INTRODUCTION
Historical development of law of evidence
Heritage is the English Common Law System
- This was designed for a jury, but SA has not used a jury since 1969.
- English Law of Evidence is strict when it comes to ruling out evidence because
> Juries can attach undue weight to untrustworthy evidence.
Adjective v Substantive Law
Law of Evidence is part of Adjective Law
- What the elements are that the plaintiff needs to prove is substantive law.
- How to go about proving the elements is adjective law.
Sources of Law of Evidence
If there are no statutory provisions on a topic – we turn to English law that was in
force until 31 May 1961
- South African cases decided according to English Common law rules on or after
this date are binding.
- Last resort is cases decided in England after this date (persuasive not binding)
and law of evidence is Anglo-American jurisdictions.
The Constitution’s impact
Some common law rights were hardened into constitutional rights – s35
- The right to be informed of rights.
- Passive defense rights are a shield against the state.
- Active defense rights are a sword in the detained hands.
- The right to due process.
RELEVANCE AND ADMISSIBILITY
(1) Relevance
Relevance is the pre-condition for admissibility
- Relevant evidence – evidence with the potential to make existence of any fact in
issue more probable or less probably.
- If any evidence were allowed, then it would delay proceedings and be expensive
, > Polygraphs are not allowed.
(2) Admissibility
Not all relevant information will be admissible.
(3) Assessment
Once evidence is admissible, the court must evaluate the evidence
- Not all evidence is equal so the court must weight it to see how heavily it must be
relied upon.
Relation between an item of evidence and a material fact in the case
Relevance is not inherent to all evidence – it only exists where the evidence relates
to a material fact in the case
- Dhlamini case
Facts
> P alleged that A stabbed D to death.
> A has an alibi
> P wants to call N as a witness to testify that A stabbed her close to where D
died and around the same time.
> A says N’s evidence is irrelevant because it related to criminal conduct that
is not part of the charges against A.
Court
> What was P trying to prove when calling N?
> If the evidence is to lead to prior misconduct, then it is inadmissible because
it is irrelevant to the issue.
> If the evidence was to disprove the alibi, then it is admissible because it is
relevant to a material fact.
PREVIOUS CONSISTENT STATEMENTS (PCS)
Written or oral statements made by a witness prior to testifying in court that is the
same or substantially similar to their testimony
General rule (rule against narrative)
, PCS is inadmissible because it is irrelevant – witness’ cannot corroborate their own
story
- PCS can also not be proved by calling another witness.
- Previous inconsistent statements are admissible because they are relevant to the
credibility of the witness.
Rationale for the rule against narrative
PCS has little probative force
- It is unreliable (a lie can be repeated).
- It allows for easy fabrication or self-made evidence.
- It is unnecessary as we don’t expect a truthful witness’ story to change.
- It is time consuming and duplicative.
R v Roberts
Facts
- A said killing his girlfriend was an accident and testified to telling his dad that it
was an accident 2 days after the killing.
Court
- A party cannot make evidence for himself.
- It does not help the court shed light on what happened.
Exceptions to the rule against narrative
These exceptions are numerus clausus
1. To rebut an allegation of fabrication
- When a cross-examiner suggests that a witness fabricated testimony.
- The attack must be specific to the witness’ testimony
> A cross-examiner cannot say the witness is not credible in general.
- PCS is used to save the witness and show consistency between statements.
2. Prior identification
- Dock identification (where the prosecutor asks the witness to point the defendant
out in court)
> This has little probative value because it’s obvious who the defendant is.
Historical development of law of evidence
Heritage is the English Common Law System
- This was designed for a jury, but SA has not used a jury since 1969.
- English Law of Evidence is strict when it comes to ruling out evidence because
> Juries can attach undue weight to untrustworthy evidence.
Adjective v Substantive Law
Law of Evidence is part of Adjective Law
- What the elements are that the plaintiff needs to prove is substantive law.
- How to go about proving the elements is adjective law.
Sources of Law of Evidence
If there are no statutory provisions on a topic – we turn to English law that was in
force until 31 May 1961
- South African cases decided according to English Common law rules on or after
this date are binding.
- Last resort is cases decided in England after this date (persuasive not binding)
and law of evidence is Anglo-American jurisdictions.
The Constitution’s impact
Some common law rights were hardened into constitutional rights – s35
- The right to be informed of rights.
- Passive defense rights are a shield against the state.
- Active defense rights are a sword in the detained hands.
- The right to due process.
RELEVANCE AND ADMISSIBILITY
(1) Relevance
Relevance is the pre-condition for admissibility
- Relevant evidence – evidence with the potential to make existence of any fact in
issue more probable or less probably.
- If any evidence were allowed, then it would delay proceedings and be expensive
, > Polygraphs are not allowed.
(2) Admissibility
Not all relevant information will be admissible.
(3) Assessment
Once evidence is admissible, the court must evaluate the evidence
- Not all evidence is equal so the court must weight it to see how heavily it must be
relied upon.
Relation between an item of evidence and a material fact in the case
Relevance is not inherent to all evidence – it only exists where the evidence relates
to a material fact in the case
- Dhlamini case
Facts
> P alleged that A stabbed D to death.
> A has an alibi
> P wants to call N as a witness to testify that A stabbed her close to where D
died and around the same time.
> A says N’s evidence is irrelevant because it related to criminal conduct that
is not part of the charges against A.
Court
> What was P trying to prove when calling N?
> If the evidence is to lead to prior misconduct, then it is inadmissible because
it is irrelevant to the issue.
> If the evidence was to disprove the alibi, then it is admissible because it is
relevant to a material fact.
PREVIOUS CONSISTENT STATEMENTS (PCS)
Written or oral statements made by a witness prior to testifying in court that is the
same or substantially similar to their testimony
General rule (rule against narrative)
, PCS is inadmissible because it is irrelevant – witness’ cannot corroborate their own
story
- PCS can also not be proved by calling another witness.
- Previous inconsistent statements are admissible because they are relevant to the
credibility of the witness.
Rationale for the rule against narrative
PCS has little probative force
- It is unreliable (a lie can be repeated).
- It allows for easy fabrication or self-made evidence.
- It is unnecessary as we don’t expect a truthful witness’ story to change.
- It is time consuming and duplicative.
R v Roberts
Facts
- A said killing his girlfriend was an accident and testified to telling his dad that it
was an accident 2 days after the killing.
Court
- A party cannot make evidence for himself.
- It does not help the court shed light on what happened.
Exceptions to the rule against narrative
These exceptions are numerus clausus
1. To rebut an allegation of fabrication
- When a cross-examiner suggests that a witness fabricated testimony.
- The attack must be specific to the witness’ testimony
> A cross-examiner cannot say the witness is not credible in general.
- PCS is used to save the witness and show consistency between statements.
2. Prior identification
- Dock identification (where the prosecutor asks the witness to point the defendant
out in court)
> This has little probative value because it’s obvious who the defendant is.
