Weekly Lecture/Comment: Lecture 4 (Learning

Units 9 and 10)

Note that you are now done with the first important section of the law of evidence,
namely the presentation of different kinds of evidence. You will now learn more about
the second important part of the law of evidence, namely the admissibility of different
kinds of evidence. It is very important that you understand the definition of each type of
evidence in the study guide. The cases will help you to understand this and it is
important to read the cases as indicated. This part of the work often presents students
with problems and this is because they try to study without understanding. You will get
confused between concepts such as hearsay, evidence about admissions and
confessions and evidence about previous consistent statements if you do not
understand the definition and meaning of these different types of evidence. I have tried
my best to differentiate between these concepts in the study guide, but it is up to you to
ensure that you understand the difference between them. You will not be able to identify
questions about them in the exam if you do not understand its meaning.

Learning Unit 9 (Relevance and admissibility of

evidence)
When you study the principle or basic requirement for the admissibility of evidence,
namely relevance, keep the following scheme in the back of your mind:

Relevance or “Legal Relevance” is based on “Logical Relevance” and “Desirability”.

Logical Relevance (explain the meaning and provide an example on your own – see
paragraph 9.2 of the Study Guide).

Desirability consists of a low potential for prejudice and a high probative value. A high
probative value means that the evidence can give rise to reasonable inferences in
deciding the facts is issue. It is therefore always very important to determine the facts in
issue. In the case of a crime, for example, the different elements of a specific crime will
firstly be the issues that are going to be in dispute. (Carefully study the feedback at
Activity 9.2 in the Study Guide).

A low potential for prejudice means that the evidence must not have the potential to
prejudice the other party because its probative value is over-estimated because of the
dramatic nature of such evidence. (See the explanation at paragraph 9.2.4 in the Study
Guide).

Legal Relevance = Logical Relevance + Desirability

Desirability = Low potential for prejudice + High probative value
High probative value = Reasonable inferences about the facts in issue

Please note that although irrelevant evidence will never be admissible, one cannot
assume the converse, namely that all relevant evidence will always be admissible.
Hearsay evidence is an example of evidence that might be logically speaking very
relevant, but which is generally inadmissible. It is inadmissible because it is unreliable,
since the witness who gives the hearsay evidence cannot vouch for its reliability or
probative value. It will therefore be difficult for the opponent to dispute or disprove such
evidence.

Many of the reasons why certain types of evidence are inadmissible exist because such
pieces of evidence generally have a high potential for prejudice and a low probative
value.

Note that when a court considers whether to admit certain evidence, it is not concerned
with the final weight of that evidence – see page 65 of the Study Guide in this regard
and compile your own answer/explanation to the following statement: “The weight of a
specific piece of evidence is not important when the court considers the admissibility of
that evidence”.

Ensure that you understand the principles discussed in S v Shabalala and R v

Trupedo as discussed in the feedback to the activities and in the casebook.

LEARNING UNIT 10 (Character evidence)

When you study this unit, take note that the character of three types of persons is at
issue here:

• The accused
• Witnesses other than the accused
• The complainant in cases of a sexual nature

Also take note that evidence about the accused’s character can be revealed to the court
in two different ways: through the presentation of evidence in this regard and through
answers provided during cross-examination (see the discussion above at Lecture 3 for
an explanation of what cross-examination is all about). Different rules apply to each
specific process and you must ensure that you understand the limits in this regard.

Note that evidence about an accused’s previous convictions is inadmissible in terms of

section 211 of the Criminal Procedure Act 51 of 1977, but that there are exceptions in
this regard: Firstly, where the Criminal Procedure Act 51 of 1977 expressly provides
otherwise. This refers to section 252 of the Criminal Procedure Act, which applies the
law that was in force on 30 May 1961 (this is an example of a residuary section – see
lecture 2). Essentially it means that where the previous conviction is very similar to the
current charge, it can possibly be admissible as similar fact evidence. The principles
governing the admissibility of similar fact evidence will therefore take precedence over
section 211, owing to the operation of section 252 of the Criminal Procedure Act, which
applies the law that was in force on 30 May 1961. You do not have to study the
admissibility of similar fact evidence, but you must know and understand this principle.
The second instance where evidence about an accused’s previous convictions can be
admissible, is where the previous conviction is an element of the crime with which the
accused is charged, such as the crime of escaping from prison.

Note that evidence of the character of a complainant in cases of an indecent nature is in

principle inadmissible because there is a danger that the court could conclude that, by
reason of the sexual nature of the complainant’s experience or conduct, the
complainant is more likely to have consented to the offence being tried, or is less worthy
of belief, event though such information had nothing to do with the crime at hand. Also
note that evidence of the character of the complainant can either be presented or be
revealed during cross-examination. It is important that you study the feedback to Activity
10.4 and do Questions 3 of the self-evaluation questions. Question 3.2 deals with
previous consistent statements (see the next Learning Unit).