PBL4801F Law of Evidence
Comprehensive Study Notes & Practice Questions
Weeks 1–6 | Professor PJ Schwikkard
Topics: Proof Without Evidence | Relevance & Admissibility | Opinion Evidence | Previous Consistent
Statements | Character | Similar Fact | Privilege | Unconstitutionally Obtained Evidence
Table of Contents
Use the headings below as a guide. Each section contains notes, key concepts, case
summaries, and practice questions.
Week 1: Introduction to Law of Evidence
Week 2: Proof Without Evidence (Formal Admissions, Judicial Notice, Presumptions)
Week 3: Admissibility of Relevant Evidence & Opinion Evidence
Week 4: Previous Consistent Statements, Character & Similar Fact Evidence
Week 5: Exclusion of Relevant Evidence (Privilege)
Week 6: Unconstitutionally Obtained Evidence
Integrated Practice Questions
WEEK 1: Introduction to Law of Evidence
1.1 Core Concepts
The law of evidence governs what evidence may be placed before a court, how it is
presented, and the weight it carries. It is not ideologically neutral — its rules have historically
reflected the values of those who designed them.
Key Latin terms you must know:
• Facta probanda — the facts in issue (what must be proved)
• Facta probantia — facts relevant to the facts in issue (evidence used to prove facta
probanda)
• Probative value — the extent to which evidence proves or disproves a fact in issue
• Prima facie proof — preliminary, rebuttable proof made out at an early stage
PBL4801F Law of Evidence — Comprehensive Study Notes | Page 1
, • Conclusive proof — final determination at end of proceedings in accordance with the
standard of proof
1.2 Direct vs Circumstantial Evidence
All evidence requires drawing at least one baseline inference. The distinction between direct
and circumstantial evidence lies in the degree of inferential reasoning required.
• Direct evidence — No additional inference is required to establish the facta probanda
(e.g. eyewitness testimony: 'I saw X stab Y')
• Circumstantial evidence — Additional inferences must be drawn from the evidence to
reach the facta probanda
KEY CONCEPT: R v Blom [1939] — The Two Cardinal Rules for Circumstantial
Evidence
All evidence was circumstantial. The court laid down two cardinal rules: (1) The inference sought
to be drawn must be consistent with all the proven facts; if not, that inference cannot be drawn.
(2) The proven facts must be such that they exclude every reasonable inference from them save
the one sought to be drawn.
1.3 Burden and Standard of Proof
The burden of proof (onus) determines who must prove a fact. The standard of proof
determines how convincingly it must be proved.
• Criminal proceedings — The prosecution must prove guilt beyond a reasonable
doubt. The accused bears no burden to prove innocence.
• Civil proceedings — The plaintiff proves their case on a balance of probabilities
(more probable than not).
• Evidential burden — The burden of adducing enough evidence to place an issue in
dispute. It shifts between parties.
• Legal burden — The ultimate burden that must be discharged at the end of the trial. It
usually rests with the prosecution/plaintiff.
1.4 The Decolonial Critique
Evidence law is not neutral. Key questions to interrogate:
• What are the origins of the rules?
• Whose interests do the rules serve?
• What values do the rules promote?
• Rules of evidence in sexual offence cases have historically illustrated the dominance
of patriarchy (e.g., corroboration rules, prior sexual history rules).
• Many rules justified by the jury system (abolished in South Africa in 1969) have been
retained without re-examination.
PRACTICE QUESTIONS — SHORT ANSWER — WEEK 1
1. Define the terms 'facta probanda' and 'facta probantia' and explain the difference between
them.
2. What is the difference between a legal burden and an evidential burden?
3. Distinguish between direct evidence and circumstantial evidence with an example of each.
4. What is the standard of proof in criminal proceedings? How does it differ from the standard
PBL4801F Law of Evidence — Comprehensive Study Notes | Page 2
, in civil proceedings?
5. What are the two cardinal rules for the use of circumstantial evidence laid down in R v
Blom?
PRACTICE QUESTIONS — LONG ANSWER — WEEK 1
6. Critically evaluate the proposition that the South African law of evidence is not
ideologically neutral. In your answer, refer to at least two specific rules of evidence and the
interests they serve.
7. In a civil matter, the plaintiff relies solely on circumstantial evidence to prove their claim.
The defendant argues that this is insufficient. Advise the plaintiff, with reference to the
applicable principles.
8. Explain the distinction between the evidential burden and the legal burden of proof, and
discuss how the allocation of these burdens impacts the right of an accused to be
presumed innocent.
WEEK 2: Proof Without Evidence
There are three instances where a fact can be proved without leading evidence: formal
admissions, judicial notice, and presumptions.
2.1 Formal Admissions
An admission is a statement adverse to the interests of the person making it. Admissions are
divided into:
• Formal admissions — Made in pleadings or in court; generally constitute
conclusive/sufficient proof of the admitted fact
• Informal admissions — Made out of court; merely an item of evidence that can be
contradicted or explained away
Distinguishing Formal from Informal Admissions
• Formal admissions are binding on their makers; informal admissions are not
• Formal admissions narrow the issues in dispute; informal admissions frequently
create additional issues (e.g., was the admission voluntary?)
• Formal admissions must be made intentionally; no such intention is required for
informal admissions
• Formal admissions can only be withdrawn if certain legal requirements are met;
informal admissions can simply be contradicted
Withdrawal of a Formal Admission
Criminal proceedings: A formal admission constitutes conclusive proof but may be withdrawn
if made by mistake or duress. Once withdrawn, the admission is no longer binding but
remains as an item of evidence.
Civil proceedings: A court may allow amendment of pleadings containing a formal admission
if: (1) a bona fide mistake was made; and (2) the amendment will not cause prejudice to the
other side that cannot be cured by a costs order.
PBL4801F Law of Evidence — Comprehensive Study Notes | Page 3
Comprehensive Study Notes & Practice Questions
Weeks 1–6 | Professor PJ Schwikkard
Topics: Proof Without Evidence | Relevance & Admissibility | Opinion Evidence | Previous Consistent
Statements | Character | Similar Fact | Privilege | Unconstitutionally Obtained Evidence
Table of Contents
Use the headings below as a guide. Each section contains notes, key concepts, case
summaries, and practice questions.
Week 1: Introduction to Law of Evidence
Week 2: Proof Without Evidence (Formal Admissions, Judicial Notice, Presumptions)
Week 3: Admissibility of Relevant Evidence & Opinion Evidence
Week 4: Previous Consistent Statements, Character & Similar Fact Evidence
Week 5: Exclusion of Relevant Evidence (Privilege)
Week 6: Unconstitutionally Obtained Evidence
Integrated Practice Questions
WEEK 1: Introduction to Law of Evidence
1.1 Core Concepts
The law of evidence governs what evidence may be placed before a court, how it is
presented, and the weight it carries. It is not ideologically neutral — its rules have historically
reflected the values of those who designed them.
Key Latin terms you must know:
• Facta probanda — the facts in issue (what must be proved)
• Facta probantia — facts relevant to the facts in issue (evidence used to prove facta
probanda)
• Probative value — the extent to which evidence proves or disproves a fact in issue
• Prima facie proof — preliminary, rebuttable proof made out at an early stage
PBL4801F Law of Evidence — Comprehensive Study Notes | Page 1
, • Conclusive proof — final determination at end of proceedings in accordance with the
standard of proof
1.2 Direct vs Circumstantial Evidence
All evidence requires drawing at least one baseline inference. The distinction between direct
and circumstantial evidence lies in the degree of inferential reasoning required.
• Direct evidence — No additional inference is required to establish the facta probanda
(e.g. eyewitness testimony: 'I saw X stab Y')
• Circumstantial evidence — Additional inferences must be drawn from the evidence to
reach the facta probanda
KEY CONCEPT: R v Blom [1939] — The Two Cardinal Rules for Circumstantial
Evidence
All evidence was circumstantial. The court laid down two cardinal rules: (1) The inference sought
to be drawn must be consistent with all the proven facts; if not, that inference cannot be drawn.
(2) The proven facts must be such that they exclude every reasonable inference from them save
the one sought to be drawn.
1.3 Burden and Standard of Proof
The burden of proof (onus) determines who must prove a fact. The standard of proof
determines how convincingly it must be proved.
• Criminal proceedings — The prosecution must prove guilt beyond a reasonable
doubt. The accused bears no burden to prove innocence.
• Civil proceedings — The plaintiff proves their case on a balance of probabilities
(more probable than not).
• Evidential burden — The burden of adducing enough evidence to place an issue in
dispute. It shifts between parties.
• Legal burden — The ultimate burden that must be discharged at the end of the trial. It
usually rests with the prosecution/plaintiff.
1.4 The Decolonial Critique
Evidence law is not neutral. Key questions to interrogate:
• What are the origins of the rules?
• Whose interests do the rules serve?
• What values do the rules promote?
• Rules of evidence in sexual offence cases have historically illustrated the dominance
of patriarchy (e.g., corroboration rules, prior sexual history rules).
• Many rules justified by the jury system (abolished in South Africa in 1969) have been
retained without re-examination.
PRACTICE QUESTIONS — SHORT ANSWER — WEEK 1
1. Define the terms 'facta probanda' and 'facta probantia' and explain the difference between
them.
2. What is the difference between a legal burden and an evidential burden?
3. Distinguish between direct evidence and circumstantial evidence with an example of each.
4. What is the standard of proof in criminal proceedings? How does it differ from the standard
PBL4801F Law of Evidence — Comprehensive Study Notes | Page 2
, in civil proceedings?
5. What are the two cardinal rules for the use of circumstantial evidence laid down in R v
Blom?
PRACTICE QUESTIONS — LONG ANSWER — WEEK 1
6. Critically evaluate the proposition that the South African law of evidence is not
ideologically neutral. In your answer, refer to at least two specific rules of evidence and the
interests they serve.
7. In a civil matter, the plaintiff relies solely on circumstantial evidence to prove their claim.
The defendant argues that this is insufficient. Advise the plaintiff, with reference to the
applicable principles.
8. Explain the distinction between the evidential burden and the legal burden of proof, and
discuss how the allocation of these burdens impacts the right of an accused to be
presumed innocent.
WEEK 2: Proof Without Evidence
There are three instances where a fact can be proved without leading evidence: formal
admissions, judicial notice, and presumptions.
2.1 Formal Admissions
An admission is a statement adverse to the interests of the person making it. Admissions are
divided into:
• Formal admissions — Made in pleadings or in court; generally constitute
conclusive/sufficient proof of the admitted fact
• Informal admissions — Made out of court; merely an item of evidence that can be
contradicted or explained away
Distinguishing Formal from Informal Admissions
• Formal admissions are binding on their makers; informal admissions are not
• Formal admissions narrow the issues in dispute; informal admissions frequently
create additional issues (e.g., was the admission voluntary?)
• Formal admissions must be made intentionally; no such intention is required for
informal admissions
• Formal admissions can only be withdrawn if certain legal requirements are met;
informal admissions can simply be contradicted
Withdrawal of a Formal Admission
Criminal proceedings: A formal admission constitutes conclusive proof but may be withdrawn
if made by mistake or duress. Once withdrawn, the admission is no longer binding but
remains as an item of evidence.
Civil proceedings: A court may allow amendment of pleadings containing a formal admission
if: (1) a bona fide mistake was made; and (2) the amendment will not cause prejudice to the
other side that cannot be cured by a costs order.
PBL4801F Law of Evidence — Comprehensive Study Notes | Page 3
