IURI371

November Exam Notes

Hein Steenberg
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Study Unit 16

Electronic Evidence

 Approach courts in SA have taken is based on section 221 of the CPA for business
records and section 236 for banking records (before ECTA).

 Section 221: Certain trade or business records may be admitted into evidence
when:
1. They are compiled in the course of business by people who has a personal
knowledge of them.
2. The person who supplied the information is dead, out of the country,
physically or mentally unfit to testify, cannot be identified or found or can not
be reasonably be expected to recollect the matters.

 S v Harper/ S v Masiyi: Section 221 excludes computer printouts.

Electronic Communications and Transactions Act (ECTA)

 Data message: Data generated, sent, received or stored by electronic means and
includes voice and stored records.
 Section 15 regulates the admissibility and evidential weight of data messages.

 Section 15(1): In any legal proceedings, the rules of evidence must not be applied
so as to deny the admissibility of a data message in evidence:
a) On the mere grounds that it is constituted by a data message.
b) If it is the best evidence that the person adducing it could reasonably be
expected to obtain, on the grounds that it is not in original form.

 Peremptory provision “must” contained above and courts may not follow a piece
meal approach.

 Ndlovu v Minister of Correctional Services: Section 15(1) ousts evidence rules

that would exclude evidence purely because of its electronic origin.
→ The printout in this case was identified as a data message.
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 La Consortium v MTN: The definition of data message is wide enough to include

the hearsay evidence that arises from electronic messages (however, the
admissibility of hearsay must still be determined in terms of section 3 LEAA).

 Section 15(2): Information in the form of a data message must be given due
evidential weight.

 Note that the fact that the evidence has been admitted does not directly correlate
to its probative value.
 Probative value is determined by section 15(3).

 Section 15(3): In assessing the evidential weight of a data message, regard must
be had to:
a) The reliability in the manner in which the data message was generated,
stored or communicated.
b) The reliability of the manner in which the integrity of the data message was
obtained.
c) The manner in which the originator was identified.
d) Any other relevant factor.

 Jafta v Ezemvelo: Court may find expert evidence of assistance in assessing the
evidential weight in terms of section 15(3).

 La consortium v MTN:
→ Held that computer print outs satisfies the criteria for being admissible in
terms of section 15(4).
→ However, on appeal it was stated that the hearsay in such statements are
still subject to the hearsay rules in section 3 of the LEAA.

 Data Messages as real evidence:

→ Ex parte Rosch: Computer printouts regarding the details of telephone calls
were treated as real evidence and held to be admissible.
→ S v Ndiki: Printouts that were computer generated after human input=
hearsay.
→ Printouts produced without human intervention: Real evidence and
admissible.
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Study Unit 17

Judicial Notice

❖ Definition: Judicial notice is a certain aspect of the law of evidence that allows a
judicial officer to accept the truth of certain facts which are known to him, even
though no evidence was led to prove these facts.
❖ Should be used with caution, as it deprives the parties from cross-examination.

❖ Rationale:
→ Expedites the hearing of many cases.
→ Produces uniformity of decision on matters of fact where a diversity of findings
might become embarrassing.

❖ Distinction between judicial notice and receiving evidence:

→ Judicial notice is taken without an inquiry- the court relies on its own
knowledge, rather than receiving evidence.

❖ Limits of Judicial Notice:

→ A judicial officer can not act on his personal knowledge of facts- the facts
must be well known to all reasonable persons or to a reasonable court in a
specific locality.

→ Notorious Facts (General knowledge):

➢ Facts such as that there is a national road network in SA and that
there are 7 days in a week.

→ Facts of local Notoriety:

➢ Facts should be notoriously known among all reasonably well-
informed people in the area where the court sits.
➢ Eg: Franschoek is small and only contains a small number of streets
➢ Distance between local places, or the fact that a company is mining
diamonds.
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→ Facts easily ascertainable:

➢ Only if from sources of undisputable authority (Not Wikipedia).
➢ Maps, surveys issued under governmental authority.
➢ Time of sunrise/ sunset, phases of the moon, tides of the ocean etc.

 Examples of judicial notice:

 Animals:
→ Instinctive behaviour of domesticated animals should be judicially noticed.
→ Eg: A dog barks at a stranger.

 Racial Characteristics:
→ Must not be used lightly- features of a person may be of a specific racial
composition.

 Functioning of Traffic Lights:

→ Eg: If lights facing one side is red, then it can be noted that the other side is
green.
→ However, they are probably in a working condition, but beyond reasonable
doubt in a working position.

 Historical Facts:
→ Certain established historical facts (from reliable sources).
→ Mandela was in Jail until……

 Crime:
→ Crime has reached an "unacceptably high crime rate in South Africa”.
→ Or that a significant amount of accused persons get acquitted.

 Statute and Common law:

→ Judicial notice is taken of acts of parliament and of the provincial
legislatures.
→ Common law is also judicially noticed without exception.
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Study Unit 18

Formal admissions

❖ A party can formally admit a fact.

❖ In essence, the difference between a formal and an informal admission, is that a
formal admission is made in court, while an informal admission is made outside of
court.
❖ Informal admission: Can be explained away or contradicted.
❖ Formal admission: Are binding on their makers and can normally not be withdrawn.
❖ It serves as conclusive proof of the fact admitted.
→ Intention of the maker is very important- if the maker did not intend to make
such a statement, then there is no formal admission.
→ Made in terms of section 220 CPA.
→ Can not be made if there is a possibility of a defence.

❖ Effect and withdrawal of a formal admission:

→ S v Seleke: Admission in terms of section 220 absolves the state from
proving that specific fact.
→ Sufficient proof is not conclusive proof, and the accused can later on lead
evidence to the contrary 9Such as in cases of duress or mistake).
→ S v Sesetse: However, if a formal admission still stands at the end of the
trial, it becomes conclusive proof.
→ Formal admissions are only binding on persons at the proceedings where
these are made.

❖ The Plea of Guilty:

→ Requires that the accused admit all the allegations and puts nothing in
dispute.
→ Section 220 does not apply when such a plea of guilty is noted.
→ Section 112(1)(b): Court should question the accused to determine if they
admit all the facts.
→ Section 113: If the court doubts that all the elements has been proven and
that there is a possible defence, the court should record a plea of not guilty.
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❖ Plea Explanation: Section 115:

→ Where a person pleads not guilty, but wants to make a statement that
indicates the basis of his defence.
→ If no plea explanation, the court has the discretion to question the accused
to determine the issues in dispute.
→ Facts admitted in this manner and with consent of the accused, can be
recorded as a formal admission in terms of section 220 and is placed beyond
dispute.

❖ Withdrawal of formal admissions:

→ S v van der Westhuizen: The accused must show bona fide (`1) why the
admission was made in the first place and (2) why he wishes to resile from
it now.
→ A court will not close its eyes and ears to the truth and convict an accused
based on an admission, where the admission is clearly wrong.

❖ Formal admissions by the Cross-examiner:

→ For example, where the cross-examiner puts to the opposing witness that
his client will come and testify that he was attacked first.
→ S v Magubane: Unequivocal admissions of the fact so asserted, but is not
a formal admission.
→ Not a formal admission because it is not a fact unfavourable to the accused.
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Study Unit 21

Evaluation of evidence

❖ Two basic principles should be kept in mind when evidence is evaluated:

1. Evidence must be weighed in totality.
2. Probabilities and inferences must be distinguished from conjecture and
speculation.

❖ Avoidance of Piecemeal approach to adjudication:

→ Evidence must be weighed as a whole, taking into account the probabilities,
reliability and opportunity of observation of the respective witnesses.

❖ Inferences and probabilities drawn from conjecture:

→ During the evaluation of evidence, inferences may be drawn and
probabilities considered.
→ Inference must be drawn between the four corners of facts.
→ If inferences drawn are outside the facts, then it is speculation.

❖ Corroboration:
→ Whenever corroboration is present, it would be easier to conclude that the
required standard of proof has been met.
→ Rule against self-corroboration:
→ S v Gentle: The factor of corroboration does not include self-corroboration.
→ Proof of consistency is not the equivalent of corroboration.

❖ Credibility: Demeanour and Mendacity (Untruthfulness):

→ Credibility of witnesses can be decisive to the outcome of a case.
→ Includes a wide variety of factors:
1. General quality of the testimony.
2. Consistency in content and structure.
3. Integrity and candour.
4. Objective facts (objectivity).
5. Personal interest in the outcome of the litigation.
6. Temperament and personality.
7. Intellect.
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→ The demeanour includes:

a) Their manner of testifying,
b) Their behaviour in the witness-box,
c) Their character and personality.
d) The impression they create

→ Note that their demeanour becomes real evidence to the court- it is what the trial
court observes.
→ However, even though demeanour can assist with the credibility, it is fallible.

→ The following principles apply to demeanour:

A. Demeanour is a fallible guide to credibility and should be considered with
all the other factors.
B. The limited value of a finding on a demeanour becomes even less where
an interpreter is used.
C. Constitutional court pointed out the difference in cultures, classes, race
or gender in demeanour.
D. Demeanour can hardly be decisive in determining the outcome of the
case and must be considered as part of the bigger picture.

❖ Circumstantial Evidence:
• Not necessarily weaker than direct evidence and can in some cases be of
more value than direct evidence.

• Cumulative effect:
→ Court should consider the cumulative effect of all the evidence.
→ Rex v de Villiers: Court should not consider each circumstance in
isolation and then give the accused the benefit of any reasonable
doubt as to the inference drawn from that circumstance.
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• Inferences in criminal proceedings:

→ Rex v Blom: Reasoning by inference requires 2 rules of logic to be
applied:
1. Inference drawn must be consistent with all the proved facts.
2. The proved facts should be such that they exclude every
reasonable inference from them except for the inference
being drawn.
→ Not applicable to a section 174 discharge.

• Failure to cross-examine:
→ Generally an indication that a party does not wish to dispute the
version or aspects of the version.
→ S v Gobozi: Prosecutor’s failure to cross-examine may be a deciding
factor in determining whether a person has been found guilty
beyond reasonable doubt.
→ Failure to cross-examine may not be a factor where the accused is
illiterate or unrepresented.

• Evidence of identification:
→ Should be handled with caution.
→ Very easy for identifying witnesses to be mistaken.
→ Dock identification (identification in court) is of little probative value.

❖ The Cautionary Rule:

1. The court should consciously remind itself to be careful in considering
evidence which practice has taught must be viewed with suspicion.
2. The court should seek some safeguard that reduces the risk of a wrong finding
based on the suspect evidence.

➢ Note that the exercise of caution should not come in the way of common sense.
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Answering a question on the evaluation of Evidence:

o Use the information above and apply it to the scenario.

o The 2 rules of logic can be a good discussion point for any question and apply the
2 rules of logic (as in the Blom case) to the scenario.
o Have a knowledge of the difference between oral evidence, real evidence and
circumstantial evidence.
o Eg: Fingerprints can be circumstantial evidence just as it is real evidence.