LEARNING UNIT 1: OVERVIEW
The presentation of evidence:
- Oral evidence is given by a witness, delivering her testimony from the witness box.
- Real things may also be presented to the court as evidence.
- Information that is contained in some kind of document
- Court will simply take notice of well-known or easily determined facts
- Some legal rule may provide for the presumption of a fact.
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.
The reasons for excluding evidence.
- evidence can be admissible only if it deals with the problem in question (if it is relevant)
- evidence concerning a prior statement by a witness that merely serves as corroboration for
herself is inadmissible
- 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
- a witness should generally tell of her first-hand experiences and not of what she learnt from
others (hearsay evidence)
- a witness may not give evidence which amounts to taking over the court’s function of having
to reach a conclusion (opinion evidence)
- people who incriminate themselves (through admissions and confessions) have to do so
absolutely voluntarily, otherwise those incriminating statements cannot be used against them
- some evidence may be excluded simply because some higher value is believed to be protected
by such exclusion (privilege)
- evidence acquired in violation of the Bill of Rights in the Constitution may often have to be
excluded
Part 1 General concepts and sources of the law of evidence
Learning unit 2 Concepts in the law of evidence
,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.
adjective law (sometimes known as procedural law), prescribes the general procedure to be followed
in court and legal transactions. The law of evidence is part of adjective law.
Proof of a fact means that the court has received probative material with regard to such fact and has
accepted such fact as being the truth for purposes of the specific case. Evidence of a fact is not yet
proof of such fact: the court must still decide whether or not such fact has been proved. This involves
a process of evaluation.
Learning unit 3 Sources of the law of evidence
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
The Constitution of the Republic of South Africa 108 of 1996 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.
It is important to remember that until our courts decide otherwise, you may assume that the
provisions of the Constitution apply only to criminal cases or civil matters where the state is involved,
and not to civil cases in general.
The rights of arrested people - 70Section 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 (s 35(1)(a) and (b))
2. not to be compelled to make a confession or admission which could be used in evidence against
him or her (s 35(1)(c))
The rights of a detained person - 72Section 35(2) provides for the rights of a detained person,
including the right
1. to be informed promptly of the reason for being detained (s 35(2)(a))
2. to choose, and to consult with a legal practitioner, and to be informed of this right promptly (s
35(2)(b))
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 (s 35(2)(c)
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 suffi cient details to answer it (s 35(3)(a))
,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 (s
35(3)(i) and (j))
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.
The limitation clause - Section 36(1) contains a provision which has become known as the “limitation
clause”. With regard to the above section, 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
The Canadian Charter of Rights is similar to the South African Bill of Rights because it also provides for
rights which are limited by a limitation clause. This type of constitution requires a two-phased
interpretation by the court. Firstly, the court must determine whether a right has been infringed. If
so, in the second phase, it is determined whether the infringement can be justified by the limitation
clause. The similarity of our Bill of Rights to the Canadian Charter is one reason why decisions by the
Canadian Supreme Court are of particular importance when there are any questions about the
interpretation of our Constitution. Other constitutions, such as that of the United States of America,
have no limitation clause.
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
those parts of the English law of evidence will remain part of the South African law of evidence.
Criminal Proceedings: The Post-Union Period
In the period before South Africa became a Union (that is, before 1910) the English law of evidence
was directly and indirectly incorporated into the different colonies which later became the Union.
“direct incorporation” of foreign law by, for instance, South African statutes using the exact wording
of foreign legislation,
“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.
When the Union became a Republic it was thought that further direct references to another
country’s laws were inappropriate. The Criminal Procedure Amendment Act 92 of 1963
removed all references to “the Supreme Court of Judicature in England” from the then
Criminal Procedure Act 56 of 1955: these references were replaced by references to the law
as it stood on the “thirtieth May 1961” (the day before South Africa became a Republic). Thus
provisions such as the following in the Criminal Procedure Act 51 of 1977 now refer to the law
as it was “on the thirtieth day of May, 1961”:
section 190(1), which deals with the credibility of witnesses
, section 201, which deals with legal professional privilege
section 202, which deals with state privilege
section 203, which deals with the privilege against self-incrimination
section 206, which deals with the competence, compellability or privilege of witnesses
section 227, which deals with the character of an accused
section 252, which deals with the general admissibility of evidence
Civil Proceedings: The Post-Union Period
Section 42 of the Civil Proceedings Evidence Act 25 of 1965 provides that the law on the competence
and compellability of witnesses, as well as the examination and cross- examination of witnesses, which
would have been applicable on 30 May 1961, will apply in any case where no provision had been made
in terms of the Civil Proceedings Evidence Act or in terms of any other South African legislation.
English decisions after 30 May 1961 are not binding upon South African courts, but do have
considerable persuasive force.
THE LAW OF EVIDENCE AND CUSTOMARY LAW
The information provided below is based on research done by MW Prinsloo on customary law in
Lebowa.
It can be said that our customary law of evidence is based on custom as encapsulated in customary
idioms and proverbs. Whilst they are unwritten and relatively informal, they are based on
reasonableness and purposefulness. Their application in a given case is guided by their inherent
principles. Cross-examination is done during the presentation of the evidence and any of the elders or
accused persons may ask questions at any stage during such presentation.
As is the case in our current law of evidence, it is important that the court consider the evidentiary
material presented by both parties. It is said: “tshekanoši e fi wa kgomo e swana”. This means that,
where one party alone proves a case, such party receives the black cow; in other words, where only
one side presents its case, such party will always be successful.
It is said: “diphoofolo di bolawa ke dihlatse”. This means that wild animals are killed by the witnesses,
that is, that a case is determined by evidence.
If a case has been heard and judgment given, such judgment is the final decision in the matter. It is
said: “selepe sa re kgo! Se remile”. This literally means that, if the axe has chopped, a decisive
conclusion has been reached.
Of paramount importance is the questioning of such a witness to determine his or her credibility. It is
said: “kgomo e tshwarwa ka dinaka, motho o tshwarwa ka leleme”. Loosely translated, this means
that “a bull is caught by its horns, a human by his [or her] tongue”. Stripped of its figurative meaning,
it means that cross-examination can expose the truth.
Some examples of evidence or types of evidence
- Normal hearsay evidence (“pudi ya tsela” or, literally, “a goat of the road or a wandering
goat”) is not considered in order to determine a fact and a court can stop a witness who wants
to present only hearsay evidence. It has little evidential value if the party denies such fact.
- A statement made by a deceased regarding the division of his estate among his children is not
considered to be hearsay and is in any case the only sufficient proof in this regard. It is said:
The presentation of evidence:
- Oral evidence is given by a witness, delivering her testimony from the witness box.
- Real things may also be presented to the court as evidence.
- Information that is contained in some kind of document
- Court will simply take notice of well-known or easily determined facts
- Some legal rule may provide for the presumption of a fact.
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.
The reasons for excluding evidence.
- evidence can be admissible only if it deals with the problem in question (if it is relevant)
- evidence concerning a prior statement by a witness that merely serves as corroboration for
herself is inadmissible
- 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
- a witness should generally tell of her first-hand experiences and not of what she learnt from
others (hearsay evidence)
- a witness may not give evidence which amounts to taking over the court’s function of having
to reach a conclusion (opinion evidence)
- people who incriminate themselves (through admissions and confessions) have to do so
absolutely voluntarily, otherwise those incriminating statements cannot be used against them
- some evidence may be excluded simply because some higher value is believed to be protected
by such exclusion (privilege)
- evidence acquired in violation of the Bill of Rights in the Constitution may often have to be
excluded
Part 1 General concepts and sources of the law of evidence
Learning unit 2 Concepts in the law of evidence
,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.
adjective law (sometimes known as procedural law), prescribes the general procedure to be followed
in court and legal transactions. The law of evidence is part of adjective law.
Proof of a fact means that the court has received probative material with regard to such fact and has
accepted such fact as being the truth for purposes of the specific case. Evidence of a fact is not yet
proof of such fact: the court must still decide whether or not such fact has been proved. This involves
a process of evaluation.
Learning unit 3 Sources of the law of evidence
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
The Constitution of the Republic of South Africa 108 of 1996 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.
It is important to remember that until our courts decide otherwise, you may assume that the
provisions of the Constitution apply only to criminal cases or civil matters where the state is involved,
and not to civil cases in general.
The rights of arrested people - 70Section 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 (s 35(1)(a) and (b))
2. not to be compelled to make a confession or admission which could be used in evidence against
him or her (s 35(1)(c))
The rights of a detained person - 72Section 35(2) provides for the rights of a detained person,
including the right
1. to be informed promptly of the reason for being detained (s 35(2)(a))
2. to choose, and to consult with a legal practitioner, and to be informed of this right promptly (s
35(2)(b))
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 (s 35(2)(c)
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 suffi cient details to answer it (s 35(3)(a))
,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 (s
35(3)(i) and (j))
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.
The limitation clause - Section 36(1) contains a provision which has become known as the “limitation
clause”. With regard to the above section, 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
The Canadian Charter of Rights is similar to the South African Bill of Rights because it also provides for
rights which are limited by a limitation clause. This type of constitution requires a two-phased
interpretation by the court. Firstly, the court must determine whether a right has been infringed. If
so, in the second phase, it is determined whether the infringement can be justified by the limitation
clause. The similarity of our Bill of Rights to the Canadian Charter is one reason why decisions by the
Canadian Supreme Court are of particular importance when there are any questions about the
interpretation of our Constitution. Other constitutions, such as that of the United States of America,
have no limitation clause.
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
those parts of the English law of evidence will remain part of the South African law of evidence.
Criminal Proceedings: The Post-Union Period
In the period before South Africa became a Union (that is, before 1910) the English law of evidence
was directly and indirectly incorporated into the different colonies which later became the Union.
“direct incorporation” of foreign law by, for instance, South African statutes using the exact wording
of foreign legislation,
“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.
When the Union became a Republic it was thought that further direct references to another
country’s laws were inappropriate. The Criminal Procedure Amendment Act 92 of 1963
removed all references to “the Supreme Court of Judicature in England” from the then
Criminal Procedure Act 56 of 1955: these references were replaced by references to the law
as it stood on the “thirtieth May 1961” (the day before South Africa became a Republic). Thus
provisions such as the following in the Criminal Procedure Act 51 of 1977 now refer to the law
as it was “on the thirtieth day of May, 1961”:
section 190(1), which deals with the credibility of witnesses
, section 201, which deals with legal professional privilege
section 202, which deals with state privilege
section 203, which deals with the privilege against self-incrimination
section 206, which deals with the competence, compellability or privilege of witnesses
section 227, which deals with the character of an accused
section 252, which deals with the general admissibility of evidence
Civil Proceedings: The Post-Union Period
Section 42 of the Civil Proceedings Evidence Act 25 of 1965 provides that the law on the competence
and compellability of witnesses, as well as the examination and cross- examination of witnesses, which
would have been applicable on 30 May 1961, will apply in any case where no provision had been made
in terms of the Civil Proceedings Evidence Act or in terms of any other South African legislation.
English decisions after 30 May 1961 are not binding upon South African courts, but do have
considerable persuasive force.
THE LAW OF EVIDENCE AND CUSTOMARY LAW
The information provided below is based on research done by MW Prinsloo on customary law in
Lebowa.
It can be said that our customary law of evidence is based on custom as encapsulated in customary
idioms and proverbs. Whilst they are unwritten and relatively informal, they are based on
reasonableness and purposefulness. Their application in a given case is guided by their inherent
principles. Cross-examination is done during the presentation of the evidence and any of the elders or
accused persons may ask questions at any stage during such presentation.
As is the case in our current law of evidence, it is important that the court consider the evidentiary
material presented by both parties. It is said: “tshekanoši e fi wa kgomo e swana”. This means that,
where one party alone proves a case, such party receives the black cow; in other words, where only
one side presents its case, such party will always be successful.
It is said: “diphoofolo di bolawa ke dihlatse”. This means that wild animals are killed by the witnesses,
that is, that a case is determined by evidence.
If a case has been heard and judgment given, such judgment is the final decision in the matter. It is
said: “selepe sa re kgo! Se remile”. This literally means that, if the axe has chopped, a decisive
conclusion has been reached.
Of paramount importance is the questioning of such a witness to determine his or her credibility. It is
said: “kgomo e tshwarwa ka dinaka, motho o tshwarwa ka leleme”. Loosely translated, this means
that “a bull is caught by its horns, a human by his [or her] tongue”. Stripped of its figurative meaning,
it means that cross-examination can expose the truth.
Some examples of evidence or types of evidence
- Normal hearsay evidence (“pudi ya tsela” or, literally, “a goat of the road or a wandering
goat”) is not considered in order to determine a fact and a court can stop a witness who wants
to present only hearsay evidence. It has little evidential value if the party denies such fact.
- A statement made by a deceased regarding the division of his estate among his children is not
considered to be hearsay and is in any case the only sufficient proof in this regard. It is said:
