Summary Law of Evidence (FINAL EXAM NOTES)

Lecture Notes:
04 February 2014
01:58 PM


04 February:
Introductory lecture

Consultation hours:
 Tues 11-1
 Wed 1-3

Office number correction:
 2001 OUH


05 February:
Chapter 1: Introduction to the history and theory of the Law of Evidence:
Introduction:

 Existence or non-existence of facts must be probed, before pronouncement of rights and
duties can be determined
o Validity of a contract being disputed for eg
 Validity of the contract and existence thereof must first be determined before the
rights and duties flowing from contract can be determined
 Proof of facts is regulated by law of evidence
 Law of evidence with crim proc
o Adjectival law (procedural law)
 What differentiates procedural law from private law is the fact that eng law is
regarded as the CL of the SA law of evidence
 NO RDL is applicable with law of evidence NB!!!!!!!!!!!!!!!!!!!!!!!

Function:

 Law of evidence gives practical meaning to the substantive law and which makes it effective
 Which facts are legally admissible
o R v Smith
 Accused was accused of the murder of his wife
 She was found in the bath (drowned)
 No bruises on the body
 Man was on the premises during the drowning and he said she was dead due to
an epileptic fit
 Matter went to court and the case was interesting therefore gained a lot of
publicity
 During hearing a woman said that he was previously married to her sister and she
was found dead in the same way and he alleged the same thing
 2nd woman came forward stating the same as the first woman
 Question:
 Improbability of coincidence
 Found dead in the same way
 With regard to the same man

,  This evidence was admissible
o Eg. If a 22 year old man is accused of stealing a car
 State can say that at the age of 15 the person stole a bicycle
 Is this information applicable and admissible????
 NO, this will be irrelevant and inadmissible
 HOWEVER: this may sometimes be admissible if it is relevant
 How evidence is presented in sa courts
 Which evidence may be lawfully withheld from a court
o Attorney client privelege is applicable here
o Privilege between spouses
 Weight of evidence
o NOTE: can only determine the weight of the evidence after it has been determined that
the evidence is admissible
 Standard of proof
o Crim cases: BRD
 Eg. If the accused is found not guilty, this does not mean that the court does not
think he did not do it. It means that there was no proof BRD upon which they
could convict him
o Civil cases: BoP

Development:

 Not as old as RDL
 3 phases:
o Religious phase
 Very primitive
 Importance:
 NB because it indicates why the law of evidence is younger than
 Indicates why we needed to move away from the primitive way of thinking
 Shows why the oath is so important
 Irrational methods were allowed
 Idea was that God/gods could only judge human beings, humans could not
judge each other
 "purifying oath"
 If under oath they gave evidence it was regarded as the truth because it was
unthinkable that u would lie under oath
 Trial by ordeal/Divine judgements
 Accused had to undergo a test and the outcome of that test determined
whether the person was guilty
 "Bitter water"
 Where a woman was accused of adultery a priest would give bitter water
and if her stomach swelled up she was guilty
 Ordeal of the accursed morsel
 Gave the person dry bread and if they choked they were guilty
 Reason behind this is that a person who has a guilty conscience, the feeling
of guilty would dry up his mouth
iii. Hot iron
 If the burn wound from the hot iron became infected the accused was found
guilty of the crime
 Trial by battle
 Persons who survived were not guilty

,  Physical battle later developed to a verbal battle which is still present in our courts
o Formal stage
 We became more sophisticate d and the irrational methods were gone
 Oath helpers (compurgators)
 Not eyewitnesses
 Made an oath saying that one parties story was the truth
 Win by numbers
 If you were popular you could get many people to testify and
win the case
 Indicates the importance of the oath as well, still used today but in a
different manner
o Rational phase
 Still present in our time
 Became more apparent that oath helpers could play a more prominent role
 Role of oath helpers:
 Used as decision makers due to their knowledge of a certain incident and
personal information about what happened
 Use of them in this regard led to a crude form of the jury trial
 Times changed and disputes became more complicated
 Role of oath helpers had to be adjusted accordingly
 17th century:
 Rather call witnesses to, under oath, testify to things that he saw, perceived,
experienced with his senses
 Jurors were still called as decision makers but the jurors should not have
had any personal knowledge of the circumstances or incident
 Jurors had to have an empty page in their heads, to fill the page and the
story based on the evidence that the witness presented in court
 Relationship between judges and jurors were also vested
 Judges had to determine the law
 Jurors had to make a factual finding (determine the facts)
 Judges:
 Considered the admissibility of evidence
 Jurors:
 Not trained in the law
 Will give more weight to certain inadmissible evidence
 Decision with admissibility of evidence is a fact of law and not of fact
 Trial by jury abolished:
 Crim cases
 1969
 Civil cases
 1927
 We still have an evidentiary system that was developed for the use of jurors
 Must keep in mind that the previously laid down principles are the principles that
are still applied today
 System is devised for the use of jurors
 Strict system of evidence:
 Emphasis is on the admissibility of evidence
 If evidence would mislead a juror, it is inadmissible

 GET THE DRAWING/TABLE FROM
AANISAH!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!