, Page v
Preface
This edition, like the previous three, is an attempt to strike a balance between the theory of
the law of evidence and its practical application in a constitutional setting. We hope that this
fourth edition will be of assistance to both students and practitioners and that it will alert
them to the growing impact of the Bill of Rights on the traditional Anglo-South African law of
evidence.
We would like to thank the following people for their contributions: Wouter de Vos (author
of chapter 22 and co-author of chapter 23), Eugene van der Berg (co-author of chapters 4
and 8), Justin de Jager (author of chapter 21) and Avinash Govindjee (co-author of
chapter 4).
We thank our publishers, Juta, for their encouragement and support. Marlinee Chetty
oversaw production of this fourth edition. Her patience and professional approach are greatly
appreciated.
An attempt was made to state the law as at the end of May 2015.
PJ Schwikkard
Cape Town
Steph van der Merwe
Durbanville
22 September 2015
, Page vii
Contents
Preface
Mode of citation of principal works and sources
Section A
An Introduction to the Law of Evidence
1 An Introduction to the History and Theory of the Law of Evidence –S E van der
Merwe
11 Introduction
12 Scope and Functions of the Law of Evidence
13 Early History and Development of the English Law of Evidence
131 The religious (primitive) stage
132 The formal stage
133 The rational stage (and development of the jury)
14 Procedural and Evidential Systems and Some Universal Principles of Fact-Finding
15 Ordinary Courts and Small Claims Courts: An Examination of Procedural and
Evidential Differences
151 Small claims courts and the inquisitorial procedure and free system of
evidence
152 Accusatorial versus inquisitorial procedure
153 Strict versus free system of evidence
16 Jurors and Assessors: Some Brief Comparative Remarks
17 Rules of Evidence in Criminal and Civil Proceedings
2 Basic Concepts and Distinctions –S E van der Merwe
21 Introduction
22 Facts in Issue and Facts Relevant to the Facts in Issue
23 Evidence and Argument
24 Evidence and Probative Material
25 Evidence and Proof
26 Conclusive Proof and Prima Facie Proof
27 Admissibility and Weight of Evidence
28 Conditional Admissibility
29 Circumstantial and Direct Evidence
2 10 Primary and Secondary Evidence
2 11 Hearsay
2 12 Relevance
2 13 Privilege
2 14 Formal and Informal Admissions
2 15 Confessions
2 16 Judicial Notice
2 17 Presumptions
2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the Burden of Rebuttal
(Evidential Burden, “Weerleggingslas”)
, Page viii
3 Sources of the South African Law of Evidence and the Impact of Constitutional
Provisions –S E van der Merwe
31 Introduction
32 Original and Regional Incorporation of English Law: The Pre-Union Period
33 Criminal Proceedings: The Post-Union Period
34 Civil Proceedings: The Post-Union Period
35 Interpretation of the 30 May 1961 Provision
351 English decisions considered to be incorrect
352 South African rules of practice incompatible with English law
353 Rules inconsistent with constitutional provisions
36 Value of English Cases Decided after 30 May 1961
37 Value of Privy Council Decisions
38 Further Sources
39 Constitutional Provisions
4 The Law of Evidence and Substantive Law –E van der Berg and A Govindjee
41 Introduction
42 The Significance of the Distinction
43 The Burden of Proof
44 Irrebuttable Presumptions
45 Estoppel
46 Parol Evidence
461 The integration rule
462 Some exceptions
463 Rectification
464 The interpretation rule
Section B
The Admissibility of Relevant Evidence
5 Relevance and Admissibility –S E van der Merwe
51 Introduction
52 Rationale for the Exclusion of Irrelevant Evidence
53 The Meaning of Relevance and the Determination of Relevance
531 The issues (as the essential point of departure)
532 Reasonable or proper inference: assessing the potential weight of the
evidence
533 Avoiding a proliferation or multiplicity of collateral issues
534 The risk of manufactured evidence
535 Prejudicial effect
536 The doctrine of precedent
537 The principle of completeness
538 Constitutional imperatives and the position of the accused
54 Proposals of the South African Law Reform Commission
6 Character Evidence –P J Schwikkard
61 Introduction
Preface
This edition, like the previous three, is an attempt to strike a balance between the theory of
the law of evidence and its practical application in a constitutional setting. We hope that this
fourth edition will be of assistance to both students and practitioners and that it will alert
them to the growing impact of the Bill of Rights on the traditional Anglo-South African law of
evidence.
We would like to thank the following people for their contributions: Wouter de Vos (author
of chapter 22 and co-author of chapter 23), Eugene van der Berg (co-author of chapters 4
and 8), Justin de Jager (author of chapter 21) and Avinash Govindjee (co-author of
chapter 4).
We thank our publishers, Juta, for their encouragement and support. Marlinee Chetty
oversaw production of this fourth edition. Her patience and professional approach are greatly
appreciated.
An attempt was made to state the law as at the end of May 2015.
PJ Schwikkard
Cape Town
Steph van der Merwe
Durbanville
22 September 2015
, Page vii
Contents
Preface
Mode of citation of principal works and sources
Section A
An Introduction to the Law of Evidence
1 An Introduction to the History and Theory of the Law of Evidence –S E van der
Merwe
11 Introduction
12 Scope and Functions of the Law of Evidence
13 Early History and Development of the English Law of Evidence
131 The religious (primitive) stage
132 The formal stage
133 The rational stage (and development of the jury)
14 Procedural and Evidential Systems and Some Universal Principles of Fact-Finding
15 Ordinary Courts and Small Claims Courts: An Examination of Procedural and
Evidential Differences
151 Small claims courts and the inquisitorial procedure and free system of
evidence
152 Accusatorial versus inquisitorial procedure
153 Strict versus free system of evidence
16 Jurors and Assessors: Some Brief Comparative Remarks
17 Rules of Evidence in Criminal and Civil Proceedings
2 Basic Concepts and Distinctions –S E van der Merwe
21 Introduction
22 Facts in Issue and Facts Relevant to the Facts in Issue
23 Evidence and Argument
24 Evidence and Probative Material
25 Evidence and Proof
26 Conclusive Proof and Prima Facie Proof
27 Admissibility and Weight of Evidence
28 Conditional Admissibility
29 Circumstantial and Direct Evidence
2 10 Primary and Secondary Evidence
2 11 Hearsay
2 12 Relevance
2 13 Privilege
2 14 Formal and Informal Admissions
2 15 Confessions
2 16 Judicial Notice
2 17 Presumptions
2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the Burden of Rebuttal
(Evidential Burden, “Weerleggingslas”)
, Page viii
3 Sources of the South African Law of Evidence and the Impact of Constitutional
Provisions –S E van der Merwe
31 Introduction
32 Original and Regional Incorporation of English Law: The Pre-Union Period
33 Criminal Proceedings: The Post-Union Period
34 Civil Proceedings: The Post-Union Period
35 Interpretation of the 30 May 1961 Provision
351 English decisions considered to be incorrect
352 South African rules of practice incompatible with English law
353 Rules inconsistent with constitutional provisions
36 Value of English Cases Decided after 30 May 1961
37 Value of Privy Council Decisions
38 Further Sources
39 Constitutional Provisions
4 The Law of Evidence and Substantive Law –E van der Berg and A Govindjee
41 Introduction
42 The Significance of the Distinction
43 The Burden of Proof
44 Irrebuttable Presumptions
45 Estoppel
46 Parol Evidence
461 The integration rule
462 Some exceptions
463 Rectification
464 The interpretation rule
Section B
The Admissibility of Relevant Evidence
5 Relevance and Admissibility –S E van der Merwe
51 Introduction
52 Rationale for the Exclusion of Irrelevant Evidence
53 The Meaning of Relevance and the Determination of Relevance
531 The issues (as the essential point of departure)
532 Reasonable or proper inference: assessing the potential weight of the
evidence
533 Avoiding a proliferation or multiplicity of collateral issues
534 The risk of manufactured evidence
535 Prejudicial effect
536 The doctrine of precedent
537 The principle of completeness
538 Constitutional imperatives and the position of the accused
54 Proposals of the South African Law Reform Commission
6 Character Evidence –P J Schwikkard
61 Introduction
