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LEV3701/1/2019–2022

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,CONTENTS

968 Page
INTRODUCTION viii

LEARNING UNIT 1: OVERVIEW 1
1.1 THE LAW OF EVIDENCE IS A WHOLE FIELD OF LAW 1
1.2 OVERVIEW OF THE LAW OF EVIDENCE 1
1.3 THE INEXACTNESS OF THE LAW OF EVIDENCE 3
1.4 THE IMPORTANCE OF THE LAW OF EVIDENCE 3

PART 1: General concepts and sources of the law of evidence 5
LEARNING UNIT 2: CONCEPTS IN THE LAW OF EVIDENCE 6
2.1 SUBSTANTIVE AND ADJECTIVE LAW 6
2.2 PROOF AND THE LAW OF EVIDENCE 7
LEARNING UNIT 3: SOURCES OF THE LAW OF EVIDENCE 10
3.1 HISTORICAL SOURCES 10
3.2 KNOWLEDGE SOURCES 10
3.2.1 The rights of arrested people 11
3.2.2 The rights of a detained person 11
3.2.3 The rights of any accused person 12
3.2.4 The limitation clause 12
3.2.5 Interpretation 12
3.3 RESIDUARY SECTIONS 13
3.4 THE LAW OF EVIDENCE AND CUSTOMARY LAW 14
3.4.1 Introduction 14
3.4.2 General 15
3.4.3 Some examples of evidence or types of evidence 17

PART 2: The presentation of evidence 19
LEARNING UNIT 4: STAGES IN THE TRIAL PROCESS AND THE PRESENTATION OF
ORAL EVIDENCE 20
4.1 OVERVIEW OF EVENTS IN CRIMINAL AND CIVIL TRIALS 20
4.2 THE PRESENTATION OF ORAL EVIDENCE 21
4.2.1 Examination-in-chief 22
4.2.1.1 Credibility 22
4.2.1.2 Leading questions 22
4.2.1.3 Unfavourable and hostile witnesses 22
4.2.1.4 The witness may refresh her memory 23
4.2.2 Cross-examination 24
4.2.3 Re-examination 25
4.3 WITNESSES CALLED BY THE COURT 26
4.4 ARGUMENT 26
LEARNING UNIT 5: WITNESSES 28
5.1 PROCEDURE 29

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, 5.2 COMPETENCE 29
5.2.1 General rule 29
5.2.2 Exceptions to the general rule 29
5.2.2.1 Children 29
5.2.2.2 Mentally disordered or intoxicated witnesses 30
5.2.2.3 Officers of the court 31
5.3 COMPELLABILITY 31
5.3.1 Spouses 31
5.3.1.1 Spouse as a state witness 32
5.3.1.2 The spouse as a defence witness 33
5.3.2 Accused persons 33
5.3.3 Co-accused 33
5.3.3.1 Co-accused as defence witness 34
5.3.3.2 Co-accused as prosecution witness 34
LEARNING UNIT 6: REAL EVIDENCE 37
6.1 INTRODUCTION 37
6.2 PERSONAL APPEARANCE 38
6.3 INSPECTIONS IN LOCO, DEMONSTRATIONS AND BODILY SAMPLES 39
6.4 FINGERPRINTS AND HANDWRITING 40
6.5 EVIDENCE DERIVED FROM A COMPUTER AND OTHER DIGITAL DEVICES 41
LEARNING UNIT 7: DOCUMENTARY EVIDENCE 43
7.1 ADMISSION OF DOCUMENTARY EVIDENCE 43
7.2 THE DEFINITION OF DOCUMENTARY EVIDENCE 44
7.3 PRODUCING THE ORIGINAL DOCUMENT 45
7.3.1 General 45
7.3.2 Exceptions (or the admissibility of secondary evidence) 46
7.3.2.1 General 46
7.3.2.2 The exception in the case of official documents 46
7.3.2.3 Other exceptions 47
7.4 PROOF OF AUTHENTICITY 47
7.4.1 General 47
7.4.2 Proving authenticity 48
7.4.3 Exceptions to the rule regarding authenticity 48
7.5 PUBLIC DOCUMENTS 50
7.6 STAMP DUTIES ACT 77 OF 1968 50
7.7 DISCOVERY, INSPECTION AND PRODUCTION OF DOCUMENTS 51
7.8 ELECTRONIC DOCUMENTS 51
LEARNING UNIT 8: EVIDENCE OF UNCERTAIN CLASSIFICATION 53
8.1 PRODUCTS OF MODERN TECHNOLOGY AS EVIDENCE 53
8.2 PHOTOGRAPHS AS EVIDENCE 54
8.3 VIDEO AND AUDIO AS EVIDENCE 54
8.4 COMPUTER OUTPUT AS EVIDENCE 55
8.4.1 Background to the ECT Act 55
8.4.2 Application of the ECT Act 56

PART 3: The admissibility of certain types of evidence 59
LEARNING UNIT 9: RELEVANCE AND ADMISSIBILITY OF EVIDENCE 60
9.1 INTRODUCTION 60
9.2 WHAT IS MEANT BY “RELEVANCE”? 61
9.2.1 Definition of relevance 62
9.2.2 The importance of “the issues” 63

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