LAW OF EVIDENCE: AN INTRODUCTION

LECTURE 1

Schwikkard & Mosaka: Chapters 1 (Pages 1-10).

Chapter 2 (Pages 11-17).

Constitution: Section 39.

Judgements: Tregea v Godart 1939 AD 16 at 30.

Legislation: Law of Evidence Amendment Act 45 of 1988.

Abolition of the Juries Act 34 of 1969.

INTRODUCTION

1. Not only lawyers engage in the law of evidence. Members of the SAPS, private

investigators, experts and scientists, journalists, and arbitrators also need to

understand the Law of Evidence.

2. Law of Evidence are laws and rules governing:

a. How evidence is to be collected, stored and presented.

b. The admissibility of evidence.

c. Assessment/analysis (weight attached) and drawing inferences.

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 3. The Appellate Division (now the SCA) in Tregea1 says the Law of Evidence is:

‘A set of rules which has to do with judicial investigations into questions

of fact’.

4. The Law of Evidence prescribe:

a. Which facts may be presented to a court?

b. How to prove an issue.

c. Who may present a fact or prove an issue?

d. How this may be done.

5. Some evidence requires supporting evidence or corroboration, such as a

confession.

6. There is a difference between the question of law and fact (not always an easy

distinction):

a. Law is a body of principles and rules capable of being predicated in

advance. As a matter of law, it is a criminal offence to exceed the speed

limit.

b. Facts are descriptive statements that can be falsified. Adjudicative facts

relate to activities or characteristics of the litigants: Did the SAPS read

the Miranda rights to the accused?

1
Tregea v Godart 1939 AD 16 at 30.

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 c. This distinction is not always easy. Consider a delict where the fault is

one of the five elements for a delict. Cupla (a form of fault) is based on

the diligens paterfamilias (would the defendant reasonably foresee that

her conduct can cause patrimonial loss to the Plaintiff, and would she

take reasonable steps to guard against such an occurrence?

7. The law of evidence must always be seen against the founding principle that

the purpose of evidence is the pursuit of justice and fact-finding. As a result, the

law of evidence will consider the fairness and integrity of the fact-finding

process.

A DECOLONIAL PERSPECTIVE

8. The Law of Evidence as we know it today is known as the ‘child of the jury’.

9. The SA Law of Evidence was introduced by the British colonial government.

10. But rules governing the collection, storing and presenting of facts and the

evaluation thereof (including inferences to be drawn) are not unique to the

British-introduced rules but can be found in many disciplines and jurisdictions:

a. Xhosa customary law has exclusionary rules (testimony of brided

witnesses).

b. SA has blended state and traditional courts where principles of evidence

and proof find application.

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11. There are three fundamental features of coloniality in the SA Law of Evidence:

a. The Law of Evidence operates within the procedural milieu of an

adversarial-accusatorial justice system. Fact-finding is then party-

focused, and the judge is impartial and passive. Evidence is tested by

cross-examination.

b. There is a procedural bifurcation between the Law of Evidence and the

Law of Pleadings. Pleadings don’t have regard to the admissibility of

evidence and proof of facts.

c. The Law of Evidence is couched in rational persuasion (moving away

from trials by ordeals, battle and compurgation). The foremost purpose

is getting to the truth and doing so fairly. This manifests through the risk

of non-persuasion (on the dominus litis) and

12. A large part of South Africans litigates in the traditional courts and don’t follow

the adversarial nature of state courts.

13. The adversarial nature of litigation was designed to facilitate the jury, and in the

South African justice system, the jury system was abolished in 1969 (see the

Abolition of the Juries Act 34 of 1969).

14. To date, numerous changes have occurred to decolonise the Law of Evidence.

a. The Hearsay Evidence, per the Law of Evidence Amendment Act 45 of

1988, changed the strict English rules to a more flexible system that suits

SA better.

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 b. Court also interprets the Law of Evidence Rules considering S39(2) of

the Constitution required the courts to develop (amend) the common law

rules to be consistent with the Constitution.

c. The court doesn’t have to follow a precedent if it is not in line with the

boni mores or not aligned with the constitution.

15. Law of Evidence (along with civil and/or criminal procedure) is the backbone of

litigation. This Law of Evidence is the product of British Colonialism, which

emphasises tools such as the adversarial cross-examination and discovery

procedures in the fact-finding process as opposed to the more inquisitorial,

narrative-based, truth-seeking mechanisms of the traditional courts.

16. It is through this lens that we need to interrogate the procedural systems and

ask ourselves what it is that we wish to achieve (which values we promote) and

the need to reconsider the adjective law.

BASIC CONCEPTS

17. Facts In Issue & Facts Relevant to Facts In Issue

a. Facta probanda (facts in issue)- Essential criteria for a cause of action

to be sustained. It is the material facts that a litigant must prove to

establish a case.

b. Facta probantia (facts relevant to facta probanda): These are evidentiary

facts, subordinate and collateral to the facta probanda. If they are

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 relevant to the facta probanda can be inferred from the issues in dispute

between the parties.

18. Evidence v Argument:

a. Evidence is the advancement of facts. It includes oral testimony, real,

documentary and expert evidence etc.

b. Argument (on the facts): Put the various pieces of evidence in an

organized and intelligible order, apply it to the law to advance one’s case,

and explain/argue why the court should draw inferences which is suitable

to the case advanced by a party.

19. Conclusive v Prima Facie Proof:

a. Conclusive proof establishes adequate grounds that a fact may be

found: The court may make a factual finding. Proving a fact means that

the court is satisfied that the objective standard is met, as required by

law. It does not mean that the court is convinced of the truth of the

alleged fact.

b. No real epistemological implication, more of an institutional distinction.

c. Prima facie proof is proof on the face of it, or legislation may submit that

a document is prima facia proof of the content.

d. The evidence of the prima facie evidence must be considered proved

unless contrary evidence is forthcoming.

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 e. Prima facie proof is used in interlocutory applications such as an interim

interdict and a decision to charge an accused.

f. Conclusive proof is determined at the end, and there will be conclusive

proof if the stand of proof has been met.

g. Also considered in the absolution of the instance applications.

h. If prima facie evidence is not rebutted, a court may find that the evidence

becomes conclusive.

i. NOTE: The standard of Proof being met has nothing to do with the truth.

20. Admissibility v Weight

a. Evidence must first be admissible and admitted before a weight can be

attached to it. There may be exclusionary rules which prevent evidence

from being admitted.

b. Admissibility assessment of potential evidence is determined by a trial

within a trial and the assessment is often provision and of an

interlocutory nature.

c. The weight to be attached to the evidence (now admitted) is premised

on the contents of the evidence, its credibility and authenticity. The court

may also have regard to the burden of proof when considering the weight

to attach to evidence.

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21. Circumstantial and direct evidence

a. Direct evidence is evidence that requires no inference to be drawn by

the court. A saw a car driven by B knocking over a bicycle rider on a bike.

b. Indirect or circumstantial evidence requires of the court to make some

inferential reasoning. A saw a vehicle rushing from the scene, driven by

B. Next to the road there is dust busy settling. There are no other

vehicles in the vicinity. A bike is lying next to the road with a tyre

indentation on the bicycle wheel. The court can draw the inference that

the car that left the scene bumped the bicycle rider.

22. Hearsay

a. S3(4) of the Law of Evidence Amendment Act 45 of 1988 deals with

hearsay evidence.

b. Hearsay evidence is inadmissible unless it falls under one of the

exceptions to the general rule against hearsay evidence.

c. Hearsay evidence is where the probative value of the evidence depends

on a person other than the person giving the evidence.

d. X came out of the store and found her car damaged. X finds a note on

the car, left by Y, that Y saw how Z bumped into the car of X and fled the

scene of the accident. X testified to this in court, but the probative value

of the evidence depends on Y, not X, the person who actually saw the

accident.

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23. Relevance

a. If the evidence will make the facta probanda more or less likely, then it

is relevant. Irrelevant evidence is inadmissible.

24. Privilege

a. Privileged information is information that a party entitled to the privilege

need not testify about in court.

b. There is a distinction between state and private privilege.

25. Formal v Informal admissions

a. A formal admission is binding on the person making the admission. The

admission is made for the sole purpose of dispensing with the need to

present evidence to establish the facta probanda.

b. Usually made in formal court documents such as pleadings and pre trial

minutes.

c. Informal admissions don’t dispose of the question and may be explained

by the person making the informal admission.

26. Confessions

a. A comprehensive out-of-court [not before the Magistrate adjudicating the

criminal trial] informal admission (can be explained away) by an accused

person, admitting to all the elements of the crime. It is an unequivocal

acknowledgement of guilt.

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 b. If the confession were to be made in court, the court would accept a plea

of guilty.

27. Judicial Notice

a. The court accepts certain facts as proven without receiving evidence.

b. These are facts of general knowledge or local knowledge.

28. Presumptions

a. A provisional ex lege acceptance of a particular conclusion or state of

affairs, based usually on an epistemic fact or circumstances.

b. Presumptions can be rebuttable or irrebuttable.

c. This is more a rule of substantive law than of evidence.

d. A child under 7 is irrebuttable presumed to lack delictual accountability.

e. A child between 7 and puberty is rebuttable presumed to lack delictual

accountability.

End

21 February 2024

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