QUESTION

WITH THE AID OF CASES AND OR EXAMPLES DISTINGUISH BETWEEN THE

FOLLOWING TERMS AS THEY RELATE TO THE LAW OF EVIDENCE.
FACT IN ISSUE AND FACTS RELEVANT TO THE ISSUE.
COMPETENT WITNESS AND COMPELLABLE WITNESS.
LEGAL BURDEN AND EVIDENTIAL BURDEN.
PRESUMPTION OF LAW AND PRESUMPTION OF FACT.
A DYING DECLARATION AND A STATEMENT BY DECEASED PERSON.

The law of evidence explores rules which govern and regulate the facts that are
receivable in a court case be it in criminal or civil cases. It specifies what facts may
be admitted in a trial and how they are proved.
FACTS IN ISSUE AND FACTS RELEVANT TO THE ISSUE.

The general rule of adducing evidence in a court of law is that evidence may be led of
facts in issue and of facts relevant to the issue. Only these two classes of facts
purportedly are allowed to be proved in evidence. Zimbabwe Republic Police Powers,
Procedure and the Law of Evidence Manual.

Facts relevant to the issue are, “Any facts… relevant if from their existence
inferences may be properly drawn as to the existence of the facts in issue”, as
defined by Hoffman L.H and Zeffert DT (1988) ‘The South African Law of Evidence’
fourth edition citing the case law in R v Mpunza.

Facts in Issue are the main facts that a part carrying the persuasive, burden of proof
must establish in order to succeed. Oxford Dictionary of Law fifth Edition (2003)

Facts in issue are those facts which the prosecution needs to establish for it to
succeed or the accused to establish in order for defence to succeed

To come to a conclusion as to what constitutes facts relevant to the issue is intricate

but the position of law is any fact is relevant to the issue if it is so connected with a
fact in issue as to make its existence more probable or less probable.

R v Trupedo 1920 AD 58, in which the accused was charged with theft in which he is
alleged to have entered a room at night and stole goods and went away unnoticed
thereby one of the issue was to identify the accused. Evidence led was that he was
picked out by a police dog which identified him (by barking) among 8 other Africans
sleeping in a hut. The evidence was held to be irrelevant thereby inadmissible, Innes
CJ stated that, “A fact in issue in a proceeding may be whether X entered a certain
room at night…..”

Facts in issue can be proved by direct evidence and facts relevant to the issue are
proved by circumstantial evidence.

Direct evidence is evidence from a witness who actually perceived a fact issue by one
of his five senses or evidence of a fact actually in issue.
On the other hand circumstantial evidence is evidence, not of a fact directly in issue,
but of a fact relevant to the issue.

For example, X charged with charged with assaulting Y with a stick, the fact in issue
is whether X assaulted Y. If then it is made known that X took a stick and went to Y’s
house, this is circumstantial evidence which is relevant to the fact in issue. The
assumption drawn is X assaulted Y. However the actual striking can only be proved by
direct evidence.

COMPETENT WITNESS AND COMPELLABLE WITNESS.

A competent witness is one who may lawfully be called to give evidence.

A witness is compellable if it is compulsory for him or her to give evidence.

The general rule in terms of section 244 of the Criminal Procedure and Evidence Act
Chapter 9:07, every person is competent and compellable to give evidence in a court
of law, although there exception to this rule.

It can further be stressed that all compellable witnesses have to be competent but
not all competent witnesses are compellable.

In AG Transvaal v. Kader 1991 (4) SA 727 The Appellate Division considered the
phrase “just excuse” and held that it could not be limited to lawful excuses arising
from the rules of privilege, compellability of witnesses or the admissibility of
evidence. The court held that it would serve no purpose to try and define the
circumstances which would amount to a just excuse as each case had to be decided
on its merits having regard to general principles.

If a witness is not compellable he is entitled to refuse altogether to enter the witness

stand or take the oath.

A witness merely entitled to privilege must submit to be sworn and listen to the
questions which the parties may wish to ask. He may then claim the right to refuse to
answer questions if they fall within the scope of his privilege.
It has been held, for example, that an insolvent’s attorney is a compellable witness at
the statutory inquiry into the insolvent’s affairs. He may be entitled to refuse to
answer to all relevant questions on the grounds of professional privilege; he must
nevertheless enter the witness box and make his objection to each question in turn.
In civil proceedings a compellable witness who refuses to take the oath or affirmation
or who without a valid claim of privilege refuses to answer particular questions, may
be committed to prison for contempt of court.

After all has been said and done it was a distinction between who can give evidence?
(Competence) and who must give evidence? (Compellability).
LEGAL BURDEN AND EVIDENTIAL BURDEN.
Legal burden referred as “the risk of non-persuasion” Hoffmann and Zeffertt South
African law of Evidence, fourth edition (1988:495).
On other hand the evidential burden is aptly known as “problem passing the judge “.

The general rule in regard to the burden of proof is “Actori incumbit onus
probandi” i.e. “he who alleges a fact must prove it”.

Evidential burden is the obligation to produce evidence to properly raise an issue at

trial.
Legal burden or a "burden of persuasion" is an obligation that remains on a single
party for the duration of the claim.

Evidential burden has been described as the obligation "to illustrate, if called upon to
do so, that there is sufficient evidence to raise an issue as to the existence or non-
existence of a fact in issue".

It can rest on either party, It is by nature revolves throughout the trial, although it
usually relates to matters of defences raised by the accused.
Some evidences impose an evidential burden on the defendant which, if met, imposes
a legal burden on the prosecution, e.g. if a person charged with murder pleads self-
defense, the defendant must satisfy the evidential burden that there are some
evidence suggesting self-defence.
The legal burden fall on the prosecution to prove beyond reasonable doubt that the
defendant was not acting in self-defence.

To satisfy the burden, there must be evidence which both supported the issue and
which is sufficiently substantial to raise a reasonable doubt as to the accused’s guilt.
Whether the burden is satisfied is a matter for the judge.

In R v Acott [1997] UKHL 5 WLR 306, the defendant was charged with murdering his
mother. He claimed his mother was injured in a fall, but the medical evidence
demonstrated that the deceased died because of a sustained attack and was
indicative of a possible loss of self-control from the defendant. The trial judge did not
leave the issue of provocation to the jury, and the defendant was eventually
convicted. The defendant's appeal to the Court of Appeal was dismissed and he
appealed to the House of Lords, the issue being:

The reason for imposing an evidential burden is to ensure the prosecution does not
have to disprove all imaginable defences, only those properly supported by sufficient
evidence. Lord Morris of Borth-y-Gest said in Bratty v Attorney-General for Northern
Ireland: [1961] UKHL 3, [1963] AC 386.

As human behaviour may manifest itself in infinite varieties of circumstances it is

perilous to generalize, but it is not every facile mouthing of some easy phrase of
excuse that can amount to an explanation. It is for a judge to decide whether there is
evidence fit to be left to the jury which could be the basis of some suggested
verdict…
The presumption of innocence places a legal burden upon the prosecution to prove all
elements of the offense (generally beyond a reasonable doubt) and to disprove all the
defenses except for affirmative defenses in which the proof of non-existence of all
affirmative defense(s) is not constitutionally required of the prosecution.

It is not to be confused with evidential burden, which is an obligation that shifts

between parties over the course of the hearing or trial. It is not a burden of proof,
but the burden to adduce sufficient evidence to properly raise an issue at court.

In conclusion the legal burden will endure the full course of the trial proceedings till
such time the court is of the opinion that the state has adduced sufficient evidence to
secure a conviction beyond reasonable grounds.

In contrast Evidential evidence is called first to test on the close of the state case
when the defence is of the opinion that the state has failed to prove a prima facie
and it would be within their right to apply for discharge at the end of the State case.
In Hartlebury & Anor 1985 (1) ZLR 1 (H), MCNALLY J elaborated further on the
application of this test. He said that a court may order discharge where there is no
evidence on which a reasonable court may convict.

When considering whether to discharge X, the judicial officer must consider whether
the State has made out a prima facie case against X. It is not necessary at this stage
that the State should have proved guilt beyond all reasonable doubt. Criminal
Defenders Manual.

PRESUMPTION OF LAW AND PRESUMPTION OF FACT.

Presumption of law is a conclusion based upon a particular set of facts, combined

with established laws, logic or reasoning.

It is a rule of law which allowing a court to assume a fact is true until it is rebutted by
the greater weight (preponderance) of the evidence against it.

Examples are as follows

 An accused person is presumed innocent until proven guilty.

 “Pater est quen noutiae demostrant” i.e. “the marriage indicates the
father”
 A child under the age of 7 years can not commit an offence. Et cetera.

Presumptions of fact are inferences or conclusions which the court may draw from
certain proved facts, but which it is obliged to draw.

Such presumptions are the ones that render circumstantial evidence admissible for
example X is charged with assaulting Y and it was proven that he was seen with a
stick going to Y’s house. Inference of the court would be he intentionally assaulted Y
and defence of an accident would fail.
Another example is where an accused of Theft, if found in possession of property and
fails to explain his possession of the property.

The “res ipsa loquitur” rule “the facts speaks for themselves” resembles a
presumption. In R v Girdlestone 1948 SR, in which the accused crashed his vehicle into
a traffic light on a road he was so much familiar with and area was well lit. He stated
that he could not recall events leading to the accident. The inference drawn was that
he was negligent

In summing up, the distinction between a presumption of law and a presumption of

fact is defined in Vol. 9, Encyclopedia of Evidence, 882, as follows:

"The distinction usually drawn between these two classes of presumptions is that a
presumption of law is an arbitrary rule of law that when a certain fact or facts appear
a certain other fact is, for the purposes of the case, deemed to be established, either
conclusively or until contrary evidence is introduced; while a presumption of fact is
merely a logical inference or conclusion which the court is at liberty to draw or refuse
to draw."

A DYING DECLARATION AND A STATEMENT BY DECEASED PERSON.

The maxim “Nemo moriturus praesumitur mentire” is basis for ''dying declaration'',
which means '' a man will not meet his maker with a lie in his mouth''.

The maxim “Res gestae” means those “those acts, statements and incidents which
constitute or accompany and explain, the fact or transaction in issue”

Dying declarations are only admissible in cases of murder or culpable homicide arising
out of the death of the declarant.

Dying declaration, unlike statements by deceased, need not be so closely connected

with the facts in issue as to form part of the same occurrence.

In terms of section 254 of the Criminal Procedure and Evidence Act Chapter 9:07, If a
dying declaration is recorded carefully by the proper person preferably a Magistrate,
a Doctor or any other person in the same genus, keeping in mind the essential
ingredients of the dying declaration, such declaration retains its full value.

In S v. Hine 1910 CPD 371, the accused was charged with the murder of one Dorra by
performing an illegal abortion on her. Two days before Dorra’s death, a magistrate
recorded Dorra’s declarations, “I Dorra, with the fear of death before me and without
hope of recovery make the following statement, I am going to die, Mrs. Hine is the
cause of it, I want her to go to the black waters.”
The statement was received in evidence because the declarant knew she was going to
die. The court held, “It seems from the authorities that declarations made by persons
under a conviction of impending death, and who at the time are in actual danger of
death are admissible in evidence.”
The admissibility of such statement is explained in the section 253 of the Criminal
Procedure and Evidence Act Chapter 9:07
(2) When evidence of a statement, oral or written, made in the ordinary course of
duty, contemporaneously with the facts stated and without motive to misrepresent,
would be admissible in the Supreme Court of Judicature in England if the person who
made the statement were dead, such evidence shall be admissible in any criminal
proceedings if the person who made the statement is dead or unfit by reason of his
bodily or mental condition to attend as a witness or cannot with reasonable diligence
be identified or found or brought before the court.
[Subsection amended by section 28 of Act 9 of 2006.]
(3) The court may, in deciding whether or not the person in question—
(a) is unfit to attend as a witness, act on a certificate purporting to be a certificate of
a medical practitioner;
(b) is dead or cannot with reasonable diligence be identified or found or brought
before the court, act on evidence submitted by way of affidavit.

In Williams v. Eaglestine 1961 (2) SA 631, the court admitted statement of a

passenger who had fallen off a bus and died and which he blamed the fault on himself
and completely exonerated the driver.
The witness stated the facts without the motive to misrepresent and the statement
need not have been recorded by a Magistrate.
Statements made by the deceased are admissible because they form part of the res
gestae in any case they are relevant unlike dying declarations.
The admissibility of these statements is not subject to the same strict rules as dying
declarations.
Bibliography

1. Hoffman LH, Zeffert D, The South African Law of Evidence 6 th Edition, 1888,
Butterworth’s, Durban

2. Encyclopedia of Evidence Vol. 9 (unknown)

3. Zimbabwe Republic Police Powers, Procedure and the Law of Evidence Manual .

4. Criminal Procedure and Evidence Act Chapter 9:07 (2010) Printflow Harare.

5. Zimbabwe Law Report (1985) volume 1

6. South Africa Law Report (1961) volume 2

7. South Africa Law Report (1961) volume 4

8. United Kingdom House of Lords (1961)volume 3

9. United Kingdom House of Lords (1997)volume 5