Law of Evidence Exam Preparation
,Law of Evidence Notes
Week 1: Introduction
‘Law of evidence can be said to be comprised of those rules that govern the proof of facts in
a court of law. It determines what facts can be admitted to evidence in order to prove the fact
in issue’
Functions: (RMWWS)
- The main function is to determine what facts are receivable to prove the facts in issue.
- Manner the evidence can be adduced
- What evidence can be withheld
- What rules should be taken into account to determine the weight of evidence
- What std of proof should be satisfied in order for the bod of proof to be successful
History and development:
1. The religious primitive stage: Trial by ordeal (appeal to God) or a trial by battle – man
should not sit a judgment upon another
2. Formal stage: oath was the primary mode of proof (largest number of computors won)
3. The rational stage: Computors were now employed to form a jury and required to employ
reasoning powers in the fact finding process. The jurors determined the facts, and the
judges determined the law – objectivity/accountability
Result: SA abolished system of trial by jury, but retained the evidentiary system of
law – lay assessors which can be compared to jurors (e.g. exclusionary rules and ev
rules). SA has adopted an Anglo-American system (strict) of evidence as opposed to
a Continental (free). The former relates to trials before a lay jury – professional judge
adjudicating without assistance. Adversarial/strict system v Inquisitorial/free
principle.
Adversarial system – judges play a passive role, parties in principle are responsible
for the presentation of evidence, emphasis on oral presentation and cross
examination
Inquisitorial: essentially an enquiry to establish the material truth – with use of
evidence as deemed fit
Note: SA small claims courts function along inquisitorial lines (no litigation, no cross
examination, no compliance with rules of evidence (court for the benefit of the public
– speedy and cost efficient)
Basic Concepts and distinctions
1. Facta probanda v Facta Facts in issue – (facta
Probantia probanda) facts which a party
must prove in order to win her
case – facts which must be
proven in order to succeed.
Substantive law
, Facts relevant to the facts in
issue (facta probantia) – tend to
prove or disprove the facts in
issue. Law of evidence
2. Evidence and Probative Material Probative material is not proved
by the leading of evidence –
refers to more than
documentary, oral or real
evidence e.g. something which
the court has taken judicial
notice of; formal admissions,
presumptions
3. Evidence and Proof Proof of fact means that a court
has received probative material
and has accepted such fact as
being the truth – evidence does
not constitute proof until the
courts accepts it as true
Conclusive proof cannot be
rebutted.
Prima facie proof implies that
proof of the contrary is still
possible – in the absence of, it
will be accepted as proof
4. Admissibility/weight - In determining admissibility the
direct/circumstantial court determines whether the
evidence will be heard at all – no
degrees of admissibility
Once evidence is admitted the
court will determine how much
weight to give it – at the end of
the trial
- Conditional admissibility –
admission on the basis that some
defect is corrected during the
course of the trial
- The distinction between direct and
circumstantial evidence is
determined by the degree of
inferential reasoning required –
circumstantial evidence requires
the court to draw inferences
because witnesses have made no
direct assertions with regards to the
fact in issue
Sources of the law of Evidence…
1. Constitution
2. Statute:
Criminal Procedure Act 51 of 1977
, Civil Proceedings Evidence Act 25 of 1965
Law of Evidence Amendment Act 45 of 1988
3. Common law: 30 May 1961
Our rules of law of evidence can be found in local statutes, and where these are silent on a
particular issue, English law of evidence which was in force from the 30th of May 1961 serves
as our common law. Case law, if decided in accordance with the English law principles are
binding. English/ Anglo-American jurisdictions cases may be invoked for persuasive value.
Date significance? Two accepted instances where courts have moved away from the
binding effect on the 30 th of May 1961 1) If the English decision does not correctly apply the
English law 2) Where the English evidentiary burden is incompatible with SA rule of practice
(Van Der Linde v Calitz) 3) Inconsistency with constitutional provisions
The Law of Evidence and Substantive Law
- Substantive law provides for rights and duties, whereas adjectival law provides for
procedural mechanisms in whereby those rights and duties are enforced (AL also
provides for rights and duties – cross examination
Burden of Proof:
Tregea v Goddart: substantive law lays down what must be proved and by whom, rules of
evidence relate to the manner of its proof. BOP and rebuttable presumptions fall under
substantive law. The court upheld RD law (substantive) and the burden of proof was on the
plaintiffs – the will presumed to be valid.
Standard and Burden of Proof and the evidential duties
Burden of Proof
- BOP refers to the obligation of a party to persuade the trier of facts by the end of the
case of the truth of certain propositions. Determines who carries the risk of uncertainty
I.e. who carries the burden of persuasion. It does not shift between the parties. Risk of
non-persuasion. Onus of proof (pillay v Krishna)
- Evidentiary Burden refers to one of the party’s duty to provide sufficient evidence for a
judge to call on the other party to answer/ combat a prima facie case. Shifts between
parties.
In a tandem with the BOP, the prosecution must discharge the evidentiary burden. One he
has established a prima facie case, the evidential burden will shift to the accused to adduce
evidence in order to escape conviction
- Ambit: Every element in order to prove criminal liability, cases of statutory exceptions if
qualified under the limitations clause, Criminal incapacity on account of a mental defect
78(1) of the CPA which states that every acc is presumed not to suffer unless proved on
a balance of probabilities (evidentiary
burden – constitutionally acceptable), s77 of the CPA relates to incapacity to stand trial
and the burden rests on the state to prove that the accused is capable of understanding
proceedings.
,Law of Evidence Notes
Week 1: Introduction
‘Law of evidence can be said to be comprised of those rules that govern the proof of facts in
a court of law. It determines what facts can be admitted to evidence in order to prove the fact
in issue’
Functions: (RMWWS)
- The main function is to determine what facts are receivable to prove the facts in issue.
- Manner the evidence can be adduced
- What evidence can be withheld
- What rules should be taken into account to determine the weight of evidence
- What std of proof should be satisfied in order for the bod of proof to be successful
History and development:
1. The religious primitive stage: Trial by ordeal (appeal to God) or a trial by battle – man
should not sit a judgment upon another
2. Formal stage: oath was the primary mode of proof (largest number of computors won)
3. The rational stage: Computors were now employed to form a jury and required to employ
reasoning powers in the fact finding process. The jurors determined the facts, and the
judges determined the law – objectivity/accountability
Result: SA abolished system of trial by jury, but retained the evidentiary system of
law – lay assessors which can be compared to jurors (e.g. exclusionary rules and ev
rules). SA has adopted an Anglo-American system (strict) of evidence as opposed to
a Continental (free). The former relates to trials before a lay jury – professional judge
adjudicating without assistance. Adversarial/strict system v Inquisitorial/free
principle.
Adversarial system – judges play a passive role, parties in principle are responsible
for the presentation of evidence, emphasis on oral presentation and cross
examination
Inquisitorial: essentially an enquiry to establish the material truth – with use of
evidence as deemed fit
Note: SA small claims courts function along inquisitorial lines (no litigation, no cross
examination, no compliance with rules of evidence (court for the benefit of the public
– speedy and cost efficient)
Basic Concepts and distinctions
1. Facta probanda v Facta Facts in issue – (facta
Probantia probanda) facts which a party
must prove in order to win her
case – facts which must be
proven in order to succeed.
Substantive law
, Facts relevant to the facts in
issue (facta probantia) – tend to
prove or disprove the facts in
issue. Law of evidence
2. Evidence and Probative Material Probative material is not proved
by the leading of evidence –
refers to more than
documentary, oral or real
evidence e.g. something which
the court has taken judicial
notice of; formal admissions,
presumptions
3. Evidence and Proof Proof of fact means that a court
has received probative material
and has accepted such fact as
being the truth – evidence does
not constitute proof until the
courts accepts it as true
Conclusive proof cannot be
rebutted.
Prima facie proof implies that
proof of the contrary is still
possible – in the absence of, it
will be accepted as proof
4. Admissibility/weight - In determining admissibility the
direct/circumstantial court determines whether the
evidence will be heard at all – no
degrees of admissibility
Once evidence is admitted the
court will determine how much
weight to give it – at the end of
the trial
- Conditional admissibility –
admission on the basis that some
defect is corrected during the
course of the trial
- The distinction between direct and
circumstantial evidence is
determined by the degree of
inferential reasoning required –
circumstantial evidence requires
the court to draw inferences
because witnesses have made no
direct assertions with regards to the
fact in issue
Sources of the law of Evidence…
1. Constitution
2. Statute:
Criminal Procedure Act 51 of 1977
, Civil Proceedings Evidence Act 25 of 1965
Law of Evidence Amendment Act 45 of 1988
3. Common law: 30 May 1961
Our rules of law of evidence can be found in local statutes, and where these are silent on a
particular issue, English law of evidence which was in force from the 30th of May 1961 serves
as our common law. Case law, if decided in accordance with the English law principles are
binding. English/ Anglo-American jurisdictions cases may be invoked for persuasive value.
Date significance? Two accepted instances where courts have moved away from the
binding effect on the 30 th of May 1961 1) If the English decision does not correctly apply the
English law 2) Where the English evidentiary burden is incompatible with SA rule of practice
(Van Der Linde v Calitz) 3) Inconsistency with constitutional provisions
The Law of Evidence and Substantive Law
- Substantive law provides for rights and duties, whereas adjectival law provides for
procedural mechanisms in whereby those rights and duties are enforced (AL also
provides for rights and duties – cross examination
Burden of Proof:
Tregea v Goddart: substantive law lays down what must be proved and by whom, rules of
evidence relate to the manner of its proof. BOP and rebuttable presumptions fall under
substantive law. The court upheld RD law (substantive) and the burden of proof was on the
plaintiffs – the will presumed to be valid.
Standard and Burden of Proof and the evidential duties
Burden of Proof
- BOP refers to the obligation of a party to persuade the trier of facts by the end of the
case of the truth of certain propositions. Determines who carries the risk of uncertainty
I.e. who carries the burden of persuasion. It does not shift between the parties. Risk of
non-persuasion. Onus of proof (pillay v Krishna)
- Evidentiary Burden refers to one of the party’s duty to provide sufficient evidence for a
judge to call on the other party to answer/ combat a prima facie case. Shifts between
parties.
In a tandem with the BOP, the prosecution must discharge the evidentiary burden. One he
has established a prima facie case, the evidential burden will shift to the accused to adduce
evidence in order to escape conviction
- Ambit: Every element in order to prove criminal liability, cases of statutory exceptions if
qualified under the limitations clause, Criminal incapacity on account of a mental defect
78(1) of the CPA which states that every acc is presumed not to suffer unless proved on
a balance of probabilities (evidentiary
burden – constitutionally acceptable), s77 of the CPA relates to incapacity to stand trial
and the burden rests on the state to prove that the accused is capable of understanding
proceedings.
