross-examination.

This means that if the accused claims to have good conduct, they open themselves up to scrutiny of their entire past, which could counter any claims of good character.

The accused cannot claim to be of good character in some respects without allowing the court to examine their entire past record. This ensures the integrity and thoroughness of the character assessment.

Question 27

Stirland on the Nature and Conduct of Defence:

Answer 27

The nature and conduct of the defence can be revealed through:

• The accused’s testimony
• The legal representative’s statements
• If the accused is unrepresented, through their own actions and statements

Question 28

Exceptions to the Rule:

Answer 28

If the prosecution leads the accused into making claims about their good character, it does not automatically mean the accused’s character is in issue. The court must carefully consider how these assertions were brought up.

Question 29

What is the general rule of Section 211 CPA regarding cross-examination?

Answer 29

Evidence of previous convictions is not admissible in criminal proceedings except where specifically allowed by the Act or where the fact of a previous conviction is an element of the offence charged.

Question 30

Is an accused allowed to be questioned about past convictions during a trial under Section 211 CPA?

Answer 30

No, an accused cannot be questioned about past convictions or charges unrelated to the current case

Question 31

Can an accused testify about their own previous convictions?

Answer 31

Yes, the accused can testify about their own previous convictions if it is relevant to their defense, such as establishing an alibi.

Question 32

What is the risk for the accused if they testify about their own previous convictions?

Answer 32

They risk having their character scrutinized and challenged by the prosecution during cross-examination, provided that the details are relevant to the case.

Question 33

Are previous convictions considered during sentencing?

Answer 33

Yes, previous convictions can be considered when determining the sentence if the accused is found guilty.

Question 34

What does Section 214(a) CPA state about evidence recorded at a preparatory examination?

Answer 34

It shall be admitted at trial if it is proved that a witness is:

• Dead
• Incapable of giving evidence
• Too ill to attend the trial
• Kept away from the trial by the Accused
• Recorded by a Magistrate or Regional Court Magistrate

Question 35

Under Section 214(b) CPA, when can the court admit evidence from preparatory examination?

Answer 35

The court can admit it if the witness cannot be found after a diligent search or cannot be compelled to attend trial, provided it was properly recorded and there was an opportunity to cross-examine the absent witness.

Question 36

What does Section 215 CPA provide regarding evidence given at a former trial?

Answer 36

It may be admitted in evidence at a trial if it meets the Section 214 requirements. The original record of the judicial proceedings can be proved by a certified copy as prima facie proof.

Question 37

What are the key points from Minister of Police v M regarding the admissibility of hearsay evidence from a former proceeding?

Answer 37

• The hearsay evidence must be reliable, accurate, and complete.
• It must be tendered on the same factual dispute.
• It should be bilateral and related to the allegations.
• It must demonstrate internal consistency and some corroboration.
• The allegations should have been adequately tested in cross-examination.
• The hearsay evidence must have been generated in procedurally fair and proper circumstances.

Question 38

How can a witness be cross-examined to impeach their credibility?

Answer 38

A witness may be cross-examined regarding their memory, reliability, perception, honesty, accuracy, and consistency in relating their story.

Question 39

What must be accepted as final to prevent endless collateral issues?

Answer 39

An answer to a question solely concerning the credibility of a witness must be accepted as final.

Question 39

What did Heystek v Alge and Paiken hold about a witness’s rejected testimony?

Answer 39

A witness can be asked if their testimony was rejected in previous proceedings, but if they deny it, the answer must be taken as final.

Question 40

What does Section 8 of the Criminal Procedure Amendment Act add?

Answer 40

A: It added section 166(3) to the CPA, addressing unreasonable delays in cross-examination.

Question 41

What does Section 166(3) of the CPA provide regarding protracted cross-examination?

Answer 41

It allows the court to request relevancy disclosure and impose reasonable limits on the length of examination if it appears to be unreasonably prolonged.

Question 42

How can the court safeguard the line of questioning under Section 166(3)(b) of the CPA?

Answer 42

The court may order submissions regarding the relevancy of cross-examination to be heard in the absence of the witness.

Question 43

How can the use of an interpreter or intermediary hinder cross-examination?

Answer 43

A: It can allow extra time to think of an answer, interrupt the flow, and deprive the cross-examiner of hearing nuances lost in translation.

Question 44

What did S v F hold regarding a child’s testimony in court?

Answer 44

The court would not permit a child to testify separately, emphasizing the necessity of cross-examination by the accused.

Question 45

What does Section 63(4)(b) of the Child Justice Act ensure?

Answer 45

It upholds the best interests of the child, ensuring fairness and preventing undue hostility, while providing requisite protection for a minor accused.

Question 46

What does Section 61(1)(c) of the Children’s Act require from the presiding officer?

Answer 46

The presiding officer must intervene if it is in the best interests of the child.

Question 47

What do Sections 52(2) and 52(1) of the Children’s Act call for?

Answer 47

The development of rules regarding appropriate questioning techniques for children

Question 48

What is the legal burden in terms of rebuttal presumptions?

Answer 48

A: The legal burden requires that unless the contrary is proven, on a balance of probabilities, the presumption will stand.

Question 49

What is the evidentiary burden?

Answer 49

An evidentiary burden is created when evidence of a fact constitutes prima facie proof of the crime charged, and in the absence of evidence to the contrary, it will stand.

Question 50

What does Section 78(1) of the CPA state regarding criminal responsibility?

Answer 50

An accused is criminally non-responsible if, at the time of the alleged offence, they were unable to appreciate the wrongfulness of their act or to act in accordance with such appreciation due to mental illness or intellectual disability.

Question 51

What does Section 78(1A) of the CPA presume about accused persons?

Answer 51

Every accused person is presumed not to suffer from a mental illness or intellectual disability, making them criminally responsible under Section 78(1), until proven otherwise on a balance of probabilities

Question 52

According to Section 78(1B) of the CPA, who bears the burden of proof regarding the criminal responsibility of the accused?

Answer 52

The burden of proof regarding the criminal responsibility of the accused lies with the party who raises the issue

Question 53

What is the general principle of the Presumption of Regularity?

Answer 53

All things are presumed to be done correctly.

Question 54

What did Cape Coast Exploration Ltd state about official duties?

Answer 54

We must presume that an official will carry out the ordinary routine work of their office, as this is usually the case.

Question 55

What did the court hold in Ladybrand Hotels (Pty) Ltd regarding the presumption of regularity?

Answer 55

The burden rests on the party disputing the validity of the affidavit to provide evidence proving non-compliance with prescribed formalities.

Question 56

What does Section 36(2) of the Supreme Court Act state about the Sheriff’s return?

Answer 56

The Sheriff’s return shall be prima facie evidence of the matters stated therein, with regularity presumed but rebuttable by evidence.

Question 57

What does “res ipsa loquitur” mean?

Answer 57

It means “the matter speaks for itself.”

Question 58

When is the presumption of res ipsa loquitur typically applied?

Answer 58

It is applied when the cause of an action is unknown, linking it to a presumption of negligence if sustained by proven facts.

Question 59

What is cast on the defendant when an inference of negligence is drawn under res ipsa loquitur?

Answer 59

An evidential burden is cast on the defendant to show that the facts are consistent with an inference not involving negligence or to adduce evidence raising reasonable doubt.

Question 60

What rights does Section 35(3)(h) provide to detained, arrested, and accused persons?

Answer 60

The right to remain silent and not be compelled to testify or incriminate themselves.

Question 61

What burden does the presumption of innocence place on the Prosecution?

Answer 61

The burden to prove the guilt of an accused beyond reasonable doubt.

Question 62

What test must be met to justify infringing the presumption of innocence?

Answer 62

Any justification for infringing the presumption of
innocence would have to be clear, convincing and
compelling in support of discharging the burden of proof