LAW OF EVIDENCE
REVISION STUDY PACK
For other modules revision study pack -0784683517
Joseph
0784683517
,1
N.B ANSWERING PROBLEM TYPE QUESTIONS
Identify and state the central issue of a particular
question. This should be done with reference to the facts
of the question and a definition. Always consider that
more than one issue could be involved.
Always give a definition of the particular concept or
type of evidence you have identified.
State the general rule regarding admissibility or the
type of evidence and mention all the exceptions.
Discuss the relevant exception or give a general
discussion of the law applicable to the specific issue
involved. The marks set at a specific question will be the
best indication of the amount of information you should
give. Never forget to discuss cases and legislation.
Give a motivated conclusion with reference to the
facts of the question.
The expert in anything was once a beginner
,2
STUDY UNIT 2
Does the word “evidence” only refer to oral evidence? Fully explain.
No, in the sense that evidence concerns oral statements made in court under oath or affirmation or
warning (oral evidence) and documents (documentary evidence) and objects (real evidence)
produced and received in court
Is evidence the only form of evidentiary material? Fully explain with reference to authority.
No, Schwikkard points out that the other forms of evidentiary material are admissions, formal
admissions, judicial notice and presumptions.
1) Admissions — S v Mjoli 1981 (3) SA 1223 (A)
(2) Formal admissions — S v Mokgoledi 1966 (4) SA 335 (A)
(3) Judicial notice
(4) Presumptions — S v AR Wholesalers 1975 (1) SA 551 (NC)
Briefly explain the relationship between “proof” and the law of evidence. (5)
The law of evidence may be defined as that field of law which generally regulates the proof of facts
in court. Proof therefore is central to the entire field of the law of evidence.
Proof : having sufficient grounds for a finding on a point in issue. Proof of a fact means that the court
has received probative material with regard to such fact and has accepted such fact as being the
truth for purposes of the specific case
Evidence : probative (evidentiary) material (oral, documentary or real evidence) which is produced
in court. Evidence of a fact is not yet proof of such fact: the court must still decide whether or not
such fact has been proved.
Evidential material : material which goes to furnish proof
Briefly explain, with reference to the two main branches of the law, how the law of evidence fits
into the general structure of the law.
Or
Explain the difference between substantive law and adjective law and give an example of each.
Into which category does the law of evidence fall? (5)
Substantive law covers one’s rights and obligations. It tells what one may or may not do. Criminal
law is an example of substantive law. Conversely, adjective law (sometimes known as procedural
law) prescribes the general procedure to be followed in court and legal transactions. Criminal
procedure is an example of adjective law. Therefore, the law of evidence is part of adjective law.
The expert in anything was once a beginner
, 3
STUDY UNIT 3
Explain what is meant by a “residuary clause” in South African law. (3)
A residuary clause determines that foreign law has to be followed on topics for which no express
local statutory provision had been made (Indirect incorporation). These are those sections in South
African statutes which incorporate foreign law into South African law and thereby preserve that part
of foreign law.
Mention the principal provisions of the Constitution of the Republic of South Africa, 1996, that
affect the law of evidence.
Section 35(1) of the Constitution provides that every arrested person shall have the right
(1) to be informed, in an understandable language, that he or she has the right to remain silent, and
about the consequences of making a statement (sec 35(1)(a) and (b))
(2) not to be compelled to make a confession or admission which could be used in evidence against
him or her (sec 35(1)(c))
Section 35(2) provides for the rights of a detained person including the right
(s 35(2)(a)) - to be informed promptly of the reason for being detained
F(s 35 (2)(b)) - to choose, and to consult with a legal practitioner, and to be informed of this right
promptly (s35(2)(c)) - to have a legal practitioner assigned to the detained person by the state and at
state expense if substantial injustice would otherwise result, and to be informed of this right
promptly
Section 35(3) provides that every accused person shall have the right to a fair trial, which includes
the right
(1) to be informed of the charge with sufficient details to answer it (sec 35(3)(a))
(2) to be presumed innocent, to remain silent during the plea proceedings as well as during the trial,
and not to testify during the trial (sec 35(3)(h)) and (3) to adduce and challenge evidence and not to
be a compellable witness against himself or herself (sec 35(3)(I) and (j))
Section 35(5) provides that evidence obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would render the trial unfair or would otherwise
be detrimental to the administration of justice.
The expert in anything was once a beginner
REVISION STUDY PACK
For other modules revision study pack -0784683517
Joseph
0784683517
,1
N.B ANSWERING PROBLEM TYPE QUESTIONS
Identify and state the central issue of a particular
question. This should be done with reference to the facts
of the question and a definition. Always consider that
more than one issue could be involved.
Always give a definition of the particular concept or
type of evidence you have identified.
State the general rule regarding admissibility or the
type of evidence and mention all the exceptions.
Discuss the relevant exception or give a general
discussion of the law applicable to the specific issue
involved. The marks set at a specific question will be the
best indication of the amount of information you should
give. Never forget to discuss cases and legislation.
Give a motivated conclusion with reference to the
facts of the question.
The expert in anything was once a beginner
,2
STUDY UNIT 2
Does the word “evidence” only refer to oral evidence? Fully explain.
No, in the sense that evidence concerns oral statements made in court under oath or affirmation or
warning (oral evidence) and documents (documentary evidence) and objects (real evidence)
produced and received in court
Is evidence the only form of evidentiary material? Fully explain with reference to authority.
No, Schwikkard points out that the other forms of evidentiary material are admissions, formal
admissions, judicial notice and presumptions.
1) Admissions — S v Mjoli 1981 (3) SA 1223 (A)
(2) Formal admissions — S v Mokgoledi 1966 (4) SA 335 (A)
(3) Judicial notice
(4) Presumptions — S v AR Wholesalers 1975 (1) SA 551 (NC)
Briefly explain the relationship between “proof” and the law of evidence. (5)
The law of evidence may be defined as that field of law which generally regulates the proof of facts
in court. Proof therefore is central to the entire field of the law of evidence.
Proof : having sufficient grounds for a finding on a point in issue. Proof of a fact means that the court
has received probative material with regard to such fact and has accepted such fact as being the
truth for purposes of the specific case
Evidence : probative (evidentiary) material (oral, documentary or real evidence) which is produced
in court. Evidence of a fact is not yet proof of such fact: the court must still decide whether or not
such fact has been proved.
Evidential material : material which goes to furnish proof
Briefly explain, with reference to the two main branches of the law, how the law of evidence fits
into the general structure of the law.
Or
Explain the difference between substantive law and adjective law and give an example of each.
Into which category does the law of evidence fall? (5)
Substantive law covers one’s rights and obligations. It tells what one may or may not do. Criminal
law is an example of substantive law. Conversely, adjective law (sometimes known as procedural
law) prescribes the general procedure to be followed in court and legal transactions. Criminal
procedure is an example of adjective law. Therefore, the law of evidence is part of adjective law.
The expert in anything was once a beginner
, 3
STUDY UNIT 3
Explain what is meant by a “residuary clause” in South African law. (3)
A residuary clause determines that foreign law has to be followed on topics for which no express
local statutory provision had been made (Indirect incorporation). These are those sections in South
African statutes which incorporate foreign law into South African law and thereby preserve that part
of foreign law.
Mention the principal provisions of the Constitution of the Republic of South Africa, 1996, that
affect the law of evidence.
Section 35(1) of the Constitution provides that every arrested person shall have the right
(1) to be informed, in an understandable language, that he or she has the right to remain silent, and
about the consequences of making a statement (sec 35(1)(a) and (b))
(2) not to be compelled to make a confession or admission which could be used in evidence against
him or her (sec 35(1)(c))
Section 35(2) provides for the rights of a detained person including the right
(s 35(2)(a)) - to be informed promptly of the reason for being detained
F(s 35 (2)(b)) - to choose, and to consult with a legal practitioner, and to be informed of this right
promptly (s35(2)(c)) - to have a legal practitioner assigned to the detained person by the state and at
state expense if substantial injustice would otherwise result, and to be informed of this right
promptly
Section 35(3) provides that every accused person shall have the right to a fair trial, which includes
the right
(1) to be informed of the charge with sufficient details to answer it (sec 35(3)(a))
(2) to be presumed innocent, to remain silent during the plea proceedings as well as during the trial,
and not to testify during the trial (sec 35(3)(h)) and (3) to adduce and challenge evidence and not to
be a compellable witness against himself or herself (sec 35(3)(I) and (j))
Section 35(5) provides that evidence obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would render the trial unfair or would otherwise
be detrimental to the administration of justice.
The expert in anything was once a beginner
