BWR
(LoE – Law of Evidence)
Case law
Legislation
Examples
Definitions
STUDY UNIT 1 – INTRODUCTION
Historical development of SA LoE
Heritage for SA system of evidence is English Common Law System.
SA LoE is based on rules that were designed for trial by jury but SA
has not seen trial by Jury since 1969.
English LoE stricter than other systems ito ruling out evidence:
o Bcs judges feared juries would attach undue weight to
untrustworthy evidence.
Place of LoE within broader SA legal system
LoE = branch of Adjective Law (opposite of Substantive Law).
For a plaintiff to succeed in civil case, he must prove elements of a
claim:
o What the elements are ids q of substantive law.
o How we go about proving the elements is q of adjective law.
, Sources of LoE
Sources:
o Civil Proceedings Act.
o Criminal Procedure Act.
o Law of Evidence Amendment Act.
o ECTA.
If statute is silent on specific topic – we turn to English law that was in
force until 31 May 1961. Date which SA became independent republic
SA cases decided according to English Common Law rules on/after
31 May 1961 are binding ito law of precedent.
If there is total lacuna/absence of rule in SA LoE – courts may find
guidance in:
o English cases (decided in England) after 31 May 1961 – have
persuasive authority but are not binding.
UK, Australia, NZ, Canada, US, Caribbean,
o LoE of other Anglo-America jurisdictions. Malawi, Botswana, Kenya, Nigeria
The Consti and LoE
All rules of evidence must comply with Consti (statutory OR common
law).
Influence of Consti on LoE:
o Some Consti rights were evidence rules according to common
law prior to the Consti BUT the effect that the Consti had was to
harden these common law rights into constitutional rights.
o Rights in s35 of Consti: CL rights hardened into Consti rights.
Right to be informed of certain rights.
Passive defence rights = act as shield against might of
state. Presumption of innocence, right to remain silent, right not to testify etc.
Right to bring forward evidence. Active defence rights = act as sword in hands of detained.
, Due process rights.
STUDY UNIT 2 – RELEVANCE AND ADMISSIBILITY
Relevance, admissibility and assessment
RELEVANCE ADMISSIBILITY ASSESSMENT
Admissibility:
o Once court finds certain piece of evidence relevant, next thing is
whether its admissible.
o Admissibility rules aimed at excluding certain types of
evidence:
Not all evidence is admissible.
If evidence is hearsay (inadmissible) even though it’s
relevant it will not be valid.
Assessment:
o Once rule is admissible > rules of assessments assists court in
how to evaluate evidence.
o Once court admitted certain evidence, it needs to weigh it to
see how heavily it needs to be relied on > not all evidence is
1 witness may be more credible than another and
equal. weigh heavier.
o Evidence assessments means that court:
Analyses all evidence.
Makes creditability finding about witnesses.
Draws inferences from evidence.
Considers probabilities.
Relevance:
o Why is relevance most important? S210 Criminal Procedure Act =
irrelevant evidence is
inadmissible (phrased
negatively).
Court: evidence is admissible if
it is relevant to case (phrased
positively).
(LoE – Law of Evidence)
Case law
Legislation
Examples
Definitions
STUDY UNIT 1 – INTRODUCTION
Historical development of SA LoE
Heritage for SA system of evidence is English Common Law System.
SA LoE is based on rules that were designed for trial by jury but SA
has not seen trial by Jury since 1969.
English LoE stricter than other systems ito ruling out evidence:
o Bcs judges feared juries would attach undue weight to
untrustworthy evidence.
Place of LoE within broader SA legal system
LoE = branch of Adjective Law (opposite of Substantive Law).
For a plaintiff to succeed in civil case, he must prove elements of a
claim:
o What the elements are ids q of substantive law.
o How we go about proving the elements is q of adjective law.
, Sources of LoE
Sources:
o Civil Proceedings Act.
o Criminal Procedure Act.
o Law of Evidence Amendment Act.
o ECTA.
If statute is silent on specific topic – we turn to English law that was in
force until 31 May 1961. Date which SA became independent republic
SA cases decided according to English Common Law rules on/after
31 May 1961 are binding ito law of precedent.
If there is total lacuna/absence of rule in SA LoE – courts may find
guidance in:
o English cases (decided in England) after 31 May 1961 – have
persuasive authority but are not binding.
UK, Australia, NZ, Canada, US, Caribbean,
o LoE of other Anglo-America jurisdictions. Malawi, Botswana, Kenya, Nigeria
The Consti and LoE
All rules of evidence must comply with Consti (statutory OR common
law).
Influence of Consti on LoE:
o Some Consti rights were evidence rules according to common
law prior to the Consti BUT the effect that the Consti had was to
harden these common law rights into constitutional rights.
o Rights in s35 of Consti: CL rights hardened into Consti rights.
Right to be informed of certain rights.
Passive defence rights = act as shield against might of
state. Presumption of innocence, right to remain silent, right not to testify etc.
Right to bring forward evidence. Active defence rights = act as sword in hands of detained.
, Due process rights.
STUDY UNIT 2 – RELEVANCE AND ADMISSIBILITY
Relevance, admissibility and assessment
RELEVANCE ADMISSIBILITY ASSESSMENT
Admissibility:
o Once court finds certain piece of evidence relevant, next thing is
whether its admissible.
o Admissibility rules aimed at excluding certain types of
evidence:
Not all evidence is admissible.
If evidence is hearsay (inadmissible) even though it’s
relevant it will not be valid.
Assessment:
o Once rule is admissible > rules of assessments assists court in
how to evaluate evidence.
o Once court admitted certain evidence, it needs to weigh it to
see how heavily it needs to be relied on > not all evidence is
1 witness may be more credible than another and
equal. weigh heavier.
o Evidence assessments means that court:
Analyses all evidence.
Makes creditability finding about witnesses.
Draws inferences from evidence.
Considers probabilities.
Relevance:
o Why is relevance most important? S210 Criminal Procedure Act =
irrelevant evidence is
inadmissible (phrased
negatively).
Court: evidence is admissible if
it is relevant to case (phrased
positively).
