Learning Unit 1 - Overview of The Law of Evidence
The Presentation of evidence
The way in which the evidence is presented depends on the nature of the evidence.
Oral evidence - is given by a witness, delivering her testimony from the witness box.
Certain questions may be asked by the various parties, and others may not.
Real things may also be presented to the court as evidence. Often the information
that is contained in some kind of document may be required, but documents cannot
simply be handed to the court since many requirements need to be met before a
document can be used. For one, the court generally needs to know that the
document is indeed what it claims to be.
In certain cases, the court will accept some information without any evidence being
presented on it; the court will simply take notice of well-known or easily determined
facts, or some legal rule may provide for the presumption of a fact.
Admissibility of certain types of evidence
Admissible evidence can be used to prove one’s case whereas inadmissible evidence
cannot. It serves no purpose to attempt to offer clearly inadmissible evidence in court as it
will simply be thrown out by the court. However, in many instances it may not be clear
whether the evidence will be admissible or inadmissible. It is then for the court to decide
whether or not to allow the evidence and, in order to do so, it has to apply the existing legal
rules and principles to the questions before it.
The basic principle is that all available evidence should be used in proving the case. Only if
there is some reason for excluding (or disallowing) evidence, can it be excluded.
o Evidence can be admissible only if it deals with the problem in question (if it is relevant)
o Evidence concerning a prior statement by a witness that merely serves as corroboration
for herself is inadmissible
o Evidence that merely deals with the character of a witness or a party rarely has any
bearing on the question at hand, and is usually inadmissible
o A witness should generally tell of her first-hand experiences and not of what she learnt
from others (hearsay evidence)
o A witness may not give evidence which amounts to taking over the court’s function of
having to reach a conclusion (opinion evidence)
o A people who incriminate themselves (through admissions and confessions) have to do
so absolutely voluntarily, otherwise those incriminating statements cannot be used
against them
o Some evidence may be excluded simply because some higher value is believed to be
protected by such exclusion (privilege)
o Evidence acquired in violation of the Bill of Rights in the Constitution may often have to
be excluded
The evaluation of evidence
Once all the (admissible) evidence has been presented, it is the task of the court to evaluate
this evidence in order to reach its findings. It has to consider the weight of the evidence. In
this process, it must determine which party has the burden of proof, and what the extent of
this burden is – the amount (measure) of proof required in criminal cases is much greater
than in civil cases. In the evaluation of evidence, the weight of the evidence is often
,determined by questions such as whether it is direct evidence of the questions in issue or
merely circumstantial evidence; whether there are reasons to be cautious about the
evidence; and the extent to which the various bits and pieces of the puzzle fit together and
support and strengthen (corroborate) one another.
Part 1- General Concepts and Sources of the Law of Evidence
Learning unit 2 - Concepts in the law of evidence
2.1 Substantive and Adjective Law
There are two main branches of law.
1. Substantive law - covers one’s legal rights and obligations. It tells one what one may or
may not do.
A subdivision of substantive law is, for instance, criminal law, which prohibits certain actions
upon pain of punishment.
2. Adjective law (sometimes known as procedural law), prescribes the general procedure
to be followed in court and legal transactions.
A subdivision of adjective law is criminal procedure which prescribes, for instance, how a
person should be brought before the court by way of arrest, summons or warning to appear,
and how these rights are to be protected in court with regard to plea, the giving of evidence,
and proof.
2.2 Proof and the Law of Evidence
2.2.1 Evidence and Probative Material (Evidentiary material)
Evidence (getuienis) – consists of oral statements (oral evidence) made in court under
oath and affirmation or warning . It also includes documents (documentary evidence) and
objects (real evidence) produced and received in court.
Probative Material (bewysmateriaal) /Evidentiary material - material which goes to
furnish proof. It is a convenient term to include not only oral, documentary and real evidence
but also formal admissions, judicial notice and presumptions.
2.2.2 Evidence and Proof
Proof of a fact – means that the court has received the probative material with regard to
such fact and has accepted such a fact as being the truth for the purposes of the specific
case.
Evidence of a fact – not yet proof of such fact. The court must still decide whether or not
such fact has been proved. This involves the process of evaluation.
The court will only act upon facts found proved in accordance with certain standards.
In a criminal case the standard proof is - proof beyond reasonable doubt.
In a civil case the standard of proof is – proof upon a balance of probability.
Regulating the proof of facts is the main goal of the law of evidence. Evidence is only one
type of evidentiary material that may be used in order to furnish proof in a case before a
court of law. Evidentiary material must be evaluated before the court can find whether it
amounts to proof in the circumstances of a particular case. Evidence itself may be given in
the form of oral evidence, documentary evidence and real evidence.
,Learning unit 3 - Sources of the law of evidence
3.1 Historical Sources
Historically, the substantive law of South Africa was mostly drawn from the principles of
Roman-Dutch law. The latter is therefore seen as the common law for that part of our
criminal law which has not yet been legislated into statutory law.
The procedural law of South Africa is mostly drawn from the principles of English law.
English law is therefore seen as the common law for our law of evidence, which means that,
if there is any uncertainty about an aspect of the South African law of evidence, the South
African courts may have recourse to English law on that point.
English law is therefore the historical source of our law of evidence.
3.2 Knowledge Sources
Knowledge sources is a wider concept covering not only the historical sources but also
relevant court cases and applicable South African legislation. Legislation which applies
particularly to the law of evidence is the Criminal Procedure Act 51 of 1977 and the Civil
Proceedings Evidence Act 25 of 1965. the Constitution of the Republic of South Africa 108 of
1996 also applies. This Act has given the Constitutional Court a testing right to declare
existing (or new) legislation and common law unconstitutional. The Constitution is the
supreme source of law in South Africa and therefore an important source of the law of
evidence.
3.2.1 The rights of arrested people
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
2. not to be compelled to make a confession or admission which could be used in evidence
against him or her
Note that these rights pertain only to arrested persons. Somebody who has not been
arrested, does not have these rights.
3.2.2 The rights of a detained person
72
Section 35(2) provides for the rights of a detained person, including the right
1. to be informed promptly of the reason for being detained
2. to choose, and to consult with a legal practitioner, and to be informed of this right promptly
3. 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
3.2.3 The rights of any accused person
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
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 (s 35(3)(h))
, 3. to adduce and challenge evidence and not to be a compellable witness against himself or
herself
Only accused people have these rights, and therefore they arise only once the arrested
person is accused of (charged with) committing an offence.
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.
3.2.4 The limitation clause
76Section 36(1) contains a provision which has become known as the “limitation clause”.
In terms of this provision, the rights which are granted by chapter 2 of the Constitution may
be limited by statute or common law, but only if such limitation is reasonable and justifiable
in an open and democratic society based on freedom and equality.
The following factors should be taken into account:
1. the nature of the right
2. the importance of the purpose of the limitation
3. the nature and extent of the limitation
4. the relationship between the limitation and its purpose
5. the least restrictive means to achieve the purpose
Section 36(2) provides that no law may limit any right which is protected in the Bill of Rights,
except as provided in subsection (1) or any other provision of the Constitution.
3.3 Residuary Sections
“Residuary” means “remainder, rest, that which is left”. The residuary sections in the
Criminal Procedure Act 51 of 1977 and the Civil Proceedings Evidence Act 25 of 1965
provide that parts of the English law of evidence will remain part of the South African law of
evidence. The definition of a residuary section is therefore a section in a South African
statute which incorporates a part of foreign law into our law, and thereby preserves
something of the foreign law.
“Direct incorporation” of foreign law by, for instance, South African statutes using the exact
wording of foreign legislation, and “indirect incorporation” as in the case of residuary clauses,
which simply determine that foreign law has to be followed in respect of topics for which no
express local statutory law has been made. It was felt that residuary clauses which had
indirectly incorporated English law should be changed before South Africa became a
republic outside of the British Commonwealth (as happened on 31 May 1961), as is proper
for a totally independent country.
The Presentation of evidence
The way in which the evidence is presented depends on the nature of the evidence.
Oral evidence - is given by a witness, delivering her testimony from the witness box.
Certain questions may be asked by the various parties, and others may not.
Real things may also be presented to the court as evidence. Often the information
that is contained in some kind of document may be required, but documents cannot
simply be handed to the court since many requirements need to be met before a
document can be used. For one, the court generally needs to know that the
document is indeed what it claims to be.
In certain cases, the court will accept some information without any evidence being
presented on it; the court will simply take notice of well-known or easily determined
facts, or some legal rule may provide for the presumption of a fact.
Admissibility of certain types of evidence
Admissible evidence can be used to prove one’s case whereas inadmissible evidence
cannot. It serves no purpose to attempt to offer clearly inadmissible evidence in court as it
will simply be thrown out by the court. However, in many instances it may not be clear
whether the evidence will be admissible or inadmissible. It is then for the court to decide
whether or not to allow the evidence and, in order to do so, it has to apply the existing legal
rules and principles to the questions before it.
The basic principle is that all available evidence should be used in proving the case. Only if
there is some reason for excluding (or disallowing) evidence, can it be excluded.
o Evidence can be admissible only if it deals with the problem in question (if it is relevant)
o Evidence concerning a prior statement by a witness that merely serves as corroboration
for herself is inadmissible
o Evidence that merely deals with the character of a witness or a party rarely has any
bearing on the question at hand, and is usually inadmissible
o A witness should generally tell of her first-hand experiences and not of what she learnt
from others (hearsay evidence)
o A witness may not give evidence which amounts to taking over the court’s function of
having to reach a conclusion (opinion evidence)
o A people who incriminate themselves (through admissions and confessions) have to do
so absolutely voluntarily, otherwise those incriminating statements cannot be used
against them
o Some evidence may be excluded simply because some higher value is believed to be
protected by such exclusion (privilege)
o Evidence acquired in violation of the Bill of Rights in the Constitution may often have to
be excluded
The evaluation of evidence
Once all the (admissible) evidence has been presented, it is the task of the court to evaluate
this evidence in order to reach its findings. It has to consider the weight of the evidence. In
this process, it must determine which party has the burden of proof, and what the extent of
this burden is – the amount (measure) of proof required in criminal cases is much greater
than in civil cases. In the evaluation of evidence, the weight of the evidence is often
,determined by questions such as whether it is direct evidence of the questions in issue or
merely circumstantial evidence; whether there are reasons to be cautious about the
evidence; and the extent to which the various bits and pieces of the puzzle fit together and
support and strengthen (corroborate) one another.
Part 1- General Concepts and Sources of the Law of Evidence
Learning unit 2 - Concepts in the law of evidence
2.1 Substantive and Adjective Law
There are two main branches of law.
1. Substantive law - covers one’s legal rights and obligations. It tells one what one may or
may not do.
A subdivision of substantive law is, for instance, criminal law, which prohibits certain actions
upon pain of punishment.
2. Adjective law (sometimes known as procedural law), prescribes the general procedure
to be followed in court and legal transactions.
A subdivision of adjective law is criminal procedure which prescribes, for instance, how a
person should be brought before the court by way of arrest, summons or warning to appear,
and how these rights are to be protected in court with regard to plea, the giving of evidence,
and proof.
2.2 Proof and the Law of Evidence
2.2.1 Evidence and Probative Material (Evidentiary material)
Evidence (getuienis) – consists of oral statements (oral evidence) made in court under
oath and affirmation or warning . It also includes documents (documentary evidence) and
objects (real evidence) produced and received in court.
Probative Material (bewysmateriaal) /Evidentiary material - material which goes to
furnish proof. It is a convenient term to include not only oral, documentary and real evidence
but also formal admissions, judicial notice and presumptions.
2.2.2 Evidence and Proof
Proof of a fact – means that the court has received the probative material with regard to
such fact and has accepted such a fact as being the truth for the purposes of the specific
case.
Evidence of a fact – not yet proof of such fact. The court must still decide whether or not
such fact has been proved. This involves the process of evaluation.
The court will only act upon facts found proved in accordance with certain standards.
In a criminal case the standard proof is - proof beyond reasonable doubt.
In a civil case the standard of proof is – proof upon a balance of probability.
Regulating the proof of facts is the main goal of the law of evidence. Evidence is only one
type of evidentiary material that may be used in order to furnish proof in a case before a
court of law. Evidentiary material must be evaluated before the court can find whether it
amounts to proof in the circumstances of a particular case. Evidence itself may be given in
the form of oral evidence, documentary evidence and real evidence.
,Learning unit 3 - Sources of the law of evidence
3.1 Historical Sources
Historically, the substantive law of South Africa was mostly drawn from the principles of
Roman-Dutch law. The latter is therefore seen as the common law for that part of our
criminal law which has not yet been legislated into statutory law.
The procedural law of South Africa is mostly drawn from the principles of English law.
English law is therefore seen as the common law for our law of evidence, which means that,
if there is any uncertainty about an aspect of the South African law of evidence, the South
African courts may have recourse to English law on that point.
English law is therefore the historical source of our law of evidence.
3.2 Knowledge Sources
Knowledge sources is a wider concept covering not only the historical sources but also
relevant court cases and applicable South African legislation. Legislation which applies
particularly to the law of evidence is the Criminal Procedure Act 51 of 1977 and the Civil
Proceedings Evidence Act 25 of 1965. the Constitution of the Republic of South Africa 108 of
1996 also applies. This Act has given the Constitutional Court a testing right to declare
existing (or new) legislation and common law unconstitutional. The Constitution is the
supreme source of law in South Africa and therefore an important source of the law of
evidence.
3.2.1 The rights of arrested people
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
2. not to be compelled to make a confession or admission which could be used in evidence
against him or her
Note that these rights pertain only to arrested persons. Somebody who has not been
arrested, does not have these rights.
3.2.2 The rights of a detained person
72
Section 35(2) provides for the rights of a detained person, including the right
1. to be informed promptly of the reason for being detained
2. to choose, and to consult with a legal practitioner, and to be informed of this right promptly
3. 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
3.2.3 The rights of any accused person
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
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 (s 35(3)(h))
, 3. to adduce and challenge evidence and not to be a compellable witness against himself or
herself
Only accused people have these rights, and therefore they arise only once the arrested
person is accused of (charged with) committing an offence.
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.
3.2.4 The limitation clause
76Section 36(1) contains a provision which has become known as the “limitation clause”.
In terms of this provision, the rights which are granted by chapter 2 of the Constitution may
be limited by statute or common law, but only if such limitation is reasonable and justifiable
in an open and democratic society based on freedom and equality.
The following factors should be taken into account:
1. the nature of the right
2. the importance of the purpose of the limitation
3. the nature and extent of the limitation
4. the relationship between the limitation and its purpose
5. the least restrictive means to achieve the purpose
Section 36(2) provides that no law may limit any right which is protected in the Bill of Rights,
except as provided in subsection (1) or any other provision of the Constitution.
3.3 Residuary Sections
“Residuary” means “remainder, rest, that which is left”. The residuary sections in the
Criminal Procedure Act 51 of 1977 and the Civil Proceedings Evidence Act 25 of 1965
provide that parts of the English law of evidence will remain part of the South African law of
evidence. The definition of a residuary section is therefore a section in a South African
statute which incorporates a part of foreign law into our law, and thereby preserves
something of the foreign law.
“Direct incorporation” of foreign law by, for instance, South African statutes using the exact
wording of foreign legislation, and “indirect incorporation” as in the case of residuary clauses,
which simply determine that foreign law has to be followed in respect of topics for which no
express local statutory law has been made. It was felt that residuary clauses which had
indirectly incorporated English law should be changed before South Africa became a
republic outside of the British Commonwealth (as happened on 31 May 1961), as is proper
for a totally independent country.
