Law of Evidence Textbook-1

Document 1 of 330
Principles of Evidence
(Revised 3rd Edition)
Jutastat
Internet: ISSN 2074-6911
e-publications
by
Contents
PJ Schwikkard
Commentary BA (Wits) LLM (Natal) LLD (Stell)
Professor in the Department of Public Law, University of Cape Town
Juta's Quarterly
Attorney of the High Court of South Africa
Review of South
African Law SE van der Merwe
BIuris (UPE) LLB (Unisa) LLD (Cape Town)
Professor of Law, University of Stellenbosch
Advocate of the High Court of South Africa
in collaboration with
D W Collier
BA LLB (Rhodes) LLM (Cape Town)
Lecturer, Department of Commercial Law, University of Cape Town
W L de Vos
BA LLM LLD (RAU)
Associate Professor in the Department of Public Law, University of
Cape Town
Advocate of the High Court of South Africa
E van der Berg

BIuris LLB (UPE)
Senior Lecturer in Law, Nelson Mandela Metropolitan University
Juta's Quarterly Review of South African Law on

Evidence: Analysis of current legal developments in
both evidence related legislation and case law from
January 2009 onwards.
Document 2 of 330
Commentary
Contents
Preface
Mode of Citation of Principal Works and Sources
SECTION A
AN INTRODUCTION TO THE LAW OF EVIDENCE
1. An Introduction to the History and Theory of the law of Evidence — S E van
der Merwe
2. Basic Concepts and Distinctions — S E van der Merwe
3. Sources of the South African Law of Evidence and the Impact of
Constitutional Provisions — S E van der Merwe
4. The Law of Evidence and Substantive Law — E van der Berg
SECTION B
THE ADMISSIBILITY OF RELEVANT EVIDENCE
5. Relevance and Admissibility — S E van der Merwe
6. Character Evidence — P J Schwikkard
7. Similar Fact Evidence — P J Schwikkard
8. Opinion Evidence — E van der Berg and S E van der Merwe
9. Previous Consistent Statements — S E van der Merwe
SECTION C
EXCLUSION OF RELEVANT EVIDENCE: PRIVILEGE
10. Private Privilege — P J Schwikkard
11. State Privilege (Public Interest Immunity) — S E van der Merwe
SECTION D
EXCLUSION OF RELEVANT EVIDENCE: UNCONSTITUTIONALLY
OBTAINED EVIDENCE
12. Unconstitutionally Obtained Evidence — S E van der Merwe
SECTION E
HEARSAY
13. Hearsay — P J Schwikkard
14. A Selection of Common-Law Exceptions to the Hearsay Rule: A Brief
Perspective — P J Schwikkard
15. Selected Statutory Exceptions to the Hearsay Rule — P J Schwikkard
SECTION F
THE ADMISSIBILITY AND PROOF OF THE CONTENTS OF RELEVANT
DETRIMENTAL STATEMENTS
16. Informal Admissions — P J Schwikkard
17. Confessions in Criminal Trials — P J Schwikkard
SECTION G
KINDS OF EVIDENCE AND PRESENTATION THEREOF
18. Oral Evidence — S E van der Merwe
19. Real Evidence — S E van der Merwe
20. Documentary Evidence — P J Schwikkard
21. Electronic Evidence and Related Matters — D W Collier
SECTION H
WITNESSES
22. The Competence and Compellability of Witnesses — W L de Vos
23. The Calling of Witnesses — W L de Vos and S E van der Merwe
24. Refreshing The Memory of a Witness — S E van der Merwe
25. Impeaching the Credibility of a Witness — S E van der Merwe
SECTION I
PROOF WITHOUT EVIDENCE
26. Formal Admissions — P J Schwikkard and S E van der Merwe
27. Judicial Notice — P J Schwikkard and S E van der Merwe
28. Rebuttable Presumptions of Law — P J Schwikkard
29. A Constitutional Perspective on Statutory Presumptions — P J Schwikkard
SECTION J
WEIGHT OF EVIDENCE AND STANDARDS AND BURDENS OF PROOF
30. The Evaluation of Evidence — S E van der Merwe
31. The Standard and Burden of Proof and Evidential Duties in Criminal Trials —
P J Schwikkard and S E van der Merwe
32. The Standard and Burden of Proof and Evidential Duties in Civil Trials — P J
Schwikkard
APPENDIX A: Chapter 2 (Bill of Rights)
APPENDIX B: Chapter 3 (Fundamental Rights: Interim Constitution)
APPENDIX C: Judges' rules
APPENDIX D: Section 252A of the Criminal Procedure Act
Table of Cases
Table of South African Statutes, Constitutions, Ordinances and Rules
INDEX
Document 3 of 330
Preface
This edition, like the previous two, is an attempt to strike a balance between the
theory of the law of evidence and its practical application in a constitutional
setting. We hope that this third edition will be of assistance to both students and
practitioners and that it will alert them to the growing impact of the Bill of Rights
on the traditional Anglo-South African law of evidence.
This edition contains discussions of recent statutory amendments and
innovations, for example, sexual history evidence as regulated by s 227 of the
Criminal Procedure Act 51 of 1977, which was substituted by s 68 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, with
effect from 16 December 2007. The following sections of the latter Act are further
examples: s 58 (the admissibility of the previous consistent complaint of a
complainant in a sexual offence), s 59 (evidence of delay in reporting) and s 60
(statutory abolition of the cautionary rule as regards the evidence of a
complainant in a sexual case). There has also been a growing body of case law on
constitutional implications regarding the admissibility of hearsay evidence and
confessions and admissions.
We would like to thank the following people for their contributions and
punctuality: Wouter de Vos (author of chapter 22 and co-author of chapter 23),
Eugene van der Berg (author of chapter 4 and co-author of chapter 8) and Debbie
Collier (author of chapter 21).
Our late colleague, Andrew Skeen, did not contribute to the previous and
present edition. All his chapters written for purposes of the first edition, have now
been rewritten. However, some paragraphs in chapters 18 and 19 still contain
portions of Andrew's original contribution and are gratefully acknowledged.
John Mendelsohn, Jeannine Pieber and Linda van de Vijver rendered research
assistance. We thank them for the splendid and cheerful manner in which they
did so.
A debt of gratitude is owed to our publishers, Juta, for their encouragement
and support. Han-marié Marshall-Van Zyl oversaw the production of this third
edition. Her patience and polite persistence are greatly appreciated. Kallie Pauw,
as in-house editor, detected various inconsistencies and infelicities of expression
in the manuscript. We thank him. Of course, further errors remain ours.
Every effort was made to state the law as at the end of June 2008. Some
important cases reported after this date were added where possible.
PJ Schwikkard
Cape Town
Steph van der Merwe
Durbanville
22 November 2008
Document 4 of 330
Mode of Citation of Principal Works and

Sources
ASSAL Annual Survey of South African Law
CPA Criminal Procedure Act 51 of 1977
CPEA Civil Proceedings Evidence Act 25 of 1965
Du Toit et al E du Toit, F J de Jager, A P Paizes, A St Q Skeen, S E van der Merwe Commentary on

Commentary the Criminal Procedure Act (1987, as revised biannually)
Hoffmann & Zeffertt L H Hoffmann & D T Zeffertt The South African Law of Evidence 4ed (1988)
Lansdown & A V Lansdown & J Campell South African Criminal Law and Procedure vol V Criminal
Campbell Procedure and Evidence (1982)
LAWSA W A Joubert (ed), C W H Schmidt, D T Zeffertt, and revised by D P van der Mewe The
Law of South Africa vol 9 Evidence First Reissue (1996)
Schmidt & C W H Schmidt & H Rademeyer Bewysreg 4ed (2000)

Rademeyer
Schmidt & Schmidt & Rademeyer Law of Evidence (2007)

Rademeyer
Wigmore H J Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common

Law (1940) and revised editions (1961)
Zeffertt, Paizes & The South African Law of Evidence (2003)

Skeen
Document 5 of 330
Section A
An introduction to the Law of Evidence
1. An Introduction to the History and Theory of the Law of Evidence — S E van
der Merwe
2. Basic Concepts and Distinctions — S E van der Merwe
3. Sources of the South African Law of Evidence and the Impact of
Constitutional Provisions — S E van der Merwe
4. The Law of Evidence and Substantive Law — E van der Berg
Document 6 of 330
Chapter 1
An Introduction to the History and Theory of the
Law of Evidence
S E van der Merwe
1.1 Introduction
1.2 Scope and functions of the law of evidence
1.3 Early history and development of the English law of evidence
1.3.1 The religious (primitive) stage
1.3.2 The formal stage
1.3.3 The rational stage (and development of the jury)
1.4 Procedural and evidential systems and some universal principles of fact-
finding
1.5 Ordinary courts and small claims courts: an examination of procedural and
evidential differences
1.5.1 Small claims courts and the inquisitorial procedure and free system
of evidence
1.5.2 Accusatorial versus inquisitorial procedure
1.5.3 Strict versus free system of evidence
1.6 Jurors and assessors: some brief comparative remarks
1.7 Rules of evidence in criminal and civil proceedings
3rd Ed, 2009 ch1-p1
1.1 Introduction
Courts normally have to make a finding concerning the existence or non-
existence of certain facts before pronouncing on the rights, duties and liabilities of
the parties engaged in a dispute. 1 In this process of litigation and adjudication
the proof of facts is regulated by the law of evidence, which is a branch of the law
of procedure. A factual basis is necessary to determine the rights, duties and
liabilities which exist in terms of substantive law, 2 for example the law of
contract.
It should be borne in mind, however, that there are also certain procedural
rights and duties which stem from the law of evidence, for example the right to
cross-examine and the duty to adduce evidence. These rights and duties are of a
procedural nature in the sense that they form part of or emanate from the body
of rules governing the proof of facts in a court of law. The right to cross-examine
and the duty to adduce evidence relate to the law of evidence, which in turn
forms part of the law of procedure in its widest sense.
3rd Ed, 2009 ch1-p2
The law of evidence is closely linked to criminal and civil procedure and forms
part of that branch of the law commonly referred to as "adjective law" or
"adjectival law".
It will later become evident that in some instances it is not always easy to
draw the line of demarcation between substantive law and the law of evidence as
a branch of the law of procedure. 3 However, this demarcation cannot be ignored:
4 the substantive-law rights and duties of the parties to an action are determined
by rules and principles which largely stem from Roman-Dutch law, whereas the
English law of evidence serves as the common law of the South African law of
evidence. 5
Footnote - 1
1 Tapper Cross & Tapper On Evidence 11 ed (2007) 1.
1 Tapper Cross & Tapper On Evidence 11 ed (2007) 1.
Footnote - 2
2 S v Thomo1969 (1) SA 385 (A) 394C-D (emphasis added): "It is of importance first to determine
what conduct was established … Having thus determined the proper factual basis, the court can then
proceed to consider what crime (if any)has [been] committed. The former enquiry is one of fact, the
latter essentially one of law."
2 S v Thomo1969 (1) SA 385 (A) 394C-D (emphasis added): "It is of importance first to
determine what conduct was established … Having thus determined the proper factual basis,
the court can then proceed to consider what crime (if any)has [been] committed. The former
enquiry is one of fact, the latter essentially one of law."
Footnote - 3
3 See ch 4 below.
3 See ch 4 below.
Footnote - 4
4 See generally Botes v Van Deventer1966 (3) SA 182 (A) 197. This case is discussed in § 16.4
below.
4 See generally Botes v Van Deventer1966 (3) SA 182 (A) 197. This case is discussed in §
16.4 below.
Footnote - 5
5 See ch 3 below.
5 See ch 3 below.
Document 7 of 330
1.2 Scope and functions of the law of evidence

Procedural law gives practical meaning and effect to the rules of substantive law.
It has often been said that substantive law might just as well not exist if there
were no procedural machinery which could constantly transform the rules of
substantive law into court orders and actual enforcements.
The law of evidence governs the proof of facts in a court of law and therefore
forms part of the procedural machinery that makes substantive law effective.
The general scope of the law of evidence can be determined with reference to
its specific functions. The main function of the law of evidence is to determine
what facts are legally receivable (ie admissible) to prove the facts in issue. The
law of evidence, however, also determines in what manner evidence should or
may be adduced; what evidence may lawfully be withheld from a court of law;
what rules should be taken into account in assessing the weight or cogency of
evidence; and, further, what standard of proof should, in a given situation, be
satisfied before a party bearing the burden of proof can be successful.
Document 8 of 330
1.3 Early history and development of the English law of

evidence
The early history and evolution of the English law of evidence can be divided into
three basic, successive stages: 6 the religious (primitive) stage, during which it
was thought that one man should not sit in judgment upon another; the formal
stage, during which the oath was the primary mode of proof and mistakes in form
were fatal; and, finally, the rational stage, during which the tribunal no longer
merely verified procedural formalities but was required to employ its reasoning
powers in the fact-finding process.
3rd Ed, 2009 ch1-p3
1.3.1 The religious (primitive) stage

During this stage "trial by ordeal" was considered an almost perfect aid in truth-
finding. The ordeal was popular in England 7 and on the Continent. 8 It was really
an appeal to God 9 (or the gods or the supernatural) to "decide" the factual
dispute. 10 The Anglo-Saxons employed several different kinds of ordeals. In the
"ordeal of the accursed morsel" (also known as the corsnaed) the accused was
required to swallow a dry morsel of bread, accompanied by a prayer that he
should choke if he were guilty. 11 In 1053 Godwin, the powerful Earl of Kent —
whom Edward the Confessor had accused of murder — attempted to swallow his
piece of bread, but choked and died (probably to the astonishment of all those
who had attended the "trial"). This ordeal — and probably all other ordeals —
might appear irrational 12 and even absurd to the modern mind. 13 But Paton and
Derham maintain that there is a possible logical explanation in respect of the
corsnaed: fear, brought about by feelings of guilt, dries the mouth and renders it
more difficult to swallow a dry piece of bread! 14 Would it be too far-fetched to
suggest that the corsnaed was perhaps the early source of the modern rule that
the demeanour of a witness may be taken into account as a factor affecting
credibility? 15 Trial by battle — a Norman novelty introduced after William the
Conqueror's invasion in 1066 — was a further ordeal in terms of which a dispute
could be settled by a duel. Holdsworth says that trial by battle was not merely an
appeal to physical force: 16 "[I]t was accompanied by a belief that Providence will
give victory to the right. The trial by battle is the judicium Dei par excellence." It
has been suggested that the early roots of the present accusatorial (adversarial)
trial system can be traced to trial by battle: 17 physical confrontation gradually
developed into verbal confrontation. 18 And it will later be shown that the right to
confront witnesses by cross-examining them is not only a marked characteristic
of the accusatorial trial system but also gave rise to, inter alia, the hearsay rule.
19
3rd Ed, 2009 ch1-p4
1.3.2 The formal stage

The twelfth century witnessed an increase in human reason and "in the field of
evidence … people were turning their backs on age old irrational methods". 20 In
1215 Pope Innocent III in the Fourth Lateran Council forbade priests to
administer ordeals, 21 thereby destroying the validity of an entire system of
proof. Langbein explains that the attempt "to make God the fact finder for human
disputes was being abandoned. Henceforth, humans were going to replace God in
deciding guilt or innocence …" 22
In England the use of oath-helpers (later called "compurgators") became very
popular. The compurgators were not eye-witnesses but merely people who were
prepared to state under oath that the oath of one of the parties should be
believed. 23 The party who was able to summon the largest number of
compurgators "won" the case. Trial by compurgation was a formal procedure in
the sense that the tribunal was still not required to weigh evidence. The oath and
number of oaths were decisive.
In virtually every age the oath has been thought to provide the strongest hold
on the consciences of men. 24 And even today the oath — however abused —
plays an important role in the law of evidence. 25
1.3.3 The rational stage (and development of the jury) 26
It was soon realised that the compurgators could make a more meaningful
contribution. The compurgators were no longer called upon to express a mere
belief in the veracity of a party's oath but were also expected to act as
adjudicators, largely because of their knowledge of the events. A crude form of
trial by jury developed, despite the personal knowledge that the "jurors" had.
White describes the next development as follows: 27 "As population increased and
everyday activities grew more complex, it developed that neighbours knew little
or nothing of the facts in dispute. It was then that witnesses who did know some
facts were called in to supply the requisite information… [T]he jury laid aside its
old character … The very thing … [ie personal knowledge] … that qualified a man
for jury service in the olden times, at a much later date disqualified him." In the
seventeenth century it was finally decided that a witness "swears but to what he
hath heard or seen to what hath fallen under his senses. But a jury-man swears
to what he can infer and conclude from the testimony of such witnesses …" 28
3rd Ed, 2009 ch1-p5
This distinction between a witness's function (to testify) and a juror's function
(to determine facts on the basis of testimony presented by witnesses) had the
important result that "jurors now were assumed to enter the box with a cognitive
tabula rasa so that facts could be writ upon their minds through, for example, the
medium of witnesses giving oral testimony …" 29 The general receipt of oral
testimony established the principle of orality, and personal knowledge of the
event in dispute led to disqualification of a juror. The central notion of an
impartial adjudicator was accepted.
During the formative period of trial by jury the relative functions of judge and
jury were also settled: the jurors determined the facts and the judges determined
the law. 30 This procedural distinction between the functions of judge and jury
had important results: the judges (who had to decide matters of law) thought
that the jury (who had to decide matters of fact) might be misled or distracted
by, or might be inclined to attach undue weight to, certain categories or types of
evidence which, according to the judges, were notoriously untrustworthy. The
judges therefore considered the admissibility of evidence a matter of law. They
then ruled, as a matter of law, that certain evidence was inadmissible, most
notably character and hearsay evidence. These decisions to exclude certain
evidence were decisions of law and fell within the ambit of the doctrine of
precedent: stare decisis.
The nineteenth and twentieth centuries witnessed a large number of statutory
reforms in England as well as South Africa. The South African legislature has in
the past been inclined to base its own legislation on principles contained in
English legislation. Statutory reform has to a large extent been aimed at relaxing
the strict evidential rules which owe their existence to trial by jury.
The exact extent of the jury's influence on the historical development and
modern rules of the Anglo-South African law of evidence is debatable. At the
same time, however, it is equally true that a proper appreciation of some of the
rules of evidence is only possible if these rules are constantly seen and evaluated
within the context of trial by jury — despite the fact that trial by jury no longer
exists. Trial by jury in civil and criminal cases was respectively (and finally)
abolished in South Africa in 1927 31 and 1969. 32 But we have retained an
evidentiary system designed for jury trials. Most of our exclusionary rules — and
even some of our rules pertaining to the evaluation of evidence — can be
attributed directly to trial by jury. It may be said that the jury was perhaps the
single most significant factor in shaping the law of evidence. But the adversarial
method of trial, the principle of orality, 33 the oath, the doctrine of precedent and
the so-called best evidence rule 34 collectively contributed to our present intricate
system in terms of which facts should be proved in a court of law.
3rd Ed, 2009 ch1-p6
The steady decline and gentle disappearance of the jury in South Africa
theoretically opened the door for a more liberal and robust approach with regard
to the admission of evidence normally excluded in a jury trial. But our courts are
for various reasons 35 obliged to follow the so-called strict system of evidence
which emphasises the admissibility of evidence. Developments in our law of
evidence have been and are largely brought about by legislative action, one
example being the Law of Evidence Amendment Act 45 of 1988, which came into
operation on 3 October 1988. This Act mainly changed rules relating to hearsay
(see § 13.3 below), judicial notice (see § 27.6.3 below) and the competence and
compellability of spouses (see § 22.11.2 below).
Footnote - 6
6 See generally Esmein (transl by Simpson) A History of Continental Criminal Procedure with
Special Reference to France: Continental Legal History Series vol V (1968) 617-9; Joubert 1982
TSAR 261.
6 See generally Esmein (transl by Simpson) A History of Continental Criminal Procedure with
Special Reference to France: Continental Legal History Series vol V (1968) 617-9; Joubert 1982
TSAR 261.
Footnote - 7
7 See generally Nokes An Introduction to Evidence 4 ed (1967) 18; Thayer A Preliminary Treatise
on Evidence at the Common Law (1898) 24-34, 67 and 81; Elton (ed) The Law Courts of Medieval
England (1972) 25; Plucknett A Concise History of the Common Law (1956) 113-18; Kempin
Historical Introduction to Anglo-American Law (1973) 54-7; Devlin Trial by Jury (1978) 6-7;
Wakeling Corroboration in Canadian Law (1977) 8-9; Levy Origins of the Fifth Amendment: The
Right against Self-incrimination (1968) 5-7.
7 See generally Nokes An Introduction to Evidence 4 ed (1967) 18; Thayer A Preliminary

Treatise on Evidence at the Common Law (1898) 24-34, 67 and 81; Elton (ed) The Law Courts
of Medieval England (1972) 25; Plucknett A Concise History of the Common Law (1956) 113-
18; Kempin Historical Introduction to Anglo-American Law (1973) 54-7; Devlin Trial by Jury
(1978) 6-7; Wakeling Corroboration in Canadian Law (1977) 8-9; Levy Origins of the Fifth
Amendment: The Right against Self-incrimination (1968) 5-7.
Footnote - 8
8 Diamond Primitive Law Past and Present (1971) 47, 297-312, 318, 386-7 and 390-1; Langbein
Torture and the Law of Proof (1977) 6; Esmein (transl by Simpson) A History of Continental Criminal
Procedure with Special Reference to France: Continental Legal History Series vol V (1968) 618;
Hartland Primitive Law (1924) 191.
8 Diamond Primitive Law Past and Present (1971) 47, 297-312, 318, 386-7 and 390-1;
Langbein Torture and the Law of Proof (1977) 6; Esmein (transl by Simpson) A History of
Continental Criminal Procedure with Special Reference to France: Continental Legal History
Series vol V (1968) 618; Hartland Primitive Law (1924) 191.
Footnote - 9
9 Stein Legal Institutions: The Development of Dispute Settlement (1984) 25: "[I]n an age of
faith, when there is a general belief in the direct intervention of divine providence in human affairs,
it is not irrational to think that God knows what happened better than any human and that He will
indicate which party was in the right."
9 Stein Legal Institutions: The Development of Dispute Settlement (1984) 25: "[I]n an age of
faith, when there is a general belief in the direct intervention of divine providence in human
affairs, it is not irrational to think that God knows what happened better than any human and
that He will indicate which party was in the right."
Footnote - 10
10 Nokes An Introduction to Evidence 4 ed (1967) 18. However, cf Schwikkard Presumption of

Innocence (1999) 2.
10 Nokes An Introduction to Evidence 4 ed (1967) 18. However, cf Schwikkard Presumption

of Innocence (1999) 2.
Footnote - 11
11 Forsyth (transl by Morgan) History of Trial by Jury (1878) 68. See also § 18.17.2 below.
11 Forsyth (transl by Morgan) History of Trial by Jury (1878) 68. See also § 18.17.2 below.
Footnote - 12
12 Damaska "Evidentiary Barriers to Conviction and Two Models of Criminal Procedure" 1973 121
U Pennsylvania LR 556 n110: "By irrational I mean procedural devices such as trial by ordeal, which
rests on religious imaginings, especially the belief that the deity can be summoned to intervene in
the screening of the guilty from the innocent."
12 Damaska "Evidentiary Barriers to Conviction and Two Models of Criminal Procedure" 1973
121 U Pennsylvania LR 556 n110: "By irrational I mean procedural devices such as trial by
ordeal, which rests on religious imaginings, especially the belief that the deity can be
summoned to intervene in the screening of the guilty from the innocent."
Footnote - 13
13 Wigmore para 8.
13 Wigmore para 8.
Footnote - 14
14 Paton & Derham A Text-book of Jurisprudence (1972) 597.
Footnote - 15
15 See also § 30.4 below.
Footnote - 16
16 Holdsworth in Goodhart & Hanbury (eds) A History of English Law vol 1 (1956) 308.
16 Holdsworth in Goodhart & Hanbury (eds) A History of English Law vol 1 (1956) 308.
Footnote - 17
17 Re "Oral v Written Evidence: The Myth of the Impressive Witness" 1983 57 Australian LR 679;
Van der Merwe 1997 Stell LR 348 349.
17 Re "Oral v Written Evidence: The Myth of the Impressive Witness" 1983 57 Australian LR
679; Van der Merwe 1997 Stell LR 348 349.
Footnote - 18
18 Van der Merwe 1991 Stell LR 281 290.

Footnote - 19
19 See ch 13 below.
19 See ch 13 below.
Footnote - 20
20 Van Caenegem in Kuttner & Ryan (eds) Proceedings of the Second International Congress of
Medieval Canon Law: Boston College 12-16 August 1963: Monumenta Juris Canonic Series C vol 1
(1965) 304.
20 Van Caenegem in Kuttner & Ryan (eds) Proceedings of the Second International Congress
of Medieval Canon Law: Boston College 12-16 August 1963: Monumenta Juris Canonic Series C
vol 1 (1965) 304.
Footnote - 21
21 Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 37; Kempin Historical
Introduction to Anglo-American Law (1973) 55.
21 Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 37; Kempin
Historical Introduction to Anglo-American Law (1973) 55.
Footnote - 22
22 Langbein Torture and the Law of Proof (1977) 6.
22 Langbein Torture and the Law of Proof (1977) 6.
Footnote - 23
23 Forsyth (transl by Morgan) History of Trial by Jury (1878) 63 gives an example of the use of
compurgators. Accused A had to take the following oath: "By the Lord, I am guiltless, both in deed
and counsel of the charge which B accuses me." The compurgators then had to reply: "By the Lord,
the oath is clear and unperjured which A has sworn." See further § 25.3 below.
23 Forsyth (transl by Morgan) History of Trial by Jury (1878) 63 gives an example of the use
of compurgators. Accused A had to take the following oath: "By the Lord, I am guiltless, both
in deed and counsel of the charge which B accuses me." The compurgators then had to reply:
"By the Lord, the oath is clear and unperjured which A has sworn." See further § 25.3 below.
Footnote - 24
24 Best A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common
Law (1849) para 55.
24 Best A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of

Common Law (1849) para 55.
Footnote - 25
25 S v Munn1973 (3) SA 734 (NC) 736H. See also generally S v Bothma1971 (1) SA 332 (C) and S
v Ndlela1984 (1) SA 223 (N). See further s 162 of the CPA (as read with s 163) and s 39 of the
CPEA (as read with ss 40 and 41).
25 S v Munn1973 (3) SA 734 (NC) 736H. See also generally S v Bothma1971 (1) SA 332 (C)
and S v Ndlela1984 (1) SA 223 (N). See further s 162 of the CPA (as read with s 163) and s 39
of the CPEA (as read with ss 40 and 41).
Footnote - 26
26 See Kahn 1991 SALJ 672 and 1992 SALJ 87, 307 and 666 and 1993 SALJ 322 for a general
discussion and evaluation of the jury system, as well as the history of the jury in South Africa. See
also generally De Vos 2008 TSAR 196.
26 See Kahn 1991 SALJ 672 and 1992 SALJ 87, 307 and 666 and 1993 SALJ 322 for a
general discussion and evaluation of the jury system, as well as the history of the jury in South
Africa. See also generally De Vos 2008 TSAR 196.
Footnote - 27
27 White "Origin and Development of Trial by Jury" 1961 29 Tennessee LR 8 15.
27 White "Origin and Development of Trial by Jury" 1961 29 Tennessee LR 8 15.
Footnote - 28
28 Bushell's Case 124 ER 1006 1009.
28 Bushell's Case 124 ER 1006 1009.
Footnote - 29
29 Forkosch "The Nature of Legal Evidence" 1971 59 California LR 1356 1373.
29 Forkosch "The Nature of Legal Evidence" 1971 59 California LR 1356 1373.
Footnote - 30
30 Nokes An Introduction to the Law of Evidence 4 ed (1967) 35. See further § 1.6 below as
regards the function of assessors in our system of adjudication.
30 Nokes An Introduction to the Law of Evidence 4 ed (1967) 35. See further § 1.6 below as
regards the function of assessors in our system of adjudication.
Footnote - 31
31 Section 3 of the Administration of Justice (Further Amendment) Act 11 of 1927.
31 Section 3 of the Administration of Justice (Further Amendment) Act 11 of 1927.
Footnote - 32
32 Abolition of Juries Act 34 of 1969.
32 Abolition of Juries Act 34 of 1969.
Footnote - 33
33 Van der Merwe 1991 Stell LR 281.
33 Van der Merwe 1991 Stell LR 281.
Footnote - 34
34 The so-called best evidence rule is currently only of importance as regards documentary
evidence. See § 20.3 below.
34 The so-called best evidence rule is currently only of importance as regards documentary
evidence. See § 20.3 below.
Footnote - 35
35 See ch 3 below.
35 See ch 3 below.
Document 9 of 330
1.4 Procedural and evidential systems and some
universal principles of fact-finding
There are basically two systems of evidence: the Anglo-American (or so-called
strict or common-law) system and the Continental (or so-called free or civil-law
system). The South African law of evidence belongs to the Anglo-American
"family". Most of the principles of the Anglo-American law of evidence stem from
the English system of adversarial (accusatorial) trials before a lay jury as opposed
to the Continental inquisitorial trials by professional judges adjudicating without
the assistance of a true jury. 36 It can be said that the Anglo-American procedural
method of proving or ascertaining facts in a court of law is based upon
adversarial principles and a strict system of evidence, whereas the Continental
method is based upon inquisitorial principles and a free system of evidence.
These procedural and evidential differences — which should be understood in a
broad historical and evolutionary context — really emphasise the simple truth
that there is more than one solution to the problem of fact-finding. 37
It is probably correct to say that all enlightened and refined procedural and
evidential systems are honest attempts to discover and protect the truth. And in
this respect there is much common ground despite the peculiar historical origins
and ideological preferences that each system might have. Consider the following.
First, it is a universal principle that protection of the truth cannot be sacrificed for
the sake of mere simplicity, speed and convenience. 38Secondly, presentation of
facts and adjudication of disputes must of necessity proceed in an orderly
fashion: a lawsuit is "essentially a proceeding for the orderly settlement of a
dispute between litigants". 39Thirdly, resolution of legal disputes must be done in
such a way that reasonable litigants leave court with the feeling that they were
3rd Ed, 2009 ch1-p7
given a proper opportunity to state their respective cases, that their cases were
presented in the best possible light and manner, and, further, that the issues
were decided by an impartial trier. Fourthly, the law of procedure and evidence
must at all times maintain a certain level of efficiency and effectiveness in order
to ensure that the rules of substantive law — however impressive and all-
embracing they may be — are not for all practical purposes relegated to the ranks
of unenforceable norms.
The procedural and evidential innovations which the South African legislature
has introduced in respect of small claims courts 40 should be assessed in the light
of the above remarks — as well as the fact that small claims courts are seen as a
proper and acceptable solution to the problem of legal costs which a litigant may
encounter in enforcing a modest civil claim.
Footnote - 36
36 Heydon Evidence: Cases and Materials 3 ed (1991) 3. Most of the rest of this chapter is based
on an article previously published by Van der Merwe 1985 De Rebus 445-51.
36 Heydon Evidence: Cases and Materials 3 ed (1991) 3. Most of the rest of this chapter is
based on an article previously published by Van der Merwe 1985 De Rebus 445-51.
Footnote - 37
37 Van der Merwe "Accusatorial and Inquisitorial Procedures and Restricted and Free Systems of
Evidence" in Sanders (ed) Southern Africa in Need of Law Reform (1981) 141.
37 Van der Merwe "Accusatorial and Inquisitorial Procedures and Restricted and Free
Systems of Evidence" in Sanders (ed) Southern Africa in Need of Law Reform (1981) 141.
Footnote - 38
38 Mueller & Le Poole-Griffiths Comparative Criminal Procedure (1969) 50.
38 Mueller & Le Poole-Griffiths Comparative Criminal Procedure (1969) 50.
Footnote - 39
39 Morgan "Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence" 1943 10
Univ of Chicago LR 285.
39 Morgan "Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence"

1943 10 Univ of Chicago LR 285.
Footnote - 40
40 See the Small Claims Courts Act 61 of 1984 (especially ss 26, 27 and 28).
40 See the Small Claims Courts Act 61 of 1984 (especially ss 26, 27 and 28).
Document 10 of 330
1.5 Ordinary Courts and Small Claims Courts: An

Examination of Procedural and Evidential Differences
The fundamental differences which exist between the Anglo-American and
Continental systems can — from a theoretical and practical point of view and
within the context of South African courts — perhaps be best explained by
comparing the procedural and evidential system of our ordinary courts with that
which exists in our small claims courts.
South African small claims courts function along inquisitorial lines. Section
26(3) of the Small Claims Courts Act 61 of 1984 (hereafter "the Act") provides
that a party shall neither question nor cross-examine any other party to the
proceedings (or a witness called by the latter party). The same section provides
that the presiding commissioner "shall proceed inquisitorially to ascertain the
relevant facts, and to that end he may question any party or witness at any stage
of the proceedings". But there is a proviso in terms of which the presiding
commissioner may in his discretion permit any party to put a question to any
other party or any witness. 41 The procedure in our ordinary courts is totally
different. 42
South African small claims courts are not bound by the ordinary Anglo-South
African rules of evidence. They are not required to follow the strict system of
evidence which is applied in the ordinary South African courts and which can also
be referred to as the Anglo-American or common-law system. Section 26(1) of
the Act provides that — subject to the provisions of chapter 5 of the Act — the
rules of the law of evidence shall not apply in respect of the proceedings in a
small claims court and that such a court "may ascertain any relevant fact in such
manner as it may deem fit".
The adoption of an inquisitorial procedure and a free system of evidence in
small claims courts might appear to be far-reaching and even somewhat radical
— especially to the South African lawyer who is, in a procedural context, steeped
3rd Ed, 2009 ch1-p8
in Anglo-American tradition, practice, rules and principles. But the procedural

measures taken by the legislature in respect of small claims courts should be
seen in the light of the peculiar characteristics and unique nature and purpose of
small claims courts, namely accessibility and the promotion of procedural
simplicity.
Legal representation is not permitted in small claims courts. 43 There are
various valid reasons for such exclusion. 44 For purposes of the present
discussion, it is necessary only to refer to the following remarks and conclusions
of the Hoexter Commission: 45
(a) Legal representation "must inevitably tend to infuse into the proceedings
that air of formality and technicality which is fundamentally alien to the real
spirit of small claims procedures". 46
(b) One of the most obvious objections to legal representation "is the increased
cost to the litigants … This is the very problem which small claims courts
were designed to solve". 47
(c) If "the adjudicator maintains an actively inquisitorial role in the proceedings,
the absence of legal representation results in an easier and speedier fact-
finding process". 48
It is fairly evident from the above that procedural innovations were necessary in
order to attain and maintain the advantages of small claims courts. And in
principle there is certainly nothing wrong with or sinister in procedural
innovations which are brought about to meet new and valid demands. After all,
small claims courts were created for the benefit of the public and the procedure in
small claims courts had to be structured accordingly: "Die prosesreg dien die
gemeenskap — nie die omgekeerde nie." 49 Other countries have taken similar
steps in order to establish the viability and accessibility of small claims courts. For
example, the New York small claims courts — which were established in 1918 —
dispensed with traditional rules of practice, procedure, pleading and evidence and
accepted the principle that decisions could be made with the aid of an informal
fact-finding process. 50
1.5.1 Small claims courts and the inquisitorial procedure and free
system of evidence
In the Anglo-American world small claims courts have forced the adjudicator into
a new procedural role. As early as 1913 Pound concluded that the adjudicator in a
small claims court should not be a mere umpire,
3rd Ed, 2009 ch1-p9
but should represent "both parties and the law" while actively seeking the truth
largely if not wholly unaided. 51 The Hoexter Commission took a similar view. The
success or failure of the small claims courts largely depends on whether the
commissioners, who are all trained in the tradition of the adversary system, are
able to handle the inquisitorial characteristics of the small claims courts
satisfactorily. And in this context it should also be borne in mind that the strict
system of evidence is — historically and practically speaking — a concomitant of
the adversarial model of fact-finding. The free system of evidence is to a large
extent also a necessary novelty to the commissioner in a small claims court. A
free system of evidence promotes procedural simplicity and avoids that air of
procedural formality and sophistication which can create psychological barriers for
litigants. Involved rules of evidence — and these are the true features of the
strict system of evidence — make a trial "more complicated than is necessary,
and … might well cause a gap between the courts and the people, and this will
not increase faith in the administration of justice". 52 The principles of a free
system of evidence are dealt with in greater detail in § 1.5.3 below.
1.5.2 Accusatorial versus inquisitorial procedure 53

The accusatorial (adversarial) trial procedure — which finds its symbolic roots in
the early ritual of trial by battle — has three leading features: the parties are in
principle responsible for the presentation of evidence in support of their
respective cases; the adjudicator is required to play a passive role; and much
emphasis is placed upon oral presentation of evidence and cross-examination of
witnesses. The adversarial model proceeds from the premises that greater
approximation of the truth is possible if litigants are allowed to present their own
evidence in a process which guarantees not only cross-examination of an
opponent who testifies but also all witnesses called by such opponent. This
explains the emphasis upon "orality". And cross-examination — which has been
referred to as "the greatest legal engine ever invented for the discovery of truth"
54 — is a vital procedural right in a system which makes it technically possible for
a party to present only evidence which is favourable to his case. The right of
parties to cross-examine explains why the adversarial trial model can to some
extent afford and maintain the relative inactivity of the adjudicator.
But the adversarial trial system certainly is not beyond criticism. First, it
"presupposes for success some equality between the parties; when this is lacking
the 'truth' becomes too often simply the view of the powerful". 55Secondly, its
very essence – the notion of opponents engaged in a forensic duel — can
generate unnecessary conflict which is not necessarily conducive to the resolution
or settlement of a dispute. Thirdly, much of the outcome of a case depends upon
the ability, wit,
3rd Ed, 2009 ch1-p10
energy, ruthlessness and even permissible rudeness which the cross-examiner

might display. Fourthly, the "selfish" and partial 56 manner in which parties are
allowed to present evidence and the fact that the adjudicator may only in limited
circumstances call witnesses may inevitably lead to a situation where the
"procedural" or "formal truth" can be promoted at the expense of the "material
truth". Brett makes the following remarks in respect of the adversarial method of
fact-finding: 57
"… [O]bserve the practice of scientists and historians in carrying out their
investigations …
[A] lengthy search will fail to reveal one competent practitioner in either discipline
who will willingly and in advance confine himself, in deciding any question involving
factual data, to a choice between two sets of existing data proffered to him by rival
claimants. In short, the inquisitorial method is the one used by every genuine seeker
of the truth in every walk of life (not merely scientific and historical investigations)
with only one exception the trial system in the common-law world."
In contradistinction to the adversarial model, the inquisitorial model is judge-
centred. It proceeds from the premises that a trial is not a contest between two
opposing parties but essentially an inquiry to establish the material truth. Judicial
examination is accepted as the pivotal mechanism in the process of fact-finding.
The emphasis is upon an inquiry conducted with the aid of such evidence as the
inquirer deems fit. The absence of a right to cross-examine also explains why the
inquisitorial procedure puts the written word — as a means of receiving evidence
— to greater use than the adversarial system. The commissioner in the small
claims court may in his discretion receive written or oral evidence, 58 and may
actively call for such evidence.
Devlin remarks as follows: 59
"The essential difference between the [adversarial and inquisitorial] systems … is
apparent from their names: the one is a trial of strength and the other is an inquiry.
The question in the first is: are the shoulders of the party upon whom is laid the
burden of proof … strong enough to carry and discharge it? In the second the
question is: what is the truth of the matter? In the first the judge or jury are
arbiters; they do not pose questions and seek answers; they weigh such material as
is put before them, but they have no responsibility for seeing that it is complete. In
the second the judge is in charge of the inquiry from the start; he will of course
permit the parties to make out their cases and may rely on them to do so, but it is
for him to say what it is that he wants to know."
And Devlin continues: 60

"The English say that the best way of getting at the truth is to have each party dig
for the facts that help it; between them they will bring all to light. The inquisitor
works on his own but has in the end to say who wins and who loses. Lord Denning
denies that the English judge is 'a mere umpire' and says that 'his object' above all,
is to find out the truth'. The real difference is, I think, that in the adversary system
the judge in his quest for the truth is restricted to the material presented by the
parties while in the inquisitorial system the judge can find out what he wants to
know. Put in a nutshell, the arbiter is confined and the inquisitor is not."
It may be said — at the risk of over-simplification — that the inquisitorial
procedure is a natural system of fact-finding in the sense that it dispenses with
technical
3rd Ed, 2009 ch1-p11
rules and is applied in our everyday activities. For example, a father inquiring into
a dispute between his children acts inquisitorially in the sense that he will not
merely rely upon information which the "parties" are prepared to submit; nor, for
that matter, will he follow or adopt evidential rules which tell him in advance that
he may not even receive certain "evidence".
Bentham (1748-1832) considered this "domestic or natural system" an
acceptable "mode of searching out the truth"; 61 and he accepted the "domestic
forum" as the most nearly perfect tribunal, 62 providing some basic scale model in
terms of which English procedural law could be recast. Were it not for the fact
that Bentham has been trapped for more than a century and a half in a state of
mummification in a glass case at the University College of London, 63 he probably
would have taken great delight in observing a commissioner at work in a modern
small claims court. "Hear" said Bentham "everybody who is likely to know
anything about the matter, hear everybody but most attentively of all, and first of
all those who are most likely to know most about it — that is the parties". 64 His
approach to the law of evidence was also founded upon the hypothesis that the
tribunal possesses the ability to weigh the various kinds of evidence even where
the tribunal consists of judge and jury. 65 It has rightly been said that the
changes which he had advocated would have brought English procedure and
evidence closer to the Continental practice. 66
1.5.3 Strict versus free system of evidence 67
The strict system of evidence is to a large extent a concomitant of the adversarial

system, whereas the inquisitorial trial is generally accompanied by a free system
of evidence. This almost universal phenomenon can be explained on the basis
that those countries which never experienced an extensive period of lay
participation in the adjudication of disputes developed and accepted the idea of
adjudication by a professional or "career" adjudicator who should not — and need
not — be hampered by artificial rules relating to the exclusion of evidence. 68 The
central idea was and still is that in
3rd Ed, 2009 ch1-p12
the adjudication of facts a professional judge need not be guided by rules of

admissibility: the true issue in the process of adjudication is not one of
admissibility, but weight; and the determination of weight is something which can
and must be left to the professional judge. Sanders explains as follows: 69
"Related to the inquisitorial method of procedure and the concomitant emphasis on
utility is the principle of the free evaluation of evidence. Except for matters of
privilege and personal incompetence to testify on grounds such as kinship, tender
age or prior felony convictions, the civil law acknowledges no exclusionary rules of
evidence, particularly no hearsay or opinion rule. In the eyes of civil lawyers most of
the grounds which under the common law serve to preclude the admission of
evidence merely affect the weight to be attached to a particular item of evidence,
which, according to them, should be a matter for the judge's free evaluation."
To the Anglo-American lawyer admissibility is largely a matter of law, whilst
weight is a question of fact. But even in this context the Anglo-American
approach is to make admissibility dependent upon the potential weight of the
evidence. 70
Seen from this angle, it is but a small step for an Anglo-American lawyer or
any other lawyer to disregard the first question (admissibility) and answer only
the second and final one (weight). It may be argued that in small claims courts
the general absence of formal preliminary findings as regards the admissibility of
evidence might lead to a proliferation of evidence and a multiplicity of collateral
issues. But it should be borne in mind that a commissioner in a small claims court
"shall proceed inquisitorially to ascertain the relevant facts". 71 It is upon this
basis that he controls the volume of evidence and not upon the basis of artificial
rules originally designed for jury trials, where it was feared that the evidence in
dispute might distract or mislead the jury. Obviously, in both free and strict
systems the adjudicators should always bear in mind that it "is one thing to say
that a factor is relevant and an entirely different thing to say that it is cogent or
persuasive". 72
The discretionary admission of hearsay in small claims courts apparently does
not present any problems. In a paper delivered at the South African Law
Conference in 1970 Mr Justice H C Nicholas remarked as follows with reference to
the hearsay rule as it was then applied in our ordinary courts: 73
"In South Africa, jury trials in civil cases were finally abolished many years ago. With
the disappearance of the occasion for the hearsay rule, what necessity remains for
its retention? The strongest reason which can be advanced is that hearsay evidence
may be unreliable. That, however, is an objection which goes only to the weight of
the evidence, which is a matter which can and should be determined by the Court.
What advantage has a rule of exclusion, subject to certain arbitrary exceptions none
of which have as their basis any real guarantee of the truth, over a rule of inclusion,
which would admit all relevant evidence, and leave the assessment of its value to
the Court? The answer is plainly that there is no advantage discernible."
The area of acute conflict between strict and free systems of evidence relates to
hearsay. Continental countries, which never experienced an extensive period of
lay
3rd Ed, 2009 ch1-p13
participation in the form of a jury in the adjudication of disputes, see no reason

for the general exclusion of hearsay.
Anglo-American lawyers generally take great pride in their procedural and
evidential system, and rightly so. But at the same time it would certainly be
arrogant to look upon the combination of an inquisitorial procedure and a free
system of evidence as an inferior fact-finding mechanism, especially in the
context of small claims courts and in view of the fact that the "functional test to
which all procedural rules should be subjected is their practical efficiency in
providing machinery for the prompt and reasonably cheap settlement of disputes
on lines that do justice to both parties". 74
Footnote - 41
41 See the proviso to s 26(3) of Act 61 of 1984.
41 See the proviso to s 26(3) of Act 61 of 1984.
Footnote - 42
42 See ch 18 below.
42 See ch 18 below.
Footnote - 43
43 Section 7(2) of Act 61 of 1984.
Footnote - 44
44 See generally Ervine "Small Claims: The Central Research Unit Report and Beyond" 1984
Journal of the Law Society of Scotland 66 68.
44 See generally Ervine "Small Claims: The Central Research Unit Report and Beyond" 1984
Journal of the Law Society of Scotland 66 68.
Footnote - 45
45 Hoexter JA was the chairman of the Commission of Inquiry into the Structure and Functioning
of the Courts (hereinafter referred to as the "Hoexter Commission").
45 Hoexter JA was the chairman of the Commission of Inquiry into the Structure and
Functioning of the Courts (hereinafter referred to as the "Hoexter Commission").
Footnote - 46
46 Paragraph 13 11 of the 4th interim report (RP 52/1982) of the Hoexter Commission.
Footnote - 47
Footnote - 48
Footnote - 49
49 Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 8.
Footnote - 50
50 Purdum "The Early History of Small Claims Courts" 1981 65 Judicature: The Journal of the
American Judicature Society 31 32.
50 Purdum "The Early History of Small Claims Courts" 1981 65 Judicature: The Journal of the
American Judicature Society 31 32.
Footnote - 51
51 Pound "The Administration of Justice in the Modern City" 1913 26 Harvard LR 302 319.
51 Pound "The Administration of Justice in the Modern City" 1913 26 Harvard LR 302 319.
Footnote - 52
52 Den Hollander 1975 Acta Juridica 332 349.
52 Den Hollander 1975 Acta Juridica 332 349.
Footnote - 53
53 See McEwan Evidence and the Adversarial Process The Modern Law 2 ed (1998) 1-30 and the
sources referred to by Van der Merwe in 1991 Stell LR 281 284 n 18.
53 See McEwan Evidence and the Adversarial Process The Modern Law 2 ed (1998) 1-30 and
the sources referred to by Van der Merwe in 1991 Stell LR 281 284 n 18.
Footnote - 54
54 Wigmore para 1367.
Footnote - 55
55 Delisle Evidence: Principles and Problems (1984) 2.
55 Delisle Evidence: Principles and Problems (1984) 2.
Footnote - 56
56 Frank Courts on Trial (1949) 85.
56 Frank Courts on Trial (1949) 85.
Footnote - 57
57 Brett "Legal Decision Making and Bias: A Critique of an Experiment" 1973 45 Univ of Colorado
LR 1 23.
57 Brett "Legal Decision Making and Bias: A Critique of an Experiment" 1973 45 Univ of
Colorado LR 1 23.
Footnote - 58
Footnote - 59
59 Devlin The Judge (1979) 54.
Footnote - 60
Footnote - 61
61 Hart Essays on Bentham: Jurisprudence and Political Theory (1982) 31-2.
61 Hart Essays on Bentham: Jurisprudence and Political Theory (1982) 31-2.

Footnote - 62
62 Keeton & Marshall "Bentham's Influence on the Law of Evidence" in Keeton & Shwarzenberger
(eds) Jeremy Bentham and the Law: A Symposium (1948, reprint 1970) 86-7.
62 Keeton & Marshall "Bentham's Influence on the Law of Evidence" in Keeton &
Shwarzenberger (eds) Jeremy Bentham and the Law: A Symposium (1948, reprint 1970) 86-7.
Footnote - 63
63 Van der Westhuizen 1982 DR 477 478.
63 Van der Westhuizen 1982 DR 477 478.
Footnote - 64
64 Quoted by Hart Essays on Bentham: Jurisprudence and Political Theory 32.
64 Quoted by Hart Essays on Bentham: Jurisprudence and Political Theory 32.
Footnote - 65
65 Further theories of Bentham are discussed by Twining Theories of Evidence: Bentham and
Wigmore (1985) 19-100.
65 Further theories of Bentham are discussed by Twining Theories of Evidence: Bentham and
Wigmore (1985) 19-100.
Footnote - 66
66 Keeton & Marshall "Bentham's Influence on the Law of Evidence" in Keeton & Schwarzenberger
(eds) Jeremy Bentham and the Law: A Symposium 86.
66 Keeton & Marshall "Bentham's Influence on the Law of Evidence" in Keeton &
Schwarzenberger (eds) Jeremy Bentham and the Law: A Symposium 86.
Footnote - 67
67 See generally Van der Merwe "Accusatorial and Inquisitorial Procedures and Restricted and Free
Systems of Evidence" in Sanders (ed) Southern Africa in Need of Law Reform (1981) 141 144-6.
67 See generally Van der Merwe "Accusatorial and Inquisitorial Procedures and Restricted
and Free Systems of Evidence" in Sanders (ed) Southern Africa in Need of Law Reform (1981)
141 144-6.
Footnote - 68
68 See generally Capelletti & Perillo Civil Procedure in Italy (1965) 189. Many continental courts
were originally bound by strict rules which regulated the evaluation of evidence. See generally Millar
Civil Procedure of the Trial Court in Historical Perspective (1964) 22-3. These rules largely consisted
of presumptions which were supposed to furnish "half proof" (semi probatio) or "full proof" (plena
probatio). According to Kralik Introduction to the Continental Judicial Organization and Civil
Procedure (1963) 8, the acceptance of a free system of evidence was a reaction to these strict rules.
At 6-7 it is stated: "The principle of free … evaluation of evidence means that the court is not
fettered by any formal rules of evidence … Behind this principle is a familiar history of dissatisfaction
with a system of weighing evidence by artificial scales and tables … So the principle of free
appreciation of evidence is now one of the most characteristic aspects of modern continental
procedure. As compared with English and American law, continental law is less strict in regard to the
admissibility of evidence and the procedure of prooftaking …" See further Van der Merwe 1991 Stell
LR 281 294.
68 See generally Capelletti & Perillo Civil Procedure in Italy (1965) 189. Many continental
courts were originally bound by strict rules which regulated the evaluation of evidence. See
generally Millar Civil Procedure of the Trial Court in Historical Perspective (1964) 22-3. These
rules largely consisted of presumptions which were supposed to furnish "half proof" (semi
probatio) or "full proof" (plena probatio). According to Kralik Introduction to the Continental
Judicial Organization and Civil Procedure (1963) 8, the acceptance of a free system of evidence
was a reaction to these strict rules. At 6-7 it is stated: "The principle of free … evaluation of
evidence means that the court is not fettered by any formal rules of evidence … Behind this
principle is a familiar history of dissatisfaction with a system of weighing evidence by artificial
scales and tables … So the principle of free appreciation of evidence is now one of the most
characteristic aspects of modern continental procedure. As compared with English and
American law, continental law is less strict in regard to the admissibility of evidence and the
procedure of prooftaking …" See further Van der Merwe 1991 Stell LR 281 294.
Footnote - 69
69 Sanders 1981 CILSA 196 206-7.
69 Sanders 1981 CILSA 196 206-7.
Footnote - 70
70 See § 5.3.2 below.
70 See § 5.3.2 below.
Footnote - 71
Footnote - 72
72 S v Fourie1973 (1) SA 100 (D) 102H-103A.
72 S v Fourie1973 (1) SA 100 (D) 102H-103A.
Footnote - 73
73 See the addendum to the report (RP 78/1971) of the Commission of Inquiry into Criminal
Procedure and Evidence 46.
73 See the addendum to the report (RP 78/1971) of the Commission of Inquiry into Criminal
Procedure and Evidence 46.
Footnote - 74
Document 11 of 330
1.6 Jurors and Assessors: Some Brief Comparative

Remarks
In § 1.3.3 above it was pointed out that trial by jury has been abolished in South
Africa. We have, nevertheless, retained the essential structure of a system
designed for trial by jury. This can perhaps be justified in view of the increased
use of lay assessors in lower courts. 75 Assessors 76 in lower courts 77 and in the
High Court 78 can to some extent be compared with jurors 79 as they are all
finders of fact and do not decide legal issues. 80 But our system of adjudication
differs materially from trial by jury. The role of jurors can briefly be summarised
as follows: jurors are lay people and sole finders of fact. They listen to the
evidence and hear arguments, and they receive a summing-up and instructions
from the presiding judicial officer. They are then called upon in their capacity as
sole finders of fact to consider and reach their verdict in the absence of the
presiding judicial officer. And they are not required to advance reasons in support
of their verdict. But in our system the judge or magistrate is at all times either a
sole finder of fact or, where assessors are involved, a co-finder of fact. 81 A judge
must give reasons for his verdict. 82 Magistrates almost invariably do give
reasons for their verdict 83 and are at any rate legally required to do so. 84 It is
true that the function of assessors can be compared with the function of jurors,
because the function of assessors is — with one exception 85 — also limited to
fact-finding. But assessors — unlike
3rd Ed, 2009 ch1-p14
a jury — must give reasons for their verdict. 86 They either agree or disagree with
the presiding judicial officer's reasons and finding, and in the event of a
disagreement must furnish their own reasons in a separate judgment which is
read out in court by the presiding judicial officer. And assessors — unlike jurors —
are under constant and immediate judicial guidance in the sense that a judge (or
magistrate) and the assessors involved in the trial have joint deliberations in
reaching their respective verdicts. During these deliberations the presiding
judicial officer can and must draw the attention of lay assessors to certain rules
which govern the evaluation of evidence.
It has been suggested 87 that our law of evidence can with ease accommodate
lay persons as finders of fact because the basic infrastructure exists, namely, the
concentrated trial, 88 the principle of orality 89 and the use of exclusionary rules,
like rules which exclude evidence of the bad character of the accused. 90
However, a presiding judicial officer should ensure that his lay assessors grasp
"the fundamentals of analysis of evidence", 91 for example, the cautionary rule in
respect of a single witness 92 and the fact that proof beyond reasonable doubt —
and not proof on a balance of probability — is the standard of proof which the
prosecution must satisfy for purposes of a conviction. 93 In S v Gambushe Hurt J,
having noted that lay assessors may be of considerable assistance in the
sentencing enquiry, said the following: "[I]t is by no means clear that, in the
average situation, [lay assessors] will be able to give the presiding officer any
real assistance in reaching a decision as to the guilt or innocence of an accused
person". 94 In S v Maphanga Labe J was less pessimistic. 95 According to Seekings
& Murray there is "no reason to think that lay assessors do not enrich the
administration of justice". 96 Legislation which will expand the use of lay
assessors in magistrates' courts has not yet come into operation. 97
3rd Ed, 2009 ch1-p15
Footnote - 75
75 See generally Van der Merwe 1991 Stell LR 281 306.
Footnote - 76
76 On assessors, see generally Richings "Assessors in South African Criminal Trials" 1976 Crim LR
107; Van Zyl Smit & Isakow 1985 SAJHR 218; Van Zyl Smit 1979 SALJ 173 and 1984 SALJ 212;
Swanepoel 1990 SACJ 174; Watney 1992 THHR 465.
76 On assessors, see generally Richings "Assessors in South African Criminal Trials" 1976
Crim LR 107; Van Zyl Smit & Isakow 1985 SAJHR 218; Van Zyl Smit 1979 SALJ 173 and 1984
SALJ 212; Swanepoel 1990 SACJ 174; Watney 1992 THHR 465.
Footnote - 77
77 See s 93ter of the Magistrates' Courts Act 32 of 1944 and Watney 1992 THRHR 465. See also
generally Seekings & Murray Lay Assessors in South African Magistrates' Courts (1998) 50.
77 See s 93ter of the Magistrates' Courts Act 32 of 1944 and Watney 1992 THRHR 465. See
also generally Seekings & Murray Lay Assessors in South African Magistrates' Courts (1998)
50.
Footnote - 78
78 See s 145 of the CPA and Bekker "Assessore in Suid-Afrikaanse Strafsake" in Strauss (ed)
Huldigings-bundel vir W A Joubert (1988) 32.
78 See s 145 of the CPA and Bekker "Assessore in Suid-Afrikaanse Strafsake" in Strauss (ed)
Huldigings-bundel vir W A Joubert (1988) 32.
Footnote - 79
79 R v Solomons1959 (2) SA 352 (A) 363-4. In S v Gambushe1997 (1) SACR 638 (N) 643b lay
assessors in Magistrates' Courts were referred to as "a sort of `mini-jury'." See also S v
Maphanga2001 (2) SACR 371 (W) 374b.
79 R v Solomons1959 (2) SA 352 (A) 363-4. In S v Gambushe1997 (1) SACR 638 (N) 643b
lay assessors in Magistrates' Courts were referred to as "a sort of `mini-jury'." See also S v
Maphanga2001 (2) SACR 371 (W) 374b.
Footnote - 80
80 Two assessors can overrule a judge or magistrate on the facts.
80 Two assessors can overrule a judge or magistrate on the facts.
Footnote - 81
81 See generally s 145(4)(a) of the CPA and s 93ter(3)(e) of the Magistrates' Courts Act 32 of
1944.
81 See generally s 145(4)(a) of the CPA and s 93ter(3)(e) of the Magistrates' Courts Act 32
of 1944.
Footnote - 82
82 See s 146(b) of the CPA.
82 See s 146(b) of the CPA.
Footnote - 83
83 See generally Ferreira Strafproses in die Laer Howe 2 ed (1979) 500.
83 See generally Ferreira Strafproses in die Laer Howe 2 ed (1979) 500.
Footnote - 84
84 See generally S v Adams2001 (1) SACR 59 (C).
84 See generally S v Adams2001 (1) SACR 59 (C).
Footnote - 85
85 See s 93ter(1)(b) of the Magistrates' Courts Act 42 of 1944.
85 See s 93ter(1)(b) of the Magistrates' Courts Act 42 of 1944.
Footnote - 86
86 See s 146(d) of the CPA and s 93ter(3)(e) of the Magistrates' Courts Act 32 of 1944.
86 See s 146(d) of the CPA and s 93ter(3)(e) of the Magistrates' Courts Act 32 of 1944.
Footnote - 87
87 Van der Merwe 1991 Stell LR 281 306-7.
Footnote - 88
88 See generally Erasmus 1990 Stell LR 348 355; Kötz 1987 TSAR 35 40.
88 See generally Erasmus 1990 Stell LR 348 355; Kötz 1987 TSAR 35 40.
Footnote - 89
89 Dennis The Law of Evidence 3 ed (2007) 16 describes this principle as follows: "The principle of
orality is the principle that evidence on disputed questions of fact should be given by witnesses called
before the court to give oral testimony of matters within their own knowledge. Historically the
principle is intimately connected with the importance attached by the common law to the oath, to the
demeanour of the witness, and to cross-examination as guarantees of reliability. Oral testimony from
witnesses physically present before the court also helps to legitimize the adjudication in other ways.
It reinforces the drama and solemnity of the occasion, and it allows for maximum participation in
decision-making in the sense that parties can confront their accusers and challenge the evidence
against them in the most direct way possible by cross-examination. In the United States parties have
constitutional rights, guaranteed by the Sixth Amendment, to confrontation and cross-examination of
witnesses." See also s 35(3)(i) of the Constitution of the RSA. See further the discussion of S v
Ndhlovu2002 (2) SACR 325 (SCA) in § 13.7.6 below.
89 Dennis The Law of Evidence 3 ed (2007) 16 describes this principle as follows: "The
principle of orality is the principle that evidence on disputed questions of fact should be given
by witnesses called before the court to give oral testimony of matters within their own
knowledge. Historically the principle is intimately connected with the importance attached by
the common law to the oath, to the demeanour of the witness, and to cross-examination as
guarantees of reliability. Oral testimony from witnesses physically present before the court also
helps to legitimize the adjudication in other ways. It reinforces the drama and solemnity of the
occasion, and it allows for maximum participation in decision-making in the sense that parties
can confront their accusers and challenge the evidence against them in the most direct way
possible by cross-examination. In the United States parties have constitutional rights,
guaranteed by the Sixth Amendment, to confrontation and cross-examination of witnesses."
See also s 35(3)(i) of the Constitution of the RSA. See further the discussion of S v
Ndhlovu2002 (2) SACR 325 (SCA) in § 13.7.6 below.
Footnote - 90
90 See § 1.3.3 above.
90 See § 1.3.3 above.
Footnote - 91
91 S v Gambushe supra 645b-c.
91 S v Gambushe supra 645b-c.
Footnote - 92
92 S v Gambushe supra 644a. See further § 30.11.4 below.
92 S v Gambushe supra 644a. See further § 30.11.4 below.
Footnote - 93
93 See generally S v Gambushe supra 642c. See further §§ 31.6 and 32.7 below.
93 See generally S v Gambushe supra 642c. See further §§ 31.6 and 32.7 below.
Footnote - 94
94 S v Gambushe supra 643h.
94 S v Gambushe supra 643h.
Footnote - 95
95 2001 (2) SACR 371 (W) 373d.
95 2001 (2) SACR 371 (W) 373d.
Footnote - 96
96 Lay Assessors in South Africa's Magistrates' Court: Issues in Law, Race and Gender vol 6 (1998)
192.
96 Lay Assessors in South Africa's Magistrates' Court: Issues in Law, Race and Gender vol 6
(1998) 192.
Footnote - 97
97 Act 67 of 1998.
97 Act 67 of 1998.
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1.7 Rules of Evidence in Criminal and Civil Proceedings

This work is confined to the law of evidence as applied in criminal and civil
proceedings. It will be noted that the "law of criminal evidence is much more
extensive than the law of civil evidence." 98 There are numerous common-law,
statutory and constitutional provisions which seek to protect accused persons
from wrongful convictions and which seek to maintain a balance between the
state (the prosecution) and the individual. The result is that there are also certain
key areas where there are major differences between rules of evidence in criminal
as opposed to civil proceedings. The most obvious difference is the standard of
proof: the requirement in criminal cases "that guilt be proved beyond a
reasonable doubt signals the seriousness of criminal convictions". 99 In civil cases
the party bearing the burden of proof need only prove his case on a balance of
probability (see § 32.7 below). A court will also more readily, in terms of its
discretion embodied in s 3(1)(c) of the Law of Evidence Amendment Act 45 of
1988, admit hearsay for purposes of civil proceedings as opposed to criminal
proceedings (see § 13.7.1 below). A further major difference between criminal
and civil proceedings, relates to the rules which govern the competence and
compellability of witnesses, including the parties (see §§ 22.9, 22.11.1 and
22.11.2 below).
The strict rules of evidence may also be relaxed according to the nature and
purpose of the specific proceedings and issues. 100 All the strict rules of evidence
which apply in a criminal trial for purposes of determining the merits (ie, the
question whether the accused must be acquitted or convicted), do not necessarily
apply once the accused has been convicted and the stage is reached where
evidence (information) is required for purposes of determining an appropriate
sentence. Circumstances will dictate the extent to which the formal rules of
evidence should be adhered to or relaxed, 101 but the accused may in no
circumstances be deprived of his constitutional right to a fair trial. 102 The same
approach applies to a bail application: a free system of evidence may be followed
103 provided the bail applicant
3rd Ed, 2009 ch1-p16
is not deprived of a fair bail hearing. Hearsay evidence, 104 opinion evidence 105
and character evidence 106 are generally freely admitted in bail proceedings. In
bail proceedings guilt or innocence is normally not the central issue. Liberty
pending the final outcome of the trial or appeal, is the issue. 107
Footnote - 98
98 Dennis The Law of Evidence 17.

Footnote - 99
99 Schwikkard Presumption of Innocence 15. In S v Baloyi2000 (1) SACR 81 (CC) Sachs J also
said at [15]: "The requirement that the State must prove guilt beyond a reasonable doubt has been
called the golden thread running through the criminal law, and a prime instrument for reducing the
risk of convictions based on factual error." See also generally Magmoed v Janse van Rensburg1993
(1) SACR 67 (A), where Corbett CJ referred to the "general policy of concern for an accused person
in a criminal trial" (at 100j) and the rule that there can be no conviction in the absence of proof
beyond reasonable doubt furnished by the prosecution (at 101a).
99 Schwikkard Presumption of Innocence 15. In S v Baloyi2000 (1) SACR 81 (CC) Sachs J

also said at [15]: "The requirement that the State must prove guilt beyond a reasonable doubt
has been called the golden thread running through the criminal law, and a prime instrument for
reducing the risk of convictions based on factual error." See also generally Magmoed v Janse
van Rensburg1993 (1) SACR 67 (A), where Corbett CJ referred to the "general policy of
concern for an accused person in a criminal trial" (at 100j) and the rule that there can be no
conviction in the absence of proof beyond reasonable doubt furnished by the prosecution (at
101a).
Footnote - 100
100 The small claims courts are a statutory example. See § 1.5 above. Application of the rules of
evidence in arbitration proceedings, is discussed by Butler & Smith in LAWSA vol 1 at para 586.
100 The small claims courts are a statutory example. See § 1.5 above. Application of the
rules of evidence in arbitration proceedings, is discussed by Butler & Smith in LAWSA vol 1 at
para 586.
Footnote - 101
101 For an extensive and critical discussion of rules of evidence in the presentation of evidence or
other information for purposes of sentencing, see Terblanche The Guide to Sentencing in South
Africa 2 ed (2007) 96–103.
101 For an extensive and critical discussion of rules of evidence in the presentation of
evidence or other information for purposes of sentencing, see Terblanche The Guide to
Sentencing in South Africa 2 ed (2007) 96–103.
Footnote - 102
102 It should be noted, eg, that the accused's right under s 35(3)(h) of the Constitution to remain
silent and not to testify during the proceedings, applies to the sentencing stage as well. See S v
Dzukuda; S v Tshilo2000 (2) SACR 443 (CC) at [40].
102 It should be noted, eg, that the accused's right under s 35(3)(h) of the Constitution to
remain silent and not to testify during the proceedings, applies to the sentencing stage as well.
See S v Dzukuda; S v Tshilo2000 (2) SACR 443 (CC) at [40].
Footnote - 103
103 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat1999 (2) SACR 51 (CC) at [11]. See also
generally Van der Merwe in Du Toit et al Commentary 9-60 as well as Hendriks Die Aard van
Borgverrigtinge met Spesifieke Verwysing na die Toepassing van die Reëls van die Bewysreg op
Sodanige Verrigtinge (unpubl LLM thesis, Univ of Stellenbosch, 2004) 31-62.
103 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat1999 (2) SACR 51 (CC) at [11]. See
also generally Van der Merwe in Du Toit et al Commentary 9-60 as well as Hendriks Die Aard
van Borgverrigtinge met Spesifieke Verwysing na die Toepassing van die Reëls van die
Bewysreg op Sodanige Verrigtinge (unpubl LLM thesis, Univ of Stellenbosch, 2004) 31-62.
Footnote - 104
104 S v De Kock1995 (1) SACR 299 (T) 310e. Although hearsay is admissible in bail applications, it
will often carry less weight than the testimony of persons who had personal knowledge of the
events. See S v Tshabalala1998 (2) SACR 259 (C) 265g. The difference between admissibility and
weight is explained in § 2.7 below.
104 S v De Kock1995 (1) SACR 299 (T) 310e. Although hearsay is admissible in bail
applications, it will often carry less weight than the testimony of persons who had personal
knowledge of the events. See S v Tshabalala1998 (2) SACR 259 (C) 265g. The difference
between admissibility and weight is explained in § 2.7 below.
Footnote - 105
105 S v Hlongwa1979 (4) SA 112 (D) 113H-114A. For valid qualifications and criticisms of this rule,
see S v Lukas1991 (2) SACR 429 (W) 437b-c and Van der Berg Bail A Practitioner's Guide 2ed
(2001) 83.
105 S v Hlongwa1979 (4) SA 112 (D) 113H-114A. For valid qualifications and criticisms of this
rule, see S v Lukas1991 (2) SACR 429 (W) 437b-c and Van der Berg Bail A Practitioner's Guide
2ed (2001) 83.
Footnote - 106
106 S v Patel1970 (3) SA 565 (W) 566B-C.
106 S v Patel1970 (3) SA 565 (W) 566B-C.
Footnote - 107
107 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra at [11].
107 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra at [11].
Document 13 of 330
Chapter 2
Basic Concepts and Distinctions
S E van der Merwe
2.1 Introduction
2.2 Facts in issue and facts relevant to the facts in issue
2.3 Evidence and argument
2.4 Evidence and probative material
2.5 Evidence and proof
2.6 Conclusive proof and prima facie proof
2.7 Admissibility and weight of evidence
2.8 Conditional admissibility
2.9 Circumstantial and direct evidence
2.10 Primary and secondary evidence
2.11 Hearsay
2.12 Relevance
2.13 Privilege
2.14 Formal and informal admissions
2.15 Confessions
2.16 Judicial notice
2.17 Presumptions
2.18 The burden of proof (onus of proof, legal burden) and the burden of
rebuttal (evidential burden, "weerleggingslas")
3rd Ed, 2009 ch2-p17

2.1 Introduction
This chapter is of a preliminary nature. Most of the concepts identified or
explained here, will be encountered again in the rest of this work.
Document 14 of 330
2.2 Facts in Issue and Facts Relevant to the Facts in

Issue
The facts in issue (facta probanda) are those facts which a party must prove in
order to succeed; the facts relevant 1 to the facts in issue (facta probantia) are
those facts which tend to prove or disprove the facts in issue. For example, in a
paternity case the identity of the father will be a factum probandum 2 (ie, a fact
in issue); sexual intercourse with the alleged father will be a factum probans 3
(ie, a fact relevant to the fact in issue). Schmidt & Rademeyer make a further
distinction between primary and secondary facta probanda. 4 According to them,
primary facta probanda would refer to those facts placed in issue by
3rd Ed, 2009 ch2-p18
the pleadings (in civil proceedings) and the plea (in criminal proceedings).
Secondary facta probanda would refer to facta probantia which are in issue; for
example, in a paternity suit it may be disputed that sexual intercourse took place
at the material time. This is then a factum probans which is in dispute.
The facts in issue are, generally speaking, determined by substantive law,
whereas the rules of procedure — and in particular the law of evidence —
determine the facts relevant to the facts in issue.
In both criminal and civil matters the number of facts in issue at the initial
stage of the case may be reduced by means of formal admissions. 5 For example,
where an accused is charged with murder it is necessary for the state to prove
that the accused unlawfully and intentionally killed another person. Substantive
law requires that these elements must be proved. During his explanation of plea
in terms of s 115 of the CPA the accused may, however, admit that he killed a
human being. At the same time he may dispute that the killing was unlawful. He
may, for example, claim that the killing was justified by reason of self-defence.
The fact that the accused killed the deceased may (with the consent of the
accused) be recorded as a formal admission. 6 The state need then prove only
unlawfulness. In this way the rules of procedure and substantive law determine
the facts in issue.
Footnote - 1
1 Four definitions of the concept "relevance" are furnished in § 5.3 below.
1 Four definitions of the concept "relevance" are furnished in § 5.3 below.
Footnote - 2
2 "Factum probandum" is the singular of "facta probanda".
2 "Factum probandum" is the singular of "facta probanda".

Footnote - 3
3 "Factum probans" is the singular of "facta probantia".
3 "Factum probans" is the singular of "facta probantia".
Footnote - 4
4 Schmidt & Rademeyer 4-5. See also Schmidt & Rademeyer (2007) 1-6.
4 Schmidt & Rademeyer 4-5. See also Schmidt & Rademeyer (2007) 1-6.
Footnote - 5
5 See ch 26 below.
5 See ch 26 below.
Footnote - 6
6 Section 115(2)(b) as read with s 220 of the CPA.
6 Section 115(2)(b) as read with s 220 of the CPA.
Document 15 of 330
2.3 Evidence and Argument

The meaning of evidence is discussed in §§ 2.4 and 2.5 below. Argument
("betoog") is not presented through evidence, but is merely persuasive comment
made by the parties or their legal representatives with regard to questions of fact
or law. Before judgment is delivered the parties or their legal representatives
have, for example, a right to address the court on the cogency (or otherwise) of
the evidence received during the course of the trial. Their comment, however,
does not amount to evidence. During the course of a trial parties also have the
right to object to and deliver argument with regard to the admissibility of certain
evidence. The court is then required to make a ruling on the issue of
admissibility. But here, too, the comments of the parties do not constitute
evidence.
Document 16 of 330
2.4 Evidence and Probative Material

There is a distinction between evidence ("getuienis") and probative material
("bewysmateriaal"). Our courts are not entirely consistent in distinguishing
between the two. 7 What follows is a simplified overview. "Evidence" essentially
consists of oral statements made in court under oath or affirmation or warning
3rd Ed, 2009 ch2-p19
(oral evidence). 8 But it also includes documents (documentary evidence) 9 and

objects (real evidence) 10 produced and received in court.
Evidence, however, is not the only means of furnishing proof. In S v Mjoli it
was pointed out that even though an accused's admission made during the
explanation of plea in terms of s 115 of the CPA is not evidence by the accused, it
still is "probative material" and there is therefore no impediment in the way of a
trial court to use against the accused material furnished during such procedure.
An explanation of plea is not given under oath or affirmation or warning and
therefore cannot be classified as evidence. 12
In S v Mokgeledi it was held that formal admissions do not constitute evidence.
Formal admissions dispense with the need to adduce evidence to prove facts in
issue, and must be classified as probative material. Judicial notice, 14 similarly,
cannot be classified as evidence (see also § 2.16 below).
In S v AR Wholesalers (Pty) Ltd it was confirmed that presumptions 16 also do
not constitute evidence (see further § 2.17 below).
It is submitted that the term "probative material" is a convenient term to
include not only oral, documentary and real evidence but also formal admissions,
judicial notice, presumptions and — in terms of Mjoli supra — also those
statements made in terms of s 115 of the CPA and which do not amount to formal
admissions. Probative material therefore refers to more than oral, documentary
and real evidence.
Footnote - 7
7 See Van Wyk 1986 21:1 The Magistrate 26 for an accurate and critical analysis of the confusion
in this regard.
7 See Van Wyk 1986 21:1 The Magistrate 26 for an accurate and critical analysis of the
confusion in this regard.
Footnote - 8
8 See ch 18 below.
8 See ch 18 below.
Footnote - 9
9 See ch 20 below.
9 See ch 20 below.
Footnote - 10
10 See ch 19 below.
10 See ch 19 below.
Footnote - 11
11 1981 (3) SA 1233 (A) 1247-8.
11 1981 (3) SA 1233 (A) 1247-8.
Footnote - 12
12 S v Slabbert1985 (4) SA 248 (C) 250A. See also S v Zaba1978 (1) SA 646 (O) 647 and S v
Mogoregi1978 (3) SA 13 (O) 14.
12 S v Slabbert1985 (4) SA 248 (C) 250A. See also S v Zaba1978 (1) SA 646 (O) 647 and S
v Mogoregi1978 (3) SA 13 (O) 14.
Footnote - 13
13 1968 (4) SA 335 (A) 337.
13 1968 (4) SA 335 (A) 337.
Footnote - 14
14 See ch 27 below.
14 See ch 27 below.
Footnote - 15
15 1975 (1) SA 551 (NC) 556.
15 1975 (1) SA 551 (NC) 556.
Footnote - 16
16 See ch 28 below.
16 See ch 28 below.
Document 17 of 330
2.5 Evidence and Proof 17
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. 18 The court will only act upon facts found proved in accordance with
certain standards. In a criminal case the standard of proof is proof beyond a
reasonable doubt. 19 In a civil case the standard of proof is proof upon a balance
of probability 20 — a lower standard than proof beyond reasonable doubt.
3rd Ed, 2009 ch2-p20
Footnote - 17
17 Van Wyk 1976 TSAR 255. Evidence ("getuienis") and proof ("bewys") are not synonymous: R v
V1958 (3) SA 474 (GW).
17 Van Wyk 1976 TSAR 255. Evidence ("getuienis") and proof ("bewys") are not
synonymous: R v V1958 (3) SA 474 (GW).
Footnote - 18
18 See ch 30 below.
18 See ch 30 below.
Footnote - 19
19 See § 31.6 below.

Footnote - 20
Document 18 of 330
2.6 Conclusive Proof and Prima Facie Proof

Conclusive proof means that rebuttal is no longer possible. 21 It is proof which is
taken as decisive and final.
Prima facie proof implies that proof to the contrary is (still) possible. In the
absence of proof to the contrary, prima facie proof will, generally speaking,
become conclusive proof. Prima facie proof is sometimes used as a synonym for
prima facie evidence (especially by the legislature). This approach is, strictly
speaking, incorrect. 22
Footnote - 21
21 S v Moroney1978 (4) SA 389 (A) 406. See also Schmidt & Rademeyer (2007) 1-4.
21 S v Moroney1978 (4) SA 389 (A) 406. See also Schmidt & Rademeyer (2007) 1-4.
Footnote - 22
22 Van Wyk in Ferreira Strafproses in die Laer Howe 2 ed (1979) 418-23. See further Bilchitz 1999
ASSAL 662 687-9.
22 Van Wyk in Ferreira Strafproses in die Laer Howe 2 ed (1979) 418-23. See further Bilchitz
1999 ASSAL 662 687-9.
Document 19 of 330
2.7 Admissibility and Weight of Evidence

The admissibility of evidence and weight of evidence should not be confused. 23
Lansdown & Campbell state that: 24
"If what is adduced can in law properly be put before the court, it is admissible. It is
only once it has been or could be admitted that its persuasiveness, alone or in
conjunction with other evidence, in satisfying the court as to the facta probanda has
to be considered."
There are no degrees of admissibility. Evidence is either admissible or
inadmissible. Evidence cannot be more or less admissible. Once admissible,
however, it may carry more or less weight according to the particular
circumstances of the case. The court weighs or evaluates evidence to determine
whether the required standard of proof has been attained. It is only after the
evidence has been admitted and at the end of the trial that the court will have to
assess the final weight of the evidence. The evaluation of evidence is dealt with in
chapter 30 below.
It should be borne in mind, however, that the admissibility of evidence is in
principle determined with reference to its relevance. In determining relevance
reference must of necessity also be made to the potential weight of the evidence.
25 This, however, is a preliminary investigation in order to determine whether
such evidence, once admitted, would be of assistance when it must finally be
decided whether the facts in issue have been proved.
Footnote - 23
23 In S v Fourie1973 (1) SA 100 (D) 102H-103A it was said that it "is one thing to say that
evidence is relevant and an entirely different thing to say that it is cogent or persuasive". See also
the quotation from R v C1949 (2) SA 438 (SR) 439 in § 5.3.6 n 44 below.
23 In S v Fourie1973 (1) SA 100 (D) 102H-103A it was said that it "is one thing to say that
evidence is relevant and an entirely different thing to say that it is cogent or persuasive". See
also the quotation from R v C1949 (2) SA 438 (SR) 439 in § 5.3.6 n 44 below.
Footnote - 24
24 At 720.
24 At 720.
Footnote - 25
25 See § 5.3.2 below.
25 See § 5.3.2 below.
Document 20 of 330
2.8 Conditional Admissibility 26
Evidence may be admitted on condition that some basic defect which renders it
inadmissible is cured during the course of the trial. 27 This procedure is rare and
3rd Ed, 2009 ch2-p21
is merely one of convenience. 28 A good example of conditional admissibility is

found in S v Swanepoel, 29 where it was held that a document can be used in
cross-examination in spite of its authenticity being denied by the opposing party:
it is only after the state has closed its cases that the accused have the
opportunity to place their cases before the court and tender their evidence on the
authenticity of documents. If authenticity is not proved later, the evidence
initially elicited in cross-examination with regard to the content of the document
in question will be inadmissible despite the fact that it was received at an earlier
stage, because the rule remains that cross-examination on an inadmissible
document is not allowed. 30
Footnote - 26
26 See generally Van Tonder v Kilian1992 (1) SA 67 (A) and cf S v Ntuli1993 (2) SACR 599 (W).
26 See generally Van Tonder v Kilian1992 (1) SA 67 (A) and cf S v Ntuli1993 (2) SACR 599
(W).
Footnote - 27
27 Tapper Cross and Tapper on Evidence 76-77.
27 Tapper Cross and Tapper on Evidence 76-77.
Footnote - 28
28 See also s 3(1)(b) and 3(3) of the Law of Evidence Amendment Act 45 of 1988 as discussed by
De Vos & Van der Merwe 1993 Stell LR 7 20. See further § 13.6 below.
28 See also s 3(1)(b) and 3(3) of the Law of Evidence Amendment Act 45 of 1988 as
discussed by De Vos & Van der Merwe 1993 Stell LR 7 20. See further § 13.6 below.
Footnote - 29
29 1980 (1) SA 144 (NC).
29 1980 (1) SA 144 (NC).
Footnote - 30
30 See R v Black1923 AD 388 and § 18.6.5.3 below. See also § 11.5.1.6 below.
30 See R v Black1923 AD 388 and § 18.6.5.3 below. See also § 11.5.1.6 below.
Document 21 of 330
2.9 Circumstantial and Direct Evidence 31
Circumstantial evidence often forms an important component of the information

furnished to the court. In these instances the court is required to draw inferences,
because the witnesses have made no direct assertions with regard to the fact in
issue. These inferences must comply with certain rules of logic. 32
Circumstantial evidence furnishes indirect proof. 33 In a murder trial, for
example, evidence may be given that A had a motive to kill B and was seen
running from B's home with a bloodstained knife. Evidence, however, is direct
when a fact in issue is proved directly by such evidence; for example, where
witness C testifies that he saw A stabbing B in the latter's home.
The distinction between direct and circumstantial evidence is of special
importance in those instances where an accused decides not to testify in his own
defence. 34
Footnote - 31
31 See generally S v Mtsweni1985 (1) SA 590 (A) 593D-594A.
31 See generally S v Mtsweni1985 (1) SA 590 (A) 593D-594A.
Footnote - 32
32 See §§ 30.5.2 and 30.5.3 below.
32 See §§ 30.5.2 and 30.5.3 below.
Footnote - 33
33 Schmidt & Rademeyer 4.

Footnote - 34
34 S v Mthetwa1972 (3) SA 766 (A) 769. See further § 30.9 below.
34 S v Mthetwa1972 (3) SA 766 (A) 769. See further § 30.9 below.
Document 22 of 330
2.10 Primary and Secondary Evidence

The distinction between primary and secondary evidence is of importance with
regard to documentary evidence. 35 In the fifth edition of Cross on Evidence it
was said 36
"Primary evidence is that which does not, by its very nature, suggest that better
evidence may be available: 'Secondary evidence' is that which, by its very nature,
does suggest that better evidence may be available. The original of a document is
primary evidence, a copy secondary evidence, of its contents. The distinction is now
mainly of importance in connection with documents, because their contents must, as
a general rule, be proved by production of the original, but it used to be of much
greater significance on account of the 'best evidence' rule
revised 3rd Ed, 2010 ch2-p22

which occupied a prominent place in books on the law of evidence in the eighteenth
and early nineteenth centuries."
Footnote - 35
35 See generally Hoffmann & Zeffertt 390. See further §§ 20.3 to 20.5 below.
35 See generally Hoffmann & Zeffertt 390. See further §§ 20.3 to 20.5 below.
Footnote - 36
36 Cross Cross on Evidence 5 ed (1979) 15.
36 Cross Cross on Evidence 5 ed (1979) 15.
Document 23 of 330
2.11 Hearsay 37
In terms of s 3(4) of the Law of Evidence Amendment Act 45 of 1988 hearsay

evidence "means evidence, whether oral or in writing, the probative value of
which depends upon the credibility of any person other than the person giving
such evidence".
Footnote - 37
37 See ch 13 below.
37 See ch 13 below.
Document 24 of 330
2.12 Relevance
Four possible definitions of relevance are quoted in § 5.3 below.
Document 25 of 330
2.13 Privilege
Privilege, briefly stated, refers to the right or duty of a witness, including a party,
to lawfully withhold evidence from a court of law. A distinction is drawn between
private privilege (see chapter 10) and state privilege (see chapter 11). State
privilege is also sometimes referred to as "public privilege" or "public interest
immunity" (see § 11.1.1 below).
The differences between private and state privilege, are discussed in §§ 10.1
and 11.1.2 below.
Privilege must be distinguished from the competence and compellability of
witnesses (see § 22.1 below).
Document 26 of 330
2.14 Formal and Informal Admissions

The distinction between formal and informal admissions is discussed in § 26.2.1
below.
Document 27 of 330
2.15 Confessions
A confession is a comprehensive out of court informal admission by the accused
of all the elements of the alleged crime. It can be described as an unequivocal
acknowledgement of guilt, which — if it were made in a court of law — would be
accepted as a plea of guilty (see § 17.3 below).
Document 28 of 330
2.16 Judicial Notice
A court may accept certain facts as proved even though no evidence was led to
prove such facts. This process is known as "judicial notice" (see chapter 27).
Examples of facts which may be judicially noticed are facts of general knowledge
(see § 27.4.1 below) and facts which are of local knowledge (see § 27.4.2).
3rd Ed, 2009 ch2-p23
Document 29 of 330
2.17 Presumptions
A distinction must be drawn between three different kinds of "presumption".
There is a so-called "presumption of fact" which is merely an inference drawn
from evidence (see §§ 28.3.3 and 30.5.4 below). There are also so-called
"irrebuttable presumptions of law" which are really rules of substantive law (see
§§ 4.4 and 28.3.1 below). The only true presumption is the rebuttable
presumption of law in terms of which an assumption which is demanded by law,
must be accepted in the absence of evidence or proof to the contrary (see §§ 4.4
and 28.3.3 below). Several rebuttable presumptions of law which placed a burden
of proof upon the accused, have been declared unconstitutional (see chapter 29).
Document 30 of 330
2.18 The Burden of Proof (Onus of Proof, Legal Burden)

and the Burden of Rebuttal (Evidential Burden,
"Weerleggingslas")
The distinction between the burden of proof and the evidential burden
("weerleggingslas") is discussed in §§ 31.2, 32.2 and 32.3 below).
Document 31 of 330
Chapter 3
Sources of the South African Law of Evidence and
the Impact of Constitutional Provisions
S E van der Merwe
3.1 Introduction
3.2 Original and regional incorporation of English law: the pre-union period
3.3 Criminal proceedings: the post-union period
3.4 Civil proceedings: the post-union period
3.5 Interpretation of the 30 May 1961 provision
3.5.1 English decisions considered to be incorrect
3.5.2 South African rules of practice incompatible with English law
3.5.3 Rules inconsistent with constitutional provisions
3.6 Value of English cases decided after 30 May 1961
3.7 Value of privy council decisions
3.8 Further sources
3.9 Constitutional provisions
3rd Ed, 2009 ch3-p24
3.1 Introduction
The following fundamental principles and broad guidelines are important in
identifying the sources of the South African law of evidence:
(a) Our law of evidence is not based on Roman-Dutch authority.
(b) Our rules of evidence are found in local statutes and, where these are silent
on a specific topic or issue, the English law of evidence which was in force in
South Africa on 30 May 1961 serves as our common law. 1 The CPA2 and
CPEA3 contain provisions to this effect.
(c) South Africa has a considerable body of local case law on evidence. These
cases — if decided in accordance with the applicable English common-law
rules and principles as at 30 May 1961 — are binding in terms of our law of
precedent. The practical result is that a South African court need not in each
and every instance try to find applicable English cases. In most instances
local precedents will suffice on the basis that they accurately reflect the
common-law position.
3rd Ed, 2009 ch3-p25

(d) If a total lacuna is encountered, a South African court may for comparative
purposes look for guidance in English cases decided after 30 May 1961.
Such cases would normally have considerable persuasive value, but can
never be binding. 4 In the event of a lacuna, support for a decision can also
be gleaned from the law of evidence of other Anglo-American jurisdictions,
for example, Australia, Canada and the United States. In § 1.4 above it was
pointed out that the South African law of evidence belongs to the Anglo-
American "family". We share a common heritage, that is, the English
common-law system, which is based upon rules essentially and originally
designed for trial by jury.
(e) The South African Constitution is the supreme law: all rules of evidence
must comply with our constitutional provisions. This matter is dealt with
more fully in § 3.9 below. At this stage it is sufficient to note that the
Constitution not only governs the validity of rules of evidence but is also an
important source of the law of evidence.
Footnote - 1
1 See § 3.5 below. In S v Desai1997 (1) SACR 38 (W) 43g Flemming DJP stated that our law of
evidence "is essentially a part of the law which is tied to the law of England ... That, of course, does
not exclude different developments at a date subsequent to the end of the statutory tying of our law
of evidence to that of the law of England."
1 See § 3.5 below. In S v Desai1997 (1) SACR 38 (W) 43g Flemming DJP stated that our law
of evidence "is essentially a part of the law which is tied to the law of England ... That, of
course, does not exclude different developments at a date subsequent to the end of the
statutory tying of our law of evidence to that of the law of England."
Footnote - 2
2 See § 3.3 below as well as S v Taylor1991 (2) SACR 69 (C), which is discussed in § 3.5 below.
2 See § 3.3 below as well as S v Taylor1991 (2) SACR 69 (C), which is discussed in § 3.5
below.
Footnote - 3
3 See § 3.4 below.
3 See § 3.4 below.
Footnote - 4
4 See § 3.6 below.
4 See § 3.6 below.
Document 32 of 330
3.2 Original and Regional Incorporation of English Law:

the Pre-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. 5 Legislation which set out English
common-law rules and principles was passed. This process can be referred to as
direct incorporation. However, indirect incorporation also took place: it was also
provided that the English law of evidence had to be followed in respect of issues
or topics for which no express local statutory provision had been made. There
were several colonial statutes which had directly and indirectly incorporated
English law (for example, Ordinance 72 of 1830 (Cape); Law 17 of 1859 (Natal);
Ordinance 11 of 1902 (Orange Free State) and Proclamation 16 of 1902
(Transvaal)). At the original dates of incorporation both English statutory and
common law were adopted. 6 It was generally accepted that local courts were
required to follow the English statutes as these had stood on the original date of
incorporation, 7 and that local courts were therefore not bound by subsequent
English legislation. 8 Law 17 of 1859 (Natal), for example, provided expressly that
only those English statutes in force in England in 1859 were to be applied in
Natal. But amendments to the English common law brought about by English
judicial precedents (or of course subsequent local legislation) had to be applied.
In some of these early statutes the English law was indirectly incorporated by
referring to the law "in the Supreme Court of Judicature in England" (see, for
example, s 45 of Proclamation 16 of 1902 (Transvaal)). Residuary sections (see §
3.5 below) were also employed, for example, in the Transvaal Proclamation of
3rd Ed, 2009 ch3-p26
1902 and the Orange Free State Ordinance of 1902. The latter proclamation
incorporated the law of the Cape of Good Hope, which, in turn, had incorporated
English law.
Footnote - 5
5 Zeffertt, Paizes & Skeen 5-8.
Footnote - 6
6 Zeffertt, Paizes & Skeen 9.
Footnote - 7
7 O'Dowd The Law of Evidence in South Africa (1963) 3.
7 O'Dowd The Law of Evidence in South Africa (1963) 3.
Footnote - 8
Document 33 of 330
3.3 Criminal Proceedings: the Post-Union Period

In criminal proceedings the early colonial legislation was superseded by and
consolidated in the Criminal Procedure and Evidence Act 31 of 1917. But this Act
was later replaced by the Criminal Procedure Act 56 of 1955. In terms of the
latter Act, English law was excluded where any matter or topic relating to
evidence was expressly dealt with in South African legislation. But English law
had to be followed where a matter was specifically covered by a reference to the
law as applied "in the Supreme Court of Judicature in England". There were also
residuary clauses which invoked the English law with regard to issues not
expressly covered by South African legislation.
When the Union became a Republic it was thought that further direct
references to another country's laws were inappropriate. 9 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). However, these 30
May 1961 provisions were and are nothing else but a cumbersome way of telling
a South African court and lawyer to go back in time, look at the law as it stood on
30 May 1961, and then discover(!) that the law in force on that day was the law
which was in force in the supreme court of judicature in England 10 (unless, of
course, superseded by local legislation).
In 1977 the Criminal Procedure Act 56 of 1955 was (except for ss 319(3) and
384) superseded by the CPA. The CPA generally retained the references to the
law as it stood on 30 May 1961.
The following are examples of specific topics — or aspects of specific topics —
which, in our law of evidence in criminal proceedings, are still covered by
references to the law as it stood on 30 May 1961: the impeachment or support of
the credibility of a witness — s 190(1) of the CPA; 11 legal professional privilege
— s 201 of the CPA; 12 state privilege — s 202 of the CPA; 13 the privilege against
3rd Ed, 2009 ch3-p27
self-incrimination — s 203 of the CPA; 14 the character of an accused — s 227(1)

of the CPA; 15 the character of any female or male against or in connection with
whom any offence of an indecent nature is alleged to have been committed — s
227(1) as read with s 227(4) of the CPA; 16 evidence and sufficiency of evidence
of appointment to public office — s 230 of the CPA. 17 Aspects relating to hearsay
also used to be covered by references to the law as it stood on 30 May 1961. But
these provisions — which were contained in s 216 and s 223 of the CPA — have
been repealed by s 9 of the Law of Evidence Amendment Act 45 of 1988. 18 The
latter Act regulates hearsay without any reference to the law as it stood on 30
May 1961. 19
Sections 206 and 252 of the CPA contain wide residuary sections and are
referred to in § 3.5 below.
Footnote - 9
Footnote - 10
10 See generally Harcourt (ed) Swift's Law of Criminal Procedure 2 ed (1969) 536. The extent to
which we can in principle be bound by the English common law, is illustrated by Smit v Van Niekerk
NO1976 (4) SA 293 (A). The question was whether clergymen could be compelled to disclose
information disclosed to them in their professional capacities, ie, as ministers of religion. The court
referred to the fact that no such privilege existed in England (at 302D-E): "Die rede vir hierdie
afwesigheid skyn te wees dat koning Hendrik VIII in 1534 'n end gemaak het aan die heerskappy van
die Rooms-Katolieke kanonieke reg en mettertyd die privilegies van die geestelikheid afgeskaf het."
The court ultimately decided that public policy did not require that clergymen should enjoy a
privilege. See further § 10.4 below. See also the discussion of Welz v Hall1996 (4) SA 1073 (C) by
Zeffertt 1996 ASSAL 803 817-8.
10 See generally Harcourt (ed) Swift's Law of Criminal Procedure 2 ed (1969) 536. The
extent to which we can in principle be bound by the English common law, is illustrated by Smit
v Van Niekerk NO1976 (4) SA 293 (A). The question was whether clergymen could be
compelled to disclose information disclosed to them in their professional capacities, ie, as
ministers of religion. The court referred to the fact that no such privilege existed in England (at
302D-E): "Die rede vir hierdie afwesigheid skyn te wees dat koning Hendrik VIII in 1534 'n end
gemaak het aan die heerskappy van die Rooms-Katolieke kanonieke reg en mettertyd die
privilegies van die geestelikheid afgeskaf het." The court ultimately decided that public policy
did not require that clergymen should enjoy a privilege. See further § 10.4 below. See also the
discussion of Welz v Hall1996 (4) SA 1073 (C) by Zeffertt 1996 ASSAL 803 817-8.
Footnote - 11
11 See §§ 25.2 and 25 2 2 below.
11 See §§ 25.2 and 25 2 2 below.
Footnote - 12
12 See § 10.3.1 below.
12 See § 10.3.1 below.
Footnote - 13
Footnote - 14
14 See § 10.2.2 below.

14 See § 10.2.2 below.
Footnote - 15
15 See § 6.2.1 below.
15 See § 6.2.1 below.
Footnote - 16
16 See § 6.2.6.1 below.
16 See § 6.2.6.1 below.
Footnote - 17
17 See also Van Wyk 1981 SACC 277-9.
17 See also Van Wyk 1981 SACC 277-9.
Footnote - 18
18 See also De Vos & Van der Merwe 1993 Stell LR 7 n 2.
18 See also De Vos & Van der Merwe 1993 Stell LR 7 n 2.
Footnote - 19
19 See ch 13 below.
19 See ch 13 below.
Document 34 of 330
3.4 Civil Proceedings: the Post-Union Period

In civil proceedings the various colonial provisions which had introduced the
English law of evidence were "consolidated" only when the CPEA came into
operation in 1965. Section 42 of the CPEA provides that the law of evidence,
including the law relating to the competency, compellability, examination and
cross-examination of witnesses, which was in force in respect of civil proceedings
on 30 May 1961, shall apply in any case not provided for in the CPEA or any other
South African legislation. This is only an indirect way of referring the reader to
the English law of evidence: on 30 May 1961 the various provisions applicable to
civil proceedings in the provinces of the Union contained residuary provisions
incorporating the English law for matters not specifically covered by South African
statutes.
Document 35 of 330
3.5 Interpretation of the 30 May 1961 Provision

In Rusmarc SA (Pty) Ltd v Hemdon Enterprises (Pty) Ltd Coetzee J posed the
following question 20 "Is the result then that the South African law of evidence is
English law, petrified as at 30 May 1961, with no room for judicial development
by South African judges?" It is generally accepted that the South African law of
evidence "remains to a certain extent frozen" 21 as at 30 May 1961. The common
law that must be followed consists of English legislation that existed on the
various dates of
3rd Ed, 2009 ch3-p28
original indirect incorporation, as well as English case law prior to 30 May 1961.
22 The two accepted instances where our courts have moved away from the
binding effect of the "30 May 1961" provision are discussed in §§ 3.5.1 and 3.5.2
below; and the value of Privy Council decisions are referred to in § 3.7 below. It
must be pointed out, once again, that all rules of evidence incompatible with
constitutional provisions are not binding (see §§ 3.5.2 and 3.9 below).
A good example of a residuary provision is also found in s 206 of the CPA. 23
This section provides as follows: "The law as to the competency, compellability or
privilege of witnesses which was in force in criminal proceedings on the thirtieth
day of May, 1961, shall apply in this Act or any other law." In S v Taylor
Selikowitz J pointed out that the effect of this section is that "we rely heavily on
the law of England as applied at that date". 24 The practical effect of a 30 May
1961 provision is that "... the Legislature has ... in its wisdom referred us to
another system of law", that is, the English law. 25 Section 252 of the CPA also
determines that the law as to the admissibility of evidence which was in force in
respect of criminal proceedings "on the thirtieth day of May 1961" shall apply in
any case not expressly provided for by the CPA26 or any other law.
Section 42 of the CPEA is the residuary section for civil matters. 27
3.5.1 English decisions considered to be incorrect

The implication of Van der Linde v Calitz is that our Supreme Court of Appeal, as
successor to the Privy Council, may deviate from an English decision if it
concludes that the English decision does not correctly apply the English law. 29 In
this case — which was decided in 1967 — the Appellate Division preferred an
older Privy Council decision to a more recent decision of the House of Lords. A
further reason for this
3rd Ed, 2009 ch3-p29
decision, namely that the Privy Council was at the time of its decision (that is,
1931) the highest court of appeal in the South African hierarchy, has been
criticised. 30 It should be borne in mind that South African appeals to the Privy
Council were abolished in 1950. 31
3.5.2 South African rules of practice incompatible with English

law 32
Where an English evidentiary principle is obviously incompatible with South
African law or a rule of practice (usus fori), such principle may be rejected. 33 In
S v Lwane the Appellate Division also created a binding rule of practice which has
no counterpart in English law or practice.
3.5.3 Rules inconsistent with constitutional provisions

English decisions prior to 30 May 1961, and which would have been binding in the
absence of local statutory provisions, must be ignored if found incompatible and
inconsistent with constitutional provisions, for example, the constitutional right to
a fair trial (see § 11.5.1 below). And, where possible, the applicable English
common-law rule must – on account of s 39(2) of the Constitution – be
developed in order to promote the spirit, purport and objects of the Bill of Rights
(see § 12.13 below).
Footnote - 20
20 1975 (4) SA 626 (W).
20 1975 (4) SA 626 (W).
Footnote - 21
21 Ex parte Minister van Justisie: In re S v Wagner1965 (4) SA 507 (A) 513G. But cf §§ 3.5.1 to
3.5.3 below.
21 Ex parte Minister van Justisie: In re S v Wagner1965 (4) SA 507 (A) 513G. But cf §§ 3.5.1
to 3.5.3 below.
Footnote - 22
22 See generally Gentiruco AG v Firestone SA (Pty) Ltd1972 (1) SA 589 (A) 617; Naidoo v Marine
and Trade Insurance Co Ltd1978 (3) SA 666 (A); Smit v Van Niekerk NO1976 (4) SA 293 (A); A
Sweidan and King (Pty) Ltd v Zim Israel Navigation Co Ltd1986 (1) SA 515 (D). In the latter case
counsel for the applicants submitted that where the matter had never arisen before 30 May 1961 in
the House of Lords, but was after this date decided by it, this post 30 May 1961 decision was indeed
binding upon South African courts because the House of Lords would in so deciding have determined
what the law has always been. For purpose of his judgment Booysen J did not have to decide on the
merits of this argument. But in 1986 ASSAL 485 Zeffertt responded as follows to the aforementioned
argument. "It is submitted that the argument advanced on behalf of the applicants has, at best, a
seductive and meretricious charm. It manipulates a fiction and, by so doing, achieves a result that
could never have been the intention of the legislature — it is unlikely that our staunchly republican
Parliament wished to leave our law of evidence in perpetual colonial servitude. The whole tenor of
Van der Linde v Calitz is against such an intention. The language of s 42 of the Civil Proceedings
Evidence Act 1965 points to an intention to 'freeze' the law as it was on 30 May 1961. To maintain
that that intention is defeated by an artificial jurisprudential nicety, by a mere legal fiction, is
specious when it most persuades, and spurious in its intended result ... In my submission, the
primary question is: Were there relevant English decisions prior to 30 May 1961? If there were, they
are binding to the extent to which the Appellate Division (or the Privy Council before appeals to it
were abolished) considers them to be correct reflections of the English law (Van der Linde v Calitz).
Since we do not have to apply the English law of procedure in its entirety, but only that part which is
evidentiary, a South African 'practice' which is `procedural' rather than exclusively `evidentiary'
would also have to be followed."
22 See generally Gentiruco AG v Firestone SA (Pty) Ltd1972 (1) SA 589 (A) 617; Naidoo v
Marine and Trade Insurance Co Ltd1978 (3) SA 666 (A); Smit v Van Niekerk NO1976 (4) SA
293 (A); A Sweidan and King (Pty) Ltd v Zim Israel Navigation Co Ltd1986 (1) SA 515 (D). In
the latter case counsel for the applicants submitted that where the matter had never arisen
before 30 May 1961 in the House of Lords, but was after this date decided by it, this post 30
May 1961 decision was indeed binding upon South African courts because the House of Lords
would in so deciding have determined what the law has always been. For purpose of his
judgment Booysen J did not have to decide on the merits of this argument. But in 1986 ASSAL
485 Zeffertt responded as follows to the aforementioned argument. "It is submitted that the
argument advanced on behalf of the applicants has, at best, a seductive and meretricious
charm. It manipulates a fiction and, by so doing, achieves a result that could never have been
the intention of the legislature — it is unlikely that our staunchly republican Parliament wished
to leave our law of evidence in perpetual colonial servitude. The whole tenor of Van der Linde v
Calitz is against such an intention. The language of s 42 of the Civil Proceedings Evidence Act
1965 points to an intention to 'freeze' the law as it was on 30 May 1961. To maintain that that
intention is defeated by an artificial jurisprudential nicety, by a mere legal fiction, is specious
when it most persuades, and spurious in its intended result ... In my submission, the primary
question is: Were there relevant English decisions prior to 30 May 1961? If there were, they
are binding to the extent to which the Appellate Division (or the Privy Council before appeals to
it were abolished) considers them to be correct reflections of the English law (Van der Linde v
Calitz). Since we do not have to apply the English law of procedure in its entirety, but only that
part which is evidentiary, a South African 'practice' which is `procedural' rather than
exclusively `evidentiary' would also have to be followed."
Footnote - 23
23 See further § 22.2 below.
Footnote - 24
24 1991 (2) SACR 69 (C) 70h. See further § 22.11.2 below.
24 1991 (2) SACR 69 (C) 70h. See further § 22.11.2 below.
Footnote - 25
25 See Ex parte Minister of Justice: In re R v Demingo1951 (1) SA 36 (A). In this case the AD
interpreted one of the forerunners of s 206 of the CPA.
25 See Ex parte Minister of Justice: In re R v Demingo1951 (1) SA 36 (A). In this case the
AD interpreted one of the forerunners of s 206 of the CPA.
Footnote - 26
26 See s 240(1) of the CPA for an example where express provision is made for the admissibility of
certain evidence.
26 See s 240(1) of the CPA for an example where express provision is made for the
admissibility of certain evidence.
Footnote - 27
27 See § 3.4 above.
Footnote - 28
28 1967 (2) SA 239 (A). See § 11.2.1 below for a discussion of this case.
28 1967 (2) SA 239 (A). See § 11.2.1 below for a discussion of this case.
Footnote - 29
Footnote - 30
30 Davids 1967 SALJ 245; Kahn 1967 SALJ 327; Kerr 1965 SALJ 169.
30 Davids 1967 SALJ 245; Kahn 1967 SALJ 327; Kerr 1965 SALJ 169.
Footnote - 31
Footnote - 32
32 See Schmidt & Rademeyer 18 as well as Schmidt & Rademeyer (2007) 1-21.
32 See Schmidt & Rademeyer 18 as well as Schmidt & Rademeyer (2007) 1-21.
Footnote - 33
33 Ex parte Minister of Justice: In re R v Pillay1945 AD 653.
33 Ex parte Minister of Justice: In re R v Pillay1945 AD 653.
Footnote - 34
34 1966 (2) SA 433 (A). See also Magmoed v Janse van Rensburg1993 (1) SACR 67 (A) 105j-105h.
34 1966 (2) SA 433 (A). See also Magmoed v Janse van Rensburg1993 (1) SACR 67 (A) 105j-
105h.
Document 36 of 330
3.6 Value of English Cases Decided after 30 May 1961
English decisions after 30 May 1961 are not binding upon South African courts,
but do have considerable persuasive force. 35 English decisions also have strong
persuasive force in the interpretation of those South African statutory provisions
which make no reference to English law but which do in effect enact rules similar
to those which apply in English law. 36
Footnote - 35
35 Papenfus v Transvaal Board for the Development of Peri-Urban Areas1969 (2) SA 66 (T) 69.
35 Papenfus v Transvaal Board for the Development of Peri-Urban Areas1969 (2) SA 66 (T)
69.
Footnote - 36
36 R v Hendrickz 1933 TPD 451.
36 R v Hendrickz 1933 TPD 451.
Document 37 of 330
3.7 Value of Privy Council Decisions 37
The Privy Council Appeals Act 16 of 1950 abolished appeals from the Appellate
Division to the judicial committee of the Privy Council. Post-1950 decisions of the
Privy Council therefore merely have persuasive force. Paizes concludes as follows:
38 "Lower courts in South Africa are bound by the decision of the Appellate
Division, followed by pre-1950 decisions of the Privy Council, followed by pre-30
May 1961 decisions of the English appeal courts and House of Lords." The
Supreme Court of Appeal may disregard a pre-1950 Privy Council decision if
convinced that it was wrongly decided. 39
3rd Ed, 2009 ch3-p30
Footnote - 37
37 See generally Hahlo & Kahn The South African Legal System and Its Background (1968) 259-60.
37 See generally Hahlo & Kahn The South African Legal System and Its Background (1968)
259-60.
Footnote - 38
38 Paizes in Du Toit et al Commentary 23-55.
38 Paizes in Du Toit et al Commentary 23-55.
Footnote - 39
39 See generally Hahlo & Kahn The South African Legal System and its Background (1968) 244.
39 See generally Hahlo & Kahn The South African Legal System and its Background (1968)
244.
Document 38 of 330
3.8 Further Sources

Obviously the CPA, CPEA and the Law of Evidence Amendment Act 45 of 1988
cannot be regarded as comprehensive codes governing the law of evidence. But
they certainly are the main sources. Some examples of other statutes can be
found in chapters 15 and 20 below.
Document 39 of 330
3.9 Constitutional Provisions

The South African legal system was constitutionalized on 27 April 1994, when the
Act 200 of 1993 (hereafter the "interim Constitution") came into operation. It was
followed by the Constitution of the Republic of South Africa 1996 (hereafter the
"Constitution") which came into operation on 4 February 1997. Parliamentary
sovereignty was replaced by a Constitution which is the supreme law. There is a
justiciable Bill of Rights. Any statutory or common-law rule which conflicts with
the rights and freedoms contained in the Bill of Rights must be declared
unconstitutional unless it can in terms of s 36(1) of the Constitution be saved as a
constitutionally permissible limitation of a constitutionally guaranteed
fundamental right or freedom.
Some common-law (and also some statutory) procedural and evidentiary
rights of the criminally accused have hardened into constitutional rights. These
include the following: the right to be informed of certain rights; 40 the right to
exercise a "passive defence right", 41 which incorporates the right to remain silent
upon arrest, 42 to be presumed innocent, 43 not to incriminate oneself and not to
testify during trial. 44 The "active defence right" 45 of an accused has also been
elevated to a constitutional guarantee: there is a right to adduce and challenge
evidence. 46 There is, furthermore, a right to a fair trial 47 — which includes the
rights as set out in s 35(3) of the Constitution. This right to a fair trial ("due
process") inevitably also has an important impact on the application of rules of
evidence. 48 This right has had an impact on police docket privilege (see § 11.5
below). The constitutional pre-trial right to be informed not only of the right to
legal representation 49 but also the right to silence 50 affects the admissibility of
confessions and admissions (including so-called "pointings out"). The impact of
constitutional provisions on the admissibility of admissions and confessions is
discussed in chapters 16 and 17 below.
Constitutional provisions have been invoked to declare certain statutory
presumptions and reverse onus clauses unconstitutional. The constitutionality of
presumptions is discussed in chapter 29 below.
3rd Ed, 2009 ch3-p31
Constitutional provisions like ss 32 and 34 have an impact on state privilege

(see § 11.3 below).
However, one of the most far-reaching effects of the Constitution on our law of
evidence concerns the admissibility of unconstitutionally obtained evidence.
Section 35(5) of the Constitution 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 otherwise be detrimental to the
administration of justice". The exclusion of unconstitutionally obtained evidence is
discussed in chapter 12 below.
In the final analysis it can be said that there is "an inseparability between rules
of evidence and constitutional entitlements". 51 Our law of evidence must
constantly be scrutinised in the light of constitutional provisions. Canadian and
American cases can be useful in interpreting the impact of our Constitution on the
law of evidence, because both these countries have also had constitutional
provisions superimposed on their English common-law rules of evidence. In
Canada it happened more than two decades ago; and in the United States it
happened more than two centuries ago. We can be guided by these decisions,
especially since s 39(1)(c) of our Constitution provides that "a court ... may
consider foreign law". However, our courts should be careful not to rely on foreign
case law too easily: a court "must evaluate [foreign decisions] in the light of the
conditions and circumstances existing in its own jurisdiction from time to time,
and the facts of the case before it". 52
Footnote - 40
40 See, eg, s 35(1) of the Constitution.
40 See, eg, s 35(1) of the Constitution.
Footnote - 41
41 See generally Van der Merwe 1994 Obiter 22 23.
41 See generally Van der Merwe 1994 Obiter 22 23.
Footnote - 42
42 Section 35(1)(a) of the Constitution.
Footnote - 43
43 Section 35(3)(h) of the Constitution.
43 Section 35(3)(h) of the Constitution.
Footnote - 44
44 Section 35(3)(j) of the Constitution.
44 Section 35(3)(j) of the Constitution.
Footnote - 45
45 Section 35(3)(h) of the Constitution. See also § 30.9 below.
45 Section 35(3)(h) of the Constitution. See also § 30.9 below.
Footnote - 46
Footnote - 47
47 Section 35(3)(i) of the Constitution.
47 Section 35(3)(i) of the Constitution.
Footnote - 48
48 See § 12.9.3 below for the Constitutional Court's broad analysis of the right to a fair trial.
48 See § 12.9.3 below for the Constitutional Court's broad analysis of the right to a fair trial.
Footnote - 49
49 Section 35(2)(b) of the Constitution.
49 Section 35(2)(b) of the Constitution.
Footnote - 50
Footnote - 51
51 Paizes 1989 SALJ 472 478.
51 Paizes 1989 SALJ 472 478.
Footnote - 52
52 S v Minnies1991 (1) SACR 355 (Nm) 370g-h. See also generally De Villiers 1998 TSAR 20 21.
52 S v Minnies1991 (1) SACR 355 (Nm) 370g-h. See also generally De Villiers 1998 TSAR 20
21.
Document 40 of 330
Chapter 4
The Law of Evidence and Substantive Law
E van der Berg
4.1 Introduction
4.2 The significance of the distinction
4.3 Burden of proof
4.4 Irrebuttable presumptions
4.5 Estoppel
4.6 Parol evidence
4.6.1 The integration rule
4.6.2 Some exceptions
4.6.3 Rectification
4.6.4 The interpretation rule
3rd Ed, 2009 ch4-p32
4.1 Introduction
Substantive law is usually distinguished from adjective law (of which the law of
evidence forms a part) 1 on the basis that substantive law provides for rights and
duties, whereas adjective law provides the procedural mechanisms whereby those
rights and duties are enforced. 2
The distinction is not as clear as it seems. 3 It is not only substantive law that
creates rights and duties. Adjective law also provides for rights and duties. One
merely has to think of the right of a party in a trial to cross-examine an
opponent's witnesses, 4 and the numerous rights and duties provided for by the
rules of court in civil matters, for example the rules relating to the discovery of
documents, 5 and the calling of expert witnesses. 6 The question arises whether
the distinction between substantive and adjective law has any practical relevance,
or whether it is merely of academic interest. The answer is that important
consequences hinge upon this distinction.
3rd Ed, 2009 ch4-p33
Footnote - 1
1 See § 1.1 above.
1 See § 1.1 above.
Footnote - 2
2 Schmidt & Rademeyer (2007) 1-6.
Footnote - 3
3 Schmidt & Rademeyer (2007) 1-7; Zeffertt 1990 SALJ 579; Universal City Studios Inc v Network
Video (Pty) Ltd1986 (2) SA 734 (A).
3 Schmidt & Rademeyer (2007) 1-7; Zeffertt 1990 SALJ 579; Universal City Studios Inc v
Network Video (Pty) Ltd1986 (2) SA 734 (A).
Footnote - 4
Footnote - 5
5 Rule 35 of the Supreme Court; rule 23 of the magistrates' courts.
5 Rule 35 of the Supreme Court; rule 23 of the magistrates' courts.
Footnote - 6
6 Rule 36(9) of the Supreme Court; rule 24(9) of the magistrates' courts; see also § 8.7 below.
6 Rule 36(9) of the Supreme Court; rule 24(9) of the magistrates' courts; see also § 8.7
below.
Document 41 of 330
4.2 The Significance of the Distinction

In our law the distinction between substantive and adjective law is a necessary
one. 7 The historical development of our law resulted in our having Roman-Dutch
law as our common law, except, however, in the law of evidence, 8 wherein we
follow English law. 9 The results of following either Roman-Dutch law or following
English law may be diametrically opposed. No better illustration exists than that
found in Tregea v Godart. 10 This case concerned the burden of proof and is
discussed in §§ 4.3 and 32.1 below.
Sonnekus points out another practical consequence of the characterisation of a
principle or rule as being either substantive or evidential. 11 In this instance
characterisation has a curious effect on the application of estoppel. 12 If estoppel
is a rule of substantive law, 13 viewed as a measure of preventing prejudice, and
not an instrument of gain, the relief afforded by estoppel should not extend
beyond the actual damage suffered by the party entitled to assert estoppel. If,
however, the rule is one of evidence, 14 then, notwithstanding the fact that the
actual prejudice suffered by the representee does not extend to the full amount in
question, the representor, precluded from relying on the true facts, would be
unable to recover anything at all.
The dividing line between substantive law and the law of evidence is blurred by
the fact that some rules of substantive law result in the exclusion of evidence by
the court, thus causing the rule to appear to be one of evidence (the mistaken
reasoning being that since it results in the exclusion of evidence, the rule must be
one of evidence). In this context the so-called irrebuttable presumptions of law
(see § 4.4 below) as well as estoppel (see § 4.5 below) and parol evidence (see
§§ 4.6 to 4.6.4 below) will be discussed briefly in this chapter.
Footnote - 7
7 In Botes v Van Deventer1966 (3) SA 182 (A) it was held, eg, that the law of evidence determines
that a vicarious admission is admissible if an identity of interest (see § 16.5.3 below) exists between
a declarant and a party, but that the issue whether such identity exists is determined by substantive
law (ie Roman-Dutch law). See generally Schmidt & Rademeyer (2007) 1-7.
7 In Botes v Van Deventer1966 (3) SA 182 (A) it was held, eg, that the law of evidence
determines that a vicarious admission is admissible if an identity of interest (see § 16.5.3
below) exists between a declarant and a party, but that the issue whether such identity exists
is determined by substantive law (ie Roman-Dutch law). See generally Schmidt & Rademeyer
(2007) 1-7.
Footnote - 8
8 This is not to say that it is the only exception.
8 This is not to say that it is the only exception.
Footnote - 9
9 See chs 1 and 3 above.
9 See chs 1 and 3 above.
Footnote - 10
10 1939 AD 16.
10 1939 AD 16.
Footnote - 11
11 Sonnekus The Law of Estoppel in South Africa 2 ed (2000) 17, 117-119.
11 Sonnekus The Law of Estoppel in South Africa 2 ed (2000) 17, 117-119.
Footnote - 12

Footnote - 13
13 What Sonnekus Estoppel 116 et seq refers to as the American approach.
13 What Sonnekus Estoppel 116 et seq refers to as the American approach.
Footnote - 14
14 The English approach; Sonnekus Estoppel 116 et seq.
14 The English approach; Sonnekus Estoppel 116 et seq.
Document 42 of 330
4.3 The Burden of Proof 15
Views on the classification of the burden of proof vary from one extreme to the
other. Some hold that it is purely adjectival. Others maintain that it is substantive
law. Even the view that it falls in a grey area somewhere between substantive
and adjective law has found support.
As far as case law is concerned, Tregea v Godart remains the leading but
doubtful authority. In this case the Appellate Division held that substantive law
lays down what has to be proved and by whom, and the rules of evidence relate
to the manner of
3rd Ed, 2009 ch4-p34
its proof. It was also held that the burden of proof and rebuttable presumptions of
law are matters of substantive law.
The issue in this case was the validity of a will. The plaintiffs sought the
rejection of the will on the grounds that the testator did not have the mental
capacity to execute a will. Much depended upon who carried the burden of proof.
If this question was regarded as one of substantive law, Roman-Dutch law would
apply, and the defendants would benefit by a presumption that a will, regular on
the face of it, is valid. If, on the other hand, the matter was regulated by the law
of evidence, and English law applied, the plaintiffs would have been assisted by a
rule that cast the burden of proof on the defendants to prove testamentary
capacity on the part of the testator. The question was held to be one of
substantive law, and Roman-Dutch law was followed. The burden of proof
accordingly was on the plaintiffs.
Schmidt & Rademeyer 17 is of the opinion that Tregea v Godart was incorrectly
decided. They point out that substantive law defines the rights and duties of
persons and thus determines the facta probanda. The burden of proof and the
rebuttable presumptions do nothing of the kind; they relate to the manner in
which facts are proved and therefore belong to the law of evidence.
Certainly the various elements that constitute a cause of action, or a crime, or
a defence, and thus the facta probanda, are requirements of substantive law;
certainly, also, it is very difficult to mention the burden of proof without reference
to what has to be proved. That, however, simply means that the burden pertains
to the particular probanda. But it is for this very reason that the law of evidence
is called adjectival. It would be more accurate to say that the incidence of the
burden of proof is dependent upon, or varies according to, substantive law, rather
than that it is determined by substantive law. The existence of the burden of
proof, and its various consequences and qualifications, 18 must, however, be
ascribed to the law of evidence.
Footnote - 15
15 The rules and principles which govern the incidence of the burden of proof are discussed in chs
31 and 32 below.
15 The rules and principles which govern the incidence of the burden of proof are discussed
in chs 31 and 32 below.
Footnote - 16
16 1939 AD 16. See also §§ 28.4 and 32.1 below. See further S v Baloyi2000 (1) SACR 81 (CC) at
[29].
16 1939 AD 16. See also §§ 28.4 and 32.1 below. See further S v Baloyi2000 (1) SACR 81
(CC) at [29].
Footnote - 17
17 At 1-12. It seems increasingly unlikely, however, that the courts will abandon their current
approach. See for instance Woerman & Schutte NNO v Masondo2002 (1) SA 811 (SCA).
17 At 1-12. It seems increasingly unlikely, however, that the courts will abandon their
current approach. See for instance Woerman & Schutte NNO v Masondo2002 (1) SA 811
(SCA).
Footnote - 18
18 See chs 31 and 32 below.
18 See chs 31 and 32 below.
Document 43 of 330
4.4 Irrebuttable Presumptions 19
Irrebuttable presumptions are not really presumptions in the true sense of the
word, nor are they rules of evidence. Irrebuttable presumptions are rules of
substantive law, 20 directing a court to accept a situation as conclusively proved
once certain (other) basic facts have been proved. There was, for example, the
common law that a girl below the age of 12 is irrebuttably presumed to be
incapable of consenting to sexual intercourse. 21 This was just another way of
saying that sexual intercourse with a girl below the age of 12 amounts to rape,
even if the girl had consented. 22 Once intercourse with a girl below the age of 12
was proved (and these are the basic facts which the prosecution had to prove)
the court was obliged to conclude that there was no consent. 23
3rd Ed, 2009 ch4-p35
On 16 December 2007 the above common-law approach was superseded by s

57(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007. Section 57(1) provides as follows: "Notwithstanding anything to the
contrary in any law contained, a male or female person under the age of 12 years
is incapable of consenting to a sexual act". The matter is now correctly stated as
a rule of substantive law. It should be noted that s 57(1) is gender-neutral and
that "a sexual act" means an act of "sexual penetration" or an act of "sexual
violation" as defined in s 1(1) of Act 32 of 2007. Section 57(1) is therefore much
wider than the common-law rule which was confined to per vaginam penetration
by a male of a girl below the age of twelve.
There is also a so-called irrebuttable presumption of law that an infans (a child
who has not yet completed his seventh year) is criminally and delictually non-
responsible (doli and culpae incapax). 24 The truth of the matter is that it is a rule
of substantive law that an infans can never be held liable in crime or delict. 25
Evidence to the contrary will not be received because the court is required to
accept – irrefutably – that an infans does not possess sufficient mental ability to
render him legally accountable. There are no exceptions to the rule. If an infans is
charged with fraud, the prosecution will not be permitted to lead evidence that he
or she is a genius and therefore had the necessary mental ability to distinguish
between right and wrong.
The above rules are rules of substantive law 26 and stem from Roman-Dutch
(and not English) law. These rules – even though they clearly have some fictive
content – are based on policy and clearly aimed at protecting very young
persons. But such protection can go too far. The irrebuttable presumption of
Roman-Dutch law that a male impubes is presumed to be incapable of sexual
intercourse 28 was abolished in South Africa by s 1 of the Law of Evidence and the
Criminal Procedure Act Amendment Act 103 of 1987. 29
The above statutory intervention does not affect the rebuttable presumption
that male and female impuberes are rebuttably presumed to be doli and culpae
incapax. 30 The prosecution is still required, for example, to rebut this
presumption of criminal incapacity. 31 Proof beyond reasonable doubt is required.
32 It is generally accepted that it is difficult to rebut this presumption where the
impubes has barely progressed beyond the age of the infans. 33 Rebuttal is easier
where the impubes was nearly 14 at the time of the incident. 34 Rebuttal may
take place by way of direct or circumstantial evidence. 35
Footnote - 19
19 The traditional classification of presumptions is discussed in §§ 28.3 to 28.3.3 below.
19 The traditional classification of presumptions is discussed in §§ 28.3 to 28.3.3 below.
Footnote - 20
20 Scagell v Attorney-General of the Western Cape1996 (2) SACR 579 (CC).
20 Scagell v Attorney-General of the Western Cape1996 (2) SACR 579 (CC).
Footnote - 21
21 Socout Ally v R 1907 TS 336 339.
21 Socout Ally v R 1907 TS 336 339.
Footnote - 22
22 See generally R v M1950 (4) SA 101 (T) 102.
22 See generally R v M1950 (4) SA 101 (T) 102.
Footnote - 23
23 This rule operated only if the girl's actual age was below 12 (Mostert v S 1973 2 PH H67 (C)).
23 This rule operated only if the girl's actual age was below 12 (Mostert v S 1973 2 PH H67
(C)).
Footnote - 24
24 Q v Lourie (1892) 9 SC 432.
24 Q v Lourie (1892) 9 SC 432.
Footnote - 25
25 Attorney-General, Tvl v Additional Magistrate for Johannesburg1924 AD 421.
25 Attorney-General, Tvl v Additional Magistrate for Johannesburg1924 AD 421.
Footnote - 26
26 Formulated as rules of substantive law, the absurdity of terminology and contents is removed:
an infans lacks criminal and delictual capacity; the consent of the girl below the age of twelve does
not constitute lawful consent for the purposes of a defence to a charge of rape. See also Zeffertt,
Paizes Skeen 168 and Schmidt & Rademeyer (2007) 5-4. See further § 28.3.1 below.
26 Formulated as rules of substantive law, the absurdity of terminology and contents is

removed: an infans lacks criminal and delictual capacity; the consent of the girl below the age
of twelve does not constitute lawful consent for the purposes of a defence to a charge of rape.
See also Zeffertt, Paizes Skeen 168 and Schmidt & Rademeyer (2007) 5-4. See further §
28.3.1 below.
Footnote - 27
27 An impubes is a child who is no longer an infans but who has not attained the age of fourteen.
27 An impubes is a child who is no longer an infans but who has not attained the age of
fourteen.
Footnote - 28
28 See generally S v A1962 (4) SA 679 (E) as discussed by Schmidt 1963 THRHR 139 for the
absurd results caused by this presumption.
28 See generally S v A1962 (4) SA 679 (E) as discussed by Schmidt 1963 THRHR 139 for the
absurd results caused by this presumption.
Footnote - 29
29 This section is quoted in § 28.3.1 below.
29 This section is quoted in § 28.3.1 below.
Footnote - 30
30 See generally Snyman Criminal Law 5ed (2008) 178-181.
30 See generally Snyman Criminal Law 5ed (2008) 178-181.
Footnote - 31
31 See generally S v M1979 (4) SA 564 (B).
31 See generally S v M1979 (4) SA 564 (B).
Footnote - 32
32 R v K1956 (3) SA 353 (A) 359E.
32 R v K1956 (3) SA 353 (A) 359E.
Footnote - 33
33 R v Nhamo 1956 1 PH H28 (SR).
33 R v Nhamo 1956 1 PH H28 (SR).
Footnote - 34
34 R v K supra 358D-E.
34 R v K supra 358D-E.
Footnote - 35
35 R v Ndenxa 1919 EDL 199 200.
35 R v Ndenxa 1919 EDL 199 200.
Document 44 of 330
4.5 Estoppel
Estoppel is a term of English law, derived from the same origin as the word
"stop". 36 It denotes that a party is precluded (or estopped) from denying or
asserting a particular fact. 37 The doctrine of estoppel was introduced into South
African law from English law on the basis that it was analogous to, or accorded
with, principles of Roman and Roman-Dutch law. 38
One comes across various expressions coupled with the term "estoppel".
Amongst there are estoppel by record, by deed, by conduct, issue estoppel,
estoppel in pais, equitable estoppel, estoppel by silence, and estoppel by
negligence. 39 Only the two forms of estoppel most common in South African law,
namely estoppel by representation (which covers most of the various
aforementioned forms of estoppel 40) and estoppel by judgment 41 will be
considered below.
The term "estoppel" is generally used in South Africa to denote estoppel by
representation. 42 The doctrine applies where a person makes a representation to
another, who, believing in the truth thereof, acts thereon to his prejudice. The
representor is then precluded or estopped from denying the truth of the
representation. 43
Estoppel by judgment is more commonly known in South Africa as estoppel per
rem judicatam, exceptio rei judicatae or a plea of res judicata. 44 The expression
signifies that a matter has been finally adjudicated on by a competent court. It
may then not be raised again, if the action is between the same parties, for the
same relief, upon the same cause, and provided further that the judgment was a
final one on the merits of the matter. 45
The equivalent of the aforegoing in a criminal case would be a plea of autrefois
convict or acquit – that the accused has already been convicted or acquitted of
the offence with which he is now charged. 46 Again the charge must relate to the
same or a substantially identical offence and the verdict must have been
pronounced by a competent court on (in the case of autrefois acquit) the merits
of the matter and not merely on an irregularity in the procedure.
Some authorities in both England and South Africa have described estoppel as
a rule of the law of evidence. 47 It is possible to express estoppel in the form of a
rule that excludes evidence: the representor may not adduce evidence at
variance with
3rd Ed, 2009 ch4-p37
his representation; 48 evidence may not be led in contradiction of a judgment. 49

Estoppel has been expressed in the form of an irrebuttable presumption: a
judgment is presumed to be correct. 50
Nowadays it is fairly generally accepted, at least in South Africa, that estoppel
is more correctly viewed as a rule of substantive law. 51 Proper analysis shows
that estoppel by representation is a doctrine which involves the making of a
representation, action on the faith thereof, resultant prejudice, and possibly fault;
furthermore, it operates as a defence which has to be pleaded. Such a doctrine
cannot be looked upon as a rule of the law of evidence. 52 Similarly the correct
formulation of estoppel by judgment is by way of a rule that the judgment of a
court is final. Even if it is expressed as an irrebuttable presumption as above, it
must be borne in mind that such presumptions are merely rules of substantive
law couched in the form of presumptions. 53
These rules of substantive law cause the particular evidence in contradiction of
the representation or judgment to become irrelevant and therefore, according to
the law of evidence, inadmissible. The evidence is not inadmissible because
estoppel as a rule of evidence prohibits such evidence; it is inadmissible because
estoppel as a rule of substantive law causes the evidence to be irrelevant. 54
Footnote - 36
Footnote - 37
Footnote - 38
38 Schmidt & Rademeyer (2007) 1-8. Sonnekus Estoppel 33-34.
38 Schmidt & Rademeyer (2007) 1-8. Sonnekus Estoppel 33-34.
Footnote - 39
39 See generally Sonnekus Estoppel 7 et seq.
39 See generally Sonnekus Estoppel 7 et seq.
Footnote - 40
40 Sonnekus Estoppel 7.
Footnote - 41
41 Also called estoppel by record – see Sonnekus Estoppel 7.
41 Also called estoppel by record – see Sonnekus Estoppel 7.
Footnote - 42
Footnote - 43
Footnote - 44
44 Sonnekus Estoppel 7; Schmidt & Rademeyer (2007) 1-8.
Footnote - 45
45 See generally Man Truck & Bus (SA) (Pty) Ltd v Dusbus Leasing CC2004 (1) SA 454 (W);
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd (2)2005 (6) SA 23 (C); Janse van
Rensburg NNO v Myburgh and Two Other Cases2007 (6) SA 287 (T).
45 See generally Man Truck & Bus (SA) (Pty) Ltd v Dusbus Leasing CC2004 (1) SA 454 (W);
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd (2)2005 (6) SA 23 (C); Janse van
Rensburg NNO v Myburgh and Two Other Cases2007 (6) SA 287 (T).
Footnote - 46
46 Section 106(1)(c) and (d) of the CPA; see generally Van der Merwe in Du Toit et al
Commentary 15-28 et seq. See also s 35(3)(m) of the Constitution.
46 Section 106(1)(c) and (d) of the CPA; see generally Van der Merwe in Du Toit et al
Commentary 15-28 et seq. See also s 35(3)(m) of the Constitution.
Footnote - 47
47 Sonnekus Estoppel 15-16.
Footnote - 48
Footnote - 49
Footnote - 50
50 Schmidt & Rademeyer (2007) 1-8. It seems to have been the fashion in earlier days to turn to
fictions and presumptions for lack of a more scientific construction.
50 Schmidt & Rademeyer (2007) 1-8. It seems to have been the fashion in earlier days to
turn to fictions and presumptions for lack of a more scientific construction.
Footnote - 51
Footnote - 52
52 Sonnekus Estoppel 17; Schmidt & Rademeyer (2007) 1-8; 1-9.
52 Sonnekus Estoppel 17; Schmidt & Rademeyer (2007) 1-8; 1-9.
Footnote - 53
53 See § 4.4 above; Schmidt & Rademeyer (2007) 1-10; 5-3 - 5-4.
53 See § 4.4 above; Schmidt & Rademeyer (2007) 1-10; 5-3 - 5-4.
Footnote - 54
54 "Relevance" is discussed in ch 5 below. See especially § 5.3 below.
54 "Relevance" is discussed in ch 5 below. See especially § 5.3 below.
Document 45 of 330
4.6 Parol Evidence

4.6.1 The integration rule
The parol 55 evidence rule provides that "where a jural act is incorporated in a
document, it is not generally permissible to adduce extrinsic evidence of its
terms". 56 "Extrinsic" refers to evidence other than, or extraneous of, the
document itself. 57 The rule is accordingly also called the extrinsic evidence rule.
58 In an oft-quoted 59 passage Wigmore 60 describes the rule as follows: "[The]
process of embodying the terms of a jural act in a single memorial may be
termed the integration of the act, ie its formation from scattered parts into an
integral documentary unity. The practical consequence of this is that its scattered
parts, in their former and inchoate shape, do not have any jural effect; they are
replaced by a single embodiment of the act. In other words: when a jural act is
embodied in a single memorial, all other utterances of the parties on that topic
are legally immaterial for the purposes of determining what are the terms of their
act." From this derives a further name by which the rule is known: the integration
rule. 61
It has been pointed out that extrinsic evidence can be applied to a document
for two different purposes: first, to show terms different to those contained in the
document – in other words, the inquiry is aimed at determining what the terms of
a particular transaction are; secondly, to show the meaning of the terms
contained in the document – in issue is not the content of the document, but the
meaning thereof, as it stands. Accordingly, the extrinsic evidence rule is said to
comprise two distinct rules: the integration rule, which applies to the former
situation, and the interpretation rule, which applies to the latter. 62
The parol evidence rule 63 is often couched in evidential terms, disguising it as
a rule of evidence: 64 "[W]hen a contract has been reduced to writing, the writing
is, in general, regarded as the exclusive memorial of the transaction and in a suit
between the parties no evidence to prove its terms may be given save the
document or secondary evidence of its contents, nor may the contents of such
document be contradicted, altered, added to or varied by parol evidence." The
rule has accordingly been viewed as one of evidence 65 and was received into
South African law on the assumption that it forms part of the English law of
evidence, so that English precedents are followed. 66
On proper analysis it becomes clear that the rule is one of substantive law. The
rule relates to the nature and scope of a jural act, and not merely the
admissibility of evidence. Certainly the distinction is a fine one and not as
apparent as for instance in the case of estoppel. This is so especially since even
the leading authors who hold the view that the parol evidence rule is one of
substantive law explain that view with reference to the source from which the
terms of the act are determined. 67 Considering the document merely as a source
of information concerning the terms of a contract makes it very difficult not to
regard that document as being merely the only admissible evidence, all other
evidence being inadmissible (and the whole matter thus being a matter of
evidence and admissibility).
If one were rather to think in terms of the document constituting the jural act,
68then it would follow that whatever other actions 69 of the parties may have
accompanied the jural act, as a matter of substantive law, simply form no part
thereof. That being so, any such actions are irrelevant to the act, and
consequently
3rd Ed, 2009 ch4-p39
inadmissible as a matter of evidence. This approach is reflected in De Klerk v Old

Mutual Insurance Co Ltd: 70
"[W]here a contract has been reduced to writing, the written document is regarded
as the sole memorial of the transaction and deprives all previous inconsistent
statements of their legal effect. The document becomes conclusive of the terms of
the transaction which it was intended to record. The result is that previous
statements by the parties on the subject can have no legal consequences and are
accordingly irrelevant and evidence to prove them is inadmissible."
The view that the matter is one of substantive law has found some acceptance in
South African case law. 71 As a matter of practicality, however, it must be
accepted that English precedent has become so entrenched in South African law
that it must now be regarded as an ineradicable part thereof. A return to Roman-
Dutch sources is unlikely. 72
Although contracts are generally the kind of written instrument which most
frequently form the subject of debate concerning parol evidence, the rule is
applicable also to other written jural acts such as wills, 73 negotiable instruments,
74 and court orders. 75
4.6.2 Some exceptions

There are several qualifications and exceptions to the general rule excluding parol
evidence. 76 Some of these are not truly exceptions, but rather instances which
fall outside the scope of the rule.
Where, for instance, a written contract is not intended to cover the terms of
the transaction all-inclusively, evidence of further oral terms is not precluded. 77
The rule does not apply to a document which contains a mere narration of an
event, and which does not constitute a jural act; 78 nor does the rule exclude
evidence which throws light on the true nature of a transaction referred to in a
written document, 79 or to identify an illegible signature or to determine the
capacity of a signatory, even where the law requires the agreement to be in
writing. 80
Extrinsic evidence is admissible to determine the validity of a transaction: it
may be shown by oral evidence that a contract is void for fraud, mistake,
illegality, impossibility or lack of consensus. 81 However, where writing is required
by law, evidence cannot be produced of oral terms not included in the written
document in order to invalidate the transaction through non-compliance with the
requirement
3rd Ed, 2009 ch4-p40
of writing; the correct avenue is to apply for rectification of the written

agreement. 82
The parol evidence rule applies to transactions reduced to writing, whether it
be done at the instance of the parties, or because the law requires it. 83 The
distinction may, however, have an effect on the admissibility of parol evidence.
Parol evidence may, for instance, be admissible of a collateral agreement and
additional terms 84 and subsequent oral variations, 85 but not where writing is a
requirement of law, and such evidence seeks to contradict the written instrument.
86 A similar result arises where the contract contains a clause to the effect that no
variation or rescission of the contract shall be valid unless it is reduced to writing.
87 But that, of course, is not due to the operation of the parol evidence rule.
Curiously, even contracts that are required by law to be in writing can be
cancelled orally. 88
Suspensive conditions (or conditions precedent) which suspend the operation
of a contract may be proved by parol evidence, but not if the condition forms an
integral part of the agreement. 89
4.6.3 Rectification
The parol evidence rule notwithstanding, and in order to effect the rectification of
the written document, extrinsic evidence is admissible to show that the document
does not correctly reflect the consensus between the parties. 90 The document is
made to conform with the jural act that underlies it: "[A]ll the Court does is to
allow to be put in writing what both parties intended to put in writing and
erroneously thought they had." 91 It is only logical that the law should not hold
parties to a document which purports to reflect an agreement, when the
document does not in fact do so. 92
In Standard Bank of SA Ltd v Cohen (1) the plaintiff sued the defendant on
two written suretyship agreements. In terms of these agreements the defendant
bound himself as surety and co-principal debtor for the indebtedness of a certain
company. The defendant wished to adduce evidence of two terms orally agreed
3rd Ed, 2009 ch4-p41
upon prior to the execution of the written agreements. The oral terms provided
that the plaintiff would not extend credit to the company beyond a certain limit
and that no money would be advanced until the defendant had arranged a
cession of the book debts of the company to himself. The object hereof was to
protect the defendant. The deeds of suretyship were by law required to be in
writing. 94 The agreements further contained a clause which provided that the
deeds set out the entire agreement between the parties and that the plaintiff
would not be bound by any term not recorded therein.
The court held that the defendant could not rely on the oral terms, since
evidence thereof would be contrary to the parol evidence rule; in any event, they
were not in writing as required by the statute. Nor could evidence thereof be
adduced as a basis for the argument that the deeds were invalid for failure to
include material clauses therein. The two written documents contained all the
essential terms to constitute valid suretyships. Ex facie the documents complied
with the statutory requirements for validity. Evidence of the oral terms was thus
irrelevant and inadmissible, unless it was presented for the purposes of
rectification.
In a second judgment, 95 upon a plea of rectification by the defendant, the
court found on the evidence that the two oral terms alleged by the defendant had
in fact been agreed upon. The clause recording that the written deed set out the
whole agreement between the parties did not constitute a bar to rectification –
that right could only be excluded in explicit terms. The plea of rectification
therefore succeeded, and the matter had to be adjudicated on the basis of the
written agreements as they stood to be corrected.
In Philmatt (Pty) Ltd v Mosselbank Developments CC an oral suspensive
condition was the subject of dispute. Rectification was not possible as the
appellant was an innocent third party. The court did not find it necessary to
decide whether evidence of the condition was admissible by way of exception to
the parol evidence rule. Instead, it held that evidence thereof was admissible to
establish the existence of a material term not incorporated in the deed of sale in
order to show that the deed of sale did not constitute a valid deed in terms of s
2(1) of the Alienation of Land Act 68 of 1981.
The parol evidence rule does not exclude evidence of a prior oral agreement,
or of a common continuing intention, where a party claims rectification. 97
4.6.4 The interpretation rule

If the first aspect of parol evidence, the integration rule, does not truly form part
of the law of evidence, then the second aspect, the interpretation rule, does even
less so. 98
Footnote - 55
55 Cf "parol…given orally; (of a document) not given under seal; oral declaration"; cf "parole…the
release of a prisoner…on the promise of good behaviour; a word of honour": The Concise Oxford
Dictionary 9 ed (1995).
55 Cf "parol…given orally; (of a document) not given under seal; oral declaration"; cf
"parole…the release of a prisoner…on the promise of good behaviour; a word of honour": The
Concise Oxford Dictionary 9 ed (1995).
Footnote - 56
56 LAWSA para 538; Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates1994 (1)
SA 281 (W) 283I-J.
56 LAWSA para 538; Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival
Estates1994 (1) SA 281 (W) 283I-J.
Footnote - 57
57 Howard et al Phipson on Evidence 1020.
57 Howard et al Phipson on Evidence 1020.
Footnote - 58
58 LAWSA para 538.
58 LAWSA para 538.
Footnote - 59
59 National Board (Pretoria) (Pty) Ltd v Estate Swanepoel1975 (3) SA 16 (A) 26C; Standard Bank of
SA Ltd v Cohen (1) 1993 (3) SA 846 (SE) 849E.
59 National Board (Pretoria) (Pty) Ltd v Estate Swanepoel1975 (3) SA 16 (A) 26C; Standard
Bank of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE) 849E.
Footnote - 60
Footnote - 61
61 See also Johnston v Leal1980 (3) SA 927 (A); Venter v Birchholtz1972 (1) SA 276 (A); Standard
Bank of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE) 849B-C; De Klerk v Old Mutual Insurance Co
Ltd1990 (3) SA 34 (E).
61 See also Johnston v Leal1980 (3) SA 927 (A); Venter v Birchholtz1972 (1) SA 276 (A);
Standard Bank of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE) 849B-C; De Klerk v Old Mutual
Insurance Co Ltd1990 (3) SA 34 (E).
Footnote - 62
62 Johnston v Leal1980 (3) SA 927 (A); see generally Christie The Law of Contract 4 ed (2001) 232-
233. We shall return to the matter of interpretation below.
62 Johnston v Leal1980 (3) SA 927 (A); see generally Christie The Law of Contract 4 ed
(2001) 232-233. We shall return to the matter of interpretation below.
Footnote - 63
63 The name of the rule does not make things any easier either – calling it the integration rule has
the merit of placing the emphasis where it should be, on the substantive aspect of the matter.
63 The name of the rule does not make things any easier either – calling it the integration
rule has the merit of placing the emphasis where it should be, on the substantive aspect of the
matter.
Footnote - 64
64 Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd1941 AD 43 47; Purchase v De

Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates1994 (1) SA 281 (W) 283I-J.
64 Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd1941 AD 43 47; Purchase v De

Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates1994 (1) SA 281 (W) 283I-J.
Footnote - 65
65 See for instance Avis v Verseput1943 AD 331; Cassiem v Standard Bank of SA Ltd1930 AD 366.
65 See for instance Avis v Verseput1943 AD 331; Cassiem v Standard Bank of SA Ltd1930
AD 366.
Footnote - 66
66 See for instance Cassiem v Standard Bank of SA Ltd1930 AD 366; Christie The Law of Contract
218-219.
66 See for instance Cassiem v Standard Bank of SA Ltd1930 AD 366; Christie The Law of
Contract 218-219.
Footnote - 67
67 See Zeffertt, Paizes & Skeen 322 : "[T]he document is conclusive as to the terms of the
transaction…"; Schmidt & Rademeyer 1-9; 11-21.
67 See Zeffertt, Paizes & Skeen 322 : "[T]he document is conclusive as to the terms of the
transaction…"; Schmidt & Rademeyer 1-9; 11-21.
Footnote - 68
68 Whether because it is so required by the law, or because the parties have so agreed or intended
it.
68 Whether because it is so required by the law, or because the parties have so agreed or
intended it.
Footnote - 69
69 Whether it be oral or documentary communications, or other conduct.
69 Whether it be oral or documentary communications, or other conduct.
Footnote - 70
70 1990 (3) SA 34 (E) 39D-E (my emphasis).
70 1990 (3) SA 34 (E) 39D-E (my emphasis).
Footnote - 71
71 See for instance Slabbert, Verster & Malherbe (Bloemfontein) Bpk v De Wet1963 (1) SA 835
(O); Schroeder v Vakansieburo (Edms) Bpk1970 (3) SA 240 (T); Venter v Birchholtz1972 (1) SA 276
(A).
71 See for instance Slabbert, Verster & Malherbe (Bloemfontein) Bpk v De Wet1963 (1) SA
835 (O); Schroeder v Vakansieburo (Edms) Bpk1970 (3) SA 240 (T); Venter v Birchholtz1972
(1) SA 276 (A).
Footnote - 72
Footnote - 73
73 Moskowitz v The Master1976 (1) SA 22 (C).
73 Moskowitz v The Master1976 (1) SA 22 (C).
Footnote - 74
74 Cassiem v Standard Bank of SA Ltd1930 AD 366.
74 Cassiem v Standard Bank of SA Ltd1930 AD 366.
Footnote - 75
75 Postmasburg Motors (Edms) Bpk v Peens1970 (2) SA 35 (NC).
75 Postmasburg Motors (Edms) Bpk v Peens1970 (2) SA 35 (NC).
Footnote - 76
76 See generally Zeffertt, Paizes & Skeen 322 et seq; Christie The Law of Contract 218 et seq.
76 See generally Zeffertt, Paizes & Skeen 322 et seq; Christie The Law of Contract 218 et
seq.
Footnote - 77
77 Johnston v Leal1980 (3) SA 927 (A).
77 Johnston v Leal1980 (3) SA 927 (A).
Footnote - 78
78 Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates1994 (1) SA 281 (W).
78 Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates1994 (1) SA 281 (W).
Footnote - 79
79 Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates1994 (1) SA 281 (W);
Moodley v Moodley1991 (1) SA 358 (D).
79 Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates1994 (1) SA 281 (W);
Moodley v Moodley1991 (1) SA 358 (D).
Footnote - 80
80 SAI Investments v Van der Schyff NO1999 (3) SA 340 (N).
80 SAI Investments v Van der Schyff NO1999 (3) SA 340 (N).
Footnote - 81
81 Kok v Osborne1993 (4) SA 788 (SE); see also AXZS Industries v A F Dreyer (Pty) Ltd and
Others2004 (4) SA 186 (W).
81 Kok v Osborne1993 (4) SA 788 (SE); see also AXZS Industries v A F Dreyer (Pty) Ltd and
Others2004 (4) SA 186 (W).
Footnote - 82
82 Standard Bank of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE); Standard Bank of SA Ltd v Cohen
(2) 1993 (3) SA 854 (SE). See, however, Philmatt (Pty) Ltd v Mosselbank Developments CC1996 (2)
SA 15 (A), as discussed in § 4.6.3 below.
82 Standard Bank of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE); Standard Bank of SA Ltd v
Cohen (2) 1993 (3) SA 854 (SE). See, however, Philmatt (Pty) Ltd v Mosselbank Developments
CC1996 (2) SA 15 (A), as discussed in § 4.6.3 below.
Footnote - 83
83 As for instance in the case of the Alienation of Land Act 68 of 1981.
83 As for instance in the case of the Alienation of Land Act 68 of 1981.
Footnote - 84
84 Avis v Verseput1943 AD 331; Veenstra v Collins 1938 TPD 458; Du Plessis v Nel1952 (1) SA 513
(A).
84 Avis v Verseput1943 AD 331; Veenstra v Collins 1938 TPD 458; Du Plessis v Nel1952 (1)
SA 513 (A).
Footnote - 85
85 Venter v Birchholtz1972 (1) SA 276 (A); Johnston v Leal1980 (3) SA 927 (A); De Klerk v Old
Mutual Insurance Co Ltd1990 (3) SA 34 (E).
85 Venter v Birchholtz1972 (1) SA 276 (A); Johnston v Leal1980 (3) SA 927 (A); De Klerk v
Old Mutual Insurance Co Ltd1990 (3) SA 34 (E).
Footnote - 86
86 Du Plessis v Nel1952 (1) SA 513 (A); Venter v Birchholtz1972 (1) SA 276 (A); Johnston v
Leal1980 (3) SA 927 (A); but also see Industrial Development Corporation of South Africa (Pty) Ltd v
Silver2003 (1) SA 365 (SCA).
86 Du Plessis v Nel1952 (1) SA 513 (A); Venter v Birchholtz1972 (1) SA 276 (A); Johnston v
Leal1980 (3) SA 927 (A); but also see Industrial Development Corporation of South Africa (Pty)
Ltd v Silver2003 (1) SA 365 (SCA).
Footnote - 87
87 Pelser v Smith1979 (3) SA 687 (T).
87 Pelser v Smith1979 (3) SA 687 (T).
Footnote - 88
88 Le Grange v Pretorius 1943 TPD 223; but evidence of a prior or contemporaneous oral agreement
of a term whereby the written agreement which had been implemented, would fall away, is excluded
(Sealed Africa (Pty) Ltd v Kelly2006 (3) SA 65 (W)).
88 Le Grange v Pretorius 1943 TPD 223; but evidence of a prior or contemporaneous oral
agreement of a term whereby the written agreement which had been implemented, would fall
away, is excluded (Sealed Africa (Pty) Ltd v Kelly2006 (3) SA 65 (W)).
Footnote - 89
89 Stiglingh v Theron 1907 TS 998; Thiart v Kraukamp1967 (3) SA 219 (T); see, however, Zeffertt,
Paizes & Skeen 335-338 for an analysis of the difficulties in respect of such conditions.
89 Stiglingh v Theron 1907 TS 998; Thiart v Kraukamp1967 (3) SA 219 (T); see, however,
Zeffertt, Paizes & Skeen 335-338 for an analysis of the difficulties in respect of such conditions.
Footnote - 90
90 Weinerlein v Goch Buildings Ltd1925 AD 282.
Footnote - 91
Footnote - 92
92 "What is rectified is not the contract itself as a juristic act, but the document …..": Van der
Merwe et al Contract General principles 3 ed (2007) 179; "All that is to be done is, upon proper proof,
to correct the mistake, so as to reproduce in writing the real agreement between the parties":
Weinerlein v Goch Buildings Ltd1925 AD 282 290. See also Kerr The Principles of the Law of Contract
5 ed (1998) 143, 1470.
92 "What is rectified is not the contract itself as a juristic act, but the document …..": Van der
Merwe et al Contract General principles 3 ed (2007) 179; "All that is to be done is, upon proper
proof, to correct the mistake, so as to reproduce in writing the real agreement between the
parties": Weinerlein v Goch Buildings Ltd1925 AD 282 290. See also Kerr The Principles of the
Law of Contract 5 ed (1998) 143, 1470.
Footnote - 93
93 1993 (3) SA 846 (SE).
93 1993 (3) SA 846 (SE).
Footnote - 94
94 Section 6 of the General Law Amendment Act 50 of 1956.
94 Section 6 of the General Law Amendment Act 50 of 1956.
Footnote - 95
95 Standard Bank of SA Ltd v Cohen (2) 1993 (3) SA 854 (SE).
95 Standard Bank of SA Ltd v Cohen (2) 1993 (3) SA 854 (SE).
Footnote - 96
96 1996 (2) SA 15 (A).
96 1996 (2) SA 15 (A).
Footnote - 97
97 Tesven CC v South African Bank of Athens2000 (1) SA 268 (SCA); AXZS Industries v A F Dreyer
(Pty) Ltd and Others2004 (4) SA 186 (W).
97 Tesven CC v South African Bank of Athens2000 (1) SA 268 (SCA); AXZS Industries v A F
Dreyer (Pty) Ltd and Others2004 (4) SA 186 (W).
Footnote - 98
98 Zeffertt, Paizes & Skeen 346 "The construction of documents is a subject so remote from the law
of evidence…" See further Christie The Law of Contract 232 et seq for a discussion of the
interpretation rule.
98 Zeffertt, Paizes & Skeen 346 "The construction of documents is a subject so remote from
the law of evidence…" See further Christie The Law of Contract 232 et seq for a discussion of
the interpretation rule.
Document 46 of 330
Section B
The admissibility of relevant evidence
5. Relevance and Admissibility — S E van der Merwe
6. Character evidence — P J Schwikkard
7. Similar Fact Evidence — P J Schwikkard
8. Opinion Evidence — E van der Berg and S E van der Merwe
9. Previous Consistent Statements — S E van der Merwe
Document 47 of 330
Chapter 5
Relevance and Admissibility
S E van der Merwe
5.1 Introduction
5.2 Rationale for the exclusion of irrelevant evidence
5.3 The meaning of relevance and the determination of relevance
5.3.1 The issues (as the essential point of departure)
5.3.2 Reasonable or proper inference: assessing the potential weight of
the evidence
5.3.3 Avoiding a proliferation or multiplicity of collateral issues
5.3.4 The risk of manufactured evidence
5.3.5 Prejudicial effect
5.3.6 The doctrine of precedent
5.3.7 The principle of completeness
5.3.8 Constitutional imperatives and the position of the accused
5.4 Proposals of the South African Law Reform Commission
3rd Ed, 2009 ch5-p45
5.1 Introduction
Section 210 of the CPA provides that no evidence as to any fact, matter or thing
shall be admissible if irrelevant or immaterial and if it cannot conduce to prove or
disprove any point or fact at issue in criminal proceedings. Section 2 of the CPEA
contains a substantially similar provision. These sections serve as statutory
confirmation of our common law and state the rule in its negative form: irrelevant
evidence is inadmissible. Courts, however, are inclined to state the rule in its
positive form: "[A]ll facts relevant to the issue in legal proceedings may be
proved." 1
The present chapter serves as an introduction to chapters 6–9, which
respectively deal with character evidence, similar fact evidence, opinion evidence,
and evidence of previous consistent statements. These four chapters are all
directly concerned with the application of the rule that irrelevant evidence is
inadmissible (or, to put it differently, that relevant evidence is admissible).
However, not all relevant evidence is necessarily admissible: "The … rule … is that
any evidence which is relevant is admissible unless there is some other rule of
evidence which excludes it." 2 Evidence — even if highly relevant and even if it
happens to be the only available evidence — must be excluded where, for
example, it is privileged. 3 Relevant evidence obtained in breach of constitutional
rights may also be excluded. 4 Relevance is therefore not the sole test for
admissibility. Certain rules of exclusion (which are
3rd Ed, 2009 ch5-p46

largely discussed in chapters 10–17) also come into play. The law of evidence
does not allow untrammelled access to all relevant evidence. 5
Footnote - 1
1 R v Trupedo1920 AD 58 62; S v Gokool1965 (3) SA 461 (N) 475G: "The law of evidence is
foundationally based on the principle that evidence is admissible if it is relevant to an issue in the
case."
1 R v Trupedo1920 AD 58 62; S v Gokool1965 (3) SA 461 (N) 475G: "The law of evidence is
foundationally based on the principle that evidence is admissible if it is relevant to an issue in
the case."
Footnote - 2
2 R v Schaube-Kuffler1969 (2) SA 40 (RA) 50B.
2 R v Schaube-Kuffler1969 (2) SA 40 (RA) 50B.
Footnote - 3
3 But see also § 10.3.3 below, where S v Safatsa1988 (1) SA 868 (A) is discussed.
3 But see also § 10.3.3 below, where S v Safatsa1988 (1) SA 868 (A) is discussed.
Footnote - 4
4 See ch 12 below, where the provisions of s 35(5) of the Constitution are discussed.
4 See ch 12 below, where the provisions of s 35(5) of the Constitution are discussed.
Footnote - 5
Document 48 of 330
5.2 Rationale for the Exclusion of Irrelevant Evidence

Murphy states: 6
"Because the purpose of evidence is [to] establish the probability of the facts upon
which the success of a party's case depends in law, evidence must be confined to
the proof of facts which are required for that purpose. The proof of supernumerary
or unrelated facts will not assist the court, and may in certain cases prejudice the
court against a party, while having no probative value on the issues actually before
it."
To this can be added considerations of time, costs and inconvenience; the

limitations of the human mind; 7 the undesirability of a court being called upon to
adjudicate matters which are not related to the litigation at hand; the risk that
the real issues might become clouded; and, further, the obvious consideration
that a party against whom irrelevant evidence is adduced may find himself in a
position where it could be difficult to defend himself. This last consideration is of
special importance to the criminally accused, who enjoy a constitutionally
guaranteed right to a fair trial.
The presiding judicial officer and the parties involved should ensure that
irrelevancies are not introduced. 8
Footnote - 6
6 Murphy A Practical Approach to Evidence 10 ed (2008) 25.
Footnote - 7
7 Zuckerman The Principles of Criminal Evidence (1989, reprinted 1992) 49.
7 Zuckerman The Principles of Criminal Evidence (1989, reprinted 1992) 49.
Footnote - 8
8 See generally Nomandela v S [2007] 1 All SA 506 (E) at 507i.
8 See generally Nomandela v S [2007] 1 All SA 506 (E) at 507i.
Document 49 of 330
5.3 The Meaning of Relevance and the Determination of

Relevance
Relevance is a matter of degree 9 and is certainly easier to identify in practice
than to describe in the abstract. But the following may be useful:
(a) Stephen provides the following classical formulation: 10
"The word 'relevant' means that any two facts to which it is applied are so
related to each other that according to the common course of events one
either taken by itself or in connection with other facts proves or renders
probable the past, present, or future existence or non-existence of the other."
(b) Rule 401 of the Federal Rules of Evidence of the United States of America
defines relevant evidence as follows:
"Evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence."
3rd Ed, 2009 ch5-p47

(c) Van Wyk has put forward the following: 11
"[G]etuienis [is] relevant … wanneer dit oor die vermoë beskik, hetsy
alleenstaande of tesame met ander bewysmateriaal, om die bestaan van 'n
feit in geskil, direk of indirek, meer of minder waarskynlik te maak."
(d) In DPP v Kilbourne Lord Simon said: 12
"Evidence is relevant if it is logically probative or disprobative of some matter
which requires proof. I do not propose to analyse what is involved in 'logical
probativeness' except to note that the term does not of itself express the
element of experience which is so significant of its operation in law, and
possibly elsewhere. It is sufficient to say … that relevant evidence, ie logically
probative or disprobative evidence, is evidence which makes the matter which
requires proof more or less probable."
It would be wrong to accept or assume that evidence is admissible simply
because of its logical relevance. "Logical relevance", states McEwan (correctly, it
is submitted), "is a sine qua non of admissibility; but it cannot guarantee that the
evidence will be admitted; in fact, on its own it is far from sufficient." 13 What,
then, are the precise factors and considerations which place a check on the
admissibility of all evidence which is logically probative or disprobative?
5.3.1 The issues (as the essential point of departure)

Relevance (and therefore admissibility) cannot be decided in a vacuum. In S v
Zuma Van der Merwe J said: "[T]he question of relevancy can never be divorced
from the facts of a particular case before court." 14 The nature and extent of the
factual and legal dispute must be considered. In Lloyd v Powell Duffryn Steam
Coal Co Ltd it was said that the very first question that must be asked in deciding
admissibility is: "What are the issues?" 15 The term "relevance" finds concrete
application not only in the light of the primary facta probanda but also the
secondary facta probanda (the facta probantia which are in dispute). In S v Mayo
Jones J held as follows: 16
"It is not in the interests of justice that relevant material should be excluded from
the Court, whether it is relevant to the issue or to issues which are themselves
relevant to the issue but strictly speaking not in issue themselves, and this includes
the credibility of witnesses, provided that the question of their credibility is in some
way related to the issues or matter relevant to the issues … There remains the
question of relevance. I am not satisfied on the information which is presently before
me that the pocket book in question is relevant to any of the issues in this case. It is
certainly not relevant to the main issues. Their contents do not appear to me to be
relevant to issues which are relevant to those issues and they are not presently at
any rate even relevant to credibility because it has not anywhere been suggested
that the witness has said anything which will be contradicted by accused No 1, in so
far as the content of his pocket book is concerned. It is not in the interest of justice
that irrelevant information should be made available to the defence and used for the
purposes of cross-examination, because justice requires that there be an end to
cross-examination and that only relevant matter should in fact be canvassed. It
seems to me therefore,
3rd Ed, 2009 ch5-p48

that, in so far as the issue of relevance is concerned, the application should fail and I
should rule against the applicant at this stage."
In R v Solomons it was held that, subject to considerations of prejudice, a ruling
on the admissibility of evidence could at a later stage be reversed in the light of
new factual issues which might come to light during the course of the trial.
Decisions on the admissibility of evidence are interlocutory and may therefore be
re-assessed in the light of new facts.
5.3.2 Reasonable or proper inference: assessing the potential

weight of the evidence
"[F]acts", it was said in R v Mpanza, 18 "are … relevant if from their existence
inferences may properly be drawn as to the existence of a fact in dispute." In R v
Trupedo it was held that no proper inference could be drawn from the behaviour of a
police dog in its identification of a suspect. The evidence was rightly excluded as
being irrelevant. 20
Almost seven decades after the decision in Trupedo the Appellate Division again
came to a similar conclusion in S v Shabalala, 21 where Nestadt JA also pointed
out that if the weight of the evidence "is so inconsequential and the relevance
accordingly so problematical, there can be little point in receiving the evidence …"
22 of identification by a police dog trained for purposes of identifying suspects by
scenting.
3rd Ed, 2009 ch5-p49
There was also no proof "that an individual has, as far as dogs are concerned, a
scent peculiar to himself." 23 The evidence was excluded.
In order to determine whether a reasonable or proper inference might
eventually be possible the court must make a provisional or tentative assessment
of the potential weight of the evidence sought to be adduced. There must at least
be some advance indication that the evidence, if received, would be of reasonable
assistance to the court in the exercise of its ultimate fact-finding duty.
Zuckerman explains that where the relevance or irrelevance of evidence is the
issue and potential probative weight must be assessed, 24
"[t]he judge is not concerned to estimate the final weight of any piece of evidence.
At the admissibility stage he is only concerned to make a rough and ready estimate
of the potential contribution that the evidence in question might make and whether
it is substantial enough to justify admission. The admissibility test is therefore a
composite test made of a mesh of considerations of logical probabilities and of
practical utility … On some occasions the potential contribution of the evidence
adduced will be immediately apparent; for example, the testimony of an eyewitness
to the disputed event. At other times its potential will only emerge from a
juxtaposition of the evidence in question and other pieces of known facts. If upon
the presentation of an individual piece of evidence the judge is in doubt about its
relevance, he will ask the party offering it how it relates to the rest of the evidence
he plans to adduce. If a publican claims that the brewer supplied him with bad beer,
then the fact that the same brewer supplied another pub with bad beer might not be
of sufficient weight to be admissible. But it would become sufficiently weighty if it is
also shown that it is one of five incidents of supply of bad beer by the same brewer
in the same neighbourhood within the space of a day."
Obviously, the court's initial assessment of the potential weight of the evidence is
done for purposes of determining admissibility; and such evidence as may be
admitted must ultimately at the end of the trial be re-assessed in the light of all
the other evidence for purposes of determining sufficiency, that is, whether the
required and applicable standard of proof has been attained.
5.3.3 Avoiding a proliferation or multiplicity of collateral issues

There is a "desire to avoid waste of time in probative exertions more or less off
the bull's eye of litigation". 25
In determining the relevance of evidence the court should of necessity also
consider the following question: would the admission of the evidence lead to a
protracted investigation into many collateral or side-issues which — once
determined — would be of little probative value as regards the true issues? A
proliferation of side-issues can, for example, arise where a court decides to admit
evidence of the results of a polygraph test (a lie-detector test). 26 Was the
polygraphist competent? Was he an expert in this fairly novel "technique" of
determining credibility? Were
3rd Ed, 2009 ch5-p50
appropriate questions asked during the session? Did the machine function
properly? How reliable is the final result? Once all these subsidiary issues — and a
host of other related but collateral issues — have been determined the court may
merely end up with the following fairly useless result: the opinion of someone
else that the witness concerned is truthful or untruthful according to a test which
has as yet not received universal or broad acceptance in the scientific world.
There is a real risk that the drawn-out and time-consuming investigation of
collateral issues would not justify the final result. The game is not worth the
candle. At any rate, it is the duty of the court to make findings of credibility
wherever necessary. 27
In S v Nel Marais J agreed with the trial court's refusal to allow an accused to
lead psychiatric evidence. The purpose of this proposed evidence was to show
that a defence witness who in her testimony had contradicted aspects of the
accused's testimony was "mildly to moderately retarded" and therefore likely to
"clamp up" under the strain of testifying in court. Marais J — following R v Turner
and distinguishing S v Thurston, 30Lowery v The Queen and Toohey v
Metropolitan Police Commissioner — remarked as follows: 33
"Differences in intelligence, ability to recall, ability to articulate, and the like are
commonplace and courts are well aware that they exist. The ad hoc assessments of
such matters which courts make as part of the daily round of hearing witnesses
testify are an integral and prominent part of the judicial function. Deficiencies in any
of these abilities are not likely to remain hidden or
3rd Ed, 2009 ch5-p51

obscured if the questioning of the witness is thorough, as it should be. Once the
door is opened to evidence of this kind when is it to be shut? If a witness happens to
have undergone an intelligence test and it shows the witness to be of high or low
intelligence, is it to be received? Are school teachers or university dons to be called
to say whether or not a witness was stupid or clever when at school or university?
Or that he had a particularly good or poor memory. Is a distinction to be drawn
between such witnesses and a professional psychiatrist or psychologist because of
the latter's expertise in matters of the mind? The questions are rhetorical but they
show, I think, that this is an evidential Pandora's box which we are being invited to
open … All of this has of course nothing to do with the entirely different question of
whether psychiatric evidence may be led to show that a witness is insane and
therefore incompetent to testify. Different considerations apply there. I do not think
there is any real analogy between cases of physical affliction which adversely affect
the capacity of a witness to testify accurately and reliably and intellectual and
psychological disabilities of a relatively normal kind. A court cannot tell merely by
looking at and listening to a witness that he is so shortsighted that he could not
possibly have identified correctly a person who was 100 metres away at the time.
Evidence to establish that he is shortsighted should obviously be admissible. But
intellectual and psychological disabilities affecting personality, powers of exposition
and articulation, ability to recall, and the like are capable of being assessed
reasonably adequately while the witness is engaged in giving evidence. No doubt it
will be said by some that a more accurate and reliable assessment is likely to be
made if evidence, and particularly expert evidence, specifically directed towards
such matters is heard? Perhaps so. But then, as against that, one must weigh the
cost of this additional and inessential assistance in terms of the prolongation of
trials, its availability in relatively few centres and not in others, and its lack of
affordability for many in both criminal and civil trials. The cost is likely to exceed by
far the marginal benefit which would be gained in the administration of justice by
the admission of such evidence."
Obviously, the court's initial assessment of the potential weight of the evidence is
done for purposes of determining admissibility; and such evidence as may be
admitted must ultimately at the end of the trial be re-assessed in the light of all
the other evidence for purposes of determining sufficiency, that is, whether the
required and applicable standard of proof has been attained.
The reasoning of Marais J in S v Nel, was crisply formulated by Zeffertt in the
following terms: 34
"The question is not solely one of logical relevance, but one of legal relevance. As
Marais J observed, the question is not confined to whether the opinion is 'relevant' in
the sense that it could lead, possibly, to a more reliable assessment by the court of
a witness's credibility. If the practical disadvantages of receiving logically relevant
evidence do not warrant its reception it will be legally irrelevant and inadmissible,
but if its probative value outweighs those disadvantages it will be of material
assistance to the court, legally relevant, and admissible."
5.3.4 The risk of manufactured evidence

The previous consistent statements of a witness are as a rule excluded (see §§
9.1 and 9.2 below). One of the reasons for the exclusion of such a statement is
that the admission thereof "would make it a very straightforward matter for the
unscrupulous to manufacture evidence". 35 Accordingly, there is a general rule, in
the words of the Supreme Court of Appeal in S v Scott-Crossley, that the previous
consistent statement of the witness "has no probative value". 36 And it is on
account of this normal lack of probative value, that it is then said a previous
consistent is irrelevant (see §§ 9.1 and 9.2 below). There are
3rd Ed, 2009 ch5-p52
certain established exceptions to the rule (see §§ 9.4 to 9.7 below). It can be
argued that where these exceptions apply, the risk of manufactured evidence is
outweighed by the probative value of the previous consistent statement — thus
rendering the otherwise irrelevant statement relevant and admissible (see, for
example, § 9.5 below, where the rebuttal of a suggestion of recent fabrication is
discussed).
5.3.5 Prejudicial effect 37
Evidence which is logically probative or disprobative can be excluded because of

its prejudicial effect on the party concerned. "Prejudice" in this context does not
mean that the evidence must be excluded simply because the party against
whom the evidence stands to be adduced will be incriminated or implicated. It
means that incrimination or implication will take place in circumstances where the
party concerned may be procedurally disadvantaged or otherwise exposed to a
lengthy trial involving issues which, though logically relevant, are legally too
remote to assist the court in its ultimate decision on the merits. Evidence is
relevant if its probative value outweighs its prejudical effect. Proof of motive
provides a good example.
Evidence of an accused's motive to commit a particular crime is generally
relevant for purposes of proving intention or identity. 38 In R v Kumalo & Nkosi
Innes CJ gave the following example: 39
"The ordinary man does not perpetrate a grave criminal offence without a motive;
and although it is not essential, nor always possible, to ascertain what it was, the
matter is often of considerable importance. A crime for which no motive likely to
affect the person charged can be assigned is difficult to bring home. So that the
presence of such a motive is an element in favour of the [prosecution], and its
absence an element in favour of the accused. Now it is seldom that direct evidence
on the point, such as would be afforded by the accused's own statement, can be
produced. In the majority of cases the probable existence or non-existence of
motive must be deduced from external circumstances. And such circumstances may
as a general rule be proved if they are relevant — that is to say if they are
circumstances from which the presence or absence of the particular motive may be
reasonably inferred. Thus, if a husband were charged with the murder of his wife,
evidence that he had formed an adulterous connection with another woman would
be admissible as showing a possible motive for the crime. On the other hand proof
might be properly given of affectionate marital relations in order to negative
motive."
The presence or absence of motive would be worth pursuing even if it results in
further issues such as: Was there an adulterous affair? Was the marriage a happy
one? These issues are not really collateral issues but issues which, once
determined, can assist the court in making a finding as regards the facta
probanda. And the prejudicial effect of the evidence is outweighed by its potential
probative value.
The above is an example of the relevance of a personal motive. However, in R
v Kumalo & Nkosi the Appellate Division actually went a great deal further and
held that evidence of a motive for a crime is admissible against an individual even
3rd Ed, 2009 ch5-p53
though its tendency is to show that all members of a certain category, or even
persons of a certain tribe generally, would have had an inducement to commit the
crime in question. Two accused had been charged with and convicted of the
murder of a child. The body was found in the veld. The child's throat was cut and
the front part of the body was also cut open from the throat to the fork of the
legs. According to medical opinion the cutting open of the body had been done by
a skilled hand. The heart had been taken out and the left ventricle containing the
fatty portion had been removed. In order to furnish proof of a motive for the
crime the prosecution called an expert witness, one Hoffman, who testified that it
was (at that stage) the practice amongst Zulu tribes and especially on the part of
Zulu witch-doctors to kill and mutilate young persons and use portions of the
body and particularly fat — as a charm against ill-luck. It was found that Kumalo
and his accomplice were not witch-doctors but "native doctors". The evidence
concerning the practice of witch-doctors could therefore not be admitted against
the two accused. However, Innes CJ held that the expert evidence on the custom
of Zulu people generally was relevant and admissible against Kumalo: 42
"[I]n deciding whether inferences as to motive could reasonably be drawn from
Hoffman's evidence, we must have regard to those portions which dealt with the
custom of Zulu tribes generally. And according to his statements the members of
those tribes believed firmly in the potency of human fat not only as a charm against
misfortune already sustained, but as ensuring good luck in the future, and for love
philters. They generally followed the advice of a witch-doctor, but they also used the
charm themselves. And in my opinion the existence of a motive for a crime like the
present might be reasonably deduced from the general custom or belief described if
the accused were members of the tribe or tribes referred to. Human fat taken from
certain internal organs would possess a definite value for them, and would be used
for important purposes, and that fact might be fairly considered as pointing to the
existence of a motive for acquiring a substance which to other persons would be
both useless and repulsive. Generally the circumstance relied upon as showing
motive stands in direct connection with the person charged, and is clearly within his
personal knowledge. Here it is merely a tribal custom. But the customs of native
tribes upon vital matters are universal and binding in a very high degree. And I see
nothing unreasonable or unfair in inferring from a well-established tribal custom
such as has been deposed to, the existence of motive for a crime, the leading
feature of which was the removal of the very substance to which the custom related.
This conclusion, however, as already pointed out, is based upon the assumption that
the accused are members of the tribe in question. Hoffman spoke about the customs
among the Zulu tribes, and he stated that the first accused (Kumalo) was a Bacwa,
a tribe which was a Zulu off-shoot. But he could not say to what tribe the second
accused belonged. The evidence before us does not show him to have been a Zulu,
and no inference could in his case be reasonably drawn from Hoffman's statement.
That statement was therefore relevant as against the first accused only. But being
relevant against him it was rightly admitted …"
Solomon JA and C G Maasdorp JA came to a similar conclusion in their separate
judgments, albeit for slightly different reasons. It is submitted that the evidence
which was held admissible in R v Kumalo & Nkosi supra was far too tenuous to
have warranted admission. There was no link between Kumalo and the practice
referred to by the expert witness, except that Kumalo was a Zulu. There was no
evidence that Kumalo had experienced ill-luck or was expecting imminent ill-luck.
There was no personal motive. Solomon JA sought to circumvent this argument:
43
3rd Ed, 2009 ch5-p54

"For Hoffman's evidence would, in my opinion, supply a motive for the commission
of the crime in the case not only of Zulus falling under the class of witch-doctors, but
also of members of that tribe in general. For if it is a common belief amongst them
that portions of the insides of young children have a special value as medicine to be
taken in case of ill-luck, it would follow that the possession of such objects of value
would be considered highly desirable by anyone sharing in that belief. There would
be a motive, therefore, on the part of every such person to kill a young child for the
purpose of procuring those portions of its inside which have a special value. It is
impossible to conceive of any ordinary civilized person killing a child simply for the
purpose of extracting portions of its inside, for he would have no possible object in
doing so; but in the case of a Zulu such conduct is quite intelligible, for he would
have the motive of acquiring objects which in his opinion are of special value. The
inducement in such a case would be on the same footing as that of a man who
commits murder for the purpose of rifling the body of his victim of money or other
valuables … It was argued indeed that evidence of motive is admissible only when it
is directed to something peculiar to the individual who is charged with the
commission of the offence, but not when it applies to a whole class or to persons in
general. But I can see no reason for insisting upon any such limitation. One man
who commits a murder may be actuated by a motive peculiar to himself, such as ill-
will towards the deceased; another by a motive which is common to people in
general, such as the love of gain. And evidence of motive is in my opinion
admissible, even though its tendency is to show that all members of a class or even
persons generally would have an inducement to commit the crime in question. It is
true that in the present case the motive would naturally be a much stronger one if it
had been proved that the prisoners were witch-doctors, but we are not concerned
with the adequacy of the motive, which was a matter entirely for the jury."
It is submitted that this kind of reasoning is unacceptable because it is gravely

prejudicial to the individual concerned. The evidence admitted by the Appellate
Division was not really evidence of motive (at any rate, not personal motive) but
simply circumstantial evidence which, we submit, was irrelevant on account of its
extremely limited potential probative value and its likely prejudice to the accused.
There was no evidence that the gruesome practices referred to by the expert
witness did not also exist in other tribes.
In R v Kumalo & Nkosi the Appellate Division seems to have admitted
irrelevant generalisations. The situation is entirely different where there is a
personal connection between the impugned circumstantial evidence and the party
concerned. In R v Masebe the accused was charged with murder. The deceased
had been strangled. Identity was in issue. In admitting evidence that the accused
had on a prior occasion attempted to assault the deceased with an axe, Maisels
JA held: "[The evidence] is plainly admissible to show desire on the part of the
appellant to harm the deceased and is clearly relevant to the main issue in this
case, namely, whether the appellant was the person responsible for the murder of
the deceased". 45 The fact that the accused had the means of committing the
offence with which she was charged, was found admissible in R v Christiaans. 46
In R v Kumalo & Nkosi there were no personal threats as in Masebe and no
evidence that the accused had the personal means as in Christiaans, except for
the fact that Kumalo was a "native doctor" and a member of the Bacwa, an off-
shoot of the Zulu.
R v Dhlamini is a case where the potential probative value of the evidence
clearly outweighed the possible prejudice to the accused. In this case the
prosecution
3rd Ed, 2009 ch5-p55
alleged that the accused had stabbed the deceased to death in a cul-de-sac at
approximately 22:00, or shortly thereafter. The defence of the accused was an
alibi: he alleged that at the time and date of the murder (which was the sole
charge against him) he was at a dance approximately sixteen kilometres from the
cul-de-sac where the deceased was killed. The defence objected to the evidence
of N, a witness who was in a position to testify that at approximately 21:50 on
the evening in question and some 140 metres from the cul-de-sac in question,
the accused had stabbed her with a sharp instrument after she had rejected some
advances made by the accused. The essence of the defence's objection was that
the admission of N's evidence would have been highly prejudicial to the accused
in that it related to criminal conduct which did not form the subject of the charge
against the accused. However, the court admitted N's evidence: "[A] very
material issue … [is] … the alibi of the accused … [N]'s evidence is vitally relevant
to the question of the alibi … [H]er evidence is admissible to rebut the accused's
alibi." 48 N's evidence was not admitted simply in order to prove prior misconduct
(in which event it would have been inadmissible for lack of relevance). Having
regard to the issue of identity as raised by the defence, the potential value of N's
evidence clearly outweighed the measure of prejudice, if any, that the accused
would have experienced in countering this evidence. 49
5.3.6 The doctrine of precedent

Judicial precedent can determine the relevance (admissibility) — but not the final
weight 50 — of certain types of evidence. In S v Shabalala Nestadt JA came to the
conclusion that the judgment of Innes CJ in R v Trupedo did not rest solely on a
factual finding concerning the reliability or otherwise of the particular dog whose
activities and abilities were in issue, but was essentially rooted in the principle
that evidence of the conduct of dogs in identifying an accused by scenting is
inadmissible. 53 However, Nestadt JA did point out
3rd Ed, 2009 ch5-p56
that if the untrustworthiness of such evidence could be sufficiently reduced —

even though not totally removed — then "actions of the dog would become
relevant and evidence thereof admissible." 54 It would seem that a cautious
approach is necessary before boldly invoking judicial precedent to decide on
admissibility where relevance is the issue. Facts differ from case to case and
precedent can therefore at most provide useful guidelines.
5.3.7 The principle of completeness 55
A court should not exclude harmless irrelevant evidence. A witness should as a

rule and within limits be permitted to tell a coherent story, and in so doing
provide the court with the general background to the disputed event. 56
5.3.8 Constitutional imperatives and the position of the accused

It has been argued that "the defence should have more liberal rights than the
prosecution to adduce evidence which may not be of especially high probative
value". 57
This argument has some weight in a constitutionalized system, such as ours,
where an accused has a constitutionally guaranteed right to a fair trial, which
includes the right to adduce and challenge evidence. 58 However, the rule that
irrelevant evidence is inadmissible (as provided in s 210 of the CPA and referred
to in § 5.1 above) is in terms of s 36 of the Constitution most certainly a
constitutionally permissible limitation of the right to adduce and challenge
evidence. There cannot be an unqualified right to adduce irrelevant evidence or to
"challenge" admissible evidence with irrelevant evidence. Such a right would
make no sense.
But there is room for an argument that where the extremely limited probative
value of the evidence would normally have justified a finding of inadmissibility on
account of irrelevance, the court should — in order to protect an accused's
constitutional right to a fair trial — lean in favour of admissibility. The decision of
the Supreme Court of the USA in Rock v Arkansas might be a case in point. In
this case the accused, charged with "manslaughter" for the death of her husband,
could not recall all the details of the fatal event. At the suggestion of her lawyer,
she agreed to undergo pre-trial hypnosis to refresh her memory. Her memory as
it stood prior to hypnosis was recorded. She was thereafter hypnotised by a
neuropsychologist specially trained in hypnosis. After the hypnotic session, the
accused was able to recall the details of the events that led to her husband's
death. The trial court ruled that she could only testify to matters she remembered
prior to the hypnosis. She was convicted.
The Supreme Court of Arkansas confirmed the conviction. 60 It was held that
whilst the accused had the fundamental right to testify in her own defence, such
3rd Ed, 2009 ch5-p57
right was not limitless 61 and could validly be restricted by the standard rules of
evidence. 62 The Supreme Court of Arkansas also held that the dangers of
admitting evidence based on what emerged as a result of the pre-trial hypnosis,
"outweigh whatever probative value it may have." 63 It was concluded that
"nothing was excluded that would have been of much assistance" 64 to the
accused.
The approach of the Supreme Court of Arkansas was rejected by a five to four
majority in the Supreme Court of the USA. 65 Blackmun J, writing for the
majority, held that the court a quo had "failed to perform the constitutional
analysis that is necessary" 66 when an accused's constitutional right to testify is
at stake. Blackmun J noted that there were serious risks attached to the
admission of hypnotically refreshed testimony. 67 But he nevertheless held that
constitutional due process demanded admission and that a per se rule of
exclusion in respect of hypnotically enhanced testimony was arbitrary, especially
since it could not — in the absence of acceptable evidence to the contrary — be
accepted that such testimony "is always so untrustworthy" that an accused
should be prohibited from presenting it. 68
The decision in Rock v Arkansas, based as it is on constitutional due process,
does not extend to the situation of prosecution witnesses. 69
Footnote - 9
9 Hoffmann 1974 SALJ 237 238. In R v Randall [2004] 1 WLR 56 at [20] Lord Steyn said: "A judge
ruling on a point of admissibility involving an issue of relevance has to decide whether the evidence is
capable of increasing or diminishing the probability of the existence of a fact in issue. The question of
relevance is typically a matter of degree to be determined, for the most part, by common sense and
experience".
9 Hoffmann 1974 SALJ 237 238. In R v Randall [2004] 1 WLR 56 at [20] Lord Steyn said: "A
judge ruling on a point of admissibility involving an issue of relevance has to decide whether
the evidence is capable of increasing or diminishing the probability of the existence of a fact in
issue. The question of relevance is typically a matter of degree to be determined, for the most
part, by common sense and experience".
Footnote - 10
10 Stephen Digest of the Law of Evidence 12 ed (1914) art 1. See Holtzhauzen v Roodt1997 (4) SA
766 (W) 776D-E where, it seems, Satchwell J found this definition too restrictive. This case is
discussed in § 8.6 below.
10 Stephen Digest of the Law of Evidence 12 ed (1914) art 1. See Holtzhauzen v Roodt1997
(4) SA 766 (W) 776D-E where, it seems, Satchwell J found this definition too restrictive. This
case is discussed in § 8.6 below.
Footnote - 11
11 Van Wyk 1978 THRHR 175.
11 Van Wyk 1978 THRHR 175.
Footnote - 12
12 DPP v Kilbourne 1973 AC 729 756.
12 DPP v Kilbourne 1973 AC 729 756.

Footnote - 13
13 McEwan Evidence and the Adversarial Process: The Modern Law 2 ed (1998) 33-4.
13 McEwan Evidence and the Adversarial Process: The Modern Law 2 ed (1998) 33-4.
Footnote - 14
14 2006 (2) SACR 191 (W) 199f-g.
14 2006 (2) SACR 191 (W) 199f-g.
Footnote - 15
15 1914 AC 733 738. See also the discussion of R v Dhlamini1960 (1) SA 880 (N) in § 5.3.5 below.
15 1914 AC 733 738. See also the discussion of R v Dhlamini1960 (1) SA 880 (N) in § 5.3.5
below.
Footnote - 16
16 1990 (1) SACR 659 (E) 661f-662e.
16 1990 (1) SACR 659 (E) 661f-662e.
Footnote - 17
17 1959 (2) SA 352 (A) 362E-F.
17 1959 (2) SA 352 (A) 362E-F.
Footnote - 18
18 1915 AD 348 352 (and cited with approval in S v Mavuso1987 (3) SA 499 (A) 505B). See also
generally R v Sole2004 (2) SACR 599 (LesHC) at 660j-661b, where Cullinan J noted that the drawing
of proper inferences ought to be a matter of common sense. At 661b he found himself in agreement
with the following statement made by Schreiner JA in R v Matthews1960 (1) SA 752 (A) at 758,
namely that relevance is "based upon a blend of logic and experience lying outside the law".
18 1915 AD 348 352 (and cited with approval in S v Mavuso1987 (3) SA 499 (A) 505B). See
also generally R v Sole2004 (2) SACR 599 (LesHC) at 660j-661b, where Cullinan J noted that
the drawing of proper inferences ought to be a matter of common sense. At 661b he found
himself in agreement with the following statement made by Schreiner JA in R v Matthews1960
(1) SA 752 (A) at 758, namely that relevance is "based upon a blend of logic and experience
lying outside the law".
Footnote - 19
19 1920 AD 58.
19 1920 AD 58.
Footnote - 20
20 In Trupedo supra evidence concerning the behaviour of a trained police dog towards an accused
was admitted in the court a quo to prove that he had committed the crime. On appeal it was
submitted that evidence of this kind was inadmissible because no inferences could properly be drawn
from the behaviour of police dogs towards an accused. At 62 Innes CJ remarked as follows (our
emphasis): "The general rule is that all facts relevant to the issue in legal proceedings may be
proved. Much of the law of evidence is concerned with exceptions to the operation of this general
principle, as for example the exclusion of testimony on grounds of hearsay and remoteness. But
where its operation is not so excluded it must remain as the fundamental test of admissibility. And a
fact is relevant when inferences can be properly drawn from it as to the existence of a fact in issue."
Innes CJ also pointed out that the admission of evidence relating to the behaviour of the dog towards
the accused would amount to entering "… a region of conjecture and uncertainty". At 64 it was
concluded that there was too great an element of uncertainty to justify the court in drawing
inferences from this kind of evidence in the course of legal proceedings. The evidence of the
behaviour of the police dog was therefore found to be inadmissible because of its irrelevance. In R v
Kotcho 1918 EDL evidence of identification by a police dog was also excluded as irrelevant and
inadmissible. At 104 Graham JP said: "It does not appear to me that, without legislation, such class of
testimony can be admitted. And I think it would need very careful consideration before any such
legislation should be introduced." In 1971 the police made representations to the Commission of
Inquiry into Criminal Procedure and Evidence (the Botha Commission) for the recommendation of
legislation which would make such evidence admissible. The Botha Commission refused to do so on
the following grounds: "Because the fundamental test of admissibility of evidence in our law is the
relevancy thereof, legislation which seeks to admit evidence which is irrelevant, would be undesirable.
In Kotcho's case Graham JP at page 103 et seq., moreover draws attention to the dangers to which
the admissibility of such evidence would unquestionably lead, because the possibility that a police dog
could make a mistake, cannot be excluded, and there is no way of establishing whether such a
mistake was made, or not, or could possibly have been made. In view of all these circumstances the
proposal of the police cannot be supported and no recommendation is made." See para 11 06 6 of the
Report of the Commission of Inquiry into Criminal Procedure and Evidence (RP 78/1971).
20 In Trupedo supra evidence concerning the behaviour of a trained police dog towards an
accused was admitted in the court a quo to prove that he had committed the crime. On appeal
it was submitted that evidence of this kind was inadmissible because no inferences could
properly be drawn from the behaviour of police dogs towards an accused. At 62 Innes CJ
remarked as follows (our emphasis): "The general rule is that all facts relevant to the issue in
legal proceedings may be proved. Much of the law of evidence is concerned with exceptions to
the operation of this general principle, as for example the exclusion of testimony on grounds of
hearsay and remoteness. But where its operation is not so excluded it must remain as the
fundamental test of admissibility. And a fact is relevant when inferences can be properly drawn
from it as to the existence of a fact in issue." Innes CJ also pointed out that the admission of
evidence relating to the behaviour of the dog towards the accused would amount to entering
"… a region of conjecture and uncertainty". At 64 it was concluded that there was too great an
element of uncertainty to justify the court in drawing inferences from this kind of evidence in
the course of legal proceedings. The evidence of the behaviour of the police dog was therefore
found to be inadmissible because of its irrelevance. In R v Kotcho 1918 EDL evidence of
identification by a police dog was also excluded as irrelevant and inadmissible. At 104 Graham
JP said: "It does not appear to me that, without legislation, such class of testimony can be
admitted. And I think it would need very careful consideration before any such legislation
should be introduced." In 1971 the police made representations to the Commission of Inquiry
into Criminal Procedure and Evidence (the Botha Commission) for the recommendation of
legislation which would make such evidence admissible. The Botha Commission refused to do
so on the following grounds: "Because the fundamental test of admissibility of evidence in our
law is the relevancy thereof, legislation which seeks to admit evidence which is irrelevant,
would be undesirable. In Kotcho's case Graham JP at page 103 et seq., moreover draws
attention to the dangers to which the admissibility of such evidence would unquestionably lead,
because the possibility that a police dog could make a mistake, cannot be excluded, and there
is no way of establishing whether such a mistake was made, or not, or could possibly have
been made. In view of all these circumstances the proposal of the police cannot be supported
and no recommendation is made." See para 11 06 6 of the Report of the Commission of
Inquiry into Criminal Procedure and Evidence (RP 78/1971).
Footnote - 21
21 1986 (4) SA 734 (A).
21 1986 (4) SA 734 (A).
Footnote - 22
22 At 743F.
22 At 743F.
Footnote - 23
23 At 743F. Shabalala supra is discussed by Van Oosten 1987 SALJ 531. It must be noted that
circumstances might be such that in appropriate cases reasonable inferences can be drawn from the
behaviour of police dogs. See generally S v Moya 1968 1 PH H148 (GW); Barrie 1967 (2) Codicillus
44 and Hoffmann 1974 SALJ 237. In Trupedo supra it was also specifically pointed out that evidence
of an animal's instinctive behaviour — as opposed to acquired behaviour — may be admissible. See
also Poswa v Christie 1934 NPD 178.
23 At 743F. Shabalala supra is discussed by Van Oosten 1987 SALJ 531. It must be noted
that circumstances might be such that in appropriate cases reasonable inferences can be drawn
from the behaviour of police dogs. See generally S v Moya 1968 1 PH H148 (GW); Barrie 1967
(2) Codicillus 44 and Hoffmann 1974 SALJ 237. In Trupedo supra it was also specifically
pointed out that evidence of an animal's instinctive behaviour — as opposed to acquired
behaviour — may be admissible. See also Poswa v Christie 1934 NPD 178.
Footnote - 24
24 Zuckerman The Principles of Criminal Evidence 51.
24 Zuckerman The Principles of Criminal Evidence 51.
Footnote - 25
25 Maguire Evidence: Common Sense and Common Law (1947) 205. See also Land Securities plc v
Westminster City Council 1993 4 All ER 124 128h, where Hoffmann J concluded that the evidence in
dispute had "in itself insufficient weight to justify the exploration of otherwise irrelevant issues which
its admissibility would require".
25 Maguire Evidence: Common Sense and Common Law (1947) 205. See also Land
Securities plc v Westminster City Council 1993 4 All ER 124 128h, where Hoffmann J concluded
that the evidence in dispute had "in itself insufficient weight to justify the exploration of
otherwise irrelevant issues which its admissibility would require".
Footnote - 26
26 See generally Van der Merwe 1981 De Rebus 576.
26 See generally Van der Merwe 1981 De Rebus 576.
Footnote - 27
27 In Holtzhauzen v Roodt 1997 4 766 (W) the defendant wanted to lead the evidence of W, an
expert hypnotherapist, to testify that in his opinion the defendant was telling the truth about a rape
incident that happened on the plaintiff's farm, and that in his opinion the defendant was penetrated
by the plaintiff as described to him (W) by the defendant during hypnotherapy sessions that he had
with the defendant. Satchwell J excluded the evidence as irrelevant on several valid grounds (see §§
8.6 and 9.2 below) and also held that the proposed evidence of W would shift the fact-finding
responsibility of the court to the witness. Another way of looking at it would be to say that admission
of W's evidence would have led to a proliferation of issues. Are statements made under hypnosis
reliable? Could the defendant have tricked W? Was the procedure followed by W scientifically
acceptable? Should the plaintiff then also have been given an opportunity to call an expert
hypnotherapist to testify on his credibility and the truthfulness of his allegations that there was no
rape as alleged?
27 In Holtzhauzen v Roodt 1997 4 766 (W) the defendant wanted to lead the evidence of W,
an expert hypnotherapist, to testify that in his opinion the defendant was telling the truth
about a rape incident that happened on the plaintiff's farm, and that in his opinion the
defendant was penetrated by the plaintiff as described to him (W) by the defendant during
hypnotherapy sessions that he had with the defendant. Satchwell J excluded the evidence as
irrelevant on several valid grounds (see §§ 8.6 and 9.2 below) and also held that the proposed
evidence of W would shift the fact-finding responsibility of the court to the witness. Another
way of looking at it would be to say that admission of W's evidence would have led to a
proliferation of issues. Are statements made under hypnosis reliable? Could the defendant have
tricked W? Was the procedure followed by W scientifically acceptable? Should the plaintiff then
also have been given an opportunity to call an expert hypnotherapist to testify on his credibility
and the truthfulness of his allegations that there was no rape as alleged?
Footnote - 28
28 1990 (2) SACR 136 (C).
28 1990 (2) SACR 136 (C).
Footnote - 29
29 1975 1 All ER 70. In this case it was held that expert evidence is inadmissible where the issue
can be decided by the court (or jury, as the case may be) on the basis of its own experience and
knowledge. Expert psychiatric evidence is not needed to inform a court or jury how a person — not
suffering from any mental abnormality or illness — is likely to react to the stresses and strains of life.
See also R v Gilfoyle 2001 2 Cr App R 57.
29 1975 1 All ER 70. In this case it was held that expert evidence is inadmissible where the
issue can be decided by the court (or jury, as the case may be) on the basis of its own
experience and knowledge. Expert psychiatric evidence is not needed to inform a court or jury
how a person — not suffering from any mental abnormality or illness — is likely to react to the
stresses and strains of life. See also R v Gilfoyle 2001 2 Cr App R 57.
Footnote - 30
30 1968 (3) SA 284 (A).
30 1968 (3) SA 284 (A).
Footnote - 31
31 1973 3 All ER 662. In Lowery L and K were charged with the murder of a girl, committed without
apparent motive and in circumstances which indicated that one of them, or the two of them acting in
concert, had killed the girl. L and K had so-called "cut-throat defences", that is, each blamed the
other. The Privy Council concluded that the trial court had correctly admitted the evidence of a
psychologist who was called by K and who testified that, having examined both K and L, the latter
was on account of his aggressive nature and lack of self-control more likely to have committed the
murder than K, who had an immature personality and was likely to have been dominated by the more
aggressive L. The evidence of the psychologist was relevant in support of K's case, that is, to show
that his version was more probable than the version of L, who claimed that he was not the sort of
person who would have committed the murder. Lowery is an example of a case where the
introduction of further issues — the psychologist's comparative analysis of the personalities involved
— was considered acceptable because the ultimate determination of these issues could assist the trier
of fact. Lowery was relied upon by the House of Lords in R v Randall [2004] 1 WLR 56 at [29] and
[30] for the proposition that evidence (but not necessarily expert evidence) of the propensity of an
accused to violence is relevant to the issue of which of two accused was more likely to have resorted
to violence.
31 1973 3 All ER 662. In Lowery L and K were charged with the murder of a girl, committed
without apparent motive and in circumstances which indicated that one of them, or the two of
them acting in concert, had killed the girl. L and K had so-called "cut-throat defences", that is,
each blamed the other. The Privy Council concluded that the trial court had correctly admitted
the evidence of a psychologist who was called by K and who testified that, having examined
both K and L, the latter was on account of his aggressive nature and lack of self-control more
likely to have committed the murder than K, who had an immature personality and was likely
to have been dominated by the more aggressive L. The evidence of the psychologist was
relevant in support of K's case, that is, to show that his version was more probable than the
version of L, who claimed that he was not the sort of person who would have committed the
murder. Lowery is an example of a case where the introduction of further issues — the
psychologist's comparative analysis of the personalities involved — was considered acceptable
because the ultimate determination of these issues could assist the trier of fact. Lowery was
relied upon by the House of Lords in R v Randall [2004] 1 WLR 56 at [29] and [30] for the
proposition that evidence (but not necessarily expert evidence) of the propensity of an accused
to violence is relevant to the issue of which of two accused was more likely to have resorted to
violence.
Footnote - 32
32 1965 1 All ER 506. See also generally Pattendon "Conflicting Approaches to Psychiatric Evidence
in Criminal Trials: England, Canada and Australia" 1986 Crim LR 92.
32 1965 1 All ER 506. See also generally Pattendon "Conflicting Approaches to Psychiatric
Evidence in Criminal Trials: England, Canada and Australia" 1986 Crim LR 92.
Footnote - 33
33 Nel supra 142j-143f.
33 Nel supra 142j-143f.
Footnote - 34
34 1990 ASSAL 502. Emphasis in the original.
34 1990 ASSAL 502. Emphasis in the original.
Footnote - 35
35 Cowsill & Clegg Evidence: Law and Practice 3 ed (1990) 207-8.
35 Cowsill & Clegg Evidence: Law and Practice 3 ed (1990) 207-8.
Footnote - 36
36 2008 (1) SACR 223 (SCA) at [17].
36 2008 (1) SACR 223 (SCA) at [17].

Footnote - 37
37 In S v Papiyana 1986 2 PH H115 (A) the appellant at his trial appeared in prison clothes and
with his feet shackled in leg-irons. The court (at 206) compared this "information" with "evidence
which … [should be] … excluded on the ground that its relevance is too tenuous to compensate for its
prejudicial nature".
37 In S v Papiyana 1986 2 PH H115 (A) the appellant at his trial appeared in prison clothes
and with his feet shackled in leg-irons. The court (at 206) compared this "information" with
"evidence which … [should be] … excluded on the ground that its relevance is too tenuous to
compensate for its prejudicial nature".
Footnote - 38
38 S v Sithole1980 (4) SA 148 (D) 150.
38 S v Sithole1980 (4) SA 148 (D) 150.
Footnote - 39
39 1918 AD 500 504.
39 1918 AD 500 504.
Footnote - 40
40 See § 5.3.3 above.
40 See § 5.3.3 above.
Footnote - 41
41 1918 AD 500.
41 1918 AD 500.
Footnote - 42
42 Kumalo & Nkosi supra 505-6.
Footnote - 43
Footnote - 44
44 1972 2 PH H127 (BAC).
44 1972 2 PH H127 (BAC).
Footnote - 45
45 At 217.
45 At 217.
Footnote - 46
46 1925 TPD 868 875.
46 1925 TPD 868 875.
Footnote - 47
47 1960 (1) SA 880 (N).
47 1960 (1) SA 880 (N).
Footnote - 48
48 At 881A-C.
48 At 881A-C.
Footnote - 49
49 See also generally R v P 1991 3 All ER 337.
49 See also generally R v P 1991 3 All ER 337.
Footnote - 50
50 In R v C 1949 2 SA 438 (SR) the accused was charged with sodomy. The prosecution sought to
adduce evidence that six days after the alleged commission of the offence the accused had attempted
to commit suicide. This evidence was held admissible. At 439 Tredgold J held as follows (emphasis
added): "In this matter the Crown tenders in evidence certain documents relating to the fact that the
accused, subsequent to the charge being laid against him, attempted to commit suicide. The main
principle involved is the question as to whether attempted suicide is admissible evidence, the letters
being purely subsidiary to that attempt, but necessary to explain it, not only from the Crown's point
of view, but from the accused's point of view. Now, I must remember at this juncture that I am not
concerned with the weight which may be attached to this evidence. I am simply concerned with its
admissibility, and I have no doubt whatsoever that it is legally admissible and that there is nothing
improper in the Crown's leading this evidence. It is quite clear on the authorities which have been
quoted that the behaviour of the accused subsequent to the allegations being made against him is
relevant and is admissible in evidence. The weight to be attached to that behaviour must vary greatly
according to the particular circumstances of each case. But that is a matter to be decided by the jury,
and not by myself. Amongst the matters which are expressly mentioned as being relevant is flight to
avoid facing the charge laid against him, by the accused. Now, it seems to me that that covers in
principle the case in which an accused person attempts to avoid facing the charge by committing
suicide. The exact weight to be attached to any such attempts need not be dealt with now, and I
think it is best reserved for the summing-up. But I may say in conclusion that, although I am unable
to recollect any specific case, I am quite satisfied that evidence of such attempts has been led before
this Court on more than one occasion, and that the evidence is admissible, and that it is for the jury
to decide in all the circumstances of this particular case how far they should regard it as favourable or
unfavourable to the accused."
50 In R v C 1949 2 SA 438 (SR) the accused was charged with sodomy. The prosecution
sought to adduce evidence that six days after the alleged commission of the offence the
accused had attempted to commit suicide. This evidence was held admissible. At 439 Tredgold
J held as follows (emphasis added): "In this matter the Crown tenders in evidence certain
documents relating to the fact that the accused, subsequent to the charge being laid against
him, attempted to commit suicide. The main principle involved is the question as to whether
attempted suicide is admissible evidence, the letters being purely subsidiary to that attempt,
but necessary to explain it, not only from the Crown's point of view, but from the accused's
point of view. Now, I must remember at this juncture that I am not concerned with the weight
which may be attached to this evidence. I am simply concerned with its admissibility, and I
have no doubt whatsoever that it is legally admissible and that there is nothing improper in the
Crown's leading this evidence. It is quite clear on the authorities which have been quoted that
the behaviour of the accused subsequent to the allegations being made against him is relevant
and is admissible in evidence. The weight to be attached to that behaviour must vary greatly
according to the particular circumstances of each case. But that is a matter to be decided by
the jury, and not by myself. Amongst the matters which are expressly mentioned as being
relevant is flight to avoid facing the charge laid against him, by the accused. Now, it seems to
me that that covers in principle the case in which an accused person attempts to avoid facing
the charge by committing suicide. The exact weight to be attached to any such attempts need
not be dealt with now, and I think it is best reserved for the summing-up. But I may say in
conclusion that, although I am unable to recollect any specific case, I am quite satisfied that
evidence of such attempts has been led before this Court on more than one occasion, and that
the evidence is admissible, and that it is for the jury to decide in all the circumstances of this
particular case how far they should regard it as favourable or unfavourable to the accused."
Footnote - 51
51 1986 (4) SA 734 (A).
51 1986 (4) SA 734 (A).
Footnote - 52
52 1920 AD 58.
52 1920 AD 58.
Footnote - 53
53 Shabalala supra 741G-H.
53 Shabalala supra 741G-H.
Footnote - 54
54 Shabalala supra 741-742A.
54 Shabalala supra 741-742A.
Footnote - 55
55 In Palmer v Minister of Safety and Security2002 (1) SA 110 (W) it was said that the need for
having a complete picture may require reception of facts neither in issue nor relevant because they
are inextricably bound up by factors of time, place and circumstances with facts in issue or relevant
facts.
55 In Palmer v Minister of Safety and Security2002 (1) SA 110 (W) it was said that the need
for having a complete picture may require reception of facts neither in issue nor relevant
because they are inextricably bound up by factors of time, place and circumstances with facts
in issue or relevant facts.
Footnote - 56
56 Dennis The Law of Evidence 3 ed (2007) 10.
Footnote - 57
57 Choo 1993 Crim LR 114 at 125.
57 Choo 1993 Crim LR 114 at 125.
Footnote - 58
58 See s 35(3)(i) of the Constitution.
58 See s 35(3)(i) of the Constitution.
Footnote - 59
59 107 S Ct 2704 (1987).
59 107 S Ct 2704 (1987).
Footnote - 60
60 Rock v State 708 SW 2d 78 (1986).
60 Rock v State 708 SW 2d 78 (1986).
Footnote - 61
61 Rock v State supra at 84.
Footnote - 62
Footnote - 63
Footnote - 64
Footnote - 65
65 For a detailed analysis of Rock v Arkansas supra, see Kuplicki "Fifth, Sixth and Fourteenth
Amendments — A Constitutional Paradigm for Determining the Admissibility of Hypnotically Refreshed
Testimony" 1987 7 Supreme Court Review 853.
65 For a detailed analysis of Rock v Arkansas supra, see Kuplicki "Fifth, Sixth and Fourteenth
Amendments — A Constitutional Paradigm for Determining the Admissibility of Hypnotically
Refreshed Testimony" 1987 7 Supreme Court Review 853.
Footnote - 66
66 Rock v Arkansas supra at 2712.
66 Rock v Arkansas supra at 2712.
Footnote - 67
67 Rock v Arkansas supra at 2713-4. See also generally Diamond "Inherent Problems in the Use of
Pretrial Hypnosis on a Prospective Witness" 1980 68 California LR 313.
67 Rock v Arkansas supra at 2713-4. See also generally Diamond "Inherent Problems in the
Use of Pretrial Hypnosis on a Prospective Witness" 1980 68 California LR 313.
Footnote - 68
68 Rock v Arkansas supra 2714.
68 Rock v Arkansas supra 2714.
Footnote - 69
69 Relying on Rock v Arkansas supra and the article by Kuplicki referred to in n 65 above, Van der
Merwe 1996 Obiter 1-2 has suggested the following: "The constitutional trial rights of the accused, it
would seem, give rise to a bifurcated rule of admissibility. Hypnotically refreshed testimony by state
witnesses should as a general rule be excluded because such evidence seriously impairs the
constitutional right of the accused to challenge evidence by way of cross-examination. Due process is
denied. However, hypnotically refreshed testimony by the accused (or any other defence witness)
should as a rule be admitted. The accused has a constitutional right to adduce evidence…It is
submitted that the bifurcated rule of admissibility — despite its constitutional basis — remains subject
to the fundamental evidentiary rule that irrelevant evidence must be excluded. Where it is patently
clear to the court that the technique (hypnosis) and its product (a hypnotically induced memory)
cannot yield reasonably accurate results (potentially reliable evidence), the evidence must be
excluded regardless of the fact whether a prosecution or defence witness (including an accused) is
involved. However, where the court is merely in doubt as regards the potential reliability of the
hypnotically induced testimony, the bifurcated rule of admissibility must come into play: Such
testimony must be admitted when offered by the defence. This is necessary in order to comply with
constitutional provisions. But the ultimate rule — which over-rides the constitutional trial rights of the
accused — is the rule that only relevant evidence may be received." Emphasis in the original.
69 Relying on Rock v Arkansas supra and the article by Kuplicki referred to in n 65 above,
Van der Merwe 1996 Obiter 1-2 has suggested the following: "The constitutional trial rights of
the accused, it would seem, give rise to a bifurcated rule of admissibility. Hypnotically
refreshed testimony by state witnesses should as a general rule be excluded because such
evidence seriously impairs the constitutional right of the accused to challenge evidence by way
of cross-examination. Due process is denied. However, hypnotically refreshed testimony by the
accused (or any other defence witness) should as a rule be admitted. The accused has a
constitutional right to adduce evidence…It is submitted that the bifurcated rule of admissibility
— despite its constitutional basis — remains subject to the fundamental evidentiary rule that
irrelevant evidence must be excluded. Where it is patently clear to the court that the technique
(hypnosis) and its product (a hypnotically induced memory) cannot yield reasonably accurate
results (potentially reliable evidence), the evidence must be excluded regardless of the fact
whether a prosecution or defence witness (including an accused) is involved. However, where
the court is merely in doubt as regards the potential reliability of the hypnotically induced
testimony, the bifurcated rule of admissibility must come into play: Such testimony must be
admitted when offered by the defence. This is necessary in order to comply with constitutional
provisions. But the ultimate rule — which over-rides the constitutional trial rights of the
accused — is the rule that only relevant evidence may be received." Emphasis in the original.
Document 50 of 330
5.4 Proposals of the South African Law Reform

Commission
The South African Law Reform Commission ("SALRC") has recommended that s
210 of the CPA and s 2 of the CPEA (see § 5.1 above) should be repealed and the
following enacted: 70
3rd Ed, 2009 ch5-p58

"A. (1) Relevant evidence, is evidence that, if it were accepted, could rationally
affect (directly or indirectly) the assessment of the probability of the existence of a
fact in issue in the proceeding.
(2) Evidence is not irrelevant because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence: or
(c) a failure to adduce evidence.
B. (1) Subject to the provisions of any other law, evidence that is relevant is
admissible.
(2) Evidence that is not relevant is not admissible.
C. (1) A court may refuse to admit evidence if its probative value is substantially
outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party: or
(b) cause or result in undue waste of time.
(2) When determining whether the probative value of evidence is outweighed by
the risk that evidence will have an unfairly prejudicial effect, a presiding officer may
not adopt assumptions or make generalizations that are in conflict with the
constitutional values embodied in the Constitution of the Republic of South Africa Act
108 of 1996.
D. A court may provisionally admit evidence subject to evidence being later
offered which establishes its admissibility."
The SALRC itself has noted that "[t]he absence of a legal definition of relevance
does not seem to have given rise to any difficulties in practice." 71 It nevertheless
felt that there were no apparent disadvantages in defining relevance. The SALRC
based much of its proposals on the existing position in South Africa and
developments in New Zealand and Australia. The wisdom of "codifying" principles
governing relevance, is highly debatable. "The question whether evidence is
relevant", it was said in R v Guney, "depends not on abstract legal theory but on
the individual circumstances of each case." 72
Footnote - 70
70 See para 3 31 of the SALRC's Review of the Law of Evidence (Hearsay and Relevance):
(Discussion Paper 113, Project 126).
70 See para 3 31 of the SALRC's Review of the Law of Evidence (Hearsay and Relevance):
(Discussion Paper 113, Project 126).
Footnote - 71
71 Para 3 30 of Discussion Paper 113.
71 Para 3 30 of Discussion Paper 113.
Footnote - 72
72 1998 2 Cr App Rep 242 246.
72 1998 2 Cr App Rep 242 246.
Document 51 of 330
Chapter 6
Character Evidence
P J Schwikkard
6.1 Introduction
6.2 Character in criminal cases
6.2.1 The character of the accused
6.2.2 Evidence of the accused's bad character
6.2.3 Section 197 of the CPA
6.2.3.1 Section 197(a)
6.2.3.2 Section 197(b)
6.2.3.3 Section 197(c)
6.2.3.4 Section 197(d)
6.2.5 Witnesses other than the accused
6.2.6 Character of the complainant
6.2.6.1 Rape or indecent assault
6.2.6.2 Crimen iniuria
6.3 Character in civil cases
3rd Ed, 2009 ch6-p59
6.1 Introduction
This chapter and chapter 7 deal with the subject of what evidence, pertaining to
character and disposition, may be adduced. Whilst chapter 7 deals specifically
with similar fact evidence, this chapter deals with the admissibility of evidence
relating to the character of witnesses or the accused or parties in civil
proceedings, as the case may be.
Historically a distinction was drawn between different forms of character
evidence. The two primary categories were (a) general reputation 1 and (b) a
person's disposition to think or act in a particular way. It would appear that, in
the nineteenth century, the English common law preferred evidence of general
reputation as a means of establishing character rather than "disposition
evidence". 2 However the modern law of evidence does not reflect this
preference. Indeed there
3rd Ed, 2009 ch6-p60
is acknowledgment that evidence of general reputation is an "indirect and weaker

form of evidence". 3
The rules pertaining to character evidence applicable in criminal and civil cases
are dealt with separately below.
Footnote - 1
1 R v Rowton 1865 Le & CA 520, 169 All ER 1497. General reputation refers to a person's reputation
in the community in which he lives.
1 R v Rowton 1865 Le & CA 520, 169 All ER 1497. General reputation refers to a person's
reputation in the community in which he lives.
Footnote - 2
2 Roberts & Zuckerman Criminal Evidence (2004) at 503 give the following explanation for the
preference given to evidence of general reputation in Rowton supra: "[A]t the time when Rowton was
decided the accused was generally disqualified from testifying in his own defence and the modern
sciences of personality were yet to be born. Moreover, many people lived in relatively small, static
communities where everybody more or less knew everybody else's business. Perhaps in these
circumstances and in the absence of anything better, reputation could be taken as a reliable guide to
character and conduct. In the modern period, and particularly after the accused was made generally
competent in his own defence by the Criminal Evidence Act 1898, alternative sources of information
revealing the accused's character have become available. Conversely, the reliability of reputation as a
proxy for information about a person's behaviour has correspondingly declined as a function of the
relative anonymity of modern urban existence."The authors go on to note that Rowton has never
been formally overruled but that equation of character with reputation is not a doctrine invoked by
contemporary courts.
2 Roberts & Zuckerman Criminal Evidence (2004) at 503 give the following explanation for
the preference given to evidence of general reputation in Rowton supra: "[A]t the time when
Rowton was decided the accused was generally disqualified from testifying in his own defence
and the modern sciences of personality were yet to be born. Moreover, many people lived in
relatively small, static communities where everybody more or less knew everybody else's
business. Perhaps in these circumstances and in the absence of anything better, reputation
could be taken as a reliable guide to character and conduct. In the modern period, and
particularly after the accused was made generally competent in his own defence by the
Criminal Evidence Act 1898, alternative sources of information revealing the accused's
character have become available. Conversely, the reliability of reputation as a proxy for
information about a person's behaviour has correspondingly declined as a function of the
relative anonymity of modern urban existence."The authors go on to note that Rowton has
never been formally overruled but that equation of character with reputation is not a doctrine
invoked by contemporary courts.
Footnote - 3
3 Tapper Cross & Tapper on Evidence 11 ed (2007) 352: Roberts & Zuckerman op cit 503.
3 Tapper Cross & Tapper on Evidence 11 ed (2007) 352: Roberts & Zuckerman op cit 503.
Document 52 of 330
6.2 Character in Criminal Cases

6.2.1 The character of the accused
In terms of s 227(1) of the CPA the admissibility of character evidence of the
accused is determined by the rules in force on 30 May 1961, these being the rules
of English law. The common-law rules need to be read together with the relevant
statutory provisions.
The general rule is that the accused may adduce evidence of his own good
character, 4 but the prosecution is prohibited from adducing evidence of his bad
character, subject to specified exceptions.
The reason for permitting evidence of the accused's good character is to be
found in the dictum of Willes J in R v Rowton, 5 in which the court held that "such
evidence is admissible because it renders it less probable that what the
prosecution has averred is true. It is strictly relevant to the issue." 6 Evidence of
the accused's bad character is excluded in English law because it might "have a
disproportionately prejudicial effect upon the jury" and because it is generally
considered to be irrelevant. 7 The latter reason presumably forms the basis for
the rule in South African law. While the irrelevance of general reputation is fairly
self-evident the same is not necessarily true for disposition evidence. It is
frequently posited that past behaviour is a good indicator of likely future conduct.
Consequently, disposition evidence may well be logically relevant in establishing
the likelihood of a particular behaviour occurring. 8 Perhaps the irrelevance of
disposition evidence lies in the prejudice of a generalised application of claims of
social psychology as well as a residual scepticism as to the accuracy of past
behaviour as a predictor of future behaviour.
There are a number of ways in which an accused may try and establish her
good character: by the accused giving evidence herself, by calling witnesses to
testify on her behalf, 9 or by cross-examining prosecution witnesses. 10 However,
once the accused herself, or through calling witnesses, adduces evidence as to
her good character the prosecution can respond by introducing evidence of bad
character. 11 The
3rd Ed, 2009 ch6-p61
accused may also render herself liable to cross-examination as to bad character

in terms of s 197 of the CPA (see §§ 6.2.3 to 6.2.3.4 below).
6.2.2 Evidence of the accused's bad character

Once the accused has adduced evidence as to her own good character the
prosecution may respond in three different ways: (i) adducing evidence of bad
reputation; (ii) cross-examining character witnesses; and (iii) cross-examining
the accused. 12
If the accused attacks the character of prosecution witnesses but does not
adduce evidence as to her own good character, the prosecution may not adduce
evidence of the accused's bad character. 13 In these circumstances the
prosecution will be limited to cross-examining the accused as to character in
terms of s 197(a) of the CPA (see §§ 6.2.3.1 below). In R v Butterwasser the
court of criminal appeal held that the defence's cross-examination of the
prosecution witnesses as to their previous convictions did not permit the
prosecution to call a police officer to testify as to the accused's previous
convictions. The reason given by the court was that the attack on the prosecution
witnesses was directed at putting their character in issue and not the character of
the accused. 15
Where the prosecution does call witnesses to testify as to the accused's bad
character they may in theory only state what they know about the accused's
general reputation. 16 However, as discussed above at § 6.1 this doctrine appears
to not be enforced by contemporary courts where the similar fact rule applies.
The prosecution is restricted by the similar fact rule, which prohibits evidence of
past misconduct on the part of the accused where the sole relevance of the
evidence is the accused's disposition. Similar fact evidence is discussed in chapter
7.
Section 197 of the CPA reads as follows:
"An accused who gives evidence at criminal proceedings shall not be asked or
required to answer any question tending to show that he has committed or has been
convicted of or has been charged with any offence other than the offence with which
he is charged, or that he is of bad character, unless —
(a) he or his legal representative asks any question of any witness with a view to
establishing his own good character or he himself gives evidence of his own
good character, or the nature or conduct of the defence is such as to involve
imputation of the character of the complainant or any other witness for the
prosecution;
(b) he gives evidence against any other person charged with the same offence or
an offence in respect of the same facts;
(c) the proceedings against him are such as are described in section 240 or 241
and the notice under those sections has been given to him; or
(d) the proof that he has committed or has been convicted of such other offence
is admissible evidence to show that he is guilty of the offence with which he is
charged."
3rd Ed, 2009 ch6-p62
It is important to note that s 197 does not permit evidence of bad character to be
adduced by the prosecution. It simply makes provision for cross-examination of
the accused.
6.2.3.1 Section 197(a)

Section 197 protects the accused against cross-examination that is directed at
showing bad character or his previous criminal record. However, the accused will
lose this protection (or "shield") by: adducing evidence as to his own good
character; 17 attacking the character of a prosecution witness; 18 or by testifying
"against any other person charged with the same offence or an offence in respect
of the same facts". 19
Section 197(a), in so far as it permits cross-examination of the accused as to
character if the accused introduces evidence as to his own good character,
complements the common-law rule which permits the prosecution to adduce
evidence of bad character in such circumstances.
An accused gives evidence of his own good character when 20
"… he asserts, or elicits, that he is of good character independently of his giving an
account of what had happened: he must endeavour (by means of questions or his
evidence) to refer to his good character in order to have it taken into account as
something in his favour: a mere canvassing of the relevant facts is insufficient to
penalize the accused if the facts may incidentally show his character in a good light."
Once an accused has put his character in issue his whole character will be subject
to cross-examination. In Stirland v DPP the court held that 21
"[a]n accused who puts his character in issue must be regarded as putting the whole
of his past record in issue. He cannot assert his good conduct in certain respects
without exposing himself to inquiry about the rest of his record so far as this tends
to disprove a claim of good character."
In terms of s 197(a) the accused will also expose himself to cross-examination as
to character if "the nature or conduct of the defence is such as to involve
imputation of the character of the complainant or any other witness for the
prosecution". There are two ways in which the nature and conduct of the defence
may be revealed: (1) by the accused's testimony; and (2) through cross-
examination of the prosecution witnesses by the accused's legal representative
or, in the case of the unrepresented accused, by himself. 22 However, if the
accused is led by the prosecution
3rd Ed, 2009 ch6-p63
into making assertions as to his good character, this will not put the accused's
character into issue. 23
The wording of s 197(a) is similar to that found in s 1(f)(ii) of the English
Criminal Evidence Act 1898. In a post-30 May 1961 decision the House of Lords
held that s 1(f)(ii) should be interpreted literally. 24 Consequently, in English law
cross-examination as to character will be allowed even where imputations as to
the character of prosecution witnesses are a necessary part of the accused's
defence. 25 "The fact that an imputation is not made to discredit the witness but
for another purpose is immaterial." 26 The South African courts have been
reluctant to take such a literal interpretation and there is authority for the view
that where the evidence sought to be elicited forms an essential portion of the
accused's defence s 197(a) should not be invoked, even if that evidence involves
an imputation as to the character of a prosecution witness. 27
6.2.3.2 Section 197(b)

Section 197(b) makes the accused liable to cross- examination as to character if
she gives evidence "against any other person charged with the same offence or
an offence in respect of the same facts". However, a person who has been
charged with the same offence and convicted and sentenced prior to testifying
will not be considered an accused. 28In Murdoch v Taylor the House of Lords held
that "evidence against" a co-accused means evidence which supports the
prosecution case in a material respect, or which undermines the defence of the
co-accused. 30 The accused's intention in giving such evidence, whether in
examination in chief or cross-examination, is not relevant. 31 However, "if one
accused merely denies that he took part in a joint venture, that does not
constitute giving evidence against a co-accused unless it implies that his co-
accused did participate in it". 32 In S v Mazibuko the court in an obiter dictum
found that the wording of s 197(b) conferred no discretion and that when cross-
examination is allowed in terms of s 197(b) the court has no general or residual
discretion to restrict such
3rd Ed, 2009 ch6-p64
cross-examination on grounds of irrelevancy. However, in S v Pietersen 34

Erasmus J took the view that a court
"has a discretion to restrict and control the ambit of the cross-examination under s
197(b). The discretion must be exercised in the light of the principles governing
relevance. The cross-examination must be relevant to the issue of credibility, and it
must not prejudice the accused being cross-examined in the conduct of his defence
to the extent that his right to a fair trial is undermined." 35
6.2.3.3 Section 197(c)

Section 197(c) provides that if the charge is one of receiving stolen property, the
accused may be questioned in respect of her previous convictions and bad
character. Zeffertt, Paizes & Skeen note that although the drafter's intention was
presumably "to allow the prosecution in a receiving charge to cross-examine on
matters which they would be entitled to prove under ss 240 and 241" 36 of the
CPA, this is not supported by a literal interpretation of s 197(c).
6.2.3.4 Section 197(d)

Section 197(d) provides that the accused may be cross-examined as to previous
offences if the purpose of such evidence is to "show that he is guilty of the
offence with which he is charged". The courts have held that s 197 does not
prohibit the accused being asked questions relevant to an issue before the court
even if such questions tend to show bad character or to reveal the accused's
previous convictions. 37 Thus it can be said that s 197(d) merely confirms the
similar fact rule. 38

Section 211 of the CPA provides:
"Except where otherwise expressly provided by this Act or except where the fact of a
previous conviction is an element of any offence with which an accused is charged,
evidence shall not be admissible at criminal proceedings in respect of any offence to
prove that an accused at such proceedings had previously been convicted of any
offence, whether in the Republic or elsewhere, and no accused, if called as a witness
shall be asked whether he has been so convicted."
As a consequence of the words "[e]xcept where otherwise expressly provided for
by this Act" s 211 is subject to the similar fact rule 39 by virtue of s 252 of the
CPA, which applies the law that was in force on the 30 May 1961. 40
Section 211 does not prevent an accused from testifying as to her own
previous convictions. This might be done, for example, to support a defence
based on an alibi. 41 When an accused chooses this course she runs the risk of
having her character
3rd Ed, 2009 ch6-p65
attacked by the prosecution in cross-examination. 42 However, in S v Mthembu

the Appellate Division held that if such cross-examination is permitted, it must be
limited to the extent that any further details sought are relevant to an issue in
the trial. 44
It should be noted that evidence of previous convictions are admitted during
the course of bail proceedings as they are not considered criminal proceedings. 45
However, in S v Hlati the court noted that an anomaly will arise when bail is
applied for during the course of a trial and the accused's previous convictions are
brought to the attention of the presiding officer. 47 Previous convictions are also
admissible after conviction in order to assist the court in determining an
appropriate sentence. 48
6.2.5 Witnesses other than the accused

Except where a witness's credit has been impeached by evidence that she has a
bad reputation, the party calling that witness is prohibited from adducing
evidence as to the witness's good character. 49 Where a witness disputes an
allegation that she has a reputation for untruthfulness the opposition may call a
witness to testify from her knowledge of the impugned witness's reputation that
she would not believe the latter on her oath. 50 In S v Damalis the court held that
another court's assessment of a witness's credibility may be put to a witness in
cross-examination. This aspect is more fully discussed in §§ 18.6.5.5 and 25.2.1
below.
6.2.6 Character of the complainant

In all criminal cases where the complainant testifies he or she may be cross-
examined, and the cross-examiner may ask questions that are pertinent to
exposing the witness's credibility or lack thereof. 52 However, the point of
departure is that the character or disposition of the complainant is not relevant to
credibility. Consequently, evidence which is solely directed at establishing that
the complainant has a bad character is prohibited, as is evidence of good
character. 53 Nevertheless, in a few exceptional categories of cases the
complainant's character is viewed as relevant. These are discussed in §§ 6.2.6.1
and 6.2.6.2 below.
6.2.6.1 Rape or indecent assault
There is a common-law rule that in a case involving a charge of rape or indecent
assault the accused may adduce evidence as to
3rd Ed, 2009 ch6-p66
the complainant's bad reputation for lack of chastity. 54 Prior to 1989 55 s 227 of
the CPA provided that, in sexual offence cases, the admissibility of evidence as to
"the character of any woman" would be determined by the application of the
common law. In terms of the common law the defence may question the
complainant as to her previous sexual relations with the accused. 56 The accused
is prohibited from leading evidence of the complainant's sexual relations with
other men. 57 However, the complainant may be questioned on this aspect of her
private life in cross-examination as it is considered relevant to credibility.
Evidence to contradict any denials may be led only if such evidence is relevant to
consent. 58
The common-law provisions have been criticised on a number of grounds: (a)
whilst cross-examination concerning prior sexual history traumatises and
humiliates the victim, the evidence it elicits is irrelevant 59 and at most
establishes a general propensity to have sexual intercourse; (b) evidence of this
nature is held to be inadmissible in other cases and there are no grounds for
admitting it where the case is of a sexual nature; 60(c) the possibility of such
cross-examination deters victims from reporting the offence. 61
The South African Law Commission in 1985 62 noted that in practice the
application of s 227 resulted in few (if any) restrictions being placed on the
admissibility of sexual history evidence. 63 In accordance with the
recommendation of the Law Commission, s 227 was amended 64 so as to require
application to be made to court for leave to adduce evidence of prior sexual
history or to question the complainant on her prior sexual history. Such leave
would only be granted if the relevance of the evidence or questioning was
established to the satisfaction of the court. These amendment were criticised on
the basis that the very purpose for which they were enacted was undermined by
the very wide discretion conferred on judicial officers. 65 The same judicial officers
who in the past failed to exercise their discretion to exclude irrelevant previous
sexual history evidence were now being asked to
exercise the very same discretion, albeit preceded by an application held in

camera. 66 In S v M the Supreme Court of Appeal noted that "the members of
this Court are not aware of any instance where s 227(2) has been applied in this
country. It seems likely that it is more honoured in the breach than in the
observance". 68
The Legislature finally responded to these criticisms by once again amending s
227 in 2007. 69 The new s 227 reads as follows:
227.(1) Evidence as to the character of an accused or as to the character of any
person against or in connection with whom a sexual offence as contemplated in the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, is
alleged to have been committed , shall, subject to the provisions of subsection (2),
be admissible or inadmissible if such evidence would have been admissible or
inadmissible on the 30th day of May, 1961.
(2) No evidence as to any previous sexual experience or conduct of any person
against or in connection with whom a sexual offence is alleged to have been
committed, other than evidence relating to sexual experience or conduct in respect
of the offence which is being tried, shall be adduced, and no evidence or question in
cross examination regarding such sexual experience or conduct, shall be put to such
person, the accused or any other witness at the proceedings pending before the
court unless —
(a) the court has, on application by a party to the proceedings, granted leave to
adduce such evidence or to put such question; or
(b) such evidence has been introduced by the prosecution.
(3) Before an application for leave contemplated in subsection (2)(a) is heard,
the court may direct that any person, including the complainant, whose presence is
not necessary may not be present at the proceedings.
(4) The court shall, subject to subsection (6), grant the application referred to in
subsection (2)(a) only if satisfied that such evidence or questioning is relevant to the
proceedings pending before the court.
(5) In determining whether evidence or questioning as contemplated in this
section is relevant to the proceedings pending before the court, the court shall take
into account whether such evidence or questioning —
(a) is in the interests of justice, with due regard to the accused's right to a fair
trial;
(b) is in the interests of society in encouraging the reporting of sexual offences;
(c) relates to a specific instance of sexual activity relevant to a fact in issue;
(d) is likely to rebut evidence previously adduced by the prosecution;
(e) is fundamental to the accused's defence;
(f) is not substantially outweighed by its potential prejudice to the complainant's
personal dignity and right to privacy; or
(g) is likely to explain the presence of semen or the source of pregnancy or
disease or any injury to the complainant, where it is relevant to a fact in issue.
3rd Ed, 2009 ch6-p68

(6) The court shall not grant an application referred to in subsection (2)(a) if, in
its opinion, such evidence or questioning is sought to be adduced to support an
inference that by reason of the sexual nature of the complainant's experience or
conduct, the complainant —
(a) is more likely to have consented to the offence being tried; or
(b) is less worthy of belief.
(7) The court shall provide reasons for granting or refusing an application in
terms of subsection (2)(a), which reasons shall be entered in the record of the
proceedings.
Section 227(1) of the Criminal Procedure Act retains the common law but is now
overtly gender neutral and subject to sub-s (2). In terms of s 227(2) prior sexual
history evidence "other than evidence relating to sexual experience or conduct in
respect of the offence which is being tried" may not be led or raised in cross-
examination except with the leave of the court or unless prior sexual history
evidence has been introduced by the prosecution. The exception that is created
by the introduction of prior sexual history by the prosecution is consistent with
the approach taken by the court in S v Zuma 70 and if unrestricted once again
opens the door to the admission of irrelevant but damaging evidence. Given the
unfortunate application of s 227 in the past it may well have been prudent for the
legislature to specify that this exception only applied to prior sexual history
adduced by the accused in so far as it was relevant to contradicting the evidence
introduced by the prosecution.
The wording of s 227(2) makes it clear that as far as "the offence which is
being tried" is concerned, no application is necessary. But the fact that no prior
application is required does not relieve the court of its common-law 71 and
statutory duty 72 to ensure that evidence and questioning do not go beyond what
is relevant. Exclusion of irrelevancies cannot jeopardise the right to a fair trial; 73
and the court has a duty to protect the dignity of the complainant. 74
The most radical change brought about by the amendments to s 227 are to be
found in subsection (5), which specifies the factors that the court must take into
account when deciding whether to grant leave to lead evidence of prior sexual
history. In terms of subsection (4) leave to lead prior sexual history evidence will
only be granted if the court is satisfied that such evidence is relevant.
The amended section leaves the court with a significant degree of discretion in
determining relative prejudice and whether or not the evidence "is fundamental
to the accused's defence". This is no doubt in deference to the constitutional right
to a fair trial and the Canadian experience which saw legislation that placed
significant
3rd Ed, 2009 ch6-p69
constraints on the courts discretion being struck down as it allowed the possibility
of evidence that was relevant to the accused's defence being excluded. 75 This
may mean that there is the danger of old practices continuing. However,
subsections (6) and (7) should provide an effective barrier to the assumption of
old habits. Subsection (6) directs the court to refuse leave if the purpose of
adducing the evidence or questioning the complainant is to support an inference
that the complainant is more likely to have consented or is untruthful. Subsection
(7) requires a court to provide reasons for refusing or allowing an application to
lead prior sexual history evidence.
6.2.6.2 Crimen iniuria

In order to obtain a conviction on a charge of crimen iniuria the prosecution must
prove insult to the complainant's dignity. 76 Evidence that goes to establishing
that the complainant was not the type of person who would have been insulted in
the circumstances, will be regarded as relevant. 77
Footnote - 4
4 R v Gimingham 1946 EDL 156; R v Bellis 1966 ALL 1 ER 552 (CCA).
4 R v Gimingham 1946 EDL 156; R v Bellis 1966 ALL 1 ER 552 (CCA).
Footnote - 5
5 1865 Le & CA 520 540, 169 ER 1497 1506.
5 1865 Le & CA 520 540, 169 ER 1497 1506.
Footnote - 6
6 Cf R v Bellis 1966 1 All ER 552 (CCA) 552, where the court described the accused's good
character as "primarily a matter that goes to credibility".
6 Cf R v Bellis 1966 1 All ER 552 (CCA) 552, where the court described the accused's good
character as "primarily a matter that goes to credibility".
Footnote - 7
7 May Criminal Evidence 3 ed (1995) 118. At 121 May lists five reasons for limiting evidence as to
character: (a) it is easy to fabricate; (b) it is often irrelevant; (c) it may lead to an investigation of
collateral issues; (d) it frequently is nothing more than opinion evidence; (e) it may usurp the
function of the jury. See also Choo Evidence (2006) 195-6.
7 May Criminal Evidence 3 ed (1995) 118. At 121 May lists five reasons for limiting evidence
as to character: (a) it is easy to fabricate; (b) it is often irrelevant; (c) it may lead to an
investigation of collateral issues; (d) it frequently is nothing more than opinion evidence; (e) it
may usurp the function of the jury. See also Choo Evidence (2006) 195-6.
Footnote - 8
8 Roberts & Zuckerman Criminal Evidence 504.
8 Roberts & Zuckerman Criminal Evidence 504.
Footnote - 9
9 If a witness is called to testify as to the accused's character, she may be cross-examined so as

to test the accuracy of her testimony. Zeffertt, Paizes & Skeen 230 express the view that such
witness may be asked whether she is aware of the accused's previous convictions. However, this
view is yet to be tested by the South African courts and remains an open question.
9 If a witness is called to testify as to the accused's character, she may be cross-examined

so as to test the accuracy of her testimony. Zeffertt, Paizes & Skeen 230 express the view that
such witness may be asked whether she is aware of the accused's previous convictions.
However, this view is yet to be tested by the South African courts and remains an open
question.
Footnote - 10
10 See generally Zeffertt, Paizes & Skeen 228; May Criminal Evidence 3 ed (1995) 119.
10 See generally Zeffertt, Paizes & Skeen 228; May Criminal Evidence 3 ed (1995) 119.
Footnote - 11
11 R v Rowton supra.
11 R v Rowton supra.
Footnote - 12
12 See generally Zeffertt, Paizes & Skeen 229-331.
12 See generally Zeffertt, Paizes & Skeen 229-331.
Footnote - 13
13 R v Paluszak 1938 TPD 427; R v Butterwasser 1948 1 KB 4, 1947 2 All ER 415.
13 R v Paluszak 1938 TPD 427; R v Butterwasser 1948 1 KB 4, 1947 2 All ER 415.
Footnote - 14
14 Supra.
14 Supra.
Footnote - 15
15 At 7.
15 At 7.
Footnote - 16
16 R v Rowton supra. See § 6.1 above.
16 R v Rowton supra. See § 6.1 above.
Footnote - 17
17 Section 197(a).
17 Section 197(a).
Footnote - 18
18 Section 197(a).
18 Section 197(a).
Footnote - 19
19 Section 197(b).
19 Section 197(b).
Footnote - 20
20 LAWSA para 491. See May Criminal Evidence 3 ed (1995) 134, where it is noted that "[i]t is a
question of judgment and ultimately of discretion for the judge to say what evidence amounts to the
establishment of good character". See also R v Malindi1966 (4) SA 123 (PC).
20 LAWSA para 491. See May Criminal Evidence 3 ed (1995) 134, where it is noted that "[i]t
is a question of judgment and ultimately of discretion for the judge to say what evidence
amounts to the establishment of good character". See also R v Malindi1966 (4) SA 123 (PC).
Footnote - 21
21 1944 AC 315 326-7.
21 1944 AC 315 326-7.
Footnote - 22
22 See May Criminal Evidence 3 ed (1995) 139. Where an accused is unrepresented the presiding
officer should warn the accused of the dangers of exposing himself to cross-examination as to
character. Where a legal representative appears on behalf of more than one accused and attacks the
character of a prosecution witness, he should indicate in advance on behalf of which accused he is
making the attack. Failure to do so may result in the shield being lifted in respect of all the accused
defended by the legal representative. See R v Heyne (2) 1958 (1) SA 612 (W).
22 See May Criminal Evidence 3 ed (1995) 139. Where an accused is unrepresented the
presiding officer should warn the accused of the dangers of exposing himself to cross-
examination as to character. Where a legal representative appears on behalf of more than one
accused and attacks the character of a prosecution witness, he should indicate in advance on
behalf of which accused he is making the attack. Failure to do so may result in the shield being
lifted in respect of all the accused defended by the legal representative. See R v Heyne (2)
1958 (1) SA 612 (W).
Footnote - 23
23 R v Beecham 1921 3 KB 464; May Criminal Evidence 3 ed (1995) 135; LAWSA para 491. See
also Schoultz v Voorsitter, Personeel-Advieskomitee van die Munisipale Raad van George1983 (4) SA
689 (C).
23 R v Beecham 1921 3 KB 464; May Criminal Evidence 3 ed (1995) 135; LAWSA para 491.
See also Schoultz v Voorsitter, Personeel-Advieskomitee van die Munisipale Raad van
George1983 (4) SA 689 (C).
Footnote - 24
24 Selvey v DPP 1970 AC 304.
24 Selvey v DPP 1970 AC 304.
Footnote - 25
25 This rule is subject to an exception in the case of rape. The Law Commission of England and
Wales in its report Evidence of Bad Character in Criminal Proceedings, report no 273, Oct 2001 paras
4 34-4 43, 12 5 and 12 13, has sought or remove this dilemma which requires an accused to choose
"between putting forward his defence at the expense of exposing his character, or not putting it
forward at all" (Mirfield "Bad Character and the Law Commission" 2002 (6) International Journal of
Evidence & Proof 141 at 154). See also Redmayne "The Law Commission's Character Convictions"
2002 (6) International Journal of Evidence & Proof 71.
25 This rule is subject to an exception in the case of rape. The Law Commission of England
and Wales in its report Evidence of Bad Character in Criminal Proceedings, report no 273, Oct
2001 paras 4 34-4 43, 12 5 and 12 13, has sought or remove this dilemma which requires an
accused to choose "between putting forward his defence at the expense of exposing his
character, or not putting it forward at all" (Mirfield "Bad Character and the Law Commission"
2002 (6) International Journal of Evidence & Proof 141 at 154). See also Redmayne "The Law
Commission's Character Convictions" 2002 (6) International Journal of Evidence & Proof 71.
Footnote - 26
26 May Criminal Evidence 3 ed (1995) 139.
26 May Criminal Evidence 3 ed (1995) 139.
Footnote - 27
27 See R v Hendrickz 1933 TPD 451; Spencer v R 1946 NPD 696; R v Persutam 1934 TPD 253; S
v V1962 (3) SA 365 (E). Section 197 replicates the provisions of s 1(f) of the English Criminal
Evidence Act 1898. The incorporation of these provisions in a South African statute allows the South
African courts to depart from English interpretation. See Paizes in Du Toit et al Commentary 23-32.
See also Zeffertt, Paizes & Skeen 241, who argue that the approach of the South African courts is to
be favoured. The Zimbabwean courts follow the South African approach. See Jesse v Pratt NO 2001
8 BCLR 814 (Z) 814A-B.
27 See R v Hendrickz 1933 TPD 451; Spencer v R 1946 NPD 696; R v Persutam 1934 TPD
253; S v V1962 (3) SA 365 (E). Section 197 replicates the provisions of s 1(f) of the English
Criminal Evidence Act 1898. The incorporation of these provisions in a South African statute
allows the South African courts to depart from English interpretation. See Paizes in Du Toit et
al Commentary 23-32. See also Zeffertt, Paizes & Skeen 241, who argue that the approach of
the South African courts is to be favoured. The Zimbabwean courts follow the South African
approach. See Jesse v Pratt NO 2001 8 BCLR 814 (Z) 814A-B.
Footnote - 28
28 S v Dlamini2008 (1) SACR 501 (N).
28 S v Dlamini2008 (1) SACR 501 (N).
Footnote - 29
29 1965 AC 574.
29 1965 AC 574.
Footnote - 30
30 At 592.
30 At 592.
Footnote - 31
31 Murdoch v Taylor supra 591.
31 Murdoch v Taylor supra 591.
Footnote - 32
Footnote - 33
33 1988 (3) SA 190 (A) 197.
33 1988 (3) SA 190 (A) 197.
Footnote - 34
34 2002 (1) SACR 330 (C) 334i. In this case the court endorsed the view expressed by Paizes in Du
Toit et al Commentary at 23-32A.
34 2002 (1) SACR 330 (C) 334i. In this case the court endorsed the view expressed by Paizes
in Du Toit et al Commentary at 23-32A.
Footnote - 35
35 See also Zeffertt, Paizes & Skeen 243.
35 See also Zeffertt, Paizes & Skeen 243.
Footnote - 36
36 At 243.
36 At 243.
Footnote - 37
37 S v Mokoena1967 (1) SA 440 (A); S v Mavuso1987 (3) SA 499 (A).
37 S v Mokoena1967 (1) SA 440 (A); S v Mavuso1987 (3) SA 499 (A).
Footnote - 38
38 See ch 7 below, where this rule is discussed fully. See also Zeffertt, Paizes & Skeen 237; S v
Mavuso1987 (3) SA 499 (A) discussed in § 7.7 below; S v January1995 (1) SACR 202 (O).
38 See ch 7 below, where this rule is discussed fully. See also Zeffertt, Paizes & Skeen 237;
S v Mavuso1987 (3) SA 499 (A) discussed in § 7.7 below; S v January1995 (1) SACR 202 (O).
Footnote - 39
39 See ch 7 below.
39 See ch 7 below.
Footnote - 40
40 Section 211 is not only subject to s 252 but must also be read together with ss 197, 240, 241,
and 271-273 of the CPA.
40 Section 211 is not only subject to s 252 but must also be read together with ss 197, 240,
241, and 271-273 of the CPA.
Footnote - 41
41 See R v Bosch1949 (1) SA 548 (A); S v Malinga1962 (3) SA 174 (D).
41 See R v Bosch1949 (1) SA 548 (A); S v Malinga1962 (3) SA 174 (D).
Footnote - 42
42 S v Malinga supra.
42 S v Malinga supra.
Footnote - 43
43 1988 (1) SA 145 (A).

43 1988 (1) SA 145 (A).
Footnote - 44
44 At 150G.
44 At 150G.
Footnote - 45
45 S v Hlongwa1979 (4) SA 112 (D). See further s 60(5)(d), (e) and (g) of the CPA. Bail
proceedings are only considered criminal proceedings for purposes of ss 20 and 21 of the Supreme
Court Act 59 of 1959. See S v Botha2002 (1) SACR 222 (SCA).
45 S v Hlongwa1979 (4) SA 112 (D). See further s 60(5)(d), (e) and (g) of the CPA. Bail
proceedings are only considered criminal proceedings for purposes of ss 20 and 21 of the
Supreme Court Act 59 of 1959. See S v Botha2002 (1) SACR 222 (SCA).
Footnote - 46
46 2000 (2) SACR 325 (N) 329h. See also S v Thusi 2000 4 BCLR 433 (N).
46 2000 (2) SACR 325 (N) 329h. See also S v Thusi 2000 4 BCLR 433 (N).
Footnote - 47
47 This is unavoidable as s 60(11B)(a) provides that: "In bail proceedings the accused, or his or
her legal adviser, is compelled to inform the court whether — (i) the accused has previously been
convicted of any offence; and (ii) there are any charges pending against him or her and whether he
or she has been released on bail in respect of those charges."
47 This is unavoidable as s 60(11B)(a) provides that: "In bail proceedings the accused, or his
or her legal adviser, is compelled to inform the court whether — (i) the accused has previously
been convicted of any offence; and (ii) there are any charges pending against him or her and
whether he or she has been released on bail in respect of those charges."
Footnote - 48
48 Section 271 of the CPA.
Footnote - 49
49 R v Moore1948 (2) SA 227 (C). Cf S v Dlamini2008 (1) SACR 501 (N).
49 R v Moore1948 (2) SA 227 (C). Cf S v Dlamini2008 (1) SACR 501 (N).
Footnote - 50
50 See May Criminal Evidence 3 ed (1995) 155.
50 See May Criminal Evidence 3 ed (1995) 155.
Footnote - 51
51 1984 (2) SA 105 (T). See also Skeen 1984 SALJ 432.
51 1984 (2) SA 105 (T). See also Skeen 1984 SALJ 432.
Footnote - 52
Footnote - 53
53 R v Wood 1951 2 All ER 112.
53 R v Wood 1951 2 All ER 112.
Footnote - 54
54 See generally Zeffertt, Paizes & Skeen 244.
Footnote - 55
55 See generally Skeen 1990 SACJ 77.
55 See generally Skeen 1990 SACJ 77.
Footnote - 56
56 R v Riley 1887 18 QBD 481. As this type of evidence was always considered relevant to the
issue, evidence could be adduced to contradict a denial.
56 R v Riley 1887 18 QBD 481. As this type of evidence was always considered relevant to
the issue, evidence could be adduced to contradict a denial.
Footnote - 57
57 R v Adamstein 1937 CPD 331.
57 R v Adamstein 1937 CPD 331.
Footnote - 58
58 R v Cockcroft 1870 11 Cox CC 410; R v Cargill 1913 2 KB 271.
58 R v Cockcroft 1870 11 Cox CC 410; R v Cargill 1913 2 KB 271.
Footnote - 59
59 South African Law Commission Report on Women and Sexual Offences (1985) 42. See Temkin
Rape and the Legal Process (1987) 120; Heilbron Committee (1975) para 89.
59 South African Law Commission Report on Women and Sexual Offences (1985) 42. See
Temkin Rape and the Legal Process (1987) 120; Heilbron Committee (1975) para 89.
Footnote - 60
60 South African Law Commission Report on Women and Sexual Offences (1985) 43. It was noted
by the Heilbron Committee para 131 that "[i]n contemporary society sexual relationships outside
marriage, both steady and of a more casual character, are fairly widespread, and it seems now to be
agreed that a woman's sexual experiences with partners of her own choice are neither indicative of
untruthfulness nor of a general willingness to consent".
60 South African Law Commission Report on Women and Sexual Offences (1985) 43. It was
noted by the Heilbron Committee para 131 that "[i]n contemporary society sexual relationships
outside marriage, both steady and of a more casual character, are fairly widespread, and it
seems now to be agreed that a woman's sexual experiences with partners of her own choice
are neither indicative of untruthfulness nor of a general willingness to consent".
Footnote - 61
61 South African Law Commission Report on Women and Sexual Offences (1985) 49. Temkin Rape
and the Legal Process (1987) 120.
61 South African Law Commission Report on Women and Sexual Offences (1985) 49. Temkin
Rape and the Legal Process (1987) 120.
Footnote - 62
62 Project 45 Report on Women and Sexual Offences (1985).
62 Project 45 Report on Women and Sexual Offences (1985).
Footnote - 63
63 At 48. For a comparative perspective on sexual history evidence, see Illsley 2002 SACJ 225.
63 At 48. For a comparative perspective on sexual history evidence, see Illsley 2002 SACJ
225.
Footnote - 64
64 By s 2 of the Criminal Law and Criminal Procedure Act Amendment Act 39 of 1989.
64 By s 2 of the Criminal Law and Criminal Procedure Act Amendment Act 39 of 1989.
Footnote - 65
65 For a thorough discussion of the problems arising from the application of s 227 see South
African Law Commission, Discussion Paper 102, Project 107 Sexual Offences: Process and Procedure
(2002) 485-503. See generally Schwikkard "A Critical Overview of the Rules of Evidence Relevant to
Rape Trials in South African Law" in Jagwanth et al (eds) Women and the Law (1994) 198. Cf Skeen
1990 SACJ 77.
65 For a thorough discussion of the problems arising from the application of s 227 see South
African Law Commission, Discussion Paper 102, Project 107 Sexual Offences: Process and
Procedure (2002) 485-503. See generally Schwikkard "A Critical Overview of the Rules of
Evidence Relevant to Rape Trials in South African Law" in Jagwanth et al (eds) Women and the
Law (1994) 198. Cf Skeen 1990 SACJ 77.
Footnote - 66
66 Temkin "Sexual History Evidence" 1993 Crim LR 3 identifies one of the major problems
underlying the relevance test, namely that relevance is an insufficiently objective criterion. She
refers to the following apt description by L'Heureux-Dube J in R v Seaboyer; R v Gayme 83 DLR
(4th) 193: "Regardless of the definition used, the content of any relevancy decision will be filled by
the particular judge's experience, common sense and/or logic … There are certain areas of enquiry
where experience, common sense and logic are informed by stereotype and myth … This area of the
law [sexual history evidence] has been particularly prone to the utilization of stereotypes in
determinations of relevance."
66 Temkin "Sexual History Evidence" 1993 Crim LR 3 identifies one of the major problems
underlying the relevance test, namely that relevance is an insufficiently objective criterion. She
refers to the following apt description by L'Heureux-Dube J in R v Seaboyer; R v Gayme 83
DLR (4th) 193: "Regardless of the definition used, the content of any relevancy decision will be
filled by the particular judge's experience, common sense and/or logic … There are certain
areas of enquiry where experience, common sense and logic are informed by stereotype and
myth … This area of the law [sexual history evidence] has been particularly prone to the
utilization of stereotypes in determinations of relevance."
Footnote - 67
67 Supra [17].
67 Supra [17].
Footnote - 68
68 The court in S v M2002 (2) SACR 411 (SCA) held that prior sexual history evidence admitted in
the absence of a s 227(2) application was wrongly taken and consequently should be regarded as
struck from the record.
68 The court in S v M2002 (2) SACR 411 (SCA) held that prior sexual history evidence
admitted in the absence of a s 227(2) application was wrongly taken and consequently should
be regarded as struck from the record.
Footnote - 69
69 Schedule to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007. This Act followed an extensive report by the South African Law Reform Commission: Sexual
Offences Report (Project 107) 2002.
69 Schedule to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007. This Act followed an extensive report by the South African Law Reform Commission:
Sexual Offences Report (Project 107) 2002.
Footnote - 70
70 2006 (2) SACR 191 (W). In Zuma, it was the State that made application to ask the
complainant (its own witness), how long before the incident in question she had last had
intercourse. Permission was granted, and the complainant replied by giving a specific date.
Thereafter the defence made application in terms of the then-existing s 227, to both cross-examine
and lead evidence on her prior sexual history. The court granted the application. It should be noted
that in Zuma the permission granted to the defence was also based on relevance in the sense that
what was sought to be introduced was fundamental to the accused's defence (at 204g-h): "In my
judgment the purpose of the cross-examination and the evidence the defence wanted to lead
concerning the complainant's behaviour in the past was not to show that she misbehaved with other
men. In fact it was aimed at showing misconduct in the sense of falsely accusing men in the past.
The cross-examination and evidence are relevant to the issue of consent in the present matter, the
question of motive and indeed credibility as well. It was not aimed at showing that the complainant
was a woman of questionable morals. It was aimed at the investigation of the real issues in this
matter and was fundamental to the accused's defence."
70 2006 (2) SACR 191 (W). In Zuma, it was the State that made application to ask the
complainant (its own witness), how long before the incident in question she had last had
intercourse. Permission was granted, and the complainant replied by giving a specific date.
Thereafter the defence made application in terms of the then-existing s 227, to both cross-
examine and lead evidence on her prior sexual history. The court granted the application. It
should be noted that in Zuma the permission granted to the defence was also based on
relevance in the sense that what was sought to be introduced was fundamental to the
accused's defence (at 204g-h): "In my judgment the purpose of the cross-examination and the
evidence the defence wanted to lead concerning the complainant's behaviour in the past was
not to show that she misbehaved with other men. In fact it was aimed at showing misconduct
in the sense of falsely accusing men in the past. The cross-examination and evidence are
relevant to the issue of consent in the present matter, the question of motive and indeed
credibility as well. It was not aimed at showing that the complainant was a woman of
questionable morals. It was aimed at the investigation of the real issues in this matter and was
fundamental to the accused's defence."
Footnote - 71
71 S v M1999 (1) SACR 664 (C).
71 S v M1999 (1) SACR 664 (C).
Footnote - 72
72 Section 166(3) of the CPA.
Footnote - 73
73 See generally S v M2002 (2) SACR 411 (SCA).
73 See generally S v M2002 (2) SACR 411 (SCA).
Footnote - 74
74 S v M1999 (1) SACR 664 (C).
74 S v M1999 (1) SACR 664 (C).
Footnote - 75
75 R v Seaboyer [1991] 2 SCR 577. Section 276 of the Canadian Code was consequently amended
and confers a more flexible discretion. English law also contains legislation restricting the admission
of character evidence of complainants and other witnesses but this two confers a relatively wide
discretion on presiding officer (s 100 of the Criminal Justice Act 2003). Similar provisions are
contained in s 258 of the Namibian Criminal Procedure Act 25 of 2004 which is not yet in force, but
the relevant provisions are presently in force as s 227A of the Namibian Criminal Procedure Act
1977.
75 R v Seaboyer [1991] 2 SCR 577. Section 276 of the Canadian Code was consequently
amended and confers a more flexible discretion. English law also contains legislation restricting
the admission of character evidence of complainants and other witnesses but this two confers a
relatively wide discretion on presiding officer (s 100 of the Criminal Justice Act 2003). Similar
provisions are contained in s 258 of the Namibian Criminal Procedure Act 25 of 2004 which is
not yet in force, but the relevant provisions are presently in force as s 227A of the Namibian
Criminal Procedure Act 1977.
Footnote - 76
76 Milton South African Criminal Law and Procedure vol II 3 ed (1996) 492. The exceptions which
apply are not relevant for present purposes.
76 Milton South African Criminal Law and Procedure vol II 3 ed (1996) 492. The exceptions
which apply are not relevant for present purposes.
Footnote - 77
77 See R v Van Tonder 1932 TPD 90.
77 See R v Van Tonder 1932 TPD 90.
Document 53 of 330
6.3 Character in Civil Cases

In civil cases the characters of the parties are generally considered irrelevant. 78
However, in certain specific cases evidence pertaining to the character of a party
will be regarded as relevant either in respect of an issue or in quantifying
damages. 79 For example, an essential element in an action of seduction is the
plaintiff's virginity and evidence which shows that the plaintiff has a permissive
disposition will be regarded as relevant. 80 In a defamation action a party who
fails in her defence may adduce evidence of the plaintiff's general bad reputation
in mitigation of damages. 81 However, the defendant may not refer to specific
acts of misconduct and is restricted to leading evidence of general reputation. 82
Clearly parties as witnesses may be cross-examined as to credit and in certain
circumstances character evidence may be considered relevant to credibility. 83
Evidence of character may also be admitted in terms of the similar fact rule. 84
Footnote - 78
78 Schmidt & Rademeyer 443; Schmidt & Rademeyer (2007) 16-5; LAWSA para 495.
78 Schmidt & Rademeyer 443; Schmidt & Rademeyer (2007) 16-5; LAWSA para 495.
Footnote - 79

Footnote - 80
80 See, eg, Gleeson v Durheim 1869 Buch 244; Van Staden v Rudy 1908 EDC 7.
80 See, eg, Gleeson v Durheim 1869 Buch 244; Van Staden v Rudy 1908 EDC 7.
Footnote - 81
81 See Sengke v Bredenkamp1948 (1) SA 1145 (O); Thole v Minister of Justice1967 (3) SA 531
(D).
81 See Sengke v Bredenkamp1948 (1) SA 1145 (O); Thole v Minister of Justice1967 (3) SA
531 (D).
Footnote - 82
82 Black v Joseph1931 AD 132.
82 Black v Joseph1931 AD 132.
Footnote - 83
83 See ch 25 below for a fuller discussion.
83 See ch 25 below for a fuller discussion.
Footnote - 84
84 See ch 7 below.
84 See ch 7 below.
Document 54 of 330
Chapter 7
Similar Fact Evidence
P J Schwikkard
7.1 Introduction
7.2 The rationale for the exclusion of similar fact evidence
7.3 Formulating the rule for determining the admissibility of similar fact
evidence
7.3.1 The formulation in Makin v Attorney-General of New South Wales
7.3.2 The inadequacies of the Makin formulation
7.3.3 A necessary proviso
7.3.3.1 The nexus requirement
7.3.4 The dangers of categorisation
7.3.5 The formulation in DPP v Boardman
7.4 The requirement of similarity
7.4.1 The test of coincidence
7.4.2 Coincidence and a nexus
7.4.3 The degree of similarity
7.5 The facts in issue
7.6 Other evidence
7.7 Examples of the exclusion of similar fact evidence
7.8 An alternative approach
3rd Ed, 2009 ch7-p70
7.1 Introduction
In the previous chapter it was noted that similar facts are often relevant and
admissible for purposes of proving character (see, for example, §§ 6.2.3.3 and
6.2.4). The present chapter deals with similar fact evidence in a wider context,
but must be read in conjunction with the previous chapter.
In S v M Friedman ACJ said: 1
"Similar fact evidence is evidence which refers to the peculiar or immoral or illegal
conduct of a party on an occasion or occasions other than the incident or occurrence
in contention, but which is also of such a character that it is pertinent to or in
essentials similar to the conduct on the occasion which forms the issue or subject-
matter of the dispute."
Similar facts are therefore facts that are directed at showing that a party to the
proceedings (usually the accused) or a witness in the proceedings (such as a
complainant) 2 has behaved on other occasions in the same way as he is alleged
to have behaved in the circumstances presently being considered by the court.
For example, George is charged with dealing in dagga; the prosecution wants to
introduce evidence showing that he has dealt in dagga on previous occasions.
Jennifer, in trying to dispute the admissibility of a confession made while she was
in
3rd Ed, 2009 ch7-p71
detention, tenders evidence that the police have on other occasions used
improper means of interrogation.
Similar fact evidence is generally inadmissible because it is irrelevant. 3 It will
be admissible only when it is both logically and legally relevant. 4 When it is found
to be sufficiently relevant it may be admitted in both civil 5 and criminal
proceedings. It is most frequently used by the state against the accused;
however, there is nothing prohibiting the accused from seeking to have similar
fact evidence admitted in his or her defence. 6
Footnote - 1
1 1995 (1) SACR 667 (BA) at 684d-e.
1 1995 (1) SACR 667 (BA) at 684d-e.
Footnote - 2
2 S v Wilmot2002 (2) SACR 145 (SCA) and S v Zuma2006 (2) SACR 191 (W).
2 S v Wilmot2002 (2) SACR 145 (SCA) and S v Zuma2006 (2) SACR 191 (W).
Footnote - 3
Footnote - 4
4 S v Jones2004 (1) SACR 420 (C); R v Pharenque1927 AD 57; R v Zawels1937 AD 342; Delew v
Town Council of Springs 1945 TPD 128; Laubscher v National Food Ltd1986 (1) SA 553 (ZS). The
latter case is summarised in § 7.7 below.
4 S v Jones2004 (1) SACR 420 (C); R v Pharenque1927 AD 57; R v Zawels1937 AD 342;

Delew v Town Council of Springs 1945 TPD 128; Laubscher v National Food Ltd1986 (1) SA
553 (ZS). The latter case is summarised in § 7.7 below.
Footnote - 5
5 The same principles of admissibility are applied in both civil and criminal cases. "The courts,
however, are less wary of receiving similar fact evidence in the civil context than they are in the
criminal context": LAWSA para 501. See also Mood Music Publishing Co Ltd v De Wolfe Ltd 1976 1
All ER 763 (CA).
5 The same principles of admissibility are applied in both civil and criminal cases. "The
courts, however, are less wary of receiving similar fact evidence in the civil context than they
are in the criminal context": LAWSA para 501. See also Mood Music Publishing Co Ltd v De
Wolfe Ltd 1976 1 All ER 763 (CA).
Footnote - 6
6 S v Letsoko1964 (4) SA 768 (A); S v Yengeni (2) 1991 (1) SACR 329 (C); S v M1995 (1) SACR
667 (BA). In these three cases it was alleged that the police habitually induced involuntary
confessions. See further S v Zuma supra and S v Wilmot supra.
6 S v Letsoko1964 (4) SA 768 (A); S v Yengeni (2) 1991 (1) SACR 329 (C); S v M1995 (1)
SACR 667 (BA). In these three cases it was alleged that the police habitually induced
involuntary confessions. See further S v Zuma supra and S v Wilmot supra.
Document 55 of 330
7.2 The Rationale for the Exclusion of Similar Fact

Evidence
Similar fact evidence is generally irrelevant because its prejudicial effect
outweighs its probative value (see also s 5 3 5 above). The types of prejudice
emanating from similar fact evidence are numerous and varied. 7 They may
pertain to prejudice to the accused. For example, a jury who is made aware of
the accused's past bad conduct may decide that he deserves to be punished
irrespective of whether he is guilty of the offence charged. Even worse, the jury
may decide that the accused is of such a bad character that he has probably
committed many other crimes without having been detected. A consequence of
this type of reasoning is that the jury may convict even though a reasonable
doubt as to the accused's guilt exists. In non-jury trials like ours this risk is less
pronounced.
The accused may also be prejudiced in that he not only has to defend himself
in respect of the offence charged but he also has to defend past charges of
misconduct. However, in S v M 8 the court, having noted that in criminal trials
one of the main reasons for not allowing the admission of similar fact evidence
was its potential for prejudicing the accused, held that "where … the similar fact
evidence does not go to show guilt on the part of an accused, prejudice is a far
less sensitive issue. Indeed, the Court should be wary of putting obstacles in the
way of an accused who wishes to adduce evidence in support of his or her
legitimate defence".
Similar fact evidence may also result in procedural inconvenience. The accused
is frequently taken by surprise when this type of evidence is introduced. 9 The
investigation
3rd Ed, 2009 ch7-p72
into collateral issues (see § 5.3.3 above) that arises out of the introduction of
similar fact evidence inevitably extends the length of the trial, making the trial
more costly and placing additional demands on judicial resources. 10
If similar fact evidence is admitted too readily, it also has the potential to
undermine the proper administration of justice. An overworked police force,
knowing that a person's past record will be considered by the court, may be
tempted to focus on past offenders. This could result in sloppy investigation
techniques. It may also discourage persons who are genuinely trying to
rehabilitate themselves. In addition it would make it easier for the police to bring
undue pressure to bear on past offenders and in this way induce involuntary
confessions and admissions.
Trial by jury has clearly influenced the formulation of the similar fact rule. In
South Africa the jury system has been abolished. This has led to the questioning
of the applicability of the existing formulation of the similar fact rule (see § 7.8
below).
But when all is said and done, it is the constitutional right to a fair trial that
must control the admissibility of similar fact evidence; and a fair trial is put in
jeopardy if irrelevant similar fact evidence is admitted. 11
Footnote - 7
7 For a full discussion of these prejudicial factors, see Paizes in Visser (ed) Essays in Honour of
Ellison Kahn (1989) 238. See also Tapper "Proof and Prejudice" in Campbell & Waller (eds) Well and
Truly Tried: Essay in Honour of Sir Richard Eggleston (1982) 177; Hoffmann "Similar Facts after
Boardman" 1975 91 Law Quarterly Review 193; Roberts & Zuckerman Criminal Evidence (2004) 505;
Choo Evidence (2006) 195.
7 For a full discussion of these prejudicial factors, see Paizes in Visser (ed) Essays in Honour
of Ellison Kahn (1989) 238. See also Tapper "Proof and Prejudice" in Campbell & Waller (eds)
Well and Truly Tried: Essay in Honour of Sir Richard Eggleston (1982) 177; Hoffmann "Similar
Facts after Boardman" 1975 91 Law Quarterly Review 193; Roberts & Zuckerman Criminal
Evidence (2004) 505; Choo Evidence (2006) 195.
Footnote - 8
8 Supra at 692d-e.
8 Supra at 692d-e.
Footnote - 9
9 In S v Fani1994 (1) SACR 635 (E) 639-40 Jones J remarked, in an obiter dictum, that for there to
be a fair trial as envisaged by the interim Constitution the state should disclose (amongst many other
things) the full particulars of any similar fact or character evidence which it intends to lead.
9 In S v Fani1994 (1) SACR 635 (E) 639-40 Jones J remarked, in an obiter dictum, that for
there to be a fair trial as envisaged by the interim Constitution the state should disclose
(amongst many other things) the full particulars of any similar fact or character evidence which
it intends to lead.
Footnote - 10
10 Delew v Town Council of Springs supra; S v M supra.
10 Delew v Town Council of Springs supra; S v M supra.
Footnote - 11
11 It is therefore not entirely clear what the legislature sought to achieve with the provisions of s
2(2) of the Prevention of Organised Crime Act 121 of 1998 ("POCA"). The relevant portion of s 2(2) of
POCA provides as follows: "The court may hear evidence, including evidence with regard to … similar
facts … relating to offences contemplated in subsection (1), notwithstanding that such evidence might
otherwise be inadmissible, provided that such evidence would not render a trial unfair." Section 2(1)
of POCA creates offences relating to racketeering activities. Given the nature of these offences,
similar fact evidence may very well often be relevant and admissible. But if irrelevant (and therefore
"otherwise inadmissible"), it is hard to imagine that it could be admitted without rendering the trial
unfair.
11 It is therefore not entirely clear what the legislature sought to achieve with the provisions
of s 2(2) of the Prevention of Organised Crime Act 121 of 1998 ("POCA"). The relevant portion
of s 2(2) of POCA provides as follows: "The court may hear evidence, including evidence with
regard to … similar facts … relating to offences contemplated in subsection (1), notwithstanding
that such evidence might otherwise be inadmissible, provided that such evidence would not
render a trial unfair." Section 2(1) of POCA creates offences relating to racketeering activities.
Given the nature of these offences, similar fact evidence may very well often be relevant and
admissible. But if irrelevant (and therefore "otherwise inadmissible"), it is hard to imagine that
it could be admitted without rendering the trial unfair.
Document 56 of 330
7.3 Formulating the Rule for Determining the

Admissibility of Similar Fact Evidence
The many prejudicial factors associated with similar fact evidence have made the
formulation of a workable general rule for determining the admissibility of similar
fact evidence extremely difficult.
7.3.1 The formulation in Makin v Attorney-General for New South

Wales
Probably the most influential formulation is to be found in Lord Herschell's dictum
in Makin v Attorney-General for New South Wales: 12
"It is undoubtedly not competent for the prosecution to adduce evidence tending to
show that the accused has been guilty of criminal acts other than those covered by
the indictment, for the purpose of leading to the conclusion that the accused is a
person likely from his criminal conduct or character to have committed the offence
for which he is being tried. On the other hand, the mere fact that the evidence
adduced tends to show the commission of other crimes does not render it
inadmissible if it be relevant to an issue before the jury, and it may be so relevant if
it bears upon the question whether the acts alleged to constitute the crime charged
in the indictment were designed or accidental, or to rebut a defence which would
otherwise be open to the accused."
In this case a husband and wife were charged with the murder of a young child.
They had "fostered" this child in return for a sum of money that was insufficient
3rd Ed, 2009 ch7-p73
for its maintenance. The child's body had been found buried in the garden of the
house occupied by them. These facts were consistent both with the allegation
that the child was murdered for the purpose of gaining the maintenance money
and the defence that the child had died from natural causes accompanied by an
irregular burial. However, the prosecution also adduced evidence that skeletal
remains of other babies had been found in the gardens of homes previously
occupied by the accused, and that four other women had given their babies over
to the accused, having paid them an inadequate amount for maintenance, and
that these babies had also vanished. The Privy Council found that this evidence
had been correctly admitted to negative the possibility that the child's death
resulted from accident or natural causes. It was not admitted to show that the
accused had a propensity to kill babies and that they were therefore guilty of the
crime charged.
In explanation of Lord Herschell's dictum it has been held that the admissibility
of similar fact evidence can be determined in accordance with which one of two
chains of reasoning is employed. The evidence will be excluded if the court is
asked to conclude that the accused is guilty because he has a propensity to act in
a particular way. It will be admitted "if there is some relevant, probative purpose
for it other than for the prohibited form of reasoning … but when it is received,
the trier of fact must eschew the forbidden reasoning". 13 In terms of this
formulation similar fact evidence may not be admitted if it is used only to
establish propensity.
7.3.2 The inadequacies of the Makin formulation

The Makin formulation is inadequate in that it fails to explain several cases. 14 It
is apparent that in a significant number of cases "propensity itself is so highly
relevant to the issue in a particular case, that evidence of propensity itself is
admitted". 15 An example of this is to be found in the case of R v Straffen. 16 The
accused was charged with murdering a young girl (L). The prosecution tendered
evidence relating to two other young girls. All three girls had been strangled,
without having been sexually interfered with. In all three cases there was no
apparent motive for the crime and no evidence of a struggle. Furthermore, there
was no attempt to hide the bodies, although concealment was relatively easy.
Straffen had at an earlier date been charged with the murder of the other two
girls, but was found unfit to plead on the ground of insanity and committed to an
institution. He escaped from the institution and he was seen near the place where
L's body was found. During the very brief period of his escape L was murdered.
There was further evidence that he had admitted to killing the two other girls.
The evidence was admitted on the ground that it was relevant to identity.
However, it is difficult to argue that the probative value of the evidence was not
based on propensity, "since it established that the accused possessed a
propensity of the most unusual kind: he was a strangler of
3rd Ed, 2009 ch7-p74
small girls, in peculiar circumstances, and for no apparent motive". 17 It was this
peculiar propensity that was highly relevant to an issue, namely the identity of
the killer, which made the evidence admissible. 18
7.3.3 A necessary proviso

It is because of the difficulties outlined above that Zeffertt, Paizes & Skeen assert
that the Makin formulation can only be used as a basis for explaining the case law
if the following proviso is added to it: "[I]n some cases, evidence which proves
disposition will be admissible if, on the facts of the case, it is a disposition which
is highly relevant to an issue in it". 19 They contend that, as a consequence of the
inadequacies of the Makin formulation, the courts have tended to prefer to cite
the proposition of Lawrence J in R v Bond: 20 "In proximity of time, in method or
in circumstances there must be a nexus between the two sets of facts, otherwise
no inference can be safely induced therefrom."
7.3.3.1 The nexus requirement

In terms of the "nexus requirement" there must be a link between the fact in
issue (the probandum) and the similar fact (the probans). This is explained by
Stephen as follows: "You are not to draw inferences from one transaction to
another which is not specifically connected with it merely because the two
resemble each other. They must be linked together by the chain of cause and
effect in some assignable way before you can draw your inference." 21
It has been suggested that the "nexus requirement" is merely another way of
stating that the evidence must be relevant. 22 In this context the requirement of
relevance demands that the evidence "must have probative value in the sense
that it can give rise to reasonable inferences in deciding the facts in issue". 23
7.3.4 The dangers of categorisation

An unfortunate consequence of the Makin formulation is that it has been
interpreted by many lawyers as establishing rigid categories in which similar fact
evidence will be regarded as relevant. An example of this approach is to be seen
in the statement in Green that "[t]he usual ambit of the admission of 'similar fact'
evidence is to prove identity, intent, guilty
3rd Ed, 2009 ch7-p75
knowledge, or, as often in sexual cases, to rebut a defence of innocent

association and the like." 24
Zeffertt, Paizes & Skeen highlight the dangers of such an approach: 25
"The danger of categorizing instances of admissibility is that it may lead to casuistry,
to insoluble metaphysical problems as to the confines of the categories, and to the
error of thinking that, because evidence slots into a category, it will be admissible."
The "categorisation approach" was rejected in Harris v DPP. 26
7.3.5 The formulation in DPP v Boardman

In DPP v Boardman the court stressed that it was the application of principle that
was of prime importance, 28 the principle being that similar fact evidence is
admissible only where its probative value exceeds it prejudicial effect. 29 This
formulation was accepted by the Appellate Division in S v D. 30 The Makin rule
was not rejected in Boardman — rather it was applauded. 31 Therefore Boardman
must simply be read as revealing the underlying principle in Makin. 32 Any doubt
as to the endorsement of principle in Boardman was swept away by the House of
Lord in DPP v P in which the court held:
"[T]he essential feature of evidence which is to be admitted is that its probative
force in support of the allegation that an accused person committed a crime is
sufficiently great to make it just to admit the evidence, notwithstanding that it is
prejudicial to the accused in tending to show that he was guilty of another crime …
Once the principle is recognized, that what has to be assessed is the probative force
of the evidence in question, the infinite variety of circumstances in which the
question arises, demonstrates that there is no single manner in which this can be
achieved. Whether the evidence has sufficient probative value to outweigh its
prejudicial effect must in each case be a question of degree."
3rd Ed, 2009 ch7-p76
Footnote - 12
12 1894 AC 57 (PC) 65.
12 1894 AC 57 (PC) 65.
Footnote - 13
13 LAWSA para 496. See also S v Moti1998 (2) SACR 245 (SCA).
13 LAWSA para 496. See also S v Moti1998 (2) SACR 245 (SCA).
Footnote - 14
14 See R v Ball 1911 AC 47 (HL); Thompson v R 1918 AC 221 (HL); R v Straffen 1952 2 QB 911.
Paizes Essays in Honour of Ellison Kahn 241. See also Keane The Modern Law of Evidence 4 ed
(1996) 417; Roberts & Zuckerman Criminal Evidence 519 et seq.
14 See R v Ball 1911 AC 47 (HL); Thompson v R 1918 AC 221 (HL); R v Straffen 1952 2 QB
911. Paizes Essays in Honour of Ellison Kahn 241. See also Keane The Modern Law of Evidence
4 ed (1996) 417; Roberts & Zuckerman Criminal Evidence 519 et seq.
Footnote - 15
Footnote - 16
16 Supra.
16 Supra.
Footnote - 17
17 Williams 1979 5 Dalhousie LJ 281. For a case where a peculiar technique (as opposed to a
peculiar propensity) was found relevant in linking the accused to the crime, see R v Frederick JS
56/38 (SWA) as summarised and quoted by Engelbrecht et al Vonnisbundel vir die Bewysreg (1983)
206.
17 Williams 1979 5 Dalhousie LJ 281. For a case where a peculiar technique (as opposed to a
peculiar propensity) was found relevant in linking the accused to the crime, see R v Frederick
JS 56/38 (SWA) as summarised and quoted by Engelbrecht et al Vonnisbundel vir die Bewysreg
(1983) 206.
Footnote - 18
18 Similarly in S v Moti1998 (2) SACR 245 (SCA) the court held that the evidence of a common
modus operandi and the appellant's direct involvement in similar cases of robbery was relevant in
that it corroborated evidence identifying the appellant. Nienaber JA held that although the similar
fact evidence was admissible for identification purposes it could not be used to sustain an inference
that the appellant participated in the robbery.
18 Similarly in S v Moti1998 (2) SACR 245 (SCA) the court held that the evidence of a
common modus operandi and the appellant's direct involvement in similar cases of robbery was
relevant in that it corroborated evidence identifying the appellant. Nienaber JA held that
although the similar fact evidence was admissible for identification purposes it could not be
used to sustain an inference that the appellant participated in the robbery.
Footnote - 19
19 At 258. See also Uglow Evidence: Text and Materials (1997) 433.
19 At 258. See also Uglow Evidence: Text and Materials (1997) 433.
Footnote - 20
20 1906 2 KB 389 at 424. See S v Green1962 (3) SA 886 (A) 894; S v Letsoko1964 (4) SA 768
(A) 775; Jones v S 1970 2 PH H129 (A); S v Naryan1998 (2) SACR 345 (W); Zeffertt, Paizes &
Skeen 258.
20 1906 2 KB 389 at 424. See S v Green1962 (3) SA 886 (A) 894; S v Letsoko1964 (4) SA
768 (A) 775; Jones v S 1970 2 PH H129 (A); S v Naryan1998 (2) SACR 345 (W); Zeffertt,
Paizes & Skeen 258.
Footnote - 21
21 Digest of the Law of Evidence (1914) note VI: articles 10, 11 & 12.
21 Digest of the Law of Evidence (1914) note VI: articles 10, 11 & 12.
Footnote - 22
22 Van der Merwe (ed) Evidence (1983) 71.
22 Van der Merwe (ed) Evidence (1983) 71.
Footnote - 23
23 Van der Merwe (ed) Evidence 71. See S v Green supra; S v Letsoko supra; S v M supra.
23 Van der Merwe (ed) Evidence 71. See S v Green supra; S v Letsoko supra; S v M supra.
Footnote - 24
24 Supra 894.
24 Supra 894.
Footnote - 25
25 At 257. See also Uglow Evidence: Text and Materials 437.
25 At 257. See also Uglow Evidence: Text and Materials 437.
Footnote - 26
26 1952 AC 694. Cf R v Katz1946 AD 71; S v M supra. Although condemning the "categorisation

approach", most evidence texts use them to group and analyse the plethora of similar facts cases.
See, eg, Zeffertt, Paizes & Skeen 270 et seq; Van der Merwe (ed) Evidence 77-81. The following list
of categories is most frequently enumerated: acts part of the transaction or res gestae, presence at
a place, possession of a weapon etc, previous course of dealing, motive, sexual passion, acts of
preparation, knowledge, intent, design or system, accident or mistake, identity, innocent
association, innocent possession, proving the actus reus. See also Schmidt & Rademeyer 421-34 as
well as Schmidt & Rademeyer (2007) 15-10 to 15-20.
26 1952 AC 694. Cf R v Katz1946 AD 71; S v M supra. Although condemning the

"categorisation approach", most evidence texts use them to group and analyse the plethora of
similar facts cases. See, eg, Zeffertt, Paizes & Skeen 270 et seq; Van der Merwe (ed) Evidence
77-81. The following list of categories is most frequently enumerated: acts part of the
transaction or res gestae, presence at a place, possession of a weapon etc, previous course of
dealing, motive, sexual passion, acts of preparation, knowledge, intent, design or system,
accident or mistake, identity, innocent association, innocent possession, proving the actus
reus. See also Schmidt & Rademeyer 421-34 as well as Schmidt & Rademeyer (2007) 15-10 to
15-20.
Footnote - 27
27 1975 AC 421.
27 1975 AC 421.
Footnote - 28
28 At 439.
28 At 439.
Footnote - 29
29 At 442, 451 and 456-7. Zeffertt, Paizes & Skeen 259 assert that Boardman clearly
demonstrates that in similar fact cases it is the degree of relevance that is important, not the kind of
relevance. See also Paizes Essays in Honour of Ellison Kahn 244. In S v M supra 689c the court held
that "the reception of similar fact evidence has to be justified by it having so strong a probative
value that it should be received in the interests in justice". See also S v Zuma supra.
29 At 442, 451 and 456-7. Zeffertt, Paizes & Skeen 259 assert that Boardman clearly
demonstrates that in similar fact cases it is the degree of relevance that is important, not the
kind of relevance. See also Paizes Essays in Honour of Ellison Kahn 244. In S v M supra 689c
the court held that "the reception of similar fact evidence has to be justified by it having so
strong a probative value that it should be received in the interests in justice". See also S v
Zuma supra.
Footnote - 30
30 1991 (2) SACR 543 (A) 543, where the court held that "the admission of similar fact evidence is
exceptional and requires a strong degree of probative force". See also R v Roets1954 (3) SA 512
(A); Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC); S v Winnaar1997 (2) SACR
352 (O); S v Wilmot2001 (1) SACR 362 (E).
30 1991 (2) SACR 543 (A) 543, where the court held that "the admission of similar fact
evidence is exceptional and requires a strong degree of probative force". See also R v
Roets1954 (3) SA 512 (A); Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC);
S v Winnaar1997 (2) SACR 352 (O); S v Wilmot2001 (1) SACR 362 (E).
Footnote - 31
31 At 438, 450, 461.
31 At 438, 450, 461.
Footnote - 32
32 Paizes Essays in Honour of Ellison Kahn 244 queries whether the Boardman approach embodies
a legal rule or the exercise of judicial discretion. See Zeffertt, Paizes & Skeen 262-263 for a critique
of the application of judicial discretion and similar fact evidence.
32 Paizes Essays in Honour of Ellison Kahn 244 queries whether the Boardman approach
embodies a legal rule or the exercise of judicial discretion. See Zeffertt, Paizes & Skeen 262-
263 for a critique of the application of judicial discretion and similar fact evidence.
Footnote - 33
33 [1991] 2 AC 447 HL 460-1.
33 [1991] 2 AC 447 HL 460-1.
Document 57 of 330
7.4 The Requirement of Similarity

The probative value of similar fact evidence will to a large extent be determined
by the degree of similarity between a person's conduct on other occasions and on
the occasion which is the subject of the court's inquiry. 34
Lord Wilberforce 35 expressed the requirement of similarity in the following
terms: 36
"The basic principle must be that the admission of similar fact evidence (of the kind
now in question) is exceptional and requires a strong degree of probative force. This
probative force is derived, if at all, from the circumstances that the facts testified to
by the several witnesses bear to each other such a striking similarity that they must,
when judged by experience and common sense, either all be true, or have arisen
from a cause common to the witnesses or from pure coincidence. The jury may
therefore properly be asked to judge whether the right conclusion is that all are true,
so that each story is supported by the other(s)."
Zeffertt, Paizes & Skeen assert that "[t]he relevance of similar fact evidence
depends upon the argument that the same conditions are likely to produce the
same results". 37 In Laubscher v National Food Ltd Reynolds J held that "before
similar fact evidence [can] be admitted, the similarity of conditions applicable in
each case has to be satisfactorily established". However, the requirement of
similarity should not be unduly emphasised.
7.4.1 The test of coincidence

McEwan maintains that a mistake commonly made since Boardman is to assume
that evidence of previous misconduct by the accused will have the requisite
probative value only when the other incidents are "uniquely strikingly similar". 39
She says it is preferable to see the test in terms of "whether the evidence can be
explained away as coincidence". 40
Several examples from case law support this argument. In R v Bond the
accused, a medical practitioner, was convicted of unlawfully using instruments
upon a woman (J) with the intent to procure an abortion. The trial judge admitted
the evidence of another woman (T) to the effect that the accused had performed
a similar operation on her with similar intent some nine months previously. In the
course of her examination in chief, T further testified that the accused had
subsequently told her that he had "put dozens of girls right". Both women had at
the material times been living at the accused's house and were pregnant by him.
The defence was that instruments had been used on J in the course of a lawful
medical examination, that the abortion was accidental, and there had been no
intent. Why was this evidence admissible? There was no striking similarity
between the other unlawful abortions performed by the accused. However, the
evidence
3rd Ed, 2009 ch7-p77
was significant in that it made the defence of accident implausible when raised by
a man with apparent expertise in abortion.
In Boardman the appellant, the headmaster of a boarding school for boys, was
charged with, inter alia, committing certain homosexual offences on S, a pupil
aged 16, and with inciting H, a pupil aged 17, to commit such offences. There
was no application for a separation of trials. The jury therefore heard the
evidence of both S and H, who each testified only to incidents in which they
themselves were concerned. The judge ruled and directed the jury that the
evidence of S on the count concerning him was admissible as corroborative
evidence and vice versa. In doing so, the judge drew attention to certain common
features in the evidence of the two boys that justified cross-admissibility under
the Makin rule. In particular, both boys said that Boardman had tried to instigate
sexual acts in which Boardman would play the passive role. The judge apparently
took judicial notice (see generally § 27.1 below) of the fact that this was a very
unusual form of homosexual behaviour.
Despite the questionable judicial notice of what constituted unusual
homosexual behaviour, there was no striking similarity between the two
incidents. But the fact that both boys alleged that D wished to take the passive
role, and the unlikelihood of them both constructing exactly the same lie, was
sufficient to suggest that the resemblance between the two incidents went
beyond coincidence. 42
7.4.2 Coincidence and a nexus

Another way of approaching the coincidence test is to say that the nexus referred
to in Bond can be found in the extreme unlikelihood of coincidence. 43 Take, for
example, the case of R v Smith. 44 In this case the appellant was charged with
the murder of a woman with whom he had recently gone through a bigamous
marriage ceremony. She had been found dead in her bath. The accused, who
stood to benefit financially from her death, had sought to show that it resulted
from an epileptic fit. At the trial evidence was given that two other women had
died on subsequent dates, that the appellant had gone through a form of
marriage with each of these women, and that both had died in their baths in
circumstances very similar to those surrounding the death of the victim in the
instance case. In each case the accused again stood to benefit financially by the
woman's death. On appeal the court held that the evidence had been correctly
admitted in that it was sufficiently relevant to rebut the accused's defence. The
court found that the occurrence of so many accidents
3rd Ed, 2009 ch7-p78
which benefited the accused could not reasonable be explained on the basis of
coincidence.
The similar fact argument in Smith can be summarised as follows: "[E]ither all
three deaths were accidental, or else the accused was responsible for each of
them. The improbability of coincidence may therefore often establish the required
link." 45
7.4.3 The degree of similarity

If we apply the coincidence test, it is necessary to consider disputed evidence in
its context. McEwan contends that "this opens the way for unusual propensities
and/or evidence which is not, prima facie, strikingly similar". 46 The
circumstances of each case will determine the necessary degree of similarity. This
can be illustrated by comparing Makin and Boardman. 48 In Makin the similar fact
evidence was required to fulfil a large part of the prosecution's task. In its
absence it was difficult to sustain the contention that the accused were
responsible for the death of their victims. In such cases a high degree of
similarity will be required between the incidents before a sufficient link can be
established. On the other hand, in cases such as Boardman, where there is other
evidence supporting the prosecution case, the degree of similarity required is
much lower. 49
Footnote - 34
34 S v D supra 546; S v M supra.
34 S v D supra 546; S v M supra.
Footnote - 35
35 Boardman supra 444 (AC Reports).
35 Boardman supra 444 (AC Reports).
Footnote - 36
36 See also R v Kalkiwich and Kruger1942 AD 79 at 86-7; S v M1985 (1) SA 1 (A) 4.
36 See also R v Kalkiwich and Kruger1942 AD 79 at 86-7; S v M1985 (1) SA 1 (A) 4.
Footnote - 37
37 At 251.
37 At 251.
Footnote - 38
38 Supra 554. See the discussion of this case in § 7.7 below.
38 Supra 554. See the discussion of this case in § 7.7 below.
Footnote - 39
39 McEwan Evidence and the Adversarial Process: The Modern Law 2 ed (1998) 58.
39 McEwan Evidence and the Adversarial Process: The Modern Law 2 ed (1998) 58.
Footnote - 40
40 McEwan Adversarial Process 59. See R v Mansfield 1978 1 All ER 134; Schwikkard 1995 SACJ
389, where the approach taken by the court in S v M1995 (1) SACR 667 (BA) is criticised.
40 McEwan Adversarial Process 59. See R v Mansfield 1978 1 All ER 134; Schwikkard 1995
SACJ 389, where the approach taken by the court in S v M1995 (1) SACR 667 (BA) is criticised.
Footnote - 41
41 1906 2 KB 389.
41 1906 2 KB 389.
Footnote - 42
42 See McEwan Adversarial Process 58. See also S v R1990 (1) SACR 413 (ZS). Zeffertt, Paizes &
Skeen 285 note that although "[e]vidence which tends to prove guilt on one count is not admissible
on another count merely because they are tried together … [I]f evidence on other counts is
admissible according to the ordinary rules of similar-fact evidence, it may also be used to corroborate
a witness giving evidence on the particular count under consideration". In this regard see: R v
Viljoen1947 (2) SA 56 (A); S v Green1962 (3) SA 886 (A); S v Gokool1965 (3) SA 461 (N); S v
R1977 (1) SA 9 (T); S v Winnaar supra.
42 See McEwan Adversarial Process 58. See also S v R1990 (1) SACR 413 (ZS). Zeffertt,
Paizes & Skeen 285 note that although "[e]vidence which tends to prove guilt on one count is
not admissible on another count merely because they are tried together … [I]f evidence on
other counts is admissible according to the ordinary rules of similar-fact evidence, it may also
be used to corroborate a witness giving evidence on the particular count under consideration".
In this regard see: R v Viljoen1947 (2) SA 56 (A); S v Green1962 (3) SA 886 (A); S v
Gokool1965 (3) SA 461 (N); S v R1977 (1) SA 9 (T); S v Winnaar supra.
Footnote - 43
43 See generally R v Roets1954 (3) SA 512 (A) 521; R v Sims 1946 1 All ER 697; R v
Pharenque1927 AD 57; R v Smith (1915) 11 Cr App Rep 229; S v M1995 (1) SACR 667 (BA).
43 See generally R v Roets1954 (3) SA 512 (A) 521; R v Sims 1946 1 All ER 697; R v
Pharenque1927 AD 57; R v Smith (1915) 11 Cr App Rep 229; S v M1995 (1) SACR 667 (BA).
Footnote - 44
44 Supra.
44 Supra.
Footnote - 45
45 Van der Merwe (ed) Evidence (1983) 72. See also Tapper Cross & Tapper on Evidence 9 ed
(1999) 360: "[I]n Smith the evidence of the other deaths tended to rebut a possible defence of
accident. It was inherently implausible that so many accidents would happen". Emphasis added.
45 Van der Merwe (ed) Evidence (1983) 72. See also Tapper Cross & Tapper on Evidence 9
ed (1999) 360: "[I]n Smith the evidence of the other deaths tended to rebut a possible
defence of accident. It was inherently implausible that so many accidents would happen".
Emphasis added.
Footnote - 46
46 Adversarial Process 60.
46 Adversarial Process 60.
Footnote - 47
47 Supra.
47 Supra.
Footnote - 48
48 Supra.
48 Supra.
Footnote - 49
49 McEwan Adversarial Process 60. See also S v Banana2000 (2) SACR 1 (Z) in which Gubbay J,
approving the approach of Lord Mackay in R v P [1991] 3 All ER 337 (HL) held that in determining the
admissibility of similar fact evidence undue emphasis should not be placed on the requirement of
striking similarity.
49 McEwan Adversarial Process 60. See also S v Banana2000 (2) SACR 1 (Z) in which
Gubbay J, approving the approach of Lord Mackay in R v P [1991] 3 All ER 337 (HL) held that
in determining the admissibility of similar fact evidence undue emphasis should not be placed
on the requirement of striking similarity.
Document 58 of 330
7.5 The Facts in Issue

The relevance of similar fact evidence must be assessed in the light of the issues
to be decided and the other evidence available to the court. 50 It follows that the
admissibility of similar fact evidence also depends on what the issues before the
court are. 51 This in turn makes it necessary to identify the issues. This is not
difficult in civil proceedings, where the issues are established in the pleadings. In
criminal matters the issues are far more difficult to ascertain in that the accused
is entitled to deny every element of the charge or raise whatever defence that is
open to him. 52 This does not mean, however, that the prosecution is given a
licence to introduce similar fact evidence merely on the basis that it might
conceivably be relevant. 53 In Thompson v R Lord Sumner held that the issue
"must have been raised in substance if not in so many words". In many instances
the relevant issues are apparent from the nature of the case and the prosecution
need not wait until
3rd Ed, 2009 ch7-p79
the issue is specifically raised by the accused. Zeffertt, Paizes & Skeen give the
following example: 55
"[I]f the charge against the accused is that he fraudulently obtained goods on credit
without intending to pay for them, it would not be sufficient for the prosecution
merely to prove that he bought goods and did not pay. If this is all that the evidence
disclosed, the accused would be discharged at the end of the prosecution case
without having to raise a defence at all. The prosecution have to adduce positive
evidence that the accused intended to defraud, and to do this they would be entitled
to lead evidence that the accused had made a practice of buying goods in similar
circumstances and not paying for them."
The following example illustrates how the relevance of similar fact evidence can
be negated by an admission made by the accused:
"[I]f someone is charged with committing a crime in Cape Town, the prosecution
could prove that he was there and had an opportunity to commit the offence by
showing that on the same day he robbed a bank there, but if he admitted his
presence in Cape Town, this evidence could have no purpose but prejudice." 56
Footnote - 50
50 McEwan Adversarial Process 45; Tapper Cross and Tapper on Evidence 9 ed (1999) 351. This
approach was given approval by O'Connor J in R v Horwood 1970 1 QB 133.
50 McEwan Adversarial Process 45; Tapper Cross and Tapper on Evidence 9 ed (1999) 351.
This approach was given approval by O'Connor J in R v Horwood 1970 1 QB 133.
Footnote - 51
51 Zeffertt, Paizes & Skeen 263-5; R v Solomons1959 (2) SA 352 (A); S v Winnaar supra; cf R v
Zawels1937 AD 342.
51 Zeffertt, Paizes & Skeen 263-5; R v Solomons1959 (2) SA 352 (A); S v Winnaar supra; cf
R v Zawels1937 AD 342.
Footnote - 52
Footnote - 53
Footnote - 54
54 1918 All ER 521 at 526.
54 1918 All ER 521 at 526.
Footnote - 55
55 Law of Evidence 263.
55 Law of Evidence 263.
Footnote - 56
Document 59 of 330
7.6 Other evidence

"The question must always be whether the similar fact evidence taken together with
the other evidence would do no more than raise or strengthen a suspicion that the
accused committed the offence with which he is charged or would point so strongly
to his guilt that only an ultra-cautious jury would acquit in the face of it." 57
The relevance of similar fact evidence will also be determined by the strength of
the other available evidence. 58 This is well illustrated by the case of R v Ball. 59
The accused, a brother and sister, were convicted of incest committed during
certain periods in 1910. The main prosecution evidence was that the accused,
who held themselves out as married, were seen together at night in a house
which had only one furnished bedroom, containing a double bed showing signs of
occupation by two persons. The brother had been seen coming from the bedroom
in a half-dressed state while the woman was in a nightdress. The similar fact
evidence admitted by Scrutton J was that three years earlier, before incest was
made criminal, the accused had lived together as man and wife sharing a bed,
and that a baby had been born, the accused being registered as its parents. This
similar fact evidence was highly probative, given the circumstances in which they
were presently cohabiting. If the evidence had been that they lived in the same
house but occupied separate bedrooms, the probative value of the evidence
would have been greatly diminished. 60
3rd Ed, 2009 ch7-p80
In S v D the accused had been convicted in a local division of a multiplicity of

crimes, including six counts of rape and one of robbery. He appealed, inter alia,
against one of the rape convictions and the robbery conviction. These alleged
offences had been committed in respect of the same complainant (X). The
complainant had not been able to identify the accused and the trial court had to
rely on circumstantial evidence in reaching its decision to convict. In a confession
the accused had admitted to committing the other crimes with which he was
charged, but not the two forming the subject-matter of the appeal. Evidence was
led that the person who raped X told her to "sleep down". These were the same
words used by the accused in respect of one of the other rape charges for which
he had been convicted. The trial court held that these words were so distinctive
that their probative value was sufficient to justify their admission in order to
establish the accused's identity. However, the appeal court held that these words
on their own did not have sufficient weight to confirm identity, but if they were
taken together with the other striking similarities, they did indeed have the
required probative value. The other rapes were all committed in a particular area
within a period of four months. The robbery and rape of X occurred in the same
area and in the middle of the series of the other crimes. The conduct of the
perpetrator was very similar to that of the accused in respect of the other crimes
for which he had been convicted, namely, all the crimes were committed during
the morning or early afternoon, and the accused would enter the house
surreptitiously and confront the victim. He would first demand money and then
rape the victim. In almost every incident he removed, or asked, for the victim's
watch. When the similarity of this conduct was viewed together with the evidence
that the accused had been found in possession of X's keys, it was held that the
accused had been correctly convicted. The appeal court upheld the trial court's
rejection of the accused's contention that he had coincidentally picked the keys
up in the street: 62
"If, in truth, and without hearing any evidence to that effect, the accused had picked
up those keys, then we are asked to believe that one man who is a rapist has picked
up a bunch of keys abandoned by another rapist. Apart from the fact that the area is
the same area where the accused lives, it is remarkable that, if the keys recovered
by the police were not stolen from the complainant's house by the accused, but by a
man who had raped there, they should come into the possession of another man
who is a proved rapist. We think such a proposition would be stretching the bounds
of coincidence beyond any possible limits."
Despite the appeal court's use of the words "striking similarity", the conduct of
the accused was not of a particular or unique nature. However, the fact that the
accused had committed other crimes in the same area, during the same time
period, and, more importantly, that he was found in possession of the
complainant's keys imbued the similar fact evidence with high probative value
and made the likelihood of coincidence most improbable. 63
3rd Ed, 2009 ch7-p81
Footnote - 57
57 Boardman supra 457.
57 Boardman supra 457.
Footnote - 58
Footnote - 59
59 1911 AC 47 HL.
59 1911 AC 47 HL.
Footnote - 60
60 The Ball case is frequently cited as an example of a case where the accused's propensity was
highly relevant.
60 The Ball case is frequently cited as an example of a case where the accused's propensity
was highly relevant.
Footnote - 61
61 1991 (2) SACR 543 (A).
61 1991 (2) SACR 543 (A).
Footnote - 62
62 At 547.
62 At 547.
Footnote - 63
63 See also S v Naryan1998 (2) SACR 345 (W).
63 See also S v Naryan1998 (2) SACR 345 (W).
Document 60 of 330
7.7 Examples of the Exclusion of Similar Fact Evidence

Laubscher v National Food Ltd: 64 In this case the plaintiff was a pig farmer who
claimed that his pigs had died as a result of eating contaminated foodstuff that he
had bought from the defendant. He wished to adduce evidence that other pig
farmers had similarly lost pigs after they had eaten the defendant's foodstuff. The
court held this evidence irrelevant in that it lacked sufficient similarity. The
evidence did not establish that the foodstuff had been bought during the same
time period that the plaintiff purchased it. Nor did it indicate that the pigs had
become ill within the same time of eating it, or that the conditions on the farms
were similar, or that the animal husbandry practices were similar.
S v Mavuso: 65 The appellant was convicted in a magistrate's court of dealing
in dagga. He appealed on the basis that the magistrate had incorrectly allowed
the prosecution to question him as to a previous conviction on the same charge.
The questioning as to the previous conviction arose in the following
circumstances: the accused's defence was that he did not know that it was dagga
in the bags which he was carrying in a motor vehicle, and under cross-
examination he said that he had never before had anything to do with dagga. The
Appellate Division held that the evidence did not pass the relevance test because
the facts giving rise to the previous conviction were unknown and therefore it
could not be inferred that he knew what dagga smelt like (ie there was
insufficient similarity). Furthermore, the previous conviction was a long time ago
and as the definition of dealing in dagga is so wide, it was not necessary that the
accused had handled the dagga himself. Consequently, the evidence of the
previous conviction was held inadmissible. It therefore could not be established
whether the accused knew that the dagga was in the car. The conviction was set
aside. 66
Footnote - 64
64 Supra. See also Rofdo (Pty) Ltd t/a Castle Crane Hire v B & E Quarried (Pty) Ltd2002 (1) SA
632 (E) at 639.
64 Supra. See also Rofdo (Pty) Ltd t/a Castle Crane Hire v B & E Quarried (Pty) Ltd2002 (1)
SA 632 (E) at 639.
Footnote - 65
65 1987 (3) SA 499 (A).
65 1987 (3) SA 499 (A).
Footnote - 66
66 See also S v January1995 (1) SACR 202 (O).
66 See also S v January1995 (1) SACR 202 (O).
Document 61 of 330
7.8 An Alternative Approach

Paizes 67 argues that the similar fact rule was formulated in accordance with the
characteristics of the jury trial, and that since juries have long been abolished in
South Africa, a consideration of the necessity and desirability of the similar fact
rule is long overdue.
He argues that exclusion is an inappropriate way of dealing with the dangers
inherent in the admission of similar fact evidence. It is absurd to require a judge
to exclude evidence whenever he envisages that its reception might induce him
wrongly to convict the accused: if he is able to perceive this risk, he will be able,
too, to guard against it. Paizes acknowledges that there is always a possibility
that judges may make mistakes, but that such errors are best guarded against by
invoking a cautionary rule. 68
3rd Ed, 2009 ch7-p82

"Such an approach would compel a judge to (i) recognize the dangers of receiving
and relying on similar fact evidence, (ii) acknowledge that he has guarded against
these dangers and (iii) specify precisely what part the similar fact evidence has
played in his line of reasoning and in what way it has contributed to his findings on
both the intermediate and the ultimate issues."
Paizes asserts that the doctrine of stare decisis is not an insurmountable obstacle
to the adoption of such an approach. He argues there are two grounds on which a
departure from Makin can be justified. First, as it is a pre-1952 decision of the
Privy Council, 69
"it is to be regarded as if it were a decision of the Appellate Division itself and, may,
accordingly be rejected by that court as being clearly wrong. Secondly, it may be
viewed as creating a rule pertaining to the English system of jury trials that is so
inappropriate to modern South African non-jury trial system that it is wrong slavishly
to apply it."
Despite the merits of Paizes' arguments, the South African courts have not to
date been called upon to consider this alternate approach and we remain bound
by the Makin formulation. 70 It may well be that the time is ripe for the legislature
to revisit the rules of evidence.
As the present mish-mash of rules governing character evidence and similar
fact evidence are essentially a reflection of the English common law, it is
particularly pertinent to consider recent reforms in England. The Criminal Justice
Act 2003 has adopted a principled approach reflecting the rules of relevance in a
comprehensive and detailed piece of legislation. Section 99(1) abolishes, in
principle, the " 'common-law rules governing the admissibility of evidence of bad
character". Although the same underlying principles are applied to evidence of the
bad character of a witness other than the accused, there are more elaborate rules
governing the admission of evidence of the accused's bad character in recognition
of the particular vulnerabilities that attach to an accused in criminal proceedings.
71
Footnote - 67
67 Essays in Honour of Ellison Kahn 254.
67 Essays in Honour of Ellison Kahn 254.
Footnote - 68
68 At 265.
68 At 265.
Footnote - 69
69 At 269.
69 At 269.
Footnote - 70
70 As elucidated by Boardman supra, the approach in Boardman having been adopted by the
Appellate Division in S v D supra.
70 As elucidated by Boardman supra, the approach in Boardman having been adopted by the
Appellate Division in S v D supra.
Footnote - 71
71 For discussions of the relevant provisions of the Criminal Justice Act 2003, see Tapper Cross and
Tapper on Evidence 11 ed (2007) 350-446; Keane The Modern Law of Evidence 6 ed (2006) 466-551;
Dennis The Law of Evidence 3 ed (2007) 785-844.
71 For discussions of the relevant provisions of the Criminal Justice Act 2003, see Tapper
Cross and Tapper on Evidence 11 ed (2007) 350-446; Keane The Modern Law of Evidence 6 ed
(2006) 466-551; Dennis The Law of Evidence 3 ed (2007) 785-844.
Document 62 of 330
Chapter 8
Opinion Evidence
E van der Berg and S E van der Merwe
8.1 Introduction
8.2 Fact and opinion: some comment
8.3 The basis of the opinion rule
8.4 Lay persons and experts
8.5 The opinion of a lay person
8.5.1 The compendious mode
8.5.2 Handwriting
8.5.3 Probative value of lay opinion
8.6 The expert witness
8.6.1 The expert witness: the need to lay a foundation
8.6.2 Reasons for opinion and probative value of the opinion
8.6.3 Hearsay and expert opinion
8.6.4 The expert referring to textbooks
8.7 Procedural aspects
8.8 The rule in Hollington
3rd Ed, 2009 ch8-p83
8.1 Introduction
This chapter deals with the following question: is the opinion (inference,
conclusion, impression, belief) 1 of a witness — whether expert 2 or lay person 3
— admissible evidence? Should an opinion be admitted for purposes of
persuading the court to rely on it in deciding the issue at hand?
The answer is that relevance remains the fundamental test for admissibility. 4
The essential and very first question must therefore be: what are the issues? 5
Broadly speaking, it may be said that if the issue is of such a nature that the
opinion of an expert or lay person can assist the court in deciding the issue, the
opinion evidence is relevant and admissible 6 — unless some other rule, such as
hearsay, calls for exclusion. By the same token, it may be said that if the opinion
relates to an issue which the court can decide without the aid of opinion evidence
of an expert or lay person, the opinion is irrelevant and therefore inadmissible. 7
The reasons for this rule, and some refinements thereof, are discussed in § 8.3
below.
3rd Ed, 2009 ch8-p84
Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd provides a good example of
the difficulties that can arise, not only in applying the above rule but also in
distinguishing between fact and opinion. 9 In this case the plaintiff contended that
the advertisements of the defendant's product were calculated to mislead
consumers into believing that the defendant's toothpaste possessed certain
qualities concerning the removal and reduction of plaque and tartar on teeth,
which it did not. The plaintiff sought to lead the evidence of an assistant manager
of an insurance company (and thus a layman with no expert knowledge of the
matter) as to how he understood the advertisement. Counsel for the defendant
objected on the ground that this testimony was nothing more than the opinion of
a lay person on a question that the court had to decide. It was argued that the
witness was no better qualified than the court to form an opinion, and that the
admission of the evidence would have the effect of usurping the court's function.
However, counsel for the plaintiff submitted that the evidence was relevant and
admissible because the purpose of the evidence was not to persuade the court to
adopt the opinion of the witness. It was argued that the purpose of the evidence
was to prove the deception — and if, during the course of his testimony in
support of the personal deception experienced by the witness, an opinion had of
necessity to be expressed as to the meaning, for the witness, of the
advertisement, it should not be excluded on that basis alone. Van Schalkwyk J
agreed with the plaintiff's counsel and overruled the objection. His reason was
that the fact that an opinion was contained in the evidence of the lay witness
concerned could not "preclude the evidence if its purpose is to show that as a
result of his interpretation of the advertisement he was misled". 10 It may be said
— at the risk of oversimplification — that the evidence of the witness was a
factum probans which could not be proved without also permitting the witness to
state his own personal conclusion. Van Schalkwyk J also made it perfectly clear
that a court should "refuse to hear evidence only in circumstances where a
witness, unqualified as an expert, seeks to give evidence which in its essence
does no more than that which the Court is itself called upon to do ... [T]he
witness may not interpret but he may give evidence of a factual nature to act as
an aid to interpretation." 11
In Stewarts & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty)
Ltd an issue of a different nature arose. In this case the trial court was requested
by counsel for two of the defendants to examine certain handwriting under a
high-power microscope, and in so doing to be guided by an expert in the field of
handwriting, a certain Mr Gilchrist. Counsel claimed that this procedure would
have enabled the court to make observations which would have assisted the court
in determining the order in which two witnesses had affixed their handwriting on
a document — which was an issue which could have reflected on the credibility of
these two witnesses. Le Grange J held that counsel 13
3rd Ed, 2009 ch8-p85

"seeks through the witness Gilchrist to educate my eye, because he first wishes Mr
Gilchrist to explain to me what he saw when he looked through the microscope. I
gather this will be done, and it is necessary for Mr Gilchrist to do this, in order that I
should know what to look for. Well, the Court declines the opportunity of qualifying
itself in this branch of science. It appears to me that it is undesirable from every
point of view that the Court should look through certain sophisticated instruments
and rely upon its own observations when, from its limited knowledge of the subject,
it does not know whether its observations are reliable or not and whether an
inference can reliably be drawn from them or not. The Court therefore declines the
invitation to look at the document through the microscope."
Of course, the Stewarts & Lloyds case stands on an entirely different footing from
the Colgate case — and is also clearly discernible from cases where the court can
make its own observations and form its own opinion on the basis of ordinary
knowledge or skill common to the average person. In R v Makeip the trial judge
had examined plaster casts of footprints with an ordinary magnifying glass. He
had also measured several distances between various marks. The Appellate
Division had no quarrel with this procedure as it involved no more than ordinary
everyday knowledge or skill. In fact, in the case of S v Mkhabela Corbett JA (as
he then was) also came to the conclusion that "it will always be more satisfactory
if the Court is able, by means of a photograph or a plaster cast or some other
visual medium ... to make the necessary comparisons and to assess the cogency
of the footprint evidence". 15
Makeip and Mkhabela supra merely illustrate that a court need not be guided
by opinion evidence in respect of matters which can be assessed on the basis of
ordinary knowledge or skill. But it is irregular for a court to attempt to qualify
itself as an expert for purposes of the trial or to rely on its own peculiar specialist
knowledge. 16
Footnote - 1
1 See § 8.2 below.
1 See § 8.2 below.
Footnote - 2
2 See §§ 8.4 and 8.6 to 8.6.4 below.
2 See §§ 8.4 and 8.6 to 8.6.4 below.
Footnote - 3
3 See §§ 8.4 and 8.5 to 8.5.3 below.
3 See §§ 8.4 and 8.5 to 8.5.3 below.
Footnote - 4
4 See Association of Amusement and Novelty Machine Operators v Minister of Justice1980 (2) SA
636 (A) 660E; R v David1962 (3) SA 305 (SR).
4 See Association of Amusement and Novelty Machine Operators v Minister of Justice1980

(2) SA 636 (A) 660E; R v David1962 (3) SA 305 (SR).
Footnote - 5
5 See § 5.3.1 above.
5 See § 5.3.1 above.
Footnote - 6
6 See § 8.3 below.
6 See § 8.3 below.
Footnote - 7
7 See S v Nel1990 (2) SACR 136 (C) as discussed in §§ 5.3.3 above and Holtzhauzen v Roodt1997
(4) SA 766 (W) as discussed in § 8.6 below.
7 See S v Nel1990 (2) SACR 136 (C) as discussed in §§ 5.3.3 above and Holtzhauzen v
Roodt1997 (4) SA 766 (W) as discussed in § 8.6 below.
Footnote - 8
8 1989 (3) SA 759 (W).
8 1989 (3) SA 759 (W).
Footnote - 9

Footnote - 10
10 Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd supra 764E.
10 Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd supra 764E.
Footnote - 11
11 At 763 H-I.
11 At 763 H-I.
Footnote - 12
12 1979 (1) SA 1018 (W).
12 1979 (1) SA 1018 (W).
Footnote - 13
13 At 1019F-H.
13 At 1019F-H.
Footnote - 14
14 1948 (1) SA 947 (A).
14 1948 (1) SA 947 (A).
Footnote - 15
15 1984 (1) SA 556 (A) 563D.
15 1984 (1) SA 556 (A) 563D.
Footnote - 16
16 See generally S v Steenberg1979 (3) SA 513 (B) 515 as discussed in § 27.5.1 below.
16 See generally S v Steenberg1979 (3) SA 513 (B) 515 as discussed in § 27.5.1 below.
Document 63 of 330
8.2 Fact and Opinion: Some Comment 17
It is sometimes stated that in terms of the opinion rule a witness must give
evidence of facts and may not express an opinion unless he is an expert or, if not
an expert, his opinion can be received as an exception to the general rule which
excludes opinion evidence. 18 Apart from the fact that this formulation amounts to
a gross distortion of the true rule, 19 it also fails to accommodate the practical
reality that for purposes of the law of evidence it is not always possible to
distinguish clearly between fact and opinion: "In a sense all testimony to matter
of fact is opinion evidence; ie, it is a conclusion formed from phenomena and
mental impressions". 20 Even a matter such as identification really constitutes
evidence of an inference, drawn from comparison with prior experience. 21 Where
the complainant testifies that it was the accused who had raped her, her evidence
is in truth no more than an opinion that it is the man in the dock who committed
the offence. If the rapist were
3rd Ed, 2009 ch8-p86
someone of close acquaintance, it may seem absurd to say that she is expressing
an opinion. But if the perpetrator were a stranger, never seen before, and the
opportunity for observation not great, the identification can clearly be seen to
constitute no more than an inference, drawn from a resemblance between the
offender and the man in the dock. Identity, as such, of course cannot be
perceived. All that is observed by the witness are certain physical characteristics
which can be compared and which can form the basis of a conclusion in the mind
of the witness. That is no more and no less than an inference. This reasoning can
be extended to various forms of observation. In truth, then, the distinction
between fact and opinion is a fallacious one, not borne out by scientific analysis.
Support for this statement can be found in S v Pretorius, where the identities of
the accused were in issue. When defence counsel in cross-examination challenged
a prosecution witness to describe one of the accused, the trial court interrupted
as follows:
"Well, it is extremely difficult to describe a person ... I have seen [the accused]
yesterday, and if you were to ask me to describe No 2 or No 4, I will be completely
at a loss. I have looked at them properly."
On appeal, the court agreed that 23
"[n]atuurlik is dit baie moeilik om 'n persoon te beskryf en die onvermoë van 'n
getuie om 'n persoon te kan beskryf, is nie noodwendig fataal by die vraag of die
persoon deur die getuie behoorlik geïdentifiseer is nie."
It is submitted that the following analysis of the meaning of opinion is accurate
and useful: 24
"The word 'opinion' can be used in various senses. When one says, to take one
meaning, 'That is a matter of opinion', one is saying that the point is open to
question: it is a matter on which doubt can reasonably exist. When one prefaces an
assertion with, 'In my opinion', one is indicating that it is a personal belief. Used in
this sense, opinion is contrasted with fact — facts simply are, opinions are variable
in that differing opinions on the same matter may without absurdity be held by
different people. Quot homines tot sententiae. Opinion, in this sense, is inadmissible
in evidence, not because of any exclusionary rule, but because it is irrelevant. Legal
proceedings are concerned with facts, not with the beliefs of witnesses as to the
existence of facts ... In the opinion rule, 'opinion' carries another, special meaning. A
fact in issue may be proved by the direct evidence of a witness with personal
knowledge, or it may be proved by way of inference from other facts which tend
logically to prove the fact in issue. As used in the law of evidence, 'opinion' has the
meaning of an inference or conclusion of fact drawn from other facts."
The so-called "compendious mode" of testifying, as discussed in § 8.5.1 below, is
also based on the fact that in the law of evidence opinion carries a special
meaning.
Once it is accepted that it is not always possible — and certainly not always
desirable — to attempt to distinguish between fact and opinion it becomes
meaningless
3rd Ed, 2009 ch8-p87
to formulate the opinion rule in terms which require, or purport to require, a strict
distinction between fact and opinion. 25
Footnote - 17
17 See also Zuckermann The Principles of Criminal Evidence (1992) 59-60 and Zeffertt, Paizes &
Skeen 290.Compare generally the approach of the AD in S v Mashile1993 (2) SACR 67 (A).
17 See also Zuckermann The Principles of Criminal Evidence (1992) 59-60 and Zeffertt,
Paizes & Skeen 290.Compare generally the approach of the AD in S v Mashile1993 (2) SACR 67
(A).
Footnote - 18
18 See generally May Criminal Evidence 2ed (1990) 132-3.
18 See generally May Criminal Evidence 2ed (1990) 132-3.
Footnote - 19
Footnote - 20
20 Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 524.
20 Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 524.
Footnote - 21
Footnote - 22
22 1991 (2) SACR 601 (A).
22 1991 (2) SACR 601 (A).
Footnote - 23
23 At 607i.
23 At 607i.
Footnote - 24
24 Nicholas "Some Aspects of Opinion Evidence" in Kahn (ed) Fiat Justitia: Essays in Memory of
Oliver Deneys Schreiner (1983) 225. Emphasis added.
24 Nicholas "Some Aspects of Opinion Evidence" in Kahn (ed) Fiat Justitia: Essays in Memory
of Oliver Deneys Schreiner (1983) 225. Emphasis added.
Footnote - 25
25 There is much merit in the forceful approach adopted by the Appellate Division in Reckitt &
Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd1993 (2) SA 307 (A). This was a passing-off
case: the appellant's "Brasso" versus the respondent's "Brillo". Regarding the question whether the
"Brillo" get-up was calculated to deceive, the court found that the evidence of the psychologists and
linguistic experts was singularly unhelpful, if not inadmissible, because it tended to disguise opinion
as a statement of scientific principle — and in so doing subtly sought to displace the court's value
judgment with that of the witness.
25 There is much merit in the forceful approach adopted by the Appellate Division in Reckitt
& Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd1993 (2) SA 307 (A). This was a
passing-off case: the appellant's "Brasso" versus the respondent's "Brillo". Regarding the
question whether the "Brillo" get-up was calculated to deceive, the court found that the
evidence of the psychologists and linguistic experts was singularly unhelpful, if not
inadmissible, because it tended to disguise opinion as a statement of scientific principle — and
in so doing subtly sought to displace the court's value judgment with that of the witness.
Document 64 of 330
8.3 The Basis of the Opinion Rule
Any opinion, whether expert or non-expert, which is expressed on an issue which
the court can decide without receiving such opinion is in principle inadmissible
because of its irrelevance. 26 Such evidence is unnecessary — and can be referred
to as "superfluous" or "supererogatory evidence". 27 In this instance the opinion
of the witness is excluded not because of a need to preserve or protect the fact-
finding duty of the court, but because such evidence makes no probative
contribution, creates the risk of confusion of the main issues, can lead to
prolongation of trials, and can open an "evidential Pandora's box". 28
If the issue is of such a nature that the witness is in a better position than the
court to form an opinion, the opinion will be admissible on the basis of its
relevance. 29 Such an opinion has probative force. The opinion is no longer
superfluous because it can assist the court in determining the issue. This explains
why the opinions of lay persons 30 and experts 31 are at times received.
The rule that opinion evidence is excluded where superfluous (because it is
irrelevant) and admitted where it can assist the court (because it is relevant) has
to compete with some other theories, principles and formulations governing the
opinion rule. Paizes refers to these as "empty catch-phrases and misconceptions
which have blurred the parameters of the rule and shifted the focus of attention
away from its chief function, viz the exclusion of supererogatory evidence". 32 It
is,
3rd Ed, 2009 ch8-p88
for example, sometimes said that the exclusion of opinion is intended to preserve
or protect the function of the tribunal of fact, 33 and that a witness should not be
permitted to usurp this function. 34 Wigmore rejected this theory on the basis
that the tribunal of fact is not and cannot be obliged to substitute the opinion of
the witness for his own. 35 Support for Wigmore's reasons for rejecting this
theory can be found in S v Nieuwoudt. 36 In this case various experts (including
an electrical engineer and members of university departments of speech and
drama) were called to testify as regards certain tape recordings. Hefer JA
remarked as follows: 37
"Daarenteen is ek nie bereid om 'n submissie wat mnr De Villiers op een stadium
gemaak het (klaarblyklik sonder dat hy self veel geloof daarin gehad het) te aanvaar
nie, nl dat daar slegs gelet moet word op wat die deskundige getuies se
waarnemings was. Om te hoor watter woorde in hierdie soort opname voorkom,
verg geen deskundigheid nie en 'n geregshof kan in elk geval nie sy funksie aan die
getuies delegeer nie. Natuurlik moet ag geslaan word op die getuienis; maar
uiteindelik is dit die Hof se taak om te bepaal wat die woorde is en deur wie hulle
gebruik is."
The theory that the opinion rule preserves or protects the fact-finding function of
the court is sometimes also expressed in terms of the so-called "ultimate issue"
doctrine, namely that a witness may not express an opinion on an ultimate issue
which the court must decide: "The risk of usurpation by the witness of the
function of the trier of fact", says Carter, "is often greatest if the witness
expresses an opinion on the very question, or 'ultimate issue' which the trier of
fact finally has to decide." 38 However, the ultimate issue doctrine fails to explain
why courts at times permit not only experts but also lay persons to express an
opinion on the very issue the court has to decide. In drunken driving cases the
prosecution must prove that the accused was under the influence of intoxicating
liquor at the time when he was driving. Courts receive both expert and lay
opinion in this regard, 39 despite the fact that this is the very issue that the court
must decide. The court is not bound by such an opinion, but will place much
reliance on it if it is satisfied that the reasons which the witness can advance for
having formed the opinion are convincing and do in fact support the opinion
expressed by the witness.
3rd Ed, 2009 ch8-p89
The ultimate issue doctrine is often ignored in practice. In DPP v A & BC

Chewing Gum Co Ltd Lord Parker said: 40
"... I cannot help feeling that with the advance of science more and more inroads
have been made into the old common-law principles. Those who practise in the
criminal courts see every day cases of experts being called on the question of
diminished responsibility and although technically the final question 'Do you think he
was suffering from diminished responsibility?' is strictly inadmissible, it is allowed
time and time again without any objection."
This case concerned the admissibility of expert opinion evidence on the issue
whether certain publications tended to corrupt or deprave children. It was
concluded that expert evidence would have been inadmissible if the issue had
related to adults, but that it was admissible where the issue related to children.
In the latter instance the tribunal would need all the help it could get.
It is significant that in 1972 the English legislature abolished the "ultimate
issue" doctrine for purposes of civil proceedings. Section 3(1) of the Civil
Evidence Act 1972 41 provides that where a person is called as a witness in any
civil proceedings his opinion on any relevant matter on which he is qualified to
give expert evidence shall be admissible in evidence. Section 3(2) determines
that where a person is called as a witness in any civil proceedings a statement or
opinion by him on any relevant matter on which he is not qualified to give expert
evidence, if made as a way of conveying relevant facts personally perceived by
him, is admissible evidence of what he perceived. Section 3(3) determines that
for the purposes of s 3 "relevant matter" includes an issue in the proceedings in
question. It is important, though, to note that the statute also provides for a
discretion to exclude evidence falling under s 3.
Another approach is to say that a witness should not be permitted to express
an opinion which entails a conclusion of law, 43 or which requires the application
of a standard of law to the facts, 44 or which relates to the meaning of words
appearing in a statute. 45 This is just a variation of the "ultimate issue" doctrine.
46 Although this doctrine should not be discarded entirely, 47 the answer in all
three aforementioned instances should be that the exclusion of supererogatory
evidence remains the governing test. Association of Amusement and Novelty
Machine Operators v Minister of Justice involved the meaning of certain words in
a statute. The opinion of a language expert was held irrelevant and inadmissible:
the words in dispute were
3rd Ed, 2009 ch8-p90
often encountered in common parlance, and the witness was therefore in no

better position than the court to form an opinion.
In International Business Machines SA (Pty) Ltd v Commissioner for Customs
and Excise it was said: "Under our system, questions of interpretation of ...
documents are matters of law, and belong exclusively to the Court. On such
questions the opinions of witnesses, however eminent or highly qualified, are
(except in regard to words which have a special or technical meaning)
inadmissible." 49 The words in brackets are important, and indicate that this case
is not a vindication of the "ultimate issue" doctrine; it really confirms the
approach that supererogatory evidence is inadmissible.
Footnote - 26
26 See generally S v H1981 (2) SA 586 (SWA).
26 See generally S v H1981 (2) SA 586 (SWA).
Footnote - 27
27 Wigmore para 1918 used this term and explained that the rule "simply endeavours to save time
and avoid confusing testimony by telling the witness: 'The tribunal is on this subject in possession of
the same materials of information as yourself; thus, as you can add nothing to the materials for
judgment, your further testimony is unnecessary, and merely cumbers the proceedings.' " See
further the discussion of Ruto Flour Mills Ltd v Adelson (1)1958 (4) SA 235 (T) in § 8.6 below. In
this case the court relied heavily on Wigmore's views.
27 Wigmore para 1918 used this term and explained that the rule "simply endeavours to
save time and avoid confusing testimony by telling the witness: 'The tribunal is on this subject
in possession of the same materials of information as yourself; thus, as you can add nothing to
the materials for judgment, your further testimony is unnecessary, and merely cumbers the
proceedings.' " See further the discussion of Ruto Flour Mills Ltd v Adelson (1)1958 (4) SA 235
(T) in § 8.6 below. In this case the court relied heavily on Wigmore's views.
Footnote - 28
28 See S v Nel1990 (2) SACR 136 (C) as discussed in § 5.3.3 above.
28 See S v Nel1990 (2) SACR 136 (C) as discussed in § 5.3.3 above.
Footnote - 29
29 Zeffertt 1976 SALJ 275.
29 Zeffertt 1976 SALJ 275.
Footnote - 30
30 In R v Vilbro1957 (3) SA 223 (A), a unanimous decision of the Appellate Division sitting with
five judges, the question concerned the descent of the appellants. It was argued on behalf of the
appellants that witnesses could not be called to offer their opinions on the point: such evidence
would be inadmissible, as it was merely evidence of opinion, usurping the function of the court on an
issue which the court, not any witness, had to decide. Fagan CJ, delivering the judgment of the
court, referred to Wigmore's concept of supererogatory evidence and his rejection of the usurpation
theory. The court concluded that whereas nothing could be gained by calling witnesses at random to
express an opinion on the question, there would, however, be people who could be of great
assistance to the court, such as a government inspector who claimed to have experience of such
affairs, as well as other persons who were familiar with the appellants. Their opinions, the court
held, would be admissible. It is important to note that the suggestion here is that it is the opinion of
laymen that could be received, on the basis that their opinion could, due to their familiarity with the
appellants, assist the court, who was not as familiar with the appellants.
30 In R v Vilbro1957 (3) SA 223 (A), a unanimous decision of the Appellate Division sitting
with five judges, the question concerned the descent of the appellants. It was argued on behalf
of the appellants that witnesses could not be called to offer their opinions on the point: such
evidence would be inadmissible, as it was merely evidence of opinion, usurping the function of
the court on an issue which the court, not any witness, had to decide. Fagan CJ, delivering the
judgment of the court, referred to Wigmore's concept of supererogatory evidence and his
rejection of the usurpation theory. The court concluded that whereas nothing could be gained
by calling witnesses at random to express an opinion on the question, there would, however,
be people who could be of great assistance to the court, such as a government inspector who
claimed to have experience of such affairs, as well as other persons who were familiar with the
appellants. Their opinions, the court held, would be admissible. It is important to note that the
suggestion here is that it is the opinion of laymen that could be received, on the basis that
their opinion could, due to their familiarity with the appellants, assist the court, who was not as
familiar with the appellants.
Footnote - 31

Footnote - 32
32 Paizes in Du Toit et al Commentary 24-16A.
32 Paizes in Du Toit et al Commentary 24-16A.
Footnote - 33
33 Cowsill & Clegg Evidence: Law and Practice (1990) 149.
33 Cowsill & Clegg Evidence: Law and Practice (1990) 149.
Footnote - 34
34 See generally R v Louw 1930 CPD 368 and R v Van Tonder 1929 TPD 365.
34 See generally R v Louw 1930 CPD 368 and R v Van Tonder 1929 TPD 365.
Footnote - 35
35 Wigmore para 1920. See also Cowen & Carter Essays on the Law of Evidence (1956) 169.
35 Wigmore para 1920. See also Cowen & Carter Essays on the Law of Evidence (1956) 169.
Footnote - 36
36 1990 (4) SA 217 (A). See also R v Sole2004 (2) SACR 599 (Les) 631d-636e; Visagie v
Gerryts2000 (3) SA 670 (C); ZS-SVN Syndicate v 43 Air School (Pty) Ltd2007 (6) SA 389 (E) at
[18].
36 1990 (4) SA 217 (A). See also R v Sole2004 (2) SACR 599 (Les) 631d-636e; Visagie v
Gerryts2000 (3) SA 670 (C); ZS-SVN Syndicate v 43 Air School (Pty) Ltd2007 (6) SA 389 (E)
at [18].
Footnote - 37
37 AT 238C-E.
37 AT 238C-E.
Footnote - 38
38 Carter Cases and Statutes on Evidence (1981) 503.
38 Carter Cases and Statutes on Evidence (1981) 503.
Footnote - 39
39 In S v Edley1970 (2) SA 223 (N) 226D Miller J noted: "It seems to me that the more gross and
manifest the physical manifestations of intoxication noted by credible and reliable laymen are, the
more readily may medical evidence be dispensed with and that the more equivocal the physical
manifestations or indications of intoxication may be, the greater would be the need for the State to
lead medical evidence of the accused's condition at the relevant time." S v Skeal1990 (1) SACR 162
(Z) is an example of a case where intoxication was found proved on the basis of the evidence of two
policemen. Both lay person and expert should, however, advance reasons for their opinion. See S v
Mhetoa1968 (2) SA 773 (O) and R v Theunissen1948 (4) SA 43 (C). The opinion becomes worthless
in the absence of reasons: S v Adams1983 (2) SA 577 (A). On a charge of drunken driving the
prosecution must also prove that the skill and judgment normally required to drive a vehicle were
impaired or detrimentally affected. In England a lay witness is not permitted to say whether the
accused was fit or unfit to drive (R v Davies 1962 1 WLR 1111). But the Irish courts receive such an
opinion (A-G (Rudely) v Kenny 1960 94 ILT 185 as cited by Heydon Evidence: Cases and Materials 4
ed (1996) 386). Expert opinion is required in South Africa, but the courts have accepted the opinion
of experienced policemen. See R v Seaward1950 (2) SA 704 (N). It is submitted that an experienced
policeman's opinion can be received on the basis that it can assist the court.
39 In S v Edley1970 (2) SA 223 (N) 226D Miller J noted: "It seems to me that the more
gross and manifest the physical manifestations of intoxication noted by credible and reliable
laymen are, the more readily may medical evidence be dispensed with and that the more
equivocal the physical manifestations or indications of intoxication may be, the greater would
be the need for the State to lead medical evidence of the accused's condition at the relevant
time." S v Skeal1990 (1) SACR 162 (Z) is an example of a case where intoxication was found
proved on the basis of the evidence of two policemen. Both lay person and expert should,
however, advance reasons for their opinion. See S v Mhetoa1968 (2) SA 773 (O) and R v
Theunissen1948 (4) SA 43 (C). The opinion becomes worthless in the absence of reasons: S v
Adams1983 (2) SA 577 (A). On a charge of drunken driving the prosecution must also prove
that the skill and judgment normally required to drive a vehicle were impaired or detrimentally
affected. In England a lay witness is not permitted to say whether the accused was fit or unfit
to drive (R v Davies 1962 1 WLR 1111). But the Irish courts receive such an opinion (A-G
(Rudely) v Kenny 1960 94 ILT 185 as cited by Heydon Evidence: Cases and Materials 4 ed
(1996) 386). Expert opinion is required in South Africa, but the courts have accepted the
opinion of experienced policemen. See R v Seaward1950 (2) SA 704 (N). It is submitted that
an experienced policeman's opinion can be received on the basis that it can assist the court.
Footnote - 40
40 1968 AC 159 164.
40 1968 AC 159 164.
Footnote - 41
41 See Huxley & O'Connell Blackstone's Statutes on Evidence (1991) 142-3.
41 See Huxley & O'Connell Blackstone's Statutes on Evidence (1991) 142-3.
Footnote - 42
42 See also § 8.5.1 below.
Footnote - 43
43 See the argument advanced by counsel for the appellant in S v Haasbroek1969 (2) SA 624 (A).
43 See the argument advanced by counsel for the appellant in S v Haasbroek1969 (2) SA
624 (A).
Footnote - 44
44 R v Van Tonder 1929 TPD 365 can be explained as a case based on this approach.
44 R v Van Tonder 1929 TPD 365 can be explained as a case based on this approach.
Footnote - 45
45 See generally Metro Transport (Pty) Ltd v National Transport Commission1981 (3) SA 114 (W)
120A, where it was held that "vertolking van 'n statutêre bepaling deur middel van verduidelikende
getuienis nie toelaatbaar is nie".
45 See generally Metro Transport (Pty) Ltd v National Transport Commission1981 (3) SA 114
(W) 120A, where it was held that "vertolking van 'n statutêre bepaling deur middel van
verduidelikende getuienis nie toelaatbaar is nie".
Footnote - 46
46 According to May Criminal Evidence 134, this doctrine developed because of jury trials: "It was
feared that if witnesses could be asked for their opinion on the issue the jury had to decide (the
'ultimate issue'), the jury would be unduly influenced."
46 According to May Criminal Evidence 134, this doctrine developed because of jury trials: "It
was feared that if witnesses could be asked for their opinion on the issue the jury had to decide
(the 'ultimate issue'), the jury would be unduly influenced."
Footnote - 47
47 Schmidt & Rademeyer (2007) Law of Evidence 17-8–17-9make the valid point that there is a
link between the "ultimate issue" doctrine and the important administrative law principle in terms of
which the tribunal of fact must apply his mind to the issue.
47 Schmidt & Rademeyer (2007) Law of Evidence 17-8–17-9make the valid point that there
is a link between the "ultimate issue" doctrine and the important administrative law principle in
terms of which the tribunal of fact must apply his mind to the issue.
Footnote - 48
48 1980 (2) SA 636 (A). See also § 27.5 below.
48 1980 (2) SA 636 (A). See also § 27.5 below.
Footnote - 49
49 1985 (4) SA 852 (A) 874A-B.
49 1985 (4) SA 852 (A) 874A-B.
Document 65 of 330
8.4 Lay Persons and Experts

It is customary to approach the admission of opinion evidence on the basis that
one has to distinguish between lay opinion and expert opinion. Once it is realised
that admissibility does not depend on this distinction, but on the question
whether the opinion of the particular witness in the particular circumstances of
the case can assist the court in determining the issues, it becomes clear that the
distinction between lay person and expert does not govern admissibility. The
separate discussion of lay persons and experts in the next few paragraphs is for
the sake of convenience, and not an attempt to identify two separate categories
for purposes of admissibility. For procedural purposes, however, a distinction is
necessary: 50 in civil cases parties should give notice of their intention to rely on
expert opinion evidence; in criminal cases the prosecution is required on
constitutional grounds to disclose expert opinion evidence to the accused prior to
the commencement of the trial. 51
Footnote - 50
50 Zeffertt Paizes & Skeen 301.See further § 8.7 below.
50 Zeffertt Paizes & Skeen 301.See further § 8.7 below.
Footnote - 51
51 Shabalala v Attorney-General of Transvaal & another1995 (2) SACR 761 (CC) para [72]. See
further § 11.5 below.
51 Shabalala v Attorney-General of Transvaal & another1995 (2) SACR 761 (CC) para [72].
See further § 11.5 below.
Document 66 of 330
8.5 The Opinion of a Lay Person
Application of the rule that opinion evidence must be excluded where it cannot
assist the court, but admitted where it can, yields the following results: a lay
witness may express an opinion on the approximate age of a person, the state of
sobriety of a person, the general condition of a thing, and the approximate speed
at which a vehicle was travelling. This is not an exhaustive list.
An inability to provide reasons for the opinion should in principle affect the
weight and not the admissibility of the opinion. 52
8.5.1 The compendious mode

There are instances where a witness — and more particularly a lay witness — will
not be able to testify meaningfully if the law of evidence were to persist in
drawing a distinction between fact and opinion for the purposes of admitting the
fact and excluding the opinion. It is "never possible
3rd Ed, 2009 ch8-p91
for a witness to eliminate altogether the results of inference from the evidence he
gives". 53 In Herbst v R it was said: 54
"When an ordinary witness says 'I see a Chinaman', he generally means that from
his knowledge, obtained by experience or study, he is aware of the salient external
characteristics of a citizen sprung from the Celestial Empire; that the person in
question appears to possess those characteristics, and that consequently he infers,
deduces or opines that the man whom he sees is a Chinaman. His short statement is
therefore a compendious mode of expressing facts and opinions. Similarly, in the
identification of an accused person, the witness compares in his own mind the
person he has previously seen with the person produced at the trial, forms an
opinion as to the resemblance or otherwise, and states that opinion which is then
received as evidence for what it is worth. A similar process takes place when a
witness gives evidence as to mental and physical conditions, age, speed, value,
character and handwriting. Whether, therefore, an ordinary witness simply states
'The flag was yellow', or more comprehensively says 'The writing is Smith's', there is
a ratiocination in different degrees, and consequently an expression of opinion. But
such evidence is clearly admissible; if it were not, the machine for trying disputed
facts would come to a standstill. It is accordingly not always possible to wholly
separate statement of opinion from statement of fact, and consequently, on the
grounds of necessity, because this separation is not always possible, and because
more direct and positive evidence is often unobtainable, experience has evolved the
subsidiary rule that the opinions and beliefs of witnesses who are not experts are in
certain cases admissible."
The term "compendious mode" as used in Herbst supra is of English law origin. 55
It is a convenient term to use in those instances where the witness offers an
opinion as a brief summary of factual data perceived by him. This explains why a
witness is permitted to say that the complainant was "angry", that the victim
tried to "protect" himself or that the defendant "looked surprised". The
compendious mode is permitted not only because of its practical convenience but
also because the witness is better placed than the court. 56 The witness may in
examination in chief, cross-examination and re-examination be questioned on the
reasons for his conclusion. Admission or exclusion of the evidence tendered in
compendious mode will be in the court's discretion. Much depends on the
circumstances and issues, as well as the question whether for purposes of the
case any meaningful attempt can be made to separate conclusion from fact.
8.5.2 Handwriting 57
Section 4 of the CPEA provides that comparison of a disputed writing with any
writing proved to be genuine may be made by witnesses, and such writings and
the evidence of any witness with respect thereto may be submitted as evidence
of the genuineness or otherwise of the writing in dispute. Section 228 of the CPA
contains a similar provision. On the basis of these provisions as well as common-
law principles, a lay witness is permitted to identify handwriting. An expert may
also express an opinion on handwriting. 58 The fact that an accused who has
furnished samples of his handwriting to the police could have made some
intentional distortions affects the weight and not the admissibility
3rd Ed, 2009 ch8-p92
of the opinion. 59 Opinion evidence of handwriting must be approached with

caution (see § 30.11.6 below). A court is also entitled to make its own
comparison, but should do so with caution (see §§ 19.7 and 30.11.6 below).
8.5.3 Probative value of lay opinion

It is generally accepted that the admissible opinion of a lay person provides prima
facie evidence and — if not challenged 60 — may, not must, be accepted. Much
will depend on the issues and the reasons that the witness can advance in
support of his conclusion. 61 If challenged, 62 the issue might be of such a nature
that only expert opinion can resolve it. 63 In S v Faltein — where the issue was
whether the substance in question was dagga — Erasmus J noted that "dagga,
although unfortunately in wide use, is not so well known that just anybody can
identify it as such. In order to do so special knowledge or expertise is required."
64 The value of a policeman's opinion that a substance is dagga was dealt with
comprehensively by James JP in S v Ndaba. 65
3rd Ed, 2009 ch8-p93
Footnote - 52
52 See § 8.5.4 below.
52 See § 8.5.4 below.
Footnote - 53
53 Cowen & Carter Essays on the Law of Evidence 166.
53 Cowen & Carter Essays on the Law of Evidence 166.
Footnote - 54
54 1925 SWA 77 80. Emphasis added.
54 1925 SWA 77 80. Emphasis added.
Footnote - 55
55 Wright v Tatham 1885 Cl & Fin 670 721 as cited by Hodgkinson Expert Evidence: Law and
Practice (1990) 18.
55 Wright v Tatham 1885 Cl & Fin 670 721 as cited by Hodgkinson Expert Evidence: Law and
Practice (1990) 18.
Footnote - 56
56 Cowsill & Clegg Evidence: Law and Practice 150.
56 Cowsill & Clegg Evidence: Law and Practice 150.
Footnote - 57
Footnote - 58
58 An "expert" on handwriting is not necessarily confined to people who are handwriting experts
by profession: R v Silverlock 1894 2 QB 766.
58 An "expert" on handwriting is not necessarily confined to people who are handwriting

experts by profession: R v Silverlock 1894 2 QB 766.
Footnote - 59
59 S v Smith1978 (3) SA 749 (A).
59 S v Smith1978 (3) SA 749 (A).
Footnote - 60
60 S v Gentle1983 (3) SA 45 (N) 46F-G Booysen J said: "The evidence as to the identity of the
substance can hardly be said to be challenged by challenging the evidence of possession thereof. It
is one thing to say 'that exhibit is not dagga' and quite another to say 'I deny having possessed it'.
In these circumstances the magistrate was quite entitled to accept that it was dagga."
60 S v Gentle1983 (3) SA 45 (N) 46F-G Booysen J said: "The evidence as to the identity of
the substance can hardly be said to be challenged by challenging the evidence of possession
thereof. It is one thing to say 'that exhibit is not dagga' and quite another to say 'I deny having
possessed it'. In these circumstances the magistrate was quite entitled to accept that it was
dagga."
Footnote - 61
61 S v Januarie1980 (2) SA 598 (C) 600B-C: "[A]s to the value of an opinion expressed by a
witness, there should be some sufficient enquiry not only into the reasons for the opinion, but also
into the ability of the witness to express an informed and sound opinion."
61 S v Januarie1980 (2) SA 598 (C) 600B-C: "[A]s to the value of an opinion expressed by a
witness, there should be some sufficient enquiry not only into the reasons for the opinion, but
also into the ability of the witness to express an informed and sound opinion."
Footnote - 62
62 A challenge can be explicit or by implication in the course of cross-examination: S v Sinam1990

(2) SACR 308 (E) 315a-b.
62 A challenge can be explicit or by implication in the course of cross-examination: S v

Sinam1990 (2) SACR 308 (E) 315a-b.
Footnote - 63
63 AA Onderlinge Assuransie-Assosiasie Bpk v De Beer1982 (2) SA 603 (A) 614.
63 AA Onderlinge Assuransie-Assosiasie Bpk v De Beer1982 (2) SA 603 (A) 614.
Footnote - 64
64 1990 2 PH H105 (E) 291.
64 1990 2 PH H105 (E) 291.
Footnote - 65
65 1981 (3) SA 782 (N) 784B-785A: "It has been accepted in a long series of cases that the
evidence of policemen regarding the identity of dagga may be given in court and that in the absence
of any challenge it may be accepted by the presiding officer. A magistrate should satisfy himself that
the policeman is sufficiently familiar with dagga to be able to make a reliable identification but in the
absence of any challenge a policeman's statement that he knows dagga and that what he found was
in fact dagga has in the past been accepted by the Courts as sufficient identification unless the
policeman's grounds for making this statement are challenged and his experience with and
knowledge of dagga is put in issue. See R v Radebe1960 (4) SA 131 (T) at 133; R v S1956 (4) SA
118 (N) at 125D. This is in conformity with the practice in cases concerned with concoctions under
the liquor laws where it has been held that the unchallenged evidence of a policeman that the liquor
in question was a particular type of concoction may be accepted as prima facie proof that it is such a
concoction. See R v Modesa1948 (1) SA 1157 (T) at 1159; R v De Souza1955 (1) SA 32 (T).
Challenges in regard to the identity of a substance which the police aver is dagga are usually made
on one of two grounds, the first being that the substance found is not dagga but something else. In
such a case the policeman's evidence should not be accepted unless the policeman's claim to be able
to identify a substance such as dagga has been thoroughly tested and the court feels able to accept
it as so reliable that the accused's claim that the substance is something else must be rejected as
false. See S v Ngwanya1962 (3) SA 690 (T) and R v Kolisi1960 (2) SA 374 (E). Secondly, when an
accused person claims that he has no knowledge of what the substance in question is, and
challenges the correctness of the identification in cross-examination, sufficient evidence must be
adduced regarding the witness' experience in or knowledge of the substance in question to satisfy
the court that his conclusion that the substance is undoubtedly what he claims it to be is reliable.
See S v Bertrand1975 (4) SA 142 (C) at 149B (a case dealing with the drug known as LSD) and the
case of S v Malefane1974 (4) SA 613 (O) in which the accused denied on oath that the substance
was dagga and in which the cross-examination of the State witnesses clearly challenged their claim
that the substance found in her possession was dagga. See also S v Seboko1975 (3) SA 343 (O).
Once the accused challenges the reliability of the identification on the grounds that the witness does
not have the experience to give reliable evidence on the subject of dagga the State is entitled to
examine the witness further on his experience and if thought advisable, call further evidence to
identify the substance as dagga." See also S v Letimela1979 (2) SA 332 (B).
65 1981 (3) SA 782 (N) 784B-785A: "It has been accepted in a long series of cases that the
evidence of policemen regarding the identity of dagga may be given in court and that in the
absence of any challenge it may be accepted by the presiding officer. A magistrate should
satisfy himself that the policeman is sufficiently familiar with dagga to be able to make a
reliable identification but in the absence of any challenge a policeman's statement that he
knows dagga and that what he found was in fact dagga has in the past been accepted by the
Courts as sufficient identification unless the policeman's grounds for making this statement are
challenged and his experience with and knowledge of dagga is put in issue. See R v
Radebe1960 (4) SA 131 (T) at 133; R v S1956 (4) SA 118 (N) at 125D. This is in conformity
with the practice in cases concerned with concoctions under the liquor laws where it has been
held that the unchallenged evidence of a policeman that the liquor in question was a particular
type of concoction may be accepted as prima facie proof that it is such a concoction. See R v
Modesa1948 (1) SA 1157 (T) at 1159; R v De Souza1955 (1) SA 32 (T). Challenges in regard
to the identity of a substance which the police aver is dagga are usually made on one of two
grounds, the first being that the substance found is not dagga but something else. In such a
case the policeman's evidence should not be accepted unless the policeman's claim to be able
to identify a substance such as dagga has been thoroughly tested and the court feels able to
accept it as so reliable that the accused's claim that the substance is something else must be
rejected as false. See S v Ngwanya1962 (3) SA 690 (T) and R v Kolisi1960 (2) SA 374 (E).
Secondly, when an accused person claims that he has no knowledge of what the substance in
question is, and challenges the correctness of the identification in cross-examination, sufficient
evidence must be adduced regarding the witness' experience in or knowledge of the substance
in question to satisfy the court that his conclusion that the substance is undoubtedly what he
claims it to be is reliable. See S v Bertrand1975 (4) SA 142 (C) at 149B (a case dealing with
the drug known as LSD) and the case of S v Malefane1974 (4) SA 613 (O) in which the
accused denied on oath that the substance was dagga and in which the cross-examination of
the State witnesses clearly challenged their claim that the substance found in her possession
was dagga. See also S v Seboko1975 (3) SA 343 (O). Once the accused challenges the
reliability of the identification on the grounds that the witness does not have the experience to
give reliable evidence on the subject of dagga the State is entitled to examine the witness
further on his experience and if thought advisable, call further evidence to identify the
substance as dagga." See also S v Letimela1979 (2) SA 332 (B).
Document 67 of 330
8.6 The Expert Witness 66

There are issues which simply cannot be decided without expert guidance. Expert
opinion evidence is therefore readily received on issues relating to, for example,
ballistics, engineering, chemistry, medicine, accounting and psychiatry. This is
not an exhaustive list. And there are cases where expert evidence — though not
absolutely necessary — would nevertheless still be of use. Intoxication 67 and
handwriting 68 are two examples.
The matter was crisply stated in Gentiruco AG v Firestone SA (Pty) Ltd: "[T]he
true and practical test of the admissibility of the opinion of a skilled witness is
whether or not the Court can receive 'appreciable help' from that witness on the
particular issue." 69 In S v Melrose the court found it necessary to point out that
the viva voce evidence of medical practitioners in cases involving, for example,
homicide, rape and serious assaults "is very relevant indeed". 70
Ruto Flour Mills Ltd v Adelson (1) provides a good example not only of the
guidance or assistance that a court can receive from an expert but also the
reasons for the exclusion or admission of expert opinion evidence — a matter
already dealt with in general terms in § 8.3 above. In this case an accountant
was called to give evidence of the financial affairs of the bakery concerned. The
accountant had experience in the financial management of bakeries and had
inspected and analysed the books of the bakery. He testified that the business
was conducted erratically. The court overruled an objection to this opinion, and
made the following points:(a) Supererogatory evidence is excluded simply
because it is not needed: the court is as able as the witness to draw the
conclusion. The evidence is not excluded because there is something
objectionable regarding the reliability of the evidence. (b) The opinion of an
expert is received because and whenever his skill is greater than that of the
court. (c) The true criterion is whether the court can receive appreciable help
from the opinion of the witness. (d) When the issue is one of science or skill the
expert can be asked the very question which the court has to decide.
In Holtzhauzen v Roodt the plaintiff (P) sued the defendant (D) for defamation,
averring that D had told third parties that P had raped her when the two of them
were alone on a farm. D invoked, inter alia, truth and public benefit as a defence.
In support of her allegation that she was indeed raped by P, D wanted to call an
expert witness, W, to testify that in his opinion, based on several interviews and
two hypnotherapy sessions he had with D, she was indeed raped by P. The
interviews
3rd Ed, 2009 ch8-p94
and sessions took place after litigation had been initiated. W was a registered
clinical psychologist and a member of the South African Society of Clinical
Hypnosis and was also going to testify that "hypnosis is a way of accessing
subconscious memories and thoughts from patients by inducing them in a state of
trance and/or deep relaxation." 73 Counsel for P objected to the admissibility of
W's opinion on the credibility of D. Satchwell J held that W's evidence was
irrelevant and therefore inadmissible. The consistency of D was not in dispute and
her prior statements to W added "no greater weight to that which
she…[was]…telling the court" 74 (see also § 9.2 below). But apart from this
ground of irrelevance, Satchwell J also concluded that the proposed evidence of
W would "indeed displace the value judgment of the Court." 75 The court itself
had to, and could, decide matters of credibility without the opinion of W. The
court also concluded that "the evidence to be given by…[W]…as to the hypnosis
and the conditions under which the statements were made by…[D]…go a long
way towards usurping the judgment of the Court." 76
In Holtzhauzen v Roodt the proposed evidence of a further expert, B, was held
admissible. D wanted to call B to testify that, in her opinion, a victim of
acquaintance rape would often not disclose the incident to third parties
immediately after it has occurred. B, like W, was an expert: B had an
undergraduate degree in which she majored in psychology; she had a master's
degree in social work and, at the time of the trial, she was a clinical supervisor of
POWA, 77 where her duties included the counselling of rape victims. But B's
opinion, unlike that of W, was held relevant and admissible despite counsel for P's
argument that B's evidence was not relevant and would only be conjecture. 78
Satchwell J rejected this argument and found that the criteria whether the
expert's opinion would be "of assistance to the court" and "helpful," were the
criteria for assessing the relevance or irrelevance of B's evidence. 79 She
reasoned and concluded as follows: 80
"Now rape of a woman is unlikely to be a topic or experience within the personal
knowledge or experience of many judicial officers or any at all. Rape has frequently
been described as a crime which seldom sees the light of day, let alone comes
before the scrutiny of our courts. Rape victims or rape survivors have usually
endured their experience in silence, and the particular and somewhat unique
character and features of rape have long gone unstudied. They have certainly gone
unappreciated by our courts…However, rape is an experience of the utmost
intimacy. The victims or survivors thereof are largely confined to the female sex. I
have heard the response of such survivors generically described as a 'scream from
silence'. The result has been a paucity of South African legal and judicial
understanding and commentary on the full parameters and implications of this
phenomenon. Rape is an experience so devastating in its consequences that it is
rightly perceived as striking at the very fundament of human, particularly female,
privacy, dignity and personhood. Yet, I acknowledge that the ability of a judicial
officer such as myself to
3rd Ed, 2009 ch8-p95

fully comprehend the kaleidoscope of emotion and experience, of both rapist and
rape survivor, is extremely limited…In such circumstances I am of the view that it
would be unwise and it would be irresponsible for myself as a judicial officer, who is
lacking in special knowledge and skill, to attempt to draw inferences from facts
which have been established by evidence, without welcoming the opportunity to
learn and to receive guidance from an expert who is better qualified than myself to
draw the inferences which I am required myself to draw. An obvious example in the
present case is the evidence that the defendant did not report the rape at the very
moment that her mother and sisters returned to the plaintiff's farm. In the normal
course this Court would certainly be entitled to draw an inference that there was
nothing for the defendant to report to her mother or to her sisters. Certainly, if a
witness' purse containing cash and credit cards and a cheque book had been stolen
outside a bank, and the victim failed immediately to go inside and cancel the cheque
book or credit card and to make a report to the policeman standing on the street
corner while the thieves made a getaway, then I would consider myself entirely
justified in drawing an adverse inference from such facts. If indeed there are
particular reasons, known only or known particularly to those who work with rape
survivors and who have experience in this field, why rape survivors frequently do
not take the first opportunity to make known such an assault and to seek help, then
it would ill-behove me as a Judge of the High Court to turn my ear against the
opportunity to gain a better understanding from an available expert…At the end of
the day, however, I must stress that the value which I will attach to such evidence
will fall to be assessed in the light of all the evidence before the Court; that is the
evidence of the defendant, of the plaintiff and his wife, of their son and nephew, of
the defendant's mother and her sisters. The guidance and opinion of …[B]… will
merely be one pointer for my assistance. It remains for this Court to determine the
probative value of …[B's]… evidence and in what manner and to what extent it is of
use in understanding the facts before the Court."
It should be noted that B's opinion was of a general nature and, unlike W's
opinion, did not involve an opinion on the credibility of D. B also had no personal
interviews with D.
In S v M the Supreme Court of Appeal assumed, in favour of the state, that the
opinion of a qualified and experienced social worker and the opinion of a clinical
psychologist to the effect that the complainant had all the symptoms of child
abuse, were admissible. The court noted, however, that it was not bound by
these opinions. On the facts of the case, the court concluded that whilst the
complainant's symptoms were consistent with her allegations of sexual abuse,
other possible reasons for these symptoms were not excluded by the evidence.
8.6.1 The expert witness: the need to lay a foundation 82
The party seeking to adduce the opinion of a witness as an expert opinion must
satisfy the court that the opinion is not supererogatory — that is, not irrelevant.
For this purpose the court must be satisfied: (a) that the witness not only has
specialist knowledge, training, skill or experience but can furthermore, on account
of these attributes or qualities, assist the court in deciding the issues; 83(b) that
the witness is indeed an
3rd Ed, 2009 ch8-p96
expert for the purpose for which he is called upon to express an opinion; 84 and
(c) that the witness does not or will not express an opinion on hypothetical facts,
that is, facts which have no bearing on the case or which cannot be reconciled
with all the other evidence in the case. 85
In Menday v Protea Assurance Co Ltd Addleson J said: 86
"In essence the function of an expert is to assist the Court to reach a conclusion on
matters on which the Court itself does not have the necessary knowledge to decide.
It is not the mere opinion of the witness which is decisive but his ability to satisfy
the Court that, because of his special skill, training or experience, the reasons for
the opinion which he expresses are acceptable ... However eminent an expert may
be in a general field, he does not constitute an expert in a particular sphere unless
by special study or experience he is qualified to express an opinion on that topic.
The dangers of holding otherwise — of being overawed by a recital of degrees and
diplomas — are obvious; the Court has then no way of being satisfied that it is not
being blinded by pure 'theory' untested by knowledge or practice. The expert must
either himself have knowledge or experience in the special field on which he testifies
(whatever general knowledge he may also have in pure theory) or he must rely on
the knowledge or experience of others who themselves are shown to be acceptable
experts in that field."
In Mahomed v Shaik it was said that it is the function of the court to decide
whether an "expert" has the necessary qualifications and experience to enable
him to express reliable opinions. In this case it was held that a general medical
practitioner — even though he held the degrees MB ChB and had four years'
experience — was not qualified to speak authoritatively on the significance of
findings in a pathologist's report concerning the fertility of semen.
Formal qualifications are not always essential; and in many instances the
practical experience of the witness may be decisive. An experienced stock farmer
may, for example, give expert evidence as to the value of cattle. 88 The
fundamental
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test still is whether the evidence can assist the court — and the result is that in
certain circumstances formal qualifications without practical experience may not
be enough to qualify the witness as an expert. 89
8.6.2 Reasons for opinion and probative value of the opinion

Expert witnesses are in principle required to support their opinions with valid
reasons. But no hard-and-fast rule can be laid down. Much will depend on the
nature of the issue and the presence or absence of an attack on the opinion of
the expert. 90
If proper reasons are advanced in support of an opinion, the probative value of
such opinion will of necessity be strengthened. 91 In Coopers (South Africa) (Pty)
Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung Mbh it was said: 92
"[A]n expert's opinion represents his reasoned conclusion based on certain facts or
data, which are either common cause, or established by his own evidence or that of
some other competent witness. Except possibly where it is not controverted, an
expert's bald statement of his opinion is not of any real assistance. Proper evaluation
of the opinion can only be undertaken if the process of reasoning which led to the
conclusion, including the premises from which the reasoning proceeds, are disclosed
by the expert."
There are extreme cases where expert evidence can be so technical that the court
may not be in a position to follow the exact reasoning of the expert or observe
the specific points of identification. In such an instance great emphasis will be
placed upon the general repute of the witness's profession and the absence or
presence of possible bias. In R v Nksatlala it was said: 93
"[A] Court should not blindly accept and act upon the evidence of an expert witness,
even of a finger-print expert, but must decide for itself whether it can safely accept
the expert's opinion. But once it is satisfied that it can so accept it, the Court gives
effect to that conclusion even if its own observation does not positively confirm it."
In S v Blom the accused was charged with, amongst other crimes, murder. Two
police fingerprint experts testified for the prosecution. At first they had not
prepared comparative charts in respect of the fingerprints found at the scene of
the crime, as their department had a policy not to do so unless there were at
least eight points of identification in comparing the fingerprints of the accused
with those found at the scene of the crime. In this case they could find only
seven. Both the witnesses were satisfied that seven points of identification were
more than sufficient to identify a fingerprint beyond any doubt, and that the
fingerprint in question was that of the accused. It transpired that the prosecutor
had told the defence counsel
3rd Ed, 2009 ch8-p98
that only five points of identification had been found. This corresponded with the
evidence of the investigating officer. When the two fingerprint experts were asked
to indicate the points of identification in court their evidence was unsatisfactory in
a number of respects. The court accordingly held that there was a reasonable
doubt as to whether the fingerprint was that of the accused, despite the fact that
the two fingerprint experts had no doubt in their minds.
In a number of cases 95 the courts have accepted the results of chemical
blood-alcohol concentration tests despite opinions by medical doctors that the
clinical observations of the accused did not correspond with the blood-alcohol
level determined in the tests.
S v Van As contains important observations and findings as regards expert
opinion evidence. In this case Kirk-Cohen J — apart from emphasising that in
appropriate cases expert evidence is adduced to place the court in a better
position to decide the issues — also distinguished between two situations: the
first is where the expert's opinion is based on that of recognized writers or
authority in the science concerned; the second is where the expert has personally
conducted experiments and then in court bases his opinion on the results of his
experiments. It was said that in the latter instance it is easier for the court to
follow the evidence, to accept it and to rely on it in deciding the issue. The
expert's presentation can obviously also enhance the value of his testimony. 97
In S v M Kriegler J was most emphatic that a court should not lightly discard
an expert's opinion where no factual premise of his or her evidence is unsound
and where his or her opinion — and the reasons therefor — have been furnished
3rd Ed, 2009 ch8-p99
in a satisfactory manner. But experts can make mistakes! In S v Venter Nestadt

JA approved the trial court's rejection of expert testimony: 99
"[T]he State pathologist who performed the post-mortem examination on the body
of the child supported the appellant's denial. His opinion was that the child's head
was not submerged in the water. The trial Court, however, refused to accept that
this was so. This was a bold approach. One does not lightly depart from the
uncontroverted views of an impartial, well-qualified and experienced expert. But I
am persuaded that in the present matter it was warranted. The reasons given by
Southwood J for rejecting the doctor's evidence are weighty. Consider the following.
The photographs clearly show that the child sustained burn injuries to his head and
face; the condition of the inner lining of the windpipe was consistent with the
swallowing of hot water; the lungs contained fluid; and there is the singular,
undisputed feature that despite the injuries having been immediately painful
(intensely so, I would have thought), the child did not cry out or scream. The
cumulative effect of what has been referred to supports the trial court's finding that
the appellant 'plunged [the child] into the water and that his head was immersed for
a number of seconds' and that there was therefore no chance for the child to cry out
... Confirmation that the child's head was submerged in the water comes from the
appellant himself."
Support for the above approach can be found in Motor Vehicle Assurance Fund v
Kenny, where Eksteen J observed that direct credible evidence of what happened
in a collision must generally be accorded greater weight than the opinion of an
expert who attempts to reconstruct the actual events on the basis of his
experience and scientific training. After all, there can in principle be no obstacle
to accepting direct credible evidence even though such evidence is in conflict with
probabilities which arise from expert opinion evidence. 101
The opinion of an expert must be ignored — and should strictly speaking be
considered inadmissible — if it is based on some hypothetical situation which has
no relation to the facts in issue or which is entirely inconsistent with the facts
found proved. 102 This is a frequent problem where a psychiatrist relies solely on
an accused's version of the events in assessing his or her mental condition for
purposes of determining criminal responsibility. 103 In S v Harris Ogilvie
Thompson JA said: 104
"[I]n the ultimate analysis, the crucial issue of appellant's criminal responsibility for
his actions at the relevant time is a matter to be determined, not by the
psychiatrists, but by the Court itself. In determining that issue the Court — initially,
the trial Court; and, on appeal, this Court — must of necessity have regard not only
to the expert medical evidence but also to all the other facts of the case, including
the reliability of appellant as a witness and the nature of his proved actions
throughout the relevant period."
It is important that an expert witness should remain objective despite the fact
that he is — in terms of our adversarial system — called by a party to testify in
support of the latter's case: 105 "If he is to be helpful he must be neutral. The
3rd Ed, 2009 ch8-p100
[opinion of an expert] is of little value where he ... is partisan and consistently

asserts the cause of the party who calls him." In S v Kotze Lombard J relied
heavily on the opinions of experts — not only because they had advanced reasons
in support of their conclusions but also because their opinions had the "stempel
van objektiewe professionalisme".
No reliance can be placed on an expert's opinion if counsel puts his own
interpretation to the expert witness. 107 In this way "the expert does not put his
evidence across in his own words viva voce, but hides behind the words of
counsel". 108
When it comes to assessing the testimony of an expert, an appeal court is in
as good a position as the trial court to test the reasoning of the expert. 109
8.6.3 Hearsay and expert opinion

Hearsay evidence is defined in § 13.1 below. An expert witness may not as a rule
base his opinions on statements made by a person not called as a witness (but
see § 8.6.4 below). In Southern Transvaal Buildings (Pty) Ltd v Johannesburg
City Council it was held that even though expert witnesses expressing opinions on
the value of land may not utilise or rely upon conclusions arrived at by other
valuers not called as witnesses, they may rely on other hearsay.
An expert witness may be allowed to rely on information which would
technically be hearsay, but which may be admitted if the conditions set out in §
8.6.4 below are satisfied. The realities of practice demand that impossible
standards should not be set. In S v Kimimbi it was said:
"No one professional man can know from personal observations more than a minute
fraction of the data which he must every day treat as working truths. Hence a
reliance on the reported data of fellow scientists learned by perusing their reports in
books and journals. The law must and does accept this kind of knowledge from
scientific men...[T]o reject a profession physician or mathematician because the fact
or some of the facts to which he testifies are known to him only
3rd Ed, 2009 ch8-p101

upon the authority of others, would be to ignore the accepted methods of
professional work and to insist on impossible standards."
8.6.4 The expert referring to textbooks

The expert who relies on information contained in a textbook written by someone
who is not called as a witness, does in fact make use of hearsay. But he is
allowed to do so if the following conditions as set out in Menday v Protea
Assurance Co Ltd are satisfied: 112
"Where ... an expert relies on passages in a text-book, it must be shown, firstly, that
he can, by reason of his own training, affirm (at least in principle) the correctness of
the statements in that book; and, secondly, that the work to which he refers is
reliable in the sense that it has been written by a person of established repute or
proved experience in that field. In other words, an expert with purely theoretical
knowledge cannot in my view support his opinion in a special field (of which he has
no personal experience or knowledge) by referring to passages in a work which has
itself not been shown to be authoritative...[T]he dangers of holding the contrary are
obvious."
It is irregular for the court to rely upon publications (or portions thereof) not
referred to and adopted by an expert witness. 113
Footnote - 66
66 See generally S v Gouws1967 (4) SA 527 (E) 528.See also generally the doctoral thesis of
Meintjes-Van der Walt Expert Evidence in the Criminal Justice Process — A Comparative Perspective
(2001) as well as the following articles by the same author: 2000 CILSA 348; 2000 SACJ 319; 2000
SALJ 771; 2000 SACJ 145; 2001 Stell LR 283; 2006 SACJ 152; 2008 SACJ 22; 2001 THRHR 236.
66 See generally S v Gouws1967 (4) SA 527 (E) 528.See also generally the doctoral thesis of
Meintjes-Van der Walt Expert Evidence in the Criminal Justice Process — A Comparative
Perspective (2001) as well as the following articles by the same author: 2000 CILSA 348; 2000
SACJ 319; 2000 SALJ 771; 2000 SACJ 145; 2001 Stell LR 283; 2006 SACJ 152; 2008 SACJ 22;
2001 THRHR 236.
Footnote - 67
67 See n 39 above.
67 See n 39 above.
Footnote - 68
68 See § 8.5.2 above.
68 See § 8.5.2 above.
Footnote - 69
69 1972 (1) SA 589 (A) 616H.In S v Vause1997 (2) SACR 395 (N) such help came from an expert
who specialised in the reconstruction of motor car accidents.See also S v Ngomane2007 (2) SACR
535 (W) , where a full bench, rejecting the approach adopted in S v Kleynhans2005 (2) SACR 582
(W), stressedthe valuable contribution that a probation officer can make to the sentencing process.
See also generally Price 2006 SACJ 141, who discusses the "appreciable help" standard with special
reference to S v Ferreira2004 (2) SACR 454 (SCA).
69 1972 (1) SA 589 (A) 616H.In S v Vause1997 (2) SACR 395 (N) such help came from an
expert who specialised in the reconstruction of motor car accidents.See also S v Ngomane2007
(2) SACR 535 (W) , where a full bench, rejecting the approach adopted in S v Kleynhans2005
(2) SACR 582 (W), stressedthe valuable contribution that a probation officer can make to the
sentencing process. See also generally Price 2006 SACJ 141, who discusses the "appreciable
help" standard with special reference to S v Ferreira2004 (2) SACR 454 (SCA).
Footnote - 70
70 1985 (1) SA 720 (Z) 724I.
70 1985 (1) SA 720 (Z) 724I.
Footnote - 71
71 1958 (4) SA 235 (T).
71 1958 (4) SA 235 (T).
Footnote - 72
72 1997 (4) SA 766 (W).
72 1997 (4) SA 766 (W).
Footnote - 73
73 At 770H-I.
73 At 770H-I.
Footnote - 74
74 At 774D.
74 At 774D.
Footnote - 75
75 At 774E-F.
75 At 774E-F.
Footnote - 76
76 AT 775A-B.For a critical comment on this portion of Satchwell J's finding, see Zeffertt 1997
ASSAL 718 737.
76 AT 775A-B.For a critical comment on this portion of Satchwell J's finding, see Zeffertt
1997 ASSAL 718 737.
Footnote - 77
77 POWA stands for "People Opposing Women Abuse".

77 POWA stands for "People Opposing Women Abuse".
Footnote - 78
78 At 776I.
78 At 776I.
Footnote - 79
79 AT 776G.In this respect she quoted from and relied upon Hoffmann & Zeffertt South African Law
of Evidence 3 ed (1981) 85.
79 AT 776G.In this respect she quoted from and relied upon Hoffmann & Zeffertt South
African Law of Evidence 3 ed (1981) 85.
Footnote - 80
80 At 777J-779D.
80 At 777J-779D.
Footnote - 81
81 1999 (2) SACR 548 (SCA) 553e-g and 555g-556b.
81 1999 (2) SACR 548 (SCA) 553e-g and 555g-556b.
Footnote - 82
82 S v Nangutuuala1974 (2) SA 165 (SWA) 167C-E: "[T]ensy die grondslag van 'n getuie se
kundigheid gelê word — en gewoonweg word dit gedoen deur gepaste vrae aan die getuie self —
[mag] hy nie as deskundige...getuig nie. In die onderhawige saak was geen grondslag gelê nie...Geen
enkele vraag in verband òf met sy akademiese kwalifikasies òf met sy praktiese ervaring is aan [die
getuie] gestel nie." See also S v Shiini1997 (1) SACR 212 (NmHC) 214g-j.
82 S v Nangutuuala1974 (2) SA 165 (SWA) 167C-E: "[T]ensy die grondslag van 'n getuie se
kundigheid gelê word — en gewoonweg word dit gedoen deur gepaste vrae aan die getuie self
— [mag] hy nie as deskundige...getuig nie. In die onderhawige saak was geen grondslag gelê
nie...Geen enkele vraag in verband òf met sy akademiese kwalifikasies òf met sy praktiese
ervaring is aan [die getuie] gestel nie." See also S v Shiini1997 (1) SACR 212 (NmHC) 214g-j.
Footnote - 83
83 Ruto Flour Mills Ltd v Adelson (1) supra.See also Holtzhauzen v Roodt1997 (4) SA 766 (W) 772H;
Mkhize v Lourens2003 (3) SA 292 (T).
83 Ruto Flour Mills Ltd v Adelson (1) supra.See also Holtzhauzen v Roodt1997 (4) SA 766 (W)
772H; Mkhize v Lourens2003 (3) SA 292 (T).
Footnote - 84
84 Goliath v Fedgen Insurance Company Ltd 1994 2 PH F31 (E) 83: "I am, however, not satisfied
that it has been established that Victor has the necessary qualifications or expertise to give expert
evidence regarding the behaviour of a motor vehicle in cases where a driver is faced with the sudden
deflation of a tyre and the steps which should be taken by the driver to keep the vehicle under control
in such circumstances. Victor is a physicist and a motor sport enthusiast. The fact that he is a motor
sport enthusiast, without more, does not qualify him to give expert evidence of the nature to which I
have referred. There is no evidence before me to suggest that Victor has been involved in any
research, or has conducted tests on which he is able to base the views expressed by him ... An expert
must himself have knowledge or experience in the special field on which he testifies otherwise the
danger exists of a court being blinded by theory untested by knowledge or practical experience." On
the qualifications of experts in road accident reconstruction, see generally GS Fouche Vervoer BK v
Intercape Bus Service [2006] 1 All SA 24 (C) at [25] and [44]. A physician who is not expert in
ballistics cannot be asked about the shape and size of bullets which caused a wound: Barrie v R 1959
1 PH H22 (O).
84 Goliath v Fedgen Insurance Company Ltd 1994 2 PH F31 (E) 83: "I am, however, not
satisfied that it has been established that Victor has the necessary qualifications or expertise to
give expert evidence regarding the behaviour of a motor vehicle in cases where a driver is
faced with the sudden deflation of a tyre and the steps which should be taken by the driver to
keep the vehicle under control in such circumstances. Victor is a physicist and a motor sport
enthusiast. The fact that he is a motor sport enthusiast, without more, does not qualify him to
give expert evidence of the nature to which I have referred. There is no evidence before me to
suggest that Victor has been involved in any research, or has conducted tests on which he is
able to base the views expressed by him ... An expert must himself have knowledge or
experience in the special field on which he testifies otherwise the danger exists of a court being
blinded by theory untested by knowledge or practical experience." On the qualifications of
experts in road accident reconstruction, see generally GS Fouche Vervoer BK v Intercape Bus
Service [2006] 1 All SA 24 (C) at [25] and [44]. A physician who is not expert in ballistics
cannot be asked about the shape and size of bullets which caused a wound: Barrie v R 1959 1
PH H22 (O).
Footnote - 85
85 S v Mkohle1990 (1) SACR 95 (A) 100d; S v Mponda2007 (2) SACR 245 (C) at [49].
85 S v Mkohle1990 (1) SACR 95 (A) 100d; S v Mponda2007 (2) SACR 245 (C) at [49].
Footnote - 86
86 1976 (1) SA 565 (E) 569.
86 1976 (1) SA 565 (E) 569.
Footnote - 87
87 1978 (4) SA 523 (N).
87 1978 (4) SA 523 (N).
Footnote - 88
88 Van Graan v Naudé 1966 1 PH J12 (O); Sentrachem v Prinsloo1997 (2) SA 1 (A); also see S v
Mlimo2008 (2) SACR 48 (SCA), where Mthiyane JA said at [14]: "There is every reason to accept
Sindane as an expert witness. He is vastly experienced in his particular field of expertise and stated
that he has been involved in no less than 3 085 cases involving ballistics testing over a period of
more than six years. A lack of formal qualification may be an indicator that the witness has not yet
received sufficient training in the theoretical aspects in the field in which he or she gives evidence.
But this is not the case here, given the vast experience the witness has accumulated over the years.
Significantly the challenge is not about the content or substance of his evidence but, rather, that he
still had one more year to complete the course. During argument counsel offered no guidance as to
what makes an expert an expert. In my view the vast experience that Sindane had qualified him to
be an expert and the trial court was justified in accepting his evidence. In any event the challenge on
appeal is a volte face, which comes late in the day, as the appellant's attorney indicated during the
trial that Sindane's qualifications were not disputed. Accordingly it no longer lies in the appellant's
mouth at this stage to dispute the witness's qualifications."
88 Van Graan v Naudé 1966 1 PH J12 (O); Sentrachem v Prinsloo1997 (2) SA 1 (A); also see
S v Mlimo2008 (2) SACR 48 (SCA), where Mthiyane JA said at [14]: "There is every reason to
accept Sindane as an expert witness. He is vastly experienced in his particular field of expertise
and stated that he has been involved in no less than 3 085 cases involving ballistics testing
over a period of more than six years. A lack of formal qualification may be an indicator that the
witness has not yet received sufficient training in the theoretical aspects in the field in which he
or she gives evidence. But this is not the case here, given the vast experience the witness has
accumulated over the years. Significantly the challenge is not about the content or substance
of his evidence but, rather, that he still had one more year to complete the course. During
argument counsel offered no guidance as to what makes an expert an expert. In my view the
vast experience that Sindane had qualified him to be an expert and the trial court was justified
in accepting his evidence. In any event the challenge on appeal is a volte face, which comes
late in the day, as the appellant's attorney indicated during the trial that Sindane's
qualifications were not disputed. Accordingly it no longer lies in the appellant's mouth at this
stage to dispute the witness's qualifications."
Footnote - 89
89 Van Heerden v SA Pulp and Paper Industries Ltd 1945 2 PH J14 (W) 31-2.
89 Van Heerden v SA Pulp and Paper Industries Ltd 1945 2 PH J14 (W) 31-2.
Footnote - 90
90 S v Ramgobin1986 (4) SA 117 (N) 146; S v Mthimkulu1975 (4) SA 759 (A); S v Claassen1976
(2) SA 281 (O).
90 S v Ramgobin1986 (4) SA 117 (N) 146; S v Mthimkulu1975 (4) SA 759 (A); S v

Claassen1976 (2) SA 281 (O).
Footnote - 91
91 S v Kotze1994 (2) SACR 214 (O).S v Mkhize1998 (2) SACR 478 (W) is an example of a case
where the bald statement of an expert's opinion did not carry any weight.The expert had lost the
exhibits and was unable to give reasons for his opinion.
91 S v Kotze1994 (2) SACR 214 (O).S v Mkhize1998 (2) SACR 478 (W) is an example of a
case where the bald statement of an expert's opinion did not carry any weight.The expert had
lost the exhibits and was unable to give reasons for his opinion.
Footnote - 92
92 1976 (3) SA 352 (A) 371F-H. See also S v Mokgiba1999 (1) SACR 534 (O); and S v Zuma2006
(2) SACR 191 (W).
92 1976 (3) SA 352 (A) 371F-H. See also S v Mokgiba1999 (1) SACR 534 (O); and S v
Zuma2006 (2) SACR 191 (W).
Footnote - 93
93 1960 (3) SA 543 (A) 546D.
93 1960 (3) SA 543 (A) 546D.
Footnote - 94
94 1992 (1) SACR 649 (E). In Maritime & General Insurance Co v Sky Unit Engineering (Pty)
Ltd1989 (1) SA 867 (T) 877 the court rejected an argument to the effect that a court may not — in
regard to scientific issues — draw its own conclusions based on criteria identified by experts.
94 1992 (1) SACR 649 (E). In Maritime & General Insurance Co v Sky Unit Engineering (Pty)
Ltd1989 (1) SA 867 (T) 877 the court rejected an argument to the effect that a court may not
— in regard to scientific issues — draw its own conclusions based on criteria identified by
experts.
Footnote - 95
95 See, eg, S v Boyce1990 (1) SACR 13 (T); S v De Leeuw1990 (2) SACR 165 (NC); S v Abel1990
(2) SACR 367 (C).
95 See, eg, S v Boyce1990 (1) SACR 13 (T); S v De Leeuw1990 (2) SACR 165 (NC); S v
Abel1990 (2) SACR 367 (C).
Footnote - 96
96 1991 (2) SACR 74 (W).
96 1991 (2) SACR 74 (W).
Footnote - 97
97 See Bartlett "The Preparation of Experts' Reports" 1994 60 Journal of the Chartered Institute of
Arbitrators 94 for a useful discussion of the various considerations that must be taken into account
when the report of an expert is prepared.Where possible, expert evidence should be presented in
such a way that the court is in a position to make the observations on which the expert relied for his
opinions. See S v Ntathi1997 (1) SACR 90 (C).
97 See Bartlett "The Preparation of Experts' Reports" 1994 60 Journal of the Chartered
Institute of Arbitrators 94 for a useful discussion of the various considerations that must be
taken into account when the report of an expert is prepared.Where possible, expert evidence
should be presented in such a way that the court is in a position to make the observations on
which the expert relied for his opinions. See S v Ntathi1997 (1) SACR 90 (C).
Footnote - 98
98 1991 (1) SACR 91 (T). In this case a specialist psychiatrist had testified in mitigation of an
accused who was addicted to pethidine. The psychiatrist strongly advised against sending the accused
to prison. In the opinion of the psychiatrist the accused needed extensive psychotherapy (including
chemotherapy) under controlled conditions and combined with a gradual process of reintegration into
society. The trial court refused to rely on this opinion. On appeal Kriegler J remarked as follows (at
99j-100c, emphasis in the original): "A court's approach to expert evidence has been dealt with on
many occasions. The court is not bound by expert evidence. It is the presiding officer's function
ultimately to make up his own mind. He has to evaluate the expertise of the witness. He has to weigh
the cogency of the witness's evidence in the contextual matrix of the case with which he is seized. He
has to gauge the quality of the expert qua witness. However, the wise judicial officer does not lightly
reject expert evidence on matters falling within the purview of the expert witness's field. The judicial
process is difficult enough. And the determination of an appropriate sentence is always vexed. It is all
the more so in a case such as the one with which we are now dealing. A wise judicial officer will
gather unto himself such aids as he can find. One does not spurn proffered aid lightly. Here a highly
qualified and obviously well informed expert proffered not only expert evidence but volunteered
valuable assistance in the future handling of the prisoner before the court. That witness dealt with
questions beyond the field of ken of laymen. One does not reject such evidence readily where the
expert has furnished his opinions — and the foundational reasons therefore — in a satisfactory
manner. Here the diagnosis, prognosis and prescribed treatment were clearly articulated and
carefully, if not painstakingly, explained." At 100g it was said that the psychiatrist's evidence "was
uncontroverted by any factual or opinion evidence. It was thoroughly tested and was in all respects
persuasive and weighty. It should have been accepted, not rejected."
98 1991 (1) SACR 91 (T). In this case a specialist psychiatrist had testified in mitigation of an
accused who was addicted to pethidine. The psychiatrist strongly advised against sending the
accused to prison. In the opinion of the psychiatrist the accused needed extensive
psychotherapy (including chemotherapy) under controlled conditions and combined with a
gradual process of reintegration into society. The trial court refused to rely on this opinion. On
appeal Kriegler J remarked as follows (at 99j-100c, emphasis in the original): "A court's
approach to expert evidence has been dealt with on many occasions. The court is not bound by
expert evidence. It is the presiding officer's function ultimately to make up his own mind. He
has to evaluate the expertise of the witness. He has to weigh the cogency of the witness's
evidence in the contextual matrix of the case with which he is seized. He has to gauge the
quality of the expert qua witness. However, the wise judicial officer does not lightly reject
expert evidence on matters falling within the purview of the expert witness's field. The judicial
process is difficult enough. And the determination of an appropriate sentence is always vexed.
It is all the more so in a case such as the one with which we are now dealing. A wise judicial
officer will gather unto himself such aids as he can find. One does not spurn proffered aid
lightly. Here a highly qualified and obviously well informed expert proffered not only expert
evidence but volunteered valuable assistance in the future handling of the prisoner before the
court. That witness dealt with questions beyond the field of ken of laymen. One does not reject
such evidence readily where the expert has furnished his opinions — and the foundational
reasons therefore — in a satisfactory manner. Here the diagnosis, prognosis and prescribed
treatment were clearly articulated and carefully, if not painstakingly, explained." At 100g it was
said that the psychiatrist's evidence "was uncontroverted by any factual or opinion evidence. It
was thoroughly tested and was in all respects persuasive and weighty. It should have been
accepted, not rejected."
Footnote - 99
99 1996 (1) SACR 664 (A) 666f-j.
99 1996 (1) SACR 664 (A) 666f-j.
Footnote - 100
100 1984 (4) SA 432 (E).
100 1984 (4) SA 432 (E).
Footnote - 101
101 Mapota v Santamversekeringsmaatskappy Bpk1977 (4) SA 515 (A). See also § 30.2.2 below.
101 Mapota v Santamversekeringsmaatskappy Bpk1977 (4) SA 515 (A). See also § 30.2.2
below.
Footnote - 102
102 See generally S v Mkohle1990 (1) SACR 95 (A) 100c-d; S v Mngomezulu1972 (1) SA 797 (A);
S v Boyce1990 (1) SACR 13 (T) 19.In S v Malinga2002 (1) SACR 615 (N) 618g the expert's opinion
was deprived of a factual basis because the evidence of the complainant was inadmissible.
102 See generally S v Mkohle1990 (1) SACR 95 (A) 100c-d; S v Mngomezulu1972 (1) SA
797 (A); S v Boyce1990 (1) SACR 13 (T) 19.In S v Malinga2002 (1) SACR 615 (N) 618g the
expert's opinion was deprived of a factual basis because the evidence of the complainant was
inadmissible.
Footnote - 103
103 See generally S v Loubscher1979 (3) SA 47 (A) 57F-G and 60B-C.
103 See generally S v Loubscher1979 (3) SA 47 (A) 57F-G and 60B-C.
Footnote - 104
104 1965 (2) SA 340 (A) 365B-C (emphasis added).
104 1965 (2) SA 340 (A) 365B-C (emphasis added).
Footnote - 105
105 Stock v Stock1981 (3) SA 1280 (A) 1296E. See also P v P2007 (5) SA 94 (SCA) at [18] and
[21].
105 Stock v Stock1981 (3) SA 1280 (A) 1296E. See also P v P2007 (5) SA 94 (SCA) at [18]
and [21].
Footnote - 106
106 1994 (2) SACR 214 (O) 225i. However, a court must keep in mind the difference between
scientific standards of proof applied by experts and judicial measure of proof to be applied by the
court itself. See Michael v Linksfield Park Clinic (Pty) Ltd2001 (3) SA 1188 (SCA).
106 1994 (2) SACR 214 (O) 225i. However, a court must keep in mind the difference between
scientific standards of proof applied by experts and judicial measure of proof to be applied by
the court itself. See Michael v Linksfield Park Clinic (Pty) Ltd2001 (3) SA 1188 (SCA).
Footnote - 107
107 S v Zwane (3)1989 (3) SA 253 (W) 278H. Zeffertt 1989 ASSAL 421 points out, however, that
"reliance could be placed on it if it were an interpretation that were to be accepted by either the court
or the witness (or both)".
107 S v Zwane (3)1989 (3) SA 253 (W) 278H. Zeffertt 1989 ASSAL 421 points out, however,
that "reliance could be placed on it if it were an interpretation that were to be accepted by
either the court or the witness (or both)".
Footnote - 108
108 S v Baleka (3)1986 (4) SA 1005 (T) 1021D.
108 S v Baleka (3)1986 (4) SA 1005 (T) 1021D.
Footnote - 109
109 Stock v Stock1981 (3) SA 1280 (A) 1296F and Jackson v Jackson2002 (2) SA 303 (SCA). As
regards the assessment of conflicting views of experts,see Michael v Linksfield Park Clinic (Pty)
Ltd2001 (3) SA 1188 (SCA); Louwrens v Oldwage2006 (2) SA 161 (SCA); Abdo NO v Senator
Insurance Co Ltd1983 (4) SA 721 (E) and GS Fouche Vervoer BK v Intercape Bus Service [2006] 1 All
SA 24 (C). See also § 30.2.2 below.As regards the assessment of the expert's opinion where the facts
upon which the expert relies are not borne out by the evidence of the accused, see S v
Engelbrecht2005 (2) SACR 41 (W).
109 Stock v Stock1981 (3) SA 1280 (A) 1296F and Jackson v Jackson2002 (2) SA 303 (SCA).
As regards the assessment of conflicting views of experts,see Michael v Linksfield Park Clinic
(Pty) Ltd2001 (3) SA 1188 (SCA); Louwrens v Oldwage2006 (2) SA 161 (SCA); Abdo NO v
Senator Insurance Co Ltd1983 (4) SA 721 (E) and GS Fouche Vervoer BK v Intercape Bus
Service [2006] 1 All SA 24 (C). See also § 30.2.2 below.As regards the assessment of the
expert's opinion where the facts upon which the expert relies are not borne out by the evidence
of the accused, see S v Engelbrecht2005 (2) SACR 41 (W).
Footnote - 110
110 1979 (1) SA 949 (W) 959.Zeffertt 2000 ASSAL 795 802 observes as follows: "A valuator who
gives expert evidence about the value of an immovable is obliged to consider everything relevant to
that assessment. It follows that he may gather relevant hearsay evidence to that end and relay it to
the court.Visagie v Gerryts2000 (3) SA 670 (C) at 680E-F.That was certainly true at common
law.What nearly everyone seems to forget (or, at least, to articulate in this context) is that we have
had a statute governing hearsay since 1988.That statute, the Law of Evidence Amendment Act,
makes hearsay inadmissible unless it be received in terms of s 3 of the statute or some other law.This
raises the question: Is an exception at common law, which allows hearsay to be admitted as a basis
for an expert's opinion, a 'law' within the meaning of s 3?It had better be — otherwise the reception
of this kind of evidence, which is so frequently admitted by our courts without recourse to the
statutory discretion contained in s 3, is quite inexplicable unless the true answer is that we have no
common-law rules of evidence and that our law of evidence is and always has been imported and
included, or codified, by statute.If that be so, it is about time that we all recognized and expressed
it."
110 1979 (1) SA 949 (W) 959.Zeffertt 2000 ASSAL 795 802 observes as follows: "A valuator
who gives expert evidence about the value of an immovable is obliged to consider everything
relevant to that assessment. It follows that he may gather relevant hearsay evidence to that
end and relay it to the court.Visagie v Gerryts2000 (3) SA 670 (C) at 680E-F.That was certainly
true at common law.What nearly everyone seems to forget (or, at least, to articulate in this
context) is that we have had a statute governing hearsay since 1988.That statute, the Law of
Evidence Amendment Act, makes hearsay inadmissible unless it be received in terms of s 3 of
the statute or some other law.This raises the question: Is an exception at common law, which
allows hearsay to be admitted as a basis for an expert's opinion, a 'law' within the meaning of s
3?It had better be — otherwise the reception of this kind of evidence, which is so frequently
admitted by our courts without recourse to the statutory discretion contained in s 3, is quite
inexplicable unless the true answer is that we have no common-law rules of evidence and that
our law of evidence is and always has been imported and included, or codified, by statute.If
that be so, it is about time that we all recognized and expressed it."
Footnote - 111
111 1963 (3) SA 250 (C) 251H-252A.
111 1963 (3) SA 250 (C) 251H-252A.
Footnote - 112
112 1976 (1) SA 565 (E) 569H.
112 1976 (1) SA 565 (E) 569H.
Footnote - 113
113 S v Collop1981 (1) SA 150 (A); S v Harris1965 (2) SA 340 (A) 344C-D; S v Jones2004 (1)
SACR 420 (C).
113 S v Collop1981 (1) SA 150 (A); S v Harris1965 (2) SA 340 (A) 344C-D; S v Jones2004
(1) SACR 420 (C).
Document 68 of 330
8.7 Procedural Aspects

Rule 24(9) of the rules of the magistrates' courts and rule 36(9) of the rules of
the Supreme Court provide as follows:
"(9) No person shall, save with the leave of the court or the consent of all parties
to the suit, be entitled to call as a witness any person to give evidence as an
expert upon any matter upon which the evidence of expert witnesses may be
received, unless he shall –
(a) not less than fifteen days before the hearing, have delivered notice of his
intention so to do; and
(b) not less than ten days before the trial, have delivered a summary of such
expert's opinion and his reasons therefor."
The above rules are confined to civil cases. 114 In criminal cases prior disclosure
may be demanded — and should generally be granted — on constitutional
grounds. 115
In both civil and criminal cases there are certain statutory provisions which
permit expert evidence by way of affidavit or certificate. These provisions —
which are discussed in chapter 15 — do not, however, preclude the calling of the
witness in person. 116
There is a series of conflicting and confusing South African cases not only on
the procedure to be adopted where an expert testifies from his written report but
also on the question to what extent the written report — as opposed to the viva
voce
3rd Ed, 2009 ch8-p102
evidence — is received as evidence. 117 It is submitted that the following

principles govern the situation: 118
(a) "Not infrequently", said Milne JP in S v Ramgobin, "experts are permitted to
refresh their memories from reports and notes, and the reports and notes
are, not infrequently, put in as exhibits. They are not, however, the
evidence. The evidence is the oral evidence given by the expert, and the
notes are merely an aide-memoire." 120 It is submitted that this principle
applies only to situations which can be described as "present recollection
revived" — a concept which is explained in § 24.2 below. In this instance
the expert's report and notes have no independent probative value.
(b) Where the expert witness — after consultation of his report and notes — has
no independent recollection of the case and can merely vouch for the
accuracy of his recorded observations the contents of the report must be
received as the evidence. 121 This situation can be referred to as "past
recollection recorded" — a concept which is explained in § 24.2 below.
(c) In both (a) and (b) above the expert should — as a matter of convenience —
be permitted to read out his report. 122 This is a necessary exception 123 to
the general rule that witnesses are not permitted to read from statements
prepared for purposes of the trial. 124 The expert witness should in principle
confirm the correctness of his report and state his adherence to it — and he
must do so in the case of "past recollection recorded".
Footnote - 114
114 On the purpose and application of these rules, see Doyle v Sentraboer Co-operative (Ltd)1993
(3) SA 176 (SE) 180-1.
114 On the purpose and application of these rules, see Doyle v Sentraboer Co-operative
(Ltd)1993 (3) SA 176 (SE) 180-1.
Footnote - 115
115 Shabalala v Attorney-General of Transvaal & another1995 (2) SACR 761 (CC) para [72]. See §
11.5 below.
115 Shabalala v Attorney-General of Transvaal & another1995 (2) SACR 761 (CC) para [72].
See § 11.5 below.
Footnote - 116
116 See generally s 212 of the CPA and s 22 of the CPEA.
116 See generally s 212 of the CPA and s 22 of the CPEA.
Footnote - 117
117 See and compare generally R v Van Schalkwyk1948 (2) SA 1000 (O); R v K1951 (3) SA 180
(SWA); R v Birch-Monchrieff1960 (4) SA 425 (T); S v Joubert1971 (3) SA 924 (E).See further
Meintjes-Van der Walt Expert Evidence in the Criminal Justice Process — A Comparative Perspective
128-30.
117 See and compare generally R v Van Schalkwyk1948 (2) SA 1000 (O); R v K1951 (3) SA
180 (SWA); R v Birch-Monchrieff1960 (4) SA 425 (T); S v Joubert1971 (3) SA 924 (E).See
further Meintjes-Van der Walt Expert Evidence in the Criminal Justice Process — A Comparative
Perspective 128-30.
Footnote - 118
118 See also generally Van der Merwe Die Geheueverfrissingsprosedure (unpubl LLD thesis, UCT
1988) 269-80.
118 See also generally Van der Merwe Die Geheueverfrissingsprosedure (unpubl LLD thesis,
UCT 1988) 269-80.
Footnote - 119
119 1986 (4) SA 117 (N).
119 1986 (4) SA 117 (N).
Footnote - 120
120 1986 (4) SA 117 (N) 146F-G.
120 1986 (4) SA 117 (N) 146F-G.
Footnote - 121
121 See generally S v Bergh1976 (4) SA 857 (A) 865C-D.
121 See generally S v Bergh1976 (4) SA 857 (A) 865C-D.
Footnote - 122
122 Wigmore para 787 (emphasis in the original): "Sometimes a prepared statement has
advantages. In many cases, especially where an expert witness upon a subject of scientific
knowledge has made an investigation or analysis and is called to testify, it makes for his own lucidity
and accuracy, and for better comprehension and valuation of his testimony, if he first reads his
written report stating in precise terms his observations and inferences. This practice should be freely
permitted."
122 Wigmore para 787 (emphasis in the original): "Sometimes a prepared statement has
advantages. In many cases, especially where an expert witness upon a subject of scientific
knowledge has made an investigation or analysis and is called to testify, it makes for his own
lucidity and accuracy, and for better comprehension and valuation of his testimony, if he first
reads his written report stating in precise terms his observations and inferences. This practice
should be freely permitted."
Footnote - 123
123 S v Heller (1)1964 (1) SA 520 (W) 522B-523D.
123 S v Heller (1)1964 (1) SA 520 (W) 522B-523D.
Footnote - 124
124 See §§ 18.1 and 24.1 below.
124 See §§ 18.1 and 24.1 below.
Document 69 of 330
8.8 The Rule In Hollington

The earlier criminal convictions of a party are inadmissible for purposes of
subsequent civil proceedings. In Hollington v F Hewthorn & Co Ltd it was held,
inter alia, that the opinion of the previous tribunal was irrelevant. 125 Sections 11,
12 and 13 of the English Civil Evidence Act 1968 have made previous judgments
admissible in certain specified instances. In South Africa we are still bound by the
English common-law rule as embodied in Hollington.
3rd Ed, 2009 ch8-p103
In S v Khanyapa Rumpff CJ gave an indication that the rule in Hollington may

in future be overruled by the Appellate Division. It is submitted that in order to do
so some extraordinary judicial footwork would be necessary to circumvent our
residuary clause as found in s 42 of the CPEA. 127 But is the rule in Hollington
archaic and irrational? In Land Securities plc v Westminster City Council
Hoffmann J applied the rule in Hollington to proceedings which fell outside the
ambit of the Civil Evidence Act 1968: an arbitrator's previous finding was held
inadmissible in respect of the facts in dispute because such previous finding was
considered an irrelevant opinion.
In S v Mavuso Hefer J raised, but did not decide, the following question: does
the rule in Hollington prohibit proof of an accused's previous convictions in a trial
in which the prosecution seeks to prove such convictions for purposes of the
merits of the case, and assuming such previous convictions are indeed relevant?
Zeffertt responded as follows: 130
"[This] question has been asked of me, by students, at least once a year for the last
twenty years. My reply has always been that the strange rule in Hollington v
Hewthorne (which is to the effect that the fact of a conviction by a criminal court is
not evidence — not even prima facie evidence — in a subsequent civil case, that the
accused had committed the act for which he was convicted since it is the irrelevant
opinion of another court) is generally regarded as wrong. Although it has been held
to bind us in civil cases by virtue of the Civil Proceedings Evidence Act 25 of 1965
(see Yusuf v Bailey1964 (4) SA 117 (W)), it has not been applied in proceedings that
are not civil proceedings within the meaning of that Act (for instance, in proceedings
to strike an attorney off the roll: Hassim (also known as Essack) v Incorporated Law
Society of Natal1977 (2) SA 757 (A)). It should not be extended to criminal
proceedings either — a submission that is supported by the fact that s 211 of the
Criminal Procedure Act 1977 envisages the proof of a previous conviction and, as we
have seen, s 197(d) allows an accused's previous conviction to be put to him if
relevant...The fact that my students have always seemed totally unconvinced by this
reply in no way derogates from my conviction that it is the true answer."
We are as unpersuaded as Professor Zeffertt's students, but can find no quarrel

with his argument! At any rate, how must one explain proof of admissible similar
fact evidence 131 by way of previous convictions?
Statutory repeal of the rule in Hollington is probably necessary. 132
Footnote - 125
125 1943 2 All ER 35. It was held that a conviction of negligent driving in a criminal case was not
admissible in a subsequent civil action for damages.See Cowen & Carter Essays on the Law of
Evidence 172-204 for a detailed discussion of this rule. However, see Customs Tariff Consultants CC v
Mustek Ltd2002 (6) SA 403 (W) in respect of consolidated proceedings regarding a sister case before
the same tribunal.
125 1943 2 All ER 35. It was held that a conviction of negligent driving in a criminal case was
not admissible in a subsequent civil action for damages.See Cowen & Carter Essays on the Law
of Evidence 172-204 for a detailed discussion of this rule. However, see Customs Tariff
Consultants CC v Mustek Ltd2002 (6) SA 403 (W) in respect of consolidated proceedings
regarding a sister case before the same tribunal.
Footnote - 126
126 1979 (1) SA 824 (A) 840.
126 1979 (1) SA 824 (A) 840.
Footnote - 127
127 See ch 3 above.
127 See ch 3 above.
Footnote - 128
128 1993 4 All ER 124 128h; also see Van Zyl v Jonathan Ball Publishers (Pty) Ltd1999 (4) SA 571
(W); Rail Commuter Action Group v Transnet Ltd t/a Metrorail (No 1)2003 (5) SA 518 (C); Msunduzi
Municipality v Natal Joint Municipal Pension/Provident Fund2007 (1) SA 142 (N).
128 1993 4 All ER 124 128h; also see Van Zyl v Jonathan Ball Publishers (Pty) Ltd1999 (4)
SA 571 (W); Rail Commuter Action Group v Transnet Ltd t/a Metrorail (No 1)2003 (5) SA 518
(C); Msunduzi Municipality v Natal Joint Municipal Pension/Provident Fund2007 (1) SA 142 (N).
Footnote - 129
129 S v Mavuso1987 (3) SA 499 (A) 505F.
129 S v Mavuso1987 (3) SA 499 (A) 505F.
Footnote - 130
130 1987 ASSAL 433. See also Van der Berg 1987 Obiter 128.
130 1987 ASSAL 433. See also Van der Berg 1987 Obiter 128.
Footnote - 131
131 See ch 7 above.
131 See ch 7 above.
Footnote - 132
132 However, in its report Review of the Law of Evidence: Project 6 (1986) para 18 5, the SA Law
Commission was not prepared to recommend statutory repeal of Hollington, claiming, inter alia, that
to attach probative value to the first court's decision would in effect mean declaring something that is
irrelevant to be relevant.
132 However, in its report Review of the Law of Evidence: Project 6 (1986) para 18 5, the SA
Law Commission was not prepared to recommend statutory repeal of Hollington, claiming, inter
alia, that to attach probative value to the first court's decision would in effect mean declaring
something that is irrelevant to be relevant.
Document 70 of 330
Chapter 9
Previous Consistent Statements
S E van der Merwe
9.1 Introduction
9.2 Rationale for the exclusion of previous consistent statements
9.3 An example from case law
9.4 Exceptions to the general rule
9.5 To rebut a suggestion of recent fabrication
9.6 Complaints in sexual cases where there is a victim
9.6.1 Voluntary complaint
9.6.1.1 The common law
9.6.1.2 The provisions of Act 32 of 2007
9.6.2 The victim must testify
9.6.3 First reasonable opportunity
9.6.4 Victim of sexual offence
9.6.5 Limited evidential value
9.6.6 Complaints in sexual cases: Inferences and the provisions of ss 58
and 59 of Act 32 of 2007
9.6.6.1 General background
9.6.6.2 Inferences and ss 58 and 59
9.7 Identification
9.8 Part VI of the CPEA
9.9 Res gestae
9.10 Refreshing memory
9.11 Statements made at arrest or on discovery of incriminating articles
9.12 Section 213 of the CPEA
3rd Ed, 2009 ch9-p104
9.1 Introduction
A previous consistent statement is a written or oral statement made by a witness
on some occasion prior to testifying and which corresponds with or is
substantially similar to his or her testimony in court. The general rule is that a
witness is not allowed to testify that on a previous occasion he made an oral or
written statement consistent with his evidence in court. 1 A witness may therefore
not be asked in
3rd Ed, 2009 ch9-p105
evidence in chief or re-examination whether he had made a previous statement

consistent with his evidence in court. 2 A previous consistent statement of a
witness may also not be proved by calling another witness. 3 This kind of
statement is excluded because of its irrelevance. It lacks probative value. 4 In
exceptional circumstances these statements may be sufficiently relevant to be
admissible. 5
The general rule against the admissibility of previous consistent statements is
sometimes described as the "rule against narrative" or the "rule against self-
serving statements". 6
Proof of previous inconsistent statements is as a rule admissible, because
inconsistent statements are relevant to credibility. 7 Previous consistent
statements are, however, generally excluded.
Footnote - 1
1 S v Moolman1996 (1) SACR 267 (A) 300c; S v Mkohle1990 (1) SACR 95 (A) 99c-d; R v
Rose1937 AD 467; S v Bergh1976 (4) SA 857 (A) 865G.
1 S v Moolman1996 (1) SACR 267 (A) 300c; S v Mkohle1990 (1) SACR 95 (A) 99c-d; R v
Rose1937 AD 467; S v Bergh1976 (4) SA 857 (A) 865G.
Footnote - 2
2 Zeffertt, Paizes & Skeen 403. The cross-examiner may venture into this area should he or she
deem it necessary. In R v M1959 (1) SA 434 (A) 438H it was accepted that a trial court could "do so
mero motu . . . in the interests of justice (in some cases in favorem innocentiae) . . ."
2 Zeffertt, Paizes & Skeen 403. The cross-examiner may venture into this area should he or
she deem it necessary. In R v M1959 (1) SA 434 (A) 438H it was accepted that a trial court
could "do so mero motu . . . in the interests of justice (in some cases in favorem innocentiae) .
. ."
Footnote - 3
3 Corke v Corke and Cook 1958 2 WLR 110.
3 Corke v Corke and Cook 1958 2 WLR 110.
Footnote - 4
4 S v Mkohle supra 99d. In S v Scott-Crossley2008 (1) SACR 223 (SCA) it was said (at [17]): "The
trial court erred in another important respect. It found Mnisi to be reliable by reason of the fact that
his evidence was consistent with the statement he made to the police. The court's reliance on Mnisi's
previous statement was clearly wrong. The general rule is that a witness's previous consistent
statement has no probative value …"
4 S v Mkohle supra 99d. In S v Scott-Crossley2008 (1) SACR 223 (SCA) it was said (at [17]):
"The trial court erred in another important respect. It found Mnisi to be reliable by reason of
the fact that his evidence was consistent with the statement he made to the police. The court's
reliance on Mnisi's previous statement was clearly wrong. The general rule is that a witness's
previous consistent statement has no probative value …"
Footnote - 5
5 These instances are discussed in §§ 9.4 to 9.12 below.
5 These instances are discussed in §§ 9.4 to 9.12 below.
Footnote - 6
6 See Tapper Cross and Tapper on Evidence 11 ed (2007) 322; Allen Practical Guide to Evidence
(1998) 81.
6 See Tapper Cross and Tapper on Evidence 11 ed (2007) 322; Allen Practical Guide to
Evidence (1998) 81.
Footnote - 7
7 See ch 25 below.
7 See ch 25 below.
Document 71 of 330
9.2 Rationale for the Exclusion of Previous Consistent
Statements
A previous consistent statement is generally insufficiently relevant. Its insufficient
relevance can be attributed to the cumulative effect of several factors:
(a) A previous consistent statement generally has insufficient probative force. 8
A lie can be repeated as often as the truth. 9
(b) There is also the danger of easy fabrication. 10 There is a risk of "self-made"
evidence. 11 This is a factor which indirectly affects relevance and
admissibility. 12
(c) Evidence of previous consistent statements would in most cases be
completely superfluous as it may be accepted that in the ordinary course of
events a
3rd Ed, 2009 ch9-p106

witness's evidence would be consistent with what he on other occasions had
said about the same topic or incident. 13
(d) Proof of previous consistent statements in each and every case would be
extremely time-consuming and may pave the way for numerous collateral
enquiries. A previous consistent statement, once proved, would merely
duplicate the evidence already given by the witness. 14 There is no
probative contribution.
(e) The rule against self-corroboration 15 limits the probative value of a previous
consistent statement to such an extent that proof of such statement is
generally excluded: it has insufficient probative force (as stated in (a)
above).
Footnote - 8
8 S v Mkohle1990 (1) SACR 95 (A) 99d: "[T]he general rule is that a witness' previous consistent
statement has no probative value." See also S v Scott-Crossley2008 (1) SACR 223 (SCA) at [17].
8 S v Mkohle1990 (1) SACR 95 (A) 99d: "[T]he general rule is that a witness' previous
consistent statement has no probative value." See also S v Scott-Crossley2008 (1) SACR 223
(SCA) at [17].
Footnote - 9
9 R v Rose1937 AD 467 473.
9 R v Rose1937 AD 467 473.
Footnote - 10
10 See § 5.3.4 above.
10 See § 5.3.4 above.
Footnote - 11
11 Cowsill & Clegg Evidence: Law and Practice 3 ed (1990, reprinted 1991) 207. Keane The Modern
Law of Evidence 6 ed (2006) 180 says: "The reason usually given for the rule is the danger of
manufactured evidence. A resourceful witness, minded to deceive the court, could with ease
deliberately repeat his version of the facts to a number of people prior to trial with a view to showing
consistency with the story he tells in the witness box, thereby bolstering his credibility."
11 Cowsill & Clegg Evidence: Law and Practice 3 ed (1990, reprinted 1991) 207. Keane The
Modern Law of Evidence 6 ed (2006) 180 says: "The reason usually given for the rule is the
danger of manufactured evidence. A resourceful witness, minded to deceive the court, could
with ease deliberately repeat his version of the facts to a number of people prior to trial with a
view to showing consistency with the story he tells in the witness box, thereby bolstering his
credibility."
Footnote - 12
12 Van Wyk in Ferreira Strafproses in die Laer Howe 2 ed (1979) 442 states: "Die vorige
ooreenstemmende verklaring is irrelevant omdat dit baie geringe bewyskrag het en tweedens omdat
die toelating daarvan daartoe kan lei dat 'n getuie of beskuldigde sy verhaal aan verskeie mense kan
herhaal, met die oog daarop dat die aanhoorders dan as getuies geroep kan word om dit te bevestig.
Dit is egter 'n erkende feit dat 'n leuen net so dikwels, indien nie meer nie, as die waarheid herhaal
kan word. Die roep van 'n aantal getuies om dieselfde verhaal te kom vertel, soos hulle dit aangehoor
het, druis in teen die relevantheidsgrondreël en neem onnodig die tyd van die hof in beslag. Voorts
kan dit tot verwarring lei terwyl dit geen of weinig bewyswaarde het nie."
12 Van Wyk in Ferreira Strafproses in die Laer Howe 2 ed (1979) 442 states: "Die vorige
ooreenstemmende verklaring is irrelevant omdat dit baie geringe bewyskrag het en tweedens
omdat die toelating daarvan daartoe kan lei dat 'n getuie of beskuldigde sy verhaal aan
verskeie mense kan herhaal, met die oog daarop dat die aanhoorders dan as getuies geroep
kan word om dit te bevestig. Dit is egter 'n erkende feit dat 'n leuen net so dikwels, indien nie
meer nie, as die waarheid herhaal kan word. Die roep van 'n aantal getuies om dieselfde
verhaal te kom vertel, soos hulle dit aangehoor het, druis in teen die relevantheidsgrondreël en
neem onnodig die tyd van die hof in beslag. Voorts kan dit tot verwarring lei terwyl dit geen of
weinig bewyswaarde het nie."
Footnote - 13
13 Tapper Cross and Tapper on Evidence 11 ed (2007) 322.
Footnote - 14
14 See also Holtzhauzen v Roodt1997 (4) SA 766 (W) 774D.
14 See also Holtzhauzen v Roodt1997 (4) SA 766 (W) 774D.
Footnote - 15
15 See § 30.3.1 below.
15 See § 30.3.1 below.
Document 72 of 330
9.3 An Example from Case Law

In R v Roberts the accused was charged with murder. He testified that the killing
of his girlfriend was an accident. He was, however, not permitted to testify that
two days after the killing he had told his father that the killing was an accident.
The narration to his father was excluded because of its irrelevance. The court
remarked: 17
"The law upon the matter is well-settled. The rule relating to this is sometimes put in
this way, that a party is not permitted to make evidence for himself. That law
applies to civil cases as well as to criminal cases. For instance, if A and B enter into
an oral contract, and some time afterwards there is a difference of opinion as to
what were the actual terms agreed upon and there is litigation about it, one of those
persons would not be permitted to call his partner to say: 'My partner a day or two
after told me what his view of the contract was and that he had agreed to do' so and
so. So, in a criminal case, an accused person is not permitted to call evidence to
show that, after he was charged with a criminal offence, he told a number of
persons what his defence was going to be, and the reason for the rule appears to us
to be that such testimony has no evidential value. It is because it does not assist in
the elucidation of the matters in dispute that the evidence is said to be inadmissible
on the ground that it is irrelevant. It would not help the jury in this case in the least
to be told that the appellant said to a number of persons, whom he saw while he
was awaiting his trial, or on bail if he was on bail, that his defence was this, that or
the other. The evidence asked to be admitted was that the father had been told by
his son that it was an accident. We think the evidence was properly refused."'
Footnote - 16
16 1942 28 Cr App R 102.
16 1942 28 Cr App R 102.
Footnote - 17
17 At 105 (my emphasis).
17 At 105 (my emphasis).
Document 73 of 330
9.4 Exceptions to the General Rule

At this stage of the development of our law of evidence it seems as if it must be
accepted that the exceptions to the rule form a numerus clausus. 18 These
exceptions are discussed in §§ 9.5 to 9.12 below.
3rd Ed, 2009 ch9-p107
Footnote - 18
18 However, compare Holtzhauzen v Roodt supra 774A where Satchwell J, relying on S v Bergh
supra, took the view that there is no numerus clausus of instances where evidence of previous
consistent statements "may be relevant and therefore permitted". Zeffertt 1997 ASSAL 718 738-9
argues that this is not a correct interpretation of S v Bergh supra.
18 However, compare Holtzhauzen v Roodt supra 774A where Satchwell J, relying on S v

Bergh supra, took the view that there is no numerus clausus of instances where evidence of
previous consistent statements "may be relevant and therefore permitted". Zeffertt 1997
ASSAL 718 738-9 argues that this is not a correct interpretation of S v Bergh supra.
Document 74 of 330
9.5 To Rebut a Suggestion of Recent Fabrication 19
If it is suggested to a witness that he has fabricated his evidence within some

ascertainable period of time, he may rebut this specific suggestion of fabrication
by showing that prior to the time as alleged he had made a written or oral
statement consistent with his evidence in court. 20 In Menday v Protea Assurance
Co Ltd Addleson J remarked as follows: 21
"The word 'recent' in the term 'recent fabrication' appears to be inappropriate since
in those cases in which such evidence has been admitted, it appears that the
comparative 'recentness' of the fabrication has not been the deciding issue but
rather the question whether between the event under investigation and the trial of
the matter, the witness invented a false version of what occurred; and the
statement has been admitted to show that, far from fabricating his evidence, the
witness is saying what he has always said. Much depends upon the form of the
challenge of the disputed evidence and much must depend on the ultimate cogency
of the evidence of the previous consistent statement."
This exception also applies where the allegation of recent fabrication is made by
implication. 22 General cross-examination aimed at showing that a witness is
unreliable or untruthful will not open the door for the admissibility of a previous
consistent statement. 23 The specific allegation or line of cross-examination must
be analysed. 24
The previous consistent statement is admissible not only where a direct or
implied accusation of a recent deliberate false fabrication is made but also where
it is alleged that the witness recently imagined 25 or reconstructed the event even
though not with conscious dishonesty. 26
The previous consistent statement is admitted because of its relevance. It has
the potential to rebut the attack upon the credibility of the witness. The contents
of the statement may not, however, be used as evidence of the truth of what the
witness had said. Nor can it serve as corroboration of the witness's evidence. 27
The general rule against self-corroboration prohibits such an approach. 28 The
true evidential
3rd Ed, 2009 ch9-p108
value of the statement is to show that the story of the witness was not concocted
at a later date. Consistency is proved to refute recent fabrication. 29
Footnote - 19
19 See generally R v Oyesikuz 1972 56 Cr App R 240; R v Vlok1951 (1) SA 26 (C) 27A-G; Pincus v
Solomon 1942 WLD 237 241-2; S v Bergh supra; R v Dart (2)1951 (1) SA 483 (W).
19 See generally R v Oyesikuz 1972 56 Cr App R 240; R v Vlok1951 (1) SA 26 (C) 27A-G;
Pincus v Solomon 1942 WLD 237 241-2; S v Bergh supra; R v Dart (2)1951 (1) SA 483 (W).
Footnote - 20
20 The party calling the witness may prove the previous consistent statement made by the witness
at a time when the latter had no motive or opportunity to fabricate a false version. See generally R v
Kizi1950 (4) SA 532 (A) 535G-H.
20 The party calling the witness may prove the previous consistent statement made by the
witness at a time when the latter had no motive or opportunity to fabricate a false version. See
generally R v Kizi1950 (4) SA 532 (A) 535G-H.
Footnote - 21
21 1976 (1) SA 565 (E) 566F-H.
21 1976 (1) SA 565 (E) 566F-H.
Footnote - 22
22 Bergh supra 868D; S v Nieuwoudt 1986 1 PH H3 (C) 5-6; S v Moolman1996 (1) SACR 267 (A).
22 Bergh supra 868D; S v Nieuwoudt 1986 1 PH H3 (C) 5-6; S v Moolman1996 (1) SACR 267
(A).
Footnote - 23
23 Nieuwoudt supra 5. Dennis The Law of Evidence 3 ed (2007) 561 says: "Accordingly it is not
enough by itself that the cross-examiner proves that the witness has made a previous inconsistent
statement, or that the cross-examiner attacks the whole of the witness's testimony. The cross-
examiner has to go further, so that the cross-examination amounts to an allegation that the witness
in effect fabricated the testimony after the events in question for the purposes of the trial."
23 Nieuwoudt supra 5. Dennis The Law of Evidence 3 ed (2007) 561 says: "Accordingly it is
not enough by itself that the cross-examiner proves that the witness has made a previous
inconsistent statement, or that the cross-examiner attacks the whole of the witness's
testimony. The cross-examiner has to go further, so that the cross-examination amounts to an
allegation that the witness in effect fabricated the testimony after the events in question for
the purposes of the trial."
Footnote - 24
24 Pincus v Solomon supra 241-2; Moolman supra 295i.
24 Pincus v Solomon supra 241-2; Moolman supra 295i.
Footnote - 25
25 In Bergh supra 868D Rumpff CJ said (emphasis added): "Die begrip 'onlangse versinsel' is nie
'n omlynde begrip nie en dit is die plig van die hof, by 'n probleem van hierdie aard, om vas te stel
of die aanval op die getuie se getuienis wesenlik neerkom op 'n suggestie, uitdruklik of implisiet, dat
vir doeleindes van die saak hy iets as 'n feit beweer wat tydens die aflê van sy getuienis 'n versinsel
is of in sy verbeelding bestaan."
25 In Bergh supra 868D Rumpff CJ said (emphasis added): "Die begrip 'onlangse versinsel' is
nie 'n omlynde begrip nie en dit is die plig van die hof, by 'n probleem van hierdie aard, om vas
te stel of die aanval op die getuie se getuienis wesenlik neerkom op 'n suggestie, uitdruklik of
implisiet, dat vir doeleindes van die saak hy iets as 'n feit beweer wat tydens die aflê van sy
getuienis 'n versinsel is of in sy verbeelding bestaan."
Footnote - 26
26 See generally the decision of the High Court of Australia in Nominal Defendant v Clement 1961
104 CLR 476.
26 See generally the decision of the High Court of Australia in Nominal Defendant v Clement
1961 104 CLR 476.
Footnote - 27
27 Bergh supra; Pincus v Solomon supra 242. The sole purpose is to prove consistency and, in so
doing, rebut the allegation of recent fabrication or reconstruction.
27 Bergh supra; Pincus v Solomon supra 242. The sole purpose is to prove consistency and,
in so doing, rebut the allegation of recent fabrication or reconstruction.
Footnote - 28
Footnote - 29
29 S v Winnaar1997 (2) SACR 352 (O).
29 S v Winnaar1997 (2) SACR 352 (O).
Document 75 of 330
9.6 Complaints in Sexual Cases

The common-law position is that evidence may be given of a voluntary complaint
made by the victim within a reasonable time after the commission of the alleged
sexual offence. 30 The common-law rule applies by virtue of the thirtieth May,
1961 provision contained in s 190(1) of the CPA (see § 9.6.3.2 below), but has to
some extent been amended by recent legislation as indicated below.
The common-law rule has had a peculiar historical development. 31 In the
Middle Ages it was considered essential for a rape victim to have "raised the hue
and cry" 32 if a charge of rape were to succeed. This rule, however, merely serves
as a remote historical link with the present rule. The present rule, for example,
applies to female as well as male victims 33 and is no longer confined to sexual
crimes where absence of consent is an essential element. 34 Furthermore, in
terms of the modern common-law rule the absence of a complaint made within a
reasonable time after the event, is not fatal to the prosecution's case (see §
9.6.3.1 below where S v Cornick is discussed).
The common-law requirements governing the admissibility of the complaint
(the previous consistent statement) are the following: the complaint must have
been a voluntary one (see § 9.6.1.1 below); the complainant must testify (see §
9.6.2.1 below); the complaint must have been made at the first reasonable
opportunity (see § 9.6.3.1 below); the complainant must have been a victim of a
sexual offence (see § 9.6.4.1 below); and the complaint can only be admitted for
the limited purpose of proving consistency (see § 9.6.5.1 below).
The above common-law rule that the complaint of the victim is admissible as
an exception to the general rule excluding previous consistent statements, has for
many decades been the subject of severe criticism. 36 It has been argued that the
rule does not have a rational basis and is potentially prejudicial to the
complainant and, indeed, the accused; 37 that it fails to take into account
research which confirms "that silence is part of a series of post-traumatic
responses … caused
3rd Ed, 2009 ch9-p109
by crimes such as rape"; 38 and that, in the absence of a complaint made within a
reasonable time after the incident, there is the risk that a court might draw an
adverse inference as regards the credibility of the complainant (see § 9.6.6.1
below). In some common-law jurisdictions the rule has been abolished by
statute; 39 and in other common-law jurisdictions the common-law rule has been
greatly modified to eliminate the real or perceived risks attached to the practical
application of the rule. 40
The South African Law Commission also investigated the matter and made
recommendations (see § 9.6.6.1 below) which are now, with some adaptations,
embodied in ss 58 and 59 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007. These two sections came into operation on
16 December 2007. 41
Section 58 provides as follows:
"Evidence relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings involving the alleged commission of a sexual
offence: Provided that the court may not draw any inference only from the absence
of such previous consistent statements."
Section 59 provides as follows:
"In criminal proceedings involving the alleged commission of a sexual offence, the
court may not draw any inference only from the length of any delay between the
alleged commission of such offence and the reporting thereof."
The impact of these two sections on the common-law rule and on the common-
law conditions governing the admissibility and probative value of the complaint, is
discussed in §§ 9.6.1.2, 9.6.2.2, 9.6.3.2, 9.6.4.2 and 9.6.5.2 below. From the
outset, however, it must be noted that neither s 58 nor s 59 makes any clear
reference to the conditions that attend the admissibility of the previous consistent
statement(s) in sexual cases, except for the fact that s 58 as read with s 1(1) of
Act 32 of 2007 has expanded the meaning of "sexual offence" for purposes of the
rule under discussion (see § 9.6.4.2 below).
9.6.1 Voluntary complaint

In R v C1955 (4) SA 40 (N) the common-law requirement was stated as follows:
"To qualify for admission, the 'complaint' must have been made voluntarily, not
as a result of leading or suggestive questions, nor of intimidation." 42 In S v T the
victim's mother had threatened to hit her if she refused to disclose what the
accused had done to her. The complaint obtained in
3rd Ed, 2009 ch9-p110
this way was held inadmissible. This case can be criticised on the basis that the
court paid inadequate attention to all the surrounding circumstances. 44
Leading or intimidating questions should not have been asked. 45 Questions
such as "why are you upset?" or "what happened to your clothes?" will not render
the complaint inadmissible. But a question such as "did X touch your private
parts?" may affect admissibility even if the answer was given voluntarily. In R v
Osborne it was said: 46
"[T]he mere fact that the statement is made in answer to a question in such cases is
not of itself sufficient to make it inadmissible as a complaint. Questions of a
suggestive or leading character will, indeed, have that effect … [B]ut a question such
as this, put by the mother or other person, 'What is the matter?' or 'Why are you
crying?' will not do so. These are natural questions which a person in charge will be
likely to put. On the other hand, if she were asked, 'Did so-and-so … assault you?'
'Did he do this and that to you?' then the result would be different … In each case
the decision on the character of the question put, as well as other circumstances,
such as the relationship of the questioner to the complainant, must be left to the
discretion of the presiding judge. If the circumstances indicate that but for the
questioning there probably would have been no voluntary complaint, the answer is
inadmissible. If the question merely anticipates a statement which the complainant
was about to make, it is not rendered inadmissible by the fact that the questioner
happens to speak first …"

It is submitted that the words "shall be admissible" in s 58 of Act 32 of 2007 must
inevitably be read subject to the common-law requirement of voluntariness as set
out in § 9.6.1.1 above. A complaint obtained as a result of violence, or the threat
of violence, would on account of its inherent unreliability lack the required
probative value of proving the consistency of the complainant and — in the
absence of serving any such probative purpose — the complaint becomes
irrelevant and inadmissible. At any rate, a coerced complaint may also be
excluded in terms of s 35(5) of the Constitution. In terms of this section evidence
obtained in a manner that violates any right in the Bill of Rights must be excluded
if the admission thereof would render the trial unfair or otherwise be detrimental
to the administration of justice. The fact that the complaint was obtained in
breach of the rights of the complainant (as opposed to those of the accused) is no
bar to the application of s 35(5). 47
In terms of the common-law rule as set out in § 9.6.1.1 above, non-coerced
complaints must nevertheless be excluded if they were elicited by leading
questions. Does s 58 of Act 32 of 2007 demand a different approach? It is
submitted that here, too, the words "shall be admissible" do not demand
admission of a complaint that lacks probative value — and a complaint which
consists of words put in the mouth of the complainant should be excluded. A
complaint which essentially consists of suggestions made by a third party, can
hardly serve to show consistency on
3rd Ed, 2009 ch9-p111
the part of the complainant who adopted or accepted these suggestions. It should
be noted that the common-law position has been amended in England, where s
120(8) of the Criminal Justice Act 2003 provides that — for purposes of
determining the admissibility of the prior complaint — "the fact that the complaint
was elicited (for example by a leading question) is irrelevant unless a threat or a
promise was involved." 48 Our section 58 contains no such clear statutory break
with the common law as regards leading questions. It is accordingly submitted
that the court retains a discretion as regards the admissibility of complaints which
were responses to suggestions or leading questions. The position as set out in
cases like R v C supra and R v Osborne supra (see § 9.6.1.1 above) prevails.
However, it is important that in exercising its discretion the court should pay
careful attention to all the circumstances, especially the age of the complainant 49
and the question whether the complaint resulted from a blatant suggestion or a
mere neutral inquiry which prompted the complaint. 50
9.6.2 The victim must testify

It is a condition of admissibility that the victim should testify. 51 Consistency
cannot be proved without the victim's version. Neither the fact that the victim
complained nor the contents of the complaint may be received if the victim fails
to or cannot testify. 52
In S v R it was alleged that the victim (a chronic alcoholic) was raped in an
ambulance whilst on her way to a nursing home for treatment. The accused, who
had accompanied her on the journey during which intercourse took place, alleged
that she had consented. Upon their arrival at the nursing home the victim
repeatedly averred that the accused had raped her. These statements were
overheard by a nurse. At the trial — and as a result of the fact that the victim's
acute alcoholic condition had given rise to amnesia — she was unable to recall
anything from the time she entered the ambulance. But in her evidence she
denied that she could have consented to intercourse. The complaint was held
admissible despite the fact that the victim was unable to repeat it in her
testimony. It was also held that the complaint was admissible to prove state of
mind.
3rd Ed, 2009 ch9-p112

Section 58 of Act 32 of 2007 sanctions — in line with the common-law rule — the
admissibility of "previous consistent statements by a complainant" in the context
under discussion. However, it is submitted that the common-law requirement that
the complainant must testify (see § 9.6.2.1 above) remains intact. Admission of
prior statements of a complainant who does not testify, cannot prove
consistency; and it is extremely doubtful that Parliament had in mind that s 58
should be interpreted as a statutory exception to the hearsay rule. 54
9.6.3 First reasonable opportunity

The complaint should as a rule have been made at the first reasonable
opportunity. 55 Complaints by young children have been admitted after periods of
five days, 56 seven days, 57 ten days 58 and even six weeks. 59 According to
Schmidt & Rademeyer, 60 the determination of what exactly would amount to a
"first reasonable opportunity" does to a large extent depend upon (a) the
presence or absence of a person to whom it can reasonably be expected that the
victim might have complained and (b) the question whether the victim realised
the immoral nature of the act. 61 In S v V it was also pointed out that an
important question is whether the complainant — because of the lapse of time —
could possibly have made a false complaint.
In S v S the accused was charged with the rape of an 11-year-old girl. Ebrahim
JA adopted a most sensible approach: 64
3rd Ed, 2009 ch9-p113

"There is one aspect of the complainant's evidence which on first reading is puzzling
and can only be clarified when it is considered from the viewpoint of a young person.
This is the reason she gave for not reporting the incident to her mother in detail.
She told the court she did not report it at school because she wanted to tell her
mother first. This I regard as a natural reaction of one who has been through a
traumatic experience such as that deposed to. But then when she arrived home she
merely told her mother that her teacher had 'touched' her private parts. Out of
context, this erratic behaviour might well present the prosecution with an
insuperable problem, for it is a generally accepted evidential requirement that the
complainant should report the offence at the earliest opportunity. I should
emphasize that this requirement is not a rule of law and admits of exceptions in
appropriate cases. The explanation proffered by the complainant for her erratic
behaviour is not one I would accept from an adult, or even from an older juvenile,
but it emerged so naturally from this 11-year-old, and in context to the mind of an
innocent child must appear so logical that I am prepared to accept it was given
without intention to deceive. The little girl said that at the time she formed the
intention to tell her mother about her ordeal she was bleeding from her vagina and
sore, but by the time she arrived at home the bleeding had stopped. In answer to
previous questions she had deposed that she was unaware that what the appellant
had done was unlawful. So, when she arrived home without visible injury, she
decided not to trouble her mother with a detailed report of what, one gathers, she
(the complainant) regarded as a form of punishment. I am fortified in my
acceptance of this aspect of the complainant's evidence by the evidence of her
mother, from which it emerges that the complainant was not infrequently detained
at school for punishment. It is unlikely in these circumstances that she would wish to
draw attention to a further detention by going into details about her 'punishment'."
In S v De Villiers a delay of approximately one year and the rejection of the three
young complainants' explanation for the delay, 66 contributed to the acquittal of
the two appellants in circumstances where the court of appeal was satisfied that
there were also several other contradictions, improbabilities and unsatisfactory
aspects in the testimony of the complainants, 67 whereas the evidence of the
appellants could not on account of contradictions or improbabilities be rejected as
not being reasonably possibly true. 68
The presence or absence of a report made within a reasonable time after the
incident must be assessed in context; and a delay is not necessarily fatal to the
prosecution's case. In S v Cornick Lewis JA (Ponnan JA and Theron AJA
concurring) confirmed the rape convictions of the two appellants even though the
complainant — who was fourteen years old at the time of the rape — had laid
charges only nineteen years later. A chance meeting with one of the appellants at
the home of his sister revived memories of her ordeal, prompting her to lay
charges. Lewis JA described the case as "unusual". 70 The appellants' argument
was that it was improbable that the complainant, if she had been raped, would
not have told her grandparents or mother about the rapes. In this respect Lewis
JA held that the complainant 71
'gave plausible explanations for all these apparent anomalies. She had been brought
up by elderly and conservative grandparents. They had never discussed matters of
an intimate nature. She had
3rd Ed, 2009 ch9-p114

a distant relationship with her mother who had also not spoken to her ever about
sex or physiology. She had never had a boyfriend. It seems to me quite likely that in
these circumstances she did not realise what was happening to her when three
youths took turns forcibly to have sexual intercourse with her, despite her pleas and
protestations. She knew that she was being hurt, but she did not appreciate that she
was being raped. It does not seem to me improbable that a young woman who has
tried to bury memories of a traumatic event for many years would not appreciate
until her mid-twenties, at a time when discussion and publicity about rape had
become common, the full extent of what had happened only later.'

Section 58 sanctions the admissibility of evidence of a prior consistent complaint
or complaints. Admission of a prior consistent complaint or complaints is also
possible in terms of the common law, provided that each complaint satisfies the
"first reasonable opportunity" requirement. 72
However, has s 58, as read with s 59, abolished the common law's "first
reasonable opportunity" requirement? Paizes argues that the common-law
requirement that the complaint be made at the first reasonable opportunity to the
first person to whom the complainant might reasonably be expected to complain,
"will, in all probability, not survive" the new statutory dispensation. 73 This
prediction is supported on the basis that the words "shall be admissible" in s 58
cannot be interpreted as mere confirmation of the common-law rule and its "first
reasonable opportunity" requirement. The rule and its "first reasonable
opportunity" requirement were part of our law on account of the following
provisions in s 190(1) of the CPA: "Any party may in criminal proceedings …
support the credibility of any witness called … on behalf of such party in any
manner in which and by any evidence by which the credibility of such witness
might on the thirtieth day of May, 1961, have been … supported by such party."
Section 58, it is suggested, is not a mere restatement of the rule. Such an
interpretation would render the peremptory terms "shall be admissible", as used
in s 58, meaningless. It is accordingly submitted that whilst s 58 confirms that a
prior complaint is admissible as a means of supporting the credibility of a
complainant, it does away with the common-law position as far as the latter's
attended "first reasonable opportunity" requirement is concerned. This
interpretation has the added advantage of catering for the now generally
accepted view that complainants in sexual cases do not necessarily make
immediate or prompt reports. 74 The whole purpose of s 58, it would seem, was
to facilitate proof of a prior consistent statement of a complainant in a sexual
case. Furthermore, s 59 provides that "the court may not draw an inference only
from the length of any delay between the alleged commission of such offence and
the reporting thereof." This section implies that evidence of the complaint — even
if presented by the prosecution — can be admitted in terms of s 58 without
having satisfied the "first reasonable opportunity" requirement. The emphasis, it
can be
3rd Ed, 2009 ch9-p115
said, is no longer upon the admissibility of the complaint but upon the inferential
reasoning that should be permitted in assessing the credibility of the complainant
(see § 9.6.6.1 below).
It has already been noted that s 58 permits the admission of evidence of
multiple complaints. If the "first reasonable opportunity" requirement is no longer
applicable, the following questions arise: Is the court now compelled to admit all
previous complaints regarding the incident concerned? Where must the line be
drawn? The fact that s 58 permits evidence of multiple complaints that are not, it
seems, subject to the "first reasonable opportunity" requirement, theoretically
opens the door to the admission of a series of complaints made to various people.
However, neither s 58 nor s 59 has abolished the common-law rule that a
previous consistent statement (the complaint) has the limited probative purpose
of proving consistency (see § 9.6.5.2 below). Evidence of a complaint (or
complaints) is not independent evidence of the facts alleged and cannot serve as
evidence of the truth of the contents so as to corroborate the complainant who,
after all, is the very source from which the report emanated (see § 9.6.5.1
below). It follows that no amount of evidence which consists of complaint upon
complaint can overcome the rule against self-corroboration. Parliament could
therefore hardly have had in mind that a court must receive all previous
complaints, regardless of their number and the circumstances in which they were
made. The admission of evidence of complaint upon complaint which can only
serve the limited probative purpose of proving consistency, must on account of
considerations pertaining to relevance reach a point where a court may in its
discretion refuse to receive further evidence of yet another complaint. This much,
it is suggested, is demanded by s 210 of the CPA. 75 Repetition upon repetition of
a complaint — which, after all, remains a self-serving statement — can ultimately
become superfluous, making no further probative contribution to the ultimate
assessment of consistency as a factor in determining credibility.
9.6.4 Victim of sexual offence

The common law requires that the offence must be of a sexual nature; there
must be a victim and violence (or some physical element) must have been
present 76 (for example, as in rape or indecent assault). The concept "victim"
includes people who voluntarily participate in a sexual offence, but who cannot in
law give proper consent, 77 for example, children below certain ages and the
mentally disabled.
The specific offence charged is not the decisive factor. The complaint may be
admissible on a charge of common assault if the evidence discloses that an
indecent act was also committed. 78
3rd Ed, 2009 ch9-p116

The words "sexual offence" are used in s 58 of Act 32 of 2007 and are defined in
s 1(1) of the same Act as "any offence in terms of Chapters 2, 79 3 80 and 4 81
and sections 55 82 and 71(1), (2) and (6) 83 of this Act". The common-law
concept of the (sexual) crimes which would have triggered the application of rule
(see § 9.6.4.1 above), can no longer be applied: "Whereas the rule used to apply
only in prosecutions for rape, indecent assault and similar offences, as these
crimes were defined before 2007 … it now extends to a host of very different
offences to which it seems ill-suited, at best, and which were never envisaged by
the common-law rule…" 84 Included in the new array of offences calling for the
application of the rule, are, for example, "bestiality" as defined in s 13 and
"sexual acts with a corpse" as defined in s 14. These two crimes — as they stood
prior to the statutory regime established by Act 32 of 2007 — would not, in terms
of the common law, have attracted application of the rule.
9.6.5 Limited evidential value

In terms of the common law the complaint only serves to prove consistency on
the part of the victim. 85 It cannot create a probability in favour of the
prosecution's case 86 and cannot corroborate the victim. 87 Ashworth states as
follows: 88
"A witness certainly cannot corroborate himself by pointing out that he told the
same story before. The fact that the witness telling a particular story at the trial told
exactly the same story to the police soon after the alleged offence cannot supply
corroboration, although it may well strengthen the evidence and rebut any
suggestion of subsequent fabrication. Repetition of a story does not corroborate it:
and this is a corollary of the general proposition that the confirmatory evidence must
come from an independent source. But this general proposition does not apply in
one carefully circumscribed set of circumstances, where self-corroboration is
possible — by means of the victim's distressed condition after the alleged incident."
In S v S the extremely shocked condition ("die uiterste geskokte toestand ") of
the complainant when she reported the rape, was considered strong
corroboration of her testimony that she was raped. But the court should of course
be satisfied that the distressed condition was not feigned, and if genuine that it
could not be attributed to something other than the alleged incident. 90
3rd Ed, 2009 ch9-p117

Section 58 of this Act does not change the common-law rule as set out in §
9.6.5.1 above. Section 58 governs admissibility and is silent on the purpose for
which the evidence is admitted. Our legislation does not make a clear break with
the common law, like s 20(4) of the Criminal Justice Act 2003 in England, which
provides that the complaint is admissible to prove the truth of the matters stated
and not merely to to show the consistency of the complainant.
9.6.6 Complaints in sexual cases: inferences 91 and the provisions

of ss 58 and 59 of Act 32 of 2007
9.6.6.1 General background
In 1985 the South African Law Commission (hereafter "SALC") concluded that the
rules governing a prior complaint of a complainant in sexual cases, did not
require law reform. 92 According to the SALC the correct application of the rules
could not prejudice the complainant concerned: the SALC argued that a prior
consistent complaint could enhance the prosecution's case and, in the absence of
an admissible earlier complaint, the finders of fact could — depending on the
reasons why no complaint was made at the first reasonable opportunity — draw
correct inferences from all the circumstances. However, just over a decade and a
half later the SALC re-examined the matter and concluded that even though
admission of an earlier complaint may have the effect of supporting the
complainant's credibility, practical experience had shown that the rule created
problems: "Where the complainant did not make a statement at what is regarded
as 'the first reasonable opportunity', the defence usually succeeds with an
argument that a negative inference should be drawn about the credibility of the
complainant: if the rape really happened, the complainant would have complained
as soon as possible." 93
The SALC argued that there were good grounds for rejecting the approach that
the absence of a complaint made at the first reasonable opportunity, should have
an adverse impact on the credibility of the complainant: 94
"The fact that a negative inference is accepted at all by the courts, reflects
assumptions about the psychological effects of rape and other sexual offences and
the conduct expected of a 'reasonable' complainant which are not borne out by
recent empirical advances in this area. It is now widely recognised that there are
many psychological and social factors which may inhibit a complainant from
reporting a sexual offence 'at the first reasonable opportunity'. This militates against
the theory that the absence of an earlier complaint should, of necessity, have a
negative bearing on the reliability of the complainant."
The SALC considered various law reform options. The first option was to propose
legislation in line with s 275 of the Canadian Criminal Code. This section abolished
the rule regarding previous consistent statements in sexual offences. This
3rd Ed, 2009 ch9-p118
approach places a complaint of rape, for example, on the same footing as any
other evidence of prior consistent statements, rendering it inadmissible unless it
can be admitted under other established exceptions to the general of rule of
inadmissibility, like the rule relating to rebuttal of a recent fabrication 95 (as
explained in § 9.5 above). The SALC rejected this approach, because there are
many situations where admission of evidence of a complaint made within a
reasonable period after the commission of the alleged offence can indeed enhance
credibility and assist the state in furnishing proof beyond a reasonable doubt. 96
As a second option, the SALC considered the provisions of s 6 of the Namibian
Combating of Rape Act 8 of 2001. 97 This section provides that evidence relating
to all previous consistent statements by a complainant shall be admissible where
an accused is charged with an offence of a sexual or indecent nature, provided
"that no inference may be drawn only from the fact that no such previous
statements have been made." However, the SALC criticised s 6 of the Namibian
legislation on the basis that it did not eliminate the possibility that the presiding
judicial officer may draw an adverse inference where the complainant did delay in
making the report. 98
As a third option, the SALC considered certain Australian state legislation and
the provisions of s 7 of the Namibian Combating of Rape Act. Section 7 provides
that where an accused is charged with an offence of a sexual or indecent nature,
"the court shall not draw any inference only from the length of the delay between
the commission of the sexual or indecent act and the laying of a complaint". The
SALC ultimately concluded that by adopting s 7 of the Namibian legislation — and
by adopting an adaptation of s 6 of the same legislation — it could effectively
address the "problem that exists at present, without unduly curtailing judicial
discretion to evaluate evidence." 99 The SALC's recommendations were embodied
in clauses 17 and 19 of its proposed Sexual Offences Bill and the contents of
these two clauses are now, with some editorial changes, reflected in ss 58 and 59
of Act 32 of 2007.
9.6.6.2 Inferences and ss 58 and 59

The proviso in s 58 stipulates that a court may not draw any inference only from
the absence of any previous consistent statement made by a complainant,
whereas s 59 states that a court may not draw any inference only from the length
of any delay between the alleged commission of the offence and the reporting
thereof. This legislative interference in the inferential processes conducted by
courts, is not desirable and might very well give rise to constitutional issues.
It can be argued that ss 58 and 59 favour the prosecution: Whilst no inference
(which, obviously, includes a negative inference as regards the credibility of the
complainant) can be drawn solely on account of either the absence of a complaint
or the length of the delay in making the complaint, there is no similar statutory
3rd Ed, 2009 ch9-p119
restriction as regards an inference drawn solely from the fact that the complaint
that was made happened to be a reasonably prompt one. But this conflict is
perhaps more apparent than real. In terms of the general principles which govern
the evaluation of evidence, a court is precluded from resorting to a piecemeal
process of adjudication (see § 30.2.1 below). And drawing an inference solely
from the length of the delay between the alleged sexual crime and the report of
the complaint, would be inconsistent with the general principle that inferences
may not be drawn from selected facts considered in isolation (see § 30.5 below).
Section 59 is therefore merely statutory confirmation of what the correct
approach should be: The length of the delay is only a factor that must go into the
scales. The same argument can be applied to the proviso in s 58. And by the
same token, the fact that a complaint was indeed made within a reasonable
period, is also only a factor that forms part of the totality of the evidence on
which it must be decided whether there is proof beyond reasonable doubt.
Paizes is far less accommodating in his assessment of the manner in which ss
58 and 59 seek to curtail the free evaluation of evidence: 100
"Inferential processes are things best left to the courts. It is artificial and undesirable
to curb…such exercises. No two cases are alike…And to allow dogma or preconceived
notions…to trammel the reach of the judicial power in such processes is…a serious
error. All that sections like these serve to do is to invite intellectual dishonesty in
that courts will, if they feel it is necessary to draw an adverse inference, look for
additional facts to support their conclusion even if these facts are flimsy or
unnecessary."
Footnote - 30
30 See generally Van der Merwe 1980 Obiter 86; Labuschagne 1978 De Jure 18 and 242; Singh
2006 SACJ 37 39. See also Schwikkard "A Critical Overview of the Rules of Evidence Relevant to Rape
Trials in South Africa" in Jagwanth et al (eds) Women and the Law (1994) 198-202.
30 See generally Van der Merwe 1980 Obiter 86; Labuschagne 1978 De Jure 18 and 242;
Singh 2006 SACJ 37 39. See also Schwikkard "A Critical Overview of the Rules of Evidence
Relevant to Rape Trials in South Africa" in Jagwanth et al (eds) Women and the Law (1994)
198-202.
Footnote - 31
31 See generally Nokes An Introduction to Evidence 4 ed (1967) 104; Harms 1965 THRHR 257 268-
9; R v Ellis 1936 SWA 10; R v Guttenberg 1907 TS 207 211.
31 See generally Nokes An Introduction to Evidence 4 ed (1967) 104; Harms 1965 THRHR
257 268-9; R v Ellis 1936 SWA 10; R v Guttenberg 1907 TS 207 211.
Footnote - 32
Footnote - 33
33 R v Camelleri 1922 2 KB 122; R v Burgess 1927 TPD 14.
33 R v Camelleri 1922 2 KB 122; R v Burgess 1927 TPD 14.
Footnote - 34
34 R v Osborne 1905 1 KB 551.
34 R v Osborne 1905 1 KB 551.
Footnote - 35
35 2007 (2) SACR 115 (SCA)
35 2007 (2) SACR 115 (SCA)
Footnote - 36
36 For one of the latest articles in a local law journal, see Singh 2006 SACJ 37.
36 For one of the latest articles in a local law journal, see Singh 2006 SACJ 37.
Footnote - 37
37 Schwikkard "A Critical Overview of the Rules of Evidence Relevant to Rape Trials in South Africa"
in Jagwanth et al (eds) Women and the Law (1994) 198-202. It is unfair to the accused in trials of
this nature because his or her prior consistent statement is, unlike that of the complainant, not
admissible (unless, of course, it can be admitted in the event of an allegation of recent fabrication, as
explained in § 9.5 above).
37 Schwikkard "A Critical Overview of the Rules of Evidence Relevant to Rape Trials in South
Africa" in Jagwanth et al (eds) Women and the Law (1994) 198-202. It is unfair to the accused
in trials of this nature because his or her prior consistent statement is, unlike that of the
complainant, not admissible (unless, of course, it can be admitted in the event of an allegation
of recent fabrication, as explained in § 9.5 above).
Footnote - 38
38 Steyn Witnesses in South Africa, The Stepchildren of the Criminal Justice System (unpub LLM
thesis, Univ of Cape Town, 1999) 98. See also generally Müller The Child Witness in the Accusatorial
System (unpub PhD thesis, Rhodes Univ, 1997) 307-13.
38 Steyn Witnesses in South Africa, The Stepchildren of the Criminal Justice System (unpub
LLM thesis, Univ of Cape Town, 1999) 98. See also generally Müller The Child Witness in the
Accusatorial System (unpub PhD thesis, Rhodes Univ, 1997) 307-13.
Footnote - 39
39 See s 275 of the Canadian Criminal Code. See further § 9.6.6 below.
39 See s 275 of the Canadian Criminal Code. See further § 9.6.6 below.
Footnote - 40
40 See ss 6 and 7 of the Namibian Combating of Rape Act 8 of 2001, discussed in § 9.6.6.1 below.
40 See ss 6 and 7 of the Namibian Combating of Rape Act 8 of 2001, discussed in § 9.6.6.1
below.
Footnote - 41
41 See s 72 of Act 32 of 2007 as read with GG 30599 of 14 Dec 2007.
41 See s 72 of Act 32 of 2007 as read with GG 30599 of 14 Dec 2007.
Footnote - 42
42 1955 (4) SA 40 (N) 40G-H.
42 1955 (4) SA 40 (N) 40G-H.
Footnote - 43
43 1963 (1) SA 484 (A).
43 1963 (1) SA 484 (A).
Footnote - 44
44 In S v T supra the victim also testified that the accused had threatened to kill her and the rest of
her family if she were to report the incident. This allegation should have been considered and — if
accepted — could have played a role in assessing the true voluntariness of the complaint. The threat
to kill, if it were present, could have served to cancel out, or could have explained why, the coersive
measure of persuasion led to the complainant's report. There was also medical evidence of sexual
interference.
44 In S v T supra the victim also testified that the accused had threatened to kill her and the
rest of her family if she were to report the incident. This allegation should have been
considered and — if accepted — could have played a role in assessing the true voluntariness of
the complaint. The threat to kill, if it were present, could have served to cancel out, or could
have explained why, the coersive measure of persuasion led to the complainant's report. There
was also medical evidence of sexual interference.
Footnote - 45
45 R v Norcott 1917 1 KB 347.
45 R v Norcott 1917 1 KB 347.
Footnote - 46
46 1905 1 KB 551 556.
46 1905 1 KB 551 556.
Footnote - 47
47 See § 12.8.3 below.
47 See § 12.8.3 below.
Footnote - 48
48 The words in brackets appear in the section. It should also be noted that the provisions of the
Criminal Justice Act 2003 are not confined to complaints in sexual cases, but to all offences where
there is a complainant ("a person against whom an offence has been committed" — s 120(7)(a)). See
further Tapper Cross and Tapper on Evidence 11 ed (2007) 323, where it is explained that one of the
purposes of the relevant provisions of the Criminal Justice Act 2003 was to ensure that "sexual cases
should be tried as far as possible in the same way as others."
48 The words in brackets appear in the section. It should also be noted that the provisions of
the Criminal Justice Act 2003 are not confined to complaints in sexual cases, but to all offences
where there is a complainant ("a person against whom an offence has been committed" — s
120(7)(a)). See further Tapper Cross and Tapper on Evidence 11 ed (2007) 323, where it is
explained that one of the purposes of the relevant provisions of the Criminal Justice Act 2003
was to ensure that "sexual cases should be tried as far as possible in the same way as others."
Footnote - 49
49 See R v C supra 41A-G.
49 See R v C supra 41A-G.
Footnote - 50
50 A complaint is not rendered inadmissible simply because the questioner insisted on being told
the truth. See R v C supra 41C.
50 A complaint is not rendered inadmissible simply because the questioner insisted on being
told the truth. See R v C supra 41C.
Footnote - 51
51 R v Kgaladi1943 AD 255. In Smith v Malete 1907 TH 235 236 Bristowe J said: "If a child of three
years cannot give evidence in court, how can she give evidence through her mother? The particulars
of the complaint must be excluded." If the complainant does not testify, the prosecution may seek to
persuade the court to receive the evidence of the complaint (as hearsay) in terms of s 3(1)(c) of Act
45 of 1988, on the grounds that such admission would be in the interest of justice. It is extremely
doubtful whether such an attempt would succeed — especially where the complainant happens to be
an incompetent witness. Hearsay is discussed in ch 13 below.
51 R v Kgaladi1943 AD 255. In Smith v Malete 1907 TH 235 236 Bristowe J said: "If a child of
three years cannot give evidence in court, how can she give evidence through her mother? The
particulars of the complaint must be excluded." If the complainant does not testify, the
prosecution may seek to persuade the court to receive the evidence of the complaint (as
hearsay) in terms of s 3(1)(c) of Act 45 of 1988, on the grounds that such admission would be
in the interest of justice. It is extremely doubtful whether such an attempt would succeed —
especially where the complainant happens to be an incompetent witness. Hearsay is discussed
in ch 13 below.
Footnote - 52
52 R v Wallwork 1958 42 Cr App Rep 153.
52 R v Wallwork 1958 42 Cr App Rep 153.
Footnote - 53
53 1965 (2) SA 463 (W).
53 1965 (2) SA 463 (W).
Footnote - 54
54 See Paizes in Du Toit et al Commentary 23-20 and 24-8B.
54 See Paizes in Du Toit et al Commentary 23-20 and 24-8B.
Footnote - 55
55 In R v C1955 (4) SA 40 (N) Caney J said: "To qualify for admission, the 'complaint' … must have
been made … at the earliest opportunity which, under all the circumstances, could reasonably be
expected, to the first person to whom the complainant could reasonably be expected to make it." See
also R v S1948 (4) SA 419 (GW) 423 and S v De Villiers1999 (1) SACR 297 (O). In R v Kautumundu
1936 2 PH F154 (SWA) two complaints (relating to the same incident) were made on the same day.
Both were received as having been made at the "first" reasonable opportunity. This seems to be
acceptable, provided that the court must bear in mind that the complaint(s) can merely prove
consistency. A witness, it was said in R v Whitehead 1929 1 KB 99 102, cannot corroborate himself,
otherwise it would only be necessary for him to repeat his story some twenty-five times in order to
get twenty-five corroborations of it. Schwikkard in Jagwanth et al (eds) Women and the Law 201
states that the requirement of "first reasonable opportunity" and its application by the courts fail to
take into account the many psychological and social factors which may inhibit a rape survivor from
making a complaint. An instructive case in this regard, is R v Valentine 1996 2 Cr App R 213. At 224
it was said: "We now have greater understanding that those who are the victims of sexual offences,
be they male or female, often need time before they can bring themselves to tell what has been done
to them; that some victims will find it impossible to complain to anyone other than a parent or
member of their family whereas others may feel it quite impossible to tell their parents or members
of their family." See also generally S v M1999 (1) SACR 664 (C) 669f-h.
55 In R v C1955 (4) SA 40 (N) Caney J said: "To qualify for admission, the 'complaint' …
must have been made … at the earliest opportunity which, under all the circumstances, could
reasonably be expected, to the first person to whom the complainant could reasonably be
expected to make it." See also R v S1948 (4) SA 419 (GW) 423 and S v De Villiers1999 (1)
SACR 297 (O). In R v Kautumundu 1936 2 PH F154 (SWA) two complaints (relating to the
same incident) were made on the same day. Both were received as having been made at the
"first" reasonable opportunity. This seems to be acceptable, provided that the court must bear
in mind that the complaint(s) can merely prove consistency. A witness, it was said in R v
Whitehead 1929 1 KB 99 102, cannot corroborate himself, otherwise it would only be
necessary for him to repeat his story some twenty-five times in order to get twenty-five
corroborations of it. Schwikkard in Jagwanth et al (eds) Women and the Law 201 states that
the requirement of "first reasonable opportunity" and its application by the courts fail to take
into account the many psychological and social factors which may inhibit a rape survivor from
making a complaint. An instructive case in this regard, is R v Valentine 1996 2 Cr App R 213.
At 224 it was said: "We now have greater understanding that those who are the victims of
sexual offences, be they male or female, often need time before they can bring themselves to
tell what has been done to them; that some victims will find it impossible to complain to
anyone other than a parent or member of their family whereas others may feel it quite
impossible to tell their parents or members of their family." See also generally S v M1999 (1)
SACR 664 (C) 669f-h.
Footnote - 56
56 R v C1955 (4) SA 40 (N).
56 R v C1955 (4) SA 40 (N).
Footnote - 57
57 R v Hedges 1909 3 Cr App Rep 262.
57 R v Hedges 1909 3 Cr App Rep 262.
Footnote - 58
58 R v Gannon 1906 TS 114.
58 R v Gannon 1906 TS 114.
Footnote - 59
59 R v T 1937 TPD 398.
59 R v T 1937 TPD 398.
Footnote - 60
60 At 383.
60 At 383.
Footnote - 61
61 R v Gannon supra 117: "I think … the complaint was made at the earliest opportunity which
could reasonably have been expected. If the girl had been older, if it had been the case of a grown
woman, or even a child more precocious, who knew something about the nature of the offence, the
decision might be different". In Gannon supra the complainant was 8 years old.
61 R v Gannon supra 117: "I think … the complaint was made at the earliest opportunity
which could reasonably have been expected. If the girl had been older, if it had been the case
of a grown woman, or even a child more precocious, who knew something about the nature of
the offence, the decision might be different". In Gannon supra the complainant was 8 years
old.
Footnote - 62
62 1961 (4) SA 201 (O).
62 1961 (4) SA 201 (O).
Footnote - 63
63 1995 (1) SACR 50 (ZS).
63 1995 (1) SACR 50 (ZS).
Footnote - 64
64 At 56d-h. However, see also Schwikkard 1995 SACJ 100 for some criticism of this rule.
64 At 56d-h. However, see also Schwikkard 1995 SACJ 100 for some criticism of this rule.
Footnote - 65
65 1999 (1) SACR 297 (O).
65 1999 (1) SACR 297 (O).
Footnote - 66
66 At 306a-e.
66 At 306a-e.
Footnote - 67
67 At 304e-305f and 308g-i.
67 At 304e-305f and 308g-i.
Footnote - 68
68 At 309b.
68 At 309b.
Footnote - 69
69 2007 (2) SACR 115 (SCA).
69 2007 (2) SACR 115 (SCA).
Footnote - 70
70 At [2].
70 At [2].
Footnote - 71
71 At [32].
71 At [32].
Footnote - 72
72 R v Kautumundu 1936 2 PH F154 (SWA). See also R v Valentine [1996] 2 Cr App R 213. See also
n 55 above.
72 R v Kautumundu 1936 2 PH F154 (SWA). See also R v Valentine [1996] 2 Cr App R 213.
See also n 55 above.
Footnote - 73
73 Paizes in Du Toit et al Commentary 23-20. Emphasis in the original.
73 Paizes in Du Toit et al Commentary 23-20. Emphasis in the original.
Footnote - 74
74 Munday Evidence 4 ed (2007) 228: "It is now widely accepted that prompt complaint by sexual
complainants is far from the norm". See also Holtzhauzen v Roodt1997 (4) SA 766 (W) where
Satchwell J admitted evidence of an expert to the effect that a victim of acquaintance rape will often
not reveal the incident immediately after its occurrence. See further n 55 above where reference is
made to Schwikkard in Jagwanth et al Women and the Law 201.
74 Munday Evidence 4 ed (2007) 228: "It is now widely accepted that prompt complaint by
sexual complainants is far from the norm". See also Holtzhauzen v Roodt1997 (4) SA 766 (W)
where Satchwell J admitted evidence of an expert to the effect that a victim of acquaintance
rape will often not reveal the incident immediately after its occurrence. See further n 55 above
where reference is made to Schwikkard in Jagwanth et al Women and the Law 201.
Footnote - 75
75 See generally ch 5 above.
75 See generally ch 5 above.
Footnote - 76
76 See generally S v Thys 1974 2 PH H82 (C); R v Gloose 1936 2 PH F155 (SWA); R v
Westermeyer 1911 32 NLR 197; R v Komsame 1928 EDL 423.
76 See generally S v Thys 1974 2 PH H82 (C); R v Gloose 1936 2 PH F155 (SWA); R v
Westermeyer 1911 32 NLR 197; R v Komsame 1928 EDL 423.
Footnote - 77
Footnote - 78
78 R v Dray1925 AD 553.
78 R v Dray1925 AD 553.
Footnote - 79
79 Chapter 2 creates statutory sexual offences such as rape (s 3); compelled rape (s 4); sexual
assault (s 5); compelled self-sexual assault ( s 7); certain offences against persons eighteen years or
older (ss 8 to 11); incest (s 12); bestiality (s 13) and sexual acts with a corpse (s 14).
79 Chapter 2 creates statutory sexual offences such as rape (s 3); compelled rape (s 4);
sexual assault (s 5); compelled self-sexual assault ( s 7); certain offences against persons
eighteen years or older (ss 8 to 11); incest (s 12); bestiality (s 13) and sexual acts with a
corpse (s 14).
Footnote - 80
80 Chapter 3 deals with sexual offences against children.
80 Chapter 3 deals with sexual offences against children.
Footnote - 81
81 Chapter 4 deals with sexual offences against persons who are mentally disabled.
81 Chapter 4 deals with sexual offences against persons who are mentally disabled.
Footnote - 82
82 This section creates the offence of attempting, conspiring, inciting or inducing another person to
commit a sexual offence.
82 This section creates the offence of attempting, conspiring, inciting or inducing another
person to commit a sexual offence.
Footnote - 83
83 Section 71 deals with trafficking in persons for sexual purposes.
83 Section 71 deals with trafficking in persons for sexual purposes.
Footnote - 84
84 Paizes in Du Toit et al Commentary 23-19 — 23-20.
84 Paizes in Du Toit et al Commentary 23-19 — 23-20.
Footnote - 85
85 R v M1959 (1) SA 352 (A). Cf, however, S v M1980 (1) SA 586 (B) as discussed by Labuschagne
1980 THRHR 322 and Van der Merwe 1980 Obiter 86.
85 R v M1959 (1) SA 352 (A). Cf, however, S v M1980 (1) SA 586 (B) as discussed by
Labuschagne 1980 THRHR 322 and Van der Merwe 1980 Obiter 86.
Footnote - 86
86 S v Hammond2004 (2) SACR 303 (SCA) at [17].
86 S v Hammond2004 (2) SACR 303 (SCA) at [17].
Footnote - 87
87 S v Gentle2005 (1) SACR 420 (SCA).
87 S v Gentle2005 (1) SACR 420 (SCA).
Footnote - 88
88 Ashworth "Corroboration and Self-corroboration" 1978 Justice of the Peace 266 267.
88 Ashworth "Corroboration and Self-corroboration" 1978 Justice of the Peace 266 267.
Footnote - 89
89 1990 (1) SACR 5 (A) 11c.
89 1990 (1) SACR 5 (A) 11c.
Footnote - 90
90 S v Hammond supra at [21]-[23].
90 S v Hammond supra at [21]-[23].
Footnote - 91
91 See generally Steyn Witnesses in South Africa, The Stepchildren of the Criminal Justice System
(unpub LLM thesis, Univ of Cape Town, 1999) 96-102; Müller The Child Witness in the Accusatorial
System (unpub PhD thesis, Rhodes Univ, 1997) 307-13; Singh 2006 SACJ 37.
91 See generally Steyn Witnesses in South Africa, The Stepchildren of the Criminal Justice
System (unpub LLM thesis, Univ of Cape Town, 1999) 96-102; Müller The Child Witness in the
Accusatorial System (unpub PhD thesis, Rhodes Univ, 1997) 307-13; Singh 2006 SACJ 37.
Footnote - 92
92 South African Law Commission Report on Women and Sexual Offences (1985) para 3 50.
92 South African Law Commission Report on Women and Sexual Offences (1985) para 3 50.
Footnote - 93
93 SALC, Discussion Paper 102, Project 107, Sexual Offences: Process and Procedure (2002) para
34 4 1 1 (hereafter referred to as Discussion Paper 102).
93 SALC, Discussion Paper 102, Project 107, Sexual Offences: Process and Procedure (2002)
para 34 4 1 1 (hereafter referred to as Discussion Paper 102).
Footnote - 94
94 Discussion Paper 102, para 34 4 2 1.
Footnote - 95
95 See also Schwikkard in Jagwanth et al (eds) Women and the Law 202.
95 See also Schwikkard in Jagwanth et al (eds) Women and the Law 202.
Footnote - 96
96 See generally S v S1990 (1) SACR 5 (A).
96 See generally S v S1990 (1) SACR 5 (A).
Footnote - 97
97 For a discussion of this Act, see Bohler-Muller 2001 SACJ 71.
97 For a discussion of this Act, see Bohler-Muller 2001 SACJ 71.
Footnote - 98
Footnote - 99
Footnote - 100
100 Paizes in Du Toit et al Commentary 24-8B.
100 Paizes in Du Toit et al Commentary 24-8B.
Document 76 of 330
9.7 Identification
Identification in court (a so-called "dock identification") is of very little probative
value. 101 Prior identification obviously carries more weight. In R v Rassool it was
said: 102
"Therefore it seems to me that the evidence of previous identification should be
regarded as relevant for the purpose of showing from the very start that the person
who is giving evidence in court identifying the prisoner in the dock is not identifying
the prisoner for the first time but has identified him on some previous occasion in
circumstances such as to give real weight to his identification."
The evidence of identification must go no further than mere identification. But
identifying words accompanying any physical identification may be received. 103
Footnote - 101
101 R v Velekaze1947 (1) SA 162 (W). See further para 30 11 2 1 below and the authorities cited
by Van der Merwe in Du Toit et al Commentary 3-7 to 3-9.
101 R v Velekaze1947 (1) SA 162 (W). See further para 30 11 2 1 below and the authorities
cited by Van der Merwe in Du Toit et al Commentary 3-7 to 3-9.
Footnote - 102
102 1932 NPD 112 118 (emphasis added).
102 1932 NPD 112 118 (emphasis added).
Footnote - 103
Document 77 of 330
9.8 Part VI of the CPEA104

In terms of Part VI of the CPEA it is in certain circumstances permissible to hand
in signed statements which witnesses, who are also giving oral evidence, made
after
3rd Ed, 2009 ch9-p120
the incident under investigation. Part VI of the CPEA also applies in criminal
proceedings. 105 The previous written statement cannot serve as corroboration of
evidence given by the person who made the statement. 106
Footnote - 104
104 See ch 15 below.
104 See ch 15 below.
Footnote - 105
Footnote - 106
106 Section 35(2) of the CPEA.

106 Section 35(2) of the CPEA.
Document 78 of 330
9.9 Res Gestae

A previous consistent statement may also be received if it forms part of the res
gestae. 107 This was confirmed by the Appellate Division in S v Moolman. 108 But
here, too, the previous consistent statement cannot corroborate the witness.
Footnote - 107
107 Tapper Cross and Tapper on Evidence 11 ed (2007) 411 states that the term "res gestae" is a
blanket phrase when applied to the admissibility of statements, and may roughly be said to denote
relevance through contemporaneity — part of the story.
107 Tapper Cross and Tapper on Evidence 11 ed (2007) 411 states that the term "res
gestae" is a blanket phrase when applied to the admissibility of statements, and may roughly
be said to denote relevance through contemporaneity — part of the story.
Footnote - 108
108 1996 (1) SACR 267 (A). In this case entries in a policeman's pocket book were held admissible
as being part of the res gestae.
108 1996 (1) SACR 267 (A). In this case entries in a policeman's pocket book were held
admissible as being part of the res gestae.
Document 79 of 330
9.10 Refreshing Memory 109
A witness's earlier statement may in certain circumstances be used to refresh his

memory whilst he is in the witness-box. The evidential value of a statement used
to refresh memory depends on one of two possible situations. In the case of
"present recollection revived" the earlier statement has no independent probative
value (see § 24.7 below). However, in the case of "past recollection recorded" the
contents of the statement are received (see § 24.7 below). In such an instance
there is no independent oral testimony (the memory of the witness is not
refreshed) and the issue concerning the admissibility of a previous consistent
statement does not arise.
Footnote - 109
109 Refreshing of memory and the distinction between present recollection revived and past
recollection recorded are discussed in ch 24 below. See especially § 24.2 below.
109 Refreshing of memory and the distinction between present recollection revived and past
recollection recorded are discussed in ch 24 below. See especially § 24.2 below.
Document 80 of 330
9.11 Statements Made at Arrest or on Discovery of

Incriminating Articles
These statements may be used to prove consistency. 110
Footnote - 110
110 See generally Gooderson "Previous Consistent Statements" 1968 26 Cambridge LJ 64 66-74.
110 See generally Gooderson "Previous Consistent Statements" 1968 26 Cambridge LJ 64

66-74.
Document 81 of 330
9.12 Section 213 of the CPA

In terms of this section, which does not apply to an accused, a witness's
statement may in certain circumstances be proved by consent, that is, without
calling the witness. It is possible, however, that the witness may also be called
upon to testify viva voce after his statement has been proved by consent. 111 It is
submitted that in such an instance the previous written statement will merely
serve to show consistency. It cannot corroborate the witness.
Footnote - 111
Document 82 of 330
Section C
Exclusion of relevant evidence: Privilege
10. Private Privilege — P J Schwikkard
11. State Privilege (Public Interest Immunity) — S E van der Merwe
Document 83 of 330
Chapter 10
Private Privilege
P J Schwikkard
10.1 Introduction
10.2 The privilege against self-incrimination and the right to remain silent
10.2.1 The rationale
10.2.2 the witness in criminal proceedings
10.2.2.1 The scope of the privilege
10.2.3 The accused
10.2.3.1 Pre-trial proceedings
10.2.3.1.1 Ascertainment of bodily features
10.2.3.1.2 Bail proceedings
10.2.3.2 Trial and plea proceedings
10.2.4 Other investigative inquiries
10.2.5 The witness in civil proceedings
10.3 Legal professional privilege
10.3.2 The requirements for the existence of the privilege
10.3.2.1 Acting in a professional capacity
10.3.2.2 The communication must be made in confidence
10.3.2.3 For the purpose of obtaining legal advice
10.3.2.4 The client must claim the privilege
10.3.3 The scope of the rule
10.3.4 Waiver
10.3.5 Refreshing memory in the witness-box
10.4 Other professional privileges?
10.5 Marital privilege
10.6 Parent-child privilege
3rd Ed, 2009 ch10-p123
10.1 Introduction
Privilege exists when a witness is not obliged to answer a question or supply
information that is relevant to an issue before the court. 1 A claim of privilege
must be distinguished from the non-competence or non-compellability of a
witness (see § 22.1 below). An incompetent witness does not have the capacity
to testify; a non-compellable witness has the right to refuse to testify at all,
whilst a witness who wishes to claim privilege is still required to enter the
witness-box and then raise the privilege as the reason for not answering the
questions put. A claim of privilege may as a rule be waived. However, if persons
are unaware of their right to claim
3rd Ed, 2009 ch10-p124
the privilege, the courts will be reluctant to uphold a claim of waiver. 2 A

distinction must also be drawn between private privilege and state privilege.
Where evidence is excluded because to disclose or admit it would be detrimental
to state interests, state privilege is claimed (see § 11.1 below). Private privilege
is directed at protecting the interests of individuals. When private privilege is
claimed secondary or circumstantial evidence may as a rule be admitted to prove
the matters protected by that privilege. 3 This may not be done when state
privilege is invoked. The differences between private and state privilege are also
discussed in § 11.1.2 below.
The effect of private privilege is to deprive the court of relevant evidence;
consequently there is a tendency to restrict the instances in which privilege can
be claimed. 4 For example, the courts will not recognise a privilege between
journalists and their informers or doctors and their patients. This matter is dealt
with in § 10.4 below.
In this chapter the following heads of privilege will be discussed: the privilege
against self-incrimination; professional privilege; marital privilege; parent-child
privilege. 5
Footnote - 1
1 Generally speaking, no adverse inference may be drawn from the fact that a person claims
privilege; see International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1)1955 (2) SA 1
(W).
1 Generally speaking, no adverse inference may be drawn from the fact that a person claims
privilege; see International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1)1955 (2)
SA 1 (W).
Footnote - 2
2 See Van Lill v S 1969 2 PH H219 (T); S v Evans1981 (4) SA 52 (C). A presiding officer has a duty
to advise the unrepresented accused of any claim to privilege; see S v Lwane1966 (2) SA 433 (A),
which is also discussed in § 3.5.2 above and § 10.2.2 below.
2 See Van Lill v S 1969 2 PH H219 (T); S v Evans1981 (4) SA 52 (C). A presiding officer has
a duty to advise the unrepresented accused of any claim to privilege; see S v Lwane1966 (2)
SA 433 (A), which is also discussed in § 3.5.2 above and § 10.2.2 below.
Footnote - 3
3 Van der Merwe et al Evidence (1983) 133.
3 Van der Merwe et al Evidence (1983) 133.
Footnote - 4
4 See generally Tapper Cross and Tapper on Evidence 11 ed (2007) 447.
4 See generally Tapper Cross and Tapper on Evidence 11 ed (2007) 447.
Footnote - 5
5 Although not discussed in this ch, it should be noted that a litigant may refuse to disclose a
document in discovery proceedings if he would be able to claim privilege for its contents on any
ground. See generally Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 221
for the grounds on which witness statement privilege exists in civil cases. See § 11.5 below as far as
"docket privilege" of the state is concerned.
5 Although not discussed in this ch, it should be noted that a litigant may refuse to disclose a
document in discovery proceedings if he would be able to claim privilege for its contents on any
ground. See generally Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg
(1984) 221 for the grounds on which witness statement privilege exists in civil cases. See §
11.5 below as far as "docket privilege" of the state is concerned.
Document 84 of 330
10.2 The privilege against self-incrimination and the
right to remain silent
The privilege against self-incrimination prohibits a person being compelled to give
evidence that incriminates him- or herself. 6 This rule is part of our common law;
it is also reflected in certain statutory provisions 7 and enjoys constitutional
protection. 8 The right to remain silent, which can be described as the absence of
a legal obligation to speak, is necessary to give effect to the privilege against
self-incrimination. 9

The privilege against self-incrimination and the right to remain silent are a natural
consequence of the presumption of innocence which places the burden on the
prosecution to prove the accused's guilt beyond a reasonable doubt. 10 It is
generally accepted that historically these rules "originated in the unpopularity of
the procedure in the Star Chamber under which those who were
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charged with an offence were interrogated on oath" 11 and the use of torture was
an accepted legal procedure. 12
In modern law the rationale for retaining the privilege against self-
incrimination probably remains founded in public revulsion to the idea that a
person should be compelled to give evidence that will expose her to the risk of
criminal punishment. 13 This reflects a belief that individuals have a right to
privacy and dignity which, whilst not absolute, may not be easily eroded. A
further justification for the privilege is that it is necessary to encourage people to
testify freely; 14 people may be reluctant to come forward as witnesses and may
decline to testify if they are fearful that they might be forced to incriminate
themselves. 15
In Miranda v Arizona Warren CJ held: 16
"The constitutional foundation underlying the privilege is the respect a government
… must accord to the dignity and integrity of its citizens … [T]o respect the
inviolability of the human personality, our accusatory system of criminal justice
demands that the government seeking to punish an individual produce the evidence
against him by its own independent labors, rather than by the cruel simple
expedient of compelling it from his own mouth."
It can also be argued that both the right not to incriminate oneself and the right
to silence are necessary to deter improper investigation which may negatively
impact on the reliability of evidence and in this respect the rights should be
viewed as enhancing the truth-seeking function of the court.
There are distinctions in the application of the privilege against self-
incrimination and the right to remain silent to the accused, witnesses in criminal
proceedings, and witnesses in civil proceedings; these will be considered below.
10.2.2 The witness in criminal proceedings

In terms of s 203 of the CPA a witness may refuse to answer a question if it
would expose her to a criminal charge; 17 however, the refusal will not be
justified if it is based on a fear that it may give rise to a civil claim. 18 Presiding
officers are required to warn witnesses in criminal proceedings of their rights
under s 203. A failure to do so will ordinarily render "the incriminating evidence
inadmissible in a prosecution against the witness". 19 In
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S v Lwane the appellant had been a complainant at an earlier hearing at which he
gave evidence against a fellow thief and murderer who had shot him. In the
course of his testimony he confessed to having participated in a murder himself.
He was subsequently charged and convicted of the murder on the basis of his
confession made at the earlier hearing. On appeal it was held that his testimony
at the earlier hearing was inadmissible in that he had been ignorant of his right to
decline to incriminate himself and had not been warned of the existence of this
right. 21
Before the privilege against self-incrimination will be upheld the court must be
satisfied from the circumstances of the case and the nature of the evidence that
there are reasonable grounds to believe that the witness will incriminate herself.
22 However, the witness is "given considerable latitude in deciding what is likely
to prove an incriminating reply". 23
A witness at inquest proceedings can also claim the privilege against self-
incrimination. 24 From the decision in Masokanye v Additional Magistrate,
Stellenbosch it would appear that the privilege is restricted at such proceedings.
26 The court held that a presiding officer at an inquest, in exercising his discretion
to uphold the privilege against self-incrimination, must ensure that the salutary
protection afforded by the rule against self-incrimination was not converted into a
means of abuse. In exercising such discretion it is necessary to balance the scales
between the interests of the witness who demands the protection and the
interests of the public, which demand full disclosure. Despite adopting this
approach, the court held that a policeman at inquest proceedings is entitled to
claim the privilege against self-incrimination concerning questions relating to his
own activities as well as the actions of his colleagues, as inferences could be
drawn from his colleagues' actions which could incriminate him. The conclusion of
the court has the potential of compromising the principle of open government. 27
"The propriety of police conduct is a matter of public concern, and public policy
requires that such conduct should, as far as possible, be open to scrutiny by the
courts." 28
The extent of the privilege set out in s 203 is modified by s 204 of the CPA,
which is designed to encourage accomplices to testify as state witnesses against
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their co-offenders by providing an avenue for indemnity. 29 This section provides

that whenever the prosecutor informs the court that a witness will be required to
answer self-incriminating questions with regard to the offence specified, the
court, provided the witness is competent, shall inform the witness that she is
obliged to give evidence and answer incriminating questions (in respect of the
offence charged). 30 If a witness answers the questions put to her frankly and
honestly, she will be discharged from prosecution. 31 If such a discharge is given
at preparatory examination proceedings and a witness does not testify frankly
and honestly at the ensuing trial, the discharge shall be of no legal force or effect.
32 If discharge is refused, the witness still enjoys a measure of protection in that
her evidence will be inadmissible at any trial in respect of the specified offence.
However, the evidence will not be excluded where the charge is one of perjury or
statutory perjury. 33
The privilege against self-incrimination may also be claimed when an inquiry is
held in terms of s 205 of the CPA. 34 However, the privilege falls away if the s 204
procedures are invoked during such an inquiry. 35
In S v Maunye the court noted obiter that s 204 appeared to be a justifiable
limitation on the constitutional right not to give self-incriminating evidence.
Stegmann J noted that "[t]his is no doubt because it affords a person who is
under suspicion of having committed an offence a very fair and reasonable
bargain." 37
10.2.2.1 The scope of the privilege

A claim of privilege will succeed only if the court is satisfied that the witness's
apprehension of being exposed to a criminal charge, if she is compelled to
answer, is based on reasonable grounds. 38 Clearly if a witness has been
indemnified from prosecution she will not be able to claim the privilege.
The privilege extends beyond answers that would directly incriminate the
witness to those "which tend to disclose facts which are innocent in themselves
but might form 'links in the chain of proof' in a possible charge against the
witness". 39
10.2.3 The accused

10.2.3.1 Pre-trial proceedings
At common law it is well recognised that a person should not be compelled to
incriminate him- or herself. 40 In addition the Judges'
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Rules 41 also require the police to caution persons suspected of committing a

crime before questioning them. Unfortunately, these rules have been accorded
little weight by the judges themselves, who have frequently dismissed them on
the ground that they are merely administrative directives. 42 In the past the
courts have held that a failure to advise an arrested person of her right to remain
silent and her right to legal representation does not necessarily render any
incriminating statements inadmissible, the absence of a warning merely being a
factor to be taken into consideration in deciding whether the state has discharged
its onus of proving that the requirements of admissibility have been met. 43 For
example, in R v Barlin the accused made an incriminating statement to a police
officer. At the time this statement was made the police officer suspected but had
not yet arrested the accused and did not caution him. The court held that as the
accused's statement had been made freely and voluntarily, the fact that the
police officer had not warned the accused of his right to remain silent did not
render the statement inadmissible. A change has been brought about by the new
constitutional dispensation. Section 35(5) of the Constitution which is discussed
more fully in chapter 12 below provides: "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 otherwise be detrimental to the
administration of justice." It follows that if evidence is obtained in breach of the
privilege against self-incrimination, it will generally be inadmissible. 45
In the United States the Fifth Amendment, which gives constitutional
protection to the privilege against self-incrimination, was interpreted in Miranda v
Arizona as extending to incriminating statements made by persons in police
custody. 47 In the Miranda judgment the court, referring with approval to an
earlier case Escobedo v Illinois, 48 found that the right to counsel was essential in
order to protect the right against self-incrimination. The holding of the court in
Miranda can be summarised
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as follows: statements obtained during custodial interrogation of the accused may

not be admitted into evidence unless the prosecution can show that appropriate
procedural safeguards were used to secure the privilege against self-
incrimination. The appropriate procedural safeguards are that a person must be
warned that she has the right to remain silent, that any statement she makes
may be used in evidence against her, and that she has a right to the presence of
an attorney. The fact that an accused may be aware of her rights without having
been warned, should not affect the inadmissibility of the evidence. 49
There are a number of provisions in s 35 of the Constitution which are directed
at securing the privilege against self-incrimination prior to trial proceedings. 50
However, the distinction made between arrested, detained and accused persons
in s 35 gives rise to some anomalies regarding the application of these provisions.
51 (It would, though, seem that these anomalies are more apparent than real.)
In terms of s 35 a detained person 52 has the right to consult with a legal

practitioner of her choice, to be informed of this right promptly and, where
substantial injustice would otherwise result, to be provided with the service of a
legal practitioner at state expense. 53 However, it is not specified that detained
persons must be informed of the right to remain silent. On the other hand,
arrested persons must be advised of the right to remain silent as well as the
consequences of not remaining silent. 54 It is not specified that arrested persons
must be advised of their right to consult with a legal practitioner. However, little
significance can be attached to this omission. Although a detained person need
not necessarily have been arrested, an arrested person will always also be a
detained person: "the effect of an arrest is that the person arrested is in lawful
custody and must be detained until lawfully discharged". 55 Both logic and policy
dictate that s 35 confers the right to consult with a legal representative and the
right to be advised of this right, on both accused and detained persons. This is
reflected in s 73 of the CPA which provides that an arrested person must "be
informed of his or her right to be represented at his or her own expense by a
legal adviser of his or her own choice and if he or she cannot afford legal
representation, that he or she may apply for legal aid and of the institutions
which he or she may approach for legal assistance." 56
The ambit of the duty to advise a person of the right to consult with a legal
practitioner is also dependent on the meaning of the word "detention".
"Detention"
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obviously includes the physical incarceration of a person in prison. A person in

lawful police custody will also be detained. 57 However, "detention" also has a
broader meaning, and in this respect it is useful to draw on Canadian
jurisprudence. Section 10 of the Canadian Charter provides that everyone has the
right on arrest or detention to retain and instruct counsel without delay and to be
informed of that right. The Supreme Court of Canada has held 58 that detention
occurs not only when persons are deprived of their liberty by physical constraint,
but also "when a police officer or other agent of the state assumes control over
the movement of a person by demand or direction which may have significant
legal consequence and which prevents or impedes access to counsel". 59 The
Canadian Supreme Court has held that "the necessary element of compulsion or
coercion to constitute a detention may arise from criminal liability for refusal to
comply with a demand or direction, or from a reasonable belief that one does not
have a choice as to whether or not to comply". 60 In applying the Canadian
interpretation of detention it would appear that suspects who are questioned by
the police in their homes will not be "detained" and will not be entitled to be
advised of their right to legal representation, as the police have no power to
compel suspects to answer questions. 61 However, if a suspect reasonably
believes that she must answer the question then she will be "detained" and must
be advised of her right to legal representation. Presumably, if we imported this
interpretation of detention into South African jurisprudence, the test for
reasonable belief would be subjective, as is the test for undue influence. 62
Consequently, a person who is questioned by the police, and who does not know
that he or she is not obliged to answer the questions, and feels compelled to
speak, will be detained for the purposes of the Constitution.
The distinction made between arrested, detained and accused persons in s 35
also gives rise to some uncertainty regarding the application of the privilege
against self-incrimination. The privilege against self-incrimination is only specified
in relation to the accused's right to a fair trial. 63 However, this distinction in
wording has little significance as there is sufficient authority of the view that the
right to a fair trial does not begin in the court but at the inception of the criminal
process. 64 Froneman J in S v Melani observed:
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"The purpose of the right to counsel and its corollary to be informed of that right …
is thus to protect the right to remain silent, the right not to incriminate oneself and
the right to be presumed innocence until proven guilty. Section 25(2) and 25(3) of
the [interim] Constitution make it abundantly clear that this protection exists from
the inception of the criminal process that is on arrest, until its culmination up to and
during the trial itself. This protection has nothing to do with the need to ensure the
reliability of evidence adduced at the trial. It has everything to do with the need to
ensure that an accused is treated fairly in the entire criminal process: in the
'gatehouse' of the criminal justice system (that is the interrogation process), as well
as in its 'mansions' (the trial court)…"
And Claassen J in S v Mathebula noted:
"The rationale for the requirement that an accused should be entitled to legal
representation at every important pre-trial stage is as follows: an accused is
presumed innocent until proven guilty. There is no duty on the accused to assist the
state in its task. An accused has the right to remain silent and need not contribute in
any way to the process of supplying or obtaining evidence which tends to prove his
guilt in the form of self-incriminatory oral or written communications. Pre-trial, he is
entitled to increased protection against any such self-incrimination induced by force
(R v Camane1925 AD 570; S v Khumalo1992 (2) SACR 411 (N); Ferreira v Levin
NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) … Whenever the state wishes to
embark upon any pre-trial procedure wherein it seeks the co-operation of the
accused and which would result in an erosion of or encroachment into the accused's
constitutional rights, such procedure will have to be preceded by a repetition of a
due warning regarding all of his relevant s 25 constitutional rights. (It may be noted
in passing that even in cases of pre-trial procedures where an accused's co-
operation is required for purposes of obtaining 'real' as opposed to self-incriminating
oral or testimonial evidence, the accused has in the past had the right to legal
representation during such procedure … see United States v Wade 388 US 218
(1967); S v Huma (2)1995 (2) SACR 411 (W); S v Mhlakaza 1996 (6) BCLR 814 (C).
The presence of an accused's legal representative at such pre-trial procedures
constitutes a 'checking mechanism'. An accused may not know under what
circumstances the oral or testimonial evidence at a pre-trial procedure would
constitute admissions or confessions. He is therefore entitled to legal assistance in
order to be advised as to what the consequences might be of his responses to the
State's request for his co-operation and assistance in any pre-trial investigatory
procedures. It will also be the task of the legal representative to check and see that
all other constitutional rights are safeguarded during such procedures."
There are conflicting views as to whether it is necessary to advise a person of her
s 35 rights at every pre-trial stage. 67 The most pragmatic approach is that in
each case the crucial inquiry should be whether the accused, after having been
apprised of her rights on arrest, was in a position to decide voluntarily how to
exercise her rights at each subsequent pre-trial procedure.
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Must detained persons also be warned of their right to remain silent? It is

submitted that if a police officer questions a detained person who is not legally
represented, she runs the risk of eliciting inadmissible evidence if the detainee is
also not advised of the right to remain silent. As argued above, the right to a fair
trial demands that the privilege against self-incrimination be upheld from the
inception of the criminal process. Whilst the presence of a legal representative
might be sufficient to protect this privilege, there can be little doubt that in the
absence of a legal representative, the warning of the right to remain silent would
be a minimum for ensuring the protection of the privilege against self-
incrimination. 68
In S v Sebejan the court considered the appropriate warning to be given to a
suspect 70 who was not an arrested or detained person and consequently,
ostensibly, fell outside the protection afforded by s 25 of the interim Constitution.
71 Satchwell J, endorsing the approach that the right to a fair trial operates at the
investigative stage of the criminal process, 72 held that a suspect was entitled to
the same warning as an arrested person. 73 However, the High Courts have
diverged on this point. In S v Langa, the court held that s 25 of the interim
Constitution 74 did not apply to suspects. 75 Pickering J in S v Mthethwa similarly
held that the rights of arrested, detained and accused persons set out in s 35(1),
(2) and (3) of the 1996 Constitution were irrelevant in respect of a suspect. 76
However, the Mthethwa court found that as the statement had been obtained in
breach of the Judges Rules 77 and that the admission of the evidence would
render the trial unfair and bring the administration of justice into disrepute, the
evidence fell to be excluded in terms of the court's common-law discretion. 78
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Clearly the privilege against self-incrimination requires that a detained and

accused person be afforded a substantive right to legal representation. 79 The
common law did not recognise a right to legal representation for those unable to
afford a lawyer. 80 The Constitution only affords detained and accused persons 81
the right to be provided with legal representation at state expense "if substantial
injustice would otherwise result". 82 It can be forcefully argued that legal
representation is necessary to uphold the privilege against self-incrimination and
that the protection of this privilege is necessary to ensure a fair trial; 83 therefore
a person's access to legal representation should not be dependent on her income.
This is also so if full recognition were to be given to the constitutional guarantee
of equality.
Principle demands that if the state finds itself unable to provide legal
representation to an arrested, detained or accused person, the police must refrain
from interrogating persons who desire legal representation but who are not in a
position to obtain it. 84 However, there can be little doubt that the reason for
imposing a restriction on the substantive right to legal representation is the
concern that the South African state simply does not have the resources to
provide legal representation for every indigent accused. As an absolute right, the
substantive right to legal representation may paralyse an already overburdened
criminal justice system. The solution is to be found in the limitations clause, 85
which must be applied before the constitutional exclusionary rule comes into play.
86 Consequently, a person arguing for the exclusion of evidence on the basis that
she was not advised of her right to legal representation, would not succeed if the
prosecution persuaded the court that a rule condoning the violation was saved by
the limitations clause. However, as a right may be "limited only in terms of law of
general application" 87 it is difficult to think of an example other than waiver
where the state could successfully invoke the limitation clause in relation to a
failure to advise a person of her right to legal representation or her right to
remain silent. 88
Clearly the position is very different in regard to the substantive right to legal
representation that is internally qualified. The purpose of the qualification of the
substantive right to legal representation is not to restrict any fundamental right
but to ensure that the criminal justice system does not cease to function due to
the state's fiscal inability to supply all accused with legal representation. Here
factors 89
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such as the complexity of the case, severity of the potential sentence, 90 and the
ignorance of the accused 91 will clearly come into play in weighing the nature and
extent of the limitation against the purpose that it seeks to serve. Depending on
the circumstances of the case a court might find that the failure to provide legal
representation at state expense constitutes a justifiable limitation. As a result the
exclusionary provision contained in s 35(5) would not come into consideration.
10.2.3.1.1 Ascertainment of bodily features

Section 37(1) of the CPA authorises police officials to take the fingerprints, palm-
prints or footprints of any person who has been arrested or charged. The police
are also authorised to take such steps as are necessary to ascertain whether the
body of any arrested person has any mark, characteristic or distinguishing feature
or shows any condition or appearance. 92 Although police officials are prohibited
from taking blood samples, any medical officer of any prison or a district surgeon
may do this. And if requested to by the police, a registered medical practitioner or
nurse can take steps, including taking a blood sample, to ascertain whether the
body of an arrested person has any mark, characteristic or distinguishing feature
or shows any condition or appearance. 93 Obviously evidence obtained as a
consequence of any of the above steps may incriminate the accused. The
question then arises whether s 37 is in conflict with s 35(1)(c) of the Constitution,
which provides that no one shall be compelled to make an admission which can
be used in evidence against him or her. Prior to legislative authorisation 94 there
was some uncertainty as to whether the ascertainment of bodily features, without
the consent of an accused, infringed the common-law privilege against self-
incrimination. In Goorpurshad v R the court set aside a conviction where the
accused during the course of a trial had been compelled by the presiding officer
to have his fingerprints taken. The Transvaal Provincial Division adopted a similar
approach in R v Maleke, 96 in which the court refused to admit evidence of a
footprint compelled by force. Krause J expressed his objection to the admission of
such evidence as follows: 97 "[I]t compels an accused person to convict himself
out of his own mouth; that it might open the door to oppression and persecution
of the worst kind; that it is a negation of the liberty of the subject and offends
against our sense of natural justice and fair play …"
However, the judicial debate as to whether such evidence should be excluded
because it infringed the principle against self-incrimination was brought to a close
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by the Appellate Division in Ex parte Minister of Justice: In re R v Matemba, 98 in

which the court considered the admissibility of evidence of a palm-print taken by
compulsion. The court found that the privilege against self-incrimination applied
only to testimonial utterances. Watermeyer JA held: 99
"Now, where a palm-print is being taken from an accused person, he is, as pointed
out by Innes CJ in R v Camane (1925 AD 570 at 575), entirely passive. He is not
being compelled to give evidence or to confess, any more than he is being compelled
to give evidence or confess when his photograph is being taken or when he is put
upon an identification parade or when is made to show a scar in court. In my
judgment, therefore, neither the maxim nemo tenetur se ipsum prodere nor the
confession rule make inadmissible palm-prints compulsorily taken."
This reasoning was also invoked to justify the admission of evidence of a thing or
place pointed out by the accused, even in circumstances where the pointing out
was coerced. In S v Sheehama the Appellate Division found this reasoning to be
untenable and held that "a pointing out is essentially a communication by conduct
and, as such, is a statement by the person pointing out". Consequently, a
pointing out, like any other extra-judicial admission, has to be made voluntarily
before it will be admitted into evidence. 101 However, although a pointing out, like
the ascertainment of bodily features, usually results in the production of "real"
evidence, it can be distinguished from the latter in that it involves some degree of
active or communicative conduct. 102
In S v Huma (2), Claassen J held that the taking of fingerprints did not
constitute testimonial evidence by the accused and was therefore not in conflict
with the privilege against self-incrimination. 103 The court relied heavily on the
reasoning of the US Supreme Court in Schmerber v California. 104 In Schmerber,
a majority of the Supreme Court held that the Fifth Amendment privilege against
self-incrimination relates only to the testimonial or communicative acts of the
accused and does not apply to non-communicative acts such as submission to a
blood test. 105
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This approach was adopted by the Supreme Court of Appeal in Levack v Regional
Magistrate Wynberg. 106 In Levack, the Supreme Court of Appeal Supreme Court
of Appeal held that compelling an accused to submit a voice sample infringed
neither the right to remain silent nor the right not to give self-incriminating
evidence. In S v Orrie, the High Court found that the involuntary taking of a blood
sample for the purposes of DNA profiling infringed both the right to privacy and
the right to bodily security and integrity but that the infringement was justifiable.
107 Desai J, in Minister of Safety and Security v Gaqa, 108 confirmed an order
compelling the respondent to submit himself to an operation for the removal of a
bullet from his leg. In so doing, the High Court rejected the respondent's
argument that to do so would infringe his constitutional right not to incriminate
himself. The court held that ss 27 and 37 of the CPA sanctioned the violence
necessary to remove the bullet, and that although these procedures constituted a
serious infringement of dignity and bodily integrity, they met the requirements of
the limitation clause. A similar application was made to the High Court in Minister
of Safety and Security v Xaba. The respondents arguments were, it appears,
limited to the right to be free from all forms of violence (s 12(1)(c)) and the right
to have security and control over ones body (s 12(2)(b)). Southwood AJ held that
the conclusion of the court in Gaqa was clearly wrong. In the absence of a law of
general application authorising the specific constitutional infringements,
Southwood AJ reasoned, the requirements of the limitation clause could not be
met.
Section 225(2) of the CPA reads:
"[S]uch evidence shall not be inadmissible by reason only thereof that the finger-
print, palm-print, or foot-print in question was not taken or that the mark,
characteristic, feature, condition or appearance in question was not ascertained in
accordance with the provisions of section 37, or that it was taken or ascertained
against the wish or the will of the accused." 110
The words "by reason only thereof" make it clear that evidence can be excluded
on grounds other than non-compliance with s 37; at any rate, s 35(5) of the
Constitution will apply in cases where s 37 evidence is obtained in breach of the
Bill of Rights (see § 12.9.6 below).
Can a clear distinction be made between the ascertainment of bodily features
and testimonial or communicative statements? Black and Douglas JJ, dissenting
in Schmerber, 111 thought not:
"[T]he compulsory extraction of a petitioner's blood for analysis so that the person
who analysed it could give evidence to convict him had both a 'testimonial' and a
'communicative nature'. The sole purpose of this project which to be successful was
to obtain 'testimony' from some person to prove that the petitioner had alcohol in
his blood at the time he was arrested. And the purpose of the project
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was certainly 'communicative' in that the analysis of the blood was to supply
information to enable a witness to communicate to the court and jury that the
petitioner was more or less drunk." 112
In his dissenting judgment Black J criticised the majority's heavy reliance on the
words "testimonial" and "communicative", which he found to have little clarity,
and the court's narrow and technical interpretation of the Bill of Rights safeguard
against compulsory self-incrimination.
It is submitted that even if in the future the South African courts take the
more broad and liberal construction advocated by Black J, the compulsory
ascertainment of bodily features authorised by s 37 of the CPA may still survive a
constitutional challenge on the following basis: although the ascertainment of
bodily features against the will of the accused limits the privilege against self-
incrimination, such limitation may well meet the requirements of s 36 of the
Constitution. 113
Another question that arises in relation to the ascertainment of bodily features
is whether an accused must be advised of his or her right to legal representation
prior to an identification parade being held (see also § 12.9.8 below). At present
it appears to be an open question. Leveson J, in S v Ngwenya, held that the right
to a fair trial did not require the accused to be advised of his right to legal
representation at every stage of the pre-trial process and that the passive role
played by the accused at the identification parade did not involve any process of
self-incrimination. 114 In S v Mokoena, the court held that the failure to advise
the accused of his right to legal representation at an identity parade merely
affected the weight of the evidence and not its admissibility. 115 However, in S v
Mhlakaza, the court found the failure to advise the accused of their right to
representation coupled with the accused's express objection to the absence of
any legal representation, rendered the evidence of the identification parade
inadmissible; this approach has received little support in subsequent cases. 116
10.2.3.1.2 Bail proceedings

Where an accused gives evidence in a bail application he retains the privilege
against self-incrimination. 117 This means that even where the accused elects to
testify he can decline to answer incriminating questions. However, if the accused
chooses not to testify or refuses to answer incriminating questions, he runs the
risk of bail being refused. One of the issues before the Constitutional
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Court in S v Dlamini; S v Dladla; S v Joubert; S v Schietekat was the

constitutionality of s 60(11B)(c) of the CPA. Section 60(11B)(c) provides:
"The record of the bail proceedings, excluding the information in paragraph (a), shall
form part of the record of the trial of the accused following upon such bail
proceedings: Provided that if the accused elects to testify during the course of the
bail proceedings the court must inform him or her of the fact that anything he or she
says, may be used against him or her at his or her trial and such evidence becomes
admissible in any subsequent proceedings."
As noted by the Constitutional Court 119 this section is not inconsistent with the
common law in terms of which admissible evidence given by the accused at a bail
application may be admitted against the accused at the subsequent trial. This is
reinforced by s 235 of the CPA, which provides for proof of the record by the
mere production of a certified copy thereof at trial. 120 The common law also
permits an accused to be cross-examined at trial on previous inconsistent
statements including those made during bail proceedings.
The constitutional challenge to s 60(11B)(c) was based on the alleged
infringement of those rights directed at upholding the privilege against self-
incrimination. Counsel for Schietekat focused on the effects of s 60(11B)(c) when
applied in conjunction with s 60(11)(a) and s 60(14). 121 The argument can be
summarised as follows: the effect of s 60(11) is that the accused has no choice
but to adduce evidence if he wants to be released on bail. Because ss 60(14)
effectively denies the accused access to information in the police docket, the
accused will in many instances have to testify himself in order to satisfy the
requirements of s 60(11). The combined effect of these provisions is to burden
the accused with a compulsion to testify. Counsel for Dlamini and Dladla
advanced a broader argument relying on the argument in S v Botha in which the
court held that "[i]n the interests of a fair trial, the accused should not have to
choose" between the right to bail and the privilege against self-incrimination.
Both arguments were dismissed. The court rejected the remedy advanced in
Botha, namely to treat evidence given at bail proceedings in the same way as
evidence given at a trial-within-a-trial. It held that s 60(11B)(c) did not compel
the accused to do anything. At most it required the accused to make a difficult
choice. Kriegler J held that the fact that an accused
3rd Ed, 2009 ch10-p139
may be forced to make a difficult choice was a common feature in democratic

societies and an important component of freedom, and that it was "an inevitable
consequence of the high degree of autonomy afforded the prosecution and the
defence in our largely adversary system of criminal justice". 123 The
Constitutional Court concluded that there was no inevitable conflict between s
60(11B)(c) and any provision of the Constitution as in each instance evidence
contained in the bail record fell to be excluded if its admission would render the
trial unfair. 124
The admissibility of the bail record was one of the issues that came before the
court in S v Basson, 125 in which the Constitutional Court dealt with an appeal
against the acquittal of Dr Wouter Basson. At the bail proceedings in question the
state had made use of the record of prior proceedings conducted under the
Investigation of Serious Economic Offences Act 117 of 1991 (ISEO). In terms of
the Act a witness who is examined under s 5(6) may not claim the privilege
against self-incrimination. 126 However, the section also provides that the record
of the examination may not be used in subsequent criminal proceedings against
the witness. The Constitutional Court noted that Dr Basson had been questioned
for 39 days under the ISEO, without legal representation, by Adv Fouche who also
represented the state in the bail proceedings.
The court held that although s 60(11B)(c) stipulated that the record of the bail
proceedings should form part of the trial record, a court still retained a discretion
to exclude the bail record if its admission would render the trial unfair. Given the
clear and repeated view of the Constitutional Court that a trial court "is best
placed to determine what will constitute a fair trial or not " 127the Constitutional
Court then turned its collective mind as to what approach it should adopt in
evaluating the exercise of such a discretion by a trial court. It held: 128
"…[T]he test on appeal is not whether the trial Court was correct in the exercise of
its discretion to exclude evidence on the grounds that it may render the trial unfair.
The question is whether, as this court formulated it in National Coalition for Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others, the lower Court
has not exercised its discretion judicially, or been influenced by wrong principles of
law or a misdirection on the facts, or reached a decision which could not reasonably
have been made by a court properly directing itself to all the relevant facts and legal
principles."
Applying this test the court concluded that there were no grounds to interfere
with the exercise of the trial court's discretion. 129
3rd Ed, 2009 ch10-p140
It is important to bear in mind that s 35(3) rights can not be claimed at the
bail hearing. The application of s 35(3) is not only dependent on the claimant of
the relevant rights being an accused; the claimant must also be an accused in
criminal trial proceedings. Consequently, an accused in bail proceedings is
entitled to claim the rights of an arrested and detained person but not fair trial
rights. 130 In S v Dlamini, S v Dladla, S v Joubert, S v Schietekat, Kriegler J drew
the following distinction between bail and trial proceedings:
"[T]here is a fundamental difference between the objective of bail proceedings and
that of the trial. In a bail application the enquiry is not really concerned with the
question of guilt. That is the task of the trial court. The court hearing the bail
application is concerned with the question of possible guilt only to the extent that it
may bear on where the interests of justice lie in regard to bail. The focus at the bail
stage is to decide whether the interests of justice permit the release of the accused
pending trial, and that entails in the main protecting the investigation and
prosecution of the case against hindrance." 131
10.2.3.2 Trial and plea proceedings

Section 35(3)(j) of the Constitution provides that the accused has the right "not
to be compelled to give self-incriminating evidence". This is reinforced by s
35(3)(f) and (g), which provide for the right to be informed promptly of the right
to be legally represented at trial and the right to have a legal practitioner
assigned at state expense if substantial justice would otherwise result. In addition
s 35(3)(h) provides that the right to a fair trial includes the right to be presumed
innocent, to remain silent and not to testify during proceedings.
The constitutional protection of the right to remain silent reinforces the notion
that a person should not be penalised for exercising her right to remain silent at
trial. Consequently, it can be argued that a court should not draw an adverse
inference from an accused's decision not to testify at trial. The constitutional right
not to testify is dealt with in § 30.9 below. 132
The failure of a presiding officer to advise an unrepresented accused of the
rights to legal representation and state assistance will lead to the infringement of
the right to a fair trial and the exclusion of evidence. 133 For example, in S v
Aimes the court held that the magistrate's failure to advise an unrepresented
accused of his rights to remain silent, not to testify against himself and not
answer incriminating questions meant that the subsequent evidence of the
accused was obtained in violation of his constitutional right to remain silent as
well as his common-law and statutory
3rd Ed, 2009 ch10-p141
rights against self-incrimination. 135 Consequently, the admission of the accused's

bail evidence would render the trial unfair and could not be admitted against the
accused. 136 The failure to advise an accused of his rights may also result in the
judgment being set aside in terms of s 52(3) of the Criminal Law Amendment Act
105 of 1997 where the High Court is of the view that the proceedings are not in
accordance with justice. 137 In summary contempt proceedings the failure to give
an accused an opportunity to acquire legal representation will not automatically
be deemed unconstitutional; it will depend on the circumstances of the case and
the ability of the accused to defend himself. 138
As far as plea proceedings are concerned, it is arguable that existing legislative
provisions encroach on the right to remain silent during plea proceedings. In
terms of s 112 of the CPA the accused may be questioned by the presiding officer
after entering a plea of guilty. This can be justified in numerous ways. The
accused, by entering a plea of guilty, is clearly abdicating her right to be
presumed innocent; there is no longer a contest between the state and the
accused. Furthermore, questioning in terms of s 112 is aimed at protecting the
accused; 139 the accused cannot compromise herself further as she has already
admitted guilt. A presiding officer may, through questioning the accused, discover
that she does have a valid defence. For example, it may become apparent on a
charge of culpable homicide that the accused acted in self-defence. In Director of
Public Prosecutions, Natal v Magidela the Supreme Court of Appeal, applying the
interim Constitution, held that the failure to advise an accused of the right to
remain silent, after he has entered a plea of guilty and before questioning him in
terms of s 112(1)(b) of the CPA, did not necessarily infringe the accused's right to
a fair trial. Although the interim Constitution placed a general duty on judicial
officers to advise the accused of his right to
3rd Ed, 2009 ch10-p142
remain silent during plea proceedings, in each case it had to be established

whether the admission of the evidence would violate the accused's right to a fair
trial. 141 For example, in Director of Public Prosecutions, Transvaal v Viljoen the
court held that it was necessary to advise an accused of his right to remain silent
in order to enable him to make an informed decision whether to waive the right.
Failure to do so may render the trial unfair. However, the absence of a warning
would not render the trial unfair if the accused was in any event aware of his
right to remain silent. 143
Equally contentious is questioning in terms of s 115 after the accused has
entered a plea of not guilty. In terms of s 115(1), where an accused pleads not
guilty, the magistrate may ask her whether she wishes to make a statement
indicating the basis of her defence. Section 115(2)(a) provides that where the
accused does not make a statement indicating the basis of her defence, or does
so and it is not clear from the statement to what extent she denies or admits the
issues raised by the plea, the court may question the accused in order to
establish which allegations in the charge are in dispute.
In terms of s 115(2)(b) the court may question the accused in order to clarify
any matter with regard to the statement indicating the basis of the accused's
defence, or her replies to questions directed at ascertaining which allegations are
in dispute. It is clear that an accused is not obliged to answer any questions put
to her under s 115, and she must be advised of this right. 144 An unrepresented
accused may find it extremely difficult to exercise this right in an alien and
intimidating court environment. 145 Consequently, it is possible that s 115 may
yet be challenged as effectively contravening the constitutionally protected right
to remain silent. 146
Section 20 of the Criminal Law Second Amendment Act 126 of 1992 provides a
more clear-cut example of legislation that falls foul of the constitutional right to
remain silent. 147 Section 20(4)(b)(i) provides that where an accused stands trial
on a special offence, 148 pleads not guilty and declines to indicate what the basis
of his
3rd Ed, 2009 ch10-p143
defence is, "the court may at will, in respect of his credibility or conduct, draw an
unfavourable inference regarding such failure if it is of the opinion that such an
inference is justified in the light of all the evidence that was adduced at the trial".
Chapter V of Act 126 of 1992 is currently not in operation. 149
The rights to remain silent, not to testify during proceedings and not to be
compelled to give self-incriminating evidence also fall to be considered when
dealing with discharge at the close of the state case. This is discussed at § 31.5
below. 150
10.2.4 Other investigative inquiries

There are several statutory enactments that provide for interrogation procedures
outside of the criminal process. 151 Many of these authorise designated officials to
compel persons to appear before them and to answer questions, whether
incriminating or not. Section 35(1) and 35(3) of the Constitution limit the right to
remain silent and not to answer incriminating questions, to arrested and accused
persons during plea proceedings and trial. 152 However, if an examinee is
subsequently charged, and the prosecution seeks to use evidence obtained at
such an interrogation in a subsequent trial, then the protections afforded by s
35(3) will apply. Even where an examinee has been arrested and charged prior to
an examination which occurs independently of the criminal trial, they can only
claim s 35(3) rights if evidence from the examination is sought to be introduced
at the trial. 153 However, where the purpose of the examination relates
specifically to the offence charged, the accused may not be summoned for
interrogation. 154 If the evidence elicited at an examination is found to have been
obtained in contravention of the privilege against self-incrimination, then it may
be excluded in terms of s 35(5) of the Constitution at a subsequent trial. 155
Thus, the right to a fair trial is protected by use immunity in respect of evidence
arising out of the "non-trial" interrogation. However, the subsequent use of
derivative evidence is less clear cut and its admissibility falls to be determined in
terms of a competent court's s 35(5) discretion or specific statutory offences
regulating the
3rd Ed, 2009 ch10-p144
admissibility of such derivative evidence. 156 This discretion does not mean that
an examinee is deprived of the right to procedural fairness prior to becoming an
accused. 157 An examinee will still be subject to the residual procedural
safeguards to be found in the s 12(1) right to freedom and security of person. 158
In addition, a person detained for non-trial purposes — say, for deportation —
may nevertheless rely on the s 35(2) rights of detainees. 159
The Constitutional Court in Nel v Le Roux considered the extent to which the
right to a fair trial applies only to accused persons when it engaged the
constitutionality of s 205 of the CPA. In terms of this section a judge or
magistrate, upon receiving a request from a Director of Public Prosecutions (DPP)
or public prosecutor, may request a person who is likely to give material or
relevant information as to any alleged offence, to appear before them for
examination by the DPP or public prosecutor. Such an examination may be
conducted in private. 161 The applicants challenged s 205 of the CPA in terms of
the following provisions of the interim Constitution: s 8(1) (equality); s 11(1)
(freedom and security of person); s 11(2) (cruel, inhuman or degrading
treatment or punishment); s 13 (privacy); s 15(1) (freedom of speech and
expression); s 23 (access to information); s 24 (administrative justice); s 25(3)
(fair trial); s 25(3)(a) (public trial); s 25(3)(c) (the right to be presumed innocent
and to remain silent) and s 25(3)(d) (the privilege against self-incrimination).
The court in Nel found that s 205 of the CPA was not inconsistent with any of
the above provisions. In relation to the privilege against self-incrimination the
court held that "[i]n view of the transactional indemnity and use of immunity
provisions in s 204(2) and (4) respectively of the Criminal Procedure Act, the
applicant could not validly object to answering self-incrimination questions ". 162
As to the general strength of the applicant's Bill of Rights challenge, the court
wrote:
"If the answer to any question put to an examinee at an examination under s 205 of
the Criminal Procedure Act would infringe or threaten to infringe any of the
examinee's Chapter 3 rights, this would constitute a 'just excuse' for purposes of s
189(1) for refusing to answer the question unless the s 189(1) compulsion to
answer the particular question, would in the circumstances, constitute a limitation on
such right which is justified under s 33(1) of the Constitution. In determining
3rd Ed, 2009 ch10-p145

the applicability of s 33(1), regard must be had not only to the right asserted but
also the State's interest in securing information necessary for the prosecution of
crimes … There is nothing in the provisions of s 205 read with s 189 of the Criminal
Procedure Act which compels or requires the examinee to answer a question (or for
that matter to produce a document) which would unjustifiably infringe or threaten to
infringe any of the examinee's Chapter 3 rights." 163
The court held that the s 25(3) right to a fair trial applied only to accused persons
and, as a reluctant s 205 examinee could not be said to be an "accused ", it was
not necessary to consider s 25(3) in determining the constitutionality of s 205. 164
The admission of statements made under statutory compulsion is further
discussed in § 17.4.4.2 below.
10.2.5 The witness in civil proceedings

Section 14 of the CPEA provides:
"A witness may not refuse to answer a question relevant to the issue, the answering
of which has no tendency to incriminate himself, or to expose him to penalty or
forfeiture of any nature whatsoever, by reason only or on the sole ground that the
answering of such question may establish or tend to establish that he owes a debt or
is otherwise subject to a civil suit."
Section 14 must be read together with s 42, which provides:
"The law of evidence including the law relating to the competence, compellability
and examination and cross-examination of witnesses which was in force in respect of
civil proceedings on the thirtieth day of May 1961, shall apply in any case not
provided for by this Act or any other law."
The effect of these two provisions is to give a wider ambit to the privilege against
self-incrimination in civil cases than in criminal cases. In criminal cases the
privilege applies only to answers that would expose the witness to a criminal
charge, whilst in civil cases it also applies where it would expose the witness to
penalties or forfeiture.
Footnote - 6
6 R v Camane1925 AD 570 575.
6 R v Camane1925 AD 570 575.
Footnote - 7
7 See s 14 of the CPEA and ss 203, 217 and 219A of the CPA.
7 See s 14 of the CPEA and ss 203, 217 and 219A of the CPA.
Footnote - 8
8 Section 35(1)(a), (b) & (c) and 35(3)(h) & (j) of the Constitution.
8 Section 35(1)(a), (b) & (c) and 35(3)(h) & (j) of the Constitution.
Footnote - 9
9 S v Thebus 2003 6 SA 505 CC at para 55. See also S v Manamela2000 (3) SA 1 (CC); Osman v
Attorney-General, Transvaal1998 (4) SA 1224 (CC).
9 S v Thebus 2003 6 SA 505 CC at para 55. See also S v Manamela2000 (3) SA 1 (CC);
Osman v Attorney-General, Transvaal1998 (4) SA 1224 (CC).
Footnote - 10
Footnote - 11
11 Tapper Cross and Tapper On Evidence 449. See also Zeffertt, Paizes & Skeen 524; Wigmore
paras 2250-1. It has also been suggested that the privilege originated in Jewish law; see Mazabow
1987 SALJ 710, where this claim is refuted.
11 Tapper Cross and Tapper On Evidence 449. See also Zeffertt, Paizes & Skeen 524;
Wigmore paras 2250-1. It has also been suggested that the privilege originated in Jewish law;
see Mazabow 1987 SALJ 710, where this claim is refuted.
Footnote - 12
12 Wigmore paras 2250-1 describes the history of the rule in the following words "… [a] long story
… woven across a tangled warp composed in part of the inventions of the early canonists, of the
momentous contest between the courts of the common law and of the church, and of the political
and religious issues of the convulsive period in English history, the days of the dictatorial Stuarts."
12 Wigmore paras 2250-1 describes the history of the rule in the following words "… [a] long
story … woven across a tangled warp composed in part of the inventions of the early canonists,
of the momentous contest between the courts of the common law and of the church, and of the
political and religious issues of the convulsive period in English history, the days of the
dictatorial Stuarts."
Footnote - 13
13 Tapper Cross and Tapper On Evidence 450 cites Pyneboard Pty Ltd v Trade Practices
Commission 1983 152 CLR 328 346, where the privilege was referred to as "part of the common law
of human rights".
13 Tapper Cross and Tapper On Evidence 450 cites Pyneboard Pty Ltd v Trade Practices
Commission 1983 152 CLR 328 346, where the privilege was referred to as "part of the
common law of human rights".
Footnote - 14
14 See S v Lwane supra 438.
14 See S v Lwane supra 438.
Footnote - 15
15 The privilege against self-incrimination has been criticised in that it obstructs the course of
justice and militates against the discovery of crimes. See Kurzon 1992 TRW 1; Nugent 1999 SALJ
501; Hiemstra 1990 Stell LR 400. For a response to the criticism of Hiemstra, see Van der Merwe
1991 Stell LR 102.
15 The privilege against self-incrimination has been criticised in that it obstructs the course
of justice and militates against the discovery of crimes. See Kurzon 1992 TRW 1; Nugent 1999
SALJ 501; Hiemstra 1990 Stell LR 400. For a response to the criticism of Hiemstra, see Van der
Merwe 1991 Stell LR 102.
Footnote - 16
16 384 US 436 (1966). For further discussion of this case, see § 10.2.3.1 below as well as §§
12.5.2 to 12.5.2.4 below.
16 384 US 436 (1966). For further discussion of this case, see § 10.2.3.1 below as well as §§
12.5.2 to 12.5.2.4 below.
Footnote - 17
17 The privilege is that of the witness and generally must be claimed by her.
17 The privilege is that of the witness and generally must be claimed by her.
Footnote - 18
Footnote - 19
19 S v Lwane supra. The presence of a legal representative will not necessarily excuse a presiding
officer from this duty. See S v Botha1995 (2) SACR 605 (W).
19 S v Lwane supra. The presence of a legal representative will not necessarily excuse a
presiding officer from this duty. See S v Botha1995 (2) SACR 605 (W).
Footnote - 20
20 Supra. See also § 12.4.3 below for a discussion of S v Lwane supra.
20 Supra. See also § 12.4.3 below for a discussion of S v Lwane supra.
Footnote - 21
21 Cf Magmoed v Janse van Rensburg1993 (1) SA 777 (A).
21 Cf Magmoed v Janse van Rensburg1993 (1) SA 777 (A).
Footnote - 22
22 Magmoed v Janse van Rensburg supra 819. See further Van der Merwe 1991 Stell LR 102 105-
106.
22 Magmoed v Janse van Rensburg supra 819. See further Van der Merwe 1991 Stell LR 102
105-106.
Footnote - 23
23 Magmoed v Janse van Rensburg supra 820. In S v Heyman1966 (4) SA 598 (A) 608 Steyn CJ
stated: "The avoidance of incriminating replies may not be a simple matter by any means. As
observed in Q v Boyes 1861 LJR 301 (referred to in S v Carneson1962 (3) SA 437 (T) at 439) a
question which might at first sight appear a very innocent one, might, by affording a link in a chain
of evidence, become the means of bringing home an offence to the party answering." If a claim of
privilege is wrongly denied, an incriminating reply may not be admitted in subsequent criminal
proceedings. See Magmoed's case supra 821.
23 Magmoed v Janse van Rensburg supra 820. In S v Heyman1966 (4) SA 598 (A) 608 Steyn
CJ stated: "The avoidance of incriminating replies may not be a simple matter by any means.
As observed in Q v Boyes 1861 LJR 301 (referred to in S v Carneson1962 (3) SA 437 (T) at
439) a question which might at first sight appear a very innocent one, might, by affording a
link in a chain of evidence, become the means of bringing home an offence to the party
answering." If a claim of privilege is wrongly denied, an incriminating reply may not be
admitted in subsequent criminal proceedings. See Magmoed's case supra 821.
Footnote - 24
24 Magmoed v Janse van Rensburg supra; S v Ramaligela1983 (2) SA 424 (V).
24 Magmoed v Janse van Rensburg supra; S v Ramaligela1983 (2) SA 424 (V).
Footnote - 25
25 1994 (1) SACR 21 (C).
25 1994 (1) SACR 21 (C).
Footnote - 26
26 See also S v Van Schoor1993 (1) SACR 202 (E). The accused prior to his criminal trial had
made a written statement to the police for the purposes of inquest proceedings. He was not warned
before making the statement. The court found the written statement to be admissible into evidence
and held that, although a witness in judicial proceedings was required to be warned, the
requirement applied only to viva voce evidence before a judicial tribunal. In reaching this conclusion
Melunsky J did not refer to any authority and no mention was made of the Judges' Rules. The
Judges' Rules are contained in Appendix C to this work.
26 See also S v Van Schoor1993 (1) SACR 202 (E). The accused prior to his criminal trial had
made a written statement to the police for the purposes of inquest proceedings. He was not
warned before making the statement. The court found the written statement to be admissible
into evidence and held that, although a witness in judicial proceedings was required to be
warned, the requirement applied only to viva voce evidence before a judicial tribunal. In
reaching this conclusion Melunsky J did not refer to any authority and no mention was made of
the Judges' Rules. The Judges' Rules are contained in Appendix C to this work.
Footnote - 27
27 See s 1(d) of the Constitution.
27 See s 1(d) of the Constitution.
Footnote - 28
28 Magmoed v Janse van Rensburg supra 827.
28 Magmoed v Janse van Rensburg supra 827.
Footnote - 29
29 See Paizes in Du Toit et al Commentary 23-50B, who warns that this procedure should be used
cautiously. See further § 22.10 below.
29 See Paizes in Du Toit et al Commentary 23-50B, who warns that this procedure should be
used cautiously. See further § 22.10 below.
Footnote - 30
30 Section 204(1).
30 Section 204(1).
Footnote - 31
31 Section 204(2). Such discharge (immunity from prosecution) would also cover competent
verdicts in respect of the specified charge. See s 204(2)(a).
31 Section 204(2). Such discharge (immunity from prosecution) would also cover competent
verdicts in respect of the specified charge. See s 204(2)(a).
Footnote - 32
32 Section 204(3).
32 Section 204(3).
Footnote - 33
33 Section 204(4).
33 Section 204(4).
Footnote - 34
34 Section 205(1) is used for the purpose of obtaining statements from witnesses who refuse to
make statements to the police in the course of the latter's investigation of a crime.
34 Section 205(1) is used for the purpose of obtaining statements from witnesses who refuse
to make statements to the police in the course of the latter's investigation of a crime.
Footnote - 35
35 See generally Paizes in Du Toit et al Commentary 23-50B. Section 205 is not unconstitutional:
Nel v Le Roux NO1996 (1) SACR 572 (CC). See also § 10.2.4 below.
35 See generally Paizes in Du Toit et al Commentary 23-50B. Section 205 is not

unconstitutional: Nel v Le Roux NO1996 (1) SACR 572 (CC). See also § 10.2.4 below.
Footnote - 36
36 2002 (1) SACR 266 (T) at [21].
36 2002 (1) SACR 266 (T) at [21].
Footnote - 37
37 For a further discussion of Maunye, see Schwikkard 2002 SACJ 272.
37 For a further discussion of Maunye, see Schwikkard 2002 SACJ 272.
Footnote - 38
38 Zeffertt, Paizes and Skeen 530.
38 Zeffertt, Paizes and Skeen 530.
Footnote - 39
39 Zeffertt, Paizes and Skeen 530; see also Wigmore para 2260; Tapper Cross and Tapper on
Evidence 451-2; S v Heyman supra 608; Van Niekerk, Van der Merwe & Van Wyk Privilegies in die
Bewysreg 143.
39 Zeffertt, Paizes and Skeen 530; see also Wigmore para 2260; Tapper Cross and Tapper
on Evidence 451-2; S v Heyman supra 608; Van Niekerk, Van der Merwe & Van Wyk Privilegies
in die Bewysreg 143.
Footnote - 40
40 S v Sheehama1991 (2) SA 860 (A).
40 S v Sheehama1991 (2) SA 860 (A).
Footnote - 41
41 At the South African Judges Conference held at Cape Town in 1931 the Judges' Rules were
formulated. These rules are virtually identical to the Judges' Rules drawn by the English judges in
1913. The purpose of these rules is to protect an accused from unfair practices by the police. See
further Appendix C to this work.
41 At the South African Judges Conference held at Cape Town in 1931 the Judges' Rules were
formulated. These rules are virtually identical to the Judges' Rules drawn by the English judges
in 1913. The purpose of these rules is to protect an accused from unfair practices by the police.
See further Appendix C to this work.
Footnote - 42
42 Hiemstra 1968 SALJ 187. Cf S v Mpetha (2)1983 (1) SA 576 (C); S v Sampson1989 (3) SA 239
(A); S v Colt1992 (2) SACR 120 (E). In S v Van der Merwe1998 (1) SACR 194 (O) Gihwala AJ held
that as the Judges' Rules gave expression to the rights protected in the Constitution, the failure to
warn the accused of his rights in terms of the Constitution was irrelevant. The correctness of
Gihwala J's views is questionable as there are a number of distinctions that can be made between
the Judges' Rules and s 35 of the Constitution (s 25 of the interim Constitution).
42 Hiemstra 1968 SALJ 187. Cf S v Mpetha (2)1983 (1) SA 576 (C); S v Sampson1989 (3)
SA 239 (A); S v Colt1992 (2) SACR 120 (E). In S v Van der Merwe1998 (1) SACR 194 (O)
Gihwala AJ held that as the Judges' Rules gave expression to the rights protected in the
Constitution, the failure to warn the accused of his rights in terms of the Constitution was
irrelevant. The correctness of Gihwala J's views is questionable as there are a number of
distinctions that can be made between the Judges' Rules and s 35 of the Constitution (s 25 of
the interim Constitution).
Footnote - 43
43 See S v Mabaso1990 (3) SA 185 (A).
43 See S v Mabaso1990 (3) SA 185 (A).
Footnote - 44
44 1926 AD 459. See also R v Holtzhausen1947 (1) SA 567 (A); R v Kuzwayo1949 (3) SA 761 (A).
In S v Mpetha supra 598 Williamson J noted: "Once the person being interviewed is cautioned and
then indicates that he does not want to say anything it is in my opinion improper to direct further
questions to him. If he answers these further questions the irresistible inference is that his earlier
expressed decision to say nothing has been made to crumble by the pressures of the situation in
which he then finds himself." See also § 12.9.5 below and S v Sabisa1993 (2) SACR 525 (TkA). See
chs 16 and 17 below for a discussion of the requirements that have to be met before an admission
or confession may be admitted into evidence.
44 1926 AD 459. See also R v Holtzhausen1947 (1) SA 567 (A); R v Kuzwayo1949 (3) SA 761
(A). In S v Mpetha supra 598 Williamson J noted: "Once the person being interviewed is
cautioned and then indicates that he does not want to say anything it is in my opinion improper
to direct further questions to him. If he answers these further questions the irresistible
inference is that his earlier expressed decision to say nothing has been made to crumble by the
pressures of the situation in which he then finds himself." See also § 12.9.5 below and S v
Sabisa1993 (2) SACR 525 (TkA). See chs 16 and 17 below for a discussion of the requirements
that have to be met before an admission or confession may be admitted into evidence.
Footnote - 45
45 Cf S v Orrie2005 (1) SACR 63 (C), S v Lottering 1999 12 BCLR 1478 (N) and see S v
Seseane2000 (2) SACR 225 (O). See further §§ 12.9.3 to 12.9.4 below.
45 Cf S v Orrie2005 (1) SACR 63 (C), S v Lottering 1999 12 BCLR 1478 (N) and see S v
Seseane2000 (2) SACR 225 (O). See further §§ 12.9.3 to 12.9.4 below.
Footnote - 46
46 384 US 436 (1966). For a further discussion of this case, see §§ 12.5.2 to 12.5.2.4 below.
46 384 US 436 (1966). For a further discussion of this case, see §§ 12.5.2 to 12.5.2.4 below.
Footnote - 47
47 See further Ghent (annotation) 31 ALR 3d 565; Smith "The Threshold Question in Applying
Miranda: What Constitutes Custodial Interrogation?" 1974 25 South Carolina LR 699 735; Harris v
New York 401 US 222 (1971); Rhode Island v Innis 446 US 291 (1980); New York v Quarles 467 US
649 (1984).
47 See further Ghent (annotation) 31 ALR 3d 565; Smith "The Threshold Question in
Applying Miranda: What Constitutes Custodial Interrogation?" 1974 25 South Carolina LR 699
735; Harris v New York 401 US 222 (1971); Rhode Island v Innis 446 US 291 (1980); New
York v Quarles 467 US 649 (1984).
Footnote - 48
48 378 US 478 (1964).
48 378 US 478 (1964).

Footnote - 49
49 See generally S v McKenna1998 (1) SACR 106 (C), in which the court held that the fact that
the appellant was legally qualified did not deprive her of the right to legal representation at her trial.
However, cf the approach adopted in § 12.9.4 below. For a general discussion see Schwikkard in De
Waal & Currie Bill of Rights Handbook 5 ed (2005) 760-3.
49 See generally S v McKenna1998 (1) SACR 106 (C), in which the court held that the fact
that the appellant was legally qualified did not deprive her of the right to legal representation
at her trial. However, cf the approach adopted in § 12.9.4 below. For a general discussion see
Schwikkard in De Waal & Currie Bill of Rights Handbook 5 ed (2005) 760-3.
Footnote - 50
50 Sections s 35(1)(a),(b) & (c), s 35(2)(b) & (c) and s 35(3)(f), (g), (h) & (j). Jones J in S v
Nombewu1996 (2) SACR 396 (E) at 403c held that the overriding objective of the equivalent
provisions in the interim Constitution was "to protect persons against unfairly made self-
incriminating statements".
50 Sections s 35(1)(a),(b) & (c), s 35(2)(b) & (c) and s 35(3)(f), (g), (h) & (j). Jones J in S v
Nombewu1996 (2) SACR 396 (E) at 403c held that the overriding objective of the equivalent
provisions in the interim Constitution was "to protect persons against unfairly made self-
incriminating statements".
Footnote - 51
51 See Schwikkard 1997 SAJHR 446.
51 See Schwikkard 1997 SAJHR 446.
Footnote - 52
52 This includes sentenced prisoners. See Ehrlich v CEO, Legal Aid Board2006 (1) SACR 346 (E);
Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee2002 (5) SA 449 (SCA).
52 This includes sentenced prisoners. See Ehrlich v CEO, Legal Aid Board2006 (1) SACR 346
(E); Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee2002 (5) SA
449 (SCA).
Footnote - 53
53 Section 35(2)(b) & (c). See Schwikkard Constitutional Law of South Africa 52-25 –52-26.
53 Section 35(2)(b) & (c). See Schwikkard Constitutional Law of South Africa 52-25 –52-26.
Footnote - 54
54 Section 35(1)(a) & (b).
54 Section 35(1)(a) & (b).
Footnote - 55
55 LAWSA (1994) para 196. Section 39 of the CPA. Nhlabathi v Adjunk Prokureur-Generaal Tvl1978
(3) SA 620 (W); Minister of Law and Order v Kader1991 (1) SA 41 (A).
55 LAWSA (1994) para 196. Section 39 of the CPA. Nhlabathi v Adjunk Prokureur-Generaal
Tvl1978 (3) SA 620 (W); Minister of Law and Order v Kader1991 (1) SA 41 (A).
Footnote - 56
56 Section 73(2A)(a), inserted in terms of s 2 of the Criminal Procedure Amendment Act 86 of

1996, which came into operation on 28 June 2002.
56 Section 73(2A)(a), inserted in terms of s 2 of the Criminal Procedure Amendment Act 86

of 1996, which came into operation on 28 June 2002.
Footnote - 57
57 This is implicit in the wording of s 39(3) of the CPA which provides: "The effect of an arrest
shall be that the person arrested shall be in lawful custody and that he shall be detained in custody
until he is lawfully discharged or released from custody."
57 This is implicit in the wording of s 39(3) of the CPA which provides: "The effect of an
arrest shall be that the person arrested shall be in lawful custody and that he shall be detained
in custody until he is lawfully discharged or released from custody."
Footnote - 58
58 R v Therens [1985] 1 SCR 613; R v Rahn [1985] 1 SCR 659; R v Trask [1985] 1 SCR 655; R v
Thomsen [1988] 1 SCR 640. Cf, however, the approach of the New Zealand Court of Appeal in R v
Goodwin [1993] 2 NZLR 153.
58 R v Therens [1985] 1 SCR 613; R v Rahn [1985] 1 SCR 659; R v Trask [1985] 1 SCR 655;
R v Thomsen [1988] 1 SCR 640. Cf, however, the approach of the New Zealand Court of
Appeal in R v Goodwin [1993] 2 NZLR 153.
Footnote - 59
59 R v Therens supra 642-645.
59 R v Therens supra 642-645.
Footnote - 60
60 R v Thomsen [1988] 1 SCR 640.
60 R v Thomsen [1988] 1 SCR 640.
Footnote - 61
61 R v Esposito (1985) 53 OR (2d) 356.
61 R v Esposito (1985) 53 OR (2d) 356.
Footnote - 62
62 See ch 17 below.
62 See ch 17 below.
Footnote - 63
63 Section 35(3)(j).
63 Section 35(3)(j).
Footnote - 64
64 See also S v Mpetha (2)1983 (1) SA 576 (C); S v Lwane1966 (2) SA 433 (A); R v
Kuzwayo1949 (3) SA 761 (A); S v Dlamini1973 (1) SA 144 (A); S v Agnew1996 (2) SACR 535 (C);
S v Mathebula1997 (1) SACR 10 (W); S v Sebejan1997 (1) SACR 626 (W). Cf S v Ngwenya1998 (2)
SACR 503 (W) in which Leveson J held that the s 25(3) right to a fair trial did not include pre-trial
procedures. See also S v Khan1997 (2) SACR 611 (SCA) where the court applying the interim
Constitution found that the failure to inform the accused of his right to legal representation before
his confession was recorded by a magistrate was unfair. However, the court held that in the
circumstances the privilege against self-incrimination had not been negated as he had been advised
of the right to remain silent. For further discussion of Khan see Schwikkard 1998 SACJ 139.
64 See also S v Mpetha (2)1983 (1) SA 576 (C); S v Lwane1966 (2) SA 433 (A); R v
Kuzwayo1949 (3) SA 761 (A); S v Dlamini1973 (1) SA 144 (A); S v Agnew1996 (2) SACR 535
(C); S v Mathebula1997 (1) SACR 10 (W); S v Sebejan1997 (1) SACR 626 (W). Cf S v
Ngwenya1998 (2) SACR 503 (W) in which Leveson J held that the s 25(3) right to a fair trial
did not include pre-trial procedures. See also S v Khan1997 (2) SACR 611 (SCA) where the
court applying the interim Constitution found that the failure to inform the accused of his right
to legal representation before his confession was recorded by a magistrate was unfair.
However, the court held that in the circumstances the privilege against self-incrimination had
not been negated as he had been advised of the right to remain silent. For further discussion of
Khan see Schwikkard 1998 SACJ 139.
Footnote - 65
65 1996 (1) SACR 335 (E) 348i-349a.
65 1996 (1) SACR 335 (E) 348i-349a.
Footnote - 66
66 1997 (1) SACR 10 (W) 19f-20a.
66 1997 (1) SACR 10 (W) 19f-20a.
Footnote - 67
67 In S v Marx1996 (2) SACR 140 (W) Cameron J held that where suspects have waived their
right to legal representation police officers are required before taking a formal statement to again
inform them of their right to legal representation or assistance. S v Marx supra was followed in S v
Seseane2000 (2) SACR 225 (O). The importance of affording the accused the opportunity to obtain
legal representation at every important pre-trial stage was reiterated in S v Mathebula supra. See
also S v Gasa1998 (1) SACR 446 (D). Cf S v Shaba1998 (1) SACR 16 (T), in which the court
referring to s 25 of the interim Constitution held that constitutional rights could not be waived and
although it might be desirable for the accused to be warned at each pre-trial procedure, the failure
to do so would not automatically lead to the exclusion of evidence as the question of admissibility
always has to be determined in the light of all the evidence. The crucial inquiry in each is whether
the accused after having been apprised of his rights on arrest was in a position to decide voluntarily
how to exercise his rights. See also S v Shongwe1998 (2) SACR 321 (T); S v Malefo1998 (1) SACR
127 (W); Shabalala v S 1999 4 All SA 583 (N); S v Soci1998 (2) SACR 275 (E); S v Ngcobo 1998 10
BCLR 1248 (N); S v Mfene 1998 9 BCLR 115 (N); S v Gumede 1998 5 BCLR 530 (D); S v Tsotetsi
(1)2003 (2) SACR 623 (W) and S v Nombewu1996 (2) SACR 396 (E). For a further discussion of
Nombewu see Schwikkard 1997 SACJ 223.
67 In S v Marx1996 (2) SACR 140 (W) Cameron J held that where suspects have waived
their right to legal representation police officers are required before taking a formal statement
to again inform them of their right to legal representation or assistance. S v Marx supra was
followed in S v Seseane2000 (2) SACR 225 (O). The importance of affording the accused the
opportunity to obtain legal representation at every important pre-trial stage was reiterated in S
v Mathebula supra. See also S v Gasa1998 (1) SACR 446 (D). Cf S v Shaba1998 (1) SACR 16
(T), in which the court referring to s 25 of the interim Constitution held that constitutional
rights could not be waived and although it might be desirable for the accused to be warned at
each pre-trial procedure, the failure to do so would not automatically lead to the exclusion of
evidence as the question of admissibility always has to be determined in the light of all the
evidence. The crucial inquiry in each is whether the accused after having been apprised of his
rights on arrest was in a position to decide voluntarily how to exercise his rights. See also S v
Shongwe1998 (2) SACR 321 (T); S v Malefo1998 (1) SACR 127 (W); Shabalala v S 1999 4 All
SA 583 (N); S v Soci1998 (2) SACR 275 (E); S v Ngcobo 1998 10 BCLR 1248 (N); S v Mfene
1998 9 BCLR 115 (N); S v Gumede 1998 5 BCLR 530 (D); S v Tsotetsi (1)2003 (2) SACR 623
(W) and S v Nombewu1996 (2) SACR 396 (E). For a further discussion of Nombewu see
Schwikkard 1997 SACJ 223.
Footnote - 68
68 See S v Mcasa2005 (1) SACR 388 (SCA) at para 15.
68 See S v Mcasa2005 (1) SACR 388 (SCA) at para 15.
Footnote - 69
69 1997 (1) SACR 626 (W). See also § 12.9.4 below.
69 1997 (1) SACR 626 (W). See also § 12.9.4 below.
Footnote - 70
70 At 632d the court defined "a suspect" as follows: "one about whom there is some apprehension
that she may be implicated in the offence under investigation and, it may further be, whose version
of events is mistrusted or disbelieved". Cf S v Ndlovu 1997 12 BCLR 1785 (N) in which Magid J,
whilst accepting that suspects were entitled to be appropriately warned in terms of s 25 of the
interim Constitution, expressed the view that Satchwell J's definition of a suspect in Sebejan "set the
standard too low" (at 1792A). Magid J did not provide an alternate definition but held (at 1792B)
"that there must be some offence under investigation before anybody can be a suspect in relation
thereto".
70 At 632d the court defined "a suspect" as follows: "one about whom there is some
apprehension that she may be implicated in the offence under investigation and, it may further
be, whose version of events is mistrusted or disbelieved". Cf S v Ndlovu 1997 12 BCLR 1785
(N) in which Magid J, whilst accepting that suspects were entitled to be appropriately warned in
terms of s 25 of the interim Constitution, expressed the view that Satchwell J's definition of a
suspect in Sebejan "set the standard too low" (at 1792A). Magid J did not provide an alternate
definition but held (at 1792B) "that there must be some offence under investigation before
anybody can be a suspect in relation thereto".
Footnote - 71
71 Such a person would similarly fail to be protected by s 35 of the Constitution.
71 Such a person would similarly fail to be protected by s 35 of the Constitution.
Footnote - 72
72 At 635d.
72 At 635d.
Footnote - 73
73 At 636b. See also S v Van der Merwe1998 (1) SACR 194 (O) and S v Orrie2005 (1) SACR 63
(C) in which the court held that a suspect must be made aware of their status as a suspect. It
should be noted that the court in Sebejan noting that the accused at the time of making the
statement was not a "suspect", held that no warning had been required. Unfortunately the court did
not canvass the broad Canadian definition of detention. The facts of the case illustrate that there
may well be circumstances where a person who is not technically a suspect feels compelled to
answer questions put to her and consequently incriminate herself. In the judgment itself it is noted
that the "non-suspect" thought "she had to give the police a statement" (at 628j)..
73 At 636b. See also S v Van der Merwe1998 (1) SACR 194 (O) and S v Orrie2005 (1) SACR
63 (C) in which the court held that a suspect must be made aware of their status as a suspect.
It should be noted that the court in Sebejan noting that the accused at the time of making the
statement was not a "suspect", held that no warning had been required. Unfortunately the
court did not canvass the broad Canadian definition of detention. The facts of the case illustrate
that there may well be circumstances where a person who is not technically a suspect feels
compelled to answer questions put to her and consequently incriminate herself. In the
judgment itself it is noted that the "non-suspect" thought "she had to give the police a
statement" (at 628j)..
Footnote - 74
74 Section 25 of the interim Constitution contained substantially similar provisions to those found
in s 35 of the 1996 Constitution and similarly made a distinction between arrested, detained and
accused persons.
74 Section 25 of the interim Constitution contained substantially similar provisions to those

found in s 35 of the 1996 Constitution and similarly made a distinction between arrested,
detained and accused persons.
Footnote - 75
75 S v Langa1998 (1) SACR 21 (T). See also S v Mthethwa2004 (1) SACR 449 (E); S v Ndlovu
1997 (12) BCLR 1785 (N).
75 S v Langa1998 (1) SACR 21 (T). See also S v Mthethwa2004 (1) SACR 449 (E); S v
Ndlovu 1997 (12) BCLR 1785 (N).
Footnote - 76
76 S v Mthethwa2004 (1) SACR 449 (E) 453e-f.
76 S v Mthethwa2004 (1) SACR 449 (E) 453e-f.
Footnote - 77
77 Judges Rule 2 provides: ''Questions may be put to a person whom the police have decided to
arrest or who is under suspicion where it is possible that the person by his answers may afford
information which may tend to establish his innocence … In such a case a caution should first be
administered. Questions, the sole purpose of which is that the answers may afford evidence against
the person suspected, should not be put."
77 Judges Rule 2 provides: ''Questions may be put to a person whom the police have decided
to arrest or who is under suspicion where it is possible that the person by his answers may
afford information which may tend to establish his innocence … In such a case a caution should
first be administered. Questions, the sole purpose of which is that the answers may afford
evidence against the person suspected, should not be put."
Footnote - 78
78 At 456b-c. See further §§ 12.7.1 and 12.8.1 above.
78 At 456b-c. See further §§ 12.7.1 and 12.8.1 above.
Footnote - 79
79 The constitutional right to legal representation includes a right to competent representation.

See S v Tandwa2008 (1) SACR 613 (SCA) and S v Halgryn2002 (2) SACR 211 (SCA).
79 The constitutional right to legal representation includes a right to competent

representation. See S v Tandwa2008 (1) SACR 613 (SCA) and S v Halgryn2002 (2) SACR 211
(SCA).
Footnote - 80
80 S v Rudman & another; S v Mthwana1992 (1) SA 343 (A).
80 S v Rudman & another; S v Mthwana1992 (1) SA 343 (A).
Footnote - 81
81 As argued above, detained persons must also include arrested persons.
81 As argued above, detained persons must also include arrested persons.
Footnote - 82
82 Sections 35(2)(c) and 35(3)(g). See generally Steytler Constitutional Criminal Procedure
(1998) 299-315.
82 Sections 35(2)(c) and 35(3)(g). See generally Steytler Constitutional Criminal Procedure
(1998) 299-315.
Footnote - 83
83 But cf approach taken by Visser AJ in S v Tsotetsi (3)2003 (2) SACR 648 (W).
83 But cf approach taken by Visser AJ in S v Tsotetsi (3)2003 (2) SACR 648 (W).
Footnote - 84
84 Cf Mgcina v Regional Magistrate Lenasia1997 (2) SACR 711 (W) in which Borchers J rejected
counsel's argument that substantial injustice would result where any indigent person was tried
without legal representation. The court noted that if the framers of the Constitution intended that to
be the case they could have formulated such a simple rule in the Constitution.
84 Cf Mgcina v Regional Magistrate Lenasia1997 (2) SACR 711 (W) in which Borchers J
rejected counsel's argument that substantial injustice would result where any indigent person
was tried without legal representation. The court noted that if the framers of the Constitution
intended that to be the case they could have formulated such a simple rule in the Constitution.
Footnote - 85
85 Section 36 of the Constitution.
Footnote - 86
86 See § 12.8.5 below.
86 See § 12.8.5 below.
Footnote - 87
87 Section 36(1).
87 Section 36(1).
Footnote - 88
88 Chaskalson et al Constitutional Law of South Africa (1996) 12-20. Cf S v Mathebula supra.
88 Chaskalson et al Constitutional Law of South Africa (1996) 12-20. Cf S v Mathebula supra.
Footnote - 89
89 See Pennington v The Minister of Justice 1995 3 BCLR 270 (C); Msila v Government of the RSA
1996 3 BCLR 362 (C); S v Khanyile1988 (3) SA 795 (N).
89 See Pennington v The Minister of Justice 1995 3 BCLR 270 (C); Msila v Government of the
RSA 1996 3 BCLR 362 (C); S v Khanyile1988 (3) SA 795 (N).
Footnote - 90
90 In S v Moos1998 (1) SACR 372 (C) the court held that substantive injustice would occur if the
charge was one which would attract a sentence of imprisonment and the accused did not have legal
representation.
90 In S v Moos1998 (1) SACR 372 (C) the court held that substantive injustice would occur if
the charge was one which would attract a sentence of imprisonment and the accused did not
have legal representation.
Footnote - 91
91 S v Vermaas; S v Du Plessis1995 (3) SA 292 (CC); S v Ambros2005 (2) SACR 211 (C). In S v
Cornelius2008 (1) SACR 96 (C) paras 10 & 11 the court held that an accused's financial position was
irrelevant in determining whether he had been afforded his constitutional right to legal
representation at state expense, the sole test being whether substantial injustice would occur if the
accused did not have legal representation.
91 S v Vermaas; S v Du Plessis1995 (3) SA 292 (CC); S v Ambros2005 (2) SACR 211 (C). In
S v Cornelius2008 (1) SACR 96 (C) paras 10 & 11 the court held that an accused's financial
position was irrelevant in determining whether he had been afforded his constitutional right to
legal representation at state expense, the sole test being whether substantial injustice would
occur if the accused did not have legal representation.
Footnote - 92
92 Section 37(1)(c). See S v Mbambeli1993 (2) SACR 388 (E), where the court held that evidence
emanating from a medical examination, authorised in terms of s 37, could also be used to refute an
allegation of assault.
92 Section 37(1)(c). See S v Mbambeli1993 (2) SACR 388 (E), where the court held that
evidence emanating from a medical examination, authorised in terms of s 37, could also be
used to refute an allegation of assault.
Footnote - 93
93 Section 37(1)(c) and 37(2)(a).
93 Section 37(1)(c) and 37(2)(a).
Footnote - 94
94 Sections 2 and 3 of the Criminal and Magistrates' Courts Procedure (Amendment) Act 39 of
1926, replaced by ss 289 and 291 of the Criminal Procedure Act 56 of 1955, in turn replaced by s 37
and s 225 of the Criminal Procedure Act 51 of 1977.
94 Sections 2 and 3 of the Criminal and Magistrates' Courts Procedure (Amendment) Act 39
of 1926, replaced by ss 289 and 291 of the Criminal Procedure Act 56 of 1955, in turn replaced
by s 37 and s 225 of the Criminal Procedure Act 51 of 1977.
Footnote - 95
95 1914 35 NLR 87.
95 1914 35 NLR 87.
Footnote - 96
96 1925 TPD 491.
96 1925 TPD 491.
Footnote - 97
97 At 534. See also R v B 1933 OPD 139.
97 At 534. See also R v B 1933 OPD 139.
Footnote - 98
98 1941 AD 75.
98 1941 AD 75.
Footnote - 99
99 At 82-3. See also Nkosi v Barlow1984 (3) SA 148 (T); S v Duna1984 (2) SA 591 (CkS). See
generally Labuschagne 1980 TSAR 58; Wigmore para 2265.
99 At 82-3. See also Nkosi v Barlow1984 (3) SA 148 (T); S v Duna1984 (2) SA 591 (CkS).
See generally Labuschagne 1980 TSAR 58; Wigmore para 2265.
Footnote - 100
100 1991 (2) SA 860 (A).
100 1991 (2) SA 860 (A).
Footnote - 101
101 See further ch 17 below.
101 See further ch 17 below.
Footnote - 102
102 See S v Binta1993 (2) SACR 553 (C).

102 See S v Binta1993 (2) SACR 553 (C).
Footnote - 103
103 S v Huma (2)1995 (2) SACR 411 (W) 419. See also S v Maphumulo1996 (2) SACR 84 (N);
Msomi v Attorney-General of Natal 1996 8 BCLR 1109 (W).
103 S v Huma (2)1995 (2) SACR 411 (W) 419. See also S v Maphumulo1996 (2) SACR 84
(N); Msomi v Attorney-General of Natal 1996 8 BCLR 1109 (W).
Footnote - 104
104 Schmerber v California 384 US 575 (1966)
104 Schmerber v California 384 US 575 (1966)
Footnote - 105
105 However, some of the American states have legislated against the admission of such evidence.
For example, a South Dakota statute permits a person suspected of driving while intoxicated, to
refuse to submit to a blood-alcohol test, but authorises revocation of the driver's licence of a person
who refuses to submit to the test and allows evidence of the refusal to be admitted into evidence. In
South Dakota v Neville 459 US 553 (1983) it was argued that the admission into evidence of such a
refusal infringed the privilege against self-incrimination. The court, in rejecting this argument, held
that a refusal to take such a test after a police officer has lawfully requested it, is not an act coerced
by the officer and is therefore not protected by the privilege against self-incrimination. In Canada, in
terms of the common law a person may refuse to provide a sample of bodily substances; however,
this has been modified by statute and in terms of s 223 of the Criminal Code a person may be
required to take a "breath test". Refusal to take such a test will constitute an offence. However, this
has been held not to violate s 11(c) of the Canadian Charter which confers the right not to be
compelled "to be a witness against oneself", as it is a privilege against testimonial compulsion, not
against compulsion generally. See Stuart Charter Justice in Canadian Criminal Law 3 ed (2001) 334.
The position of the RSA is that refusal of taking a specimen of blood or breath has for road traffic
law purposes been criminalised. See s 65(9) of the National Road Traffic Act 93 of 1996. The
privilege against self-incrimination would be no valid ground for refusing to provide a blood or breath
sample. See further Van der Merwe in Du Toit et al Commentary 3-28A to 3-29.
105 However, some of the American states have legislated against the admission of such
evidence. For example, a South Dakota statute permits a person suspected of driving while
intoxicated, to refuse to submit to a blood-alcohol test, but authorises revocation of the driver's
licence of a person who refuses to submit to the test and allows evidence of the refusal to be
admitted into evidence. In South Dakota v Neville 459 US 553 (1983) it was argued that the
admission into evidence of such a refusal infringed the privilege against self-incrimination. The
court, in rejecting this argument, held that a refusal to take such a test after a police officer
has lawfully requested it, is not an act coerced by the officer and is therefore not protected by
the privilege against self-incrimination. In Canada, in terms of the common law a person may
refuse to provide a sample of bodily substances; however, this has been modified by statute
and in terms of s 223 of the Criminal Code a person may be required to take a "breath test".
Refusal to take such a test will constitute an offence. However, this has been held not to
violate s 11(c) of the Canadian Charter which confers the right not to be compelled "to be a
witness against oneself", as it is a privilege against testimonial compulsion, not against
compulsion generally. See Stuart Charter Justice in Canadian Criminal Law 3 ed (2001) 334.
The position of the RSA is that refusal of taking a specimen of blood or breath has for road
traffic law purposes been criminalised. See s 65(9) of the National Road Traffic Act 93 of 1996.
The privilege against self-incrimination would be no valid ground for refusing to provide a blood
or breath sample. See further Van der Merwe in Du Toit et al Commentary 3-28A to 3-29.
Footnote - 106
106 Levack v Regional Magistrate Wynberg2003 (1) SACR 187 (SCA).
106 Levack v Regional Magistrate Wynberg2003 (1) SACR 187 (SCA).
Footnote - 107
107 S v Orrie2004 (1) SACR 162 (C) at para 20.
107 S v Orrie2004 (1) SACR 162 (C) at para 20.

Footnote - 108
108 Minister of Safety and Security v Gaqa2002 (1) SACR 654 (C).
108 Minister of Safety and Security v Gaqa2002 (1) SACR 654 (C).
Footnote - 109
109 Minister of Safety and Security v Xaba2004 (1) SACR 149 (D).
109 Minister of Safety and Security v Xaba2004 (1) SACR 149 (D).
Footnote - 110
110 See, eg, S v Britz1994 (2) SACR 687 (W), where the court held that the fact that the nurse
taking the blood sample had not taken the appropriate sanitary precautions in drawing the blood
specimen, was irrelevant to admissibility.
110 See, eg, S v Britz1994 (2) SACR 687 (W), where the court held that the fact that the
nurse taking the blood sample had not taken the appropriate sanitary precautions in drawing
the blood specimen, was irrelevant to admissibility.
Footnote - 111
111 Supra.
111 Supra.
Footnote - 112
112 Black J at 921.
112 Black J at 921.
Footnote - 113
113 See S v R2000 (1) SACR 33 (W), in which Willis J held that any blood test was an invasion of
the right to privacy and the right to bodily security and integrity but that s 35(5) permitted the
admission of the evidence. For further discussion of this case see Schwikkard 2000 SACJ 747-8.
113 See S v R2000 (1) SACR 33 (W), in which Willis J held that any blood test was an
invasion of the right to privacy and the right to bodily security and integrity but that s 35(5)
permitted the admission of the evidence. For further discussion of this case see Schwikkard
2000 SACJ 747-8.
Footnote - 114
114 S v Ngwenya1998 (2) SACR 503 (W) 509. See also S v Zwayi1997 (2) SACR 772 (Ck); S v
Monyane2001 (1) SACR 115 (T); S v Thapedi2002 (1) SACR 598 (T). See also S v Hlalikaya1997 (1)
SACR 613 (E), where the court held that there was no right to legal representation at a ''photo
identification" parade. However, the court in S v Thapedi2002 (1) SACR 598 (T) referring to US v
Wade 228 US 214, acknowledged that there may well be circumstances in which the right to a fair
trial would require that the accused be represented at an identity parade. See further § 12.9.8
below.
114 S v Ngwenya1998 (2) SACR 503 (W) 509. See also S v Zwayi1997 (2) SACR 772 (Ck); S
v Monyane2001 (1) SACR 115 (T); S v Thapedi2002 (1) SACR 598 (T). See also S v
Hlalikaya1997 (1) SACR 613 (E), where the court held that there was no right to legal
representation at a ''photo identification" parade. However, the court in S v Thapedi2002 (1)
SACR 598 (T) referring to US v Wade 228 US 214, acknowledged that there may well be
circumstances in which the right to a fair trial would require that the accused be represented at
an identity parade. See further § 12.9.8 below.
Footnote - 115
115 S v Mokoena1998 (2) SACR 642 (W). Cf S v Mphala1998 (1) SACR 654 (W). See further SE
van der Merwe 'Parade-uitkennings, hofuitkennings en die reg op regsverteenwoordiging: enkele
grondwetlike perspektiewe" 1998 (9) Stellenbosch Law Review 129, where he discusses and
compares case law in South Africa, the United States and Canada.
115 S v Mokoena1998 (2) SACR 642 (W). Cf S v Mphala1998 (1) SACR 654 (W). See further
SE van der Merwe 'Parade-uitkennings, hofuitkennings en die reg op regsverteenwoordiging:
enkele grondwetlike perspektiewe" 1998 (9) Stellenbosch Law Review 129, where he discusses
and compares case law in South Africa, the United States and Canada.
Footnote - 116
116 S v Mhlakaza1996 (2) SACR 187 (C). See also S v Mathebula1997 (1) SACR 10 (W).
116 S v Mhlakaza1996 (2) SACR 187 (C). See also S v Mathebula1997 (1) SACR 10 (W).
Footnote - 117
117 S v Botha1995 (2) SACR 605 (W).
117 S v Botha1995 (2) SACR 605 (W).
Footnote - 118
118 1999 (2) SACR 51 (CC).
118 1999 (2) SACR 51 (CC).
Footnote - 119
119 At para 17.
119 At para 17.
Footnote - 120
120 S v Nomzaza1996 (2) SACR 14 (A).
120 S v Nomzaza1996 (2) SACR 14 (A).
Footnote - 121
121 The relevant provisions read as follows: "60(11) Notwithstanding any provision of this Act,
where an accused is charged with an offence referred to - (a) in Schedule 6, the court shall order
that the accused be detained in custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to do so, adduces evidence which
satisfies the court that exceptional circumstances exist which in the interests of justice permit his or
her release; (b) in Schedule 5, but not in Schedule 6, the court shall order that the accused be
detained in custody until he of she is dealt with in accordance with the law, unless the accused,
having been given a reasonable opportunity to do so, adduces evidence which satisfied the court
that the interests of justice permit his or her release … (14) Notwithstanding anything to the
contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to
any information, record or document relating to the offence in question, which is contained in, or
forms part of, a police docket, including any information, record or document which is held by any
police official charged with the investigation in question, unless the prosecutor otherwise directs:
Provided that this subsection shall not be construed as denying an accused access to any
information, record or document to which he or she may be entitled for purposes of his or her trial."
121 The relevant provisions read as follows: "60(11) Notwithstanding any provision of this
Act, where an accused is charged with an offence referred to - (a) in Schedule 6, the court
shall order that the accused be detained in custody until he or she is dealt with in accordance
with the law, unless the accused, having been given a reasonable opportunity to do so,
adduces evidence which satisfies the court that exceptional circumstances exist which in the
interests of justice permit his or her release; (b) in Schedule 5, but not in Schedule 6, the court
shall order that the accused be detained in custody until he of she is dealt with in accordance
with the law, unless the accused, having been given a reasonable opportunity to do so,
adduces evidence which satisfied the court that the interests of justice permit his or her release
… (14) Notwithstanding anything to the contrary contained in any law, no accused shall, for the
purposes of bail proceedings, have access to any information, record or document relating to
the offence in question, which is contained in, or forms part of, a police docket, including any
information, record or document which is held by any police official charged with the
investigation in question, unless the prosecutor otherwise directs: Provided that this subsection
shall not be construed as denying an accused access to any information, record or document to
which he or she may be entitled for purposes of his or her trial."
Footnote - 122
122 1995 (2) SACR 605 (W) at 611j.
122 1995 (2) SACR 605 (W) at 611j.
Footnote - 123
123 At para 94.
123 At para 94.
Footnote - 124
124 See, eg, S v Hoho1999 (2) SACR 159 (C); S v Snyman 1999 8 BCLR 931 (C). In S v
Sejaphale2000 (1) SACR 603 (T), Jordaan J held that the failure to advise an accused at bail
proceedings in terms of s 60(11B)(c) that anything he said, might be used against him at his or her
trial, rendered the record of the proceedings inadmissible at subsequent proceedings
notwithstanding that the accused was legally represented.
124 See, eg, S v Hoho1999 (2) SACR 159 (C); S v Snyman 1999 8 BCLR 931 (C). In S v
Sejaphale2000 (1) SACR 603 (T), Jordaan J held that the failure to advise an accused at bail
proceedings in terms of s 60(11B)(c) that anything he said, might be used against him at his
or her trial, rendered the record of the proceedings inadmissible at subsequent proceedings
notwithstanding that the accused was legally represented.
Footnote - 125
125 2007 (1) SACR 566 (CC)
125 2007 (1) SACR 566 (CC)
Footnote - 126
126 Section 5(8).
126 Section 5(8).
Footnote - 127
127 At para 109.
127 At para 109.
Footnote - 128
128 At para 117.
128 At para 117.
Footnote - 129
129 At paras 119-121. One of the striking themes running through the court's deliberations is the
acceptance that in determining the admissibility of evidence considerations of trial fairness apply
both to the accused and the prosecution (see for example, para 113).
129 At paras 119-121. One of the striking themes running through the court's deliberations is
the acceptance that in determining the admissibility of evidence considerations of trial fairness
apply both to the accused and the prosecution (see for example, para 113).
Footnote - 130
130 See S v Dlamini; S v Dladla; S v Joubert; S v Schietekat1999 (2) SACR 51 (CC) ('Dlamini") at
para 78 (Kriegler J held that the imposition of an onus on an applicant for bail was not
constitutionally objectionable as the question of erroneous conviction did not arise.) Bail is discussed
more fully below at § 32.4.
130 See S v Dlamini; S v Dladla; S v Joubert; S v Schietekat1999 (2) SACR 51 (CC)

('Dlamini") at para 78 (Kriegler J held that the imposition of an onus on an applicant for bail
was not constitutionally objectionable as the question of erroneous conviction did not arise.)
Bail is discussed more fully below at § 32.4.
Footnote - 131
131 Dlamini (supra) at para 11. See also Geuking v President of the Republic of South Africa &
Others2003 (1) SACR 404 (CC) at para 47 (the court held that ''[a] person facing extradition is not
an accused person for the purposes of the protection afforded by s 35(3) of the Constitution".)
131 Dlamini (supra) at para 11. See also Geuking v President of the Republic of South Africa
& Others2003 (1) SACR 404 (CC) at para 47 (the court held that ''[a] person facing extradition
is not an accused person for the purposes of the protection afforded by s 35(3) of the
Constitution".)
Footnote - 132
132 See also Schwikkard Constitutional Law of South Africa 52.16.
132 See also Schwikkard Constitutional Law of South Africa 52.16.
Footnote - 133
133 See S v Moos1998 (1) SACR 372 (C); S v Malatji1998 (2) SACR 622 (W); Mgcina v Regional
Magistrate Lenasia1997 (2) SACR 711 (W).
133 See S v Moos1998 (1) SACR 372 (C); S v Malatji1998 (2) SACR 622 (W); Mgcina v
Regional Magistrate Lenasia1997 (2) SACR 711 (W).
Footnote - 134
134 1998 (1) SACR 343 (C). See also S v Moos1998 (1) SACR 372 (C); S v Malatji1998 (2) SACR
622 (W); Mgcina v Regional Magistrates, Lenasia 1997 2 SACR 711; S v Ramuongiwa 1997 2 BCLR
268 (V).
134 1998 (1) SACR 343 (C). See also S v Moos1998 (1) SACR 372 (C); S v Malatji1998 (2)
SACR 622 (W); Mgcina v Regional Magistrates, Lenasia 1997 2 SACR 711; S v Ramuongiwa
1997 2 BCLR 268 (V).
Footnote - 135
135 Where an accused is unrepresented it is well established that presiding officers have a duty to
ensure that the accused is informed of her rights including the right to legal representation and this
should be done prior to the commencement of the trial. This includes a proper explanation of the
proceedings and concepts such as cross-examination. (See S v Lekhetho2002 (2) SACR 13 (O); S v
Matladi2002 (2) SACR 447 (T); S v Njikaza2002 (2) SACR 481 (C); S v Mathole2002 (2) SACR 484
(T); S v Shiburi2004 (2) SACR 314 (W); S v Ndou2006 (2) SACR 497 (T); S v Sikhipha2006 (2)
SACR 439 (SCA); S v Radebe, S v Mbonani1988 (1) SA 191 (T); S v Van Heerden2002 (1) SACR
409 (T); S v Thusi 2002 12 BCLR 1274 (N). This duty is equally applicable in bail proceedings. See S
v Nzima2001 (2) SACR 354 (C).) Depending on the seriousness and complexity of the charge, or of
the applicable legal rules, an accused should not only be told of his right to legal representation; he
should also be encouraged to exercise it. (See S v Radebe, S v Mbonani supra; S v Manale2000 (2)
SACR 666 (NC); S v Nkondo2000 (1) SACR 358 (W); S v Makhandela2007 (2) SACR 620 (W); S v
Ndlovu2001 (1) SACR 204 (W); S v Mbambo1999 (2) SACR 421 (W); S v Dyani2004 (2) SACR 365
(E), S v Tshidiso2002 (1) SACR 207 (W); S v Thobakgale2007 (1) SACR 395 (T).) A presiding officer
must also ensure that the accused is aware of and understands his right to legal representation at
state expense (see S v Visser2001 (1) SACR 401 (C), S v Monyane2001 (1) SACR 115 (T)) and that
his choice not to be represented is an informed one (see S v Solomons2004 (1) SACR 137 (C)). If an
accused who initially declines legal representation subsequently changes his mind he must be given
the opportunity to obtain legal representation (see S v Pitso2002 (2) SACR 586 (O), S v
Balatseng2005 (2) SACR 28 (B)).
135 Where an accused is unrepresented it is well established that presiding officers have a
duty to ensure that the accused is informed of her rights including the right to legal
representation and this should be done prior to the commencement of the trial. This includes a
proper explanation of the proceedings and concepts such as cross-examination. (See S v
Lekhetho2002 (2) SACR 13 (O); S v Matladi2002 (2) SACR 447 (T); S v Njikaza2002 (2) SACR
481 (C); S v Mathole2002 (2) SACR 484 (T); S v Shiburi2004 (2) SACR 314 (W); S v
Ndou2006 (2) SACR 497 (T); S v Sikhipha2006 (2) SACR 439 (SCA); S v Radebe, S v
Mbonani1988 (1) SA 191 (T); S v Van Heerden2002 (1) SACR 409 (T); S v Thusi 2002 12
BCLR 1274 (N). This duty is equally applicable in bail proceedings. See S v Nzima2001 (2)
SACR 354 (C).) Depending on the seriousness and complexity of the charge, or of the
applicable legal rules, an accused should not only be told of his right to legal representation; he
should also be encouraged to exercise it. (See S v Radebe, S v Mbonani supra; S v Manale2000
(2) SACR 666 (NC); S v Nkondo2000 (1) SACR 358 (W); S v Makhandela2007 (2) SACR 620
(W); S v Ndlovu2001 (1) SACR 204 (W); S v Mbambo1999 (2) SACR 421 (W); S v Dyani2004
(2) SACR 365 (E), S v Tshidiso2002 (1) SACR 207 (W); S v Thobakgale2007 (1) SACR 395
(T).) A presiding officer must also ensure that the accused is aware of and understands his
right to legal representation at state expense (see S v Visser2001 (1) SACR 401 (C), S v
Monyane2001 (1) SACR 115 (T)) and that his choice not to be represented is an informed one
(see S v Solomons2004 (1) SACR 137 (C)). If an accused who initially declines legal
representation subsequently changes his mind he must be given the opportunity to obtain legal
representation (see S v Pitso2002 (2) SACR 586 (O), S v Balatseng2005 (2) SACR 28 (B)).
Footnote - 136
136 The court held that the evidence could nevertheless be admitted for the purposes of assisting
a co-accused in his cross-examination, but not to prove the truth of the contents thereof.
136 The court held that the evidence could nevertheless be admitted for the purposes of
assisting a co-accused in his cross-examination, but not to prove the truth of the contents
thereof.
Footnote - 137
137 S v Mbambo1999 (2) SACR 421 (W). At common law presiding officers are required to advise
unrepresented accused of the right to remain silent and the substantive right to legal representation.
In Hlantlalala v Dyanti NO1999 (2) SACR 541 (SCA), the court chose to decide the matter on the
basis of the common law, and held that the failure to advise the accused of their right to legal
representation and their entitlement to legal representation may in certain circumstances constitute
an irregularity resulting in a failure of justice.
137 S v Mbambo1999 (2) SACR 421 (W). At common law presiding officers are required to
advise unrepresented accused of the right to remain silent and the substantive right to legal
representation. In Hlantlalala v Dyanti NO1999 (2) SACR 541 (SCA), the court chose to decide
the matter on the basis of the common law, and held that the failure to advise the accused of
their right to legal representation and their entitlement to legal representation may in certain
circumstances constitute an irregularity resulting in a failure of justice.
Footnote - 138
138 S v Lavhengwa1996 (2) SACR 453 (W). Cf S v Solomons supra.
138 S v Lavhengwa1996 (2) SACR 453 (W). Cf S v Solomons supra.
Footnote - 139
139 S v Williams2008 (1) SACR 65 (C) at para 6.
139 S v Williams2008 (1) SACR 65 (C) at para 6.
Footnote - 140
140 2000 (1) SACR 458 (SCA).
140 2000 (1) SACR 458 (SCA).
Footnote - 141
141 Lukoto J in S v Nelushi2006 (1) SACR 462 (V) in considering the judgment of the court a quo
on automatic review, held that the failure to ask the accused whether his plea of guilty in terms of s
112 of the Criminal Procedure Act had been made freely, voluntarily and without undue influence
constituted an irregularity but that in the circumstances it did not warrant the setting aside of the
proceedings. See also S v Seabi2003 (1) SACR 620 (T). S v Damons1997 (2) SACR 218 (W). Cf S v
Maseko1996 (2) SACR 91 (W). See also Steytler Constitutional Criminal Procedure (1998) 341;
Schwikkard 1996 SACJ 389 and 1998 SACJ 141.
141 Lukoto J in S v Nelushi2006 (1) SACR 462 (V) in considering the judgment of the court a
quo on automatic review, held that the failure to ask the accused whether his plea of guilty in
terms of s 112 of the Criminal Procedure Act had been made freely, voluntarily and without
undue influence constituted an irregularity but that in the circumstances it did not warrant the
setting aside of the proceedings. See also S v Seabi2003 (1) SACR 620 (T). S v Damons1997
(2) SACR 218 (W). Cf S v Maseko1996 (2) SACR 91 (W). See also Steytler Constitutional
Criminal Procedure (1998) 341; Schwikkard 1996 SACJ 389 and 1998 SACJ 141.
Footnote - 142
142 2005 (1) SACR 505 SCA at para 43
142 2005 (1) SACR 505 SCA at para 43
Footnote - 143
143 In this case the court was specifically referring to proceedings in terms of s 119 and s 121(1)
of the Criminal Procedure Act 51 of 1977.
143 In this case the court was specifically referring to proceedings in terms of s 119 and s
121(1) of the Criminal Procedure Act 51 of 1977.
Footnote - 144
144 S v Evans1981 (4) SA 52 (C); S v Daniels1983 (3) SA 275 (A); S v Mabaso1990 (3) SA 185
(A); S v Hill 1981 2 PH H152 (C).
144 S v Evans1981 (4) SA 52 (C); S v Daniels1983 (3) SA 275 (A); S v Mabaso1990 (3) SA
185 (A); S v Hill 1981 2 PH H152 (C).
Footnote - 145
145 See generally Steytler The Undefended Accused (1988) 128.
145 See generally Steytler The Undefended Accused (1988) 128.
Footnote - 146
146 The South African Law Commission in its Report Simplification of Criminal Procedure (A more
inquisitorial approach to criminal procedure-police questioning, defence disclosure the role of judicial
officers and judicial management of trials) Project 73, August 2002, has recommended that s 115 of
the CPA be amended to make advisement of the accused as to the right to remain silent
peremptory. It also recommends removing the court's discretion whether to ask the accused
whether she wishes to disclose the basis of her defence, making such questioning compulsory.
146 The South African Law Commission in its Report Simplification of Criminal Procedure (A
more inquisitorial approach to criminal procedure-police questioning, defence disclosure the
role of judicial officers and judicial management of trials) Project 73, August 2002, has
recommended that s 115 of the CPA be amended to make advisement of the accused as to the
right to remain silent peremptory. It also recommends removing the court's discretion whether
to ask the accused whether she wishes to disclose the basis of her defence, making such
questioning compulsory.
Footnote - 147
147 See Van der Merwe 1994 Obiter 22. See also generally Grant & Jagwanth 1993 SACJ 329.
147 See Van der Merwe 1994 Obiter 22. See also generally Grant & Jagwanth 1993 SACJ
329.
Footnote - 148
148 The definition of a special offence is to be found in s 18(1), which provides: "If the attorney-
general is of the opinion that an offence with which any person is charged or is to be charged, is an
offence in which murder, robbery with aggravating circumstances, violence or intimidation is
involved, that attorney-general may, irrespective of what the actual charge is, at any time before
such person pleads to the charge issue a certificate to the effect that such an offence is a special
offence."
148 The definition of a special offence is to be found in s 18(1), which provides: "If the
attorney-general is of the opinion that an offence with which any person is charged or is to be
charged, is an offence in which murder, robbery with aggravating circumstances, violence or
intimidation is involved, that attorney-general may, irrespective of what the actual charge is, at
any time before such person pleads to the charge issue a certificate to the effect that such an
offence is a special offence."
Footnote - 149
149 In terms of s 24(1) of Act 126 of 1992, the President may extend ch V of the Act with the
concurrence of Parliament, for a period of one year at a time.
149 In terms of s 24(1) of Act 126 of 1992, the President may extend ch V of the Act with
the concurrence of Parliament, for a period of one year at a time.
Footnote - 150
150 See also Schwikkard in Chaskelson et al Constitutional Law of South Africa 52-22.
150 See also Schwikkard in Chaskelson et al Constitutional Law of South Africa 52-22.
Footnote - 151
151 For example, s 65 of the Insolvency Act 24 of 1936; ss 415 and 417 of the Companies Act 61
of 1973; s 66(1) of the Close Corporations Act 69 of 1984, ss 3, 4, 6, 8 and 9 of the Inspection of
Financial Institutions Act 38 of 1984; ss 7, 9 and 17 of the Maintenance and Promotion of
Competition Act 96 of 1979; ss 5, 7 and 14 of the Consumer Affairs (Unfair Business Practices) Act
71 of 1988; s 6 of the Banks Act 94 of 1990; s 51 of the National Ports Act 12 of 2005.
151 For example, s 65 of the Insolvency Act 24 of 1936; ss 415 and 417 of the Companies
Act 61 of 1973; s 66(1) of the Close Corporations Act 69 of 1984, ss 3, 4, 6, 8 and 9 of the
Inspection of Financial Institutions Act 38 of 1984; ss 7, 9 and 17 of the Maintenance and
Promotion of Competition Act 96 of 1979; ss 5, 7 and 14 of the Consumer Affairs (Unfair
Business Practices) Act 71 of 1988; s 6 of the Banks Act 94 of 1990; s 51 of the National Ports
Act 12 of 2005.
Footnote - 152
152 Park-Ross v Director, OSEO1995 (1) SACR 530 (C); Nel v Le Roux NO1996 (1) SACR 572 (CC);
Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC).
152 Park-Ross v Director, OSEO1995 (1) SACR 530 (C); Nel v Le Roux NO1996 (1) SACR 572
(CC); Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC).
Footnote - 153
153 Mitchell and Another v Hodes and Others NNO2003 (1) SACR 524 (C). See also Equisec (Pty)
Ltd v Rodrigues and Another1999 (3) SA 113 (W).
153 Mitchell and Another v Hodes and Others NNO2003 (1) SACR 524 (C). See also Equisec
(Pty) Ltd v Rodrigues and Another1999 (3) SA 113 (W).
Footnote - 154
154 In Shaik v Minister of Justice & Constitutional Development2004 (1) SACR 105 (CC) at para 19
the Constitutional Court held that the reference to ''any person" in s 28(b) of the National
Prosecuting Authority Act 32 of 1998, which permits the Investigating Director to summons any
person who is believed to be able to furnish any information in respect of the commission of a
specified offence, did not include an accused who is being tried on charges covered by the s 28
summons. Cf Thatcher v Minister of Justice and Constitutional Development2005 (4) SA 543 (C).
154 In Shaik v Minister of Justice & Constitutional Development2004 (1) SACR 105 (CC) at
para 19 the Constitutional Court held that the reference to ''any person" in s 28(b) of the
National Prosecuting Authority Act 32 of 1998, which permits the Investigating Director to
summons any person who is believed to be able to furnish any information in respect of the
commission of a specified offence, did not include an accused who is being tried on charges
covered by the s 28 summons. Cf Thatcher v Minister of Justice and Constitutional
Development2005 (4) SA 543 (C).
Footnote - 155
155 See Mohamed NO and Others v National Director of Public Prosecutions and Another2003 (1)
SACR 286 (W). For a fuller discussion of investigative inquiries see Zeffertt, Paizes & Skeen 527 and
Schwikkard Presumption of Innocence (1999) 65-75.
155 See Mohamed NO and Others v National Director of Public Prosecutions and Another2003
(1) SACR 286 (W). For a fuller discussion of investigative inquiries see Zeffertt, Paizes & Skeen
527 and Schwikkard Presumption of Innocence (1999) 65-75.
Footnote - 156
156 See Key v Attorney-General, Cape Provincial Division1996 (2) SACR 113 (CC) ; Bernstein v
Bester1996 (2) SA 751 (CC); Ferreira v Levin (supra); National Director of Public Prosecution v
Mohamed2003 (2) SACR 258 (C). See, eg, the following sections in the Companies Act 61 of 1973: s
415(5) (as read with s 415(3)) and s 417(2)(c) (as read with s 417(2)(b)). Section 417(2)(c)
provides, eg, that any incriminating answer or information directly obtained, or incriminating
evidence directly derived from, an examination in terms of this section shall not be admissible as
evidence in criminal proceedings in a court of law against the person concerned or the body
corporate of which he or she is or was an officer, except in criminal proceedings where the person
concerned is charged with an offence relating to (i) the administering or taking of an oath or the
administering or making of an affirmation; (ii) the giving of false evidence; (iii) the making of a false
statement; or (iv) a failure to answer lawful questions fully and satisfactorily.
156 See Key v Attorney-General, Cape Provincial Division1996 (2) SACR 113 (CC) ; Bernstein
v Bester1996 (2) SA 751 (CC); Ferreira v Levin (supra); National Director of Public Prosecution
v Mohamed2003 (2) SACR 258 (C). See, eg, the following sections in the Companies Act 61 of
1973: s 415(5) (as read with s 415(3)) and s 417(2)(c) (as read with s 417(2)(b)). Section
417(2)(c) provides, eg, that any incriminating answer or information directly obtained, or
incriminating evidence directly derived from, an examination in terms of this section shall not
be admissible as evidence in criminal proceedings in a court of law against the person
concerned or the body corporate of which he or she is or was an officer, except in criminal
proceedings where the person concerned is charged with an offence relating to (i) the
administering or taking of an oath or the administering or making of an affirmation; (ii) the
giving of false evidence; (iii) the making of a false statement; or (iv) a failure to answer lawful
questions fully and satisfactorily.
Footnote - 157
157 Nel v Le Roux NO1996 (3) SA 562 (CC) at para 11. See also Bernstein (supra); Geuking v
President of the Republic of South Africa & Others2003 (3) SA 34 (CC).
157 Nel v Le Roux NO1996 (3) SA 562 (CC) at para 11. See also Bernstein (supra); Geuking v
President of the Republic of South Africa & Others2003 (3) SA 34 (CC).
Footnote - 158
158 See, generally, Bishop & Woolman ''Freedom and Security of the Person" Constitutional Law of
South Africa Chapter 40. See also Coetzee v Government of the Republic of South Africa1995 (4) SA
631 (CC) at para 43.
158 See, generally, Bishop & Woolman ''Freedom and Security of the Person" Constitutional
Law of South Africa Chapter 40. See also Coetzee v Government of the Republic of South
Africa1995 (4) SA 631 (CC) at para 43.
Footnote - 159
159 Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2003 8 BCLR
891 (T).
159 Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2003 8
BCLR 891 (T).
Footnote - 160
160 Nel (supra).
160 Nel (supra).
Footnote - 161
161 Sections 162-165, 179-181, 187-189, 191 and 204 are applicable to proceedings held in
terms of s 205. Section 205(4) provides that a person who refuses or fails to give information shall
not be sentenced to imprisonment as contemplated in s 189 unless the presiding officer is of the
opinion that the furnishing of such information is necessary for the administration of justice or the
maintenance of law and order.
161 Sections 162-165, 179-181, 187-189, 191 and 204 are applicable to proceedings held in
terms of s 205. Section 205(4) provides that a person who refuses or fails to give information
shall not be sentenced to imprisonment as contemplated in s 189 unless the presiding officer is
of the opinion that the furnishing of such information is necessary for the administration of
justice or the maintenance of law and order.
Footnote - 162
162 Nel supra at para 4.
162 Nel supra at para 4.
Footnote - 163
163 Ibid at para 20
163 Ibid at para 20
Footnote - 164
164 Ibid at para 11. See also S v Mahlangu2000 (1) SACR 565 (W).
164 Ibid at para 11. See also S v Mahlangu2000 (1) SACR 565 (W).
Document 85 of 330
10.3 Legal Professional Privilege

In civil and criminal proceedings communications made between a lawyer and her
client may not be disclosed without the client's consent. 165 Heydon sets out the
rationale for the rule as follows:
"The privilege is usually said to exist for the following reasons. Human affairs and
the legal rules governing them are complex. Men are unequal in wealth, power,
intelligence and capacity to handle their problems. To remove this inequality and to
permit disputes to be resolved in accordance with the strength of the parties' cases,
lawyers are necessary, and privilege is required to encourage resort to them, and to
ensure that all the relevant facts will be put before them, not merely those the client
thinks favour him. If lawyers are only told some of the facts, clients will be advised
that their cases are better than they actually are, and will litigate instead of
compromising and settling.
3rd Ed, 2009 ch10-p146

Lawyer-client relations would be full of 'reserve and dissimulation, uneasiness, and
suspicion and fear' without the privilege; the confidant might at any time have to
betray confidences." 166
In S v Safatsa Botha JA expressed his agreement with the views of Dawson J in
Baker v Campbell: 168
"The conflict between the principle that all relevant evidence should be disclosed and
the principle that communications between lawyer and clients should be confidential
has been resolved in favour of the confidentiality of those communications. It has
been determined that in this way the public interest is better served because the
operation of the adversary system, upon which we depend for the attainment of
justice in our society, would otherwise be impaired … The privilege extends beyond
communications made for the purpose of litigation to all communications made for
the purpose of giving or receiving advice and this extension of the principle makes it
inappropriate to regard the doctrine as a mere rule of evidence. It is a doctrine
which is based upon the view that confidentiality is necessary for the proper
functioning of the legal system and not merely the proper conduct of particular
litigation …"
In Safatsa the Appellate Division for the first time recognised that legal
professional privilege is a fundamental right derived from the requirements of
procedural justice, and not merely an evidentiary rule. 169 However, a breach of
the privilege will not automatically render a trial unfair. The applicants in Bennett
v Minister of Safety and Security sought the return of documents seized in a
number of extensive search and seizure operations conducted by the police. The
documents included some 18 000 documents falling under the umbrella of
attorney-client privilege. The full remedy sought by the applicants was: the
setting aside of the search warrants, the return of all documents and any copies
that may have been made (including extracts) as well as an order prohibiting the
use of any of the documentation seized in future proceedings.
Bertelsmann J reiterating that attorney-client privilege is a substantive rule of
law which demands compliance in order to fulfil the requirements of a fair trial
found, that in the circumstances legal professional privilege had been breached.
171 At the time of seizing the documents the police were aware that the
documents were privileged, the warrants did not authorise the seizure of
privileged documents and in any event a warrant expressly authorising the
seizure of privileged documents
3rd Ed, 2009 ch10-p147
"would indubitably be unlawful" 172. However, the court, taking into account that
there was "no evidence that the privileged papers were ever read by any police
officer or State official" 173 found that it could not come to the conclusion that at
this stage the fairness of the trial had been irrevocably comprised. It was ordered
that all documents should be returned to the applicants, that the respondents be
allowed to make copies of the non-privileged documents and that the
admissibility of these copies was to be determined by the trial court.
In an obiter dictum, Bertelsmann J noted that a stay of proceedings would only
be appropriate where the breach of legal professional privilege was intentional or
"the authorities ignored the protection the privilege affords a suspect". 174
10.3.2 The requirements for the existence of the privilege

Before legal professional privilege can be claimed the communication in question
must have been made to a legal adviser acting in a professional capacity, in
confidence, for the purpose of pending litigation or for the purpose of obtaining
professional advice. The client must claim the privilege. And the lawyer can claim
the privilege on behalf of his client once the latter has made an informed
decision.
10.3.2.1 Acting in a professional capacity

Whether an adviser is acting in her professional capacity will be a question of fact
in each case. Although a strong inference can be drawn that this requirement has
been fulfilled where a fee has been paid, the absence of such payment does not
necessarily mean that an adviser was not acting in her professional capacity. 175
Swart J, in Van der Heever v Die Meester, 176 held that a legal adviser must also
be considered as acting in a professional capacity for the purposes of legal
professional privilege. The court approved the approach taken by the English
courts in Alfred Compton Amusement Machines Ltd v Customs and Excise
Commissioners (No 2) in which Lord Denning held that no distinction could be
drawn between the salaried legal adviser and an attorney or advocate in private
practice for the purposes of legal professional privilege. The rationale for adopting
such an approach was set out in Mohamed v President of the Republic of South
Africa by Hoffman AJ as follows:
"To limit the scope of legal professional privilege to clients and lawyers in private
practice is not justified in law. This would considerably dislocate the established
practice and would force governments, statutory bodies and even private
corporations with in-house legal advisers to reorganise — at great expense — their
modus operandi so that all advice required is received from independent legal
advisers rather than engaging salaried staff to give legal advice. There is no warrant
for doing this, provided that 'in-house' legal advisers remain mindful of Lord
Denning's exhortation to be scrupulously aware of the distinction between
communications made in their capacity as legal adviser and other communications
which would not be of a privileged nature."
3rd Ed, 2009 ch10-p148
The court in Mohamed concluded that in the circumstances, legal professional

privilege attached to confidential communications between the Government and
its salaried legal advisers when they could be equated to an independent
adviser's confidential advice. 179
10.3.2.2 The communication must be made in confidence

Whether a communication was made in confidence will always be a question of
fact. 180 Confidentiality will usually be inferred where it is proved that a legal
adviser was consulted in a professional capacity for the purpose of obtaining legal
advice. 181 The inference of confidentiality will always be rebuttable, for example,
where it is clear from the nature of the communication that it was intended to be
communicated to the other party. In Giovagnoli v Di Meo the court held that an
instruction to an attorney to negotiate and effect a settlement was not privileged
as it was clearly not confidential in that it was intended to be communicated to
the other party.
10.3.2.3 For the purpose of obtaining legal advice

If a communication is made in confidence, but not for the purpose of obtaining
legal advice, it will not be privileged. Whether a particular communication is
privileged will always be a question of fact. 183 For example, in S v Kearney the
director of a company was charged with numerous counts of theft. The
admissibility of a statement that he had made to an attorney acting on behalf of
somebody else in a separate matter was disputed. The court found that this
statement was a witness statement and had not been made for the purpose of
seeking legal advice. As the client on whose behalf the attorney was acting had
waived attorney-client privilege, the privilege could not be claimed by the
accused.
Communications made between a legal adviser and her client, provided they
are made for the purpose of obtaining legal advice, need not be connected to
actual or pending litigation for privilege to attach to them. However, before
statements taken from agents or independent third parties will be treated as
privileged, they must have been made in connection with contemplated litigation.
185
Legal professional privilege will not be upheld if legal advice is sought so as to

further a criminal purpose. 186
3rd Ed, 2009 ch10-p149
10.3.2.4 The client must claim the privilege

The privilege attaches to the client and it must be claimed by the client. 187 The
court will not uphold the privilege in the absence of a claim of privilege. A legal
representative is obliged to claim privilege on behalf of her client. 188 If the client
waives the privilege the legal representative will be bound by the waiver. 189
10.3.3 The scope of the rule

Where a client gives evidence in respect of facts that have not been put to the
opposing witnesses she may be asked whether she told her legal advisers about
those facts, but she may not be asked what she told them. 190
In S v Mushimba the court held that legal professional privilege extended to
interpreters, articled clerks, secretaries and other employees in a law firm. Where
communications are made between the adviser/client and a third party privilege
can only be claimed if: (i) the communication was made for the purpose of being
submitted to a legal adviser and (ii) the communication was made after litigation
was contemplated. 192 In General Accident, Fire and Life Assurance Corporation
Ltd v Goldberg an insured made a claim upon a policy of fire insurance and an
assessor was appointed by the insurance company to investigate and advise
whether the claimant should be paid out. The company, in claiming privilege in
respect of the assessor's report, alleged that it was required for the purpose of
submitting it "if necessary" to the company's attorneys. The court refused to
uphold the privilege on the basis that neither of the above-mentioned
requirements had been fulfilled. Mason J stated the following with reference to
the requirement that litigation must be contemplated: 194
"With reference to the first point, whether the report was made in contemplation of
litigation, I do not think that the circumstances in this case, as alleged by the
affidavit on behalf of the company, show that litigation was contemplated. It is not a
question whether a man is very nervous or suspicious that there may be litigation,
and that if he is so nervous and suspicious he is to be protected in respect of a
document, whereas if he is not nervous and suspicious he is not to be protected.
There must be really some contemplated litigation, some fact to indicate that
litigation is likely or probable. It must not be a mere possibility which there is
nothing to lead one to believe would be converted into reality according to the facts
of the case."
A distinction is made between statements from agents and from independent
third parties in that an agent can be prevented from disclosing the contents of a
statement whilst an independent third party wishing to disclose what he said
cannot be prevented from doing so. 195 Where another person gains knowledge of
3rd Ed, 2009 ch10-p150
a privileged communication, or possession of a privileged document, its disclosure

cannot be prevented. However, if such knowledge or possession came about as a
result of some unlawful act, it is possible that a court may refuse admission of
such evidence on the basis of its discretion to exclude unfairly obtained evidence.
In the past some South African courts have held that legal professional
privilege does not prevent documents falling under this privilege from being
seized by the police under a valid search warrant. 196 However, the correctness of
these past decisions has fallen to be contested in view of the Appellate Division's
recognition in S v Safatsa that legal professional privilege is a fundamental right
that is essential for the proper functioning of the legal system. In Bogoshi v Van
Vuuren NO; Bogoshi v Director, OSEO the Appellate Division, accepting that legal
professional privilege is a fundamental right, held that ordinarily the privilege can
be claimed to prevent seizure by warrant of a privileged document. 199
The court has an inherent power to examine any document in respect of which
privilege is claimed. 200 However in South African Rugby Football Union v
President of the Republic of South Africa the court held that a court should not
inspect privileged documents as a matter of course, as such an inspection is only
called for in special circumstances, for example, "where it is necessary and
desirable for a just decision or where there is some reason to cast doubt on the
claim of privilege". 202 It is also possible for a court "to excise from an otherwise
privilege document portions which are not covered by privilege." 203
Whether the breach of an accused's legal professional privilege constitutes an
unjustifiable infringement of the constitutional right to a fair trial will depend on
the nature of the breach and the circumstances in which it occurred. 204 Section
32(1) of the Constitution provides:
"Everyone has the right of access to —
(a) any information held by the state; and
(b) any information that is held by another person that is required for the
exercise or protection of any rights."
In Jeeva v Receiver of Revenue, Port Elizabeth an application was brought in
terms of a similar provision in the interim Constitution 206 for an order that the
receiver of revenue give the applicant access to certain information in its
possession. The court
3rd Ed, 2009 ch10-p151
ordered that all the requested information be disclosed except that information
which was covered by legal professional privilege. The court held that legal
professional privilege was a reasonable and justifiable limitation 207 on the
applicant's constitutional right of access to information. 208 However, it appears
that a claim of privilege in respect of a legal adviser and a public authority may in
certain circumstances be trumped by the constitutional right to access to
information. 209
In S v Safatsa the court considered the following scenario: counsel for the
accused wished to cross-examine a state witness on an earlier statement made
by that state witness to an attorney in the course of obtaining professional legal
advice. It was common cause that the statement was covered by legal
professional privilege. The state witness in question refused to waive the
privilege. The accused argued that such cross-examination would assist their
defence. Botha JA, held that if it were possible for the court to relax the rule of
privilege, the following information, as a minimum requirement, would have to be
put before the court:
"information as to how the statement came to be in the possession of the legal
representatives of the accused; whether the legal advice sought related to the trial
itself, and if so, in what way; what the contents of the statement were (the
statement could be handed up to the trial Judge for his perusal); and, perhaps most
importantly, in what manner and with what prospects of success the cross-
examination could avail the accused in countering the charges against them." 211
10.3.4 Waiver
Legal professional privilege may be waived by a client. This may be done
expressly, 212 impliedly or imputedly. For example, waiver may be implied when a
client discloses privileged information. In Ex parte Minister van Justisie: In re S v
Wagner Rumpff CJ held that an implied waiver involves "an element of publication
of the document or part of it which can serve as a ground for the inference that
the litigant or prosecutor no longer wishes to keep the contents of the document
a secret".
In S v Tandwa the Supreme Court of Appeal drew a distinction between
implied and imputed waiver in the context of an allegation of poor legal
representation. The issue that arose was whether admitting an affidavit by the
impugned accused constituted a breach of professional legal privilege. The court
held 215:
"Implied waiver occurs … when the holder of the privilege with the full knowledge of
it so behaves that it can objectively be concluded that the privilege was intentionally
abandoned. Imputed waiver occurs where — regardless of the holder's intention —
fairness requires that the court conclude that the privilege was abandoned. Implied
waiver entails an objective inference that the
3rd Ed, 2009 ch10-p152

privilege was actually abandoned; imputed waiver proceeds from fairness,
regardless of actual abandonment." 216
Adopting the approach of Wigmore 217 the court held that waiver must be
imputed where a client alleges incompetence on the part of his or her legal
representative. 218
10.3.5 Refreshing memory in the witness-box

In both civil and criminal trials the privilege attaching to a witness's statements is
treated as separate from legal professional privilege (see § 24.5.6 below). The
rationale is that the distinction is necessary to protect the person who is
unrepresented. However, as these two privileges overlap and are in many aspects
very similar, they are for reasons of convenience dealt with under legal
professional privilege.
The privilege pertaining to a witness's statement falls away when a witness
uses this statement to refresh her memory in the witness box (see § 24.5.6
below). The privilege is not disturbed if witnesses refresh their memory whilst out
of the witness box; 219 and the privilege will not be lost where witnesses refresh
their memory during an adjournment. 220 However, if the court is of the view that
the witness in the witness box has no independent recollection and has merely
memorised the contents of the document, then the document must be produced.
221
One basis for distinguishing between refreshing memory in and out of the
witness box is that waiver of privilege cannot be implied unless there is some
element of publication. This occurs when the document is used whilst the witness
is testifying in court, but not when it is used out of court. 222 The consequences of
refreshing of memory from a privileged document are dealt with in chapter 24
below.
Footnote - 165
165 This common-law rule is reflected in s 201 of the CPA. Although there is no express provision in
the CPEA, by virtue of s 42 the common law applies as it was on 30 May 1961. It should be noted
that a restriction is placed on the privilege by s 201, in terms of which a legal adviser is required to
reveal any communications from his client made "before he was professionally employed or consulted
with reference to the defence" of his client.
165 This common-law rule is reflected in s 201 of the CPA. Although there is no express
provision in the CPEA, by virtue of s 42 the common law applies as it was on 30 May 1961. It
should be noted that a restriction is placed on the privilege by s 201, in terms of which a legal
adviser is required to reveal any communications from his client made "before he was
professionally employed or consulted with reference to the defence" of his client.
Footnote - 166
166 Heydon & Ockleton Evidence: Cases & Materials 4 ed (1996) 417. The basis and justification for
attorney-client privilege has been the subject of much debate. See Paizes 1989 SALJ 109. At 120
Paizes comments favourably on the non-utilitarian foundation for professional privilege put forward by
Fried, who argues that the identity between lawyer and client provides the moral foundation for an
absolute privilege: "It is not only the client's lack of legal knowledge that compels him to make
confidential communications to his lawyer. If we regard them as constituting one conceptual unit
then, ex hypothesis, no 'communication', as such, has been made. To compel either the lawyer or the
client to disclose what has passed between them would be tantamount to involuntary self-
incrimination". See generally Unterhalter 1988 SALJ 291; Haysom 1987 De Rebus 697; Kriegler 1991
SALJ 613. The history and theoretical framework of legal professional privilege are discussed by Van
Niekerk, Van der Merwe and Van Wyk Privilegies in die Bewysreg (1984) 27-44.
166 Heydon & Ockleton Evidence: Cases & Materials 4 ed (1996) 417. The basis and
justification for attorney-client privilege has been the subject of much debate. See Paizes 1989
SALJ 109. At 120 Paizes comments favourably on the non-utilitarian foundation for professional
privilege put forward by Fried, who argues that the identity between lawyer and client provides
the moral foundation for an absolute privilege: "It is not only the client's lack of legal
knowledge that compels him to make confidential communications to his lawyer. If we regard
them as constituting one conceptual unit then, ex hypothesis, no 'communication', as such, has
been made. To compel either the lawyer or the client to disclose what has passed between
them would be tantamount to involuntary self-incrimination". See generally Unterhalter 1988
SALJ 291; Haysom 1987 De Rebus 697; Kriegler 1991 SALJ 613. The history and theoretical
framework of legal professional privilege are discussed by Van Niekerk, Van der Merwe and Van
Wyk Privilegies in die Bewysreg (1984) 27-44.
Footnote - 167
167 1988 (1) SA 868 (A) 886.
167 1988 (1) SA 868 (A) 886.
Footnote - 168
168 1983 49 ALR 385 at 442-445. See also Blue Chip Consultants (Pty) Ltd v Shamrock2002 (3) SA
231 (W).
168 1983 49 ALR 385 at 442-445. See also Blue Chip Consultants (Pty) Ltd v Shamrock2002
(3) SA 231 (W).
Footnote - 169
169 See also Sasol III (Edms) Bpk v Minister van Wet en Orde1991 (3) SA 766 (T); Waymark NO v
Commercial Union Assurance Co Ltd1992 (3) SA 779 (Tk). See also generally Allan "Legal Privilege
and the Principle of Fairness in the Criminal Trial" 1987 Crim LR 449.
169 See also Sasol III (Edms) Bpk v Minister van Wet en Orde1991 (3) SA 766 (T); Waymark
NO v Commercial Union Assurance Co Ltd1992 (3) SA 779 (Tk). See also generally Allan "Legal
Privilege and the Principle of Fairness in the Criminal Trial" 1987 Crim LR 449.
Footnote - 170
170 2006 (1) SACR 523 (T)
170 2006 (1) SACR 523 (T)
Footnote - 171
171 It should be noted that on appeal it was found that there had been no unconstitutional search.
Minister of Safety and Security v Bennett [2007] SCA 139 (RSA). On appeal it was also held that
there was no reason why non-privileged documents seized in terms of a valid search warrant should
be regarded as having been seized unlawfully merely because privileged documents (not covered by
the warrant) had also been seized.
171 It should be noted that on appeal it was found that there had been no unconstitutional
search. Minister of Safety and Security v Bennett [2007] SCA 139 (RSA). On appeal it was also
held that there was no reason why non-privileged documents seized in terms of a valid search
warrant should be regarded as having been seized unlawfully merely because privileged
documents (not covered by the warrant) had also been seized.
Footnote - 172
172 At 534h-i.
172 At 534h-i.
Footnote - 173
173 At 536e-f.
173 At 536e-f.
Footnote - 174
174 At 535g. See also Klein v Attorney-General, Witwatersrand Local Division1995 (2) SACR 210
(W); S v Du Toit2004 (1) SACR 341 (T).
174 At 535g. See also Klein v Attorney-General, Witwatersrand Local Division1995 (2) SACR
210 (W); S v Du Toit2004 (1) SACR 341 (T).
Footnote - 175
175 See R v Fouche1953 (1) SA 440 (W). The requirement of "professional capacity" is fully
discussed by Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 53-60.
175 See R v Fouche1953 (1) SA 440 (W). The requirement of "professional capacity" is fully
discussed by Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 53-60.
Footnote - 176
176 1997 (3) SA 93 (T). See also Mohamed v President of the Republic of South Africa2001 (2) SA
1145 (C) 1151.
176 1997 (3) SA 93 (T). See also Mohamed v President of the Republic of South Africa2001
(2) SA 1145 (C) 1151.
Footnote - 177
177 [1972] 2 QB All ER 353.
177 [1972] 2 QB All ER 353.
Footnote - 178
178 2001 (2) SA 1145 (C) at 1154F-H.
178 2001 (2) SA 1145 (C) at 1154F-H.
Footnote - 179
179 At 1156J.
179 At 1156J.
Footnote - 180
180 Danzfuss v Additional Magistrate, Bloemfontein1981 (1) SA 115 (O).
180 Danzfuss v Additional Magistrate, Bloemfontein1981 (1) SA 115 (O).
Footnote - 181
181 R v Fouche1953 (1) SA 440 (W). However, in Smit v Maritz Attorneys v Lourens NO2002 (1)
SACR 152 (W) 160g Van Oosten J held that "[t]he mere fact that a file is in an attorney's possession
does not create legal professional privilege." A document not compiled for purposes of legal advice,
but handed over to a lawyer, is not privileged. See R v Davies1956 (3) SA 52 (A).
181 R v Fouche1953 (1) SA 440 (W). However, in Smit v Maritz Attorneys v Lourens NO2002
(1) SACR 152 (W) 160g Van Oosten J held that "[t]he mere fact that a file is in an attorney's
possession does not create legal professional privilege." A document not compiled for purposes
of legal advice, but handed over to a lawyer, is not privileged. See R v Davies1956 (3) SA 52
(A).
Footnote - 182
182 1960 (3) SA 393 (D). See also Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd1962
(2) SA 408 (C); Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and
Marketing1979 (1) SA 637 (C); Kelly v Pickering (1)1980 (2) SA 753 (R).
182 1960 (3) SA 393 (D). See also Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co
Ltd1962 (2) SA 408 (C); Euroshipping Corporation of Monrovia v Minister of Agricultural
Economics and Marketing1979 (1) SA 637 (C); Kelly v Pickering (1)1980 (2) SA 753 (R).
Footnote - 183
183 Lane v Magistrate Wynberg 1997 2 SA 869 ( C) 885C.
183 Lane v Magistrate Wynberg 1997 2 SA 869 ( C) 885C.
Footnote - 184
184 1964 (2) SA 495 (A).
184 1964 (2) SA 495 (A).
Footnote - 185
185 General Accident, Fire and Life Assurance Corporation v Goldberg 1912 TPD 494.
185 General Accident, Fire and Life Assurance Corporation v Goldberg 1912 TPD 494.
Footnote - 186
186 R v Smith 1914-1915 All ER 262; Harksen v Attorney-General, Cape1999 (1) SA 718 (C). Cf S v
M2000 (2) SACR 474 (N).
186 R v Smith 1914-1915 All ER 262; Harksen v Attorney-General, Cape1999 (1) SA 718 (C).
Cf S v M2000 (2) SACR 474 (N).
Footnote - 187
187 S v Nkata1990 (4) SA 250 (A).
187 S v Nkata1990 (4) SA 250 (A).
Footnote - 188
188 Bogoshi v Van Vuuren NO; Bogoshi v Director, OSEO1996 (1) SA 785 (A); Kommissaris van
Binnelandse Inkomste v Van der Heever1999 (3) SA 1051 (SCA).
188 Bogoshi v Van Vuuren NO; Bogoshi v Director, OSEO1996 (1) SA 785 (A); Kommissaris
van Binnelandse Inkomste v Van der Heever1999 (3) SA 1051 (SCA).
Footnote - 189
189 See Zeffertt, Paizes & Skeen 584.
189 See Zeffertt, Paizes & Skeen 584.
Footnote - 190
190 See, eg, S v Nkata1990 (4) SA 250 (A).
190 See, eg, S v Nkata1990 (4) SA 250 (A).
Footnote - 191
191 1977 (2) SA 829 (A).
191 1977 (2) SA 829 (A).
Footnote - 192
192 General Accident, Fire and Life Assurance Corporation Ltd supra. See also Potter v South British
Insurance Co Ltd1963 (3) SA 5 (W); Bagwandeen v City of Pietermaritzburg1977 (3) SA 727 (N);
Tshikomba v Mutual & Federal Insurance Co Ltd1995 (2) SA 124 (T).
192 General Accident, Fire and Life Assurance Corporation Ltd supra. See also Potter v South
British Insurance Co Ltd1963 (3) SA 5 (W); Bagwandeen v City of Pietermaritzburg1977 (3) SA
727 (N); Tshikomba v Mutual & Federal Insurance Co Ltd1995 (2) SA 124 (T).
Footnote - 193
193 Supra.
193 Supra.
Footnote - 194
194 At 504.
194 At 504.
Footnote - 195
195 See S v Mnyaka1990 (4) SA 299 (E).
195 See S v Mnyaka1990 (4) SA 299 (E).
Footnote - 196
196 Andersen v Minister of Justice1954 (2) SA 473 (W); Mandela v Minister of Prisons1983 (1) SA
938 (A). See also generally Haysom 1981 SACC 176; Cameron & Van Zyl Smit 1983 ASSAL 521;
Unterhalter 1986 SAJHR 312 328.
196 Andersen v Minister of Justice1954 (2) SA 473 (W); Mandela v Minister of Prisons1983
(1) SA 938 (A). See also generally Haysom 1981 SACC 176; Cameron & Van Zyl Smit 1983
ASSAL 521; Unterhalter 1986 SAJHR 312 328.
Footnote - 197
197 Supra.
197 Supra.
Footnote - 198
198 1996 (1) SA 785 (A). See also Sasol III (Edms) Bpk v Minister van Wet en Orde1991 (3) SA 766
(T).
198 1996 (1) SA 785 (A). See also Sasol III (Edms) Bpk v Minister van Wet en Orde1991 (3)
SA 766 (T).
Footnote - 199
199 However, the claim of privilege failed as it had not been claimed in the interests of the client
but in the appellants' (who were attorneys) own interest. See also Cheadle Thompson & Haysom v
Minister of Law & Order1986 (2) SA 264 (W).
199 However, the claim of privilege failed as it had not been claimed in the interests of the
client but in the appellants' (who were attorneys) own interest. See also Cheadle Thompson &
Haysom v Minister of Law & Order1986 (2) SA 264 (W).
Footnote - 200
200 Lenz Township Co (Pty Ltd) v Munnick1959 (4) SA 567 (T) 574G-H. See also Van der Linde v
Calitz1967 (2) SA 239 (A) 257F-G; Mohamed v President of the Republic of South Africa2001 (2) SA
1145 (C).
200 Lenz Township Co (Pty Ltd) v Munnick1959 (4) SA 567 (T) 574G-H. See also Van der
Linde v Calitz1967 (2) SA 239 (A) 257F-G; Mohamed v President of the Republic of South
Africa2001 (2) SA 1145 (C).
Footnote - 201
201 1998 (4) SA 296 (T).
201 1998 (4) SA 296 (T).
Footnote - 202
202 At 302F. See also n 39 in § 11.1.3 below.
202 At 302F. See also n 39 in § 11.1.3 below.
Footnote - 203
203 Mohamed supra 1159H-I. See also § 11.3.2 below.
203 Mohamed supra 1159H-I. See also § 11.3.2 below.
Footnote - 204
204 Klein v Attorney-General, Witwatersrand Local Division1995 (2) SACR 210 (W). See also S v
Nkata1990 (4) SA 250 (A); S v Mushimba1977 (2) SA 829 (A).
204 Klein v Attorney-General, Witwatersrand Local Division1995 (2) SACR 210 (W). See also
S v Nkata1990 (4) SA 250 (A); S v Mushimba1977 (2) SA 829 (A).
Footnote - 205
205 1995 (2) SA 433 (SE).
205 1995 (2) SA 433 (SE).
Footnote - 206
206 Section 23 of the interim Constitution.
206 Section 23 of the interim Constitution.
Footnote - 207
207 In terms of s 33(1) of the interim Constitution.
207 In terms of s 33(1) of the interim Constitution.
Footnote - 208
208 At 453C-457B.
208 At 453C-457B.
Footnote - 209
209 See Van Niekerk v Pretoria City Council1997 (3) SA 839 (A). Cf Qozeleni v Minister of Law and
Order1994 (3) SA 625 (E); Mohamed v President of the Republic of South Africa 2001 2 SA 1145
209 See Van Niekerk v Pretoria City Council1997 (3) SA 839 (A). Cf Qozeleni v Minister of
Law and Order1994 (3) SA 625 (E); Mohamed v President of the Republic of South Africa 2001
2 SA 1145
Footnote - 210
210 1988 (1) SA 868 (A).
210 1988 (1) SA 868 (A).
Footnote - 211
211 At 887A-B.
211 At 887A-B.
Footnote - 212
212 See, eg, Brits v Van Heerden2001 (3) SA 257 (C) at 265.
212 See, eg, Brits v Van Heerden2001 (3) SA 257 (C) at 265.
Footnote - 213
213 1965 (4) SA 507 (A) 514. See also generally S v Fourie1972 (1) SA 341 (T); Msimang v Durban
City Council1972 (4) SA 333 (D) 338F: Kommissaris van Binnelandse Inkomste v Van der
Heever1999 (3) SA 1051 (SCA).
213 1965 (4) SA 507 (A) 514. See also generally S v Fourie1972 (1) SA 341 (T); Msimang v
Durban City Council1972 (4) SA 333 (D) 338F: Kommissaris van Binnelandse Inkomste v Van
der Heever1999 (3) SA 1051 (SCA).
Footnote - 214
214 2008 (1) SACR 613 (SCA).
214 2008 (1) SACR 613 (SCA).
Footnote - 215
215 At para 18.
215 At para 18.
Footnote - 216
216 See also S v Boesman & others1990 (2) SACR 389 (E); Peacock v SA Eagle Insurance Co
Ltd1991 (1) SA 589 (C). See also S v Nhlapo1988 (3) SA 481 (T), in which, following the defence's
express waiver in respect of one page of a statement, the court held that there had been an implied
waiver of the document. See Unterhalter 1988 ASSAL 449 for a criticism of this decision; Harksen v
Attorney-General, Cape1999 (1) SA 718 (C) at 732H; Laws v Rutherford1924 AD 261 and Borstlap v
Spangenberg1974 (3) SA 695 (A).
216 See also S v Boesman & others1990 (2) SACR 389 (E); Peacock v SA Eagle Insurance Co
Ltd1991 (1) SA 589 (C). See also S v Nhlapo1988 (3) SA 481 (T), in which, following the
defence's express waiver in respect of one page of a statement, the court held that there had
been an implied waiver of the document. See Unterhalter 1988 ASSAL 449 for a criticism of
this decision; Harksen v Attorney-General, Cape1999 (1) SA 718 (C) at 732H; Laws v
Rutherford1924 AD 261 and Borstlap v Spangenberg1974 (3) SA 695 (A).
Footnote - 217
Footnote - 218
218 At paras 19 & 20.
218 At paras 19 & 20.
Footnote - 219
219 See Ex parte Minister van Justisie: In re S v Wagner supra.
219 See Ex parte Minister van Justisie: In re S v Wagner supra.
Footnote - 220
220 Van den Berg v Streeklanddros, Vanderbijlpark1985 (3) SA 960 (T); S v Tshomi1983 (1) SA
1159 (C).
220 Van den Berg v Streeklanddros, Vanderbijlpark1985 (3) SA 960 (T); S v Tshomi1983 (1)
SA 1159 (C).
Footnote - 221
221 Van den Berg v Streeklanddros, Vanderbijlpark supra. See further § 24.3 below.
221 Van den Berg v Streeklanddros, Vanderbijlpark supra. See further § 24.3 below.
Footnote - 222
222 See S v Tshomi supra; S v Toka1990 (2) SACR 225 (T).
222 See S v Tshomi supra; S v Toka1990 (2) SACR 225 (T).

Document 86 of 330
10.4 Other Professional Privileges?

The legal recognition of a privilege attaching to communications between
categories of people inevitably involves two conflicting interests: (1) society's
interest in preserving and promoting certain relationships; and (2) the interest of
the administration of justice in ensuring that all relevant evidence is before the
court. Historically, preference has been given to the latter interest. Consequently,
professional privilege pertains only to the lawyer-client relationship and is not
enjoyed by other professional relationships, 223 although bankers do have a
limited
3rd Ed, 2009 ch10-p153
privilege in that they need not produce their books unless ordered to do so by the
court. 224 Privilege is not accorded to the doctor-patient relationship; 225
however, where an accused has been referred for mental observation, any
statement made by her at such an inquiry will be inadmissible in criminal
proceedings, "except to the extent to which it may be relevant to the
determination" of her "mental condition". 226
Priests, 227 insurers 228 and accountants 229 do not enjoy this privilege.
Journalists can be compelled to disclose the sources of their information. 230
However, it would appear that some relief is available to these professionals if
they can establish that they have a "just excuse" for not testifying. 231
It is also arguable that certain professional communications may be protected
from disclosure by the constitutional right to privacy. Section 14(d) of the
Constitution provides that everyone has the right not to have the privacy of their
communications infringed. A communication between doctor and patient may well
be regarded as a personal and private communication, and where the state seeks
to compel disclosure of such a communication, privilege may be claimed on the
basis of s 14. However, that privilege may be denied if the state is able to
establish that the requirements of the limitations clause have been met. 232 Such
an approach would not constitute such a radical departure from the common law
as such constitutional scrutiny would inevitably incorporate Wigmore's 233
preconditions for the recognition of a privilege and which are reflected in the pre-
requisites of legal professional privilege, namely:
"(1) the communicate must originate in a confidence that they will not be
disclosed;
(2) the element of confidentiality must be essential to the full and satisfactory
maintenance of the relationship between the parties;
(3) the relationship must be one that in the opinion of the community ought to be
sedulously fostered;
(4) the injury that would inure to the relationship by the disclosure of the
communication must be greater than the benefit gained through the correct
disposal of the litigation." 234
3rd Ed, 2009 ch10-p154
Footnote - 223
223 See, eg, Trust Sentrum (Kaapstad) (Edms) Bpk v Zevenburg1989 (1) SA 145 (C).
223 See, eg, Trust Sentrum (Kaapstad) (Edms) Bpk v Zevenburg1989 (1) SA 145 (C).
Footnote - 224
224 Section 236(4) of the CPA; s 31 of the CPEA.
224 Section 236(4) of the CPA; s 31 of the CPEA.
Footnote - 225
225 Botha v Botha1972 (2) SA 559 (N); Davis v Additional Magistrate, Johannesburg1989 (4) SA
299 (W).
225 Botha v Botha1972 (2) SA 559 (N); Davis v Additional Magistrate, Johannesburg1989 (4)
SA 299 (W).
Footnote - 226
226 See ss 77, 78 and 79 of the CPA, and especially s 79(7).
226 See ss 77, 78 and 79 of the CPA, and especially s 79(7).
Footnote - 227
227 Smit v Van Niekerk NO1976 (4) SA 293 (A); S v B1980 (2) SA 946 (A). See Van der Vyver
1977 THRHR 217. See Freedman 1997 SACJ 74 who argues that the Constitution requires a broader
recognition of the categories of privileged communications. See also Van Dokkum 1996 SACJ 14.
See also S v Bierman2002 (2) SACR 219 (CC) in which the Constitutional Court left the question
open; and S v Mshumpa2008 (1) SACR 126 (E) at 136a-e.
227 Smit v Van Niekerk NO1976 (4) SA 293 (A); S v B1980 (2) SA 946 (A). See Van der
Vyver 1977 THRHR 217. See Freedman 1997 SACJ 74 who argues that the Constitution
requires a broader recognition of the categories of privileged communications. See also Van
Dokkum 1996 SACJ 14. See also S v Bierman2002 (2) SACR 219 (CC) in which the
Constitutional Court left the question open; and S v Mshumpa2008 (1) SACR 126 (E) at 136a-
e.
Footnote - 228
228 Howe v Mabuya1961 (2) SA 635 (D).
228 Howe v Mabuya1961 (2) SA 635 (D).
Footnote - 229
229 Chantrey Martin v Martin 1953 2 All ER 691.
229 Chantrey Martin v Martin 1953 2 All ER 691.
Footnote - 230
230 S v Pogrund1961 (3) SA 868 (T); S v Cornelissen; Cornelissen v Zeelie NO1994 (2) SACR 41
(W), in which the court, whilst holding that there was no legally recognised privilege giving
journalists immunity from testifying, held that in the circumstances of the case the journalist had a
just excuse for not testifying. In Munusamy v Hefer NO2004 (5) SA 112 (O) the court held that
Cornelissen's case should not be interpreted as authority for the view that journalists have the right
only to be called as witnesses of the last resort.
230 S v Pogrund1961 (3) SA 868 (T); S v Cornelissen; Cornelissen v Zeelie NO1994 (2) SACR
41 (W), in which the court, whilst holding that there was no legally recognised privilege giving
journalists immunity from testifying, held that in the circumstances of the case the journalist
had a just excuse for not testifying. In Munusamy v Hefer NO2004 (5) SA 112 (O) the court
held that Cornelissen's case should not be interpreted as authority for the view that journalists
have the right only to be called as witnesses of the last resort.
Footnote - 231
231 See Cornelissen supra.

231 See Cornelissen supra.
Footnote - 232
Footnote - 233
Footnote - 234
234 Tapper Cross & Tapper on Evidence 499.
234 Tapper Cross & Tapper on Evidence 499.
Document 87 of 330
10.5 Marital Privilege

Spouses are entitled to refuse to disclose communications from the other spouse
made during the marriage. 235 This privilege is founded on the notion that public
opinion would find it unacceptable if spouses could be forced to disclose
communications received from each other. 236
The only requirements for the existence of the privilege is that the
communication must have been made whilst the spouses were married. The
privilege persists after divorce with regard to communications made whilst the
couple were still married. 237
In terms of s 199 of the CPA each spouse may refuse to answer a question
that the other spouse could not have been compelled to answer. 238 However,
should the spouse who received the communication wish to disclose it, there is
nothing the other spouse can do to prevent such disclosure, since marital
privilege can only be claimed by the spouse to whom the communication is made.
The traditionally accepted view is that a third person who hears or intercepts the
communication cannot be prevented from disclosing it. 239 This common-law
approach may well be challenged on the basis that it infringes the constitutional
right to privacy. 240
Footnote - 235
235 See s 198 of the CPA and s 10 of the CPEA. A marriage includes an indigenous law marriage as
well as a marriage concluded under any system of religious law. See s 195(2) of the CPA and s 10A of
the CPEA. See also § 22.11.2 below.
235 See s 198 of the CPA and s 10 of the CPEA. A marriage includes an indigenous law
marriage as well as a marriage concluded under any system of religious law. See s 195(2) of
the CPA and s 10A of the CPEA. See also § 22.11.2 below.
Footnote - 236

Footnote - 237
237 See s 198(2) of the CPA and s 10(2) of the CPEA. However, widows or widowers cannot claim
the privilege.
237 See s 198(2) of the CPA and s 10(2) of the CPEA. However, widows or widowers cannot
claim the privilege.
Footnote - 238
238 Zeffertt, Paizes & Skeen 620 state: "It has been suggested that the privilege not to answer
questions which tend to incriminate the other spouse must be regarded as excluded by implication in
those cases in which one spouse is a compellable witness in a prosecution against the other."
238 Zeffertt, Paizes & Skeen 620 state: "It has been suggested that the privilege not to
answer questions which tend to incriminate the other spouse must be regarded as excluded by
implication in those cases in which one spouse is a compellable witness in a prosecution against
the other."
Footnote - 239
239 See Rumping v DPP 1962 3 All ER 256.
239 See Rumping v DPP 1962 3 All ER 256.
Footnote - 240
240 Section 14 of the interim Constitution. See generally S v Hammer1994 (2) SACR 496 (C) as
discussed in n 244 below.
240 Section 14 of the interim Constitution. See generally S v Hammer1994 (2) SACR 496 (C)
as discussed in n 244 below.
Document 88 of 330
10.6 Parent-Child Privilege

Section 192 of the CPA241 makes it clear that parents/guardians can be compelled
to testify against their children/wards and vice versa. Our courts do not recognise
a privilege pertaining to communications between parent and child. The absence
of privilege prevails even where the parent attends criminal proceedings in order
to provide assistance to a child in terms of s 73(3) of the CPA.
There can be no doubt that an argument can be made that where parents
attend criminal proceedings in order to assist their children, public policy militates
against those very same parents being compelled to testify against their children.
In S v M the Appellate Division held that s 73(1) and 73(2) of the CPA, read
together, conferred a right upon a child to be assisted by a parent or guardian as
from the time of the child's arrest, in the same way as an adult would be entitled
to the assistance of a legal adviser. From this equation of parental assistance with
the assistance of a legal adviser follows the logical inference that parent-child
communications in this
3rd Ed, 2009 ch10-p155
context should be afforded the same privilege as communications made between

legal adviser and client.
However, even where a parent does not appear to assist the child there may
well be constitutional grounds for holding that communications between parent
and child are privileged. In the United States the courts have recognised that
confidential communications between children and their parents, guardians or
other caretakers are privileged from disclosure on the basis of the constitutional
right to privacy. 243 It is submitted that s 14 of the Constitution, which
guarantees the right to privacy, is susceptible to a similar interpretation. 244
Footnote - 241
241 Read together with s 206 of the CPA.
241 Read together with s 206 of the CPA.
Footnote - 242
242 1993 (2) SACR 487 (A). See also S v Manuel1997 (2) SACR 505 (C) in which the court
stressed the importance of parental assistance; S v N1997 (1) SACR 84 (Tk).
242 1993 (2) SACR 487 (A). See also S v Manuel1997 (2) SACR 505 (C) in which the court
stressed the importance of parental assistance; S v N1997 (1) SACR 84 (Tk).
Footnote - 243
243 In re A & M 61 AD 2d 426, 403 NYS 2d 375 (1978); People v Fitzgerald 101 Misc 2d 712, 422
NYS 2d 309.
243 In re A & M 61 AD 2d 426, 403 NYS 2d 375 (1978); People v Fitzgerald 101 Misc 2d 712,
422 NYS 2d 309.
Footnote - 244
244 See Van Dokkum 1994 SACJ 213. Article 2(21) of the African National Congress' draft Bill of
Rights gave recognition to parent-child privilege. See also S v Hammer1994 (2) SACR 496 (C), in
which an 18-year-old accused, whilst in police custody, after receiving permission to write a letter to
his mother, asked a member of the South African Police Service to deliver the letter to his mother.
The policeman, instead of delivering the letter, read it and handed it over to the prosecution.
Although the court did not base its decision on the constitutional right to privacy, it found the
evidence to be inadmissible in that it had been improperly obtained. The court found that the
policeman had in all probability committed an injuria against the accused, that he had acted
unlawfully and immorally in reading and handing the letter over to the Attorney-General, and that
this was a serious and deliberate breach of the accused's common-law right to privacy. The court
concluded that the evidence was to be excluded as it had been unfairly obtained and to admit it
would bring the administration of justice into disrepute. This case should also be read in the context
of ch 12 below. More specifically, see § 12.7 below.
244 See Van Dokkum 1994 SACJ 213. Article 2(21) of the African National Congress' draft
Bill of Rights gave recognition to parent-child privilege. See also S v Hammer1994 (2) SACR
496 (C), in which an 18-year-old accused, whilst in police custody, after receiving permission
to write a letter to his mother, asked a member of the South African Police Service to deliver
the letter to his mother. The policeman, instead of delivering the letter, read it and handed it
over to the prosecution. Although the court did not base its decision on the constitutional right
to privacy, it found the evidence to be inadmissible in that it had been improperly obtained.
The court found that the policeman had in all probability committed an injuria against the
accused, that he had acted unlawfully and immorally in reading and handing the letter over to
the Attorney-General, and that this was a serious and deliberate breach of the accused's
common-law right to privacy. The court concluded that the evidence was to be excluded as it
had been unfairly obtained and to admit it would bring the administration of justice into
disrepute. This case should also be read in the context of ch 12 below. More specifically, see §
12.7 below.
Document 89 of 330
Chapter 11
State Privilege (Public Interest Immunity) *1
S E van der Merwe
11.1 Introduction
11.1.1 Terminology
11.1.2 The differences between public and private privilege
11.1.3 Development of the English common law
11.2 State privilege prior to constitutionalization
11.2.1 The decision in Van der Linde v Calitz
11.2.2 Legislative interference (1969 to 1996)
11.3 State privilege after constitutionalization
11.3.1 Impact of constitutional provisions
11.3.2 Devising a constitutional framework
11.4 The detection of crime
11.4.1 Communications tending to expose methods used to investigate
crime
11.4.2 Communications tending to reveal the identity of an informer
11.4.3 Extension of the informer's privilege
11.4.4 The constitutionality of the informer's privilege
11.4.5 Examples of statutes that exclude evidence of the identity of
persons who have a statutory duty to report
11.4.5.1 Section 38(3) of the Financial Intelligence Centre Act 38
of 2001 (FICA)
11.4.5.2 Section 17(9) of the Protection of Constitutional
Democracy against Terrorist and Related Activities Act 33
of 2004
11.5 The police docket
11.5.1 Access for purposes of trial
11.5.1.1 Disclosure of contents not the equivalent of further
particulars
11.5.1.2 Information which only becomes available after
commencement of the trial
11.5.1.3 Position of the undefended accused
11.5.1.4 Position of suspects
11.5.1.5 Further procedural and evidential matters
11.5.1.6 Cross-examination on the basis of the state witness'
statement
11.5.1.7 Abolition of the blanket docket privilege: defence
interviews with (potential) state witnesses
11.5.2 Access for purposes of a bail application
11.5.2.1 Constitutional validity of s 60(14) of the CPA
11.5.2.2 Duty and power of court to order state to disclose
11.5.2.3 Sections 60(14) and 335 of the CPA
11.5.2.4 Ethical duty of prosecutor
11.6 The Promotion of Access to Information Act 2 of 2000
11.6.1 The PAIA and mandatory protection of records privileged from
production in legal proceedings
11.6.2 Non-applicability of the PAIA to records required for criminal or civil
proceedings after commencement of such proceedings
3rd Ed, 2009 ch11-p157
Footnote - 1
1 * Some sections of this chapter were originally written by Prof A P Paizes, School of Law, Univ of
the Witwatersrand, and published as ch 12 in Van der Merwe (ed) Evidence (1983) 147-156 and later
in Du Toit et al Commentary on the Criminal Procedure Act (1987, as revised). Prof Paizes' kind
permission to retain portions of his original text for purposes of the present book is appreciated. Of
course, the present author carries responsibility for amendments, updating, style and ultimate
accuracy of the contents.
1 * Some sections of this chapter were originally written by Prof A P Paizes, School of Law,
Univ of the Witwatersrand, and published as ch 12 in Van der Merwe (ed) Evidence (1983)
147-156 and later in Du Toit et al Commentary on the Criminal Procedure Act (1987, as
revised). Prof Paizes' kind permission to retain portions of his original text for purposes of the
present book is appreciated. Of course, the present author carries responsibility for
amendments, updating, style and ultimate accuracy of the contents.
11.1 Introduction
Relevant and otherwise admissible evidence may be withheld or excluded on the
ground that its production or admission would be against public policy 2 or
harmful to the public interest. 3 This rule — which is usually applied to documents
but which can also cover real and oral evidence — is an English common-law rule.
It has found its way into the Anglo-South African law of evidence on account of
early local statutory references to the law as applied in the "Supreme Court of
Judicature in England". 4 These references were replaced by "thirtieth day of May
1961" provisions currently contained in s 202 of the CPA5 and s 42 of the CPEA. 6
A good example of the application of the common-law rule, is found in Duncan
v Cammell Laird & Co Ltd which was decided in 1942. This case involved an
action for personal damages after a submarine, Thetis, had sunk during trials.
Negligence was alleged. The plaintiff sought discovery of certain documents which
would have disclosed the design of a new submarine and which related to
contracts between the defendants and the admiralty. The admiralty resisted,
claiming that disclosure would be harmful to the public interest in that national
security was at stake. The House of Lords held that disclosure would be harmful
to the public interest. Although the procedure approved by the House of Lords in
deciding the issue has been criticised, 8 it is generally accepted that a finding in
favour of non-disclosure would at any rate have been correct. 9 Disclosure could
have resulted in assisting the nation's enemies in understanding the design of a
new submarine — and the United Kingdom was at that time engaged in a perilous
war. Cases like Duncan illustrate the
3rd Ed, 2009 ch11-p158
need for the existence of the rule under discussion. 10 In the extreme
circumstances which existed in Duncan, the public interest that a court should
uphold — and a litigant should be entitled to rely upon — "the principle of
unimpeded access to information", 11 is obviously outweighed by the public
interest that national security should not be endangered in times of war.
Public interest is the controlling factor, 12 and much would depend on the
factual circumstances. It has been said — with reference to the facts in the
Duncan case — that "the public interest in the security even of such pieces of
information is ephemeral and could hardly prevail once the campaign had been
fought, or the design of the submarine become common knowledge". 13
At first glance it might seem as if there could be an extremely wide variety of
situations where public interest might demand exclusion. However, over the past
fifty years courts have for obvious reasons succeeded in restricting the application
of this privilege. For purposes of this chapter, only the following areas of
application will be emphasised: matters concerning state affairs (see § 11.2 to
11.3.2 below); protection of police methods of investigation (see § 11.4.1 below);
the informer's privilege (see §§ 11.4.2 to 11.4.4 below); and access to
information in police dockets (see §§ 11.5 to 11.5.1.7 below).
11.1.1 Terminology
Exclusion on account of public interest, was for many years referred to as "crown
privilege" and became known as "state privilege" when South Africa became a
Republic. The use of the word "crown" (or "state" as the case may be) calls to
mind that "much of the law relating to public interest immunity was developed by
the courts in cases concerned with the highest affairs of state, such as national
security, state secrets in times of war and matters of great diplomatic
importance"; 14 and in these instances "most claims to the immunity were made
on behalf of central government by ministers of the Crown". 15 However, over the
past
3rd Ed, 2009 ch11-p159
three decades the English courts 16 and authors 17 have for various reasons
preferred to refer to "public interest immunity" rather than "crown privilege": the
public interest to be protected is not confined to the crown "in the sense of the
executive or local government [and] may be an interest in the work of local
authorities or non-governmental bodies"; 18 the crown need not be a party to the
case; and the rule, it has often been claimed, is not a privilege in the true sense
of the word. In Makanjuola v Commissioner of Police of the Metropolis Bingham LJ
said: 19
"Where a litigant asserts that documents are immune from production or disclosure
on public interest grounds he is not (if the claim is well founded) claiming a right but
observing a duty. Public interest immunity is not a trump card vouchsafed to certain
players to play when and as they wish. It is an exclusionary rule, imposed on parties
in certain circumstances, even where it is to their disadvantage in the litigation."
The above approach explains why it is generally accepted that waiver is not
possible where the public interest demands exclusion. It also explains why the
court must — in the absence of any claim — raise the matter of its own accord. 20
In South Africa it remains customary to refer to the rule of exclusion on

account of public interest, as a "privilege".
Schmidt and Rademeyer also use the term "openbare privilegie" ("public
privilege") but acknowledge that this privilege requires, on questions concerning
waiver and the use of secondary evidence, an approach fundamentally different
from that which prevails in respect of private privilege. 21 The real and perceived
differences between public and private privilege are dealt with in § 11.1.2 below.
If these distinctions are borne in mind, the use of the concept "public privilege" is
acceptable.
11.1.2 The differences between public and private privilege

These differences were also briefly referred to in § 10.1 above. As a general
principle, it may be said that public privilege exists where the public interest in
non-disclosure outweighs the public interest that the administration of justice
should not be hampered. This general principle also applies to those categories of
private privilege which were identified in the previous chapter: there are certain
private interests which should in the public interest prevail over the principle that
there should in the public interest be disclosure of and access to all relevant
information for purposes of litigation. It has been said, for example, that "public
interest is … served" by legal professional privilege 22 and that the protection of
public interest forms the basis of public as well as private privileges. 23 However,
this common
3rd Ed, 2009 ch11-p160
basis should not blur the following fundamental differences which exist between
public and private privileges:
(a) Secondary or circumstantial evidence is admissible to prove a matter
protected in terms of private privilege. 24 But such evidence is generally
inadmissible in respect of public privilege. 25 This means, for example, that
where documents are in the public interest protected from disclosure in
order to protect the safety of the state, a party would not be permitted to
adduce copies of such documents or oral evidence pertaining to the
contents of such documents. 26 Nor would it be permissible to use such a
document for purposes of cross-examination.
(b) A party to whom a private privilege attaches, may waive the privilege
provided he or she does so voluntarily, knowingly and intelligently. 27
However, in respect of a public privilege like state privilege which involves,
for example, documents relating to national defence or diplomatic relations,
it would seem as if a valid waiver is possible only on the clear authority of
the ministerial head of the government department concerned. 28
(c) Private privilege must be claimed by the holder thereof. The court may not
claim the privilege on behalf of the holder. 29 The court must, however,
ensure that the holder is aware of his or her private privilege, for example,
the privilege against self-incrimination 30 or marital privilege. In respect of
public privilege the court may in appropriate circumstances uphold the
privilege mero motu, 31 for example, on issues concerning national security
32 or where the informer's privilege comes into play. 33
11.1.3 Development of the English common law

Much of the historical development of exclusion on grounds of public interest
immunity concerned the following issue: is the executive's claim that information
attracts non-disclosure on account of public interest final in the sense that, if it is
made in proper form, the court has no discretion to order disclosure?
As early as 1860 the English courts were inclined to accept that the executive
had the final say not only in all matters affecting the security of the state, but
also in non-security matters like cabinet minutes and even documents which
merely related to the proper functioning of the public service. 34 This approach
culminated
3rd Ed, 2009 ch11-p161
in 1942 in Duncan v Cammell Laird & Co Ltd (as discussed in § 11.1 above)
where the House of Lords unanimously held that a court could never question the
crown's claim to (what was then known as) crown privilege if such claim was
made in proper form. This rule, it was held, applied to the contents of individual
documents (so-called "contents claims") as well as classes of documents (so
called "class claims"). 35 Despite severe criticism of and judicial dissatisfaction
with this rule which effectively ousted the court's jurisdiction, it was only in 1968
in the decision in Conway v Rimmer that the House of Lords reasserted judicial
control over the exclusion of evidence on the ground of state privilege. 36Conway
v Rimmer did not concern national safety or defence secrets or other high-level
affairs of state, but certainly established the principle that absolute judicial
submission or deference to the view of the executive on matters relating to public
interest immunity was unacceptable.
The present position in England is that there are no classes of documents,
relating to high-level affairs of state, which are absolutely immune from
production. 37 The court may inspect a document in private. 38 However, in
Balfour v Foreign Office it was said that once an actual or potential risk to
national safety is demonstrated by a certificate in proper form, the court should
not exercise its right to inspect. 39 Dennis takes a critical view of this approach:
"This goes too far; where the applicant can show convincingly that the document
would materially assist his case the court should be prepared to consider
inspection, since it might be possible to order partial disclosure, or restricted
disclosure to the applicant's legal advisers." 40
3rd Ed, 2009 ch11-p162
Footnote - 2
2 It is, eg, against public policy that discussion and deliberations between a presiding judicial officer
and his or her assessors be disclosed. See S v Baleka (4)1988 (4) SA 688 (T).
2 It is, eg, against public policy that discussion and deliberations between a presiding judicial
officer and his or her assessors be disclosed. See S v Baleka (4)1988 (4) SA 688 (T).
Footnote - 3
3 See generally Minister van Justisie v Alexander1975 (4) SA 530 (A) 544-5; Van Niekerk, Van der
Merwe & Van Wyk Privilegies in die Bewysreg (1984) 240-74.
3 See generally Minister van Justisie v Alexander1975 (4) SA 530 (A) 544-5; Van Niekerk,
Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 240-74.
Footnote - 4
4 See generally Barnicott v Minister of Justice 1913 (vol 11) TPD 691 695 where the court had to
follow the English law on account of the provisions of s 47 of Proc 16 of 1902 (Tvl). See also Tranter v
Attorney-General and the First Criminal Magistrate of Johannesburg 1907 TS 415 as well as § 3.2
above.
4 See generally Barnicott v Minister of Justice 1913 (vol 11) TPD 691 695 where the court
had to follow the English law on account of the provisions of s 47 of Proc 16 of 1902 (Tvl). See
also Tranter v Attorney-General and the First Criminal Magistrate of Johannesburg 1907 TS 415
as well as § 3.2 above.
Footnote - 5
5 The effect of this section is that, except where otherwise provided by the CPA or any other law,
no witness may be compelled or permitted to give evidence as to any fact, matter or thing, or as to
any communication made to him, if he would not have been compelled or permitted to do so on 30
May 1961 on the ground of public policy or with regard to the public interest. There is a proviso,
however, to the effect that any person may in criminal proceedings adduce evidence of any
communication alleging the commission of an offence if the making of that communication prima
facie constitutes an offence, that is, if such communication amounted to, for example, criminal
iniuria, criminal defamation, treason or perjury. See generally S v Gcali1992 (1) SACR 372 (Tk) 378b-
c.
5 The effect of this section is that, except where otherwise provided by the CPA or any other
law, no witness may be compelled or permitted to give evidence as to any fact, matter or
thing, or as to any communication made to him, if he would not have been compelled or
permitted to do so on 30 May 1961 on the ground of public policy or with regard to the public
interest. There is a proviso, however, to the effect that any person may in criminal proceedings
adduce evidence of any communication alleging the commission of an offence if the making of
that communication prima facie constitutes an offence, that is, if such communication
amounted to, for example, criminal iniuria, criminal defamation, treason or perjury. See
generally S v Gcali1992 (1) SACR 372 (Tk) 378b-c.
Footnote - 6
6 See § 3.4 above.
6 See § 3.4 above.

Footnote - 7
7 1942 1 All ER 587.
7 1942 1 All ER 587.
Footnote - 8
8 See § 11.1.3 below.
8 See § 11.1.3 below.
Footnote - 9
Footnote - 10
10 See also Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd 1916 1 KB 822 where documents
relating to military plans during World War One were held immune from disclosure.
10 See also Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd 1916 1 KB 822 where
documents relating to military plans during World War One were held immune from disclosure.
Footnote - 11
11 Zuckerman "Privilege and Public Interest'' in Tapper (ed) Crime, Proof and Punishment (1981)
248.
11 Zuckerman "Privilege and Public Interest'' in Tapper (ed) Crime, Proof and Punishment
(1981) 248.
Footnote - 12
12 In Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274 298 it was said:
"Although it is the practice to talk of conflicting public interests this can be misleading. The conflict is
more accurately described as being between two different aspects of the public interest. If it is
decided that the aspect of the public interest which reflects the requirements of administration of
justice outweighs the aspect of the interest which is against disclosure, then it is the public interest
which requires disclosure." . In S v Scholtz1996 (2) SACR 426 (NmS) Dumbutshena AJA also
provided the following perspective (at 422e-g): "It is necessary under certain circumstances to
protect public interest immunity in order to safeguard the interests of public administration and the
protection of the State. I do not however share the view that public interest immunity should be
preferred in order to deny an accused a fair trial and justice. Open justice requires fairness to be
evenly applied between the prosecution and the defence … Rather than make public interest immunity
an exception to the general duty to disclose, it should be weighed in the scales of justice. That
weighing in should be done by the Courts. If before any trial the prosecution has in its possession
documents or other evidential material helpful to the defence case but wants to claim public interest
immunity the defence should be informed of that fact and the Court should be asked to give
directions of some ruling on the prosecution's claim to public interest immunity. The decision must be
made by a Judge. It would not be proper to allow the prosecution to decide which of the relevant
materials should be denied to the accused on the grounds of public interest immunity."
12 In Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274 298 it was
said: "Although it is the practice to talk of conflicting public interests this can be misleading.
The conflict is more accurately described as being between two different aspects of the public
interest. If it is decided that the aspect of the public interest which reflects the requirements of
administration of justice outweighs the aspect of the interest which is against disclosure, then
it is the public interest which requires disclosure." . In S v Scholtz1996 (2) SACR 426 (NmS)
Dumbutshena AJA also provided the following perspective (at 422e-g): "It is necessary under
certain circumstances to protect public interest immunity in order to safeguard the interests of
public administration and the protection of the State. I do not however share the view that
public interest immunity should be preferred in order to deny an accused a fair trial and justice.
Open justice requires fairness to be evenly applied between the prosecution and the defence …
Rather than make public interest immunity an exception to the general duty to disclose, it
should be weighed in the scales of justice. That weighing in should be done by the Courts. If
before any trial the prosecution has in its possession documents or other evidential material
helpful to the defence case but wants to claim public interest immunity the defence should be
informed of that fact and the Court should be asked to give directions of some ruling on the
prosecution's claim to public interest immunity. The decision must be made by a Judge. It
would not be proper to allow the prosecution to decide which of the relevant materials should
be denied to the accused on the grounds of public interest immunity."
Footnote - 13
13 Tapper Cross and Tapper on Evidence 514 n 36.
13 Tapper Cross and Tapper on Evidence 514 n 36.
Footnote - 14
14 Murphy Murphy on Evidence 10 ed (2008) 423.
14 Murphy Murphy on Evidence 10 ed (2008) 423.
Footnote - 15
Footnote - 16
16 See Rogers v Secretary of State for the Home Department 1973 AC 388.
16 See Rogers v Secretary of State for the Home Department 1973 AC 388.
Footnote - 17
17 Tapper Cross and Tapper on Evidence 511 refers to the "currently fashionable terminology of
'public interest immunity'.''
17 Tapper Cross and Tapper on Evidence 511 refers to the "currently fashionable terminology
of 'public interest immunity'.''
Footnote - 18
Footnote - 19
19 1992 3 All ER 617 623.
19 1992 3 All ER 617 623.
Footnote - 20
20 Uglow Evidence: Text and Materials (1997) 180. See also generally Swanepoel v Minister van
Veiligheid en Sekuriteit1999 (2) SACR 284 (T) 287g-h as regards the informer's privilege — a
privilege discussed in § 11.4.2 to § 11.4.4 below.
20 Uglow Evidence: Text and Materials (1997) 180. See also generally Swanepoel v Minister
van Veiligheid en Sekuriteit1999 (2) SACR 284 (T) 287g-h as regards the informer's privilege
— a privilege discussed in § 11.4.2 to § 11.4.4 below.
Footnote - 21
21 Bewysreg 4 ed (2000) 577-578.
21 Bewysreg 4 ed (2000) 577-578.
Footnote - 22
22 S v Safatsa1988 (1) SA 868 (A) 886 (citing Dawson J in Baker v Campbell 1983 49 ALR 385
442).
22 S v Safatsa1988 (1) SA 868 (A) 886 (citing Dawson J in Baker v Campbell 1983 49 ALR
385 442).
Footnote - 23
23 Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 10.
23 Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 10.
Footnote - 24
24 Schmidt & Rademeyer Bewysreg 577 n 155 make the valid point that the privilege which covers
statements without prejudice, is an exception. See further § 16.6 below.
24 Schmidt & Rademeyer Bewysreg 577 n 155 make the valid point that the privilege which
covers statements without prejudice, is an exception. See further § 16.6 below.
Footnote - 25
25 Redelinghuys v Geidel1963 (2) SA 274 (W); Ministry of Community Development v Saloojee1963

(4) SA 65 (T).
25 Redelinghuys v Geidel1963 (2) SA 274 (W); Ministry of Community Development v

Saloojee1963 (4) SA 65 (T).
Footnote - 26
26 Murphy A Practical Approach to Evidence 415.
Footnote - 27
27 Implied or imputed waiver is also possible. See § 10.3.4 above.
27 Implied or imputed waiver is also possible. See § 10.3.4 above.
Footnote - 28
28 See generally Nyangeni v Minister of Bantu Administration and Development1961 (1) SA 547
(E).
28 See generally Nyangeni v Minister of Bantu Administration and Development1961 (1) SA

547 (E).
Footnote - 29
29 S v Van Vreden1969 (2) SA 524 (N) 529H.
29 S v Van Vreden1969 (2) SA 524 (N) 529H.
Footnote - 30
30 S v Lwane1966 (2) SA 433 (A).
30 S v Lwane1966 (2) SA 433 (A).
Footnote - 31
31 See generally Conway v Rimmer 1968 1 All ER 874; Van der Linde v Calitz1967 (2) SA 239 (A).
31 See generally Conway v Rimmer 1968 1 All ER 874; Van der Linde v Calitz1967 (2) SA
239 (A).
Footnote - 32
32 Obviously, once the executive is aware of the issue and does not claim privilege, courts are
unlikely to disagree. Dennis The Law of Evidence 369 observes: "The courts should not be more
executive-minded than the executive, particularly where access to evidence, one of the ingredients of
the right to a fair trial, is concerned.''
32 Obviously, once the executive is aware of the issue and does not claim privilege, courts
are unlikely to disagree. Dennis The Law of Evidence 369 observes: "The courts should not be
more executive-minded than the executive, particularly where access to evidence, one of the
ingredients of the right to a fair trial, is concerned.''
Footnote - 33
33 See § 11.4.2 below.
33 See § 11.4.2 below.

Footnote - 34
34 See generally Beatson v Skene 2 LT 378 (as cited by Cahn Cockle's Cases and Statutes on
Evidence 6 ed (1938) 327).
34 See generally Beatson v Skene 2 LT 378 (as cited by Cahn Cockle's Cases and Statutes on
Evidence 6 ed (1938) 327).
Footnote - 35
35 Murphy A Practical Approach to Evidence 429 explains the difference between the two claims: "A
class claim is a claim to withhold all documents falling within a specifically described class, for
example minutes of Cabinet meetings. In this kind of claim, the actual contents of the documents are
irrelevant, and the claim is based on an invariable need for confidentiality of documents of the kind
described in the claim. The courts have regarded class claims relatively unfavourably, because of the
possibility of a blanket attempt to protect documents, many of which may be of a purely routine
nature… A contents claim is based on the contents of an individual document, and is more favourably
regarded because of the more specific justification provided to the court."
35 Murphy A Practical Approach to Evidence 429 explains the difference between the two
claims: "A class claim is a claim to withhold all documents falling within a specifically described
class, for example minutes of Cabinet meetings. In this kind of claim, the actual contents of the
documents are irrelevant, and the claim is based on an invariable need for confidentiality of
documents of the kind described in the claim. The courts have regarded class claims relatively
unfavourably, because of the possibility of a blanket attempt to protect documents, many of
which may be of a purely routine nature… A contents claim is based on the contents of an
individual document, and is more favourably regarded because of the more specific justification
provided to the court."
Footnote - 36
36 1968 1 All ER 874.
36 1968 1 All ER 874.
Footnote - 37
37 See generally Burmah Oil Co v Bank of England 1980 AC 1090; Air Canada v Secretary of State
and Trade 1983 2 AC 394.
37 See generally Burmah Oil Co v Bank of England 1980 AC 1090; Air Canada v Secretary of
State and Trade 1983 2 AC 394.
Footnote - 38
Footnote - 39
39 1994 2 All ER 588. However, according to Emson Evidence (1999) the government issued the
following statement in the House of Commons on 11 July 1997: "[P]ublic interest immunity will not be
asserted by the Government unless the relevant Minister believes that disclosure of a document or
piece of information will cause real damage to the public interest. The test will be applied rigorously.
Where public interest immunity applies, Ministers will nevertheless make voluntary disclosure if they
consider that the interests of justice outweigh the public interest in withholding the document or
information in question. In all cases, a Minister's claim for public interest immunity is subject to the
Court's power to order disclosure. The approach will be followed in both criminal and civil cases.''
39 1994 2 All ER 588. However, according to Emson Evidence (1999) the government issued
the following statement in the House of Commons on 11 July 1997: "[P]ublic interest immunity
will not be asserted by the Government unless the relevant Minister believes that disclosure of
a document or piece of information will cause real damage to the public interest. The test will
be applied rigorously. Where public interest immunity applies, Ministers will nevertheless make
voluntary disclosure if they consider that the interests of justice outweigh the public interest in
withholding the document or information in question. In all cases, a Minister's claim for public
interest immunity is subject to the Court's power to order disclosure. The approach will be
followed in both criminal and civil cases.''
Footnote - 40
40 The Law of Evidence 283 n 96. See further § 11.3.2 below. In SA a "judicial peep'' must be
exercised with caution. See South African Rugby Football Union v President of the Republic of South
Africa1998 (4) SA 296 (T) 302F.
40 The Law of Evidence 283 n 96. See further § 11.3.2 below. In SA a "judicial peep'' must be
exercised with caution. See South African Rugby Football Union v President of the Republic of
South Africa1998 (4) SA 296 (T) 302F.
Document 90 of 330
11.2 State privilege prior to constitutionalization

11.2.1 The decision in Van der Linde v Calitz 41
In this case (decided in 1967) the South African Appellate Division broke away
from the 1942 decision Duncan v Camell Laird and Co Ltd (see § 11.1.3 above) in
which the House of Lords had decided that ministerial objection, if taken in proper
form, was final and binding. Despite the fact the Appellate Division was
technically required, by the 30th May 1961 provision, to have followed Duncan, 42
it gave preference to the 1931 Privy Council decision Robinson v State of South
Australia (No 2) in which it was held that courts had a residual power to
determine — at least in class claims — whether executive objection had to be
upheld. The Appellate Division decision in Van der Linde was vindicated by the
House of Lords in Conway v Rimmer (as discussed in § 11.1.3 above) in which
judicial control over executive objection concerning non-security matters was
reasserted. According to Mathews "the common law in England and South Africa
was in the process of freeing itself from the deadening grip of … Duncan …" 44 But
in South Africa this healthy development was brought to an abrupt end by
legislation.
11.2.2 Legislative interference (1969 to 1996)

Van der Linde's case theoretically opened the door for a future finding that courts
should also have the final say in matters affecting national security. However, s
29 of the General Law Amendment Act 101 of 1969 effectively reversed Van der
Linde by bestowing on the executive "an absolute and unquestionable power" 45
to withhold evidence from a court of law if in the opinion of the executive the
disclosure of such evidence was "prejudicial to the interests of the State or public
security". 46 No reasons were required and the executive's certificate, if presented
in proper form by the appropriate minister or official, was conclusive. Academic
and judicial protest followed. 47 And after the decision in Geldenhuys v Pretorius
and the appointment of a commission of enquiry, 49 s 29 of Act 101 of 1969 was
amended by s 25 of the General Law Amendment Act 102 of 1972. This
amendment ousted the jurisdiction of the courts only where prejudice to national
security formed the basis of an assertion of state privilege by the executive. In
1982 the 1972 amendment was replaced by
3rd Ed, 2009 ch11-p163
s 66 of the Internal Security Act 74 of 1982. 50 This section re-affirmed that the
executive had the final say on matters affecting the security of the state, 51
whereas in non-security cases the courts retained their jurisdiction. 52 Section 66
of Act 74 of 1982 was repealed on 15 November 1996. 53
Footnote - 41
41 1967 (2) SA 239 (A).
41 1967 (2) SA 239 (A).
Footnote - 42
42 See § 3.5.1 above.
42 See § 3.5.1 above.
Footnote - 43
43 1931 AC 704.
43 1931 AC 704.
Footnote - 44
44 Law, Order and Liberty in South Africa (1971) 259.
44 Law, Order and Liberty in South Africa (1971) 259.
Footnote - 45
45 Hoffmann The South African Law of Evidence (1970) 445.
45 Hoffmann The South African Law of Evidence (1970) 445.
Footnote - 46
46 S 29(1) of Act 101 of 1969 (now repealed).
Footnote - 47
47 See generally Mathews Law, Order and Liberty in South Africa 258-9.
47 See generally Mathews Law, Order and Liberty in South Africa 258-9.
Footnote - 48
48 1971 (2) SA 277 (O). In this case s 29 of Act 101 of 1969 was interpreted restrictively. It was
held that s 29 only ousted the court's jurisdiction in matters concerning the safety of the state,
international relationships or high-level executive documents.
48 1971 (2) SA 277 (O). In this case s 29 of Act 101 of 1969 was interpreted restrictively. It
was held that s 29 only ousted the court's jurisdiction in matters concerning the safety of the
state, international relationships or high-level executive documents.
Footnote - 49
49 Report of the Commission of Enquiry into Matters Relating to the Security of the State (RP
102/1971). This commission was known as the Potgieter Commission. For a discussion of this
commissioner's recommendations concerning state privilege, see Van Niekerk, Van der Merwe & Van
Wyk Privilegies in die Bewysreg 245-47.
49 Report of the Commission of Enquiry into Matters Relating to the Security of the State (RP
102/1971). This commission was known as the Potgieter Commission. For a discussion of this
commissioner's recommendations concerning state privilege, see Van Niekerk, Van der Merwe
& Van Wyk Privilegies in die Bewysreg 245-47.
Footnote - 50
50 This Act was also preceded by a commission of enquiry, known as the Rabie Commission. In §
8.5.3.7 of its Report of the Commission of Enquiry into Security Legislation (RP 90/1981), the Rabie
Commission — like the Potgieter Commission — relied heavily on the following statement by lord
Parker in The Zamora 1916 2 AC 77: "Those who are responsible for the national security must be
the sole judges of what the national security requires.'' The result was that both Commissions
favoured the view that the executive should have the final say on matters affecting the security of
the state. See further Mathews Freedom, State Security and the Rule of Law — Dilemmas of the
Apartheid Society (1986) 177 for criticism of this approach.
50 This Act was also preceded by a commission of enquiry, known as the Rabie Commission.
In § 8.5.3.7 of its Report of the Commission of Enquiry into Security Legislation (RP 90/1981),
the Rabie Commission — like the Potgieter Commission — relied heavily on the following
statement by lord Parker in The Zamora 1916 2 AC 77: "Those who are responsible for the
national security must be the sole judges of what the national security requires.'' The result
was that both Commissions favoured the view that the executive should have the final say on
matters affecting the security of the state. See further Mathews Freedom, State Security and
the Rule of Law — Dilemmas of the Apartheid Society (1986) 177 for criticism of this approach.
Footnote - 51
Footnote - 52
Footnote - 53
53 By s 1 of the Safety Matters Rationalisation Act 90 of 1996 (as read with schedule 1 to this
Act.)
53 By s 1 of the Safety Matters Rationalisation Act 90 of 1996 (as read with schedule 1 to
this Act.)
Document 91 of 330
11.3 State Privilege after Constitutionalization

11.3.1 Impact of constitutional provisions
The repeal of s 66 of the Internal Security Act 74 of 1982 came in the wake of the
interim Constitution and some six months before the final Constitution came into
operation. Section 66(1) which ousted the courts' jurisdiction on matters affecting
state security, would in the light of the following constitutional provisions not
have withstood constitutional scrutiny: 54 s 165 which vests the judicial authority
in the courts and which confirms, in principle, that a separation of powers 55
cannot tolerate a situation where the executive can have the final say in matters
concerning the admissibility of evidence in courts of law; s 32 which provides for
the right of access to information held by the state; 56 s 34 which provides for
access to courts and a fair hearing; and s 35(3)(i) which provides that "[e]very
accused person has a right to a fair trial … which includes the right to adduce …
evidence."
It is submitted that the repeal of s 66 of the Internal Security Act 74 of 1982,
has had the following result: on matters of state privilege the Anglo-South African
common law as developed by our courts up to 1969 when legislative interference
commenced (see § 11.2.2 above), has been revived 57 except insofar as it must
3rd Ed, 2009 ch11-p164
be concluded that these common-law rules and procedures are in conflict with
constitutional provisions and cannot be saved as constitutionally permissible
limitations in terms of s 36(1) of the Constitution. In this process of establishing
constitutionally acceptable rules and procedure governing state privilege, it
should be borne in mind that s 39(2) of the Constitution determines that "when
developing the common law … every court must promote the spirit, purport and
objects of the Bill of Rights." And "[w]hen interpreting the Bill of Rights, a court …
must promote the values that underlie an open and democratic society based on
human dignity, equality and freedom … and may consider foreign law."
11.3.2 Devising a constitutional framework

In Swissborough Diamond Mines (Pty) Ltd & others v Government of the Republic
of South Africa & others Joffe J said: 58
"It is submitted, in the light of the Constitution and after an analysis of how the
issue of State privilege is dealt with in other jurisdictions, that claims of State
privilege should be approached in South Africa in the following manner:
1. The Court is not bound by the ipse dixit of any cabinet minister or bureaucrat
irrespective of whether the objection is taken to a class of documents or a
specific document and irrespective of whether it relates to matters of State
security, military operations, diplomatic relations, economic affairs, cabinet
meetings or any other matter affecting the public interest.
2. The Court is entitled to scrutinise the evidence in order to determine the
strength of the public interest affected and the extent to which the interests of
justice to a litigant might be harmed by its non-disclosure.
3. The Court has to balance the extent to which it is necessary to disclose the
evidence for the purpose of doing justice against the public interest in its non-
disclosure.
4. In this regard the onus should be on the State to show why it is necessary for
the information to remain hidden.
5. In a proper case the Court should call for oral evidence, in camera where
necessary, and should permit cross-examination of any witnesses or probe the
validity of the objection itself.
In view of the decision to which I have come it is not necessary to consider
this argument further. For purposes hereof I accept the approach set out
above."
The principles and procedures as identified in paragraphs 1 to 5 of the above
quotation, were formulated by Paizes and Zeffertt as principles and procedures
"characteristic of a society which has achieved an open and accountable
democratic order based on fairness and equality". 59 Paizes and Zeffertt also
formulated a sixth principle not referred to in the Swissborough-decision: 60
3rd Ed, 2009 ch11-p165

"[T]he onus borne by the state is widely regarded as being a heavy one which is not
discharged by vague appeals to considerations of candour or emotive reliance on
such things as 'national security' and 'diplomatic relations' (or both), but requires
the state to show (i) the likelihood (as opposed to the possibility) of particular (as
opposed to generic) injury; and (ii) that this injury is greater than that which would
be caused to the interests of justice by non-disclosure."
It is submitted that a further principle of procedure should be added to the ones
identified above: a court which has inspected a document in private (the so-called
"judicial peep"), should, where appropriate, consider partial disclosure of the
contents thereof 61 — especially where such partial disclosure creates no
distortion and can still effectively protect that which in the opinion of the court
cannot on account of public interest be disclosed. 62
Of ultimate and crucial importance, is the fact that courts of law should have
the final say. 63 In his critical analysis of the repealed legislation referred to in §
11.2.2 above, Mathews stated: 64
"The vital interests that are at issue in state privilege cases make it important that
the resolution of the conflict between the state, when it asserts privilege, and a
litigant who seeks access to the officially withheld information, should be under the
control of independent courts … [T]hese interests transcend those of the nominal
parties to the dispute and their importance demands a judicious weighing-up of the
respective claims of each in the context of relevant facts. The courts are best
equipped to balance the conflicting interests in a dispassionate and fair-minded way
and to decide in particular which interest should prevail."
Footnote - 54
54 See also generally Van Wyk et al (eds) Rights and Constitutionalism: The New South African
Legal Order (1994) 431.
54 See also generally Van Wyk et al (eds) Rights and Constitutionalism: The New South
African Legal Order (1994) 431.
Footnote - 55
55 For a discussion of the extent to which a separation of powers is recognised and entrenched in
the Constitution, see Currie & De Waal The Bill of Rights Handbook 5 ed (2005) 44-48.
55 For a discussion of the extent to which a separation of powers is recognised and

entrenched in the Constitution, see Currie & De Waal The Bill of Rights Handbook 5 ed (2005)
44-48.
Footnote - 56
56 See further §§ 11.6 to 11.6.2 below.
56 See further §§ 11.6 to 11.6.2 below.
Footnote - 57
57 This seems to be the clear implication of s 202 of the CPA and s 42 of the CPEA. In both these
sections reference is made to "thirtieth day of May 1961''. However, decisions after this date and in
which the common law as it stood on this date was interpreted, would also be relevant. Van der Linde
v Calitz supra — decided in 1967 — is a case in point. But this case must now be read subject to the
"constitutional framework'' as set out in § 11.3.2 below. The common-law position is as follows: a
court may of its own accord exclude evidence prejudicial to the public interest (see Van der Linde v
Calitz supra). In addition, it is open to the executive to object to the reception of such evidence, in
which case the responsible political head must make his objection in proper form (see Van der Linde v
Calitz supra 260). In order to make such objection the political head must either attend court in
person or submit an affidavit, from which it must appear that he has himself read and considered
each item of evidence in question and is of the opinion that the disclosure of this evidence would be
contrary to the public interest (see Van der Linde v Calitz supra 260). He should also give reasons for
his opinion as fully as is possible without defeating the purpose of the privilege (see Van der Linde v
Calitz supra 260). The political head may object to the reception of oral evidence as well as
documents, but he would probably have to state clearly in his affidavit what matters are considered
contrary to public policy, and his representative at the trial would have to object to specific questions
related to these matters. The effect of such an objection has been settled, after some uncertainty
(see Duncan v Cammell Laird and Co Ltd 1942 1 All ER 587), by the decisions in Van der Linde v
Calitz supra and Conway v Rimmer 1968 1 All ER 874. In the last two cases it was held that at
common law the courts have a residual power to overrule a properly tendered objection where they
are satisfied that the objection is unjustifiable or cannot be sustained on any reasonable grounds, and
that the court itself is in a position to examine the relevant evidence and reach a decision (see Van
der Linde v Calitz supra 260). In Van der Linde v Calitz supra 259 Steyn CJ warned, however, that
this residual power must be exercised with strict circumspection, and pointed out the gravity of
overruling an objection where the court is not normally aware of all the considerations on which the
political head's opinion is founded. If the court feels that the reasons for the opinion are not
sufficiently convincing, it may call upon him to elaborate on or clarify such reasons by way of either
oral evidence or a further affidavit (Van der Linde v Calitz supra 262). However, this case concerned
non-security matters and the Chief Justice expressly declined to state the position as regards the
court's power to inspect the documents and overrule an executive claim based on national security.
57 This seems to be the clear implication of s 202 of the CPA and s 42 of the CPEA. In both
these sections reference is made to "thirtieth day of May 1961''. However, decisions after this
date and in which the common law as it stood on this date was interpreted, would also be
relevant. Van der Linde v Calitz supra — decided in 1967 — is a case in point. But this case
must now be read subject to the "constitutional framework'' as set out in § 11.3.2 below. The
common-law position is as follows: a court may of its own accord exclude evidence prejudicial
to the public interest (see Van der Linde v Calitz supra). In addition, it is open to the executive
to object to the reception of such evidence, in which case the responsible political head must
make his objection in proper form (see Van der Linde v Calitz supra 260). In order to make
such objection the political head must either attend court in person or submit an affidavit, from
which it must appear that he has himself read and considered each item of evidence in
question and is of the opinion that the disclosure of this evidence would be contrary to the
public interest (see Van der Linde v Calitz supra 260). He should also give reasons for his
opinion as fully as is possible without defeating the purpose of the privilege (see Van der Linde
v Calitz supra 260). The political head may object to the reception of oral evidence as well as
documents, but he would probably have to state clearly in his affidavit what matters are
considered contrary to public policy, and his representative at the trial would have to object to
specific questions related to these matters. The effect of such an objection has been settled,
after some uncertainty (see Duncan v Cammell Laird and Co Ltd 1942 1 All ER 587), by the
decisions in Van der Linde v Calitz supra and Conway v Rimmer 1968 1 All ER 874. In the last
two cases it was held that at common law the courts have a residual power to overrule a
properly tendered objection where they are satisfied that the objection is unjustifiable or
cannot be sustained on any reasonable grounds, and that the court itself is in a position to
examine the relevant evidence and reach a decision (see Van der Linde v Calitz supra 260). In
Van der Linde v Calitz supra 259 Steyn CJ warned, however, that this residual power must be
exercised with strict circumspection, and pointed out the gravity of overruling an objection
where the court is not normally aware of all the considerations on which the political head's
opinion is founded. If the court feels that the reasons for the opinion are not sufficiently
convincing, it may call upon him to elaborate on or clarify such reasons by way of either oral
evidence or a further affidavit (Van der Linde v Calitz supra 262). However, this case
concerned non-security matters and the Chief Justice expressly declined to state the position
as regards the court's power to inspect the documents and overrule an executive claim based
on national security.
Footnote - 58
58 1999 (2) SA 279 (T) 343-4.
58 1999 (2) SA 279 (T) 343-4.
Footnote - 59
59 Paizes in Du Toit et al Commentary 23-44A. See also Zeffertt 1996 ASSAL 803 813.
59 Paizes in Du Toit et al Commentary 23-44A. See also Zeffertt 1996 ASSAL 803 813.
Footnote - 60
60 ibid.
60 ibid.
Footnote - 61
61 See § 11.1.3 (n 39) above.
61 See § 11.1.3 (n 39) above.
Footnote - 62
62 See generally Tapper Cross and Tapper on Evidence 518.
62 See generally Tapper Cross and Tapper on Evidence 518.
Footnote - 63
63 See generally Khala v The Minister of Safety and Security 1994 2 BCLR 89 (W) 105C-D.
63 See generally Khala v The Minister of Safety and Security 1994 2 BCLR 89 (W) 105C-D.
Footnote - 64
64 Freedom, State Security and the Rule of Law: Dilemmas of the Apartheid Society 176.
64 Freedom, State Security and the Rule of Law: Dilemmas of the Apartheid Society 176.
Document 92 of 330
11.4 The Detection of Crime

In order to promote the efficient detection of crime a privilege has arisen to
protect communications which would tend to reveal the identity of an informer or
which would otherwise expose the channels of communication in the investigaton
of a crime, such as communications between officials in the course of an
investigation. This privilege, being an aspect of state privilege, is governed by s
202 of the CPA, and accordingly rests for its authority on English law. The
rationale underlying this principle is reflected by the following remarks of
Solomon J: "The whole business of crime is conducted in secret and devious ways
against the interests of the state, and the work of defeating the operations of
criminals must also be conducted, obviously, by similar methods." 65
3rd Ed, 2009 ch11-p166
11.4.1 Communications tending to expose the methods used to

investigate crimes 66
In R v Abelson the accused was charged with contravening a Liquor Act. He called
as a witness the divisional criminal investigation officer for the Witwatersrand,
who, when asked to produce certain reports made to him by two detectives
concerning the charges, refused on the ground that such reports were
confidential. The court upheld the claim of privilege, holding that the disclosure of
the evidence would be contrary to public policy as it would lay bare to the public
the methods used by the police to control the liquor traffic. And in S v Peake,
where the police had used a tape recorder to record a conversation, the court
disallowed cross-examination relating to the manner in which the recording had
been obtained, even though the recording itself was admissible evidence. Of
course, in our present constitutionalized system courts will have to be careful to
ensure that any claim to privilege concerning methods of investigation is not
merely an attempt to cover up the fact that evidence was unconstitutionally
obtained. Evidence of conversations which were unlawfully recorded (and thus in
breach of the right to privacy) might have to be excluded in terms of s 35(5) of
the Constitution. 69
11.4.2 Communications tending to reveal the identity of an

informer 70
There are at least three reasons for the so-called "informer's privilege": (a) to
protect the informer and his family from those against whom he informs; (b) to
ensure that the informer can be used in future; and (c) to encourage the public to
come forward with information about crimes. The rule, accordingly, is that no
question may be asked and no document may be received in evidence that would
tend to reveal the identity of an informer or the content of the information
supplied by him,
3rd Ed, 2009 ch11-p167

and there is a duty on the court to ensure that this privilege is upheld regardless
of whether or not the parties to the litigation claim it. 71
After a period in our law when, owing to different procedures regarding
prosecutions in South Africa and England, our courts adopted a more stringent
practice of exclusion, it was settled in Ex parte Minister of Justice: Re R v Pillay
that the privilege should only operate 72
"… when public policy requires the name of the informer or his information to be
kept secret, because of some confidential relationship between the state and the
informer, or because the state desires its sources of information to be kept secret for
the reason that the informer's information relates to matters in respect of which he
might not inform if he were not protected, or for the reason that the candour and
completeness of his communications might be prejudiced if he were not protected,
or for some other good reason. To give a comprehensive definition which will include
all such cases would be impossible."
The Chief Justice then gave examples of instances where the rule could
appropriately be relaxed: (a) when it is material to the ends of justice; (b) if it is
necessary or right to do so to show the accused's innocence; and (c) when the
reason for secrecy no longer exists, for example, when the identity of the
informer is known. 73
It seems to have been a subject of controversy in our law whether this
privilege may be waived, and, if it can, in what circumstances. It has been held
that the protection afforded an informer is a matter of public policy and cannot be
waived. 74 This view was also taken by the court in Natal Fertilizers Ltd v Van
Dam, where Dove-Wilson JP held that the privilege would be upheld even if the
informer were willing to divulge his identity in the witness-box; he would "be
protected in spite of himself". And again, in Robinson v Benson and Simpson the
court emphasised that as the privilege did not pertain to the witness who was
called, but rested on public policy, the court was "absolutely prohibited" from
allowing such information to be disclosed. These views were, however, rejected
by the Appellate Division in R v Van Schalkwyk, where Stratford CJ approved the
following approach laid down by Tatham J in R v Harris: 78
3rd Ed, 2009 ch11-p168

"The rule protecting an informer is based upon the theory that public policy requires
his protection, because otherwise persons would be discouraged from giving
information, but it is difficult to see how public policy is served by prohibiting him
from himself disclosing the fact, indeed public interests would be ill-served in many
cases if there were any such rule."
An important qualification to this principle was added, however, by Tatham J and
endorsed in R v Van Schalkwyk: 79 if the dictates of public policy would require
that the identity of the informer be kept secret, then, provided this is shown by
the state, such evidence should be excluded notwithstanding the informer's
willingness to disclose his identity. 80
The informer's privilege should as a rule also apply for purposes of any civil
action which might stem from the police investigation. In Els v Minister of Safety
and Security — where the applicant sought disclosure of an informer's identity for
purposes of instituting a civil action — Kriek JP, in refusing the application on
several grounds, said: 81
"The effect of obliging the police to reveal the identity of the informer in this case
will probably have far-reaching effects. I accept that there will be cases in which it
will be in the public interest or in the interests of justice to order the disclosure of
the identity of an informer, but I consider that such orders should not be made
lightly. The informer system is one of the corner-stones of the battle against
organized crime, and when the identity of one informer is made known, other
informers, or would be informers … will desist from informing or reconsider their
positions as informers, not only to avoid retaliatory action, but also to avoid civil
actions being instituted against them."
The constitutionality of the informer's privilege in civil and criminal cases is
11.4.3 Extension of the informer's privilege

In the English case Blake and Austin v Director of Public Prosecutions the accused
were convicted of indecent behaviour in a church yard in contravention of s 2 of
Ecclesiastical Courts Jurisdiction Act of 1860. Two police officers had observed the
activities of the accused from an observation post in neighbouring domestic
premises. The court held that there was no reason why the precise location from
which the observation had been made had to be disclosed: there is no essential
difference between informers and the providers of observations posts, who both
in different ways provide the police with indispensable assistance in the
prevention of crime. There does not seem to be any South African decision on
this very point. There is, however, ample English authority to support the decision
in Blake and Austin v Director of Public Prosecutions. 83
3rd Ed, 2009 ch11-p169
It is submitted that these decisions should be followed in South Africa. After all, it
is nothing else but the practical combination of the informer's privilege and the
privilege which relates to police methods of investigation (see § 11.4.1 above).
11.4.4 The constitutionality of the informer's privilege 84
In McCray v Illinois an informer gave three police officers information that

someone (M) was dealing in drugs. The informer accompanied the police in their
vehicle to a street where M was talking to people. The informer pointed out M and
then left on foot. When M spotted the police vehicle he hurriedly disappeared
between two buildings. Two of the officers promptly arrested M on the basis that
they had probable cause for an arrest and search without a warrant. The informer
concerned was known to them as someone who had always furnished them with
accurate information on drug dealers. Heroin was found on M. At a preliminary
hearing defence counsel asked each of the officers to disclose the identity of the
informer. In both instances the prosecution objected successfully. M eventually
took the matter to the Supreme Court of the United States, claiming that his
constitutional right to due process had been violated and that he was given no
opportunity to confront and cross-examine the informer. The Supreme Court
rejected M's argument and pointed out that there was no due process violation if
the police had made the arrest and search in reliance upon facts furnished by an
informer whom they had reason to trust: nothing in due process requires that a
court must assume that the police were committing perjury. The informer was not
a material witness. The Supreme Court distinguished M's case from Roviaro v
United States, which was decided a decade earlier. In the latter case the Supreme
Court had confirmed that there could be no fixed rule as regards disclosure of the
identity of an informer. A balance must be struck between the public interest and
the right of the individual to prepare and present his defence. In Roviario v United
States Burton J held that where the disclosure of the informer's identity or
disclosure of the contents of his communications is relevant and helpful to the
accused, the privilege must be lifted. On the facts in Roviaro v United States it
was held that the trial court had erred in refusing disclosure of the identity of the
informer concerned. The informer was with the accused when the alleged crime
was committed and could have been a material witness on the issue whether the
accused had knowingly transported the drugs as charged.
The above two cases make it clear that the informer's privilege per se is not
unconstitutional, 87 but that the constitutional right to a fair trial must be
considered in deciding whether the privilege must give way. It is submitted that
this approach not merely confirms but also expands the common-law principles
which govern the relaxation of the informer's privilege and which were set out in
§ 11.4.2 above. It is also submitted that the broader impact of the Constitution
on the informer's
3rd Ed, 2009 ch11-p170
privilege was correctly put by Kriek JP in Els v Minister of Safety and Security
where he said that 88
"the advent of the new Constitution should not, in the public interest, have the effect
of watering down the informer privilege to any significant extent, even though it
does vest in the courts a wider discretion to enforce disclosure of the identity of
informers than they previously had … [E]ven though appellant denies … ever having
possessed counterfeit money there is nothing in the papers to suggest that the
informer was 'mendacious and malicious', or that the police had any reason to
suspect that he was … In any event, the opportunity which the applicant will have of
exercising and protecting his rights, and of being awarded damages (which he may
or may not recover) if the identity of the informer is disclosed, cannot in my view be
of greater public importance than the protection, insofar as is legally permissible, of
the privilege attaching to informers, and this, in my view, is a case in which it ought
to be protected."
11.4.5 Examples of statutes that exclude evidence of the identity

of persons who have a statutory duty to report
11.4.5.1 Section 38(3) of the Financial Intelligence Centre Act 38 of
2001 (FICA)
This subsection provides as follows:
"No evidence concerning the identity of a person who has made, initiated or
contributed to a report in terms of sections 28, 29 or 31 or who has furnished
additional information concerning such a report or the grounds for such a report in
terms of a provision of this Part, or the contents or nature of such additional
information or grounds, is admissible as evidence in criminal proceedings unless that
person testifies at those proceedings."
The sections referred to in 38(3) of FICA cover the following financial activities:
cash transactions above prescribed limit (s 28); suspicious and unusual
transactions (s 29) and conveyance of cash to or from South Africa (s 31). It
should be noted that protection of identity is in terms of s 38(3) confined to
criminal proceedings and also ceases to exist should the person concerned testify
at these proceedings. However, s 38(2) of FICA also provides that the person
concerned "is competent, but not compellable, to give evidence in criminal
proceedings arising from the report" (see also n 7 to § 22.2 below).
11.4.5.2 Section 17(9) of the Protection of Constitutional Democracy

against Terrorist and Related Activities Act 33 of 2004
This subsection provides as follows:
"No evidence concerning the identity of a person who has made, initiated or
contributed to a report in terms of section 12(1) concerning a suspicion that any
other person intends to commit or has committed an offence referred to in section 4,
is admissible as evidence in criminal proceedings unless that person testifies at
those proceedings."
Section 4 of Act 33 of 2004 creates offences connected with financing of certain
offences. And s 12(1) requires an individual to report certain criminal conduct as
identified in the Act. In terms of s 17(9) the protection of identity only applies for
purposes of criminal proceedings and falls away should the individual be a witness
at such proceedings. However, the individual concerned is in terms of s 17(8) a
competent but not compellable witness (see n 7 to § 22.2 below).
3rd Ed, 2009 ch11-p171
Footnote - 65
65 R v Abelson 1933 TPD 227 231. One of the most important English decisions in this regard is
Marks v Beyfus 1890 25 QBD 494.
65 R v Abelson 1933 TPD 227 231. One of the most important English decisions in this regard
is Marks v Beyfus 1890 25 QBD 494.
Footnote - 66
66 See also generally Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 270-4.
At 271 the authors point out that the purpose of the privilege which arises in this regard is not to
protect the police, but to ensure that their sources of information concerning crime and their
methods of investigation are protected: "Die reg moet enersyds sorg dra dat die polisie nie hul
funksies en aktiwiteite verrig op 'n heimlike wyse wat nadelig kan wees vir die breër belange van die
regspleging nie, maar andersyds dat hulle in die uitvoering van hul pligte nie só gekortwiek word dat
die breër belange van die regspleging benadeel word nie.''
66 See also generally Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg
270-4. At 271 the authors point out that the purpose of the privilege which arises in this regard
is not to protect the police, but to ensure that their sources of information concerning crime
and their methods of investigation are protected: "Die reg moet enersyds sorg dra dat die
polisie nie hul funksies en aktiwiteite verrig op 'n heimlike wyse wat nadelig kan wees vir die
breër belange van die regspleging nie, maar andersyds dat hulle in die uitvoering van hul pligte
nie só gekortwiek word dat die breër belange van die regspleging benadeel word nie.''
Footnote - 67
67 1933 TPD 227.
67 1933 TPD 227.
Footnote - 68
68 1962 (4) SA 288 (C).
68 1962 (4) SA 288 (C).
Footnote - 69
69 See generally ch 12 below.
69 See generally ch 12 below.
Footnote - 70
70 Who is an "informer'' for purposes of this privilege? In R v Van Schalkwyk1938 AD 543 548
Stratford CJ observed that while no definition has been authoritatively laid down in the English
cases, these cases "seem to lay down that any person who gives information to the authorities of
the commission of a crime, or information which leads to the detection of a crime, is one who, in the
public interest, ought to be protected. In other words, anyone who gives useful information about
the commission of a crime and needs protection against those who may suffer from his disclosures,
should get that protection so as to encourage these disclosures''. Accordingly, not every person who
makes a statement to the police in connection with a prosecution may claim this privilege, but only
informers properly so called, whose identity must be kept secret in the public interest (Scheepers v
S 1971 2 PH H101 (NC)). A person who has laid a charge is normally regarded as an informer (R v
Olifant 1937 2 PH H191 (T)), except where he is the complainant in a charge relating to the person
or property of an individual, in which case he would not need encouragement to lodge his complaint
(Naylor v Wheeler1947 (2) SA 681 (D)). For the same reason, a person interrogated by the police
when the accused has already been arrested is not an informer (Attorney-General v Van Wyk 1932
TPD 359 361). A policeman is not ordinarily an informer, as he requires no encouragement to
disclose information (Suliman v Hansa supra); this may not be true, however, of a policeman who
operates secretly or in disguise in order to procure information.
70 Who is an "informer'' for purposes of this privilege? In R v Van Schalkwyk1938 AD 543
548 Stratford CJ observed that while no definition has been authoritatively laid down in the
English cases, these cases "seem to lay down that any person who gives information to the
authorities of the commission of a crime, or information which leads to the detection of a
crime, is one who, in the public interest, ought to be protected. In other words, anyone who
gives useful information about the commission of a crime and needs protection against those
who may suffer from his disclosures, should get that protection so as to encourage these
disclosures''. Accordingly, not every person who makes a statement to the police in connection
with a prosecution may claim this privilege, but only informers properly so called, whose
identity must be kept secret in the public interest (Scheepers v S 1971 2 PH H101 (NC)). A
person who has laid a charge is normally regarded as an informer (R v Olifant 1937 2 PH H191
(T)), except where he is the complainant in a charge relating to the person or property of an
individual, in which case he would not need encouragement to lodge his complaint (Naylor v
Wheeler1947 (2) SA 681 (D)). For the same reason, a person interrogated by the police when
the accused has already been arrested is not an informer (Attorney-General v Van Wyk 1932
TPD 359 361). A policeman is not ordinarily an informer, as he requires no encouragement to
disclose information (Suliman v Hansa supra); this may not be true, however, of a policeman
who operates secretly or in disguise in order to procure information.
Footnote - 71
71 Tranter v Attorney-General and the First Criminal Magistrate of Johannesburg 1907 TS 415; Van
Wyk in Ferreira Strafproses in die Laer Howe 2ed (1979) 493. In Swanepoel v Minister van Veiligheid
en Sekuriteit1999 (2) SACR 284 (T) it was held that an informer has a substantive right to non-
divulgement of his identity, particularly where the informer had specifically requested anonymity.
Unlawful, malicious and intentional disclosure of the identity of an informer to suspects, therefore
disclosed a cause of action. In this case the court also stated (at 287d-e) that "onderhewig aan die
openbare belang, kan die beriggewer die privilegie opeis [en is die] beriggewer … selfs teenoor die
Staat geregtig om die privilegie op te eis". See further S v Rossouw en 'n ander1973 (4) SA 608
(SWA) 613G-H en S v Nieuwoudt (4)1985 (4) SA 519 (C) 522B.
71 Tranter v Attorney-General and the First Criminal Magistrate of Johannesburg 1907 TS

415; Van Wyk in Ferreira Strafproses in die Laer Howe 2ed (1979) 493. In Swanepoel v
Minister van Veiligheid en Sekuriteit1999 (2) SACR 284 (T) it was held that an informer has a
substantive right to non-divulgement of his identity, particularly where the informer had
specifically requested anonymity. Unlawful, malicious and intentional disclosure of the identity
of an informer to suspects, therefore disclosed a cause of action. In this case the court also
stated (at 287d-e) that "onderhewig aan die openbare belang, kan die beriggewer die privilegie
opeis [en is die] beriggewer … selfs teenoor die Staat geregtig om die privilegie op te eis". See
further S v Rossouw en 'n ander1973 (4) SA 608 (SWA) 613G-H en S v Nieuwoudt (4)1985 (4)
SA 519 (C) 522B.
Footnote - 72
72 1945 AD 653 658.
72 1945 AD 653 658.
Footnote - 73
73 See also R v Van Schalkwyk1938 AD 543. The scope of the privilege was considered further in
Suliman v Hansa1971 (4) SA 69 (D). Fannin J approved and applied the views of Wigmore para
2285 that the following four fundamental conditions must be satisfied to establish the privilege: "(1)
The communications must originate in a confidence that they will not be disclosed; (2) This element
of confidentiality must be essential to the full and satisfactory maintenance of the relation between
the parties; (3) The relation must be one which in the opinion of the community ought to be
sedulously fostered; and (4) The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the correct disposal of
litigation.''
73 See also R v Van Schalkwyk1938 AD 543. The scope of the privilege was considered
further in Suliman v Hansa1971 (4) SA 69 (D). Fannin J approved and applied the views of
Wigmore para 2285 that the following four fundamental conditions must be satisfied to
establish the privilege: "(1) The communications must originate in a confidence that they will
not be disclosed; (2) This element of confidentiality must be essential to the full and
satisfactory maintenance of the relation between the parties; (3) The relation must be one
which in the opinion of the community ought to be sedulously fostered; and (4) The injury that
would inure to the relation by the disclosure of the communications must be greater than the
benefit thereby gained for the correct disposal of litigation.''
Footnote - 74
74 R v Olifant 1937 2 PH H191 (T). Cf generally S v Rossouw en 'n ander1973 (4) SA 608 (SWA).
74 R v Olifant 1937 2 PH H191 (T). Cf generally S v Rossouw en 'n ander1973 (4) SA 608
(SWA).
Footnote - 75
75 1922 NPD 157 162.
75 1922 NPD 157 162.
Footnote - 76
76 1918 WLD 14-5.
76 1918 WLD 14-5.
Footnote - 77
77 1938 AD 543 553-5.
77 1938 AD 543 553-5.
Footnote - 78
78 1927 NPD 330 345.
78 1927 NPD 330 345.
Footnote - 79
79 Supra 554-5.
79 Supra 554-5.
Footnote - 80
Footnote - 81
81 1998 (2) SACR 93 (NC) 100j-101c (emphasis added). See also Marais v Lombard1958 (4) SA
224 (E) 231A and Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 266-7.
81 1998 (2) SACR 93 (NC) 100j-101c (emphasis added). See also Marais v Lombard1958 (4)
SA 224 (E) 231A and Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 266-
7.
Footnote - 82
82 1993 Crim LR 283.
82 1993 Crim LR 283.
Footnote - 83
83 See generally R v Rankine 1986 Crim LR 464; R v Brown & Daley 1988 Crim LR 426; R v
Johnson 1988 Crim LR 831, where certain guidelines were provided to police in obtaining
observation posts; R v Hewitt & Davis 1992 Crim LR 650. In a commentary on the latter case DJB
1992 Crim LR 651 remarked as follows: "Two grounds are given for the rule about informers: first,
the need to secure the informer's own safety, and secondly the desire to ensure that the supply of
information does not dry up (see eg Hennessey (1978) 68 Cr App R 419). Both apply equally to the
supplier of an observation post: in fact it could be argued that the need for protection on both
grounds is greater, as (a) the supplier of an observation post may be an easier target for retaliation,
particularly if it is the supplier's own home which has been used, and (b) where the need is to police
a particular locality where crime is rife, the loss of an observation post may be an irreparable blow."
83 See generally R v Rankine 1986 Crim LR 464; R v Brown & Daley 1988 Crim LR 426; R v
Johnson 1988 Crim LR 831, where certain guidelines were provided to police in obtaining
observation posts; R v Hewitt & Davis 1992 Crim LR 650. In a commentary on the latter case
DJB 1992 Crim LR 651 remarked as follows: "Two grounds are given for the rule about
informers: first, the need to secure the informer's own safety, and secondly the desire to
ensure that the supply of information does not dry up (see eg Hennessey (1978) 68 Cr App R
419). Both apply equally to the supplier of an observation post: in fact it could be argued that
the need for protection on both grounds is greater, as (a) the supplier of an observation post
may be an easier target for retaliation, particularly if it is the supplier's own home which has
been used, and (b) where the need is to police a particular locality where crime is rife, the loss
of an observation post may be an irreparable blow."
Footnote - 84
84 See generally Van der Merwe 1998 Stell LR 297.
84 See generally Van der Merwe 1998 Stell LR 297.
Footnote - 85
85 386 US 300 (1967).
85 386 US 300 (1967).
Footnote - 86
86 353 US 53 (1957).
86 353 US 53 (1957).
Footnote - 87
87 This is also the clear implication of Shabalala v Attorney-General of Transvaal & another1995
(2) SACR 761 (CC) para [72] (sub-para 5). See § 11.5 below.
87 This is also the clear implication of Shabalala v Attorney-General of Transvaal &

another1995 (2) SACR 761 (CC) para [72] (sub-para 5). See § 11.5 below.
Footnote - 88
88 1998 (2) SACR 93 (NC) 101c-h (emphasis added).
88 1998 (2) SACR 93 (NC) 101c-h (emphasis added).
Document 93 of 330
11.5 The Police Docket and Constitutional Provisions

11.5.1 Access for purposes of trial
Prior to constitutionalization it was generally accepted that the state had some
kind of "blanket docket privilege" in terms of which statements obtained for
purposes of a criminal trial were as a rule privileged from disclosure 89 in much
the same way as parties in a civil dispute can claim privilege in respect of
statements obtained from their respective witnesses. 90
The prosecution's so-called docket privilege which, as will be shown, has now
shrunk drastically on account of constitutional provisions was and is not really
part of "state privilege" in the true sense of the word. In this work, however, it is
dealt with in the context of state privilege because matters which fall under state
privilege (the informer's privilege, state secrets, police methods of investigation)
are now for all practical purposes the main (but most certainly not sole) grounds
upon which the state can seek to withhold statements in the police docket. In the
past all statements — other than a statement obtained from the accused 91 and
certain documents such as an identification parade form 92 — could have been
withheld simply because these statements were obtained for purposes of the
criminal trial. 93 The "blanket docket privilege" — sometimes also referred to as
"witness statement privilege" — did not survive chapter 3 of the interim
Constitution: it conflicted with the provisions of ss 23 94 and 25(3) 95 of the
interim Constitution. After a spate of conflicting Supreme Court decisions and
several academic opinions, 96 the Constitutional Court finally resolved the matter
in Shabalala v Attorney-General of Transvaal & another and made an order
declaring that: 97
"1. The 'blanket docket privilege' expressed by the rule in R v Steyn1954 (1) SA
324 (A) is inconsistent with the Constitution to the extent to which it protects
from disclosure all the documents in a police docket, in all circumstances,
regardless as to whether or not such disclosure is justified for the purposes of
enabling the accused properly to exercise his or her right to a fair trial in
terms of s 25(3).
2. The claim of the accused for access to documents in the police docket cannot
be defeated merely on the grounds that such contents are protected by a
blanket privilege in terms of the decision in Steyn's case.
3rd Ed, 2009 ch11-p172

3. Ordinarily an accused person should be entitled to have access to documents in
the police docket which are exculpatory (or which are prima facie likely to be
helpful to the defence) unless, in very rare cases, the State is able to justify
the refusal of such access on the grounds that it is not justified for the
purposes of a fair trial.
4. Ordinarily the right to a fair trial would include access to the statements of
witnesses (whether or not the State intends to call such witnesses) and such
of the contents of a police docket as are relevant in order to enable an
accused person properly to exercise that right, but the prosecution may, in a
particular case, be able to justify the denial of such access on the grounds that
it is not justified for the purposes of a fair trial. This would depend on the
circumstances of each case.
5. The State is entitled to resist a claim by the accused for access to any
particular document in the police docket on the grounds that such access is
not justified for the purposes of enabling the accused properly to exercise his
or her right to a fair trial or on the ground that it has reason to believe that
there is a reasonable risk that access to the relevant document would lead to
the disclosure of the identity of an informer or State secrets or on the grounds
that there was a reasonable risk that such disclosure might lead to the
intimidation of witnesses or otherwise prejudice the proper ends of justice.
6. Even where the State has satisfied the court that the denial of access to the
relevant documents is justified on the grounds set out in paragraph 5 hereof,
it does not follow that access to such statements, either then or subsequently,
must necessarily be denied to the accused. The court still retains a discretion.
It should balance the degree of risk involved in attracting the potential
prejudicial consequences for the proper ends of justice referred to in
paragraph 5 (if such access is permitted) against the degree of the risk that a
fair trial may not ensure for the accused (if such access is denied). A ruling by
the court pursuant to this paragraph shall be an interlocutory ruling subject to
further amendment, review or recall in the light of circumstances disclosed by
the further course of the trial."
An important point to note in respect of the above Constitutional Court order is
that it also fully accommodated s 22 of the interim Constitution and s 34 of the
Constitution, that is, the fundamental right to have justiciable disputes settled by
a court of law. The court can now in all cases decide on the issue of disclosure —
and it must exercise this discretion in the context of the constitutional right of the
accused to a fair trial and such legitimate claims that the state may have, for
example, state privilege and protection of witnesses from possible intimidation.
The right to have access to information did not form the basis of the decision.
11.5.1.1 Disclosure of contents not the equivalent of further particulars

to the charge
In terms of s 87 of the CPA the defence may request — and the court may order
— that further particulars of the charge be furnished by the state before any
evidence is led. 98 The state is bound by such further particulars and "the trial
shall proceed as if the charge [has] been amended in conformity with such
particulars." 99 However, it has been held that the state's disclosure of the
contents of the police docket to the defence, does not amount to the furnishing of
further particulars as envisaged in terms of s 87 100 — not even where the
defence has incorrectly relied on s 87 in requesting and obtaining access to the
police
3rd Ed, 2009 ch11-p173
docket 101 (see § 11.5.1.5 below). The contents of the police docket therefore do
not bind the state as far as its allegations in the charge are concerned. 102 This
approach is not inconsistent with the Constitutional Court's decision in Shabalala
(as set out in § 11.5.1 above). In Shabalala it was neither held nor implied that
disclosure of the contents of the police docket should have the binding effect of
further particulars as envisaged by s 87 of the CPA. The abolition of the blanket
docket privilege was necessary to protect the constitutional right to a fair trial
(giving the defence advance notice of the factual allegations the state would seek
to prove, enabling it to take proper instructions from the accused and to prepare
for cross-examination).
11.5.1.2 Information which only becomes available after commencement

of the trial
Late disclosure of information to the defence on account of the fact that a state
witness came forward (or a document was discovered) only after the
commencement of the trial, would normally not preclude the state from calling
this witness (or using the document). 103 It is only if the "late evidence" would
result in an unfair trial, that exclusion on that ground alone would be justified. 104
11.5.1.3 The position of the undefended accused

Accused persons are entitled to be informed by the court of their right to have
access to the contents of the police docket. 105 But the court's failure to do so, is
not necessarily a fatal irregularity vitiating the proceedings. 106
11.5.1.4 Position of suspects

Suspects who are asked by investigating officials to respond to allegations based
on information contained in the police docket, are not entitled to have access to
the docket. 107 At this investigative stage they do not (yet)
3rd Ed, 2009 ch11-p174
have the status of an accused that can rely on Shabalala's abolition of the docket
privilege. 108
11.5.1.5 Further procedural and evidential matters

A request for further particulars in terms of s 87 of the CPA (see § 11.5.1.1
above) is not the correct method of obtaining access to information to the police
docket. 109 Access to the docket should be requested by way of a written notice
to the prosecution. 110 There is no legislation that prescribes the procedure. In
practice an oral request and a positive response from the state have become the
norm. In the event of a dispute, the court must be asked for a directive. 111 For
this purpose the court may inspect the relevant documents and statements in the
docket (the so-called "judicial peep" as referred to in § 11.3.2 above) and, if
necessary, also hear oral evidence. 112 If appropriate, a trial within a trial (see
generally § 16.7.4 below) may be held. 113 The state must satisfy the court that
its refusal is justified. 114 But even if it were to do so, the court retains a
discretion. 115 The court should balance the degree of the risks of disclosure
against "the degree of the risk that a fair trial may not ensue for the accused … if
… access is denied …" 116 The court's decision to refuse access is interlocutory,
and may therefore be reversed by the court itself should further circumstances
come to light in the course of the trial. 117
11.5.1.6 Cross-examination on the basis of the state witness' statement

The defence may, of course, use a state witness' statement, obtained in terms of
Shabalala (see § 11.5 above), for purposes of cross-examination, for example, to
point out discrepancies. However, cross-examination of this nature remains
subject to the rules of evidence and the admissibility of statements. It must, for
example, be proved (in compliance with the rule as set out in § 25.4 below) that
the statement concerned was indeed properly deposed to by the witness. 118
Furthermore, whilst statements of persons who have not yet testified may be
provisionally used in cross-examining a witness, such a course may not be
followed unless it appears that those other persons will indeed be called as either
state or defence witnesses. 119 It follows that statements obtained in terms of
Shabalala do not have any special status as regards admissibility.
11.5.1.7 Abolition of the blanket docket privilege: defence interviews

with (potential) state witnesses
Closely linked to — and almost a natural or inevitable extension of —
3rd Ed, 2009 ch11-p175
the former "blanket docket privilege"', was the ethical rule of practice that the
defence could not without the consent of the prosecution have had interviews
with (potential) state witnesses. 120 In Shabalala v Attorney-General of Transvaal
& another the Constitutional Court also addressed this matter by making the
following order: 121
"1. Insofar and to the extent that the rule of practice pertaining to the right of an
accused or his legal representative to consult with witnesses for the State
prohibits such consultation without the permission of the prosecuting
authority, in all cases and regardless of the circumstances, it is not consistent
with the Constitution.
2. An accused person has a right to consult a State witness without prior
permission of the prosecuting authority in circumstances where his or her
right to a fair trial would be impaired, if, on the special facts of a particular
case, the accused cannot properly obtain a fair trial without such consultation.
3. The accused or his or her legal representative should in such circumstances
approach the Attorney-General or an official authorised by the Attorney-
General for consent to hold such consultation. If such consent is granted the
Attorney-General or such official shall be entitled to be present at such
consultation and to record what transpires during the consultation. If the
consent of the Attorney-General is refused the accused shall be entitled to
approach the court for such permission to consult the relevant witness.
4. The right referred to in paragraph 2 does not entitle an accused person to
compel such consultation with a State witness:
(a) if such State witness declines to be so consulted; or
(b) if it is established on behalf of the State that it has reasonable grounds to
believe such consultation might lead to the intimidation of the witness
or a tampering with his or her evidence or that it might lead to the
disclosure of State secrets or the identity of informers or that it might
otherwise prejudice the proper ends of justice.
5. Even in the circumstances referred to in paragraph 4(b), the court may, in the
circumstances of a particular case, exercise a discretion to permit such
consultation in the interest of justice subject to suitable safeguards."
Once again, it should be noted that the ultimate power to regulate the matter is
in the hands of the court. The constitutional right to a fair trial governs the issue;
and the constitutional right to have access to information held by the state was
not the basis of the Constitutional Court's decision.
11.5.2 Access for purposes of a bail application

In § 11.5.1 above it was pointed out that in Shabalala v Attorney-General of
Transvaal & another the Constitutional Court held that an accused's claim to have
access to material in the police docket, could not be rejected merely on the
grounds that such material is protected by a blanket privilege in terms of the
decision in R v Steyn. Unfortunately, Shabalala gave rise to the erroneous
perception that the defence had extensive rights of access even at the bail stage
(as opposed to access for purposes of a fair trial). Legislation became necessary
to ensure that premature disclosure could be prevented. Section 60(14) of the
CPA provides that "[n]otwithstanding anything to the contrary contained in any
law, no accused shall, for the purposes of bail proceedings, have access to any
information, record or document relating to the offence in question, which is
3rd Ed, 2009 ch11-p176
contained in or forms part of a police docket … unless the prosecutor otherwise

directs …" There is also a proviso to the effect that this subsection "shall not be
construed as denying an accused access to any information, record or document
to which he … may be entitled for purposes of his … trial". 124 This proviso was
necessary to ensure that s 60(14) would not be in conflict with the decision in
Shabalala.
11.5.2.1 Constitutional validity of s 60(14) of the CPA

The constitutional validity of that part of s 60(14) which empowers a prosecutor
to deny a bail applicant access to the contents of the police docket, was
confirmed in S v Dlamini; S v Dladla; S v Joubert; S v Schietekat. 125 The
Constitutional Court, however, noted that s 60(14) should not be read as
sanctioning a flat refusal on the part of the prosecution to divulge any information
relating to the pending charge(s) against a bail applicant. And it was also
suggested that a court may very well have to order the prosecution to lift the veil
in order to give a bail applicant a reasonable opportunity as required by s 60(11)
of the CPA, a section which places the burden of proof on a bail applicant in
certain circumstances. It has been held that s 60(14) vests a discretion — but not
an unfettered discretion — in the prosecution to refuse to disclose information in
the docket. 126
11.5.2.2 Duty and power of court to order state to disclose

Factual circumstances in a bail application may be such that a court must, on the
basis of s 60(3) 127 and 60(10) 128 of the CPA, order the state to grant the bail
applicant access to some information contained in the police docket. In S v Green
Farlam JA held: 129
"It is clear from s 60(10) that the court's function in a bail application is intended to
be more proactive than in normal criminal proceedings. On a proper consideration of
the case on which the State relied, any reasonable court must have concluded that it
lacked reliable and important information necessary to reach a decision,
notwithstanding that such information was apparently readily available. In such
circumstances the court has no discretion but to invoke s 60(3). In my view, the
magistrate should, instead of refusing bail without more, have ordered the State to
grant the defence access to the video tapes and any statements made by the police
fingerprint experts, linking the fingerprints of either of the appellants with the crime,
with the decision on whether or not to grant bail to be made thereafter."
11.5.2.3 Sections 60(14) and 335 of the CPA

It can be argued that despite the fact that s 60(14) applies "[n]otwithstanding
anything to the contrary contained in any law", a prosecutor should as a rule
permit a bail applicant to have access to a copy of a statement falling within the
ambit of s 335 of the CPA. Section 335 provides that
3rd Ed, 2009 ch11-p177
whenever a person has in relation to any matter made to a peace officer a

statement in writing — or a statement which was reduced to writing — and
criminal proceedings are thereafter instituted against such person in connection
with that matter, the person in possession of such statement shall furnish the
person who made the statement, at his request, with a copy of such statement. It
can be said that in terms of s 34 of the Constitution, a bail applicant has a
constitutional right to a fair bail hearing and that access to his s 335-statement is
necessary to secure such a hearing. Access to a s 335-statement ensures that
there is "equality of arms": the prosecution's bail witnesses can peruse their
statements in the docket prior to their testifying; a bail applicant should enjoy a
similar right by perusing his s 335-statement. The prosecution's bail witnesses
can in the witness-box refresh their memories with reference to their earlier
statements; a bail applicant should enjoy a similar opportunity by having access
to his s 335-statement. Obviously, at a bail application the fairness or otherwise
of the trial is not the issue. A bail application concerns the qualified right of an
arrestee, under s 35(1) of the Constitution, to be released if the interests of
justice permit. Bail applications also cannot be classified as criminal proceedings.
However, the fact that a bail applicant is not an accused who would be entitled to
all constitutional "fair trial" rights, is no ground for depriving a bail applicant of
access to his s 335-statement. One of the purposes of s 60(14) of the CPA is to
ensure that accused persons are not prematurely put in a position where they can
look over the prosecution's shoulder as the police investigation runs its course. It
is hardly possible to argue that a bail applicant's access to his s 335-statement
would have this improper effect. Access to a s 335-statement makes an important
contribution to a fair bail hearing.
11.5.2.4 Ethical duty of prosecutor

It is, furthermore, submitted that there is at least one special situation where a
prosecutor who has decided to rely on s 60(14) in withholding the contents of the
police docket from a bail applicant, will on the grounds of legal ethics be
compelled to reverse his decision. This situation will arise where there is a
material discrepancy between the oral evidence of a state witness at the bail
proceedings and his written statement contained in the police docket. A bail
applicant's constitutional right to a fair bail hearing will be frustrated where a
prosecutor suppresses the discrepancy by withholding the relevant written
statement on account of the provisions of s 60(14). 130
Footnote - 89
89 R v Steyn1954 (1) SA 324 (A); Van Niekerk, Van der Merwe & Van Wyk Privilegies in die
Bewysreg 219-36.
89 R v Steyn1954 (1) SA 324 (A); Van Niekerk, Van der Merwe & Van Wyk Privilegies in die
Bewysreg 219-36.
Footnote - 90
90 See generally S v Yengeni & others1990 (1) SACR 639 (C) and International Tobacco Co (SA)
Ltd v United Tobacco Co (South) Ltd (2)1953 (3) SA 879 (W).
90 See generally S v Yengeni & others1990 (1) SACR 639 (C) and International Tobacco Co
(SA) Ltd v United Tobacco Co (South) Ltd (2)1953 (3) SA 879 (W).
Footnote - 91
91 See s 335 of the CPA. See also S v Mpetha (1)1982 (2) SA 253 (C) 259F.
91 See s 335 of the CPA. See also S v Mpetha (1)1982 (2) SA 253 (C) 259F.
Footnote - 92
92 S v Jija1991 (2) SA 52 (E).
92 S v Jija1991 (2) SA 52 (E).
Footnote - 93
93 S v B1980 (2) SA 964 (A).
93 S v B1980 (2) SA 964 (A).
Footnote - 94
94 Section 23 of the Interim Constitution provided as follows: "Every person shall have the right of
access to all information held by the state or any of its organs at any level of government in so far as
such information is required for the exercise or protection of any of his or her rights.'' This section
was relied on in several Supreme Court decisions in which it was held that statements of state
witnesses had to be handed over to the defence. These cases appear in n 52 of the Constitutional
Court judgment in Shabalala v Attorney-General of Transvaal & another1995 (2) SACR 761 (CC) 775.
Section 23 was replaced by s 32 of the Constitution (as read with Schedule 6 to the Constitution).
94 Section 23 of the Interim Constitution provided as follows: "Every person shall have the
right of access to all information held by the state or any of its organs at any level of
government in so far as such information is required for the exercise or protection of any of his
or her rights.'' This section was relied on in several Supreme Court decisions in which it was
held that statements of state witnesses had to be handed over to the defence. These cases
appear in n 52 of the Constitutional Court judgment in Shabalala v Attorney-General of
Transvaal & another1995 (2) SACR 761 (CC) 775. Section 23 was replaced by s 32 of the
Constitution (as read with Schedule 6 to the Constitution).
Footnote - 95
95 This section provided for the right to a fair trial. See now ss 34 and 35(3) of the Constitution.
95 This section provided for the right to a fair trial. See now ss 34 and 35(3) of the
Constitution.
Footnote - 96
96 See, eg Schwikkard 1994 SACJ 323; Du Plessis 1994 SACJ 295; Meintjies-Van der Walt 1995
SACJ 127.
96 See, eg Schwikkard 1994 SACJ 323; Du Plessis 1994 SACJ 295; Meintjies-Van der Walt
1995 SACJ 127.
Footnote - 97
97 Supra para [72] 790c-791b. The Constitutional Court did not rely on s 23, but on the right to a
fair trial contained in s 25(3). See para [34] of the judgment. See now s 35(3) of the Constitution.
See further S v Smile1998 (1) SACR 688 (SCA); Rowe and Davis v UK (2000) 30 EHRR 1; R v
Stinchcombe 1992 LRC (Crim) 68; S v Scholtz1996 (2) SACR 426 (NmS) 442f-h; Molapo v Director of
Public Prosecutions 1997 (8) BCLR 1154 (Lesotho).
97 Supra para [72] 790c-791b. The Constitutional Court did not rely on s 23, but on the right
to a fair trial contained in s 25(3). See para [34] of the judgment. See now s 35(3) of the
Constitution. See further S v Smile1998 (1) SACR 688 (SCA); Rowe and Davis v UK (2000) 30
EHRR 1; R v Stinchcombe 1992 LRC (Crim) 68; S v Scholtz1996 (2) SACR 426 (NmS) 442f-h;
Molapo v Director of Public Prosecutions 1997 (8) BCLR 1154 (Lesotho).
Footnote - 98
98 See generally De Jager in Du Toit et al Commentary 14-24 for a discussion of s 87.
98 See generally De Jager in Du Toit et al Commentary 14-24 for a discussion of s 87.
Footnote - 99
Footnote - 100
100 S v Tshabalala1999 (1) SACR 163 (T) 167a-b and 168h.
100 S v Tshabalala1999 (1) SACR 163 (T) 167a-b and 168h.
Footnote - 101
101 Du Toit v Direkteur van Openbare Vervolging, Transvaal: in re S v Du Toit en andere2004 (2)
SACR 584 (T) 594e-f.
101 Du Toit v Direkteur van Openbare Vervolging, Transvaal: in re S v Du Toit en andere2004

(2) SACR 584 (T) 594e-f.
Footnote - 102
102 Du Toit v Direkteur van Openbare Vervolging, Transvaal: in re S v Du Toit en andere supra
595d-e-.
102 Du Toit v Direkteur van Openbare Vervolging, Transvaal: in re S v Du Toit en andere

supra 595d-e-.
Footnote - 103
103 Du Toit v Direkteur van Openbare Vervolging, Transvaal: in re S v Du Toit en andere2004 (2)
SACR 584 (T) 596a-b and 598f.
103 Du Toit v Direkteur van Openbare Vervolging, Transvaal: in re S v Du Toit en andere2004

(2) SACR 584 (T) 596a-b and 598f.
Footnote - 104
104 See generally S v Smile1998 (1) SACR 688 (SCA), where the initial unfairness that resulted
from the state's failure to disclose, was purged when the state, during the course of the state's case,
had made available statements of witnesses who had already testified and witnesses who still had to
testify. This irregularity was "potentially remediable" (at 692h): the state's case was not closed when
the statements were furnished; the defence could recall the witnesses concerned; the defence had
sufficient time "to consider the contents of all the statements and to prepare for the further conduct
of the trial" (at 693a). However, Melunsky AJA also sounded the following warning (at 693b-c): "It
may be noted that the Full Court of the Cape Provincial Division in Nortje and another v Attorney-
General, Cape, and Another1995 (2) SA 460 (C) was not prepared to accept the proposition that a
failure to make pre-trial disclosure of the statements of witnesses ipso facto rendered the trial unfair
although later disclosure of statements during the trial was made (at 483B-D). But it should be
emphasised that this does not mean that it is open to the State, as a matter of course, to postpone
disclosure of the statements of prosecution witnesses provided only that they are disclosed at some
time before the closure of its case. Disclosure of statements should usually be made when the
accused is furnished with the indictment or immediately thereafter in accordance with the practice
suggested in Shabalala's case at 752A-F (para [56])." See further S v Mvambo1995 (1) SACR 180
(W), which is discussed in § 17.7 below.
104 See generally S v Smile1998 (1) SACR 688 (SCA), where the initial unfairness that
resulted from the state's failure to disclose, was purged when the state, during the course of
the state's case, had made available statements of witnesses who had already testified and
witnesses who still had to testify. This irregularity was "potentially remediable" (at 692h): the
state's case was not closed when the statements were furnished; the defence could recall the
witnesses concerned; the defence had sufficient time "to consider the contents of all the
statements and to prepare for the further conduct of the trial" (at 693a). However, Melunsky
AJA also sounded the following warning (at 693b-c): "It may be noted that the Full Court of the
Cape Provincial Division in Nortje and another v Attorney-General, Cape, and Another1995 (2)
SA 460 (C) was not prepared to accept the proposition that a failure to make pre-trial
disclosure of the statements of witnesses ipso facto rendered the trial unfair although later
disclosure of statements during the trial was made (at 483B-D). But it should be emphasised
that this does not mean that it is open to the State, as a matter of course, to postpone
disclosure of the statements of prosecution witnesses provided only that they are disclosed at
some time before the closure of its case. Disclosure of statements should usually be made
when the accused is furnished with the indictment or immediately thereafter in accordance with
the practice suggested in Shabalala's case at 752A-F (para [56])." See further S v
Mvambo1995 (1) SACR 180 (W), which is discussed in § 17.7 below.
Footnote - 105
105 This was the decision of the majority (Satchwell and Makhanya JJ) in S v Shiburi2004 (2) SACR
314 (W). EM du Toit AJ dissented.
105 This was the decision of the majority (Satchwell and Makhanya JJ) in S v Shiburi2004 (2)
SACR 314 (W). EM du Toit AJ dissented.
Footnote - 106
106 S v Shiburi supra (per EM du Toit J with Mkanaya J concurring and Satchwell J dissenting).
106 S v Shiburi supra (per EM du Toit J with Mkanaya J concurring and Satchwell J
dissenting).
Footnote - 107
107 Park-Ross v Director: Office for Serious Economic Offences1997 (2) SACR 401 (C).
107 Park-Ross v Director: Office for Serious Economic Offences1997 (2) SACR 401 (C).
Footnote - 108
108 Park-Ross v Director: Office for Serious Economic Offences supra at [25].
108 Park-Ross v Director: Office for Serious Economic Offences supra at [25].
Footnote - 109
109 S v Tshabalala1999 (1) SACR 163 (T) 169d-e.
109 S v Tshabalala1999 (1) SACR 163 (T) 169d-e.
Footnote - 110
110 S v Tshabalala supra 169e.
110 S v Tshabalala supra 169e.
Footnote - 111
111 See generally S v Scholtz1996 (2) SACR 426 (NmS) 442f-h.
111 See generally S v Scholtz1996 (2) SACR 426 (NmS) 442f-h.
Footnote - 112
112 See generally S v Nassar1995 (1) SACR 212 (Nm) where Muller AJ agreed (at 242c-d) with the
Canadian approach as set out in R v Stinchcombe 1992 LRC (Crim) 68 at 11 (cited in full in Nassar at
240h-242c).)
112 See generally S v Nassar1995 (1) SACR 212 (Nm) where Muller AJ agreed (at 242c-d)
with the Canadian approach as set out in R v Stinchcombe 1992 LRC (Crim) 68 at 11 (cited in
full in Nassar at 240h-242c).)
Footnote - 113
113 S v Nassar supra (relying on R v Stinchcombe supra).
113 S v Nassar supra (relying on R v Stinchcombe supra).
Footnote - 114
114 Shabalala v Attorney-General of Transvaal supra 790j. In Namibia, it seems, the required
standard of proof is on a balance of probabilities. See S v Nassar supra 240f.
114 Shabalala v Attorney-General of Transvaal supra 790j. In Namibia, it seems, the required
standard of proof is on a balance of probabilities. See S v Nassar supra 240f.
Footnote - 115
115 Shabalala v Attorney-General of Transvaal supra 791a.
115 Shabalala v Attorney-General of Transvaal supra 791a.
Footnote - 116
116 Shabalala v Attorney-General of Transvaal supra 791b.
116 Shabalala v Attorney-General of Transvaal supra 791b.
Footnote - 117
117 Shabalala v Attorney-General of Transvaal supra 791b-c.
117 Shabalala v Attorney-General of Transvaal supra 791b-c.
Footnote - 118
118 S v Tshabalala1999 (1) SACR 163 (T) 167b-c.
118 S v Tshabalala1999 (1) SACR 163 (T) 167b-c.
Footnote - 119
119 S v Tshabalala supra 167h-168a.
119 S v Tshabalala supra 167h-168a.
Footnote - 120
120 See generally S v Hassim & others1972 (1) SA 200 (N).
120 See generally S v Hassim & others1972 (1) SA 200 (N).
Footnote - 121
121 Supra para [72] 791c-h. Para 4 3 2 of the Code of Conduct: Uniform Rules of Professional
Ethics of the General Bar Council of SA, has been adjusted to reflect the decision in Shabalala supra.
121 Supra para [72] 791c-h. Para 4 3 2 of the Code of Conduct: Uniform Rules of
Professional Ethics of the General Bar Council of SA, has been adjusted to reflect the decision
in Shabalala supra.
Footnote - 122
122 1995 (2) SACR 761 (CC).
122 1995 (2) SACR 761 (CC).
Footnote - 123
123 1954 (1) SA 324 (A).
123 1954 (1) SA 324 (A).
Footnote - 124
124 Emphasis added. For a critical appraisal of s 60(14), see De Villiers 2003 THRHR 175 and 2003
THRHR 349.
124 Emphasis added. For a critical appraisal of s 60(14), see De Villiers 2003 THRHR 175 and
2003 THRHR 349.
Footnote - 125
125 1999 (2) SACR 51 (CC).
125 1999 (2) SACR 51 (CC).
Footnote - 126
126 S v Josephs2001 (1) SACR 659 (C) 664c-d. See also Van der Merwe 2001 SACJ 297 and S v
Mauk1999 (2) SACR 479 (W) as well as Watney 2000 (2) TSAR 369 at 373-375.
126 S v Josephs2001 (1) SACR 659 (C) 664c-d. See also Van der Merwe 2001 SACJ 297 and
S v Mauk1999 (2) SACR 479 (W) as well as Watney 2000 (2) TSAR 369 at 373-375.
Footnote - 127
127 This subsection provides as follows: "If the court is of the opinion that it does not have reliable
information or sufficient information or evidence at its disposal or that it lacks certain important
information to reach a decision on the bail application, the presiding officer shall order that such
information or evidence be placed before the court."
127 This subsection provides as follows: "If the court is of the opinion that it does not have
reliable information or sufficient information or evidence at its disposal or that it lacks certain
important information to reach a decision on the bail application, the presiding officer shall
order that such information or evidence be placed before the court."
Footnote - 128
128 This subsection provides as follows: "Notwithstanding the fact that the prosecution does not
oppose the granting of bail, the court has the duty, contemplated in subsection (9), to weigh up the
personal interests of the accused against the interests of justice."
128 This subsection provides as follows: "Notwithstanding the fact that the prosecution does
not oppose the granting of bail, the court has the duty, contemplated in subsection (9), to
weigh up the personal interests of the accused against the interests of justice."
Footnote - 129
129 2006 (1) SACR 603 (SCA) at [23].
129 2006 (1) SACR 603 (SCA) at [23].
Footnote - 130
Document 94 of 330
11.6 The Promotion of Access to Information Act 2 of

2000131
The above Act (hereafter referred to as "the PAIA") came into operation on 9
March 2001. According to its long title, the PAIA seeks to give effect to the
constitutional right of access to any information held by the state 132 and any
information held by another person and that is required for the exercise or
protection of any rights. 133 However, in the preamble to the PAIA reference is
also made to s 36 of the Constitution, which allows for constitutionally permissible
limitations of all rights
3rd Ed, 2009 ch11-p178
contained in the Bill of Rights. It is therefore no surprise that the PAIA does not
abolish public (and private) privileges which exist in terms of our common-law or
statutory provisions. 134 Several provisions in the PAIA actually indirectly
reinforce existing public privileges. 135
11.6.1 The PAIA and mandatory protection of records privileged

from production in legal proceedings
Section 40 of the PAIA provides that the information officer of a public body must
refuse a request for access to a record of the body if the record is privileged from
production in legal proceedings, unless the holder of the privilege has waived it.
Section 67 contains a similar provision in respect of a private body.
11.6.2 Non-applicability of the PAIA to records required for

criminal or civil proceedings after commencement of such
proceedings
Section 7(1) of the PAIA provides that the PAIA does not apply to a record of a
public or private body if
"(a) that record is requested for the purpose of criminal or civil proceedings;
(b) so requested after the commencement of such criminal or civil proceedings,
as the case may be; and
(c) the production of or access to that record for the purpose referred to in
paragraph (a) is provided for in any other law."
In terms of s 7(2) of the PAIA any record obtained in a manner that contravenes
s 7(1) is inadmissible as evidence in proceedings referred to in s 7(1) unless the
exclusion of such a record by the court concerned would, in the opinion of such a
court, be detrimental to the interests of justice. Section 7 of the PAIA is, it seems,
an indirect way of encouraging litigants not to use or abuse the PAIA as a
mechanism for obtaining information for purposes of litigation when access to
information is provided for by some other law, such as the rules governing
disclosure. 136
Footnote - 131
131 See also generally s 32(2) of the Constitution.
131 See also generally s 32(2) of the Constitution.
Footnote - 132
132 See also s 32(1)(a) of the Constitution.
132 See also s 32(1)(a) of the Constitution.
Footnote - 133
133 See also s 32(1)(b) of the Constitution.
133 See also s 32(1)(b) of the Constitution.
Footnote - 134
134 See § 11.6.1 below.
134 See § 11.6.1 below.
Footnote - 135
135 See, eg, ss 39 and 41 of PAIA. These two sections respectively identify protection of police
dockets in bail proceedings and protection of the security of the RSA, as grounds for refusal of
access to records.
135 See, eg, ss 39 and 41 of PAIA. These two sections respectively identify protection of
police dockets in bail proceedings and protection of the security of the RSA, as grounds for
refusal of access to records.
Footnote - 136
136 See § 20.4 below.
136 See § 20.4 below.
Document 95 of 330
Section D
Exclusion of relevant evidence:
Unconstitutionally obtained evidence
12. Unconstitutionally Obtained Evidence — S E van der Merwe
Document 96 of 330
Chapter 12
Unconstitutionally Obtained Evidence
S E van der Merwe
12.1 Introduction
12.2 The competing interests
12.3 Rationale of the inclusionary approach
12.4 The theoretical basis and practical purpose of the exclusionary approach
12.4.1 The "preventive effect" argument
12.4.2 Due process in the context of a bill of rights
12.4.3 The doctrine of legal guilt
12.4.4 Judicial integrity
12.4.5 The principle of self-correction
12.4.6 Primary rules and the secondary rule (the exclusionary rule)
12.5 The exclusionary rule in the USA: a brief survey
12.5.1 The rule in Mapp
12.5.1.1 General principles limiting the ambit of the rule in Mapp
12.5.1.2 The "good faith" exception
12.5.1.3 The "independent source" exception
12.5.1.4 The "stop and frisk" exception
12.5.2 The Miranda-warnings
12.5.2.1 The ambit of the exclusionary rule in Miranda
12.5.2.2 The "public safety" exception
12.5.2.3 The "impeachment" exception
12.5.2.4 The "inevitable discovery" exception
12.6 Section 24(2) of the Canadian Charter: a brief survey
12.6.1 The impact of the admission of the evidence on the fairness of the
trial
12.6.2 Factors relevant to the seriousness of the Charter violation(s)
12.6.3 The effect of exclusion on the repute of the administration of
justice
12.7 Position in South Africa prior to s 35(5) of the Constitution
12.7.1 The Anglo-South African common-law inclusionary approach (and
its development since constitutionalization)
12.7.2 The interim Constitution
12.7.2.1 Protection of the constitutional right to a fair trial
12.7.2.2 The discretion to exclude unconstitutionally obtained real
evidence
12.7.2.3 Public opinion and the repute of the system
12.8 Section 35(5) of the Constitution
12.8.1 Section 35(5): the threshold test
12.8.2 Section 35(5): the causal link between violation and procurement
12.8.3 Section 35(5) and "standing"
12.8.4 Section 35(5) and the admissibility of evidence unconstitutionally
procured by private individuals
12.8.5 Section 35(5) and the limitations clause in s 36
12.8.6 Section 35(5) and a co-accused's constitutional right to a fair trial
12.8.7 Section 35(5) and impeachment of the accused
12.8.8 Sections 35(5) and 37: derogation in states of emergency
12.9 The first leg of the test in s 35(5): "must be excluded if admission would
render the trial unfair"
12.9.1 Trial fairness
12.9.2 The contents of the accused's constitutional right to a fair trial
12.9.3 Trial fairness and the court's discretion
12.9.4 The privilege against compelled self-incrimination: trial fairness
and the court's discretion
12.9.5 Waiver, trial fairness and the court's discretion
12.9.6 Trial fairness and the court's discretion: self-incrimination, real
evidence and evidence "emanating from the accused"
12.9.7 Trial fairness and the admissibility of derivative evidence
12.9.8 Trial fairness and the admissibility of identification evidence
obtained at an identification parade held in the absence of the
accused's legal representative
12.10 The second leg of the test in s 35(5): "if admission would otherwise be
detrimental to the administration of justice"
12.10.1 The presence or absence of good faith (and reasonable) police
conduct
12.10.2 Public safety and urgency
12.10.3 Nature and seriousness of the violation
12.10.4 The availability of lawful means or methods of securing the
evidence
12.10.5 Real evidence
12.10.6 Inevitable discovery or discovery on the basis of an independent
source
12.11 Section 35(5) and procedural matters
12.11.1 The trial within a trial
12.11.2 The burden of proof: incidence and standard
12.12 Evidence procured by means of entrapment (s 252A of the CPA and s
35(5) of the Constitution)
12.13 Civil cases
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12.1 Introduction 1
This chapter focuses on the admissibility of unconstitutionally obtained evidence

in criminal proceedings. The position as regards civil proceedings is discussed
separately in § 12.13 below.
Section 35(5) of the Constitution provides as follows: "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 otherwise be
detrimental to the administration of justice". 2 Section 35(5) does not apply to
civil proceedings. 3
The Constitutional Court has as yet not had an opportunity to interpret s
35(5).
Several Supreme Court of Appeal decisions on the interpretation of s 35(5)
have become available, 4 but no clear picture has emerged. The High Court, it
seems, has
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been bold, 5 cautious, 6 critical 7 and ingenious 8 in its interpretation of s 35(5).

None but the naive would have expected a different result, given the background
of our common-law inclusionary approach (see § 12.7.1 below) and the clear
break that s 35(5) makes with the common law (see § 12.8 below).
The core principle embodied in s 35(5) — that is, the exclusion of
unconstitutionally obtained evidence despite its relevance and regardless of the
fact that it would otherwise have been admissible — is not unique to South Africa.
The exclusionary rule (in a rigid form) originated in the jurisprudence of the
Supreme Court of the United States of America (see § 12.5 below). The central
idea was to protect rights guaranteed in the American Bill of Rights, and to
promote substantive and procedural due process (see §§ 12.4.2 and 12.4.3
below). In Weeks v United States — decided in 1914 — Day J, writing for a
unanimous Supreme Court, stated: 9
"If letters and private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the 4th Amendment,
declaring his right to be secure against such searches and seizures, is of no value,
and, so far as those thus placed are concerned, might as well be stricken from the
Constitution."
The American exclusionary rule seeped into the evidential systems of many
national jurisdictions, albeit in a significantly modified form, that is, not as a rigid
rule but as a discretionary one. The essence of the rule has also been accepted in
Continental jurisdictions; 10 and the rule has had an impact on supra-national
regional jurisdictions 11 and the evidential systems of international criminal
tribunals. 12
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Countries which belong to the Anglo-American "law of evidence family", 13

initially relied heavily on the English common-law inclusionary approach which in
1861 was formulated as follows: "It matters not how you get it; if you steal it
even, it would be admissible". 14 However, in the latter half of the twentieth
century there was a growing international awareness of the need to enforce and
protect fundamental human rights, 15 promote legality (see § 12.4.3 below) and
conserve and enhance judicial integrity (see § 12.4.4 below). Courts — and in
some instances also legislatures 16 — came to accept that there had to be at least
a judicial discretion to exclude evidence obtained unlawfully or unconstitutionally.
The difficulty is to formulate a rule or guidelines 17 accommodating all those
interests which compete and conflict whenever a decision has to be made
concerning the admission or exclusion of evidence obtained in a manner violating
fundamental rights (see § 12.2 below). There is a need to compromise and adopt
a flexible approach which accommodates various valid demands. Zuckermann
states: 18
"There is an uncanny symmetry between the consequences of an admissibility and
an inadmissibility rule. If applied consistently, each of these rules will undermine
public confidence in the criminal process. If the court always admits illegally
obtained evidence, it will be seen to condone the malpractice of the law-enforcement
agencies. If it always excludes it, it will be seen to abandon its duty to protect us
from crime. The first thing that we must therefore accept is that the criminal trial
presents a dilemma which cannot be solved by an inflexible rule. An unwillingness to
grasp the intractability of this dilemma has contributed more than anything else to
the backwardness of the law on illegally obtained evidence."
Most countries which abandoned parliamentary sovereignty and adopted a written
Constitution as the supreme law, did not avail themselves of the opportunity to
use their Bill of Rights as a medium for addressing issues concerning the
admissibility of unconstitutionally obtained evidence. But the courts in these
countries —
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for example, Namibia, 19 New Zealand 20 and Ireland 21 — then distanced

themselves from the common-law inclusionary approach, developed their own
exclusionary rule and managed to steer clear from the American judicially created
exclusionary rule which is a rigid or absolute one save for certain exceptions
which were also judicially created (see § 12.5 below for a brief survey of the
American rule and some of its exceptions).
The South African interim Constitution also did not expressly provide for the
exclusion of unconstitutionally obtained evidence; however, during the brief
period that the interim Constitution was in force, the South African courts fairly
rapidly developed an exclusionary rule even though they were not always in full
agreement as to the criteria or tests which had to be employed (see § 12.7.2
below).
For purposes of the final Constitution, South Africa took its cue from s 24(2) of
the Canadian Charter of Rights and Freedoms (hereafter "the Charter"). The
relevant portion of s 24(2) provides as follows: "Where … a court concludes that
evidence was obtained in a manner that infringed or denied any rights
guaranteed by this Charter, the evidence shall be excluded if it is established
that, having regard to all the circumstances, the admission of it in the
proceedings would bring the administration of justice into disrepute." This section
(which is briefly discussed in §§ 12.6 to 12.6.3 below) is in some respects very
similar to s 35(5) of the Constitution. South African courts have on several
occasions in their interpretation of s 35(5), relied upon or referred to Canadian
cases which dealt with s 24(2) of the Charter (see generally § 12.8 below). Both
sections can be described as "constitutional attempts" to provide broad guidelines
which can strike a balance between the competing and conflicting interests which
come into play when the admissibility of evidence is challenged on the basis that
it was obtained in breach of constitutional rights.
In S v Pillay Scott JA said as follows with reference to s 35(5): "In adopting the
approach they did, the drafters of the Constitution appear to have adopted a via
media between the extreme approach adopted in the USA on the one hand and
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that formerly adopted in South Africa on the other. In doing so they have largely
followed the example of … particularly Canada." 22
Footnote - 1
1 Parts of this chapter are based on the following two articles by Van der Merwe: 1992 Stell LR
175 and 1998 SACJ 462.
1 Parts of this chapter are based on the following two articles by Van der Merwe: 1992 Stell
LR 175 and 1998 SACJ 462.
Footnote - 2
2 The interim Constitution had no such provision. See further § 12.7.2 below.
2 The interim Constitution had no such provision. See further § 12.7.2 below.
Footnote - 3
3 Protea Technology Ltd v Wainer 1997 9 BCLR 1225 (W) 1244B; Schmidt & Rademeyer 382;
Steytler Constitutional Criminal Procedure (1998) 34. See further § 12.13 below.
3 Protea Technology Ltd v Wainer 1997 9 BCLR 1225 (W) 1244B; Schmidt & Rademeyer 382;
Steytler Constitutional Criminal Procedure (1998) 34. See further § 12.13 below.
Footnote - 4
4 See, eg, S v Mthembu2008 (2) SACR 407 (SCA); S v Tandwa2008 (1) SACR 613 (SCA); S v
Pillay2004 (2) SACR 419 (SCA); S v M2002 (2) SACR 411 (SCA); Director of Public Prosecutions,
Transvaal v Viljoen2005 (1) SACR 505 (SCA).
4 See, eg, S v Mthembu2008 (2) SACR 407 (SCA); S v Tandwa2008 (1) SACR 613 (SCA); S
v Pillay2004 (2) SACR 419 (SCA); S v M2002 (2) SACR 411 (SCA); Director of Public
Prosecutions, Transvaal v Viljoen2005 (1) SACR 505 (SCA).
Footnote - 5
5 See S v Naidoo1998 (1) SACR 479 (N), which is discussed in §§ 12.9.4 and 12.10.1 below.
5 See S v Naidoo1998 (1) SACR 479 (N), which is discussed in §§ 12.9.4 and 12.10.1 below.
Footnote - 6
6 See generally S v Soci1998 (2) SACR 275 (E), which is discussed in §§ 12.8.2 and 12.10.1
below; S v Gumede 1998 5 BCLR 530 (D) and S v Madiba 1998 1 BCLR 38 (D). The latter case is
also discussed in § 12.10.1 below.
6 See generally S v Soci1998 (2) SACR 275 (E), which is discussed in §§ 12.8.2 and 12.10.1
below; S v Gumede 1998 5 BCLR 530 (D) and S v Madiba 1998 1 BCLR 38 (D). The latter case
is also discussed in § 12.10.1 below.
Footnote - 7
7 See generally S v Shongwe1998 (2) SACR 321 (T).
7 See generally S v Shongwe1998 (2) SACR 321 (T).
Footnote - 8
8 S v Aimes1998 (1) SACR 343 (C). This case is discussed in § 12.8.6 below.
8 S v Aimes1998 (1) SACR 343 (C). This case is discussed in § 12.8.6 below.
Footnote - 9
9 232 US 383 393 (1914). Oaks "Studying the Exclusionary Rule in Search and Seizure" 1970 37
Univ of Chicago LR 665 756 puts the matters as follows: "If constitutional rights are to be anything
more than pious pronouncements, then some measurable consequence must be attached to their
violation. It would be intolerable if the guarantee against unreasonable search and seizure could be
violated without practical consequence. It is likewise imperative to have a practical procedure by
which courts can review alleged violations of constitutional rights and articulate the meaning of
those rights. The advantage of the exclusionary rule — entirely apart from any direct deterrent
effect — is that it provides an occasion for judicial review, and gives credibility to the constitutional
guarantees."
9 232 US 383 393 (1914). Oaks "Studying the Exclusionary Rule in Search and Seizure" 1970
37 Univ of Chicago LR 665 756 puts the matters as follows: "If constitutional rights are to be
anything more than pious pronouncements, then some measurable consequence must be
attached to their violation. It would be intolerable if the guarantee against unreasonable search
and seizure could be violated without practical consequence. It is likewise imperative to have a
practical procedure by which courts can review alleged violations of constitutional rights and
articulate the meaning of those rights. The advantage of the exclusionary rule — entirely apart
from any direct deterrent effect — is that it provides an occasion for judicial review, and gives
credibility to the constitutional guarantees."
Footnote - 10
10 Van den Wyngaert (ed) Criminal Procedure Systems in the European Community (1993) 20-1,
174, 238; Bradley "The Emerging International Consensus as to Criminal Procedural Rules" 1993 14
Michigan Journal of International Law 171 219; Pakter "Exclusionary Rules in France, Germany and
Italy" 1985 9 Hastings International and Comparative LR 1.
10 Van den Wyngaert (ed) Criminal Procedure Systems in the European Community (1993)
20-1, 174, 238; Bradley "The Emerging International Consensus as to Criminal Procedural
Rules" 1993 14 Michigan Journal of International Law 171 219; Pakter "Exclusionary Rules in
France, Germany and Italy" 1985 9 Hastings International and Comparative LR 1.
Footnote - 11
11 See generally Stavros The Guarantees for Accused Persons under Article 6 of the European
Convention on Human Rights (1993) 225-7. In Saunders v United Kingdom 1996 23 EHRR 313 the
European Court of Human Rights held that evidence obtained in violation of internationally
recognised procedural safeguards could infringe the right to a fair trial under article 6 of the
European Convention on the Protection of Human Rights and Fundamental Freedoms (1950).
11 See generally Stavros The Guarantees for Accused Persons under Article 6 of the
European Convention on Human Rights (1993) 225-7. In Saunders v United Kingdom 1996 23
EHRR 313 the European Court of Human Rights held that evidence obtained in violation of
internationally recognised procedural safeguards could infringe the right to a fair trial under
article 6 of the European Convention on the Protection of Human Rights and Fundamental
Freedoms (1950).
Footnote - 12
12 Paragraph 7(b) of article 69 of the Rome Statute of the International Criminal Court (1998)
provides that "[e]vidence obtained by means of a violation of this Statute or internationally
recognized human rights shall not be admissible if … [t]he admission of the evidence would be
antithetical to and would seriously damage the integrity of the proceedings". See also generally rule
95 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former
Yugoslavia (1994).
12 Paragraph 7(b) of article 69 of the Rome Statute of the International Criminal Court
(1998) provides that "[e]vidence obtained by means of a violation of this Statute or
internationally recognized human rights shall not be admissible if … [t]he admission of the
evidence would be antithetical to and would seriously damage the integrity of the proceedings".
See also generally rule 95 of the Rules of Procedure and Evidence of the International Criminal
Tribunal for the Former Yugoslavia (1994).
Footnote - 13
Footnote - 14
14 Crompton J in R v Leatham 1861 Cox CC 498 501 as quoted by Langenhoven Die

Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis (unpubl LLD thesis, Univ of Stellenbosch,
1999) 17.
14 Crompton J in R v Leatham 1861 Cox CC 498 501 as quoted by Langenhoven Die

Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis (unpubl LLD thesis, Univ of Stellenbosch,
1999) 17.
Footnote - 15
Footnote - 16
16 Even in England, where the inclusionary approach developed, the matter has since 1984 been
regulated by statute. Section 78(1) of the Police and Criminal Evidence Act 1984 provides as follows:
"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to
rely to be given if it appears to the court that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of the evidence would have such
an adverse effect on the fairness of the proceedings that the court ought not to admit it". However s
82(3) of the same Act also provides as follows: "Nothing in … this Act shall prejudice any power of a
court to exclude evidence (whether by preventing questions from being put or otherwise) at its
discretion".
16 Even in England, where the inclusionary approach developed, the matter has since 1984
been regulated by statute. Section 78(1) of the Police and Criminal Evidence Act 1984 provides
as follows: "In any proceedings the court may refuse to allow evidence on which the
prosecution proposes to rely to be given if it appears to the court that, having regard to all the
circumstances, including the circumstances in which the evidence was obtained, the admission
of the evidence would have such an adverse effect on the fairness of the proceedings that the
court ought not to admit it". However s 82(3) of the same Act also provides as follows:
"Nothing in … this Act shall prejudice any power of a court to exclude evidence (whether by
preventing questions from being put or otherwise) at its discretion".
Footnote - 17
17 Section 38(1) of the Evidence Act 1995 of Australia provides that evidence obtained improperly
or in contravention of an Australian law — or in consequence of an impropriety or of a contravention
of an Australian law — "is not to be admitted unless the desirability of admitting the evidence
outweighs the undesirability of admitting evidence that has been obtained in the way in which the
evidence was obtained." Emphasis added. Section 138(3) of this Act identifies certain other factors
that a court must take into account.
17 Section 38(1) of the Evidence Act 1995 of Australia provides that evidence obtained
improperly or in contravention of an Australian law — or in consequence of an impropriety or of
a contravention of an Australian law — "is not to be admitted unless the desirability of
admitting the evidence outweighs the undesirability of admitting evidence that has been
obtained in the way in which the evidence was obtained." Emphasis added. Section 138(3) of
this Act identifies certain other factors that a court must take into account.
Footnote - 18
18 The Principles of Criminal Evidence (1989, repr 1992) 345-6.
18 The Principles of Criminal Evidence (1989, repr 1992) 345-6.
Footnote - 19
19 See generally Kahanovitz "The Namibian Bill of Rights: Implications for the Promotion of
Procedural and Substantive Justice in Criminal Cases" 1991 2 Criminal Law Forum 569 589-90. In S
v Minnies 1991 SACR 335 (Nm) Du Toit AJ observed as follows (at 370g-h, emphasis added): "The
American approach has been formulated by judicial interpretation of the United States Constitution
and in particular the Fourth, Fifth and Fourteenth Amendments of it. A judge sitting in a different
environment with different laws should obviously not seek to draw too many analogies. But what is
instructive in this and other American decisions is on the one hand the far-reaching judicial
protection against police abuses, based on constitutional rights, and on the other hand the
accompanying awareness that criminality must not be fostered by too great an inhibition of police
investigation. These competing values obviously transcend national boundaries. A court must
evaluate them in the light of the conditions and circumstances existing in its own jurisdiction from
time to time, and the facts of the case before it."
19 See generally Kahanovitz "The Namibian Bill of Rights: Implications for the Promotion of
Procedural and Substantive Justice in Criminal Cases" 1991 2 Criminal Law Forum 569 589-90.
In S v Minnies 1991 SACR 335 (Nm) Du Toit AJ observed as follows (at 370g-h, emphasis
added): "The American approach has been formulated by judicial interpretation of the United
States Constitution and in particular the Fourth, Fifth and Fourteenth Amendments of it. A
judge sitting in a different environment with different laws should obviously not seek to draw
too many analogies. But what is instructive in this and other American decisions is on the one
hand the far-reaching judicial protection against police abuses, based on constitutional rights,
and on the other hand the accompanying awareness that criminality must not be fostered by
too great an inhibition of police investigation. These competing values obviously transcend
national boundaries. A court must evaluate them in the light of the conditions and
circumstances existing in its own jurisdiction from time to time, and the facts of the case
before it."
Footnote - 20
20 R v Goodwin 1993 3 NZLR 153 (CA). Evidence obtained in breach of rights in the New Zealand
Bill of Rights Act 1990, is prima facie inadmissible subject to a broad discretion to admit. At 206
Gault J noted that prima facie exclusion was not the same thing as automatic exclusion. However,
on the facts of the case no constitutional breach was present.
20 R v Goodwin 1993 3 NZLR 153 (CA). Evidence obtained in breach of rights in the New
Zealand Bill of Rights Act 1990, is prima facie inadmissible subject to a broad discretion to
admit. At 206 Gault J noted that prima facie exclusion was not the same thing as automatic
exclusion. However, on the facts of the case no constitutional breach was present.
Footnote - 21
21 See generally The People (Attorney General) v O'Brien 1980 IR 142; The People v Walsh 1980
IR 294; The People v Madden 1977 IR 336.
21 See generally The People (Attorney General) v O'Brien 1980 IR 142; The People v Walsh
1980 IR 294; The People v Madden 1977 IR 336.
Footnote - 22
22 2004 (2) SACR 419 (SCA) at [122]. However, in the same paragraph he also cautioned that
great care must be taken when transporting Canadian decisions to the South African context:
Canadian decisions can at most provide a useful guide.
22 2004 (2) SACR 419 (SCA) at [122]. However, in the same paragraph he also cautioned
that great care must be taken when transporting Canadian decisions to the South African
context: Canadian decisions can at most provide a useful guide.
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12.2 The competing interests

The exclusionary approach has a sound jurisprudential basis (see §§ 12.4 to
12.4.6 below). But this does not mean that it is without controversy. 23 Burger
CJ, a former chief justice of the Supreme Court of the USA and an opponent of
the exclusionary rule, once bluntly observed that the function of the exclusionary
rule "is simple — the exclusion of truth from the fact-finding process". 24 The
exclusion of reliable and highly incriminating evidence might result in the
acquittal of an accused who is factually guilty of murder or rape or other serious
crimes. Is this unfortunate outcome in the public interest? To what extent are
law-abiding members of society prepared to accept such an outcome? Whose
interests — and what interests — are protected by exclusion? Much can also be
said in favour of the common-law inclusionary approach — a matter which is dealt
with in § 12.3 below. The state has the duty to ensure that the rules of
substantive criminal law are enforced on behalf of society. But it is also in the
interest of society that the state should respect the fundamental rights of the
individual, especially in the context of a Bill of Rights. There are clear interests
that compete and conflict in determining the parameters of a rule which excludes
unconstitutionally or illegally or even improperly obtained evidence. It is
ultimately a matter of reconciling competing interests. In Lawrie v Muir Lord
Cooper said: 25
"From the standpoint of principle it seems to me that the law must strive to
reconcile two highly important interests which are liable to come into conflict — (a)
the interest of the citizen to be protected from illegal or irregular invasions of his
liberties by the authorities, and (b) the interest of the State to secure that evidence
bearing upon the commission of crime and necessary to enable justice to be done
shall not be withheld from Courts of law on a merely formal or technical ground.
Neither of these objects can be insisted upon to the uttermost. The protection of the
citizen is primarily protection for the innocent citizen against unwarranted, wrongful
and perhaps high-handed interference, and the common sanction is an action in
damages. The protection is not intended as a protection for the guilty citizen against
the efforts of the public prosecutor to vindicate the law. On the other hand the
interest of the State cannot be magnified to the point of causing all the safeguards
for the protection of the citizen to vanish, and of offering a positive inducement to
the authorities to proceed by irregular methods. It is obvious that excessively rigid
rules as to the exclusion of evidence bearing upon the commission of a crime might
conceivably operate to the detriment and not the advantage of the accused, and
might even lead to the conviction of the innocent; and extreme cases can easily be
figured in which the exclusion of a vital piece of evidence from the knowledge of the
jury because of some technical flaw in the conduct of the police would be an outrage
upon common sense and a defiance of elementary justice."
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Footnote - 23
23 See generally S v Tandwa2008 (1) SACR 613 (SCA) at [121]; S v Shongwe1998 (2) SACR 321
(T) 340a-d; Van der Merwe 1992 Stell LR 173 176. In S v Gumede 1998 5 BCLR 530 (D) 538C Magid
J even pointed out that there "is some controversy, even since the promulgation of the Constitution,
between those judges who lean towards the exclusion of [unconstitutionally] obtained evidence and
those who adopt an inclusionary approach."
23 See generally S v Tandwa2008 (1) SACR 613 (SCA) at [121]; S v Shongwe1998 (2) SACR
321 (T) 340a-d; Van der Merwe 1992 Stell LR 173 176. In S v Gumede 1998 5 BCLR 530 (D)
538C Magid J even pointed out that there "is some controversy, even since the promulgation of
the Constitution, between those judges who lean towards the exclusion of [unconstitutionally]
obtained evidence and those who adopt an inclusionary approach."
Footnote - 24
24 Stone v Powell 429 US 465 496 (1976). But see § 12.4.3 below.
24 Stone v Powell 429 US 465 496 (1976). But see § 12.4.3 below.
Footnote - 25
25 1950 SC (J) 19 26-7 (as quoted by Stuart Charter Justice in Canadian Criminal Law 2 ed (1996)
469-70). See also Key v Attorney-General, Cape Provincial Division1996 (2) SACR 113 (CC) at [13]
as quoted in n 189 below.
25 1950 SC (J) 19 26-7 (as quoted by Stuart Charter Justice in Canadian Criminal Law 2 ed
(1996) 469-70). See also Key v Attorney-General, Cape Provincial Division1996 (2) SACR 113
(CC) at [13] as quoted in n 189 below.
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12.3 Rationale of the inclusionary approach

The argument in favour of the inclusionary rule is essentially pragmatic and
expedient. It runs along the following lines:
• The end justifies the means.26
• Two wrongs do not make a right.27
• The probative value of evidence is not impaired by unlawful methods
employed in acquiring such evidence,28 and the relevance of such evidence
cannot be affected by the mere fact that it was unlawfully procured.
• The exclusionary rule necessarily requires an investigation and adjudication
of collateral issues, shifting the focus of the trial from an enquiry into the
guilt or innocence of the accused to an enquiry into the conduct of the
police. The true issues get blurred.29
• There are sufficient (other) remedies available to an accused whose
constitutional or common-law rights have been violated.30
• Policing is a social service aimed at protecting society and, for purposes of
effective law enforcement, society must of necessity tolerate illegal police
conduct.31
• The deterrent effect of an exclusionary rule is minimal.32
• It is not the function (purpose) of the law of evidence to deter illegal police
conduct and the rules of evidence were never meant to promote "an indirect
form of punishment".33
• The exclusionary rule "protects" only the guilty from conviction.34
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• Criminals do not impose restrictions upon themselves in their choice of
weapons; why should the police?35
• The exclusionary rule frustrates or hampers effective policing in an age of
rising crime rates.36
• An exclusionary rule puts it in the power of any police official to frustrate the
judicial process: he can, through his unlawful conduct, control the volume of
evidence available to the prosecution at the trial; and he can in this way
also determine, almost in advance, what evidence a court may or may not
receive.37
• Public policy considerations do not militate against the admission of
unlawfully obtained evidence.38
• A court that excludes unlawfully obtained evidence might in effect be
condoning the unlawful acts of the accused.39 If this is not the actual effect
of the exclusionary rule, then it is at least the citizen's perception of the
rule.40 And it is undesirable that a criminal justice system should be held in
disrespect by the public at large.
• An exclusionary rule may, according to Schlesinger, have the "perverse and
unintended" result of limiting the ambit of fundamental rights: judges who
are required to apply an exclusionary rule might give an extensive
interpretation to probable cause "in order to admit crucial evidence".41
• A (rigid) exclusionary rule allows no room for "proportionality", that is, an
approach in terms of which a court should at least have a discretion to
determine the question of evidential admissibility by comparing the gravity
and nature of the offence with the gravity and nature of the unconstitutional
conduct of the police.42
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• A prosecutor who is apprehensive that the exclusionary rule might result in
the acquittal of an accused might accept a plea of guilty to a lesser charge
in circumstances where such acceptance cannot be justified.43
Many of the above arguments merit little consideration and several of the
counter-arguments are dealt with in the corresponding footnotes. However, the
danger of creating a situation where society perceives the relevant criminal
justice system as one which "frees" criminals on account of a constable's blunder,
must be taken seriously.44
Footnote - 26
26 The following dissenting judgment of Brandeis J in Olmstead v United States 277 US 438 485
(1928) provides clear grounds for rejecting this argument: "Decency, security, and liberty alike
demand that government officials shall be subjected to the same rules of conduct that are
commands to the citizen. In a government of laws the existence of the government will be imperiled
if it fails to observe the law scrupulously. Our government is the potent, the omnipresent, teacher.
For good or for ill, it teaches the whole people by its example. Crime is contagious. If the
government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a
law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end
justifies the means — to declare that the government may commit crimes to secure the conviction of
a private criminal — would bring terrible retribution. Against that pernicious doctrine this court
should resolutely set its face."
26 The following dissenting judgment of Brandeis J in Olmstead v United States 277 US 438
485 (1928) provides clear grounds for rejecting this argument: "Decency, security, and liberty
alike demand that government officials shall be subjected to the same rules of conduct that are
commands to the citizen. In a government of laws the existence of the government will be
imperiled if it fails to observe the law scrupulously. Our government is the potent, the
omnipresent, teacher. For good or for ill, it teaches the whole people by its example. Crime is
contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites
every man to become a law unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the means — to declare that the
government may commit crimes to secure the conviction of a private criminal — would bring
terrible retribution. Against that pernicious doctrine this court should resolutely set its face."
Footnote - 27
27 Wigmore paras 2183 and 2184.
27 Wigmore paras 2183 and 2184.
Footnote - 28
28 Schlesinger Exclusionary Injustice: The Problem of Illegally Obtained Evidence (1977) 62.
28 Schlesinger Exclusionary Injustice: The Problem of Illegally Obtained Evidence (1977) 62.
Footnote - 29
29 See generally Peiris "The Admissibility of Evidence Obtained Illegally: A Comparative Analysis"
1981 13 Ottawa LR 309 343.
29 See generally Peiris "The Admissibility of Evidence Obtained Illegally: A Comparative

Analysis" 1981 13 Ottawa LR 309 343.
Footnote - 30
30 See People v Defore 150 NE 585 (1926); Wolf v Colorado 338 US 25 (1949); Shanks
"Comparative Analysis of the Exclusionary Rule and it's Alternatives" 1983 57 Tulane LR 648. But
see §§ 12.3.2 and 12.3.4 below for a counter-argument. See also Brinegar v United States 338 US
160 173 (1949); Mapp v Ohio 367 US 643 (1961); Traynor "Mapp v Ohio at Large in the 50 States"
1962 Duke LJ 319.
30 See People v Defore 150 NE 585 (1926); Wolf v Colorado 338 US 25 (1949); Shanks
"Comparative Analysis of the Exclusionary Rule and it's Alternatives" 1983 57 Tulane LR 648.
But see §§ 12.3.2 and 12.3.4 below for a counter-argument. See also Brinegar v United States
338 US 160 173 (1949); Mapp v Ohio 367 US 643 (1961); Traynor "Mapp v Ohio at Large in
the 50 States" 1962 Duke LJ 319.
Footnote - 31
31 This argument is unacceptable because "the investigative process … is … part of the

administration of justice" (Zuckerman The Principles of Criminal Evidence 345). See also S v
Nkabinde 1998 8 BCLR 996 (N) 1001E.
31 This argument is unacceptable because "the investigative process … is … part of the

administration of justice" (Zuckerman The Principles of Criminal Evidence 345). See also S v
Nkabinde 1998 8 BCLR 996 (N) 1001E.
Footnote - 32
32 Schlesinger Exclusionary Injustice 61; Peterson "Restrictions in the Law of Search and Seizure"
1958 52 Northwestern Univ LR 46 55.
32 Schlesinger Exclusionary Injustice 61; Peterson "Restrictions in the Law of Search and
Seizure" 1958 52 Northwestern Univ LR 46 55.
Footnote - 33
Footnote - 34
34 This criticism of the exclusionary rule can be rejected on the basis that it views the rule solely
from the angle of the "guilty". Dworkin "Fact Style Adjudication and the Fourth Amendment: The
Limits of Lawyering" 1973 48 Indiana LJ 329 330-1 has pointed out that the exclusionary rule
protects "the rest of us from unlawful invasions of our security and [maintains] the integrity of our
institutions … The innocent and society are the principal beneficiaries of the exclusionary rule."
34 This criticism of the exclusionary rule can be rejected on the basis that it views the rule
solely from the angle of the "guilty". Dworkin "Fact Style Adjudication and the Fourth
Amendment: The Limits of Lawyering" 1973 48 Indiana LJ 329 330-1 has pointed out that the
exclusionary rule protects "the rest of us from unlawful invasions of our security and
[maintains] the integrity of our institutions … The innocent and society are the principal
beneficiaries of the exclusionary rule."
Footnote - 35
35 Kamisar "'Comparative Reprehensibility' and the Fourth Amendment Exclusionary Rule" 1987
86 Michigan LR 1 43 dismisses this argument (emphasis in the original text): "I wince when I hear a
law enforcement official protest: 'We … are forced to fight to by Marquis of Queensberry rules while
criminals are permitted to gouge and bite'. If criminals didn't gouge and bite they wouldn't be
criminals. And if police officers did gouge and bite they wouldn't (or at least shouldn't) be police
officers."
35 Kamisar "'Comparative Reprehensibility' and the Fourth Amendment Exclusionary Rule"

1987 86 Michigan LR 1 43 dismisses this argument (emphasis in the original text): "I wince
when I hear a law enforcement official protest: 'We … are forced to fight to by Marquis of
Queensberry rules while criminals are permitted to gouge and bite'. If criminals didn't gouge
and bite they wouldn't be criminals. And if police officers did gouge and bite they wouldn't (or
at least shouldn't) be police officers."
Footnote - 36
36 Stewart "The Road to Mapp v Ohio and Beyond: The Origins, Development and Future of the
Exclusionary Rule in Search and Seizure Cases" 1983 83 Columbia LR 1365 1394 notes that "there is
absolutely no evidence that the exclusionary rule is in any way responsible for the horrible increase
in the crime rate in the United States." See also LaFave Search and Seizure: A Treatise on the
Fourth Amendment 2 ed (1987) 22 n 6; Kamisar 1987 86 Michigan LR 1 131. See further § 12.10
below.
36 Stewart "The Road to Mapp v Ohio and Beyond: The Origins, Development and Future of
the Exclusionary Rule in Search and Seizure Cases" 1983 83 Columbia LR 1365 1394 notes that
"there is absolutely no evidence that the exclusionary rule is in any way responsible for the
horrible increase in the crime rate in the United States." See also LaFave Search and Seizure:
A Treatise on the Fourth Amendment 2 ed (1987) 22 n 6; Kamisar 1987 86 Michigan LR 1 131.
See further § 12.10 below.
Footnote - 37
37 Cardozo J in People v Defore supra. But there is a fundamental flaw in this line of reasoning. If
you are going to deal with a corrupt or ignorant policeman, there will always be loss of reliable
evidence irrespective of the fact whether an exclusionary or inclusionary rule is adopted. See also
Heydon Evidence: Cases and Materials 3 ed (1991) 260-4.
37 Cardozo J in People v Defore supra. But there is a fundamental flaw in this line of
reasoning. If you are going to deal with a corrupt or ignorant policeman, there will always be
loss of reliable evidence irrespective of the fact whether an exclusionary or inclusionary rule is
adopted. See also Heydon Evidence: Cases and Materials 3 ed (1991) 260-4.
Footnote - 38
38 R v Mabuya 1927 CPD 181 182.
38 R v Mabuya 1927 CPD 181 182.
Footnote - 39
39 Barrett "The Exclusion of Evidence Obtained by Illegal Searches — A Comment on People v

Cahan" 1955 43 California LR 565 582.
39 Barrett "The Exclusion of Evidence Obtained by Illegal Searches — A Comment on People

v Cahan" 1955 43 California LR 565 582.
Footnote - 40
40 Waite "Judges and the Crime Burden" 1955 54 Michigan LR 169 192.
40 Waite "Judges and the Crime Burden" 1955 54 Michigan LR 169 192.
Footnote - 41
41 Exclusionary Injustice 63.
41 Exclusionary Injustice 63.

Footnote - 42
42 It is interesting to compare the German approach as set out by Morissette "The Exclusion of
Evidence under the Canadian Charter of Rights and Freedoms: What to do and not to do" 1984 29
McGill LJ 521 530: "The Rechtsstaatsprinzip (or Rule of Law) requires the exclusion of evidence,
regardless of its weight or value, in cases of police brutality or other aggravated illegality. The
Verhültnismüssigkeit (or principle of proportionality) calls for the exclusion of probative evidence
where the means by which it was obtained are excessively intrusive in view of the triviality of the
offence investigated and the particular sphere of privacy thus invaded. According to one fitting
metaphor, the principle of proportionality means that one should not shoot sparrows with a cannon."
Stewart 1983 83 Columbia LR 1365 1396 concludes as follows: "[D]isproportionality is significant
only if one conceives the purpose of the rule as compensation for the victim. Because I view the
exclusionary rule as necessary to preserve Fourth Amendment guarantees, I do not find this
criticism persuasive."
42 It is interesting to compare the German approach as set out by Morissette "The Exclusion
of Evidence under the Canadian Charter of Rights and Freedoms: What to do and not to do"
1984 29 McGill LJ 521 530: "The Rechtsstaatsprinzip (or Rule of Law) requires the exclusion of
evidence, regardless of its weight or value, in cases of police brutality or other aggravated
illegality. The Verhültnismüssigkeit (or principle of proportionality) calls for the exclusion of
probative evidence where the means by which it was obtained are excessively intrusive in view
of the triviality of the offence investigated and the particular sphere of privacy thus invaded.
According to one fitting metaphor, the principle of proportionality means that one should not
shoot sparrows with a cannon." Stewart 1983 83 Columbia LR 1365 1396 concludes as follows:
"[D]isproportionality is significant only if one conceives the purpose of the rule as
compensation for the victim. Because I view the exclusionary rule as necessary to preserve
Fourth Amendment guarantees, I do not find this criticism persuasive."
Footnote - 43
43 Schlesinger Exlusionary Injustice 63.
43 Schlesinger Exlusionary Injustice 63.
Footnote - 44
44 See generally Shanks "Comparative Analysis of the Exclusionary Rules and its Alternatives"
1983 57 Tulane LR 648.
44 See generally Shanks "Comparative Analysis of the Exclusionary Rules and its
Alternatives" 1983 57 Tulane LR 648.
Document 99 of 330
12.4 The theoretical basis and practical purpose of the

exclusionary approach
In contradistinction to those pragmatic considerations which underlie the
inclusionary rule, the arguments in favour of an exclusionary rule are less
concrete and more subtle.
12.4.1 The "preventive effect" argument

In Elkins v United States the court held that the purpose of the exclusionary rule
is "to deter — to compel respect for the constitutional guaranty in the only
effective way by removing the incentive to disregard it". 46 This deterrent purpose
or basis of the exclusionary rule has been subjected to severe criticism. 47 In
response it has been argued that "deterrence" must not be viewed in a narrow
traditional sense and that its "educative" role and ultimate preventive effect 48
are more important than immediate deterrence. Kamisar notes: 49
"Deterrence suggests that the exclusionary rule is supposed to influence the police
the way the criminal law is supposed to affect the general public. But the rule does
not, and cannot be expected to, deter the police the way the criminal law is
supposed to work. The rule does not inflict a punishment on police who violate the
Fourth Amendment: exclusion of the evidence does not leave the police in a worse
position than if they had never violated the Constitution in the first place. Because
the police are members of a structural governmental entity, however, the rule
influences them, or is supposed to influence them, by systemic deterrence ie
through a department's institutional compliance with Fourth Amendment standards."
In S v Mphala Cloete J, in excluding evidence in terms of s 35(5) of the
Constitution, specifically referred to "the disciplinary function of the Court". 50
This case is
3rd Ed, 2009 ch12-p190
discussed in §§ 12.9.5 and 12.10.1 below. S v Soci — which was also decided
under s 35(5) of the Constitution — is a clear example of a case where the court
had to resort to "systemic deterrence" as a basis for excluding evidence of a
pointing out obtained in breach of constitutional rights. This case is also discussed
in § 12.10.1 below.
12.4.2 Due process in the context of a bill of rights

The exclusionary rule is founded in the concept of due process which rejects the
idea that there must be ascertainment of the truth at any cost. Unconstitutionally
obtained evidence should be excluded because its admission compromises other
more important values. 52 It is argued that the primary function or goal of a
criminal justice system is not merely to secure the conviction of an accused but to
ensure that a conviction takes place in terms of a procedure which duly and
properly acknowledges the rights of an accused at every critical stage during pre-
trial, trial and post-trial proceedings. This due process argument gathers
momentum when presented in the light of a bill of rights which demands and
guarantees due process, and which places important constitutional limitations
upon official power. For if evidence is obtained in breach of these constitutional
rights and allowed into evidence, the status of these constitutional guarantees will
inevitably be undermined. 53
The exclusionary rule is concerned with legality in the criminal process. This
legality ranges from search, seizure, and arrest through to trial proceedings and
final appeal or review. The police and prosecution are required to operate within a
system in which civil liberties and due process are constitutionally guaranteed.
Therefore it is inappropriate to justify or condemn the exclusionary rule on the
basis of whether it provides an incentive for the police to comply with
constitutional guarantees. If the exclusionary rule provides an incentive for
compliance, this must merely be considered an additional advantage. Similarly,
the fact that incentives to comply with the law might also be gained from
departmental enquiries or civil actions, is also irrelevant.
Where due process is constitutionally guaranteed the prosecution's attempt to
introduce unconstitutionally obtained evidence may be viewed as a request that
the court act contrary to the spirit and perhaps express provisions of the
Constitution. Evidence, however relevant and persuasive it might be, should in
principle be excluded where the admission of such evidence would undermine the
value system created and guaranteed by a bill of rights. In terms of this
argument the exclusionary rule is not merely an evidential barrier to fact-finding;
it is a constitutional barrier. 54 It can be argued that real meaning and effect are
given to constitutional provisions through the medium of the law of evidence. 55
The reason for excluding unconstitutionally obtained evidence is not to provide
the aggrieved accused with
3rd Ed, 2009 ch12-p191
some form of personal remedy 56 or some distorted form of "compensation", but

to ensure that a court of law can in accordance with its constitutional duty make a
valuable contribution to the upholding of constitutional principles which govern
the criminal justice system as a whole. 57
Although the exclusionary rule may sometimes result in the factually guilty
being acquitted, this undesirable result is justified on the basis that the purpose
of the exclusionary rule is not to provide a remedy to that particular accused —
but to ensure that in the long run other citizens are not deprived of their
constitutional rights. In this context the interests of social justice prevail over
those of individual justice. 58
12.4.3 The doctrine of legal guilt

The role that the exclusionary rule plays in ensuring that the notion of legality is
retained in the criminal justice system is supported by the due process doctrine of
legal guilt. In terms of this doctrine of legal guilt 59
"… a person is not to be held guilty of a crime merely on a showing that in all
probability, based upon reliable evidence, he did factually what he is said to have
done. Instead, he is to be held guilty if and only if these factual determinations are
made in procedurally regular fashion and by authorities acting within competences
duly allocated to them."
This doctrine can also be detected in the South African criminal justice system as
it stood prior to constitutionalization. 60 For example, in S v Lwane the
prosecution had tendered, and the trial court had received, evidence which had
been obtained from the accused at an earlier preparatory examination where he
had testified and inculpated himself in his capacity as a witness. At the
preparatory examination the accused (witness) had not been warned that he was
not obliged to give evidence exposing himself to a criminal charge. The trial court
convicted the accused on the basis of his self-incriminating evidence which he
had, as a witness, given at the preparatory examination. On appeal Holmes JA
held: 62
"The … question is whether such evidence given in the absence of judicial warning is
admissible on the prosecution of the witness. As to that, the pragmatists may say
that the guilty should be punished and that if the accused has previously confessed
as a witness it is in the interests of society that he be convicted. The answer is that
between the individual and the day of judicial reckoning there are interposed certain
checks and balances in the interests of a fair trial and the due administration of
justice. The rule of practice to which I have referred is one of them, and it is
important that it be not eroded. According to the high judicial tradition of this
country it is not in the interests of society that an accused should be convicted
unless he has had a fair trial in accordance with accepted tenets of adjudication."
3rd Ed, 2009 ch12-p192
12.4.4 Judicial integrity

The Supreme Court of the United States has identified "the imperative of judicial
integrity" as an important rationale of the exclusionary rule. 63 It would appear
that there are at least four interrelated facets to this rationale, namely, that by
admitting unconstitutionally obtained evidence (a) courts themselves will violate
the Constitution; 64(b) courts will act contrary to their oath to uphold the
Constitution; 65(c) courts will indirectly encourage violations of the Constitution;
66 and (d) courts will somehow create the impression that they sanction or
condone unconstitutional conduct by government officials. 67
However, it should be noted that the "judicial integrity" argument loses much
ground in those situations where a discretionary rule of exclusion is specifically
provided for in the Constitution — as is the case in respect of s 35(5) of the South
African Constitution and s 24(4) of the Canadian Charter. In these instances the
rule itself does not require the exclusion of all unconstitutionally obtained
evidence. But this does not mean that a court, in exercising its discretion in terms
of s 35(5), should ignore "judicial integrity" considerations. This point was
forcefully made by Plasket J in S v Hena:
"On taking office, Judges take an oath of office in which they swear or affirm to
'uphold and protect the Constitution and the human rights entrenched in it' and to
administer justice 'to all persons alike without fear, favour or prejudice, in
accordance with the Constitution and the law'. See item 6(1) of Schedule 2 to the
Constitution… The situation must be actively guarded against where the protection
afforded all of us by the Constitution may be eroded through a lack of vigilance or
for the sake of expediency. Central to the role of the Judiciary is the protection of
the integrity of the criminal justice system and the promotion of proper and
acceptable police investigation techniques. In this case, there is evidence of an
abdication of responsibility on the part of the police, as a matter of policy or
practice, 'sub-contracting' their investigation functions to anti-crime committees.
The unlawfulness of that is patent, and the consequences that flowed from it in this
case should not surprise anyone. Untrained civilians, not subject to the hierarchial
discipline of the police service and not subject to political and administrative
oversight, took the law into their own hands. (I have had occasion previously to
warn of the consequences of this. See S v T2005 (2) SACR 318 (E) at paras [37] -
[40].) It would undermine both the Constitution and the integrity of the criminal
justice system to allow this systemic abuse to go unchecked. This is clearly a factor
that weighs heavily against the admission of the tainted evidence." 68
12.4.5 The principle of self-correction

An effective due process system must have the inherent ability to correct abuses
within the system; 69 and it must be able to do so at the first moment that it is
established that there has been an abuse.
3rd Ed, 2009 ch12-p193
To argue that a separate criminal charge (or a civil action for damage to property,
for assault, or for an illegal arrest, etc) against the perpetrator is the appropriate
remedy, amounts to a tacit admission that the relevant criminal justice system:
• is not truly a due process one, because, for purposes of adjudication, it
tolerates infringements of rights which are otherwise considered essential
for due process;
• is for the maintenance or perpetuation of its status as a fair and just system
dependent upon (or in need of being propped up by) whatever civil action
the accused may or may not institute against the perpetrator, or whatever
criminal charges the authorities (or the accused) may follow up;
• cannot operate unless abuses are accommodated on an internal level.
Acceptance of the principle of self-correction leads to a further valid argument.
The exclusionary rule is not primarily aimed at discouraging unconstitutional
official conduct: its true purpose is to serve as an effective internal tool for
maintaining and protecting the value system as a whole. But if officials are as a
result of the exclusionary rule deterred from infringing fundamental rights, then
so much the better.
12.4.6 Primary rules and the secondary rule (the exclusionary

rule)
It can also be argued that the exclusionary rule merely reinforces existing rules
regulating police powers. Van Rooyen makes this point as follows: 70
"It is usually said against the exclusionary rule that exclusion of illegally obtained
evidence infringes the principle that all relevant and credible evidence should be
admitted at an accused's trial. However, upon close analysis it is clear that the policy
decision that certain relevant and credible evidence may not be obtained unless
certain prerequisites are met — ie that relevant and credible evidence should not be
gathered at all costs — has already been taken by the rules regulating pre-trial
police powers (which I shall call 'primary rules') and is not newly imposed by the
exclusionary rule (the 'secondary rule'). The secondary rule merely 'enforces' the
primary rules: if, for example, the police in a given case voluntarily obey the primary
rules, the result may well be that certain evidence is lost and will accordingly not be
used at the trial — a calculated risk that we must run if we are to have legal limits
on police powers to infringe individual interests; if, on the other hand, the police
flout the primary rules, the secondary rule simply achieves the same result."
S v Naidoo — decided under s 35(5) of the Constitution — provides a good

example of a case where flouting of the primary rules led to exclusion of the
evidence. This case is discussed in § 12.10.1 below.
Footnote - 45
45 364 US 206 217 (1960).
45 364 US 206 217 (1960).
Footnote - 46
46 See also LaFave Search and Seizure 17. In S v Pillay2004 (2) SACR 419 (SCA) Mpati DP and
Motata AJA said (at [94]) that to admit the impugned real evidence indirectly obtained as a result of a
serious breach of the second appellant's constitutional right to privacy "might create an incentive for
law enforcement agents to disregard accused persons' constitutional rights … That result — of
creating an incentive for the police to disregard accused persons' constitutional rights, particularly in
cases like the present, where a judicial officer is misled — is highly undesirable and would … do more
harm to the administration of justice than enhance it."
46 See also LaFave Search and Seizure 17. In S v Pillay2004 (2) SACR 419 (SCA) Mpati DP
and Motata AJA said (at [94]) that to admit the impugned real evidence indirectly obtained as a
result of a serious breach of the second appellant's constitutional right to privacy "might create
an incentive for law enforcement agents to disregard accused persons' constitutional rights …
That result — of creating an incentive for the police to disregard accused persons'
constitutional rights, particularly in cases like the present, where a judicial officer is misled — is
highly undesirable and would … do more harm to the administration of justice than enhance it."
Footnote - 47
47 Oaks "Studying the Exclusionary Rule in Search and Seizure" 1970 37 Univ of Chicago LR 665.
47 Oaks "Studying the Exclusionary Rule in Search and Seizure" 1970 37 Univ of Chicago LR
665.
Footnote - 48
48 See Stone v Powell 428 US 465 492 (1976).
48 See Stone v Powell 428 US 465 492 (1976).
Footnote - 49
49 Kamisar 1987 86 Michigan LR 1 34 n 147.
49 Kamisar 1987 86 Michigan LR 1 34 n 147.
Footnote - 50
50 1998 (1) SACR 388 (W) 400b.
50 1998 (1) SACR 388 (W) 400b.
Footnote - 51
51 1998 (2) SACR 275 (E).

51 1998 (2) SACR 275 (E).
Footnote - 52
52 Packer The Limits of the Criminal Sanction (1968) 149-72. See also generally Herrmann 1978
SACC 3 as well as S v Mthembu2008 (2) SACR 407 (SCA) at [36].
52 Packer The Limits of the Criminal Sanction (1968) 149-72. See also generally Herrmann
1978 SACC 3 as well as S v Mthembu2008 (2) SACR 407 (SCA) at [36].
Footnote - 53
53 See Weeks v United States 232 US 383 393 (1914); Oaks 1970 37 Univ of Chicago LR 665;
Schwikkard 1991 SALJ 318 326.
53 See Weeks v United States 232 US 383 393 (1914); Oaks 1970 37 Univ of Chicago LR
665; Schwikkard 1991 SALJ 318 326.
Footnote - 54
54 See Mapp v Ohio 367 US 643 662 (1961).
54 See Mapp v Ohio 367 US 643 662 (1961).
Footnote - 55
55 See Paizes 1989 SALJ 472 478.
55 See Paizes 1989 SALJ 472 478.
Footnote - 56
56 See Cleary (ed) McCormick on Evidence 3 ed (1984) 463.
56 See Cleary (ed) McCormick on Evidence 3 ed (1984) 463.
Footnote - 57
57 See Gard (ed) Jones on Evidence: Civil and Criminal 13. See also generally S v Tandwa2008 (1)
SACR 613 (SCA) at [120]-[121].
57 See Gard (ed) Jones on Evidence: Civil and Criminal 13. See also generally S v
Tandwa2008 (1) SACR 613 (SCA) at [120]-[121].
Footnote - 58
58 See generally Kamisar 1987 86 Michigan LR 130; Diamond "The State and the Accused: Balance
of Advantage in Criminal Procedure" 1960 69 Yale LJ 1149.
58 See generally Kamisar 1987 86 Michigan LR 130; Diamond "The State and the Accused:
Balance of Advantage in Criminal Procedure" 1960 69 Yale LJ 1149.
Footnote - 59
59 Packer The Limits of the Criminal Sanction 166. See also Van Rooyen 1975 Acta Juridica 70 78.
59 Packer The Limits of the Criminal Sanction 166. See also Van Rooyen 1975 Acta Juridica
70 78.
Footnote - 60
60 See, eg, S v Mushimba1977 (2) SA 829 (A); S v Zulu1990 (1) SA 655 (T); S v Ebrahim1991 (2)
SA 553 (A).
60 See, eg, S v Mushimba1977 (2) SA 829 (A); S v Zulu1990 (1) SA 655 (T); S v
Ebrahim1991 (2) SA 553 (A).
Footnote - 61
61 1966 (2) SA 433 (A).
61 1966 (2) SA 433 (A).
Footnote - 62
62 At 444C-E.
62 At 444C-E.
Footnote - 63
63 Elkins v United States supra. See also generally Osakwe "The Bill of Rights for the Criminal
Defendant in American Law: A Case Study of Judicial Lawmaking in the United States" in Andrews
(ed) Human Rights in Criminal Procedure: A Comparative Study (1982) 259 280.
63 Elkins v United States supra. See also generally Osakwe "The Bill of Rights for the Criminal
Defendant in American Law: A Case Study of Judicial Lawmaking in the United States" in
Andrews (ed) Human Rights in Criminal Procedure: A Comparative Study (1982) 259 280.
Footnote - 64
64 Janis v United States 428 US 443 458 (1966).
64 Janis v United States 428 US 443 458 (1966).
Footnote - 65
65 Elkins v United States supra 223.
65 Elkins v United States supra 223.
Footnote - 66
66 Janis v United States supra.
66 Janis v United States supra.
Footnote - 67
67 See generally Olmstead v United States 277 US 438 485 (1928). Cf Kaplan "The Limits of the
Exclusionary Rule" 1974 26 Stanford LR 1027.
67 See generally Olmstead v United States 277 US 438 485 (1928). Cf Kaplan "The Limits of
the Exclusionary Rule" 1974 26 Stanford LR 1027.
Footnote - 68
68 2006 (2) SACR 33 (SE) at 41f-42a. See also S v Mthembu2008 (2) SACR 407 (SCA) at [33],
where Cachalia J put the emphasis on the integrity of the judicial process.
68 2006 (2) SACR 33 (SE) at 41f-42a. See also S v Mthembu2008 (2) SACR 407 (SCA) at
[33], where Cachalia J put the emphasis on the integrity of the judicial process.
Footnote - 69
69 See Packer The Limits of the Criminal Sanction 167-8; Damaska "Evidentiary Barriers to
Conviction and Two Models of Criminal Procedure" 1973 121 Univ of Pennsylvania LR 506 583.
69 See Packer The Limits of the Criminal Sanction 167-8; Damaska "Evidentiary Barriers to
Conviction and Two Models of Criminal Procedure" 1973 121 Univ of Pennsylvania LR 506 583.
Footnote - 70
70 1975 Acta Juridica 70 79.
70 1975 Acta Juridica 70 79.
Footnote - 71
71 1998 (1) SACR 479 (N). See also the majority decision in S v Pillay2004 (2) SACR 419 (SCA).
71 1998 (1) SACR 479 (N). See also the majority decision in S v Pillay2004 (2) SACR 419
(SCA).
Document 100 of 330
12.5 The exclusionary rule in the USA: A brief survey

In § 12.1 above it was pointed out that the exclusionary rule in the USA is a
judicially created rigid rule save for certain exceptions which were also judicially
3rd Ed, 2009 ch12-p194
created. This is not an ideal situation. 72 It is submitted, however, that the

exceptions which the Supreme Court of the USA has created in respect of its own
rule, can assist South African courts in their interpretation of s 35(5) of the
Constitution — especially as regards the second (alternative) leg of the test in s
35(5), that is, whether admission of the evidence "would otherwise be
detrimental to the administration of justice" (see § 12.10 below). After all, s
39(1) of the Constitution itself provides that "[w]hen interpreting the Bill of
Rights, a court … may consider foreign law."
12.5.1 The rule in Mapp

The Fourth Amendment to the Constitution of the USA, provides as follows:
"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized."
In 1914 it was held that evidence obtained by federal agents in breach of the
Fourth Amendment, had to be excluded in a federal prosecution. 73 Almost five
decades later, it was held in Mapp v Ohio that the rule also applied in state trials
and to all evidence obtained by law enforcement officers in violation of the Fourth
Amendment. 75 This exclusionary rule, which is sometimes referred to as "the
rule in Mapp", extends to "the fruit of the poisonous tree" 76 — an approach which
is subject to the qualification identified in § 12.5.1.1(f) below. The rule in Mapp is
also subject to several other general principles (see § 12.5.1.1 below) and at
least three important exceptions (see §§ 12.5.1.2 to 12.5.1 4 below).
3rd Ed, 2009 ch12-p195
12.5.1.1 General principles limiting the ambit of the rule in Mapp

The ambit of the rule in Mapp is — quite apart from issues as to what conduct
would or would not in terms of American jurisprudence amount to unreasonable
searches and seizures for purposes of the Fourth Amendment 77 — limited by six
general principles: (a) The accused must have so-called "standing" — a
requirement that is explained and discussed in § 12.8.3 below. (b) The rule does
not apply to a civil tax action initiated by the federal government, 78 or to
evidence secured by a private individual as opposed to a state official. 79 (c) Real
evidence which the prosecutor could on account of the rule in Mapp not have
produced in the course of presenting the case for the prosecution, can — for the
limited purpose of impeaching credibility — be introduced to contradict a
statement made by an accused in evidence in chief 80 or cross-examination. 81(d)
The Fourth Amendment does not apply to the unlawful search and seizure by USA
agents of property located in a foreign country and owned by an accused who is a
non-resident alien; 82 and the rule in Mapp can, therefore, in these circumstances
not be invoked to exclude evidence obtained in the course of such an extra-
territorial operation. 83(e) Evidence inadmissible under the rule in Mapp, may be
used by a grand jury in deciding whether to indict an accused. 84(f) Where the
connection between the unconstitutional conduct of the police and the discovery
of the challenged evidence is "so attenuated as to dissipate the taint", 85
exclusion is not required. 86 This is probably just another way of saying that on
the facts of the case there was a break in the causal chain between the Fourth
Amendment violation and its evidentiary "fruit" 87 — an issue which has also
received judicial attention in South African and Canadian jurisprudence (see §
12.8.2 below).
3rd Ed, 2009 ch12-p196
12.5.1.2 The "good faith" exception

The Supreme Court has held that where the police had acted reasonably and in
good faith in relying on a statute 88 or a warrant, 89 there can be no deterrent
reason for excluding the evidence.
In Arizona v Evans a police officer, after having lawfully pulled the accused's
car over on account of a traffic violation, ran a computer check which indicated
that there was an outstanding warrant for the arrest of the accused. The accused
was arrested on the basis of this warrant; and in the course of a "lawful" search
of the accused and his car, dagga was found. It only turned out later that the
outstanding warrant on which the accused was arrested, had been invalidated by
a court fourteen days prior to the arrest and that, due to an oversight by a court
clerk, the computer records on which the police officer had relied, were never
corrected. Rehnquist CJ held that the exclusionary rule was originally designed
not to counter mistakes made by court clerks who do not form part of the police.
It was concluded that the police officer concerned had acted objectively
reasonably and in good faith. The real evidence could be received (see also §
12.10.1 below).
12.5.1.3 The "independent source" exception

If police officers discover real evidence in breach of the Fourth Amendment and,
subsequent to such discovery, other police officials were to obtain the necessary
search warrant on the basis of information constitutionally obtained (for example,
from informers and through permissible police surveillance), the real evidence
seized in terms of the warrant will be admissible on the ground that it was
secured through sources independent from — and wholly unconnected with 91 —
the initial unconstitutional discovery. 92 Langenhoven has suggested that the
"independent source" doctrine should also be applied in the application of s 35(5)
of the South African Constitution 93 (see also § 12.10.6 below).
12.5.1.4 The "stop and frisk" exception

Real evidence obtained during a so-called "stop and frisk" (a police officer's brief
"field detention" of a person and the patting down of the outer clothing of the
person on the basis of the police officer's
3rd Ed, 2009 ch12-p197
reasonable belief that criminal activity is afoot) is admissible 94 despite the fact
that such conduct does, strictly speaking, fall short of the requirements set by the
Fourth Amendment. It has been said that the "stop and frisk" procedure is "of
considerable importance both in principle and in practice". 95 In fact, the "stop
and frisk" exception (if it is indeed an exception and not merely a restrictive
interpretation of the Fourth Amendment) high-lights the absurdity of a rigid
exclusionary rule and underlines the importance of a flexible rule which permits a
balancing, or comparative assessment, of the needs of the police and the rights
of the individual. It has been suggested 96 (correctly, it is submitted) that South
African courts should in their interpretation of s 35(5) of the Constitution follow
the rationale of the rule established in Terry v Ohio. 97
12.5.2 The Miranda-warnings
These warnings were established by a five to four majority in Miranda v Arizona:
98
"[W]e hold that when an individual is taken into custody or otherwise deprived of his
freedom by the authorities in any significant way and is subjected to questioning,
the privilege against self-incrimination is jeopardized. Procedural safeguards must be
employed to protect the privilege … [T]he following measures are required. He must
be warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires. Opportunity to exercise
these rights must be afforded to him throughout the interrogation. After such
warnings have been given, and such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to answer questions or
make a statement. But unless and until such warnings and waiver are demonstrated
by the prosecution at trial, no evidence obtained as a result of interrogation can be
used against him."
These rules were designed to protect 99 the Fifth Amendment privilege against
self-incrimination: "No person … shall be compelled in any criminal case to be a
witness against himself". The court took the view that the point at which the
adversary system of criminal proceedings commences is "when the accused is
first subjected to police interrogation while in custody … or otherwise deprived of
freedom of action in any significant way." 100
The Sixth Amendment right to counsel was incorporated in the Miranda-
warnings in order to secure effective protection of the privilege against self-
incrimination: there is a right to consult counsel prior to police questioning and to
have counsel present during such questioning. 101 Where an accused has initially
waived this right but reasserts it during questioning, all questioning must stop. All
questioning
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must also cease "[if] the individual indicates in any manner, at any time … during
questioning, that he wishes to remain silent." 102
In Miranda v Arizona it was specifically pointed out that the warnings are
prerequisites to the admissibility of any statement made by an accused:
inculpatory as well as exculpatory statements fall within the rule and no
distinction can be drawn between confessions and admissions, because the
privilege against self-incrimination "does not distinguish degrees of self-
incrimination". 103
12.5.2.1 The ambit of the exclusionary rule in Miranda 104
The exclusionary rule in Miranda does not apply to responses received from
individuals in the course of "[g]eneral on-the-scene [police] questioning as to
facts surrounding a crime or other general questioning of citizens in the fact-
finding process". 105Miranda is confined to "custodial interrogation" or
interrogation where the individual has been deprived of his freedom in any
significant way. 106 And it has been held that the Miranda safeguards are not only
activated by "express questioning" of the accused, but also its "functional
equivalent", that is, where the police, after having administered the warnings,
use words or take actions which "the police should know are reasonably likely to
elicit an incriminating response from the suspect". 107
Any statement obtained after a valid waiver, is admissible. 108 A waiver of
rights is valid where the suspect did so voluntarily, knowingly and intelligently.
109 In Oregon v Elstad the accused made a non-coerced statement in the absence
of the Miranda-warnings. Later that same day he made a second statement which
was properly preceded by the Miranda-warnings. The first statement was
excluded. The second statement, the court held, could be admitted. The court
rejected the accused's argument that for purposes of the second statement he
was unable to give a fully informed waiver since he was unaware that his first
statement could not be used. The court held that it was "neither practicable nor
constitutionally necessary" 111 that the accused should in respect of the second
statement have been informed that the first statement could not be used by the
prosecution. The court also noted
3rd Ed, 2009 ch12-p199
that, in the case of the accused, "the causal connection between any
psychological disadvantage created by his [first statement] and his ultimate
decision to cooperate is speculative and attenuated at best". 112
In Moran v Burbine the Miranda-warnings were properly administered. The
police, however, did not inform the suspect that a lawyer arranged by a family
member had attempted to reach him. They also misinformed counsel that the
suspect would not be questioned. The court — by a six to three majority —
nevertheless concluded that the accused's waiver was valid because "[e]vents
occurring outside of the presence of the suspect and entirely unknown to him
surely can have no bearing on the capacity to comprehend and knowingly
relinquish a constitutional right". 114 The waiver, according to the court, was also
valid because the accused's "voluntary decision to speak was made with full
awareness and comprehension of all the information Miranda requires the police
to convey". 115 This decision must be compared with S v Mphala, 116 which was
decided under s 35(5) of the South African Constitution and which is discussed in
§ 12.9.5 below.
The evidence of a prosecution witness identified as a result of an accused's
non-coerced but inadmissible statement obtained in breach of Miranda, is
admissible. 117 In such an instance, the conduct of the police did not violate the
accused's "constitutional privilege against compelled self-incrimination, but
departed only from the prophylactic standards laid down … in Miranda to
safeguard the privilege"; 118 and the testimony of the witness can therefore not
be suppressed as a fruit of the poisonous tree. A non-coerced confession obtained
in violation of Miranda is inadmissible, but real evidence discovered as a result of
such an inadmissible statement is admissible (see § 12.9.7 below).
12.5.2.2 The "public safety" exception

In New York v Quarles it was decided that there is a "public safety" exception to
the requirement that Miranda-warnings be given before a suspect's answers may
be received as evidence to prove guilt: "[A] situation posing a threat to public
safety outweighs the need for the prophylactic rule protecting the Fifth
Amendment's privilege against self-incrimination." 120New York v Quarles is
discussed in more detail in § 12.9.4 below.
12.5.2.3 The "impeachment" exception

In Oregon v Hass and Harris v New York it was decided that an accused's pre-trial
statement which would have been admissible as part of the prosecution's case
but for the fact that Miranda-warnings were not given, may in cross-examination
be used for the limited purpose of attacking
3rd Ed, 2009 ch12-p200
the credibility of the accused if the accused's evidence in chief happens to be

inconsistent with such a pre-trial statement. This rule is, in the context of South
African and Canadian jurisprudence and constitutional provisions, discussed in §
25.5 below.
12.5.2.4 The "inevitable discovery" exception
This exception was created in Nix v Williams. 123 Evidence of the accused's non-
coerced statements to the police and of the fact that he had led the police to the
deceased's body, was inadmissible because it had been obtained as a result of an
improper police "interrogation" 124 in breach of the accused's Sixth Amendment
right to counsel. However, the court ruled that evidence of the condition of the
body was admissible. The court rejected the "fruit of the poisonous tree"
argument advanced on behalf of the accused. It was held that the body of the
deceased would inevitably have been discovered by "lawful means". The lawful
means the court relied on was the fact that prior to and at the time of the
improper police interrogation, a massive and systematic search for the body of
the deceased was in progress. The search party consisted of some 200 volunteers
and police who were not involved in the improper interrogation of the accused. A
grid system was used. The court concluded that this search party would
ultimately have discovered the body if it had not been for the fact that the search
was called off after the accused had — as a result of the improper interrogation —
led the police to the body. The court did not — and could not — rely on the
"independent source" exception (see § 12.1.5.3 above) in admitting the evidence.
However, Burger CJ reasoned and found as follows: 125
"[W]hile the independent source exception would not justify admission of the
evidence in this case, its rationale is wholly consistent with and justifies our adoption
of the ultimate or inevitable discovery exception to the Exclusionary Rule … If the
information ultimately or inevitably would have been discovered by lawful means —
here the volunteers' search — then the deterrence rationale has so little basis that
the evidence should be received. Anything less would reject logic, experience, and
common sense."
The clear implication of Nix v Williams is that the evidence of the condition of the
body would have been excluded in the absence of a finding of inevitable
discovery. What if the search party had consisted of six people engaged in a
haphazard search? Whilst the result in Nix v Williams is certainly acceptable, this
case also illustrates the rather contrived and somewhat artificial arguments which
are required to side-step a rigid exclusionary rule.
Footnote - 72
72 In S v Shongwe1998 (2) SACR 321 (T) 341d-e Preller AJ observed as follows with reference to
the position in the USA: "Dit lyk vir my ongewens dat die hoogste hof van 'n land 'n reël formuleer,
net om agterna deur realiteite geforseer te word om die een uitsondering na die ander daarop te
skep. Vir litigante het dit die ongelukkige gevolg dat as die tersaaklike optrede nie tuisgebring kan
word onder een van die geykte uitsonderings nie, die saak tot in die hoogste hof gevoer moet word,
sodat 'n nuwe uitsondering in 'n gepaste geval geskep kan word."
72 In S v Shongwe1998 (2) SACR 321 (T) 341d-e Preller AJ observed as follows with
reference to the position in the USA: "Dit lyk vir my ongewens dat die hoogste hof van 'n land
'n reël formuleer, net om agterna deur realiteite geforseer te word om die een uitsondering na
die ander daarop te skep. Vir litigante het dit die ongelukkige gevolg dat as die tersaaklike
optrede nie tuisgebring kan word onder een van die geykte uitsonderings nie, die saak tot in
die hoogste hof gevoer moet word, sodat 'n nuwe uitsondering in 'n gepaste geval geskep kan
word."
Footnote - 73
73 Weeks v United States 323 US 383 (1914). This case should be read with Boyd v United States
116 US 616 (1886) and compared with Adams v NY 192 US 585 (1904). In the latter case the
common-law inclusionary approach still held sway.
73 Weeks v United States 323 US 383 (1914). This case should be read with Boyd v United
States 116 US 616 (1886) and compared with Adams v NY 192 US 585 (1904). In the latter
case the common-law inclusionary approach still held sway.
Footnote - 74
74 367 US 643 (1961). This case overruled Wolf v Colorado 338 US 25 (1949) on this point. Mapp
v Ohio supra was preceded by Rochin v California 342 US 165 (1952), where real evidence was
excluded on the basis that it was obtained by methods that shocked "the conscience" (at 172).
74 367 US 643 (1961). This case overruled Wolf v Colorado 338 US 25 (1949) on this point.
Mapp v Ohio supra was preceded by Rochin v California 342 US 165 (1952), where real
evidence was excluded on the basis that it was obtained by methods that shocked "the
conscience" (at 172).
Footnote - 75
75 Mapp v Ohio was preceded by Elkins v United States 364 US 206 (1960), where the Supreme
Court rejected the so-called "silver platter" doctrine in terms of which evidence unconstitutionally
procured by state officials and handed over to federal officials, could be received in federal criminal
proceedings. This doctrine, concluded the court, violated the Fourth Amendment prohibition against
unreasonable search and seizure. Standards or criteria to determine whether federal and state
searchers complied with the Fourth Amendment, are the same. See Kerr v California 374 US 23
(1963).
75 Mapp v Ohio was preceded by Elkins v United States 364 US 206 (1960), where the
Supreme Court rejected the so-called "silver platter" doctrine in terms of which evidence
unconstitutionally procured by state officials and handed over to federal officials, could be
received in federal criminal proceedings. This doctrine, concluded the court, violated the Fourth
Amendment prohibition against unreasonable search and seizure. Standards or criteria to
determine whether federal and state searchers complied with the Fourth Amendment, are the
same. See Kerr v California 374 US 23 (1963).
Footnote - 76
76 Acker & Brody Criminal Procedure — A Contemporary Perspective (1999) 114 explain as follows
with reference to Katz v United States 389 US 347 (1967): "[T]he exclusionary rule is designed to
deter the police from violating people's Fourth Amendment rights. Application of the rule normally
prohibits evidence directly resulting from an illegal search or seizure from being used to prove guilt
in a criminal trial. The 'fruit of the poisonous tree' is the colourful metaphor describing the
relationship between a constitutional violation and the related discovery of evidence. If the evidence
— the 'fruit' — is a direct product of the illegality — the 'poisonous tree' — then it is tainted by the
constitutional violation and should not be used in a trial. For example, the 'fruit' of the unreasonable
search conducted in Katz v United States was the telephone conversation overheard by the
authorities, which was ruled inadmissible as evidence." See further § 12.9.6 below.
76 Acker & Brody Criminal Procedure — A Contemporary Perspective (1999) 114 explain as
follows with reference to Katz v United States 389 US 347 (1967): "[T]he exclusionary rule is
designed to deter the police from violating people's Fourth Amendment rights. Application of
the rule normally prohibits evidence directly resulting from an illegal search or seizure from
being used to prove guilt in a criminal trial. The 'fruit of the poisonous tree' is the colourful
metaphor describing the relationship between a constitutional violation and the related
discovery of evidence. If the evidence — the 'fruit' — is a direct product of the illegality — the
'poisonous tree' — then it is tainted by the constitutional violation and should not be used in a
trial. For example, the 'fruit' of the unreasonable search conducted in Katz v United States was
the telephone conversation overheard by the authorities, which was ruled inadmissible as
evidence." See further § 12.9.6 below.
Footnote - 77
77 See generally Bradley (ed) Criminal Procedure: A Worldwide Study 2 ed (2007) 520-30.
77 See generally Bradley (ed) Criminal Procedure: A Worldwide Study 2 ed (2007) 520-30.
Footnote - 78
78 United States v Janis 428 US 433 (1976).
78 United States v Janis 428 US 433 (1976).
Footnote - 79
79 Burdeau v McDowell 256 US 465 (1921).
79 Burdeau v McDowell 256 US 465 (1921).
Footnote - 80
80 Walder v United States 347 US 62 (1954). See further § 25.5 below.
80 Walder v United States 347 US 62 (1954). See further § 25.5 below.
Footnote - 81
81 United States v Havens 446 US 620 (1980). However, the prosecutor may not pursue a line of
cross-examination aimed at eliciting an answer which would permit introduction of the otherwise
inadmissible real evidence, unless such cross-examination is connected to matters which the
accused first raised in evidence in chief. In United States v Havens supra 626 White J said that the
questions may not be "smuggled in" and that if the prosecutor's questions would have been put by
"a reasonably competent cross-examiner" in the light of the accused's evidence in chief, they are not
"smuggled in".
81 United States v Havens 446 US 620 (1980). However, the prosecutor may not pursue a
line of cross-examination aimed at eliciting an answer which would permit introduction of the
otherwise inadmissible real evidence, unless such cross-examination is connected to matters
which the accused first raised in evidence in chief. In United States v Havens supra 626 White J
said that the questions may not be "smuggled in" and that if the prosecutor's questions would
have been put by "a reasonably competent cross-examiner" in the light of the accused's
evidence in chief, they are not "smuggled in".
Footnote - 82
82 United States v Verdugo-Urquidez 1990 110 S Ct 1056.
82 United States v Verdugo-Urquidez 1990 110 S Ct 1056.
Footnote - 83
83 For a critical discussion of this case, see Gane & Mackarel "The Admissibility of Evidence
Obtained from Abroad into Criminal Proceedings — The Interpretation of Legal Assistance Treaties
and Use of Evidence Irregularly Obtained" 1996 2 European Journal of Crime, Criminal Law and
Criminal Justice 98 109.
83 For a critical discussion of this case, see Gane & Mackarel "The Admissibility of Evidence
Obtained from Abroad into Criminal Proceedings — The Interpretation of Legal Assistance
Treaties and Use of Evidence Irregularly Obtained" 1996 2 European Journal of Crime, Criminal
Law and Criminal Justice 98 109.
Footnote - 84
84 United States v Calandra 444 US 338 (1974).
84 United States v Calandra 444 US 338 (1974).
Footnote - 85
85 Mardone v United States 308 US 338 341 (1939).
85 Mardone v United States 308 US 338 341 (1939).
Footnote - 86
86 See New York v Harris 495 US 14 (1990).
86 See New York v Harris 495 US 14 (1990).
Footnote - 87
87 In Wong Sun v United States 371 US 471 (1963) it was observed: "We need not hold that all
evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the
illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting
establishment of the primary illegality, the evidence to which instant objection is made has been
come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged
of the primary taint.' Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics
were 'come at by the exploitation of that illegality' and hence that they may not be used against
Toy." See further § 12.9.7 below.
87 In Wong Sun v United States 371 US 471 (1963) it was observed: "We need not hold that
all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but
for the illegal actions of the police. Rather, the more apt question in such a case is 'whether,
granting establishment of the primary illegality, the evidence to which instant objection is
made has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959). We
think it clear that the narcotics were 'come at by the exploitation of that illegality' and hence
that they may not be used against Toy." See further § 12.9.7 below.
Footnote - 88
88 See Illinois v Krull 480 US 340 (1987), where it was held that if the police, in performing their
duties, in reasonably good faith rely on a statute only later found unconstitutional, the evidence
obtained by them should be admitted.
88 See Illinois v Krull 480 US 340 (1987), where it was held that if the police, in performing
their duties, in reasonably good faith rely on a statute only later found unconstitutional, the
evidence obtained by them should be admitted.
Footnote - 89
89 The "good faith" exception to the mandatory exclusionary rule in the USA, was first created in
United States v Leon 468 US 897 (1984), where the police reasonably and in good faith relied on a
search warrant issued by a judicial officer but later found not supported by probable cause. See also
Massachusetts v Sheppard 468 US 981 (1984). For general arguments in favour of a good faith
exception to the rigid exclusionary rule in the USA, see Hart "The Good Faith Restatement of the
Exclusionary Rule" 1982 73 Journal for Criminal Law and Criminology 916 and Ball "Good Faith and
the Fourth Amendment: The 'Reasonable' Exception to the Exclusionary Rule" 1978 69 Journal for
Criminal Law and Criminology 635. However, there also are commentators who take a critical view
of the good faith exception. See generally Bradley "The 'Good Faith Exception' Cases: Reasonable
Exercises in Futility" 1985 60 Indiana LJ 287. See further § 12.10.1 below.
89 The "good faith" exception to the mandatory exclusionary rule in the USA, was first
created in United States v Leon 468 US 897 (1984), where the police reasonably and in good
faith relied on a search warrant issued by a judicial officer but later found not supported by
probable cause. See also Massachusetts v Sheppard 468 US 981 (1984). For general
arguments in favour of a good faith exception to the rigid exclusionary rule in the USA, see
Hart "The Good Faith Restatement of the Exclusionary Rule" 1982 73 Journal for Criminal Law
and Criminology 916 and Ball "Good Faith and the Fourth Amendment: The 'Reasonable'
Exception to the Exclusionary Rule" 1978 69 Journal for Criminal Law and Criminology 635.
However, there also are commentators who take a critical view of the good faith exception. See
generally Bradley "The 'Good Faith Exception' Cases: Reasonable Exercises in Futility" 1985 60
Indiana LJ 287. See further § 12.10.1 below.
Footnote - 90
90 514 US 1 (1995).
90 514 US 1 (1995).
Footnote - 91
91 Seguar v United States 468 US 796 (1984).
91 Seguar v United States 468 US 796 (1984).
Footnote - 92
92 Murray v United States 487 US 533 (1988). For a critical discussion of this case, see Bradley
"Murray v United States: The Bell Tolls for the Search Warrant Requirement" 1989 64 Indiana LJ
907. At 911 Bradley argues that, on the facts of the case, the officers "who 'found' the evidence …
pursuant to the search warrant … were not 'wholly independent' but were the very same officers who
had committed the original fourth amendment violation."
92 Murray v United States 487 US 533 (1988). For a critical discussion of this case, see
Bradley "Murray v United States: The Bell Tolls for the Search Warrant Requirement" 1989 64
Indiana LJ 907. At 911 Bradley argues that, on the facts of the case, the officers "who 'found'
the evidence … pursuant to the search warrant … were not 'wholly independent' but were the
very same officers who had committed the original fourth amendment violation."
Footnote - 93
93 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 132. See further § 12.9.7 below.
93 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 132. See further § 12.9.7 below.
Footnote - 94
94 Terry v Ohio 392 US 1 (1968).
94 Terry v Ohio 392 US 1 (1968).
Footnote - 95
95 Mirfield Silence, Confessions and Improperly Obtained Evidence 327.
95 Mirfield Silence, Confessions and Improperly Obtained Evidence 327.
Footnote - 96
96 Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 144.
Footnote - 97
97 Supra.
97 Supra.
Footnote - 98
98 Miranda v Arizona 384 US 436 478-9 (1966). See also § 10.2.3.1 above.
98 Miranda v Arizona 384 US 436 478-9 (1966). See also § 10.2.3.1 above.
Footnote - 99
99 The Miranda-warnings have been described as "prophylactic standards" (Michigan v Tucker 417
US 433 446 (1974)), "prophylactic procedures" and "preventive medicine" (Oregon v Elstad 470 US
298 (1985)). See further § 12.7.2.1 below. In South Africa the essence of the Miranda-warnings
have been elevated to constitutional rights. See, eg, s 35(1)(a), 35(1)(b), 35(2)(b) and 35(2)(c) of
the Constitution.
99 The Miranda-warnings have been described as "prophylactic standards" (Michigan v

Tucker 417 US 433 446 (1974)), "prophylactic procedures" and "preventive medicine" (Oregon
v Elstad 470 US 298 (1985)). See further § 12.7.2.1 below. In South Africa the essence of the
Miranda-warnings have been elevated to constitutional rights. See, eg, s 35(1)(a), 35(1)(b),
35(2)(b) and 35(2)(c) of the Constitution.
Footnote - 100
100 Miranda v Arizona supra 477.

Footnote - 101
Footnote - 102
102 Miranda v Arizona supra 473-4. See further § 10.3.2 above and § 12.9.4 below.
102 Miranda v Arizona supra 473-4. See further § 10.3.2 above and § 12.9.4 below.
Footnote - 103
103 Miranda v Arizona supra 476-7.
103 Miranda v Arizona supra 476-7.
Footnote - 104
104 In Oregon v Elstad supra it was said that while the Fourth Amendment exclusionary rule (see
§ 12.5.1 above) is to deter unreasonable searches, "[t]he Miranda exclusionary rule serves the Fifth
Amendment and sweeps more broadly than the Fifth Amendment itself."
104 In Oregon v Elstad supra it was said that while the Fourth Amendment exclusionary rule
(see § 12.5.1 above) is to deter unreasonable searches, "[t]he Miranda exclusionary rule
serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself."
Footnote - 105
Footnote - 106
106 See also generally Smith "The Threshold Question in Applying Miranda: What Constitutes
Custodial Interrogation?" 1974 25 South Carolina LR 699 and Kamisar Police Interrogation and
Confessions: Essays in Law and Policy (1980) 139. See also Schutte 1996 SACJ 263 at 270-3.
106 See also generally Smith "The Threshold Question in Applying Miranda: What Constitutes
Custodial Interrogation?" 1974 25 South Carolina LR 699 and Kamisar Police Interrogation and
Confessions: Essays in Law and Policy (1980) 139. See also Schutte 1996 SACJ 263 at 270-3.
Footnote - 107
107 Rhode Island v Innis 446 US 291 301 (1980). On the facts of this case it was found that there
was no "functional equivalent" of express questioning. Cf Brewer v Williams 430 US 387 (1977) —
the so-called "Christian burial speech" case — which is discussed in detail by Kamisar Police
Interrogation and Confessions: Essays in Law and Policy 113-37; Berger Taking the Fifth: The
Supreme Court and the Privilege against Self-incrimination (1980) 156-7 and Schutte 1996 SACJ
167 177-80. In this case the court concluded that the conduct of the officer had been tantamount to
interrogation and in breach of the Sixth Amendment right to counsel.
107 Rhode Island v Innis 446 US 291 301 (1980). On the facts of this case it was found that
there was no "functional equivalent" of express questioning. Cf Brewer v Williams 430 US 387
(1977) — the so-called "Christian burial speech" case — which is discussed in detail by Kamisar
Police Interrogation and Confessions: Essays in Law and Policy 113-37; Berger Taking the
Fifth: The Supreme Court and the Privilege against Self-incrimination (1980) 156-7 and
Schutte 1996 SACJ 167 177-80. In this case the court concluded that the conduct of the officer
had been tantamount to interrogation and in breach of the Sixth Amendment right to counsel.
Footnote - 108
108 Miranda v Arizona supra 479. See further § 12.9.5 below.
108 Miranda v Arizona supra 479. See further § 12.9.5 below.

Footnote - 109
109 Kamisar "The Right to be Informed of Legal Rights" in Marshall (ed) The Supreme Court and
Human Rights (1982) 189 198.
109 Kamisar "The Right to be Informed of Legal Rights" in Marshall (ed) The Supreme Court
and Human Rights (1982) 189 198.
Footnote - 110
110 470 US 298 (1985). See further § 12.8.2 below.
110 470 US 298 (1985). See further § 12.8.2 below.
Footnote - 111
111 Oregon v Elstad supra.
111 Oregon v Elstad supra.
Footnote - 112
112 Oregon v Elstad supra. See further § 12.8.2 below.
112 Oregon v Elstad supra. See further § 12.8.2 below.
Footnote - 113
113 475 US 412 (1986).
113 475 US 412 (1986).
Footnote - 114
114 Moran v Burbine supra 422.
114 Moran v Burbine supra 422.
Footnote - 115
115 Moran v Burbine supra 424. Emphasis added. Some state courts have on state law grounds
refused to follow Moran v Burbine supra. See, eg, State v Reed 627 A 2d 630 (1993).
115 Moran v Burbine supra 424. Emphasis added. Some state courts have on state law
grounds refused to follow Moran v Burbine supra. See, eg, State v Reed 627 A 2d 630 (1993).
Footnote - 116
116 1998 (1) SACR 388 (W).
116 1998 (1) SACR 388 (W).
Footnote - 117
117 Michigan v Tucker 417 US 433 (1974).
117 Michigan v Tucker 417 US 433 (1974).
Footnote - 118
118 Michigan v Tucker supra 446.
118 Michigan v Tucker supra 446.
Footnote - 119
119 467 US 649 (1984).
119 467 US 649 (1984).
Footnote - 120
120 New York v Quarles supra 657.
Footnote - 121
121 420 US 714 (1975).
121 420 US 714 (1975).
Footnote - 122
122 401 US 222 (1971).
122 401 US 222 (1971).
Footnote - 123
123 467 US 431 (1984). See also the discussion of S v Pillay2004 (2) SACR 419 (SCA) by Naudé
2008 SACJ 168.
123 467 US 431 (1984). See also the discussion of S v Pillay2004 (2) SACR 419 (SCA) by
Naudé 2008 SACJ 168.
Footnote - 124
124 See Brewer v Williams supra. Nix v Williams supra was a sequel to Brewer v Williams.
124 See Brewer v Williams supra. Nix v Williams supra was a sequel to Brewer v Williams.
Footnote - 125
125 Nix v Williams supra 444.
125 Nix v Williams supra 444.
Document 101 of 330
12.6 Section 24(2) of the Canadian Charter a brief

survey
Section 24 of the Charter provides as follows:
"(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and just in the circumstances.
3rd Ed, 2009 ch12-p201

(2) Where, in proceedings under subsection (1), a court concludes that evidence
was obtained in a manner that infringed or denied any rights or freedoms
guaranteed by this Charter, the evidence shall be excluded if it is established
that, having regard to all the circumstances, the admission of it in the
proceedings would bring the administration of justice into disrepute."
It has been said that s 24 "reflects its historical background, a compromise
between the strict Anglo-Canadian inclusionary rule 126 and the perceived
American absolute exclusionary rule". 127 Even in pre-Charter years various
Canadian Commissions suggested exclusion in accordance with the standard
criterion that admission would "bring the administration of justice into disrepute".
128
"Standing" is a requirement (see § 12.8.3 below). And s 24(4) can also only be
relied upon where there was a violation of Charter rights, even though a strict
causal connection between the violation and procurement of the evidence is not
required (see § 12.8.2 below).
A court — in deciding whether the admission of the challenged evidence would
bring the administration of justice into disrepute — is directed by s 24(2) to
consider "all the circumstances". And in this process, various factors must be
considered and balanced. These factors have been categorised according to the
way in which they affect the repute of the administration of justice. 129 The first
category consists of factors affecting the right to a fair trial (see § 12.6.1 below);
the second category covers factors relevant to the seriousness of the Charter
violation (see § 12.6.2 below); and the third category comprises those factors
relevant to the effect that exclusion of the evidence would have on the repute of
the administration of justice (see § 12.6.3 below).
12.6.1 The impact of the admission of the evidence on the

fairness of the trial
If admission of the challenged evidence would render the trial unfair, the
evidence must be excluded without considering factors relating to the seriousness
of the Charter breach and without considering the effect that exclusion would
have on the repute of the system. The essence of this approach is equally true in
respect of s 35(5) of the South African Constitution: an unfair trial is
constitutionally unacceptable (see § 12.9 below).
For many years the Canadian courts generally answered the fair trial issue with
reference to the following statements by Lamer J in R v Collins: 130
3rd Ed, 2009 ch12-p202

"It is clear to me that the factors relevant to this determination will include the
nature of the evidence obtained as a result of the violation and the nature of the
right violated and not so much the manner in which the right was violated. Real
evidence that was obtained in a manner that violated the Charter will rarely operate
unfairly for that reason alone. The real evidence existed irrespective of the violation
of the Charter and its use does not render the trial unfair. However, the situation is
very different with respect to cases where, after a violation of the Charter, the
accused is conscripted against himself through a confession or other evidence
emanating from him. The use of such evidence would render the trial unfair, for it
did not exist prior to the violation, and it strikes at one of the fundamental tenets of
a fair trial, the right against self-incrimination."
In R v Stillman — which was decided a decade after R v Collins — Cory J, writing
for the majority and citing several post-Collins decisions, provided a systematic
analysis — and useful summary 132 — of what he called the "fair trial analysis". It
should be noted that in this case the majority held that compelled use of the body
or the compelled provision of bodily substances (like hair or blood samples) in
violation of a Charter right "will generally result in an unfair trial just as surely as
the compelled or conscripted statement". 133 For purposes of determining a fair
trial in the context of s 24(2), the majority specifically rejected the common-law
principle that the privilege against self-incrimination is confined to testimonial
communications (see also § 12.9.6 below).
The majority held that "as a first step in the fair trial analysis" 134 the
challenged evidence must be classified into one of two categories: "non-
conscriptive" or "conscriptive". It was held that 135
"[t]he crucial element which distinguishes non-conscriptive evidence from
conscriptive evidence is not whether the evidence may be characterized as 'real' or
not. Rather, it is whether the accused was compelled to make a statement or
provide a bodily substance in violation of the Charter. Where the accused, as a result
of a breach of the Charter, is compelled or conscripted to provide a bodily substance
to the state, this evidence will be of a conscriptive nature, despite the fact that it
may also be 'real' evidence. Therefore, it may be more accurate to describe evidence
found without any participation of the accused, such as the murder weapon found at
the scene of the crime, or drugs found in a dwelling house, simply as non-
conscriptive evidence; its status as 'real' evidence, simpliciter, is irrelevant to the s
24(2) inquiry."
According to the majority in Stillman, the admission of non-conscriptive evidence

will rarely operate to render the trial unfair and the court should move on to
consider the seriousness of the violation (see § 12.6.2 below) and the effect of
exclusion on the
3rd Ed, 2009 ch12-p203
repute of the administration of justice (see § 12.6.3 below). However, where the
challenged evidence falls into the "conscriptive" category as described by the
majority, a court must proceed "to the second step of the analysis and determine
whether the admission of the evidence would render the trial unfair." 136 The
majority noted that admission of conscriptive evidence — ie, "self-incriminating
evidence in the form of statements or bodily substances conscripted from the
accused in violation of the Charter and evidence derived from unlawfully
conscripted statements" 137 — will, as a general rule, tend to render the trial
unfair. In this respect the majority relied on R v Burlingham (where the police,
but for the accused's unconstitutionally conscripted statement, would never have
found the gun at the bottom of a frozen river) and R v Borden (where the police,
in order to link an accused to a sexual assault, obtained a sample of his blood in
circumstances where they would not have had the sample — and could not have
obtained the sample — but for the fact that the accused was in breach of his
Charter rights conscripted to provide the sample). In both these cases it was held
that admission would render the trial unfair. The majority in Stillman pointed out
that in both Burlingham and Borden the evidence would not have been obtained
or discovered in the absence of the unlawful conscription of the accused. Where,
however, the challenged evidence "would have been discovered in the absence of
the unlawful conscription of the accused," 140 the admission of conscriptive
evidence will not render the trial unfair. 141
In Stillman it was said that there are two principal grounds upon which it can
be demonstrated 142 that the evidence would have been discovered absent a
Charter violation: 143
"(a) if the evidence would have been obtained, in any event, from an independent
source; in other words, there were alternative non-conscriptive means by
which the police would have seized the evidence and the Crown has
established that the police would have availed themselves of those means …
or
(b) if the evidence would inevitably have been discovered …"
The court said that in respect of both (a) and (b) above, the probability of the
discovery of the evidence — even though it remains conscriptive — "means that
its admission will not render the trial unfair". 144 All that remains then, is for a
court to consider the seriousness of the Charter breach and the impact of
exclusion on the repute of the administration of justice. 145
3rd Ed, 2009 ch12-p204
12.6.2 Factors relevant to the seriousness of the Charter

violation(s)
Factors falling into this category cannot cure an unfair trial but can assist in
deciding whether disrepute will result if the evidence is received. In R v Therens
Le Dain J stated that the relative seriousness of the violation of the Charter, can
be assessed 146
"in the light of whether it was committed in good faith, or was inadvertent or of a
merely technical nature, or whether it was deliberate, wilful or flagrant [or] whether
… the violation was motivated by urgency or necessity to prevent the loss or
destruction of the evidence."
In R v Feeney it was held that one of the indications of bad faith, is that the
Charter violation was undertaken without lawful authority. 147 In this case it was
also said that "it is demonstrative of bad faith and is particularly serious that the
police chose to violate" 148 the accused's Charter rights where they could have
obtained the evidence in a manner not violating the Charter. "Good faith" is,
generally speaking, present where the police at the time of their procurement of
the evidence, relied on statutory or common-law provisions which only later
turned out to be unconstitutional. 149
There are several decisions in which it was made clear that violation of the
sanctity of a person's body is more serious than his office or home. 150 In R v
Greffe Lamer J said: 151
"[T]he fact that a rectal examination was conducted as incident to an arrest for
traffic warrants and absent any evidence on the record of reasonable and probable
grounds for the belief that the appellant was in possession of heroin, makes the
unreasonable search an extremely serious violation of the appellant's Charter rights
… Further, I am not persuaded that there was any urgency or immediate necessity
to conduct the rectal search to prevent the loss or destruction of the evidence. If
indeed there were reasonable and probable ground for the police to believe that the
appellant was a drug courier, grounds that were never established by the Crown,
then surely the detention of the accused in order to facilitate the recovery of the
drugs through the normal course of nature would have been reasonable. Finally, and
this is an important consideration in this case, it should be noted there was more
than one Charter violation at issue. The breaches of the appellant's Charter rights
were not isolated errors of judgment by the police, but rather were part of a larger
pattern of disregard for the appellant's Charter rights …"
3rd Ed, 2009 ch12-p205
Greffe is also authority for the statement that there can be no exhaustive list of
factors and that the cumulative impact of all the factors present in a specific case,
must be taken into account in assessing the seriousness of the Charter violation.
12.6.3 The effect of exclusion on the repute of the administration

of justice
Opinion polls may not be received for the purpose of determining the effect of
exclusion on the repute of the system. 152 The court should attempt to answer
the following question: could the admission of the impugned evidence "bring the
administration of justice into disrepute in the eyes of the reasonable person,
dispassionate and fully apprised of the facts of the case?" 153 It would seem that,
in considering its response, the court should be guided by at least the following
tests, principles or factors: (a) "The reasonable person is usually the average
person in the community, but only when that community's current mood is
reasonable." 154(b) Long-term values are at stake. 155(c) Where the Charter
violation was not particularly severe and the police had acted in good faith in
securing non-conscriptive evidence, the exclusion of the evidence would impact
adversely on the esteem in which the public holds the system. 156(d) The aims of
preserving the integrity of the criminal justice system as well as promoting the
decency of police investigating techniques are of paramount importance in
applying s 24(2). 157
Footnote - 126
126 R v Wray 1970 11 DLR (3d) 673.
126 R v Wray 1970 11 DLR (3d) 673.
Footnote - 127
127 Sopinka, Lederman & Bryant The Law of Evidence in Canada 2 ed (1999) 409. Bryant, Gold,
Stevenson & Northrup "Public Attitudes toward the Exclusion of Evidence: Section 24(2) of the
Canadian Charter of Rights and Freedoms" 1990 2 Can Bar Rev 1 observed as follows (at 5): "The
core idea is simple. An effective and stable legal system must enjoy the support of the public. To
admit unconstitutionally obtained evidence where that would bring the system into disrepute in the
eyes of the public would be to compromise the public's support for the legal system. Conversely, to
exclude evidence under circumstances where this would bring the administration of justice into
disrepute would again undermine public support for the legal system. Hence the 'compromise'
reflected in section 24(2)." This passage was quoted with approval by Cloete J in S v Mphala1998 (1)
SACR 654 (W) 660a in his interpretation of s 35(5) of the Constitution.
127 Sopinka, Lederman & Bryant The Law of Evidence in Canada 2 ed (1999) 409. Bryant,
Gold, Stevenson & Northrup "Public Attitudes toward the Exclusion of Evidence: Section 24(2)
of the Canadian Charter of Rights and Freedoms" 1990 2 Can Bar Rev 1 observed as follows (at
5): "The core idea is simple. An effective and stable legal system must enjoy the support of the
public. To admit unconstitutionally obtained evidence where that would bring the system into
disrepute in the eyes of the public would be to compromise the public's support for the legal
system. Conversely, to exclude evidence under circumstances where this would bring the
administration of justice into disrepute would again undermine public support for the legal
system. Hence the 'compromise' reflected in section 24(2)." This passage was quoted with
approval by Cloete J in S v Mphala1998 (1) SACR 654 (W) 660a in his interpretation of s 35(5)
of the Constitution.
Footnote - 128
128 See generally Marin Admissibility of Statements 7 ed (1989) 182.
128 See generally Marin Admissibility of Statements 7 ed (1989) 182.
Footnote - 129
129 R v Collins 1987 28 CRR 122 (SCC).
129 R v Collins 1987 28 CRR 122 (SCC).
Footnote - 130
130 R v Collins supra 137.
Footnote - 131
131 1997 42 CRR (2d) 189 (SCC). See also R v Feeney 1997 44 CRR 2d 1 (SCC).
131 1997 42 CRR (2d) 189 (SCC). See also R v Feeney 1997 44 CRR 2d 1 (SCC).
Footnote - 132
132 R v Stillman supra 231: "1. Classify the evidence as conscriptive or non-conscriptive based upon
the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will
not render the trial unfair and the court will proceed to consider the seriousness of the breach and the
effect of exclusion on the repute of the administration of justice … 2. If the evidence is conscriptive
and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been
discovered by alternative non-conscriptive means, then its admission will render the trial unfair. The
court, as a general rule, will exclude the evidence without considering the seriousness of the breach
or the effect of exclusion on the repute of the administration of justice. This must be the result since
an unfair trial would necessarily bring the administration of justice into disrepute … 3. If the evidence
is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would
have been discovered by alternative non-conscriptive means, then its admission will generally not
render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on
the repute of the administration of justice will have to be considered."
132 R v Stillman supra 231: "1. Classify the evidence as conscriptive or non-conscriptive
based upon the manner in which the evidence was obtained. If the evidence is non-
conscriptive, its admission will not render the trial unfair and the court will proceed to consider
the seriousness of the breach and the effect of exclusion on the repute of the administration of
justice … 2. If the evidence is conscriptive and the Crown fails to demonstrate on a balance of
probabilities that the evidence would have been discovered by alternative non-conscriptive
means, then its admission will render the trial unfair. The court, as a general rule, will exclude
the evidence without considering the seriousness of the breach or the effect of exclusion on the
repute of the administration of justice. This must be the result since an unfair trial would
necessarily bring the administration of justice into disrepute … 3. If the evidence is found to be
conscriptive and the Crown demonstrates on a balance of probabilities that it would have been
discovered by alternative non-conscriptive means, then its admission will generally not render
the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on
the repute of the administration of justice will have to be considered."
Footnote - 133
133 R v Stillman supra 223.
Footnote - 134
Footnote - 135
135 R v Stillman supra 219. Emphasis in the original. See also the approach adopted by the
Supreme Court of Appeal in S v Tandwa2008 (1) SACR 613 (SCA) at [122]-[128].
135 R v Stillman supra 219. Emphasis in the original. See also the approach adopted by the
Supreme Court of Appeal in S v Tandwa2008 (1) SACR 613 (SCA) at [122]-[128].
Footnote - 136
Footnote - 137
Footnote - 138
138 1995 28 CRR (2d) 244. See further § 12.9.7 below. See also generally S v Tandwa2008 (1)
SACR 613 (SCA) at [124] and S v Pillay2004 (2) SACR 419 (SCA) at 431h-432h and 446g-447g.
138 1995 28 CRR (2d) 244. See further § 12.9.7 below. See also generally S v Tandwa2008
(1) SACR 613 (SCA) at [124] and S v Pillay2004 (2) SACR 419 (SCA) at 431h-432h and 446g-
447g.
Footnote - 139
139 1994 24 CRR (2d) 51.
139 1994 24 CRR (2d) 51.
Footnote - 140
140 R v Stillman supra 227. Such discovery must have been by "alternative non-conscriptive
means".
140 R v Stillman supra 227. Such discovery must have been by "alternative non-conscriptive
means".
Footnote - 141
141 The court referred to R v Colarusso 1994 19 CRR (2d) 193 (SCC) (independent source) and R v
Black 1989 47 CRR 171 (SCC) (inevitable discovery).
141 The court referred to R v Colarusso 1994 19 CRR (2d) 193 (SCC) (independent source)
and R v Black 1989 47 CRR 171 (SCC) (inevitable discovery).
Footnote - 142
142 In both instances the prosecution must establish discoverability on a balance of probability: R v
Stillman supra 228-9.
142 In both instances the prosecution must establish discoverability on a balance of

probability: R v Stillman supra 228-9.
Footnote - 143
143 R v Stillman supra 230-1. Emphasis in the original.
143 R v Stillman supra 230-1. Emphasis in the original.
Footnote - 144
144 R v Stillman supra 231. It is difficult to follow the court's reasoning in this regard. A better
explanation might be that one must assume that admission of the evidence cannot affect the fairness
of the trial because the "independent source" or "inevitable discovery" creates the "situation" — or
even hypothesis — that the accused's trial is no longer based on conscriptive evidence. For a different
explanation, see § 12.5.2.4 above.
144 R v Stillman supra 231. It is difficult to follow the court's reasoning in this regard. A
better explanation might be that one must assume that admission of the evidence cannot
affect the fairness of the trial because the "independent source" or "inevitable discovery"
creates the "situation" — or even hypothesis — that the accused's trial is no longer based on
conscriptive evidence. For a different explanation, see § 12.5.2.4 above.
Footnote - 145
Footnote - 146
146 1985 13 CRR 193 222.
146 1985 13 CRR 193 222.
Footnote - 147
147 Supra 35.
147 Supra 35.
Footnote - 148
148 Supra 37. Emphasis added.
148 Supra 37. Emphasis added.
Footnote - 149
149 The position as regards "good faith" in interpreting s 24(2), is summarised as follows by
Sopinka, Lederman & Bryant The Law of Evidence in Canada 445-6: "Given that the stated purposes
of examining the seriousness of a Charter violation is to determine whether the violation was so
serious that the court must dissociate itself from the resulting evidence or that the court requires law
enforcement officers to comply with the Charter and the rule of law, it is not surprising that the bona
fides of police officers who commit a Charter violation is a relevant factor in the application of s
24(2). A Charter violation caused by a reasonable misapprehension of the scope of a police officer's
authority is more likely to be condoned than is a 'flagrant' violation committed in full knowledge of
the absence of authority. The Supreme Court has held that for the purposes of s 24(2), the terms
'good faith' and 'flagrant' describing a Charter breach are terms of art. The term 'good faith' does not
mean the officer was acting for the purpose of deterring crime, but rather it means whether the
authorities knew or ought to have known that their conduct was not in compliance with the law. The
term 'good faith' is sometimes used to describe conduct where an agent of the state follows a rule or
policy which is subsequently declared unconstitutional. It is also used to describe police conduct when
the officers act in bad faith, that is, in the absence of good faith. In some factual circumstances, the
courts will use the term 'good faith' in both the narrow and broad sense of the term." See also further
§ 12.10.1 below.
149 The position as regards "good faith" in interpreting s 24(2), is summarised as follows by
Sopinka, Lederman & Bryant The Law of Evidence in Canada 445-6: "Given that the stated
purposes of examining the seriousness of a Charter violation is to determine whether the
violation was so serious that the court must dissociate itself from the resulting evidence or that
the court requires law enforcement officers to comply with the Charter and the rule of law, it is
not surprising that the bona fides of police officers who commit a Charter violation is a relevant
factor in the application of s 24(2). A Charter violation caused by a reasonable
misapprehension of the scope of a police officer's authority is more likely to be condoned than
is a 'flagrant' violation committed in full knowledge of the absence of authority. The Supreme
Court has held that for the purposes of s 24(2), the terms 'good faith' and 'flagrant' describing
a Charter breach are terms of art. The term 'good faith' does not mean the officer was acting
for the purpose of deterring crime, but rather it means whether the authorities knew or ought
to have known that their conduct was not in compliance with the law. The term 'good faith' is
sometimes used to describe conduct where an agent of the state follows a rule or policy which
is subsequently declared unconstitutional. It is also used to describe police conduct when the
officers act in bad faith, that is, in the absence of good faith. In some factual circumstances,
the courts will use the term 'good faith' in both the narrow and broad sense of the term." See
also further § 12.10.1 below.
Footnote - 150
150 R v Pohoretsky 1987 29 CRR 238 (SCC).
150 R v Pohoretsky 1987 29 CRR 238 (SCC).
Footnote - 151
151 1990 46 CRR 1 25-6 (SCC).
151 1990 46 CRR 1 25-6 (SCC).
Footnote - 152
Footnote - 153
Footnote - 154
Footnote - 155
155 The court's discretion is grounded in long-term community values. See R v Klinchuk 1991 9
CRR 2d 153. The court must also consider "the long-term consequences of regular admission of [the]
evidence on the repute of the administration of justice." See R v Greffe supra 26-7.
155 The court's discretion is grounded in long-term community values. See R v Klinchuk
1991 9 CRR 2d 153. The court must also consider "the long-term consequences of regular
admission of [the] evidence on the repute of the administration of justice." See R v Greffe
supra 26-7.
Footnote - 156
156 R v Evans 1996 33 CRR 2d 248 (SCC).
156 R v Evans 1996 33 CRR 2d 248 (SCC).

Footnote - 157
157 R v Burlingham 1995 28 CRR 2d 244 (SCC).
157 R v Burlingham 1995 28 CRR 2d 244 (SCC).
Document 102 of 330
12.7 Position in South Africa prior to s 35(5) of the

Constitution
12.7.1 The Anglo-South African common-law inclusionary
approach (and its development since constitutionalization) 158
In terms of s 252 of the CPA the law as to the admissibility of evidence which was
in force in respect of criminal proceedings on the thirtieth day of May 1961, shall
apply in any case not expressly provided for in the CPA or any other law. 159 In
matters not expressly provided for, the English common law was in force on that
date (see § 3.5 above) and in terms of this law a fairly strict inclusionary
approach to issues concerning the admissibility of relevant evidence obtained
illegally or improperly, is required. Relevance is the test, and "the court is no
concerned with how the evidence was obtained," 160 except for
3rd Ed, 2009 ch12-p206
the fact that "in a criminal case a judge always has a discretion to disallow
evidence if the strict rules of evidence would operate unfairly against the
accused". 161
In S v Forbes Theron J was satisfied that he had a discretion to exclude
evidence on grounds of public policy.
But the general trend was to include rather than exclude. A good example of
the application of the inclusionary rule can be found in S v Nel. 163 In this case
the court admitted evidence of certain private but "tapped" telephone
conversations of the accused, despite the fact that the prosecution had failed to
prove that proper authorisation for the monitoring of these conversations had
been obtained in terms of (the then-existing) s 118A of the Post Office Act. 164
Refusing to accept or exercise a discretion to exclude, Van der Walt J held that
unlawfully obtained evidence could only be excluded where, first, the accused had
been compelled to provide evidence against himself and, secondly, the evidence
had been obtained by duress from an accused. 165 However, in S v Hammer
Farlam J held — without reference to S v Nel — that there is a general discretion
to exclude improperly or illegally obtained evidence on the grounds of fairness
and public policy, and that there are various factors which should be considered
by a court in deciding whether to exercise this discretion. 167
3rd Ed, 2009 ch12-p207
It should be noted that the common-law discretion has not been rendered
redundant by the provisions of s 35(5) of the Constitution: the admissibility of
evidence obtained improperly or illegally — but not in violation of a right in the
Bill of Rights (see § 12.8.1 below) — must still be determined on the basis of the
common-law discretion which must now, however, be understood and applied in
the context of the following observations by Cameron J in S v Kidson: 168
"It is correct, and it has been emphasised in a number of reported cases, that the
exclusionary provision contained in s 35(5) alludes expressly only to evidence
obtained in a manner that violates any right 'in the Bill of Rights'. But it seems to me
evident that the evidence obtained in unlawful breach of any statute must be judged
broadly in the same way since its admission may in some manner imperil the
accused's right to a fair trial. It therefore seems appropriate to me on both legs of
this approach to consider whether 'the admission of that evidence would render the
trial unfair or (would) otherwise be detrimental to the administration of justice'."
At any rate, in terms of s 39(2) of the Constitution a court is required "to promote
the spirit, purport or objects of a Bill of Rights… when developing the common
law".
In Kidson the court, having ruled that "no constitutionally cognisable breach of
privacy [had] occurred," 169 noted that the extent and flagrancy of the police's
contravention of a statutory prohibition remained "an issue to be considered by
the court in the exercise of its discretion whether to admit the evidence or not."
170 In this case the defence had challenged the admissibility of evidence of a
recording and transcript of a conversation between a state witness (hereafter "R")
and the accused who was charged with murder. The recording was made covertly
by R with the assistance of the police and prior to the arrest of the accused. R
himself was a suspect and had supplied the police with information of his own
involvement in the murder of the accused's husband. He co-operated with the
police. At his suggestion, he visited the accused at her home whilst carrying a
concealed voice-activated tape recorder furnished to him by the police for the
purpose of recording a conversation with the accused. During the course of R's
conversation with the accused, R deliberately invited incriminating statements
from the accused without disclosing that he was in effect a police agent. 171
Having made certain findings as regards the provisions of the Interception and
Monitoring Prohibition Act, 172 the court held that participant monitoring was in
the circumstances of this case not prohibited by the afore-mentioned Act and,
furthermore, that information relevant to the crime and voluntarily conveyed by
the accused to R — who had a legitimate interest of his own to record this two-
party conversation — was not confidential information for purposes of the Act.
The court also held that there
3rd Ed, 2009 ch12-p208
was no entrapment (see generally § 12.12 below) and that, although the police
may have played a trick on the accused, there was no guile, untruth or deception
which amounted to disreputable or unacceptable police conduct. Even if the
evidence had been gained in contravention of the Interception and Monitoring
Prohibition Act, such contravention was merely formal 173 and minimal. 174 The
facts of this case, found Cameron J, were clearly distinguishable from S v
Hammer (where the police conduct was unlawful and morally reprehensible) and
S v Naidoo (where the police presented patently false and downright misleading
information to a judge in order to obtain authorisation for third party monitoring).
The conduct of the police in Kidson provided no ground for exclusion; and
admission of the evidence could not have rendered the trial unfair. The court
accordingly held that the evidence was admissible.
In § 12.8.1 below, it is pointed out that the fact that s 35(5) is confined to
unconstitutionally obtained evidence, cannot give rise to an inference that
improperly or illegally obtained evidence can be admitted despite the fact that
such admission would render the trial unfair.
12.7.2 The interim Constitution

The interim Constitution did not contain any express provision governing the
admissibility of unconstitutionally obtained evidence. At Kempton Park two
members of the Technical Committee on Fundamental Rights were in favour of
inserting a qualified exclusionary rule in the proposed interim Constitution. 177
However, the majority of the Committee thought that no such rule was required
and that even a restricted constitutionalization of the exclusionary rule could have
had a detrimental effect on the prevention and combating of crime during what
they thought could have been "an unstable period of political transition". 178 The
view of the majority prevailed, even though it must have been clear to all
concerned that the common-law crime control inclusionary approach was
incompatible with a constitutional due process system.
When the interim Constitution came into operation, the courts could no longer
rely on decisions like R v Mabuya. 179 In this case Gardiner JP admitted evidence
obtained as a result of what (he assumed, for purposes of argument) had been an
unlawful search of a private dwelling. He remarked as follows: 180
"The only authority for … exclusion comes from the American courts. There are
certain decisions based on the American Constitution which … exclude evidence of
this nature, but one must bear in mind the sanctity which the Americans attach to
their Constitution. We have not that Constitution here, and that authority is not
applicable."
3rd Ed, 2009 ch12-p209
Constitutionalization required an immediate and fundamental reappraisal of the

South African jurisprudence concerning the admissibility of illegally procured
evidence: if courts of law were routinely to have received evidence obtained in
breach of constitutional rights, the constitutional rights concerned would have
been stripped of their status as constitutional guarantees. 181 Most courts
responded by excluding evidence which, prior to constitutionalization, would have
been admitted: 182 in some instances reliance was placed on the "appropriate
relief" provision that was contained in s 7(4) of the interim Constitution; 183 in
other instances the courts merely invoked and adapted their common-law
discretion with vigour in order to meet the demands of constitutional due
process; 184 and in some cases the clear impression was created that a rigid rule
of exclusion had to be applied in respect of unconstitutionally obtained evidence.
185
The fact that s 35(5) of the Constitution now addresses the admissibility of
unconstitutionally obtained evidence, does not necessarily mean that cases which
were decided under the interim Constitution and which dealt with the topic of
unconstitutionally obtained evidence, have become irrelevant. 186 On the
contrary, courts which have been called upon to interpret s 35(5) of the
Constitution, have on several occasions referred to and relied upon cases decided
under the interim Constitution (as will be evident from the discussion of s 35(5)
in §§ 12.9 to 12.10.6 below). For present purposes it is sufficient to note the
following broad principles and trends established in some cases decided under the
interim Constitution and which, it is submitted, probably played an important role
in the formulation of s 35(5) of the Constitution:
12.7.2.1 Protection of the constitutional right to a fair trial

Even though the courts "did not always [identify] the basis of exclusion, it seems
usually to have been
3rd Ed, 2009 ch12-p210
done under the overarching right to a fair trial" 187 which was embodied in s
25(3) of the interim Constitution and which was on at least two occasions, in
respect of derivative evidence, 188 suggested by the Constitutional Court 189 as
being the true basis. In S v Melani (hereafter "the second Melani case") it was
held that violations of constitutional rights "resulting in an accused being
conscripted against himself through some form of evidence emanating from
himself would strike at one of the fundamental tenets of a fair trial, the right
against self-incrimination". 190 Compliance with constitutional pre-trial rights was
necessary to protect the constitutional right to a fair trial; 191 and non-compliance
had to have some measurable consequence, namely exclusion, not only in order
to maintain the longer term purposes of the Constitution but also to ensure that
the constitutional right to a fair trial was not a mere pious promise. On the basis
of the second Melani case as well as several other cases decided under the
interim Constitution, the following principle emerged: the failure of the police to
inform, 192 or adequately to inform, 193
3rd Ed, 2009 ch12-p211
an arrestee 194 of his relevant constitutional rights 195 at every critical stage 196 of
the investigative process, would as a general rule 197 require exclusion of all
testimonial communications — for example, confessions, admissions, pointings
out — received from such an arrestee. These unconstitutionally obtained
conscriptive testimonial communications imperiled the constitutional right to a fair
trial and could be excluded regardless of the fact that all the requirements for
admissibility as set by s 217 198 or, where applicable, s 219A 199 of the CPA had
been met 200 and regardless of the fact that the Judges' Rules201 had been
properly administered and applied by the police. 202
The drafters of the interim Constitution had elevated the prophylactic rules in
Miranda (see § 12.5.2 above) to constitutional rights, but stopped short of
incorporating the true essence of Miranda, namely that statements obtained in
breach of the warnings must be excluded. The courts — even though they were
not always consistent in their approaches — were quick to sense that exclusion of
testimonial communications was as a general rule necessary where the arrestee
had not been informed of his constitutional rights aimed at protecting his right to
a fair trial. In this respect S v Gasa is probably the best example. In this case two
accused were not fully informed of their rights in terms of s 25(1)(c) of the
interim Constitution — more specifically, their right to have a legal representative
appointed at state expense in certain circumstances. Howard JP held that without
full knowledge of their rights, the accused could not validly have waived their
rights and that — in the absence of a valid waiver — the pointings out, and any
admissions arising therefrom, were inadmissible. However, in S v Malefo MJ
Strydom J adopted a different approach. After having set out the various
approaches that could be adopted in respect of the admissibility of testimonial
communications obtained in contravention of an arrestee's constitutional rights,
he decided that he had a
3rd Ed, 2009 ch12-p212
discretion. The factual finding was made that the accused had never suggested —
except hypothetically and in passing — that the failure of the police to advise
them of their right to legal representation, had had any effect on them in making
the testimonial communications which they did. On this basis the court exercised
its discretion in favour of admitting the impugned evidence.
12.7.2.2 The discretion to exclude unconstitutionally obtained real

evidence
In S v Motloutsi incriminating real evidence was not discovered by the police on
account of a testimonial communication unconstitutionally obtained from the
accused, but as a result of the police's breach of the accused's constitutional
rights to privacy. The evidence was excluded. Self-incrimination played no role
and therefore trial fairness was not the ground for exclusion. In fact, the court
(correctly, it is submitted) did not even consider this ground. Relying on the Irish
decision in The People (Attorney General) v O'Brien, 206 Farlam J expressly
rejected the rule in Mapp (see § 12.5.1 above) as being too rigid. 207 He
concluded that the discretionary approach in the O'Brien case 208 was in
accordance with the law in South Africa. 209 He excluded the real evidence
because "there had been a conscious and deliberate violation of the accused's
constitutional rights and no extraordinary excusing circumstances existed".
210Motloutsi was followed by Van Reenen J in S v Mayekiso. 211 In the latter case
there was no evidence that the unconstitutional search and seizure by the police
had taken place with a view to preventing the imminent destruction of significant
evidence. Van Reenen J noted that, in the exercise of its discretion, the court
should weigh up the objects of the interim Constitution (protection of human
rights) against policy considerations (the community's interest in justice being
done). 212 The court ultimately excluded the unconstitutionally obtained real
evidence because its limited probative value was outweighed by the fact that the
constitutional right of the accused had been breached. 213
12.7.2.3 Public opinion and the repute of the system

Under the interim Constitution it was held that courts, though accountable to the
public, should not seek "public popularity". 214 It was generally accepted that
exclusion might be necessary despite
3rd Ed, 2009 ch12-p213
public opinion to the contrary; 215 and the interests of society, though relevant,
could not ultimately displace the longer term purposes of a Constitution limiting
governmental power and seeking to establish a democratic order based on,
amongst other, the recognition of human rights. 216 In S v Nombewu Erasmus J,
having noted that "public opinion is at most peripheral" to what constitutes a fair
trial, 218 pointed out that public opinion would no doubt be affected by the nature
and seriousness of the violation, the nature of the crime, the seriousness of the
crime and the state of lawlessness prevailing in the country. 219 Erasmus J,
however, also said: 220
"Not that a court will allow public opinion to dictate its decision … The court should in
fact endeavour to educate the public to accept that a fair trial means a constitutional
trial, and vice versa. Pronouncements on human rights by the Courts and academics
obviously add body to the jurisprudence which surrounds the Constitution. But
abstract statements of law very often mean different things to different people, and
very little to the bereaved and aggrieved who see factually guilty accused go free in
consequence of some infringement of his constitutional rights by officials enforcing
the law. It is therefore the duty of the courts in their everyday activity to carry the
message to the public that the Constitution is not a set of high-minded values
designed to protect criminals from their just deserts; but is in fact a shield which
protects all citizens from official abuse. They must understand that for the courts to
tolerate the invasion of the rights of even the most heinous criminal would diminish
their constitutional rights. In other words, the courts should not merely have regard
to public opinion, but should mould people's thinking to accept constitutional norms
using plain language understandable to the common man."
Despite their denials to the contrary, the courts were clearly concerned about the
effect of exclusion on the repute of the administration of justice. And this is one
of the reasons why s 24(2) of the Canadian Charter featured so frequently in
cases decided under the interim Constitution.
In S v Motloutsi Farlam J, in preferring the Irish approach, took the view that
the criterion "would bring the administration of justice into dispute" as embodied
in s 24(2) of the Canadian Charter, was "too narrow". 222 The impact of
admission on the repute of the system, held Farlam J, was "but one factor,
although an important one, to be taken into account". 223 However, in several
other decisions the courts came very close to adopting the approach as set out in
s 24(2) of the Charter. 224 And in S v Malefo Strydom J in fact adopted the
Canadian approach in toto.
3rd Ed, 2009 ch12-p214

According to Strydom J the following question taken from R v Collins had to be
asked: would the admission of the challenged evidence discredit the
administration of justice in the eyes of a reasonable person regarding the matter
dispassionately, and who was fully aware of ("ten volle bewus van") the
circumstances of the case? 227 Strydom J also quoted with approval that part of R
v Collins where Lamer J identified the various factors which the Canadian courts
had most frequently considered in answering this question. 228
Footnote - 158
158 For analyses and criticisms of the common-law position as it stood prior to
constitutionalization, see Zeffertt "Pointing Out" in Kahn (ed) Fiat Justitia: Essays in Memory of
Oliver Deneys Schreiner (1983) 398; Zeffertt 1970 SALJ 402; Skeen 1988 SALJ 389; Campbell 1968
SALJ 246; Van Rooyen 1975 Acta Juridica 70 77-81; Paizes 1988 SALJ 168; S v Malefo1998 (1)
SACR 127 (W) 152h-154g; Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) at
[147] and [148]. See also generally S v Mthembu2008 (2) SACR 407 (SCA) at [22].
158 For analyses and criticisms of the common-law position as it stood prior to
constitutionalization, see Zeffertt "Pointing Out" in Kahn (ed) Fiat Justitia: Essays in Memory of
Oliver Deneys Schreiner (1983) 398; Zeffertt 1970 SALJ 402; Skeen 1988 SALJ 389; Campbell
1968 SALJ 246; Van Rooyen 1975 Acta Juridica 70 77-81; Paizes 1988 SALJ 168; S v
Malefo1998 (1) SACR 127 (W) 152h-154g; Ferreira v Levin NO; Vryenhoek v Powell NO1996
(1) SA 984 (CC) at [147] and [148]. See also generally S v Mthembu2008 (2) SACR 407 (SCA)
at [22].
Footnote - 159
159 This residuary clause must of course now be read subject to s 35(5) of the Constitution.
159 This residuary clause must of course now be read subject to s 35(5) of the Constitution.
Footnote - 160
160 Kuruma, Son of Kaniu v R 1955 AC 197 203. See also further R v Sang 1979 2 All ER 1222 and
Flemming DJP's analysis of Sang in S v Desai1997 (1) SACR 38 (W).
160 Kuruma, Son of Kaniu v R 1955 AC 197 203. See also further R v Sang 1979 2 All ER
1222 and Flemming DJP's analysis of Sang in S v Desai1997 (1) SACR 38 (W).
Footnote - 161
161 Kuruma, Son of Kaniu v R supra 204, which was quoted with approval by Rumpff CJ in an
obiter dictum in S v Mushimba1977 (2) SA 829 (A) 840. There are also cases which seem to
recognise a discretion to exclude an accused's otherwise admissible statement where the prejudicial
effect outweighs its probative value. See S v Mbatha1985 (2) SA 26 (D) and S v Ramgobin1986 (4)
SA 117 (N).
161 Kuruma, Son of Kaniu v R supra 204, which was quoted with approval by Rumpff CJ in an
obiter dictum in S v Mushimba1977 (2) SA 829 (A) 840. There are also cases which seem to
recognise a discretion to exclude an accused's otherwise admissible statement where the
prejudicial effect outweighs its probative value. See S v Mbatha1985 (2) SA 26 (D) and S v
Ramgobin1986 (4) SA 117 (N).
Footnote - 162
162 1970 (2) SA 594 (C) as read with s 79(7) of the CPA. For a discussion of Forbes, see Van
Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 14-6. See further S v
Boesman & others1990 (2) SACR 389 (E).
162 1970 (2) SA 594 (C) as read with s 79(7) of the CPA. For a discussion of Forbes, see Van
Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 14-6. See further S v
Boesman & others1990 (2) SACR 389 (E).
Footnote - 163
163 1987 (4) SA 950 (W).
163 1987 (4) SA 950 (W).
Footnote - 164
164 Act 44 of 1958. This case should now be compared with S v Naidoo1998 (1) SACR 479 (N),
which is discussed in § 12.10.1 below. See also S v Pillay2004 (2) SACR 419 (SCA).
164 Act 44 of 1958. This case should now be compared with S v Naidoo1998 (1) SACR 479
(N), which is discussed in § 12.10.1 below. See also S v Pillay2004 (2) SACR 419 (SCA).
Footnote - 165
165 Paizes 1988 SALJ 168-70 has pointed out that this formulation should be qualified in respect
of "autoptic" evidence and the exclusion of evidence where the prejudicial effect would outweigh
probative value (ie, where the evidence is in effect irrelevant).
165 Paizes 1988 SALJ 168-70 has pointed out that this formulation should be qualified in
respect of "autoptic" evidence and the exclusion of evidence where the prejudicial effect would
outweigh probative value (ie, where the evidence is in effect irrelevant).
Footnote - 166
166 1994 (2) SACR 496 (C).
166 1994 (2) SACR 496 (C).
Footnote - 167
167 In Hammer supra the accused was eighteen years old and, whilst in custody, wrote a letter to
his mother. The paper was provided by the police and a policeman undertook to deliver the letter to
the accused's mother. Instead the policeman read the letter and then handed it over to the office of
the attorney-general. The issue at the trial was whether the prosecutor could cross-examine the
accused on the contents of the letter. Farlam J, in applying the principles above, ruled against such a
course. He concluded that the conduct of the policeman was morally reprehensible and amounted to
an injuria. Farlam J pointed out that the following factors could be considered by the court in
deciding whether to exercise its discretion: (a) society's right to insist that those who enforce the
law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful
intrusion into the daily affairs of private life may remain unimpaired; (b) whether the unlawful act
was a mistaken act and whether in the case of mistake, the cogency of evidence is affected; (c) the
ease with which the law might have been complied with in procuring the evidence in question (a
deliberate "cutting of corners" tends towards the inadmissibility of the evidence illegally obtained);
(d) the nature of the offence charged and the policy decision behind the enactment of the offence
are also considerations; (e) unfairness to the accused should not be the only basis for the exercise
of the discretion; (f) whether the administration of justice would be brought into disrepute if the
evidence was admitted; (g) there should be no presumption in favour of or against the reception of
the evidence and the question of an onus should not be introduced; (h) it should not be a direct
intention to discipline the law enforcement officials; (i) an untrammelled search for the truth should
be balanced by discretionary measures. Farlam J approved of the views expressed by Skeen 1988
SALJ 389 404 and Zuckerman 1991 Crim LR 492. It should be stressed that in Hammer the court
relied on the common law and specifically pointed out that, having reached its decision on the basis
of the common law, it was not necessary to make a decision on an alternative submission by counsel
for the accused to the effect that admission of the accused's letter would infringe his constitutional
right to privacy, which included the right not to be subject to violation of his private communications
as provided for by s 13 of the interim Constitution. It is of significance that the court in Hammer
excluded evidence of the letter despite the fact that the accused was charged with murder. No
reference was made to S v Nel supra, and the fact of the matter is that Hammer and S v Nel supra
cannot be reconciled. For further discussion of Hammer see § 10.6 above.
167 In Hammer supra the accused was eighteen years old and, whilst in custody, wrote a
letter to his mother. The paper was provided by the police and a policeman undertook to
deliver the letter to the accused's mother. Instead the policeman read the letter and then
handed it over to the office of the attorney-general. The issue at the trial was whether the
prosecutor could cross-examine the accused on the contents of the letter. Farlam J, in applying
the principles above, ruled against such a course. He concluded that the conduct of the
policeman was morally reprehensible and amounted to an injuria. Farlam J pointed out that the
following factors could be considered by the court in deciding whether to exercise its discretion:
(a) society's right to insist that those who enforce the law themselves respect it, so that a
citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs
of private life may remain unimpaired; (b) whether the unlawful act was a mistaken act and
whether in the case of mistake, the cogency of evidence is affected; (c) the ease with which
the law might have been complied with in procuring the evidence in question (a deliberate
"cutting of corners" tends towards the inadmissibility of the evidence illegally obtained); (d) the
nature of the offence charged and the policy decision behind the enactment of the offence are
also considerations; (e) unfairness to the accused should not be the only basis for the exercise
of the discretion; (f) whether the administration of justice would be brought into disrepute if
the evidence was admitted; (g) there should be no presumption in favour of or against the
reception of the evidence and the question of an onus should not be introduced; (h) it should
not be a direct intention to discipline the law enforcement officials; (i) an untrammelled search
for the truth should be balanced by discretionary measures. Farlam J approved of the views
expressed by Skeen 1988 SALJ 389 404 and Zuckerman 1991 Crim LR 492. It should be
stressed that in Hammer the court relied on the common law and specifically pointed out that,
having reached its decision on the basis of the common law, it was not necessary to make a
decision on an alternative submission by counsel for the accused to the effect that admission of
the accused's letter would infringe his constitutional right to privacy, which included the right
not to be subject to violation of his private communications as provided for by s 13 of the
interim Constitution. It is of significance that the court in Hammer excluded evidence of the
letter despite the fact that the accused was charged with murder. No reference was made to S
v Nel supra, and the fact of the matter is that Hammer and S v Nel supra cannot be reconciled.
For further discussion of Hammer see § 10.6 above.
Footnote - 168
168 1999 (1) SACR 338 (W) 349b-c. See also S v M2002 (2) SACR 411 (SCA).
168 1999 (1) SACR 338 (W) 349b-c. See also S v M2002 (2) SACR 411 (SCA).
Footnote - 169
169 Supra 350d.
169 Supra 350d.
Footnote - 170
170 Supra 350g.
170 Supra 350g.
Footnote - 171
171 At 351b. The court considered R as part of a police operation (at 346h-i) but concluded that
R's involvement was not part of a deliberate police stratagem aimed at outflanking the provisions of
the Interception and Monitoring Prohibition Act 127 of 1992. At 347b-c it was said: "The present
case does not however seem to me to involve a stratagem, but a reasonable decision on the part of
the investigating officer to utilize a civilian [R], who had a legitimate interest of his own, to record a
two-party conversation. The statute did therefore not prohibit the monitoring."
171 At 351b. The court considered R as part of a police operation (at 346h-i) but concluded
that R's involvement was not part of a deliberate police stratagem aimed at outflanking the
provisions of the Interception and Monitoring Prohibition Act 127 of 1992. At 347b-c it was
said: "The present case does not however seem to me to involve a stratagem, but a reasonable
decision on the part of the investigating officer to utilize a civilian [R], who had a legitimate
interest of his own, to record a two-party conversation. The statute did therefore not prohibit
the monitoring."
Footnote - 172
172 S v Kidson supra 348c-e.
172 S v Kidson supra 348c-e.
Footnote - 173
173 S v Kidson supra 348d-e.
173 S v Kidson supra 348d-e.

Footnote - 174
174 S v Kidson supra 348i-j.
174 S v Kidson supra 348i-j.
Footnote - 175
175 1994 (2) SACR 496 (C) — as discussed above.
175 1994 (2) SACR 496 (C) — as discussed above.
Footnote - 176
176 1998 (1) SACR 479 (N) — as discussed in § 12.10.1 below.
176 1998 (1) SACR 479 (N) — as discussed in § 12.10.1 below.
Footnote - 177
177 According to Du Plessis & Corder Understanding South Africa's Transitional Bill of Rights
(1994) 177-8 it was proposed that the following provision be added to 25(3) of the interim
Constitution: "Every accused person shall have the right to the exclusion during his or her trial of
evidence which was obtained in violation of any right entrenched in this Chapter: Provided that the
court must be convinced that the admission of such evidence will bring the administration of justice
in disrepute."
177 According to Du Plessis & Corder Understanding South Africa's Transitional Bill of Rights
(1994) 177-8 it was proposed that the following provision be added to 25(3) of the interim
Constitution: "Every accused person shall have the right to the exclusion during his or her trial
of evidence which was obtained in violation of any right entrenched in this Chapter: Provided
that the court must be convinced that the admission of such evidence will bring the
administration of justice in disrepute."
Footnote - 178
178 Du Plessis & Corder Understanding South Africa's Transitional Bill of Rights 178.
178 Du Plessis & Corder Understanding South Africa's Transitional Bill of Rights 178.
Footnote - 179
179 1927 CPD 181.
179 1927 CPD 181.
Footnote - 180
180 At 182.
180 At 182.
Footnote - 181
181 See generally Van der Merwe 1992 Stell LR 173 184-5.
181 See generally Van der Merwe 1992 Stell LR 173 184-5.
Footnote - 182
182 Compare, eg, R v Mabuya supra with S v Motloutsi1996 (1) SACR 78 (C) and S v
Mayekiso1996 (2) SACR 298 (C).
182 Compare, eg, R v Mabuya supra with S v Motloutsi1996 (1) SACR 78 (C) and S v
Mayekiso1996 (2) SACR 298 (C).
Footnote - 183
183 Section 7(4) of the interim Constitution provided, ia, that where it was alleged that any right
entrenched in ch 3 of the interim Constitution had been infringed, a court could grant appropriate
relief. In S v Melani1995 (2) SACR 141 (E) the court, in ascertaining what constituted appropriated
relief, rejected both the rigid exclusionary and rigid inclusionary approaches. Froneman J found that
a strict exclusionary approach failed to take into account the interests of the community as a whole.
He held that a rigid inclusionary approach was inappropriate in a legal system which recognised the
supremacy of the Constitution and that it denied the court the opportunity of granting effective
"appropriate relief". In favouring and applying a discretionary approach, which allowed the court to
admit evidence if its exclusion would bring the administration of justice into discredit and dishonour,
the court noted that the seeds for such an approach could be detected in the case law prior to the
enactment of the interim Constitution. In this respect Froneman J referred (at 153e) to S v
Hammer1994 (2) SACR 496 (C). In addition the court held that this discretionary approach provided
the best mechanism for balancing the legitimate interests of the accused and those of the
community at large. In a later judgment bearing the same name (S v Melani1996 (1) SACR 335 (E))
Froneman J held that s 25 of the interim Constitution provided a further reason for the exclusion of
unconstitutionally obtained evidence, "namely the need to ensure the fairness and integrity of the
criminal process at least from arrest up to and including the trial" (at 84i-j).
183 Section 7(4) of the interim Constitution provided, ia, that where it was alleged that any
right entrenched in ch 3 of the interim Constitution had been infringed, a court could grant
appropriate relief. In S v Melani1995 (2) SACR 141 (E) the court, in ascertaining what
constituted appropriated relief, rejected both the rigid exclusionary and rigid inclusionary
approaches. Froneman J found that a strict exclusionary approach failed to take into account
the interests of the community as a whole. He held that a rigid inclusionary approach was
inappropriate in a legal system which recognised the supremacy of the Constitution and that it
denied the court the opportunity of granting effective "appropriate relief". In favouring and
applying a discretionary approach, which allowed the court to admit evidence if its exclusion
would bring the administration of justice into discredit and dishonour, the court noted that the
seeds for such an approach could be detected in the case law prior to the enactment of the
interim Constitution. In this respect Froneman J referred (at 153e) to S v Hammer1994 (2)
SACR 496 (C). In addition the court held that this discretionary approach provided the best
mechanism for balancing the legitimate interests of the accused and those of the community at
large. In a later judgment bearing the same name (S v Melani1996 (1) SACR 335 (E))
Froneman J held that s 25 of the interim Constitution provided a further reason for the
exclusion of unconstitutionally obtained evidence, "namely the need to ensure the fairness and
integrity of the criminal process at least from arrest up to and including the trial" (at 84i-j).
Footnote - 184
184 See generally S v Motloutsi supra, which was followed in S v Mayekiso supra.
184 See generally S v Motloutsi supra, which was followed in S v Mayekiso supra.
Footnote - 185
185 S v Mathebula1997 (1) SACR 10 (W). This approach was rejected in S v Shongwe1998 (2)
SACR 321 (T) and S v Shaba1998 (2) SACR 16 (T).
185 S v Mathebula1997 (1) SACR 10 (W). This approach was rejected in S v Shongwe1998
(2) SACR 321 (T) and S v Shaba1998 (2) SACR 16 (T).
Footnote - 186
186 Compare, however, the remarks made by Magid J in S v Gumede 1998 5 BCLR 530 (D) 538B-
C.
186 Compare, however, the remarks made by Magid J in S v Gumede 1998 5 BCLR 530 (D)
538B-C.
Footnote - 187
187 Trengove in Chaskalson et al Constitutional Law of South Africa (1996, revision service 2 of
1998) 26-20. See also the remarks made by Scott JA in S v Pillay2004 (2) SACR 419 (SCA) at [6].
In S v Agnew1996 (2) SACR 535 (C) 541e-f Foxcroft J observed as follows: "[I]t would be farcical to
insist on a high standard of fairness in the courts while at the same time tolerating a low standard of
fairness in the judicial process prior to an accused reaching the court. What courts are ultimately
concerned with is justice and the right of an accused person to a fair trial. To allow a statement to
be made to a magistrate in the circumstances of this case without waiting for the attorney to advise
his client and to be present during the making of a statement to the magistrate, if that was what
was desired, would undermine the principles of a fair trial." See further S v Mphala1998 (1) SACR
388 (W) as discussed in § 12.9.5 below.
187 Trengove in Chaskalson et al Constitutional Law of South Africa (1996, revision service 2
of 1998) 26-20. See also the remarks made by Scott JA in S v Pillay2004 (2) SACR 419 (SCA)
at [6]. In S v Agnew1996 (2) SACR 535 (C) 541e-f Foxcroft J observed as follows: "[I]t would
be farcical to insist on a high standard of fairness in the courts while at the same time
tolerating a low standard of fairness in the judicial process prior to an accused reaching the
court. What courts are ultimately concerned with is justice and the right of an accused person
to a fair trial. To allow a statement to be made to a magistrate in the circumstances of this
case without waiting for the attorney to advise his client and to be present during the making
of a statement to the magistrate, if that was what was desired, would undermine the principles
of a fair trial." See further S v Mphala1998 (1) SACR 388 (W) as discussed in § 12.9.5 below.
Footnote - 188
188 See § 12.9.7 below.
188 See § 12.9.7 below.
Footnote - 189
189 See Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) and Key v Attorney-
General, Cape Provincial Division1996 (2) SACR 113 (CC). In para [13] of the latter case Kriegler J
held: "In any democratic criminal justice system there is a tension between, on the one hand, the
public interest in bringing criminals to book and, on the other, the equally great public interest in
ensuring that justice is manifestly done to all, even those suspected of conduct which would put
them beyond the pale. To be sure, a prominent feature of that tension is the universal and
unceasing endeavour by international human rights bodies, enlightened legislatures and courts to
prevent or curtail excessive zeal by state agencies in the prevention, investigation or prosecution of
crime. But none of that means sympathy for crime and its perpetrators. Nor does it mean a
predilection for technical niceties and ingenious legal stratagems. What the Constitution demands is
that the accused be given a fair trial. Ultimately … fairness is an issue which has to be decided on
the facts of each case, and the trial judge is the person best placed to take that decision. At times
fairness might require that evidence unconstitutionally obtained be excluded, but there will also be
times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be
admitted." This passage has often been cited or referred to for purposes of determining the
admissibility of unconstitutionally obtained evidence under the interim Constitution as well as s
35(5) of the Constitution. See S v Shongwe supra 342c-f; S v Kidson1999 (1) SACR 338 (W); S v
Gumede supra 541G-J. See also § 12.9.3 below.
189 See Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) and Key v
Attorney-General, Cape Provincial Division1996 (2) SACR 113 (CC). In para [13] of the latter
case Kriegler J held: "In any democratic criminal justice system there is a tension between, on
the one hand, the public interest in bringing criminals to book and, on the other, the equally
great public interest in ensuring that justice is manifestly done to all, even those suspected of
conduct which would put them beyond the pale. To be sure, a prominent feature of that tension
is the universal and unceasing endeavour by international human rights bodies, enlightened
legislatures and courts to prevent or curtail excessive zeal by state agencies in the prevention,
investigation or prosecution of crime. But none of that means sympathy for crime and its
perpetrators. Nor does it mean a predilection for technical niceties and ingenious legal
stratagems. What the Constitution demands is that the accused be given a fair trial. Ultimately
… fairness is an issue which has to be decided on the facts of each case, and the trial judge is
the person best placed to take that decision. At times fairness might require that evidence
unconstitutionally obtained be excluded, but there will also be times when fairness will require
that evidence, albeit obtained unconstitutionally, nevertheless be admitted." This passage has
often been cited or referred to for purposes of determining the admissibility of
unconstitutionally obtained evidence under the interim Constitution as well as s 35(5) of the
Constitution. See S v Shongwe supra 342c-f; S v Kidson1999 (1) SACR 338 (W); S v Gumede
supra 541G-J. See also § 12.9.3 below.
Footnote - 190
190 1996 (1) SACR 335 (E) 352f. In this regard the court clearly relied on R v Collins 1987 28 CRR
122 137 (SCC), which was cited in § 12.1.6 above.
190 1996 (1) SACR 335 (E) 352f. In this regard the court clearly relied on R v Collins 1987 28
CRR 122 137 (SCC), which was cited in § 12.1.6 above.
Footnote - 191
191 In the second Melani case supra 348i-349j Froneman J stated: "The purpose of the right to
counsel and its corollary to be informed of that right (embodied in s 25(1)(c)) is thus to protect the
right to remain silent, the right not to incriminate oneself and the right to be presumed innocent
until proven guilty. Sections 25(2) and 25(3) of the Constitution make it abundantly clear that this
protection exists from the inception of the criminal process, that is on arrest, until its culmination up
to and during the trial itself. This protection has nothing to do with a need to ensure the reliability of
evidence adduced at the trial. It has everything to do with the need to ensure that an accused is
treated fairly in the entire criminal process: in the 'gatehouses' of the criminal justice system (that is
the interrogation process), as well as in its 'mansions' (the trial court)." See also generally S v
Manuel1997 (2) SACR 505 (C) and the pre-constitutional decision S v Mpetha (2)1983 (1) SA 576
(CC) 593G-H.
191 In the second Melani case supra 348i-349j Froneman J stated: "The purpose of the right
to counsel and its corollary to be informed of that right (embodied in s 25(1)(c)) is thus to
protect the right to remain silent, the right not to incriminate oneself and the right to be
presumed innocent until proven guilty. Sections 25(2) and 25(3) of the Constitution make it
abundantly clear that this protection exists from the inception of the criminal process, that is
on arrest, until its culmination up to and during the trial itself. This protection has nothing to do
with a need to ensure the reliability of evidence adduced at the trial. It has everything to do
with the need to ensure that an accused is treated fairly in the entire criminal process: in the
'gatehouses' of the criminal justice system (that is the interrogation process), as well as in its
'mansions' (the trial court)." See also generally S v Manuel1997 (2) SACR 505 (C) and the pre-
constitutional decision S v Mpetha (2)1983 (1) SA 576 (CC) 593G-H.
Footnote - 192
192 S v Gasa1998 (1) SACR 446 (D) 447b-c.
192 S v Gasa1998 (1) SACR 446 (D) 447b-c.
Footnote - 193
193 The second Melani case supra 349e-f; S v Gasa supra; S v Marx1996 (2) SACR 140 (W).
193 The second Melani case supra 349e-f; S v Gasa supra; S v Marx1996 (2) SACR 140 (W).
Footnote - 194
194 See generally S v Sebejan1997 (1) SACR 626 (W) as read with S v Langa1998 (1) SACR 21
(T) and S v Ngwenya1998 (2) SACR 503 (W).
194 See generally S v Sebejan1997 (1) SACR 626 (W) as read with S v Langa1998 (1) SACR
21 (T) and S v Ngwenya1998 (2) SACR 503 (W).
Footnote - 195
195 These rights were embodied in s 25(1)(c) and 25(2)(a) of the interim Constitution — in
essence the right to legal representation (and to be so informed) and the right to silence (and to be
so informed).
195 These rights were embodied in s 25(1)(c) and 25(2)(a) of the interim Constitution — in
essence the right to legal representation (and to be so informed) and the right to silence (and
to be so informed).
Footnote - 196
196 S v Marx supra. The accused had upon his arrest been informed of all his relevant
constitutional rights. Some ten hours later he made a formal statement to the police during a
specific police procedure, ie, the taking down of a "warning statement" ("waarskuwingsverklaring"),
without having been informed of his right to legal assistance in regard to this procedure. Cameron J
excluded the statement. There was no indication that the accused knew that he was for purposes of
making the statement, entitled to legal assistance. See also the second Melani case supra 350f-g
and S v Mathebula1997 (1) SACR 10 (W). However, compare S v Shaba1998 (1) SACR 16 (T) and S
v Ndhlovu2001 (1) SACR 85 (W). The latter case was decided under s 35(5) of the Constitution.
196 S v Marx supra. The accused had upon his arrest been informed of all his relevant
constitutional rights. Some ten hours later he made a formal statement to the police during a
specific police procedure, ie, the taking down of a "warning statement"
("waarskuwingsverklaring"), without having been informed of his right to legal assistance in
regard to this procedure. Cameron J excluded the statement. There was no indication that the
accused knew that he was for purposes of making the statement, entitled to legal assistance.
See also the second Melani case supra 350f-g and S v Mathebula1997 (1) SACR 10 (W).
However, compare S v Shaba1998 (1) SACR 16 (T) and S v Ndhlovu2001 (1) SACR 85 (W).
The latter case was decided under s 35(5) of the Constitution.
Footnote - 197
197 See generally S v Malefo1998 (1) SACR 127 (W) and S v Nombewu1996 (2) SACR 396 (E),
where, it seems, good factual grounds existed for refusing exclusion.
197 See generally S v Malefo1998 (1) SACR 127 (W) and S v Nombewu1996 (2) SACR 396
(E), where, it seems, good factual grounds existed for refusing exclusion.
Footnote - 198
198 See ch 17 below, especially § 17.4.1 below.
Footnote - 199
Footnote - 200
200 See generally S v Nombewu supra 403b-404c; S v Manuel1997 (2) SACR 505 (C) 516b.
200 See generally S v Nombewu supra 403b-404c; S v Manuel1997 (2) SACR 505 (C) 516b.
Footnote - 201
201 The Judges' Rules are cited in Appendix C to this work.
201 The Judges' Rules are cited in Appendix C to this work.
Footnote - 202
202 See generally S v Nombewu supra 403b-e. However, compare, S v Van der Merwe1998 (1)
SACR 194 (O), where Gihwala AJ held that no obligation rested upon the investigating officer, in
addition to cautioning the accused in terms of the Judges' Rules, to advise him of his rights in terms
of the interim Constitution. It should be pointed out that in this case the investigating officer had
been bona fide unaware that the accused was a suspect when he questioned him. The court
admitted the exculpatory statement (which contained admissions) on the basis that such admission
would not have deprived the accused of his right to a fair trial. The court relied on various factors in
reaching its decision (at 202c-f).
202 See generally S v Nombewu supra 403b-e. However, compare, S v Van der Merwe1998
(1) SACR 194 (O), where Gihwala AJ held that no obligation rested upon the investigating
officer, in addition to cautioning the accused in terms of the Judges' Rules, to advise him of his
rights in terms of the interim Constitution. It should be pointed out that in this case the
investigating officer had been bona fide unaware that the accused was a suspect when he
questioned him. The court admitted the exculpatory statement (which contained admissions)
on the basis that such admission would not have deprived the accused of his right to a fair
trial. The court relied on various factors in reaching its decision (at 202c-f).
Footnote - 203
203 1998 (1) SACR 446 (D).
203 1998 (1) SACR 446 (D).
Footnote - 204
204 1998 (1) SACR 127 (W).
204 1998 (1) SACR 127 (W).
Footnote - 205
205 1996 (1) SACR 78 (C).
205 1996 (1) SACR 78 (C).
Footnote - 206
206 1965 IR 142.
206 1965 IR 142.
Footnote - 207
207 S v Motloutsi supra 83h. Farlam J also relied on S v Forbes1970 (2) SA 594 (C) as well as his
own decision in S v Hammer1994 (2) SACR 496 (C).
207 S v Motloutsi supra 83h. Farlam J also relied on S v Forbes1970 (2) SA 594 (C) as well as
his own decision in S v Hammer1994 (2) SACR 496 (C).
Footnote - 208
208 In this case it was held (at 161) that a trial judge "has a discretion to exclude evidence of
facts ascertained by illegal means where it appears to him that public policy, based on a balancing of
public interest, requires such exclusion".
208 In this case it was held (at 161) that a trial judge "has a discretion to exclude evidence
of facts ascertained by illegal means where it appears to him that public policy, based on a
balancing of public interest, requires such exclusion".
Footnote - 209
209 S v Motloutsi supra 88g-h.
Footnote - 210
Footnote - 211
211 1996 (2) SACR 298 (C).
211 1996 (2) SACR 298 (C).
Footnote - 212
212 S v Mayekiso supra 307a-b.
212 S v Mayekiso supra 307a-b.
Footnote - 213
213 S v Mayekiso supra 307d-e.
213 S v Mayekiso supra 307d-e.
Footnote - 214
214 The second Melani case supra 352g.

214 The second Melani case supra 352g.
Footnote - 215
215 In the second Melani case supra Froneman J, before excluding the impugned evidence,
observed as follows at 352d-e: "At the time of delivery of this judgment it is, I think, fair to say that
there is a widespread public perception that crime is on the increase, in this province and in the
country as a whole and that the police force is having difficulty, to put it mildly, to contain the
increase. At the best of times the police have an unenviable task. Their opponents, criminals, are not
gentlemen. They do not fight fair, but the police must. I venture to suggest that a public opinion poll
would probably show that a majority of our population would at this stage in the history of our
country be quite content if the courts allow evidence at a criminal trial, even if it was
unconstitutionally obtained."
215 In the second Melani case supra Froneman J, before excluding the impugned evidence,
observed as follows at 352d-e: "At the time of delivery of this judgment it is, I think, fair to say
that there is a widespread public perception that crime is on the increase, in this province and
in the country as a whole and that the police force is having difficulty, to put it mildly, to
contain the increase. At the best of times the police have an unenviable task. Their opponents,
criminals, are not gentlemen. They do not fight fair, but the police must. I venture to suggest
that a public opinion poll would probably show that a majority of our population would at this
stage in the history of our country be quite content if the courts allow evidence at a criminal
trial, even if it was unconstitutionally obtained."
Footnote - 216
216 S v Mayekiso1996 (2) SACR 298 (C) 307a-c.
216 S v Mayekiso1996 (2) SACR 298 (C) 307a-c.
Footnote - 217
217 1996 (2) SACR 396 (E).
217 1996 (2) SACR 396 (E).
Footnote - 218
218 At 422h-i.
218 At 422h-i.
Footnote - 219
219 At 422i-j.
219 At 422i-j.
Footnote - 220
220 At 423c-e.
220 At 423c-e.
Footnote - 221
221 1996 (1) SACR 78 (C). See also § 12.7.2.2 above.
221 1996 (1) SACR 78 (C). See also § 12.7.2.2 above.
Footnote - 222
222 At 86i.
222 At 86i.
Footnote - 223
223 Ibid.
223 Ibid.
Footnote - 224
224 The second Melani case supra; S v Shongwe1998 (2) SACR 321 (T).
224 The second Melani case supra; S v Shongwe1998 (2) SACR 321 (T).
Footnote - 225
225 1998 (1) SACR 127 (W).
225 1998 (1) SACR 127 (W).
Footnote - 226
226 1987 28 CRR 122. See § 12.6.3 above.
226 1987 28 CRR 122. See § 12.6.3 above.
Footnote - 227
227 S v Malefo supra 155g-h.
227 S v Malefo supra 155g-h.
Footnote - 228
228 At 155d-f.
228 At 155d-f.
Document 103 of 330
12.8 Section 35(5) of the Constitution

The principles and trends established by the High Court in respect of the
admissibility of evidence obtained in breach of rights embodied in Chapter Three
of the interim Constitution (see §§ 12.7.2 to 12.7.2.3 above), probably played a
significant role in the formulation of s 35(5) of the Constitution: "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 otherwise be
detrimental to the administration of justice." The general preference of the High
Court for the Canadian approach (see § 12.7.2.3 above) must also have played
some role. Section 35(5) is "[i]n structure and wording … closely modelled" 229 on
s 24(2) of the Canadian Charter, which was quoted in § 12.6 above. In S v
Naidoo McCall J held: 230
"Having regard to the similarity between s 35(5) of the new Constitution and s 24(2)
of the Canadian Charter (but bearing in mind the differences between the two
enactments), 231 and also the provision in s 39(1)(c) that when interpreting the Bill
of Rights, a court may consider foreign law, I am of the view that it is more helpful
to interpret the provisions of s 35(5) with reference to the Canadian decisions than
to those South African cases dealing with a more general discretion based on the
decision in People v O'Brien." 232
Langenhoven supports this approach in principle 233 but also warns that South
African courts should be careful in following the Canadian case law on s 24(2) in
all respects, because the Canadian Supreme Court has moved in the direction of a
"omvattende uitsluitingsreël" 234 and has created an "extremely aggressive
3rd Ed, 2009 ch12-p215
exclusionary remedy" 235 — the precise situation which s 24(2) was designed to
avoid. 236
Section 35(5), like s 24(2), can be described as a qualified exclusionary rule.
Section 35(5) contains a constitutional directive to the effect that evidence
obtained in a manner that violates any right in the Bill of Rights, must be
excluded. This directive, however, becomes operative only where admission of
the unconstitutionally obtained evidence would render the trial unfair (see § 12.9
below) or would otherwise be detrimental to the administration of justice (see §
12.10 to 12.10.6 below). On the basis of this analysis, the courts have a duty as
well as a discretion. There is a duty to exclude if admission would have one of the
consequences identified in the section. 237 In this respect there is no discretion
but a fixed constitutional rule of exclusion. 238 However, in determining whether
admission would have one of the two identified consequences, a court is required
to make a value judgment 239 — and in this respect there is a discretion which
must, obviously, be exercised having regard to all the facts of the case, fair trial
principles and, where appropriate, considerations of public policy. It should be
noted that what is relevant or decisive for purposes of determining whether
admission would render the trial unfair, is not necessarily also relevant or decisive
for purposes of determining whether admission would be detrimental to the
administration of justice. For example, factors like the seriousness and prevalence
of the crime, cannot tip the scales in favour of admission if admission would
indeed render the trial unfair (see § 12.9 below). In S v Naidoo McCall J pointed
out that the words "or otherwise" in s 35(5) mean that an unfair trial is always
detrimental to the administration of justice. 240 The reverse, of course, is not
true: if admission would not render the trial unfair, exclusion might still be
necessary on the basis that admission would be detrimental to the
3rd Ed, 2009 ch12-p216
administration of justice. In S v Tandwa Cameron JA, Mlambo JA and Hancke AJA

said: 241
"The notable feature of the Constitution's specific exclusionary provision is that it
does not provide for automatic exclusion of unconstitutionally obtained evidence.
Evidence must be excluded only if it (a) renders the trial unfair; or (b) is otherwise
detrimental to the administration of justice. This entails that admitting impugned
evidence could damage the administration of justice in ways that would leave the
fairness of the trial intact: but where admitting the evidence renders the trial itself
unfair, the administration of justice is always damaged. Differently put, evidence
must be excluded in all cases where its admission is detrimental to the
administration of justice, including the subset of cases where it renders the trial
unfair. The provision plainly envisages cases where evidence should be excluded for
broad public policy reasons beyond fairness to the individual accused."
Steytler has made the following valid observations: 242
"It should be noted that there is principally one test — whether the admission of
evidence would be detrimental to the administration of justice. The test relating to
the fairness of the trial is a specific manifestation of this broader enquiry; to have an
unfair trial is demonstrably detrimental to the administration of justice. Having said
this, it should be emphasized that section 35(5) has created two tests which should
be kept separate; rules applicable to one are not necessarily applicable to the
other."
In the present work the two tests are also kept apart: the test whether
"admission would … render the trial unfair", is discussed in §§ 12.9–12.9.8 below;
and the second (or alternate or over-arching) test whether "admission … would
otherwise be detrimental to the administration of justice", is discussed in §§
12.10–12.10.6 below. But it will also become evident that there is considerable
over-lapping.
12.8.1 Section 35(5): The threshold test

The threshold test for purposes of s 35(5) is the following: is the objection to the
admission of the evidence based upon the violation of a constitutional right ("any
right in the Bill of Rights") or the violation of a non-constitutional right (for
example, where a statute has conferred "more extensive rights" 243 on the
accused than those which are explicitly or impliedly found in the Bill of Rights)?
Section 35(5) will attract application only where evidence was obtained after a
breach of constitutional rights (see § 12.8.2 below) or in breach of constitutional
rights. 244 The admissibility of evidence obtained improperly or illegally — but not
in violation of a right in the Bill of Rights — must be determined on the basis of
the court's common-law discretion (as set out in § 12.7.1 above). But in the
exercise of its common-law discretion, the court should ensure that the
constitutional right to a fair trial is not jeopardised by the admission of improperly
or illegally obtained evidence. It has rightly been pointed out that s 35(5) "was
intended to add to and not to distract from the constitutional right to a fair trial".
245 The fact that s 35(5) is confined to evidence obtained in breach of
constitutional rights, provides no ground for an inference that "the framers of the
… Constitution intended to restrict the right to a fair
3rd Ed, 2009 ch12-p217
trial by allowing illegally or improperly obtained evidence to be admitted even if it

rendered the trial unfair". 246 This is also the clear implication of S v Kidson as
discussed in § 12.7.1 above.
12.8.2 Section 35(5): The causal link between violation and

procurement
The Canadian Supreme Court takes the view that the words "obtained in a
manner" in s 24(2) of the Charter do not demand a strict or direct causal link
between the breach of a Charter right and the securing of the evidence. 248 In R v
Strachan it was held that the problems and pitfalls of causation could be avoided
by focusing on the entire chain of events during which the Charter breach
occurred and the evidence was obtained. The court emphasised the value of a
temporal link (for example, where the violation and procurement of the evidence
took place in the course of a single transaction) in assessing the issue whether
the evidence was obtained in a manner that infringed a Charter right, but also
added the following: 250
"The presence of a temporal requirement is not, however, determinative. Situations
will arise where evidence, though obtained following the breach of a Charter right,
will be too remote from the violation to be 'obtained in a manner' that infringed the
Charter … [T]hese situations should be dealt with on a case-by-case basis. There can
be no hard-and-fast rule for determining when evidence obtained following the
infringement of a Charter right becomes too remote."
R v Goldhart is an example of a case where the Supreme Court of Canada, in an
eight to one majority, concluded that the causal connection between the Charter
breach and the evidence was too weak to attract the application of s 24(2). In
this case the accused, G, was charged with cultivating dagga. At the trial real
evidence obtained during a search in breach of G's rights under s 8 of the
Charter, was excluded. However, G was convicted on the evidence of a former co-
accused who had earlier pleaded guilty and who was present at the time of the
unconstitutional search. On appeal G was acquitted on the basis that there was a
causal link between the co-accused's oral testimony and the unconstitutional
search: had the police not conducted the unconstitutional search, the co-accused
would not have been arrested, would have had no reason to come forward and
would not have given evidence against G. On an appeal by the Crown to the
Supreme Court, it was held that the testimony of the co-accused had not been
obtained in a manner that infringed a right or freedom under the Charter. There
was an insufficient link or causal connection. The co-accused's decision to co-
operate with the police, plead guilty and testify against G was a decision which he
had taken of his own free will and which had been brought about largely by his
recent conversion as a born-again Christian. In these circumstances, the decisive
factor was not the arrest
3rd Ed, 2009 ch12-p218
of the co-accused, but his subsequent voluntary decision to testify: the discovery
of the witness following upon a Charter breach could not be equated with the
evidence of this witness. 252
In S v Mthembu it was common cause that R, a prosecution witness and
accomplice who had testified after having been warned in terms of s 204 of the
CPA, had been tortured by the police some four years prior to his testifying in
court and — as a result of the torture — had made a statement that led to the
discovery of articles incriminating the accused. Cachalia JA (Cameron JA and
Maya JJA concurring) found that the fact that the evidence was obtained in
breach of the constitutional rights of the witness — as opposed to those of the
accused — was no bar to subjecting the impugned evidence (the oral evidence of
R and the real evidence) to the admissibility test as provided for in s 35(5) of the
Constitution (see § 12.8.3 below). As regards the chain of events or causal link
between R's torture and his subsequent testimony in court, Cachalia JA found
that R had
"made his statement to the police immediately after the metal box was discovered
at his home following his torture. That his subsequent testimony was given
apparently voluntarily does not detract from the fact that the information contained
in that statement pertaining to the Hilux and metal box was extracted through
torture. It would have been apparent to him when he testified that, having been
warned in terms of s 204 of the Act, any departure from his statement would have
had serious consequences for him. It is also apparent from his testimony that, even
four years after his torture, its fearsome and traumatic effects were still with him. In
my view, therefore, there is an inextricable link between his torture and the nature
of the evidence that was tendered in court. The torture has stained the evidence
irredeemably." 254
R's evidence relating to the Hilux and metal box was accordingly excluded under
the second leg of the test in s 35(5) and irrespective of whether admission
thereof would have had an impact on the right of the accused to a fair trial.
In S v Mark four prosecution witnesses who were prisoners at the time of the
death of the deceased and who were eye-witnesses to the murder of the
deceased, admitted in their evidence in court that shortly after the murder they
were assaulted by prison warders who wanted them to disclose the identity of the
murderer(s). Both counsel for the defence sought exclusion of the oral testimony
of the witnesses on the basis of, inter alia, the provisions of s 35(5). Davis J
proceeded from the premise that there had to be "a sufficient link" 256 between
the oral testimony of the four witnesses and the earlier infringement of their
constitutional rights to dignity and bodily integrity. He then held: 257
"The difficulty in this case is that each of the four witnesses testified in open court
some two and a half years after the events; they all insisted as a result of
examination and cross-examination that they had testified voluntarily. They claimed
that they wished to testify because an innocent person had been murdered. Even if
they were somewhat apprehensive in their testimony, that may well have been due
to fear of reprisals from prison gangs rather than from the authorities. In two cases
3rd Ed, 2009 ch12-p219
the witnesses were already discharged from prison (and a third was discharged
during the trial). While the statements were unquestionably tainted, it would be a
dramatic extension of the poisoned fruit doctrine to conclude that evidence given by
witnesses in the circumstances I have outlined should be declared inadmissible as
opposed to it being subject to careful scrutiny."
In this case the link was extremely weak — if not entirely missing; and the fact
that the witnesses had testified voluntarily also caused a break in the rather
lengthy chain of events — in so far as it is possible to refer to a chain of events in
this case. It should be noted that Davis J held that the statements obtained by
the authorities from the witnesses after the incident and after the assaults, were
"unquestionably tainted", but not the oral testimony in court. This was not a
situation, said he, where the case for the prosecution was based on evidence
extracted by torture. 258 In such an instance exclusion would have been required.
It should be mentioned, in passing, that issues concerning "standing" (see §
12.8.3 below) were neither raised nor considered in S v Mark. In Mark both
accused sought exclusion not on the basis that the impugned testimony was
obtained in violation of their constitutional rights, but in violation of the rights of
the four prosecution witnesses. It was argued that admission of the oral evidence
of the latter would render the trial of the accused unfair or otherwise be
detrimental to the administration of justice. S v Mark obviously did not involve
the risk of unconstitutionally obtained self-incriminating evidence which could or
would have affected the right to a fair trial.
Where an accused relies on s 35(5) in circumstances where it is alleged that
the impugned evidence was obtained as a result of a breach of his constitutional
rights, it seems as if a fairly liberal interpretation should be given to the words
"[e]vidence obtained in a manner that violates any right in the Bill of Rights." In
S v Soci Erasmus J — having noted that the Constitution is no ordinary statute
and having assumed that a purposeful interpretation was required — concluded
that the evidence referred to in the words "[e]vidence obtained in a manner that
violates any rights in the Bill of Rights" in s 35(5) included all acts performed by a
detainee subsequent to an infringement of his constitutional rights in the course
of pre-trial investigations. 260 He also took the following view: 261
"Only on such basis can the evidence of the pointing-out and the statement by the
accused be said to have been 'obtained in violation of a right in the Bill of Rights'
even in the absence of a causal connection between the violation and the
subsequent self-incriminating acts by the accused. On such basis prejudice would
not be a consideration in establishing the presence of the jurisdictional fact that the
evidence was 'obtained' in a manner that violates the Bill of Rights … However, a
prejudice to the accused, in my view, becomes relevant under the requirement in s
(5) that the evidence must be excluded 'if the admission of that evidence would
render the trial unfair' … This view accords with the explicit terms of s 35(5) that the
violation must 'render' the trial unfair. 262 It is further to be noted that s 35(5)
provides that the evidence shall be excluded — in the alternative — if the admission
of that evidence would 'otherwise be detrimental to the administration of
3rd Ed, 2009 ch12-p220

justice'. The court has the power (indeed duty) to exclude evidence if the admission
thereof would bring the administration of justice into dispute, even where there is no
causal connection between the constitutional infringement and the subsequent self-
incriminatory acts by the accused. It seems to me that the question of prejudice lies
at the very basis of the distinction between the two requirements in s (5)."
The court, having made the factual finding that the accused had not been
informed by the police that he was entitled to consult a lawyer prior to and in
connection with the proposed pointing out, concluded that the issue of
admissibility had to be decided "on the basis that there was a … link between the
infraction of the right and the accused's pointing-out". 263 The evidence of the
pointing out was excluded. In respect of a confession made by the accused to a
magistrate less than three hours after the pointing out, the factual finding was
made that the accused, fully informed of his rights by the magistrate, had
nevertheless decided to make a statement without first consulting a legal
representative. Erasmus J held: 264
"It could, of course, be argued that his decision to make the statement was affected
by his earlier pointing-out. But the fact of the matter here is that the accused was
fully informed of his rights and in fact advised to obtain legal assistance. What he
would or would not have done but for the preceding pointing-out is a matter of
speculation. In my view therefore the admissibility of the statement must be decided
on the basis that there was no causal connection between the failure on the part of
the police to advise the accused of his rights properly and the subsequent statement
made to the magistrate."
Soci, it is submitted, is an example of a case where a valid waiver provided a

break in the chain of events (see also § 12.9.5 below). The accused voluntarily,
knowingly and intelligently decided not to consult a legal practitioner prior to his
making a statement to the magistrate — a decision which was neither directly nor
indirectly affected by the prior unconstitutional conduct of the police in relation to
the pointing out. That is why there was no link. In this respect, however, Soci
should be compared with the Canadian Supreme Court decision R v I (LR). 265 In
this case a young person's first statement to the police was excluded because he
was in breach of the Charter not informed of his right to retain and instruct
counsel. However, for purposes of a second statement he was so informed. The
court nevertheless also excluded the second statement under s 24(2) of the
Charter. There was a close temporal relationship between the two statements and
the second was really a continuation of the first. The first statement was,
furthermore, a substantial factor which led to the second statement. 266
It is submitted that there are good reasons why a strict causation test should
not be followed. A strict test will compromise the judicial integrity rationale (see §
12.4.4 above) of s 35(5) and would also undermine the principle of self-correction
3rd Ed, 2009 ch12-p221
(see § 12.4.5 above) in terms of which courts should not tolerate or

accommodate abuses in the system. A strict causation test might also have an
adverse impact on the deterrent purpose or basis of the exclusionary rule (see §
12.4.1 above) embodied in s 35(5): state officials and agents of the state should
not be permitted to operate on the basis that violations of constitutional rights
will be tolerated if remotely connected to the procurement of the evidence. At any
rate, a strict causation test diverts attention from the two true tests embodied in
s 35(5), namely, whether admission of the evidence would render the trial unfair
or otherwise be detrimental to the administration of justice.
12.8.3 Section 35(5) and "standing"

In the USA the accused must in principle have so-called "standing" before he can
rely on the exclusionary rule. 267 This means that there must have been a
violation of the rights of the accused; for example, if A's house is searched by the
police in breach of the Fourth Amendment, any evidence obtained that
incriminates B may be admitted at B's trial but not at A's trial. 268 Standing is also
a requirement in Canada. 269 However, there is no such restriction as far as s
35(5) of the Constitution is concerned. In S v Mthembu Cachalia JA held: 270
"A plain reading of s 35(5) suggests that it requires the exclusion of evidence
improperly obtained from any person, not only from an accused. There is, I think, no
reason of principle or policy not to interpret the provision in this way. It follows that
the evidence of a third party, such as an accomplice, may also be excluded, where
the circumstances of the case warrant it. This is so even with real evidence. As far
as I am aware, this is the first case since the advent of our constitutional order
where the issue has pertinently arisen."
It is submitted that there are indeed no grounds upon which a requirement of
"standing" can be read into s 35(5) of the Constitution. There is nothing in the
language of s 35(5) which calls for a restrictive interpretation. A requirement of
"standing" would also be inconsistent with the "preventive effect" rationale (see §
12.4.1 above) of s 35(5) and would, furthermore, ignore the essential form of
judicial "remote control" which courts can through s 35(5) exercise over police
officials when they operate in the field. 271 Judicial integrity (as discussed in §
12.3.4 above) would also be seriously compromised by a requirement of
"standing". It is true that s 35(5) forms part of a section that deals with the rights
of arrested, detained and accused persons. At the same time, however, it is
equally true that s 35(5) refers to "any right in the Bill of Rights" and does not
specify who the bearer of such right should be. To argue that s 35(5) can only be
activated in respect of evidence
3rd Ed, 2009 ch12-p222
obtained in breach of a constitutional right of an accused, is to lose sight of the

true focus of s 35(5), namely to ensure that the admission of unconstitutionally
obtained evidence would not have the consequences identified in the section.
Langenhoven also rejects the idea that "standing" is a prerequisite. According
to him, s 35(5) is not a personal remedy, but "'n indirekte meganisme om alle
individue se grondwetlike regte te beskerm". 272 However, he argues that a court
may — in its assessment of the issue whether the admission of the evidence
would be detrimental to the administration of justice — take into account the fact
that constitutional rights of a third party and not those of the accused, were
violated. 273
It is submitted that the provisions of s 39(1)(a) of the Constitution also
provide further support for the argument that a requirement of "standing" should
not be read into s 35(5). There also seems to be no reason why the admissibility
of evidence obtained in breach of the constitutional rights of the accused should
be dealt with in terms s 35(5) whereas the admissibility of the same type of
evidence which involved the constitutional rights of third parties, should fall under
a court's common-law discretion as set out in § 12.7.1 above.
12.8.4 Section 35(5) and the admissibility of evidence

unconstitutionally procured by private individuals
Section 35(5) also applies to the situation where the prosecution wishes to
introduce evidence unconstitutionally obtained by private individuals 274 who, in
obtaining this evidence, had acted quite independently from the state and its law
enforcement officers, 275 officials or agents. 276 The courts should not permit a
"silver platter" situation, 277 that is, a situation where the provisions of s 35(5)
can be ignored on account of the fact that the impugned evidence was not
procured by the unconstitutional conduct of the state but only made available to
it by a private individual who had secured it in
3rd Ed, 2009 ch12-p223
breach of constitutional rights. Section 35(5) applies to a situation where

vigilantes, having decided to resort to self-help by not involving the police in the
investigation of the crime, obtain evidence in breach of the constitutional rights of
the accused. 278 Section 35(5) also covers the situation where the police abdicate
their constitutional and statutory duty to investigate crime, by "subcontracting" it
to anti-crime committees who gather evidence by seriously and deliberately
violating the constitutional rights of the accused. 279
The question therefore ought to be whether the admission of the
unconstitutionally obtained evidence which the state seeks to use — and not
which the state had necessarily procured — would have the consequences
identified in s 35(5).
It does not follow, however, that the court should, in deciding the question of
admissibility of the impugned evidence, disregard the fact that it was an
individual — and not the state — which had procured the evidence in breach of
constitutional rights. Obviously, if the court concludes that admission would
render the trial unfair the evidence must be excluded. However, where the issue
is whether admission would be detrimental to the administration of justice, a
court would be perfectly entitled to take into account that it was an individual —
and not the state — which had procured the evidence. In such an instance the
disciplinary function of the court and the need to ensure that the state makes use
of constitutionally permissible investigative techniques, can hardly play a role.
The issue is not the traditional one of protecting individuals against abuse of
power by the state, but protecting individuals against abuses of their rights by
other individuals. Of course, the courts should be careful to ensure that the
individual did act independently from the police and was not part of a sham or
strategy designed to conceal police involvement in unconstitutional conduct. 280
12.8.5 Section 35(5) and the limitations clause in s 36

In terms of s 36(1) only a "law of general application" — and this is the minimum
requirement 281 — can validly limit a right in the Bill of Rights. The "law of
general application" could be a statutory or common-law rule. 282 Police conduct
which is not authorised by a law of general application, can never "limit" a right in
the Bill of Rights on the basis that, for example, it was reasonable and justifiable
conduct having regard to all the circumstances of the case and therefore a
"permissible" limitation of the constitutional right in question, rendering s 35(5)
inapplicable or without any effect. 283 Section 36(1) does not permit this line of
reasoning. 284 The evidence will remain unconstitutionally obtained evidence.
However, for purposes of determining whether admission of such
unconstitutionally obtained evidence would result in one or both of the
consequences identified
3rd Ed, 2009 ch12-p224
in s 35(5), the court may in the exercise of its discretion take into account the
circumstances under which the evidence was obtained (see, for example, §
12.9.4 below).
Section 36(1) applies to the situation where it is alleged that the evidence was
obtained unconstitutionally in that the statutory or common-law rule in terms of
which it was obtained, is a constitutionally impermissible limitation of one or more
of the rights in the Bill of Rights. 285 A court of competent jurisdiction must then
determine the constitutional validity of the impugned rule of law.
12.8.6 Section 35(5) and a co-accused's constitutional right to a

fair trial
In S v Aimes Desai J held that the admission of accused number one's bail
evidence — obtained in breach of his right to be advised to remain silent — would
violate his right to a fair trial. But it was also clear that exclusion of the bail
evidence of accused number one would in the circumstances of the case also
have infringed accused number two's right to adduce evidence, which in turn
would have violated the latter's right to a fair trial. Desai J ruled (correctly, it is
submitted) that accused number one's bail evidence could be used by accused
number two for purposes of cross-examining accused number one or any other
purpose, provided that accused number one's bail evidence could not be used to
prove the truth of its contents against accused number one. Desai J held that it
was unnecessary to decide whether the issue had to be dealt with in terms of the
interim Constitution or s 35(5) of the Constitution. The result, he found, would
have been the same.
12.8.7 Section 35(5) and impeachment of the accused

The question whether the "impeachment" exception created by the Supreme
Court of the USA — see § 12.5.2.3 above — should apply to s 35(5), is discussed
in § 25.5 below in the chapter which deals with the impeachment of the credibility
of witnesses, including the accused as a defence witness.
12.8.8 Sections 35(5) and 37: Derogation in states of emergency

In terms of s 37(1) of the Constitution a state of emergency may be declared
only in terms of an Act of Parliament — and only when the life of the nation is
threatened by war, invasion, general insurrection, disorder, natural disaster or
other public emergency and, furthermore, only when such a declaration is
necessary to restore peace and order. During such an emergency certain rights
may not be derogated from, or may only be derogated from to a certain extent.
That part of s 35(5) which deals with the exclusion of evidence if the admission of
such evidence would render the trial unfair, is non-derogable. 287 The
3rd Ed, 2009 ch12-p225
implication is that where a state of emergency has been declared, an Act of

Parliament may suspend that portion of s 35(5) which deals with the question
whether admission of the evidence would be detrimental to the administration of
justice. But even here such a derogation from s 35(5) must be "strictly required
by the emergency". 288
Footnote - 229
229 Steytler Constitutional Criminal Procedure 34.
229 Steytler Constitutional Criminal Procedure 34.
Footnote - 230
230 1998 (1) SACR 479 (N) 527g.
230 1998 (1) SACR 479 (N) 527g.
Footnote - 231
231 The main differences are the following: s 35(5) makes specific reference to a fair trial, whereas
s 24(2) does not (and had to be read into s 24(2) by the Supreme Court of Canada — see § 12.6.1
above); s 35(5) uses the criterion "detrimental to the administration of justice", whereas s 24(2)
created the criterion "bringing the administration of justice into disrepute" which, it is submitted, is a
broader test than "detrimental to the administration of justice" — see § 12.10 below; the words "if it
is established that" in s 24(2) do not appear in s 35(5) — see also § 12.11.2 below; the words
"having regard to all the circumstances" appear in s 24(2) but not in s 35(5) — a difference which is
of no consequence as a court which interprets and applies s 35(5) must of necessity take into account
all the circumstances. In S v Pillay2004 (2) SACR 419 (SCA) Mpati DP and Motata J said (at [93]) that
although s 35(5) "does not direct a court, as s 24(2) of the Charter does, to consider 'all the
circumstances' in determining whether the admission of evidence will bring the administration of
justice into disrepute, it appears to us to be logical that all relevant circumstances should be
considered."
231 The main differences are the following: s 35(5) makes specific reference to a fair trial,
whereas s 24(2) does not (and had to be read into s 24(2) by the Supreme Court of Canada —
see § 12.6.1 above); s 35(5) uses the criterion "detrimental to the administration of justice",
whereas s 24(2) created the criterion "bringing the administration of justice into disrepute"
which, it is submitted, is a broader test than "detrimental to the administration of justice" —
see § 12.10 below; the words "if it is established that" in s 24(2) do not appear in s 35(5) —
see also § 12.11.2 below; the words "having regard to all the circumstances" appear in s 24(2)
but not in s 35(5) — a difference which is of no consequence as a court which interprets and
applies s 35(5) must of necessity take into account all the circumstances. In S v Pillay2004 (2)
SACR 419 (SCA) Mpati DP and Motata J said (at [93]) that although s 35(5) "does not direct a
court, as s 24(2) of the Charter does, to consider 'all the circumstances' in determining
whether the admission of evidence will bring the administration of justice into disrepute, it
appears to us to be logical that all relevant circumstances should be considered."
Footnote - 232
232 1980 IR 142.
232 1980 IR 142.
Footnote - 233
233 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 330-1. See also generally § 3.9
above.
233 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 330-1. See also generally § 3.9
above.
Footnote - 234
234 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 355.
234 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 355.
Footnote - 235
235 Paciocco "The Judicial Repeal of s 24(2) and the Development of the Canadian Exclusionary
Rule" 1990 32 Crim LQ 326 342 (as cited by Langenhoven Die Toelaatbaarheid van Ongrondwetlik
Verkreë Getuienis 354).
235 Paciocco "The Judicial Repeal of s 24(2) and the Development of the Canadian
Exclusionary Rule" 1990 32 Crim LQ 326 342 (as cited by Langenhoven Die Toelaatbaarheid
van Ongrondwetlik Verkreë Getuienis 354).
Footnote - 236
236 See the dissenting judgment of McLaghlin J in R v Stillman 1997 42 CRR 2d (SCC) — especially
at 252-3 and 257.
236 See the dissenting judgment of McLaghlin J in R v Stillman 1997 42 CRR 2d (SCC) —
especially at 252-3 and 257.
Footnote - 237
237 Steytler Constitutional Criminal Procedure 36; S v Soci1998 (2) SACR 275 (E) 394f: "The terms
of s 35(5) are peremptory: the tainted evidence 'must' be excluded if one of the two" consequences
identified would result if the evidence is admitted.
237 Steytler Constitutional Criminal Procedure 36; S v Soci1998 (2) SACR 275 (E) 394f: "The
terms of s 35(5) are peremptory: the tainted evidence 'must' be excluded if one of the two"
consequences identified would result if the evidence is admitted.
Footnote - 238
238 The importance of distinguishing between a rule and a discretion for purposes of s 35(5) is
explained as follows by Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 337-
8: "Die vraag ontstaan … waarom die aan- of afwesigheid van 'n diskresie so belangrik is … Die
antwoord is dat 'n diskresie 'exists where there is a choice to do one thing or another, not merely
what is involved is the application of a flexible standard' [R v Therens 1985 13 CRR 193 (SCC) 224].
'n Diskresie, in teenstelling met 'n reël, verleen baie meer outonomie aan 'n verhoorhof ten opsigte
van sy beslissing. In R v Cook [1959 2 QB 340 (CA) 348] is verklaar dat dit geykte reg is dat 'n hof
van appèl nie met 'n laer hof se uitoefening van sy diskresie sal inmeng nie tensy die regspreker óf in
beginsel fouteer het óf die getuienis onvoldoende was om die beslissing te bereik wat hy bereik het.
In R v Scarrott [1978 QB 1016 CA 1028] is beslis dat indien 'n verhoorhof nie fouteer het wat die reg
betref nie en alle relevante omstandighede in aanmerking geneem het en irrelevante aangeleenthede
buite rekening gelaat het, die diskresionêre uitsluiting van getuienis op appèl sal bly staan … Die
vraag of artikel 35(5) 'n uitsluitingsreël skep of 'n uitsluitingsdiskresie verleen, is van belang
aangesien 'n uitsluitingsreël aan 'n hof van hersiening of appèl meer beweegruimte bied om in te
meng met 'n hof a quo se beslissing as wat hy sal kan doen indien die artikel 'n uitsluitingsdiskresie
verleen. Indien 'n hof a quo se diskresie behoorlik uitgeoefen het, sal 'n hof van appèl weier om met
sy bevinding in te meng selfs al huldig die appèlregters nie dieselfde standpunt as die hof a quo nie.
In teenstelling hiermee is 'n hof van appèl in geval van 'n reël verplig om in te meng indien sy
gevolgtrekking verskil van die gevolgtrekking waartoe die hof a quo gekom het."
238 The importance of distinguishing between a rule and a discretion for purposes of s 35(5)
is explained as follows by Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë
Getuienis 337-8: "Die vraag ontstaan … waarom die aan- of afwesigheid van 'n diskresie so
belangrik is … Die antwoord is dat 'n diskresie 'exists where there is a choice to do one thing or
another, not merely what is involved is the application of a flexible standard' [R v Therens
1985 13 CRR 193 (SCC) 224]. 'n Diskresie, in teenstelling met 'n reël, verleen baie meer
outonomie aan 'n verhoorhof ten opsigte van sy beslissing. In R v Cook [1959 2 QB 340 (CA)
348] is verklaar dat dit geykte reg is dat 'n hof van appèl nie met 'n laer hof se uitoefening van
sy diskresie sal inmeng nie tensy die regspreker óf in beginsel fouteer het óf die getuienis
onvoldoende was om die beslissing te bereik wat hy bereik het. In R v Scarrott [1978 QB 1016
CA 1028] is beslis dat indien 'n verhoorhof nie fouteer het wat die reg betref nie en alle
relevante omstandighede in aanmerking geneem het en irrelevante aangeleenthede buite
rekening gelaat het, die diskresionêre uitsluiting van getuienis op appèl sal bly staan … Die
vraag of artikel 35(5) 'n uitsluitingsreël skep of 'n uitsluitingsdiskresie verleen, is van belang
aangesien 'n uitsluitingsreël aan 'n hof van hersiening of appèl meer beweegruimte bied om in
te meng met 'n hof a quo se beslissing as wat hy sal kan doen indien die artikel 'n
uitsluitingsdiskresie verleen. Indien 'n hof a quo se diskresie behoorlik uitgeoefen het, sal 'n hof
van appèl weier om met sy bevinding in te meng selfs al huldig die appèlregters nie dieselfde
standpunt as die hof a quo nie. In teenstelling hiermee is 'n hof van appèl in geval van 'n reël
verplig om in te meng indien sy gevolgtrekking verskil van die gevolgtrekking waartoe die hof a
quo gekom het."
Footnote - 239
239 Steytler Constitutional Criminal Procedure 36. See also S v Lottering 1999 12 BCLR 1478 (N)
1483B which is discussed in § 12.9.4 below and S v Pillay2004 (2) SACR 419 (SCA) at [92].
239 Steytler Constitutional Criminal Procedure 36. See also S v Lottering 1999 12 BCLR 1478
(N) 1483B which is discussed in § 12.9.4 below and S v Pillay2004 (2) SACR 419 (SCA) at
[92].
Footnote - 240
240 S v Naidoo supra 527.
240 S v Naidoo supra 527.
Footnote - 241
241 2008 (1) SACR 613 (SCA) at [116].
241 2008 (1) SACR 613 (SCA) at [116].
Footnote - 242
242 Constitutional Criminal Procedure 36.
Footnote - 243
243 De Waal, Currie & Erasmus The Bill of Rights Handbook 4 ed (2001) 658.
243 De Waal, Currie & Erasmus The Bill of Rights Handbook 4 ed (2001) 658.
Footnote - 244
244 De Waal, Currie & Erasmus The Bill of Rights Handbook 658
244 De Waal, Currie & Erasmus The Bill of Rights Handbook 658
Footnote - 245
245 Trengove in Chaskalson et al Constitutional Law of South Africa (1996, revision service 2 of
1998) 26-20.
245 Trengove in Chaskalson et al Constitutional Law of South Africa (1996, revision service 2
of 1998) 26-20.
Footnote - 246
246 Ibid.
246 Ibid.
Footnote - 247
247 1999 (1) SACR 338 (W).
247 1999 (1) SACR 338 (W).
Footnote - 248
248 R v Bartle 1994 23 CRR (2d) 193 (SCC). The Supreme Court of Canada has also expressed the
view that as the link between a breach of a Charter right and the impugned evidence becomes more
tenuous, the likelihood of exclusion diminishes. See R v Debot 1989 45 CRR 49 (SCC).
248 R v Bartle 1994 23 CRR (2d) 193 (SCC). The Supreme Court of Canada has also
expressed the view that as the link between a breach of a Charter right and the impugned
evidence becomes more tenuous, the likelihood of exclusion diminishes. See R v Debot 1989
45 CRR 49 (SCC).
Footnote - 249
249 1988 37 CRR 335 (SCC).
249 1988 37 CRR 335 (SCC).
Footnote - 250
250 At 354.
250 At 354.
Footnote - 251
251 1995 31 CRR (2d) 330.
251 1995 31 CRR (2d) 330.
Footnote - 252
252 See also generally Michigan v Tucker 417 US 433 (1974) as discussed in the last paragraph of
§ 12.5.2.1 above.
252 See also generally Michigan v Tucker 417 US 433 (1974) as discussed in the last
paragraph of § 12.5.2.1 above.
Footnote - 253
253 2008 (2) SACR 407 (SCA).
253 2008 (2) SACR 407 (SCA).
Footnote - 254
254 At [34]. Emphasis added.
254 At [34]. Emphasis added.
Footnote - 255
255 2001 (1) SACR 572 (C).
255 2001 (1) SACR 572 (C).
Footnote - 256
256 S v Mark supra 578i.
256 S v Mark supra 578i.

Footnote - 257
257 At 578i-579j. Emphasis added.
257 At 578i-579j. Emphasis added.
Footnote - 258
258 At 577g. It is difficult to reconcile S v Mark with the decision of the Supreme Court of Appeal in
S v Mthembu supra, unless one accepts that in the former case there was a clear break in the chain
of events but not in the latter. In Mark the witnesses wanted to testify. In Mthembu the witness was
a s 204 witness.
258 At 577g. It is difficult to reconcile S v Mark with the decision of the Supreme Court of
Appeal in S v Mthembu supra, unless one accepts that in the former case there was a clear
break in the chain of events but not in the latter. In Mark the witnesses wanted to testify. In
Mthembu the witness was a s 204 witness.
Footnote - 259
259 1998 (2) SACR 275 (E). See also § 12.9.5 below for a further discussion of this case.
259 1998 (2) SACR 275 (E). See also § 12.9.5 below for a further discussion of this case.
Footnote - 260
260 At 293g.
260 At 293g.
Footnote - 261
261 At 293h-294d.
261 At 293h-294d.
Footnote - 262
262 It is not correct to say that the violation must render the trial unfair. It is the admission of the
impugned evidence that must render the trial unfair. See further § 12.9 below.
262 It is not correct to say that the violation must render the trial unfair. It is the admission
of the impugned evidence that must render the trial unfair. See further § 12.9 below.
Footnote - 263
263 S v Soci supra 297a. In S v Tandwa2008 (1) SACR 613 (SCA) the Supreme Court of Appeal,
referring to S v Soci, said (at [119]) that there is "a high degree of prejudice when there is a close
causal connection between the rights violation and the subsequent self-incriminating acts of the
accused". See also Tandwa at [128], where it was held that one of the reasons for excluding the real
evidence (money and an AK 47) was the "high degree of prejudice" caused by "the close causal
connection" between the assaults on the accused and the subsequent discovery of the real evidence.
263 S v Soci supra 297a. In S v Tandwa2008 (1) SACR 613 (SCA) the Supreme Court of
Appeal, referring to S v Soci, said (at [119]) that there is "a high degree of prejudice when
there is a close causal connection between the rights violation and the subsequent self-
incriminating acts of the accused". See also Tandwa at [128], where it was held that one of the
reasons for excluding the real evidence (money and an AK 47) was the "high degree of
prejudice" caused by "the close causal connection" between the assaults on the accused and
the subsequent discovery of the real evidence.
Footnote - 264
264 At 297d-f.
264 At 297d-f.
Footnote - 265
265 1993 19 CRR (2d) 156 (SCC).
265 1993 19 CRR (2d) 156 (SCC).

Footnote - 266
266 However, compare generally Oregon v Elstad 470 US 298 (1985) as discussed in § 12.5.2.1
above.
266 However, compare generally Oregon v Elstad 470 US 298 (1985) as discussed in §
12.5.2.1 above.
Footnote - 267
267 Rakas v Illinois 439 US 128 (1978).
267 Rakas v Illinois 439 US 128 (1978).
Footnote - 268
268 Bradley (ed) Criminal Procedure — A Worldwide Study 2 ed (2007) 531, who explains that the
"standing" doctrine illustrates the general distaste that the Supreme Court of the USA now has for the
exclusionary rule and reflects the Court's "consistent efforts in recent years to cabin its use, while still
retaining it where it seems likely to have a meaningful deterrent impact on the police."
268 Bradley (ed) Criminal Procedure — A Worldwide Study 2 ed (2007) 531, who explains
that the "standing" doctrine illustrates the general distaste that the Supreme Court of the USA
now has for the exclusionary rule and reflects the Court's "consistent efforts in recent years to
cabin its use, while still retaining it where it seems likely to have a meaningful deterrent impact
on the police."
Footnote - 269
269 R v Edwards 1994 22 CRR (2d) 29 (SCC); Sopinka, Lederman & Bryant The Law of Evidence in
Canada 415.
269 R v Edwards 1994 22 CRR (2d) 29 (SCC); Sopinka, Lederman & Bryant The Law of
Evidence in Canada 415.
Footnote - 270
270 2008 (2) SACR 407 (SCA) at 27. The issue, it seems, has only arisen on two other occasions.
See the argument of counsel for the prosecution in S v Naidoo1998 (1) SACR 479 (N) 525a-b and
Schwikkard's discussion of S v Mark2001 (1) SACR 572 (C) in 2001 SACJ 264-5. The implication of S
v Mark is that standing is not a requirement. The issue was not directly addressed.
270 2008 (2) SACR 407 (SCA) at 27. The issue, it seems, has only arisen on two other
occasions. See the argument of counsel for the prosecution in S v Naidoo1998 (1) SACR 479
(N) 525a-b and Schwikkard's discussion of S v Mark2001 (1) SACR 572 (C) in 2001 SACJ 264-
5. The implication of S v Mark is that standing is not a requirement. The issue was not directly
addressed.
Footnote - 271
Footnote - 272
272 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 373. Emphasis in the original.
272 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 373. Emphasis in the original.
Footnote - 273
273 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 374-6.
273 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 374-6.
Footnote - 274
274 See generally Langenhoven 2001 Obiter 102.
274 See generally Langenhoven 2001 Obiter 102.
Footnote - 275
275 S v Dube2000 (1) SACR 53 (N). In this case a major motor car manufacturer which had
suffered severe losses due to internal theft, was approached by a loss control consultant who offered
assistance in reducing the incidence of theft. The loss control consultant was a private person and in
no way connected to the state. A trap (see § 12.12 below) was set and photographs and tape
recordings were obtained without the accused being aware of the true position. At 73f-g McCall J
observed as follows: "Accepting, for the purposes of this judgment, that the setting of the trap in this
case constituted a violation of some of the appellant's rights in terms of the Bill of Rights, such as the
right to dignity in s 10 and the right to freedom and security of the person in s 12(1), the issue to be
decided, applying the requirements of s 35(5) of the Constitution, is whether the admission of the
evidence of the entrapment rendered the trial of the appellant unfair or was otherwise detrimental to
the administration of justice." The impugned evidence was held admissible as admission could not
have rendered the trial unfair and, according to McCall J at 74i, admission "was advantageous to,
rather than detrimental to, the administration of justice." For some critical comments on S v Dube,
see Zeffertt 2000 ASSAL 795 804-6.
275 S v Dube2000 (1) SACR 53 (N). In this case a major motor car manufacturer which had
suffered severe losses due to internal theft, was approached by a loss control consultant who
offered assistance in reducing the incidence of theft. The loss control consultant was a private
person and in no way connected to the state. A trap (see § 12.12 below) was set and
photographs and tape recordings were obtained without the accused being aware of the true
position. At 73f-g McCall J observed as follows: "Accepting, for the purposes of this judgment,
that the setting of the trap in this case constituted a violation of some of the appellant's rights
in terms of the Bill of Rights, such as the right to dignity in s 10 and the right to freedom and
security of the person in s 12(1), the issue to be decided, applying the requirements of s 35(5)
of the Constitution, is whether the admission of the evidence of the entrapment rendered the
trial of the appellant unfair or was otherwise detrimental to the administration of justice." The
impugned evidence was held admissible as admission could not have rendered the trial unfair
and, according to McCall J at 74i, admission "was advantageous to, rather than detrimental to,
the administration of justice." For some critical comments on S v Dube, see Zeffertt 2000
ASSAL 795 804-6.
Footnote - 276
276 The question whether the individual acted as an agent of the state, will have to be decided on
the facts of the case. See generally S v Kidson1999 (1) SACR 338 (W) 351d-f, which was discussed in
§ 12.7.2 above.
276 The question whether the individual acted as an agent of the state, will have to be
decided on the facts of the case. See generally S v Kidson1999 (1) SACR 338 (W) 351d-f,
which was discussed in § 12.7.2 above.
Footnote - 277
277 After the decision in Weeks v United States 232 US 383 (1914) — see § 12.5.1 above — the
so-called "silver platter" doctrine developed in the USA: in federal courts evidence obtained by federal
authorities in breach of an accused's Fourth Amendment rights was inadmissible, but the same type
of evidence obtained by state authorities and handed to the federal authorities was admissible. It was
only in 1960 that the Supreme Court of the USA abolished the "silver platter" doctrine on the basis
that such a doctrine violated the Fourth Amendment. See Elkins v United States 364 US 206 (1960),
which was followed by Mapp v Ohio 367 US 643 (1961) as discussed in § 12.5.1 above. Although the
"silver platter" doctrine in the USA did not involve individuals, its history does show that it is the use
of the evidence that is crucial and not necessarily the identity of those who secured the evidence.
277 After the decision in Weeks v United States 232 US 383 (1914) — see § 12.5.1 above —
the so-called "silver platter" doctrine developed in the USA: in federal courts evidence obtained
by federal authorities in breach of an accused's Fourth Amendment rights was inadmissible, but
the same type of evidence obtained by state authorities and handed to the federal authorities
was admissible. It was only in 1960 that the Supreme Court of the USA abolished the "silver
platter" doctrine on the basis that such a doctrine violated the Fourth Amendment. See Elkins v
United States 364 US 206 (1960), which was followed by Mapp v Ohio 367 US 643 (1961) as
discussed in § 12.5.1 above. Although the "silver platter" doctrine in the USA did not involve
individuals, its history does show that it is the use of the evidence that is crucial and not
necessarily the identity of those who secured the evidence.
Footnote - 278
278 See S v Zuko (unreported, EC case no CA&R 159/2006, 25 Jan 2006). This case is discussed by
Paizes in Du Toit et al Commentary 24-98L-1.
278 See S v Zuko (unreported, EC case no CA&R 159/2006, 25 Jan 2006). This case is
discussed by Paizes in Du Toit et al Commentary 24-98L-1.
Footnote - 279
279 See S v Hena2006 (2) SACR 33 (SE), especially at 40i-41b.
279 See S v Hena2006 (2) SACR 33 (SE), especially at 40i-41b.
Footnote - 280
280 See generally S v Kidson supra 348f-g.
280 See generally S v Kidson supra 348f-g.
Footnote - 281
281 See further s 36 as quoted in Appendix A to this work.
281 See further s 36 as quoted in Appendix A to this work.
Footnote - 282
282 S v Naidoo1998 (1) SACR 479 (N) 500a.
282 S v Naidoo1998 (1) SACR 479 (N) 500a.
Footnote - 283
Footnote - 284
284 See the comments made by McCall J in S v Naidoo supra 499i-500a on the approach in S v
Mathebula1997 (1) SACR 10 (W).
284 See the comments made by McCall J in S v Naidoo supra 499i-500a on the approach in S
v Mathebula1997 (1) SACR 10 (W).
Footnote - 285
285 S v Naidoo supra 500a. It should be noted though that even if the law in terms of which the
police had acted were to be declared unconstitutional, the evidence obtained by the police when the
law was still valid would not necessarily be excluded. Section 36 assists in determining the
constitutional validity of the law concerned, whereas s 35(5) governs the admissibility of
unconstitutional evidence. If the police had acted in good faith in what the law was before it was
declared invalid, it might be possible to admit the evidence unless admission thereof would render the
trial unfair. See further § 12.10.1 below.
285 S v Naidoo supra 500a. It should be noted though that even if the law in terms of which
the police had acted were to be declared unconstitutional, the evidence obtained by the police
when the law was still valid would not necessarily be excluded. Section 36 assists in
determining the constitutional validity of the law concerned, whereas s 35(5) governs the
admissibility of unconstitutional evidence. If the police had acted in good faith in what the law
was before it was declared invalid, it might be possible to admit the evidence unless admission
thereof would render the trial unfair. See further § 12.10.1 below.
Footnote - 286
286 1998 (1) SACR 343 (C). See also generally S v Jeniker1994 (1) SACR 141 (A) as discussed in §
17.7 below.
286 1998 (1) SACR 343 (C). See also generally S v Jeniker1994 (1) SACR 141 (A) as
discussed in § 17.7 below.
Footnote - 287
287 See the "Table of Non-derogable Rights", which forms part of s 37 of the Constitution.
287 See the "Table of Non-derogable Rights", which forms part of s 37 of the Constitution.
Footnote - 288

Document 104 of 330
12.9 The First Leg 289 of the test in s 35(5): "Must be

excluded if … Admission … would render the trial
unfair"
In § 12.8 above it was pointed out that the words "or otherwise" in s 35(5) make
it clear that an unfair trial is detrimental to the administration of justice. 290 But
when would admission render the trial unfair? What is an unfair trial? And
furthermore: does the reference to an unfair trial in s 35(5) apply to the accused
only or to the accused and the prosecution?
12.9.1 Trial fairness

As a point of departure it should be noted that s 35(5) of the Constitution —
unlike s 24(2) of the Canadian Charter — makes specific reference to trial fairness
as a criterion. In Canada trial fairness to the accused had to be read into s 24(2)
by the Canadian Supreme Court (see § 12.6.1 above). Given the fact that s 35(5)
is clearly modelled on s 24(2), 291 it is perhaps somewhat surprising that s 35(5)
does not state explicitly whether unfairness of the trial relates to the accused only
or to the accused and prosecution. Zeffertt has highlighted this vagueness or
omission. 292 However, it is submitted that — having regard to the textual setting
of s 35(5) as a subsection in a section of the Bill of Rights that determines the
rights of arrested, detained and accused persons 293 — the constitutional right of
the accused to a fair trial (see § 12.9.2 below) must inevitably be the decisive
standard or yardstick for determining the admissibility of the impugned evidence.
Unfairness to the prosecution if the evidence is excluded and unfairness to the
accused if the evidence is admitted,
3rd Ed, 2009 ch12-p226
are therefore factors which go into the scale 294 for purposes of determining the
ultimate question: would admission infringe the accused's constitutional right to a
fair trial? And whilst unfairness to the prosecution forms part of the process of
determining this question, a court is clearly precluded from making a finding that
exclusion of the evidence will be so unfair to the prosecution (or the victim, or
society) that the evidence must be admitted despite the fact that such admission
would deprive the accused of his constitutional right to a fair trial. 295 Even under
the interim Constitution the Constitutional Court in an oft-quoted passage made it
clear: "What the Constitution demands is that the accused be given a fair trial."
296 Having identified this constitutional demand, the court noted that ultimately
fairness is an issue which has to be determined on the basis of the facts of each
case and that the trial court is best placed to decide this issue. 297 It was also
said that fairness, at times, might require exclusion of unconstitutionally obtained
evidence and that fairness, at times, might require admission of such evidence.
298 At no stage, however, was it said or implied that unfairness to the prosecution
can justify admission even if such admission would deprive the accused of his
constitutional right to a fair trial. The bottom-line is that the accused's
constitutional right to a fair trial may not be sacrificed.
12.9.2 The content of the accused's constitutional right to a fair

trial
Constitutionalization has had a great impact on the traditional meaning of a fair
trial. In 1992 the (then) Appellate Division could still declare that a fair trial was
"a trial initiated and conducted in accordance with those formalities, rules and
principles of procedure which the law requires [and that an accused] is not
entitled to a trial which is fair when tested against abstract notions of justice". 299
But
3rd Ed, 2009 ch12-p227
constitutionalization required a different approach 300 which Ackermann J, writing

for a unanimous Constitutional Court, described and supplemented as follows in S
v Dzukuda; S v Tshilo: 301
"[A]n accused's right to a fair trial under s 35(3) of the Constitution is a
comprehensive right and 'embraces a concept of substantive fairness which is not to
be equated with what might have passed muster in our criminal courts before the
Constitution came into force'. Elements of this comprehensive right are specified in
paras (a) to (o) of sub-s (3). The words 'which include the right' preceding this
listing indicate that such specification is not exhaustive of what the right to a fair
trial comprises. It also does not warrant the conclusion that the right to a fair trial
consists merely of a number of discrete sub-rights, some of which have been
specified in the subsection and others not. The right to a fair trial is a comprehensive
and integrated right, the content of which will be established, on a case by case
basis, as our constitutional jurisprudence on s 35(3) develops. It is preferable, in my
view, in order to give proper recognition to the comprehensive and integrated nature
of the right to a fair trial, to refer to specified and unspecified elements of the right
to a fair trial, the specified elements being those detailed in sub-s (3) … It would be
imprudent, even if it were possible, in a particular case concerning the right to a fair
trial, to attempt a comprehensive exposition thereof. In what follows, no more is
intended to be said about this particular right than is necessary to decide the case at
hand. At the heart of the right to a fair criminal trial and what infuses its purpose, is
for justice to be done and also to be seen to be done. But the concept of justice
itself is a broad and protean concept. In considering what, for purposes of this case,
lies at the heart of a fair trial in the field of criminal justice, one should bear in mind
that dignity, freedom and equality are the foundational values of our Constitution.
An important aim of the right to a fair criminal trial is to ensure adequately that
innocent people are not wrongly convicted, because of the adverse effects which a
wrong conviction has on the liberty, and dignity (and possibly other) interests in the
accused. There are, however, other elements of the right to a fair trial such as, for
example, the presumption of innocence, the right to free legal representation in
given circumstances, a trial in public which is not unreasonably delayed, which
cannot be explained exclusively on the basis of averting a wrong conviction, but
which arise primarily from considerations of dignity and equality."
This case did not deal with the admissibility of unconstitutionally obtained
evidence. It is submitted, however, that the above-quoted passage provides the
essential background in terms of which the fair trial requirement in s 35(5) should
be interpreted.
12.9.3 Trial fairness and the court's discretion

It is submitted that the Constitutional Court's broad formulation of the right to a
fair trial and its caveat that it would be imprudent in a particular case to attempt
a comprehensive exposition of such right, really confirm that the fair trial
requirement in s 35(5) is flexible enough to permit a discretion which has to be
exercised on the basis of the facts of the case 302and factors and considerations
like the nature and the extent of the
3rd Ed, 2009 ch12-p228
constitutional breach, 303 the presence or absence of prejudice to the accused, 304
the need to ensure that exclusion of evidence does not tilt "the balance too far in
favour of due process against crime control", 305 the interests of society 306 and,
furthermore, public policy. 307 This is not an exhaustive list of factors or
considerations which can or must be taken into account in determining whether
admission of the evidence would deprive the accused of his constitutional right to
a fair trial; and nor can there be such a list, given the Constitutional Court's
broad analysis of a fair trial and the trial court's discretion, in terms of s 35(5), to
decide whether admission of the impugned evidence would render the trial unfair.
In S v M the Supreme Court of Appeal — per Heher AJA with Harms and Brand
JJA concurring — noted, with reference to s 35(5) and Key v Attorney-General,
Cape Provincial Division, 308 that "[t]here is no doubt that … a discretion exists …
under the Constitution, upon the question of whether admission would or would
not offend the constitutional guarantee of the right to a trial conducted in
accordance with notions of basic fairness and justice inherent in a civilized system
of criminal administration." 309
In S v Tandwa Cameron JA, Mlambo JA and Hancke AJA said, with reference to
several High Court decisions, that relevant factors for purposes of determining
trial fairness would include
"the severity of the rights violation and the degree of prejudice, weighed against the
public policy interest in bringing criminals to book. Rights violations are severe when
they stem from the deliberate conduct of the police or are flagrant in nature. There
is a high degree of prejudice when there is a close causal connection between the
rights violation and the subsequent self-incriminating acts of the accused. Rights
violations are not severe, and the resulting trial not unfair, if the police conduct was
objectively reasonable and neither deliberate nor flagrant." 310
3rd Ed, 2009 ch12-p229
12.9.4 The privilege against compelled self-incrimination: trial

fairness and the court's discretion
Apart from such constitutional rights as the right to be presumed innocent, to
remain silent and not to testify during the proceedings, 311 an accused also has a
right "not to be compelled to give self-incriminating evidence" 312 — a right which
is "inextricably linked to the right of an accused to have a fair trial". 313 These
trial rights are also protected at the pre-trial stage: in terms of s 35(1)(a) and
35(1)(b) of the Constitution an arrested person has the right not only to remain
silent, but also to be informed promptly of the right to remain silent and of the
consequences of not remaining silent. An arrested person also has the
constitutional right not to be compelled to make any confession or admission that
could be used in evidence against him. 314 An arrestee — in his capacity as a
detained person — also has a constitutional right to be informed promptly of his
right to choose, and to consult with, a legal practitioner. 315 He also has the right
to be informed promptly of his right to have a legal practitioner assigned to him
"by the state and at state expense, if substantial injustice would otherwise result
…" 316
The above rights and warnings are — like the judicially created prophylactic
rules in Miranda — aimed at protecting the privilege against self-incrimination
and, ultimately, the right to a fair trial. But evidence obtained in the absence of
these warnings is not — as is required by the exclusionary rule in Miranda and as
was done under the interim Constitution in S v Gasa — subject to automatic
exclusion: the issue of admissibility must be dealt with in terms of s 35(5) even
though the broad pattern which developed under the interim Constitution — and
which was set out in § 12.7.2.1 above — can assist in the interpretation and
application of s 35(5). 319
The approach which our courts have adopted for purposes of s 35(5), seems to
be that whilst the absence, or inadequate furnishing, 320 of the constitutionally
required warnings does have an adverse impact on the fairness of the entire
process, it does not mean that admission of the evidence so obtained would
inevitably result in the accused being deprived of his constitutional right to a fair
trial. S v Lottering is a case in point. The accused, having stabbed the deceased
in the back, ran into a nightclub. A witness, D, informed a policeman, M, that the
accused was in the nightclub. D accompanied M into the nightclub where D
pointed out the accused to M. M informed the accused of the allegation against
him, arrested the accused
3rd Ed, 2009 ch12-p230
and demanded to know "the whereabouts of the weapon that was used". 322 The
accused pointed out L and the latter handed the knife to M. The defence attorney,
relying on s 35(5), objected to the admission of this evidence on the basis that
after the accused's arrest and prior to his pointing out L, the accused had not
been informed by M of his constitutional rights to silence and legal
representation. The trial court held a trial within a trial, after which the evidence
of the pointing out of L and the production of the knife by L was admitted. On
appeal it was argued that the evidence should have been excluded on the
grounds raised in the court a quo and, furthermore, that if the pointing out of L
and the subsequent discovery of the knife were held inadmissible, L's evidence
which directly flowed from the inadmissible pointing out should, in turn, then also
be ruled inadmissible. 323
In dealing with the matter on appeal, Levinsohn J identified factual and legal
matters which were common cause: first, the constitutional rights of the accused
were violated; second, the accused had made an admission incriminating himself
in the commission of the crime; 324third, the framers of the Constitution had in
mind that an accused's rights should at all times be respected and that "the police
and other persons who have rights of arrest and detention should not simply pay
lip service to these rights but should at all times meticulously observe them." 325
Having noted that s 35(5) does not require exclusion of all evidence obtained in
violation of a constitutional right, Levinsohn J — relying on Steytler 326 — held
that the court has the task of making a "value judgment." 327 According to
Levinsohn J the court exercises its discretion by weighing up the competing
interests 328 (see also § 12.2 above). The court also emphasised the importance
of excluding evidence in order to enforce constitutional due process (see also §
12.4.2 above): "The administration of justice would, in my opinion, not
countenance a flagrant and deliberate violation of an accused's constitutional
rights. Any evidence discovered in consequence of such a violation ought to be
excluded, otherwise the Constitution would become a dead letter." 329 Against
this background, Levinsohn J exercised his discretion as follows: 330
"[T]here are violations which are not deliberate or flagrant. I venture to say that
[M]'s failure to warn the appellant falls into that category. As the magistrate points
out, [M] had to act expeditiously to recover the knife and he did what any
reasonable policeman would have done, that is to question his suspect. There were
no threats, no intimidation and indeed no force used by him. The magistrate is right
in saying that the appellant acted voluntarily. The question of prejudice to the
3rd Ed, 2009 ch12-p231

appellant is a factor which can legitimately be weighed in the scales as well. The
appellant did not testify in the trial-within-a-trial. One would have expected him to
get into the witness box and say that if he had been apprised of his rights he would
definitely not have made the pointing-out that he did. That he suffered prejudice
was purely speculative … To sum up then, circumstances surrounding the pointing-
out by the appellant coupled with considerations of public policy show that it is not
detrimental to the interests of justice to admit the disputed evidence. It follows,
therefore, that the regional magistrate exercised his discretion correctly. I hasten to
say that each case must be judged on its own facts and the decision in this one must
not be construed as a licence to police officers to ignore or overlook the
constitutional protection afforded to accused persons."
The court's ultimate finding that admission of the impugned evidence was not
detrimental to the administration of justice, clearly implies that the court was also
satisfied that admission would not have rendered the accused's trial unfair. The
accused's constitutional right to a trial conducted in accordance with notions of
basic fairness and justice is broad and — precisely because it is so broad —
cannot be applied in the abstract; it must, inevitably, be interpreted and applied
in a factual context. It should be emphasised that the true issue in Lottering did
not turn on the presence or absence of compelled self-incrimination. And the fact
that the accused had acted voluntarily throughout — as Levinsohn J did find —
could not on its own, it is submitted, have provided a complete answer to the true
question in Lottering, namely whether admission of the evidence of the accused's
non-compelled self-incriminating testimonial communication, obtained from him
in circumstances where he was not informed of his relevant constitutional rights
by M who was constitutionally required to do so, would or would not have
deprived the accused of his constitutional right to a trial conducted in accordance
with notions of basic fairness and justice. It is submitted that for purposes of
answering this fair trial issue, the court was fully entitled to take into account that
M had to act expeditiously and did not obtain the evidence from the accused as a
result of a lengthy police interrogation during which the accused was deliberately
not informed of his constitutional rights. In Lottering M — unlike his colleagues in
S v Seseane and S v Mphala — also did not have a modus operandi or deliberate
strategy to trap an unwitting accused. Given the circumstances in Lottering, M
"did what any reasonable policeman would have done, that is to question his
suspect" 333 without first having administered the required warnings. It is
submitted that in these circumstances those notions of basic fairness and justice
which form an essential component of the constitutional right to a fair trial, do
not demand exclusion of the evidence of the non-compelled self-incriminating
testimonial communication made by the accused to M in response to the latter's
question. "[N]otions of basic fairness and justice", must be applied with reference
to the facts of the case and have an inherent flexibility which links up neatly with
the fact that s 35(5) provides a court with
3rd Ed, 2009 ch12-p232
a discretion to determine whether the impugned evidence would render the trial
unfair.
It is submitted that there is a close analogy between Lottering and New York v
Quarles where the Supreme Court of the USA created a "public safety" exception
(see § 12.5.2.2 above) to the requirement that the Miranda-warnings be given
(see § 12.5.2 above). Writing for the majority, Rehnquist J held that the
accused's statement ("the gun is over there") and the real evidence (a revolver)
— both of which were obtained prior to the accused having been warned in terms
of Miranda v Arizona — were admissible on account of the following factual and
legal grounds: 336
"The police in this case, in the very act of apprehending the suspect, were
confronted with the immediate necessity of ascertaining the whereabouts of a gun
which they had every reason to believe the suspect had just removed from his
empty holster and discarded in the supermarket. So long as the gun was concealed
somewhere in the supermarket with its actual whereabouts unknown, it obviously
posed more than one danger to the public safety: an accomplice might make use of
it, or a customer or employee might later come upon it … Officer [K] needed an
answer to his question not simply to make his case against [Q] but to insure that
further danger to the public did not result from the concealment of the gun in a
public area. We conclude that the need for answers to questions in a situation posing
a threat to the public safety outweighs the need for the prophylactic rule protecting
the Fifth Amendment's privilege against self-incrimination."
At no stage was it held that the public safety exception was an exception to the
right to a fair trial. New York v Quarles, it is submitted, merely confirms that the
admission of evidence obtained in breach of those warnings designed to protect
the privilege against self-incrimination, does not offend against the right to a fair
trial if the unconstitutional police conduct was objectively reasonable having
regard to the facts of the case. 337 Given the rigid rule of exclusion in Miranda,
the Supreme Court of the USA was not in a position to address the issue of
admissibility on the basis of a discretion. It had to create the "public safety"
exception. But the fact that such an exception exists in the USA and is not
considered to be in conflict with the right to a fair trial, is relevant for purposes of
interpreting the fair trial requirement in s 35(5).
In S v Soci the accused made a pointing out to the police in circumstances
where he was not — prior to and for purposes of the pointing out — properly
informed of his right to legal representation (see also § 12.10.1 below). Erasmus
J held that on the facts it had to be accepted that the accused, if he had been
properly informed, would have secured the services of an attorney who would
have advised the accused not to make a pointing out and, furthermore, that the
accused would probably have followed this advice. Erasmus J excluded the
evidence of the pointing out. On the adequacy of the warnings, it was noted that
no hard-and-fast rules could be laid down as "[e]ach case depends on its own
facts, in particular
3rd Ed, 2009 ch12-p233
the personality and characteristics of the accused, such as his … age, intelligence,
education, background, nationality, etc". 339 This observation, it is submitted, can
be extended to support the following principle: where it is clear that an accused
had full knowledge of his constitutional rights and options at the time when he
responded to police questioning, the fact that the constitutionally required
warnings were not given at all, cannot ipso facto lead to the conclusion that
admission of the accused's response would render the trial unfair. 340 In such an
instance there is ample room to argue and find that an informed waiver (see §
12.9.5 below) was present.
The right to be given the required constitutional warnings not only accrues to
the person who is a detainee or arrestee in the technical sense. It also extends to
the person who — at the time of making his pre-trial statement to the police at
the latter's request — was neither detained nor arrested but in a situation where
the police on reasonable grounds suspected him. 341 If the required warnings
were not given to an accused in his capacity as a "suspect-about-to-become-an-
arrested-person-and-accused", 342 any pre-trial statement so obtained must be
treated as evidence obtained in breach of constitutional rights and its
admissibility must be assessed in terms of the requirements and discretion
embodied in s 35(5). The fair trial requirement in s 35(5) might warrant exclusion
on the basis that the accused was in deliberate breach of constitutional rights
conscripted as a witness against himself and that, accordingly, the admission of
the evidence would deprive the accused of his constitutional right to a fair trial.
The fact that the suspect had co-operated and had made the pre-trial statements
voluntarily, can hardly remedy
3rd Ed, 2009 ch12-p234
the situation. Indeed, circumstances may be such that the unconstitutional

conduct of the police was aimed at securing voluntary co-operation which they
knew they would not have secured had they administered the required warnings.
It follows from the above that where an accused had made incriminating
statements prior to arrest and in the absence of warnings and at a stage when he
was not under police suspicion, there is no reason to exclude the evidence if
otherwise admissible. 343 A court is entitled to take into account whether the
statement was made spontaneously and whether the police officer was bona fide.
344
It is difficult to fit Shabalala v S into the pattern of cases discussed thus far.
The accused — who had declined legal aid and had elected to conduct his own
defence — was convicted in the court a quo of robbery. The admissibility of
evidence of a pointing out made by the accused to a sergeant, was raised for the
first time on appeal when the accused had counsel. It was common cause that
the record of the trial contained no indications that the accused in his capacity as
an arrestee was informed of his right to silence and his right to legal
representation. Relying on s 35(5), counsel for the accused argued that evidence
of the pointing out should have been excluded. Tshabalala AJP held that on the
facts of this case, it could not be said that the trial was unfair. 346 In this case, it
would seem, the court — sitting as a court of appeal — was really confronted with
a situation where the admissibility of the evidence only impugned on appeal,
should in the course of the trial have been disputed by the accused who
unfortunately had declined legal aid. Perhaps the prosecutor should of his own
accord — or at the insistence of the trial court — have led evidence on the
question whether the required warnings were given. Be this as it may, the fact of
the matter is that at the trial the accused had denied pointing out anything at all
— a factor which probably explains why the evidence at the trial and the trial
court's findings, were confined to the question whether a pointing out was made
and whether it was voluntarily made. By the time the appeal was heard, the
accused had counsel. On appeal counsel for the accused had expressly
abandoned the earlier denial that a pointing out was made. It was merely argued
that in the absence of evidence that the constitutionally required warnings were
given, the evidence of the pointing out should not have been admitted. Given this
change of tack 347 and the fact that the conviction of the accused was not based
solely on the pointing out, the court of appeal had no grounds to conclude that
admission of the evidence of the pointing out had rendered the trial unfair in the
sense that the accused was deprived of his constitutional right to a fair trial. It is
submitted that Tshabalala AJP's remark that "[h]uman rights ought not to be
regarded merely as a loophole through which criminals [escape] the
consequences of their deeds" 348 should be interpreted strictly in the context of
the facts in Shabalala.
3rd Ed, 2009 ch12-p235
S v Naidoo — which is more fully discussed in § 12.10.1 below — concerned

the admissibility of evidence of the contents of telephonic conversations which
were obtained by the police in breach of the constitutional right to privacy and, in
particular, the right not to be subject to the violations of private communications.
349 On the question whether admission of the evidence would have rendered the
trial unfair, McCall J ruled as follows: 350
"There is obviously a distinction between a confession or admission conscripted
against an accused himself and evidence of the contents of a telephonic
conversation, unlawfully monitored, to which the accused is a party. The element of
compulsion or undue influence present in unlawfully obtaining a confession or
admission is not present in the telephone monitoring. However, there is a result
which is common to both kinds of evidence, namely that evidence is obtained the
production of which was not voluntarily consented to by the accused. In this respect
both kinds of evidence, it seems to me, offend against the right against self-
incrimination which inevitably 'strikes at one of the fundamental tenets of a fair
trial', that is to say at a right which is protected by the Constitution. To admit
evidence provided by an accused person against himself without his knowledge as a
result of the unlawful monitoring of his conversation with someone else would offend
against the notion of basic fairness in no less a measure than the admission of
evidence of a confession or admission made by an accused person without having
been informed of his right to legal representation, which has been held to result in
an unfair trial … In the circumstances I am satisfied that the admission of the
evidence of the two telephonic conversations would render the trial unfair."
The court's further or alternative finding that admission of the impugned evidence
would have been detrimental to the administration of justice, is supported (see §
12.10.1 below). However, the court's finding that admission would also have
rendered the trial unfair, cannot be supported. The fact that the accused never
voluntarily consented to the interception and recording of the conversations, was
part of the fact that there was a constitutional breach of the right to privacy. The
absence of consent cannot form the basis for an argument that admission of the
evidence of the contents of the voluntary 351 conversations would have offended
the privilege against self-incrimination at trial level. The police never deceived the
two accused to co-operate with them in circumstances amounting to a breach of
their privilege against self-incrimination. There was no custodial interrogation
situation. To claim that admission of the evidence in Naidoo would "offend against
the notion of basic fairness in no less measure" than admission of the evidence of
a testimonial communication obtained from an accused who had not been
informed of his right to a legal representative, is to ignore one vital difference:
there was no constitutional requirement in terms of which the accused in Naidoo
should have been informed that they were not required to provide evidence
against themselves, whereas an arrested person who was deprived of the right to
counsel before making a confession or admission, was constitutionally entitled to
such counsel in order to protect the privilege against self-incrimination. And
whilst there was certainly gross pre-trial prejudice to the accused in Naidoo, this
pre-trial prejudice — which stemmed from the breach of the constitutional right
to privacy — was not the kind of prejudice that is inherently linked to conscriptive
evidence which would render
3rd Ed, 2009 ch12-p236
the trial unfair, if admitted. The accused would have conducted their
conversations even if there had been no unconstitutional monitoring. The
conversations took place quite independently of the unconstitutional conduct. It
only became available as evidence for the prosecution as a result of the breach of
the constitutional right to privacy. The focus should be on the nature and extent
of the unconstitutional breach of privacy and not the fact that the accused had
without knowledge of the unconstitutional monitoring provided evidence against
themselves.
S v Naidoo had a sequel. Several other persons were later charged in respect
of essentially the same facts that gave rise to the prosecution of the accused in
Naidoo. But this time round the prosecution did not rely on the contents of the
unconstitutionally monitored telephone conversations. Some of the accused were
convicted and the sequel culminated in S v Pillay, 352 where the second appellant
contended that evidence of the discovery of the money in the roof of her house
had to be excluded in terms of s 35(5). The court held that there were
infringements of her rights: The violation of her right to privacy when her
telephone was tapped; and, further, the violation of her right to silence when the
police had induced her to speak by giving her the assurance that she would not
be prosecuted. The majority (Mpati DP and Motata AJ) held that admission of the
impugned evidence was detrimental to the administration of justice, whereas the
minority (Scott JA) thought not (see 12 10 below). But the court was unanimous
in its finding that trial fairness was not affected by the admission of the evidence
of the discovery of the money. Scott JA said: 353
"The real evidence admitted by the Court a quo in the present case was the
discovery of the money concealed in the roof. That discovery would not have been
made but for the monitoring of the telephone conversation. But the telephone
conversation would have taken place whether it was monitored or not. It was not
created by the infringement, nor was there any question of compulsion. A
conversation in such circumstances may result in a form of self-incrimination, but no
more so than any other conduct of an accused subsequent to the commission of the
offence which may point to the latter's guilt."
12.9.5 Waiver, trial fairness and the court's discretion

An arrested person can waive his right to exercise his right to silence and his
right to consult a lawyer. 354 However, "[a] right can only validly be waived if the
person who abandons the right knows 355 and understands 356 what he or she is
abandoning." 357 Some courts have been reluctant to introduce the concept of
waiver. 358 In S v Shaba Spoelstra J — in rejecting the approach of Claassen J in
S v Mathebula — held
3rd Ed, 2009 ch12-p237
as follows with reference to Chapter 3 of the interim Constitution (now Chapter 2

"Bill of Rights" of the Constitution): 361
"Verder is ek van oordeel dat Claassen R fouteer deur die privaatregtelike regsfiguur
van afstanddoening van regte hier te gebruik. Die bepalings van Hoofstuk 3 van die
Grondwet skep onvervreembare regte. Niemand kan daarvan afstand doen nie. Op
die beste kan 'n persoon kies om hom nie op die bepalings van die Grondwet te
beroep nie en om nie die regte uit te oefen nie. Hy kan egter op enige stadium van
plan verander en die regte weer uitoefen, sonder dat hy met 'n pleit van
afstanddoening ontmoet kan word. Die reg op regsverteenwoordiging of die reg op
stilswye is sprekende voorbeelde hiervan. Die regsfiguur van afstanddoening van
regte pas doodeenvoudig nie by hierdie omstandighede in nie."
Whatever the position may be as regards the question whether rights in the Bill of
Rights are inalienable rights, it is beyond doubt that "individuals may … waive the
right to exercise a fundamental right" 362 like the right to silence and the right to
counsel. 363 To hold otherwise, would amount to improper interference with an
individual's autonomy and freedom to decide how to conduct his case at the pre-
trial stage. The rights under discussion are inalienable in the sense that an
individual, after having waived the right to exercise these rights, may re-assert
them by refusing to respond to further questioning in the absence of a lawyer. 364
However, "[t]he accused cannot undo the consequences of an earlier choice to
make a statement, by later revoking the statement". 365
The decision of the accused to waive the exercise of his rights, must be an
informed one. He need not be aware of all the factual details or all the details of
the charge(s); the emphasis should be on the reality of the total situation having
an impact on the accused's understanding and appreciation. 366 In S v Mphala
both accused were upon their arrest properly informed of their constitutional
rights. An attorney retained by a third party to assist the accused, telephoned the
investigating officer at 10:30. The attorney requested the investigating officer to
make no arrangements for either accused to make statements or to do a pointing
out until such time as he had had an opportunity to consult with both of them.
The investigating officer informed the attorney that both accused wanted to make
statements, and that this would be arranged to take place at 14:00. However, by
the time the attorney arrived both accused had already made statements
somewhere between 12:00 and 12:45. Cloete J was satisfied that the
investigating officer "had stolen a
3rd Ed, 2009 ch12-p238
march on the accused's attorney". 368 Cloete J, furthermore, held that on account
of the following facts there was no informed consent by the two accused and
therefore no valid waiver of their pre-trial constitutional rights: the investigating
officer should have informed both accused that an attorney — who had been
retained to represent them — was on his way and wanted them to refrain from
making any statements prior to his having had an opportunity to consult with
them. "I do not suggest" said Cloete J "that a police officer is obliged to give
advice to an accused; but I do find that a police officer is not entitled to prevent
such advice being given." 369 The court had no hesitation in finding that
admission of the confessions would have rendered the trial unfair and had to be
excluded as provided for in section 35(5). 370 The decision in Mphala should be
compared with the decision of the Supreme Court of the USA in Moran v Burbine
as discussed in § 12.5.2.1 above.
12.9.6 Trial fairness and the court's discretion: Self-incrimination,

real evidence and evidence "emanating from the accused"
Ever since the decision in Ex parte Minister of Justice: In re R v Matemba, 372 and
even after constitutionalization, our courts have — in line with the majority
decision in Schmerber v California and the common-law rule as formulated by
Wigmore 374 — consistently held that the privilege against self-incrimination is
confined to testimonial utterances or communications (statements and pointings
out) and does not extend to real evidence emanating from an accused, 375 such
as hair samples, blood samples, 376 fingerprints, 377 voice, 378 handwriting 379
and even a bullet lodged in the body of a suspect 380 (see § 10.2.3.1.1 above).
Some of our courts 381 have for the purpose of determining the admissibility of
unconstitutionally obtained real evidence, followed the test which the Supreme
Court of Canada had established in R v Collins and confirmed in R v Jacoy. The
Collins test — which was cited in full in § 12.6.1 above — makes good sense: for
purposes of the trial fairness test which must be read into s 24(2) of the Charter,
a distinction must be drawn between the situation where real evidence was
obtained as a result of a Charter violation and the situation where, after a
violation of a
3rd Ed, 2009 ch12-p239
Charter right, the accused was conscripted against himself through a confession
or other evidence emanating from him. In the latter situation, according to the
Collins test, the admission of the evidence would render the trial unfair, for it did
not pre-exist the Charter breach and its admission would strike at the
fundamental tenets of a fair trial, the right against self-incrimination. But in the
case of real evidence unconstitutionally procured, the accused is not conscripted
against himself and the fact that it was unconstitutionally procured "will rarely
operate unfairly for that reason alone": 384 the real evidence not only pre-existed
the Charter breach but also existed irrespective of the Charter breach. In S v
Mkhize Willis J, writing for a full bench, relied heavily on the Collins test in
interpreting the fair trial requirement in s 35(5) and in coming to the conclusion
that the unconstitutionally obtained real evidence (a pistol) was admissible.
In S v R Willis J also relied, inter alia, on the Collins test in overruling a
defence objection, based on s 35(5), to the admissibility of evidence relating to
DNA testing 387 that was done on samples of blood taken from two accused who
were minors. It was held that admission of the impugned evidence would not
have rendered the trial unfair. In commenting on this decision, Zeffertt said: "The
blood, like Everest, was there before the violation." 388
The attention of the court in S v R was never, it seems, drawn to the fact that
the Collins test was significantly readjusted by the Supreme Court of Canada in R
v Stillman, 389 which was decided in 1997 and which is discussed in § 12.6.1
above. 390 In R v Stillman the majority held — at least for purposes of s 24(2) of
the Charter — that compelled use of the body or the compelled provision of bodily
substances (like hair or blood samples) "in breach of a Charter right for purposes
of self-incrimination will generally result in an unfair trial as surely as the
compelled or conscripted self-incriminating statement." 391 However, in order to
reach this conclusion, the majority in Stillman extended the common-law
privilege against self-incrimination to include evidence of bodily substances taken
from an accused. 392 It gave preference to the dissenting minority judgments in
Schmerber v California (see § 10.3.2.1.1 above). The impact of Stillman on the
Collins test, 394 is described as follows by Sopinka, Lederman & Bryant. 395
"[I]n R v Stillman, the Supreme Court of Canada reformulated the trial fairness
branch of the Collins test by eliminating the distinction between self-incriminatory
statements and real evidence. Simply put, the classification of evidence as real
evidence simpliciter is irrelevant for the purposes
3rd Ed, 2009 ch12-p240

of the trial fairness test. Since the Charter recognizes the right to bodily integrity
which should only be interfered with on the consent of the individual or in
accordance with constitutional common-law or statutory authority, the Court
reasoned that the compelled production of bodily parts or substances is as great an
invasion of the essence of the person as is a compelled statement."
The question arises whether South African courts, if confronted with the
admissibility of evidence of unconstitutionally obtained bodily samples, should
adopt the "reformulated trial fairness branch of the Collins test" — hereafter
referred to as the "Stillman modification" — for purposes of interpreting the fair
trial requirement in s 35(5) of the Constitution? Although our courts have been
keen to follow Canadian jurisprudence on issues concerning the admissibility of
unconstitutionally obtained evidence, it is submitted that reliance on the Stillman
modification in the interpretation of the fair trial requirement in s 35(5), would be
totally unnecessary and somewhat artificial.
In Stillman the majority conceded that even without reformulating the trial
fairness branch of the test in Collins, exclusion of the impugned evidence would
also have resulted because it could be said that the unconstitutional bodily
searches which occurred in Stillman, were so unreasonable and serious that to
admit the evidence so obtained, would have brought the administration of justice
into disrepute. 396 This finding would have been based on the second factor
identified in Collins (see § 12.6.2 above). But this approach, according to the
majority in Stillman, failed to recognise the innate dignity of the individual, based
upon the integrity and sanctity of the body. 397 The court also referred to the
security of the person, which is recognised in s 7 of the Charter. Now, it is difficult
to understand how the evidence of the bodily samples in Stillman could have
been excluded on the basis that admission thereof would have brought the
administration of justice into disrepute (as conceded and indeed also found 398 by
the majority) if the violations of the accused's dignity and his bodily integrity,
sanctity and security, were not taken into account. Incorporation of the Stillman
modification into our law would serve no purpose, except to disturb the well-
settled distinction between self-incriminating testimonial communications and
incriminating non-communicative real evidence obtained from the body of the
accused. Section 35(5) of the Constitution — unlike s 24(2) of the Charter —
specifically sets out a fair trial requirement as well as an over-arching
requirement in terms of which exclusion is mandatory "if … admission … would
otherwise be detrimental to the administration of justice". The drafters of the
Constitution clearly had in mind that there would be unconstitutionally obtained
evidence which, if admitted, would not render the trial unfair but which should
nevertheless be excluded to avoid detriment to the administration of justice.
Unconstitutionally obtained incriminating real evidence emanating from the body
of the accused, falls into the latter category. However, Cory J — writing for the
majority in Stillman — argued as follows: 399 "The security of the body should be
recognized as being just as worthy of protection from state intrusion aimed at
compelled self-incrimination as are statements. Evidence obtained by a significant
compelled intrusion upon the
3rd Ed, 2009 ch12-p241

body without consent or statutory authorization should be considered, as a
general rule, to adversely affect the fairness of the trial." This argument is
fallacious if applied to s 35(5) in the context of unconstitutionally obtained bodily
samples: the security of the body is not, and does not become, less worthy of
protection simply because unconstitutionally obtained real evidence of bodily
samples is dealt with under the second leg of the test in s 35(5) and not in terms
of the fair trial requirement in s 35(5). The second leg of the test in s 35(5)
caters not only for the exclusion of unconstitutionally obtained real evidence of
bodily samples, but can, where required, be vigorously invoked to protect the
constitutional rights to freedom and security of the person, dignity and privacy
which are, respectively, guaranteed in ss 12, 10 and 14 of the Bill of Rights. 400
12.9.7 Trial fairness and the admissibility of derivative evidence

In § 10.2.4 above it was pointed out that there are several statutes that
authorise designated officials to compel a person to appear before them to
answer questions which may or may not be self-incriminating. These statutes are
not necessarily unconstitutional, provided that the compelled self-incriminating
answers given by the examinee in the course of such investigative inquiries, may
not be used against such an examinee in his capacity as an accused in
subsequent criminal proceedings against him (see § 17.4.4.2 below). The
investigative inquiry — the procedure as such — remains lawful, but direct use of
the compelled self-incriminating answers at the criminal trial would be in breach
of the privilege against self-incrimination. 401 But what about the admissibility of
derivative evidence or so-called "clue fact" evidence secured indirectly, or
obtained directly, as a result of the compelled self-incriminating answers obtained
from the examinee? This type of evidence cannot be equated with
unconstitutionally obtained evidence. Placing a total ban on the admissibility of
the derivative evidence — as opposed to evidence of the examinee's compelled
self-incriminating answers — is not warranted. The original process was lawful.
The following compromise, it seems, should be followed: as long as the evidence
of the compelled self-incriminating answers of the examinee is not admitted at
the criminal trial "and the use of 'derivative evidence' at such trial is made
dependent on such use being subject to 'fair criminal trial' standards, the rule
against self-incrimination is adequately protected". 402 Ultimately fairness is an
issue that has to be decided on a case-by-case basis by the person best placed to
do so — the presiding judicial officer at the criminal trial. 403
In the above context, the trial court would "not be dealing with the 'fruits of a
poisoned tree' but rather the product of a legitimate and legally controlled
enquiry. Nor would it be concerned with evidence existing solely of words used by
the
3rd Ed, 2009 ch12-p242
accused, but instead with objective evidence existing independently of any oral
communication". 404
However, the question arises whether the trail fairness requirement embodied
in s 35(5) of the Constitution is triggered in respect of the admissibility of real
evidence (a pistol, knife) discovered on the basis of information contained in a
testimonial communication unconstitutionally obtained from the accused? Must
the real evidence so obtained be treated as conscriptive (self-incriminating)
derivative evidence which, if admitted, would violate the privilege against self-
incrimination and therefore render the trial unfair?
In R v Stillman the majority of the Supreme Court of Canada, relying on some
earlier Canadian decisions, concluded that for purposes of s 24(2) of the Charter,
the issue should be addressed as follows: 406
"Conscripted or self-incriminating evidence may lead to what has been termed
derivative evidence. This phrase has been used to describe 'real' evidence which has
been 'derived' from, that is to say found as a result of, the conscriptive evidence.
The evidence discovered should be classified as conscriptive, since the accused's
compelled statement was a necessary cause of its discovery. In those cases, the
courts must carefully review the events leading up to the finding of the evidence
rather than simply considering whether the ultimate piece of evidence which the
Crown is seeking to introduce is 'real' evidence … [W]here the conscriptive evidence
would not have been discovered in the absence of the unlawful conscription of the
accused, its admission would generally tend to render the trial unfair. In those
circumstances it is not necessary to consider the seriousness of the violation, or the
repute of the administration of justice, as a finding that the admission of the
evidence would render the trial unfair means that the administration of justice would
necessarily be brought into disrepute if the evidence were not excluded under s
24(2) …"
The above approach can have the following unfortunate result: evidence of a
pistol which can ballistically be linked to the murder concerned and which had the
fingerprints of the accused on it, must be excluded as a result of the fact that an
accused's unconstitutionally obtained testimonial communication was the sole
cause which led, and which could have led, to the discovery of the real evidence.
This approach is an extreme example of the "fruits of the poisonous tree"
doctrine. In R v Burlingham the accused was, in breach of his Charter right to
counsel, subjected to improper and intensive questioning by the police. He
ultimately confessed, and also stated that the murder weapon (a gun) could be
found at the bottom of a frozen river. The confession was held inadmissible. It
was also concluded that the accused would have said nothing if it were not for the
fact that he was unconstitutionally conscripted to provide evidence against
himself. Retrieval and seizure of the gun, it was found, were derived from the
inadmissible conscripted statement; and the real evidence had to be excluded
because "[t]he participation of the accused in providing incriminating evidence
involving a breach of Charter rights is the ingredient that
3rd Ed, 2009 ch12-p243
tends to render the trial unfair as he or she is not under any obligation to assist
the Crown in securing a conviction". 408
It is submitted that for purposes of s 35(5) of the Constitution, the matter
ought to be approached along the following lines. Exclusion of the testimonial
communication cannot automatically require exclusion of the derivative real
evidence which, quite independently of the inadmissible communication, connects
the accused to the crime. The admissibility of unconstitutionally obtained
derivative real evidence is — like the admissibility of all other unconstitutionally
obtained evidence — a matter which must be decided in terms of the court's
discretion as provided for in s 35(5) of the Constitution (see § 12.9.3 above).
Examples of factors or considerations which can assist the court in exercising its
discretion are the following:
(a) The derivative real evidence, like other real evidence, pre-existed the breach
and did not come into existence (was not created) as a result of the
unconstitutional breach. This is a factor favouring admissibility. However, it
cannot on its own provide the full answer.
(b) The fact remains that the evidence became available to the prosecution as a
result of a violation of a constitutional right. The court must therefore
consider the nature and extent of the breach which led to the discovery of
the real evidence. In Ferreira v Levin NO; Vryenhoek v Powell NO
Ackermann J observed: 409
"Where, for example, derivative evidence is obtained as a result of torture
there might be compelling reasons of public policy for holding such evidence
to be inadmissible even if it can be proved independently of the accused.
Otherwise, the ends might be allowed to justify the means. The admission of
evidence in such circumstances could easily bring the administration of justice
into disrepute and undermine the sanctity of the constitutional right which has
been trampled upon."
(c) Police violence as a method of investigating or solving crimes, cannot be
sanctioned; and a court should in considering the exclusion of derivative
evidence in such instances, rely heavily on its disciplinary function (see §
12.4.1 above) as well as the need to protect judicial integrity (see § 12.4.4
above) and the integrity of the system as a whole. In S v Tandwa the
Supreme Court of Appeal held as follows: 410
"Though 'hard-and-fast rules' should not be readily propounded, admitting
real evidence procured by torture, assault, beatings and other forms of
coercion violates the accused's fair trial right at its core, and stains the
administration of justice. It renders the accused's trial unfair because it
introduces into the process of proof against him evidence obtained by means
that violate basic civilised injunctions against assault and
3rd Ed, 2009 ch12-p244

compulsion. And it impairs the administration of justice more widely because
its admission brings the entire system into disrepute, by associating it with
barbarous and unacceptable conduct. The cynical tenor of the lies the police
advanced here to explain the injuries the accused sustained in their custody
(his 'suicidal tendencies') is disturbingly reminiscent of an earlier era. We do
well to underscore the renunciation of that era not merely in principle, but in
police practice, and throughout the justice system."
In instances involving non-violent conduct, our courts should also be able to rely
— like American courts and Canadian courts — on the independent source
doctrine (see §§ 12.5.1.3 and 12.6.2 above) and the inevitable discovery
principle (see §§ 12.5.2.4 and 12.6.2 above) as factors favouring admission of
the impugned derivative real evidence.
(d) Where the real evidence is discovered on account of a non-coerced but
nevertheless inadmissible testimonial communication, the "fruit of the
poisonous tree" doctrine need not be invoked with vigour. In these
instances the admission of the derivative evidence would — because of the
absence of coercion — generally not render the trial unfair. The fundamental
question should be whether the derivative real evidence must be excluded
on the basis that its admission would be detrimental to the administration of
justice. And for this purpose all the normal factors and considerations which
have a bearing on this leg of the test (see §§ 12.10–12.10.6 below) should
come into play. If an accused was not prior to custodial police questioning
informed by the police of his constitutional right to silence, the court might
in the exercise of its discretion conclude that even though the accused had
responded voluntarily, all admissions made by the accused to the police
should be excluded in order to secure a fair trial. It does not follow,
however, that incriminating real evidence discovered as a result of the
inadmissible admissions obtained in breach of the constitutional right to
silence, must necessarily also be excluded on account of the fair trial
requirement in s 35(5) of the Constitution. In the USA exclusion applies to
the "fruits" of a coerced testimonial communication, but "a Miranda-
violation by the police does not have 'fruit of the poisonous tree'
consequences. Thus a confession obtained in violation of Miranda must be
suppressed, but … real evidence obtained by means of the original
inadmissible statement may be used in the government's case-in-chief". 411
It is submitted that South African courts should follow a similar approach in
their interpretation of s 35(5).
(e) Exclusion of an unconstitutionally obtained testimonial communication on
the basis that its admission would render the trial unfair, does not answer —
in fact, it merely raises — the question concerning the admissibility of the
real evidence obtained as a result of the inadmissible testimonial
communication. The court must exercise its discretion. And it is submitted
that in doing so, the court must bear in mind that real evidence remains
non-confessional or non-testimonial and that its admissibility should as a
rule therefore not attract fair trial considerations. Real evidence may be
incriminating but it is not self-incriminating — unless, of course, the court is
prepared to assume,
3rd Ed, 2009 ch12-p245

like the Canadian Supreme Court has found, that real evidence is
"conscriptive or self-incriminating evidence [if] discovered as a result of the
accused being conscripted to provide the evidence following a breach of his
Charter rights". 412 But there are situations where the admissibility of
derivative real evidence will attract fair trial considerations on account of
the manner in which it was obtained, especially where violence was
involved. S v Tandwa is such a case (see para (c) above). In this case the
real evidence was discovered derivatively as a result of coerced testimonial
communications made by the accused whose rights were severely violated
by the deliberate and flagrant conduct of the police. The Supreme Court of
Appeal aligned itself with the Canadian approach, but — it would seem —
only in so far as the matter before it involved violence and not a technical
violation of a fundamental right. It was not held that all derivative evidence
must at all times attract fair trial considerations.
(f) Section 35(5) of the Constitution and s 218 of the CPA — the latter section is
discussed in §§ 17.8–17.8.4 below — can co-exist, provided, of course, that
real evidence which can be admitted in terms of s 218 will always remain
subject to the court's duty to exclude such evidence if its admission would
have one of the consequences identified in s 35(5). Section 218(2), for
example, provides for the admission of real evidence despite the fact such
evidence was obtained as a result of an inadmissible confession, admission
or pointing out. The confession, admission or pointing will remain
inadmissible, but evidence of, for example, finger-prints found on a pistol
which can ballistically be connected to the crime, can be received provided
that the accused is not identified as the source of information which led to
the discovery of the pistol. It will, however, always be open to the defence
to object to the admissibility of such evidence on the basis that the pistol
was obtained in breach of constitutional rights and that admission of the
evidence would result in one of the consequences envisaged in s 35(5) of
the Constitution. It is submitted that in this instance the court should
exercise its discretion along the lines suggested in (a) to (e) above; and if
the impugned evidence is held admissible, the fact that the accused was the
source of information which led to its discovery, would remain inadmissible.
413
12.9.8 Trial fairness and the admissibility of identification

evidence obtained at an identification parade held in the absence
of the accused's legal representative
Exclusion of evidence of this nature cannot be based on the argument that legal
representation at the parade is necessary to protect the privilege against self-
incrimination. 414 Suspects who may lawfully be required to participate in an
identification parade, 415 are not required to make testimonial communications
like a "statement or pointing out where the advice of the legal representative on
the advisability of taking such a step may well be of crucial importance to an
uninformed accused". 416
In S v Mhlakaza — which was decided under the interim Constitution — it was
held that an accused had the right to have his legal representative at the parade
and that the evidence of identification obtained in breach of this right, should be
excluded unless the prosecution could satisfy the court that the right to a fair trial
"geensins benadeel kon gewees het deur die afwesigheid van 'n
regsverteenwoordiger nie". 418 However, Mhlakaza has consistently been rejected
or distinguished in other cases decided under the interim Constitution and in all
cases decided in terms of s 35(5) of the Constitution. In some cases it was
assumed that an accused does not have the right to have a legal representative
at the parade. 419
In S v Mphala Cloete J was satisfied that admission of the identification
evidence would not have resulted in one or both of the consequences identified in
s 35(5). Two factors weighed heavily with the court in coming to this conclusion.
First, Cloete J was satisfied that the police conduct in holding the parade in the
absence of the accused's legal representatives, was not of such a nature that the
court's disciplinary function (see § 12.4.1 above) had to be relied upon in
excluding the impugned evidence. 421 Secondly, Cloete J concluded that the
presence of the legal representatives would not have made any difference to the
outcome of the parade: "Evidence was led by the state that the parade had been
properly conducted, and there was no suggestion to the contrary in cross-
examination on behalf of the accused, or in the evidence given by them." 422 In S
v Mphala Cloete J admitted the evidence even on the assumption that the
accused had not expressly waived their right to the presence of an attorney at
the parade and that the evidence was, in consequence, procured in breach of a
constitutional right to have an attorney present. 423 In S v Thapedi — which was
3rd Ed, 2009 ch12-p247
also decided in terms of s 35(5) but without reference to S v Mphala —

Bertelsmann J came to a similar conclusion. He distinguished the so-called
"Wade-Gilbert" rule, created by the Supreme Court of the USA, 425 from the facts
in Thapedi and also declined to follow the Canadian Supreme Court decision in R
v Ross. 427 On the facts in Thapedi, Bertelsmann J concluded that there was no
breach of the right to have a legal representative at the parade 428 and, even if
there were such a breach, admission of the evidence would not have resulted in
either of the consequences identified in s 35(5). 429 In Thapedi the decision of the
police to hold a parade in the absence of the legal representatives, was not
considered improper ("onbehoorlik"). 430 The court also took into account that
two attorneys who were at the parade on behalf of other suspects, were not
called by the accused as defence witnesses "om die wyse waarop die parade
gehou is, te kritiseer nie'.' 431 However, in the course of his judgment,
Bertelsmann J took care to note that the police may not deliberately ignore the
right of an accused to have his legal representative at the parade, that an
accused should be given a reasonable opportunity to arrange such presence and,
where necessary, the police should at the request of the accused inform the legal
representative of the proposed identification parade. 432 It would seem that the
present position in our law is that the admissibility of the evidence under
discussion, would really only be excluded where circumstances are so extreme
that it would be necessary to discipline the police.
Where identification evidence which stems from an identification parade is
ruled inadmissible, the in-court identification of the accused by the witness
concerned, will only be admissible if the court is satisfied that the in-court
identification is based upon observations made by the witness on an occasion or
occasions other than the parade identification. 433
3rd Ed, 2009 ch12-p248
In contradistinction to a formal identification parade held in terms of s

37(1)(b), an accused has no right to a legal representative at a so-called "photo
identification parade". 434
Footnote - 289
289 The terms "first leg" and "second leg" of the test were used in S v Mark2001 (1) SACR 572
(C). These terms are terms of convenience and do not imply that a sequence is necessarily required
when considering the admissibility of evidence in terms of s 35(5). If the court is satisfied that
admission of the evidence would be detrimental to the administration of justice (referred to as the
"second leg" in § 12.10 below), the court is, strictly speaking, not even required to consider trial
fairness as required in the "first leg." There are, however, cases where courts have considered it
necessary to respond to the first leg even though the evidence also had to be excluded in terms of
the second leg. See, eg, S v Naidoo1998 (1) SACR 479 (N) as discussed in §§ 12.9.4 and 12.10.1
below and S v Mphala1998 (1) SACR 388 (W) as discussed in § 12.10.1 below.
289 The terms "first leg" and "second leg" of the test were used in S v Mark2001 (1) SACR
572 (C). These terms are terms of convenience and do not imply that a sequence is necessarily
required when considering the admissibility of evidence in terms of s 35(5). If the court is
satisfied that admission of the evidence would be detrimental to the administration of justice
(referred to as the "second leg" in § 12.10 below), the court is, strictly speaking, not even
required to consider trial fairness as required in the "first leg." There are, however, cases
where courts have considered it necessary to respond to the first leg even though the evidence
also had to be excluded in terms of the second leg. See, eg, S v Naidoo1998 (1) SACR 479 (N)
as discussed in §§ 12.9.4 and 12.10.1 below and S v Mphala1998 (1) SACR 388 (W) as
Footnote - 290
290 However, compare the following remarks made by Zeffertt 1996 ASSAL 803 804-5 (emphasis
in the orginal): "We are told that evidence has to be excluded if its admission 'would render the trial
unfair or otherwise be detrimental to the administration of justice'. There are at least two different
ways of reading this phrase. Probably, it was intended to mean that evidence will be inadmissible if
it either renders a trial unfair or if its reception would be detrimental to justice. But the cumulative
effect of the omission of the word 'either', together with the inclusion of the word 'otherwise', may
warrant a different interpretation: evidence will not be admissible merely because it renders the trial
unfair but only if, by doing so, it would, in addition, be detrimental to justice. Is it conceivable,
however, that the admission of evidence rendering a trial unfair would not also be detrimental to
justice?"
290 However, compare the following remarks made by Zeffertt 1996 ASSAL 803 804-5
(emphasis in the orginal): "We are told that evidence has to be excluded if its admission 'would
render the trial unfair or otherwise be detrimental to the administration of justice'. There are at
least two different ways of reading this phrase. Probably, it was intended to mean that
evidence will be inadmissible if it either renders a trial unfair or if its reception would be
detrimental to justice. But the cumulative effect of the omission of the word 'either', together
with the inclusion of the word 'otherwise', may warrant a different interpretation: evidence will
not be admissible merely because it renders the trial unfair but only if, by doing so, it would, in
addition, be detrimental to justice. Is it conceivable, however, that the admission of evidence
rendering a trial unfair would not also be detrimental to justice?"
Footnote - 291
291 See § 12.8 above.
291 See § 12.8 above.
Footnote - 292
292 Zeffertt 1996 ASSAL 803 804.
292 Zeffertt 1996 ASSAL 803 804.
Footnote - 293
293 S v Lottering 1999 12 BCLR 1478 (N) 1482I-J.
293 S v Lottering 1999 12 BCLR 1478 (N) 1482I-J.
Footnote - 294
294 In S v Madiba 1998 1 BCLR 38 (D) 44F-H. Hurt J observed as follows with reference to both
the first and second legs of the test in s 35(5): "[T]he court conducting the trial is vested with a
discretion, which it must exercise in order to achieve the object of the section. That object, to
paraphrase the section, must be to hold a trial which is fair and not detrimental to the administration
of justice … Both the concept of fairness and the concept of maintaining the standards of
administration of justice have a reciprocal nature about them … A trial in which a judge is bound by
the absence of any discretion to close the door on evidence on the basis that it was procured in
circumstances constituting a relatively unimportant infringement of a fundamental right may plainly
be as unfair as a trial in which he admits evidence procured in deliberate disregard of an important
right. [I]t seems to me that the section was plainly aimed at imposing a duty on the court, in the
course of a trial, to make a decision which is fair to both sides and not aimed only at considerations
of fairness or advantage to the accused … Accordingly, I take the view that this Court does have a
discretion which it must exercise within the precepts set by section 35(5)." It should be noted that
this case dealt with the admissibility of real evidence obtained in breach of privacy and not
testimonial communications which were unconstitutionally obtained. For a discussion of Madiba, see
§ 12.10.1 below.
294 In S v Madiba 1998 1 BCLR 38 (D) 44F-H. Hurt J observed as follows with reference to
both the first and second legs of the test in s 35(5): "[T]he court conducting the trial is vested
with a discretion, which it must exercise in order to achieve the object of the section. That
object, to paraphrase the section, must be to hold a trial which is fair and not detrimental to
the administration of justice … Both the concept of fairness and the concept of maintaining the
standards of administration of justice have a reciprocal nature about them … A trial in which a
judge is bound by the absence of any discretion to close the door on evidence on the basis that
it was procured in circumstances constituting a relatively unimportant infringement of a
fundamental right may plainly be as unfair as a trial in which he admits evidence procured in
deliberate disregard of an important right. [I]t seems to me that the section was plainly aimed
at imposing a duty on the court, in the course of a trial, to make a decision which is fair to both
sides and not aimed only at considerations of fairness or advantage to the accused …
Accordingly, I take the view that this Court does have a discretion which it must exercise within
the precepts set by section 35(5)." It should be noted that this case dealt with the admissibility
of real evidence obtained in breach of privacy and not testimonial communications which were
unconstitutionally obtained. For a discussion of Madiba, see § 12.10.1 below.
Footnote - 295
Footnote - 296
296 This was said by Kriegler J in Key v Attorney-General, Cape Provincial Division1996 (2) SACR
113 (CC) at [13], supporting the case-by-case approach which Ackermann J identified in Ferreira v
Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) at [149] as the correct one for purposes of
considering the admissibility of derivative evidence originating from statutory compulsion. See also
Bernstein v Bester1996 (2) SA 751 (CC).
296 This was said by Kriegler J in Key v Attorney-General, Cape Provincial Division1996 (2)
SACR 113 (CC) at [13], supporting the case-by-case approach which Ackermann J identified in
Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) at [149] as the correct one
for purposes of considering the admissibility of derivative evidence originating from statutory
compulsion. See also Bernstein v Bester1996 (2) SA 751 (CC).
Footnote - 297
297 Key v Attorney-General, Cape Provincial Division supra [13].
297 Key v Attorney-General, Cape Provincial Division supra [13].
Footnote - 298
298 Key v Attorney-General, Cape Provincial Division supra [13]. See also S v Tandwa2008 (1)
SACR 613 (SCA) at [117].
298 Key v Attorney-General, Cape Provincial Division supra [13]. See also S v Tandwa2008
(1) SACR 613 (SCA) at [117].
Footnote - 299
299 S v Rudman & another; S v Mthwana1992 (1) SA 343 (A) 387A.
299 S v Rudman & another; S v Mthwana1992 (1) SA 343 (A) 387A.
Footnote - 300
300 S v Zuma1995 (1) SACR 568 (CC) as discussed in § 17.4.5.2 below; S v Ntuli1997 (3) SA 772
(CC). In S v Ramuongiwa 1997 2 BCLR 268 (V) 272C it was said that "notions of fairness and justice
are now the acid test".
300 S v Zuma1995 (1) SACR 568 (CC) as discussed in § 17.4.5.2 below; S v Ntuli1997 (3) SA
772 (CC). In S v Ramuongiwa 1997 2 BCLR 268 (V) 272C it was said that "notions of fairness
and justice are now the acid test".
Footnote - 301
301 2000 (2) SACR 443 (CC) at [9] and [11]. Ackermann J quoted from S v Zuma supra at [16]
and also relied on Sanderson v Attorney-General, Eastern Cape1998 (1) SACR 227 (CC) at [22].
301 2000 (2) SACR 443 (CC) at [9] and [11]. Ackermann J quoted from S v Zuma supra at
[16] and also relied on Sanderson v Attorney-General, Eastern Cape1998 (1) SACR 227 (CC) at
[22].
Footnote - 302
302 See generally the full bench decision in S v Ngcobo 1998 10 BCLR 1248 (N) — especially at
1254G-H. This case was decided under the interim Constitution, but the court made it clear that
there is a discretion "as is apparent from the wording of section 35(5) of the final Constitution".
302 See generally the full bench decision in S v Ngcobo 1998 10 BCLR 1248 (N) — especially
at 1254G-H. This case was decided under the interim Constitution, but the court made it clear
that there is a discretion "as is apparent from the wording of section 35(5) of the final
Constitution".
Footnote - 303
303 S v Seseane2000 (2) SACR 225 (O).
303 S v Seseane2000 (2) SACR 225 (O).
Footnote - 304
304 In S v Soci1998 (2) SACR 275 (E) 293j-294b Erasmus J held as follows: "[P]rejudice to the
accused … becomes relevant under the requirement in [s 35(5)] that the evidence must be excluded
'if the admission of that evidence would render the trial unfair' … The question of prejudice is …
inseparable from the question of fairness, in that a trial cannot be completely fair where the accused
is in any way prejudiced; but, on the other hand, the trial can hardly be unfair where there is no
prejudice. I find therefore that the presence or absence of prejudice is relevant to the question of a
fair trial." Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis supports this
approach on the basis that "[d]ie afwesigheid van benadeling … beteken dat daar geen versteuring is
of kan wees van wat die Konstitusionele Hof … as 'notions of basic fairness' beskryf het nie." In S v
Lottering 1999 12 BCLR 1478 (N) — which is discussed in § 12.9.4 below — Levinsohn J was more
cautious and merely noted (at 1483F) that "[t]he question of prejudice to the appellant is a factor
which can legitimately be weighed in the scales as well." See also Bilchitz 1998 ASSAL 735 761.
304 In S v Soci1998 (2) SACR 275 (E) 293j-294b Erasmus J held as follows: "[P]rejudice to
the accused … becomes relevant under the requirement in [s 35(5)] that the evidence must be
excluded 'if the admission of that evidence would render the trial unfair' … The question of
prejudice is … inseparable from the question of fairness, in that a trial cannot be completely fair
where the accused is in any way prejudiced; but, on the other hand, the trial can hardly be
unfair where there is no prejudice. I find therefore that the presence or absence of prejudice is
relevant to the question of a fair trial." Langenhoven Die Toelaatbaarheid van Ongrondwetlik
Verkreë Getuienis supports this approach on the basis that "[d]ie afwesigheid van benadeling …
beteken dat daar geen versteuring is of kan wees van wat die Konstitusionele Hof … as 'notions
of basic fairness' beskryf het nie." In S v Lottering 1999 12 BCLR 1478 (N) — which is
discussed in § 12.9.4 below — Levinsohn J was more cautious and merely noted (at 1483F)
that "[t]he question of prejudice to the appellant is a factor which can legitimately be weighed
in the scales as well." See also Bilchitz 1998 ASSAL 735 761.
Footnote - 305
305 S v Cloete1999 (2) SACR 137 (C) 146c. In this case Davis J, after having concluded that the
impugned evidence had to be excluded, found it necessary to observe as follows (at 150h-i): "This is
a difficult case. It is particularly problematic because the burden of the crime wave and the need for
crime control weighs very heavily. It is wrong to conclude that an attempt to preserve the
Constitution is necessarily a nod in the direction of criminals. The Constitution is not the cause of
crime in this country. The court's task is to uphold the Constitution in such a manner that gives it its
proper effect which I consider is to attempt to achieve some balance between the models of crime
control and due process."
305 S v Cloete1999 (2) SACR 137 (C) 146c. In this case Davis J, after having concluded that
the impugned evidence had to be excluded, found it necessary to observe as follows (at 150h-
i): "This is a difficult case. It is particularly problematic because the burden of the crime wave
and the need for crime control weighs very heavily. It is wrong to conclude that an attempt to
preserve the Constitution is necessarily a nod in the direction of criminals. The Constitution is
not the cause of crime in this country. The court's task is to uphold the Constitution in such a
manner that gives it its proper effect which I consider is to attempt to achieve some balance
between the models of crime control and due process."
Footnote - 306
306 S v Soci supra 397f-g.
306 S v Soci supra 397f-g.
Footnote - 307
307 S v Lottering supra 1483H; S v Soci supra 295d-e and 297f-g.
307 S v Lottering supra 1483H; S v Soci supra 295d-e and 297f-g.
Footnote - 308
308 Supra [13].
308 Supra [13].
Footnote - 309
309 S v M2002 (2) SACR 411 (SCA) at [30]. In this case the SCA overruled an earlier finding of
exclusion made in S v M2000 (2) SACR 474 (N).
309 S v M2002 (2) SACR 411 (SCA) at [30]. In this case the SCA overruled an earlier finding
of exclusion made in S v M2000 (2) SACR 474 (N).
Footnote - 310
310 2008 (1) SACR 613 (SCA) at [117].
310 2008 (1) SACR 613 (SCA) at [117].
Footnote - 311
311 See s 35(3)(h) of the Constitution.
311 See s 35(3)(h) of the Constitution.
Footnote - 312
312 See s 35(3)(j) of the Constitution.
312 See s 35(3)(j) of the Constitution.
Footnote - 313
313 Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) at [159].
313 Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) at [159].
Footnote - 314
314 See s 35(1)(c) of the Constitution.
Footnote - 315
315 See s 35(2)(b) of the Constitution.
315 See s 35(2)(b) of the Constitution.
Footnote - 316
Footnote - 317
317 See § 12.5.2 above.
317 See § 12.5.2 above.
Footnote - 318
318 1998 (1) SACR 446 (D).
318 1998 (1) SACR 446 (D).
Footnote - 319
319 See generally S v Soci supra where Erasmus J made frequent reference to cases decided
under the interim Constitution.
319 See generally S v Soci supra where Erasmus J made frequent reference to cases decided
under the interim Constitution.
Footnote - 320
320 S v Soci supra. Where an accused actually has knowledge of his rights due to his status as a
police officer, a statement made by him would be admissible even if his rights had not been
explained to him. See Magoulaane v S 2007 3 All SA 627 (NC).
320 S v Soci supra. Where an accused actually has knowledge of his rights due to his status
as a police officer, a statement made by him would be admissible even if his rights had not
been explained to him. See Magoulaane v S 2007 3 All SA 627 (NC).
Footnote - 321
321 1999 12 BCLR 1478 (N).
321 1999 12 BCLR 1478 (N).
Footnote - 322
322 S v Lottering supra 1480H.

Footnote - 323
323 Compare Michigan v Tucker 417 US 433 (1974) as discussed in § 12.5.2.2 above. In this case
it was held that evidence of a prosecution witness identified as a result of an accused's non-coerced
but inadmissible statement obtained in breach of Miranda, is admissible. It is submitted that even if
the accused's pointing out in S v Lottering supra had to be excluded, the evidence of L would, on the
basis of the reasoning in Michigan v Tucker supra, still have been admissible.
323 Compare Michigan v Tucker 417 US 433 (1974) as discussed in § 12.5.2.2 above. In this
case it was held that evidence of a prosecution witness identified as a result of an accused's
non-coerced but inadmissible statement obtained in breach of Miranda, is admissible. It is
submitted that even if the accused's pointing out in S v Lottering supra had to be excluded, the
evidence of L would, on the basis of the reasoning in Michigan v Tucker supra, still have been
admissible.
Footnote - 324
Footnote - 325
325 S v Lottering supra 1482J-1483A.
325 S v Lottering supra 1482J-1483A.
Footnote - 326
Footnote - 327
327 S v Lottering supra 1483B. See also generally S v Nombewu1996 (2) SACR 396 (E) 420e-i,
which was decided under the interim Constitution, but where Erasmus J also referred to a "value
judgment". See further S v Pillay2004 (2) SACR 419 (SCA) at [93].
327 S v Lottering supra 1483B. See also generally S v Nombewu1996 (2) SACR 396 (E) 420e-
i, which was decided under the interim Constitution, but where Erasmus J also referred to a
"value judgment". See further S v Pillay2004 (2) SACR 419 (SCA) at [93].
Footnote - 328
328 S v Lottering supra 1483C-D. See also generally S v Tandwa2008 (1) SACR 613 (SCA) at
[117].
328 S v Lottering supra 1483C-D. See also generally S v Tandwa2008 (1) SACR 613 (SCA) at
[117].
Footnote - 329
329 S v Lottering supra 1483D-E.
329 S v Lottering supra 1483D-E.
Footnote - 330
330 S v Lottering supra 1483E-H.
330 S v Lottering supra 1483E-H.
Footnote - 331
331 2000 (2) SACR 225 (O). In this case a police officer's modus operandi not to explain
constitutional rights in the hope of obtaining information, required exclusion of the accused's
statement. Apart from the fact that admission of the statement would have rendered the trial unfair,
Seseane was also a clear-cut case where exclusion was required to discipline the police for the long-
term purposes of promoting constitutional values (see § 12.4.1 above).
331 2000 (2) SACR 225 (O). In this case a police officer's modus operandi not to explain
constitutional rights in the hope of obtaining information, required exclusion of the accused's
statement. Apart from the fact that admission of the statement would have rendered the trial
unfair, Seseane was also a clear-cut case where exclusion was required to discipline the police
for the long-term purposes of promoting constitutional values (see § 12.4.1 above).
Footnote - 332
332 1998 (1) SACR 388 (W). See the discussion of this case in § 12.9.5 below.
332 1998 (1) SACR 388 (W). See the discussion of this case in § 12.9.5 below.
Footnote - 333
333 S v Lottering supra 1483E-F.
333 S v Lottering supra 1483E-F.
Footnote - 334
334 467 US 649 (1984).
334 467 US 649 (1984).
Footnote - 335
335 384 US 436 (1966).
335 384 US 436 (1966).
Footnote - 336
Footnote - 337
337 It should be stressed that the reasonable conduct of the police cannot limit the right to a fair
trial and that s 36(1) of the Constitution cannot be relied on to justify this reasoning. See § 12.8.5
above. However, it is an entirely different matter to look at the circumstances under which the
constitutional breach took place and then to assess whether admission of the evidence so obtained,
would deprive an accused of his constitutional right to a fair trial.
337 It should be stressed that the reasonable conduct of the police cannot limit the right to a
fair trial and that s 36(1) of the Constitution cannot be relied on to justify this reasoning. See §
12.8.5 above. However, it is an entirely different matter to look at the circumstances under
which the constitutional breach took place and then to assess whether admission of the
evidence so obtained, would deprive an accused of his constitutional right to a fair trial.
Footnote - 338
338 1998 (2) SACR 275 (E).
338 1998 (2) SACR 275 (E).
Footnote - 339
339 S v Soci supra 289j.
339 S v Soci supra 289j.

Footnote - 340
340 Compare generally S v Marx1996 (2) SACR 140 (W).
340 Compare generally S v Marx1996 (2) SACR 140 (W).
Footnote - 341
341 In S v Sebejan1997 (1) SACR 626 (W) Satchwell J observed as follows at 635g-636b: "Policy
must surely require that investigating authorities are not encouraged or tempted to retain potential
accused persons in the category of 'suspect' while collecting and taking statements from the unwary,
unsilent, unrepresented, unwarned and unenlightened suspects and only thereafter, once the
damage has been done as it were, to inform them that they are now to be arrested. The temptation
should not exist that accused persons, who must a fortiori have once been suspects, are not advised
of rights to silence and to legal representation and never receive meaningful warnings prior to
making statements which are subsequently tendered against them in their trials because it is easier
to obtain such statements from them while they are still suspects who do not enjoy constitutional
protections. The prospect exists that statements tendered as evidence would always emanate from
suspects and that the constitutional protections accorded to arrested persons prior to making
statements or pointing out would become underutilised anachronisms … The Constitution is silent
with regard to the rights of a suspect who is neither arrested nor detained. The Judges' Rules
recognise a divergence of interests between the suspect and a witness and require appropriate
cautions to be given to a suspect before questioning. A suspect who becomes an accused has
participated in the pre-trial procedure and such participation may have included the making of a
statement to an investigating police person. No less than an accused is the suspect entitled to fair
pre-trial procedures. These include the rights which would accrue to an accused when arrested: the
right to remain silent and the right to be informed of the right to remain silent; the right to be
informed of the consequences of making any statement; the right to choose and to consult with a
legal practitioner and to be informed of this right promptly." It should be pointed out that this case
was decided under the interim Constitution and that the court ultimately found that the accused
concerned, was not a suspect at the time when she made her statement to the police. In S v Ndlovu
1997 12 BCLR 1785 (N) 1792B it was held that the definition, in S v Sebejan supra, of a suspect as
a person in respect of whom there is some apprehension that he may be implicated in the offence,
was too wide. The court required a reasonable suspicion. See further S v Langa1998 (1) SACR 21
(T) 27b where MacArthur J noted that Sebejan's discussion of the rights of a suspect, was obiter and
could also on the facts be distinguished. See further § 10.2.3.1 above. See also S v Mthethwa2004
(1) SACR 449 (E), where Sebejan was not followed; and S v Orrie2005 (1) SACR 63 (C), where
Bozalek J concluded — in line with Sebejan — that "no less than an accused, a suspect is entitled to
fair pre-trial procedures" (at 69H).
341 In S v Sebejan1997 (1) SACR 626 (W) Satchwell J observed as follows at 635g-636b:
"Policy must surely require that investigating authorities are not encouraged or tempted to
retain potential accused persons in the category of 'suspect' while collecting and taking
statements from the unwary, unsilent, unrepresented, unwarned and unenlightened suspects
and only thereafter, once the damage has been done as it were, to inform them that they are
now to be arrested. The temptation should not exist that accused persons, who must a fortiori
have once been suspects, are not advised of rights to silence and to legal representation and
never receive meaningful warnings prior to making statements which are subsequently
tendered against them in their trials because it is easier to obtain such statements from them
while they are still suspects who do not enjoy constitutional protections. The prospect exists
that statements tendered as evidence would always emanate from suspects and that the
constitutional protections accorded to arrested persons prior to making statements or pointing
out would become underutilised anachronisms … The Constitution is silent with regard to the
rights of a suspect who is neither arrested nor detained. The Judges' Rules recognise a
divergence of interests between the suspect and a witness and require appropriate cautions to
be given to a suspect before questioning. A suspect who becomes an accused has participated
in the pre-trial procedure and such participation may have included the making of a statement
to an investigating police person. No less than an accused is the suspect entitled to fair pre-
trial procedures. These include the rights which would accrue to an accused when arrested: the
right to remain silent and the right to be informed of the right to remain silent; the right to be
informed of the consequences of making any statement; the right to choose and to consult
with a legal practitioner and to be informed of this right promptly." It should be pointed out
that this case was decided under the interim Constitution and that the court ultimately found
that the accused concerned, was not a suspect at the time when she made her statement to
the police. In S v Ndlovu 1997 12 BCLR 1785 (N) 1792B it was held that the definition, in S v
Sebejan supra, of a suspect as a person in respect of whom there is some apprehension that
he may be implicated in the offence, was too wide. The court required a reasonable suspicion.
See further S v Langa1998 (1) SACR 21 (T) 27b where MacArthur J noted that Sebejan's
discussion of the rights of a suspect, was obiter and could also on the facts be distinguished.
See further § 10.2.3.1 above. See also S v Mthethwa2004 (1) SACR 449 (E), where Sebejan
was not followed; and S v Orrie2005 (1) SACR 63 (C), where Bozalek J concluded — in line
with Sebejan — that "no less than an accused, a suspect is entitled to fair pre-trial procedures"
(at 69H).
Footnote - 342
342 A clumsy but accurate term used by Satchwell J in S v Sebejan supra 637e.
342 A clumsy but accurate term used by Satchwell J in S v Sebejan supra 637e.
Footnote - 343
343 De Waal, Currie & Erasmus The Bill of Rights Handbook 599.
Footnote - 344
344 S v Van der Merwe 1997 10 BCLR 1470 (O) 1473. However, see also Snyckers in Chaskalson
et al Constitutional Law of South Africa 27-44 for a critical analysis of this case.
344 S v Van der Merwe 1997 10 BCLR 1470 (O) 1473. However, see also Snyckers in
Chaskalson et al Constitutional Law of South Africa 27-44 for a critical analysis of this case.
Footnote - 345
345 1994 4 All SA 583 (N).
345 1994 4 All SA 583 (N).
Footnote - 346
346 Shabalala v S supra 589c-d.
346 Shabalala v S supra 589c-d.
Footnote - 347
347 There is Canadian authority for the view that an objection to the admissibility of evidence on
grounds that it was unconstitutionally obtained, must as a general rule be raised timeously in the
course of the trial. See generally R v Dwernychuk 1992 12 CRR 2d 175 (Alta CA).
347 There is Canadian authority for the view that an objection to the admissibility of evidence
on grounds that it was unconstitutionally obtained, must as a general rule be raised timeously
in the course of the trial. See generally R v Dwernychuk 1992 12 CRR 2d 175 (Alta CA).
Footnote - 348
348 Shabalala v S supra 589g.
348 Shabalala v S supra 589g.
Footnote - 349
349 1998 (1) SACR 479 (N) 525i.
349 1998 (1) SACR 479 (N) 525i.
Footnote - 350
350 S v Naidoo supra 527c-f.
350 S v Naidoo supra 527c-f.
Footnote - 351
351 See Steytler Constitutional Criminal Procedure 37 n 319.

351 See Steytler Constitutional Criminal Procedure 37 n 319.
Footnote - 352
352 2004 (2) SACR 419 (SCA).
352 2004 (2) SACR 419 (SCA).
Footnote - 353
353 At 447e-f.
353 At 447e-f.
Footnote - 354
354 See the discussion of S v Soci1998 (2) SACR 275 (E) in § 12.8.2 above.
354 See the discussion of S v Soci1998 (2) SACR 275 (E) in § 12.8.2 above.
Footnote - 355
355 In R v Clarkson 1986 19 CRR 209 (SCC) it was held, ia, that waiver of the Charter-right to
counsel by an intoxicated accused, must pass some form of "awareness of the consequences" test.
355 In R v Clarkson 1986 19 CRR 209 (SCC) it was held, ia, that waiver of the Charter-right
to counsel by an intoxicated accused, must pass some form of "awareness of the
consequences" test.
Footnote - 356
356 S v Gasa1998 (1) SACR 446 (D).
356 S v Gasa1998 (1) SACR 446 (D).
Footnote - 357
357 S v Melani1996 (1) SACR 335 (E) 350e. Whether there was a valid waiver can depend on "die
intelligensie en ontwikkeling van die beskuldigde en die verloop van tyd tussen onderhoude" (Buys J
in S v Brown1996 (2) SACR 49 (NC) 72h-i). See also generally S v Mathebula1997 (1) SACR 10 (W)
25c-f.
357 S v Melani1996 (1) SACR 335 (E) 350e. Whether there was a valid waiver can depend on
"die intelligensie en ontwikkeling van die beskuldigde en die verloop van tyd tussen
onderhoude" (Buys J in S v Brown1996 (2) SACR 49 (NC) 72h-i). See also generally S v
Mathebula1997 (1) SACR 10 (W) 25c-f.
Footnote - 358
358 See generally S v Marx1996 (2) SACR 140 (W). See further S v Mgcina2007 (1) SACR 82 (T)
at 96b-c.
358 See generally S v Marx1996 (2) SACR 140 (W). See further S v Mgcina2007 (1) SACR 82
(T) at 96b-c.
Footnote - 359
359 1998 (1) SACR 16 (T). See also Magoulaane v S 2007 3 All SA 627 (NC) at [21].
359 1998 (1) SACR 16 (T). See also Magoulaane v S 2007 3 All SA 627 (NC) at [21].
Footnote - 360
360 See S v Mathebula supra 35h.
360 See S v Mathebula supra 35h.
Footnote - 361
361 S v Shaba supra 20f-g. In this case it was held that although it may be desirable to advise an
accused of his rights every time he takes a procedural step by which he may incriminate himself, the
failure to do so does not mean that evidence so obtained is inadmissible merely because the
required advice was not given. See also S v Brown supra 72h-j where Buys J stressed the
importance of considering the facts of each case.
361 S v Shaba supra 20f-g. In this case it was held that although it may be desirable to
advise an accused of his rights every time he takes a procedural step by which he may
incriminate himself, the failure to do so does not mean that evidence so obtained is
inadmissible merely because the required advice was not given. See also S v Brown supra 72h-
j where Buys J stressed the importance of considering the facts of each case.
Footnote - 362
Footnote - 363
363 In the USA such waivers are permitted, provided the accused did so voluntarily knowingly and
intelligently: see § 12.5.2 above. See also generally S v Buda2004 (1) SACR 9 (T).
363 In the USA such waivers are permitted, provided the accused did so voluntarily
knowingly and intelligently: see § 12.5.2 above. See also generally S v Buda2004 (1) SACR 9
(T).
Footnote - 364
364 De Waal, Currie & Erasmus The Bill of Rights Handbook 613-4 n 158 attaches this
interpretation to S v Shaba supra. The position is the same in the USA: see § 12.5.2 above.
364 De Waal, Currie & Erasmus The Bill of Rights Handbook 613-4 n 158 attaches this
interpretation to S v Shaba supra. The position is the same in the USA: see § 12.5.2 above.
Footnote - 365
365 De Waal, Currie & Erasmus The Bill of Rights Handbook 613-4 n 158. See also generally S v
Tsotetsi (3)2003 (2) SACR 648 (W) as read with S v Tsotetsi (1)2003 (2) SACR 623 (W).
365 De Waal, Currie & Erasmus The Bill of Rights Handbook 613-4 n 158. See also generally
S v Tsotetsi (3)2003 (2) SACR 648 (W) as read with S v Tsotetsi (1)2003 (2) SACR 623 (W).
Footnote - 366
366 See generally R v Smith 1989 41 CRR 1 (SCC). There is also no duty on a policeman arresting
an accused to advise him to obtain legal representation before making a statement. See S v
Vumase2000 (2) SACR 579 (W) 581.
366 See generally R v Smith 1989 41 CRR 1 (SCC). There is also no duty on a policeman
arresting an accused to advise him to obtain legal representation before making a statement.
See S v Vumase2000 (2) SACR 579 (W) 581.
Footnote - 367
367 1998 (1) SACR 388 (W).
367 1998 (1) SACR 388 (W).
Footnote - 368
368 S v Mphala supra 397c-d.
368 S v Mphala supra 397c-d.
Footnote - 369
369 S v Mphala supra 399d-e.
369 S v Mphala supra 399d-e.
Footnote - 370
370 Cloete J also held that admission of the impugned evidence would — apart from rendering the
trial unfair — also have been detrimental to the administration of justice: see further § 12.10.1
below.
370 Cloete J also held that admission of the impugned evidence would — apart from
rendering the trial unfair — also have been detrimental to the administration of justice: see
further § 12.10.1 below.
Footnote - 371
371 475 US 412 (1986).
371 475 US 412 (1986).
Footnote - 372
372 1941 AD 75 82-3.
372 1941 AD 75 82-3.
Footnote - 373
373 384 US 757 (1966). See also § 10.3.2.1 1 above.
373 384 US 757 (1966). See also § 10.3.2.1 1 above.
Footnote - 374
374 Wigmore paras 2263-2265.
374 Wigmore paras 2263-2265.
Footnote - 375
375 See generally Van der Merwe in Du Toit et al Commentary on the Criminal Procedure Act 3-2
to 3-3.
375 See generally Van der Merwe in Du Toit et al Commentary on the Criminal Procedure Act
3-2 to 3-3.
Footnote - 376
376 S v Binta1993 (2) SACR 553 (C) 562d-e.
376 S v Binta1993 (2) SACR 553 (C) 562d-e.
Footnote - 377
377 S v Huma (2)1995 (2) SACR 411 (W) 417; S v Maphumulo1996 (2) SACR 84 (N) 90c-d; Msomi
v Attorney-General of Natal 1996 8 BCLR 1109 (W) 1120B.
377 S v Huma (2)1995 (2) SACR 411 (W) 417; S v Maphumulo1996 (2) SACR 84 (N) 90c-d;
Msomi v Attorney-General of Natal 1996 8 BCLR 1109 (W) 1120B.
Footnote - 378
378 R v Gericke 1941 CPD 211; Levack v Regional Magistrate, Wynberg1999 (2) SACR 151 (C)
155i.
378 R v Gericke 1941 CPD 211; Levack v Regional Magistrate, Wynberg1999 (2) SACR 151
(C) 155i.
Footnote - 379
379 S v Duna1984 (2) SA 591 (CkS) 595G-H and 596B.
379 S v Duna1984 (2) SA 591 (CkS) 595G-H and 596B.
Footnote - 380
380 Minister of Safety and Security v Gaqa2002 (1) SACR 654 (C) 658f.
380 Minister of Safety and Security v Gaqa2002 (1) SACR 654 (C) 658f.
Footnote - 381
381 See, eg, S v Mkhize1999 (2) SACR 632 (W) 637g-h; S v R2000 (1) SACR 33 (W) 40g-41d.
See also generally S v M2002 (2) SACR 411 (SCA), at [31].
381 See, eg, S v Mkhize1999 (2) SACR 632 (W) 637g-h; S v R2000 (1) SACR 33 (W) 40g-
41d. See also generally S v M2002 (2) SACR 411 (SCA), at [31].
Footnote - 382
382 1987 28 CRR 122 (SCC).
382 1987 28 CRR 122 (SCC).
Footnote - 383
383 1988 38 CRR 290 (SCC).
383 1988 38 CRR 290 (SCC).
Footnote - 384
Footnote - 385
385 Supra at 637g-h.
385 Supra at 637g-h.
Footnote - 386
386 Supra at 40g-41d.
386 Supra at 40g-41d.
Footnote - 387
387 See generally § 19.8 below.
387 See generally § 19.8 below.
Footnote - 388
388 2000 ASSAL 795 804.
388 2000 ASSAL 795 804.
Footnote - 389
389 1997 42 CRR (2d) 189 (SCC).
389 1997 42 CRR (2d) 189 (SCC).

Footnote - 390
390 On the facts as ultimately found by Willis J in S v R supra, the reference to R v Stillman supra
would, it is submitted, not have made any difference. The consent of the accused and/or their de
facto guardians was obtained.
390 On the facts as ultimately found by Willis J in S v R supra, the reference to R v Stillman
supra would, it is submitted, not have made any difference. The consent of the accused and/or
their de facto guardians was obtained.
Footnote - 391
Footnote - 392
392 R v Stillman supra 221-2.
Footnote - 393
393 384 US 757 (1966).
393 384 US 757 (1966).
Footnote - 394
394 See § 12.6.1 above.
394 See § 12.6.1 above.
Footnote - 395
395 The Law of Evidence in Canada 429.
395 The Law of Evidence in Canada 429.
Footnote - 396
396 R v Stillman supra 224 and 234.
396 R v Stillman supra 224 and 234.
Footnote - 397
Footnote - 398
Footnote - 399
Footnote - 400
400 However, it must also be conceded that the Constitutional Court's description of the
constitutional right to a fair trial (see § 12.9.2 above) is so wide that a court might in extreme
circumstances exclude unconstitutionally obtained real evidence like bodily samples, under the first
leg of the test. But this should then be done without expanding the ambit of the privilege against
self-incrimination to include bodily samples, ie, it is not necessary to equate unconstitutionally
obtained bodily samples with conscriptive testimonial communications emanating from the accused.
400 However, it must also be conceded that the Constitutional Court's description of the
constitutional right to a fair trial (see § 12.9.2 above) is so wide that a court might in extreme
circumstances exclude unconstitutionally obtained real evidence like bodily samples, under the
first leg of the test. But this should then be done without expanding the ambit of the privilege
against self-incrimination to include bodily samples, ie, it is not necessary to equate
unconstitutionally obtained bodily samples with conscriptive testimonial communications
emanating from the accused.
Footnote - 401
401 Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC).
401 Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC).
Footnote - 402
402 Ferreira v Levin NO; Vryenhoek v Powell NO supra at [185].
Footnote - 403
Footnote - 404
404 Ferreira v Levin NO; Vryenhoek v Powell NO supra at [268] n 43.
404 Ferreira v Levin NO; Vryenhoek v Powell NO supra at [268] n 43.
Footnote - 405
405 1997 42 CRR 2d 189 (SCC). See also §§ 12.6.1 and 12.9.6 for discussions of this case.
405 1997 42 CRR 2d 189 (SCC). See also §§ 12.6.1 and 12.9.6 for discussions of this case.
Footnote - 406
406 At 230-1.
406 At 230-1.
Footnote - 407
407 1995 28 CRR 2d 244 (SCC).
407 1995 28 CRR 2d 244 (SCC).
Footnote - 408
408 At 273. But in S v Pillay2004 (2) SACR 419 (SCA) at [9] Scott JA had good reason to warn as
follows: "To hold that the derivative evidence, ie the discovery of the money in the roof, would
render the trial unfair in such circumstances would be to extend the application of the reasoning in
the Burlingham case too far." He went on to say that such an approach, if adopted as an invariable
rule, would be in conflict with Constitutional Court cases such as Ferreira v Levin NO; Vryenhoek v
Powell NO supra, where it was made clear that hard-and-fast rules cannot be laid down as regards
the effect of derivative evidence on the fairness of the trial.
408 At 273. But in S v Pillay2004 (2) SACR 419 (SCA) at [9] Scott JA had good reason to
warn as follows: "To hold that the derivative evidence, ie the discovery of the money in the
roof, would render the trial unfair in such circumstances would be to extend the application of
the reasoning in the Burlingham case too far." He went on to say that such an approach, if
adopted as an invariable rule, would be in conflict with Constitutional Court cases such as
Ferreira v Levin NO; Vryenhoek v Powell NO supra, where it was made clear that hard-and-fast
rules cannot be laid down as regards the effect of derivative evidence on the fairness of the
trial.
Footnote - 409
409 Supra at [150].
409 Supra at [150].
Footnote - 410
410 2008 (1) SACR 613 (SCA) at [120]. Emphasis added. The Supreme Court of Appeal — having
noted the Canadian "Stillman modification" of the Collins test (see 12 9 6) — also said (at [125]):
"Furthermore, focusing as the High Court did, on the classification of the evidence (… testimonial or
real) is misleading, since the question should be whether the accused was compelled to provide the
evidence."
410 2008 (1) SACR 613 (SCA) at [120]. Emphasis added. The Supreme Court of Appeal —
having noted the Canadian "Stillman modification" of the Collins test (see 12 9 6) — also said
(at [125]): "Furthermore, focusing as the High Court did, on the classification of the evidence
(… testimonial or real) is misleading, since the question should be whether the accused was
compelled to provide the evidence."
Footnote - 411
411 Bradley (ed) Criminal Procedure — A Worldwide Study 2 ed (2007) 532. See also § 12.5.2.1
above.
411 Bradley (ed) Criminal Procedure — A Worldwide Study 2 ed (2007) 532. See also §
12.5.2.1 above.
Footnote - 412
412 R v Stillmann supra 226 (explaining the decision in R v Burlingham supra). If our courts do
follow the Canadian Supreme Court, they should also carry it through and accept the independent
source doctrine and inevitable discovery doctrine as identified in R v Stillmann supra 227-9. In R v
Stillmann 128 the decision in R v Black 1989 47 CRR 171 (SCC) was identified as a good example of
a case where inevitably discoverable evidence was admitted. In Black the accused — after
questioning by the police in breach of her Charter rights — accompanied the police to her
apartment. She produced a knife from the kitchen and identified it as the murder weapon. Her
statements were excluded as having been obtained in breach of her right against self-incrimination
— admission of the statements would have rendered the trial unfair. The knife was held to be
derivative evidence procured as a direct result of the unconstitutionally obtained conscripted
statements made by the accused. Applying the discoverability principle, the court held that there
was no doubt that the police would have searched the accused's apartment (where the murder took
place) and would — even without the accused's co-operation or assistance — have discovered the
knife. The discovery of the knife was inevitable and its admission would not have rendered the trial
unfair.
412 R v Stillmann supra 226 (explaining the decision in R v Burlingham supra). If our courts
do follow the Canadian Supreme Court, they should also carry it through and accept the
independent source doctrine and inevitable discovery doctrine as identified in R v Stillmann
supra 227-9. In R v Stillmann 128 the decision in R v Black 1989 47 CRR 171 (SCC) was
identified as a good example of a case where inevitably discoverable evidence was admitted. In
Black the accused — after questioning by the police in breach of her Charter rights —
accompanied the police to her apartment. She produced a knife from the kitchen and identified
it as the murder weapon. Her statements were excluded as having been obtained in breach of
her right against self-incrimination — admission of the statements would have rendered the
trial unfair. The knife was held to be derivative evidence procured as a direct result of the
unconstitutionally obtained conscripted statements made by the accused. Applying the
discoverability principle, the court held that there was no doubt that the police would have
searched the accused's apartment (where the murder took place) and would — even without
the accused's co-operation or assistance — have discovered the knife. The discovery of the
knife was inevitable and its admission would not have rendered the trial unfair.
Footnote - 413
413 On the interaction between s 218 of the CPA and s 35(5) of the Constitution, see S v
Pillay2004 (2) SACR 419 (SCA) at 442-3 and S v Danster ( unreported EC decision, case no CA
392/2005, 6 Dec 2007) at [80].
413 On the interaction between s 218 of the CPA and s 35(5) of the Constitution, see S v
Pillay2004 (2) SACR 419 (SCA) at 442-3 and S v Danster ( unreported EC decision, case no CA
392/2005, 6 Dec 2007) at [80].
Footnote - 414
414 S v Mphala1998 (1) SACR 654 (W) 660e; S v Thapedi2002 (1) SACR 598 (T) 602b-d, where
Bertelsmann J relied on the findings of Borchers J in S v Monyane2001 (1) SACR 115 (T) 130c and
130i; S v Mokoena1998 (2) SACR 642 (W) 647i-j.
414 S v Mphala1998 (1) SACR 654 (W) 660e; S v Thapedi2002 (1) SACR 598 (T) 602b-d,
where Bertelsmann J relied on the findings of Borchers J in S v Monyane2001 (1) SACR 115 (T)
130c and 130i; S v Mokoena1998 (2) SACR 642 (W) 647i-j.
Footnote - 415
415 See s 37(1)(b) of the CPA.
415 See s 37(1)(b) of the CPA.
Footnote - 416
416 S v Monyani supra 130i.
416 S v Monyani supra 130i.
Footnote - 417
417 1996 (2) SACR 187 (C).
417 1996 (2) SACR 187 (C).
Footnote - 418
418 At 199e. The court found that the accused were not granted a reasonable opportunity or
sufficient time to obtain legal representation.
418 At 199e. The court found that the accused were not granted a reasonable opportunity or
sufficient time to obtain legal representation.
Footnote - 419
419 In S v Ngwenya1998 (2) SACR 503 (W) it was held — without reference to S v Mhlakaza supra
— that s 25(3)(e) of the interim Constitution did not require that an accused be advised of a right to
legal representation at the identification parade. The court also refused to follow the obiter dictum in
S v Mathebula1997 (1) SACR 10 (W) 19i-j.
419 In S v Ngwenya1998 (2) SACR 503 (W) it was held — without reference to S v Mhlakaza
supra — that s 25(3)(e) of the interim Constitution did not require that an accused be advised
of a right to legal representation at the identification parade. The court also refused to follow
the obiter dictum in S v Mathebula1997 (1) SACR 10 (W) 19i-j.
Footnote - 420
420 1998 (1) SACR 654 (W).
420 1998 (1) SACR 654 (W).
Footnote - 421
421 At 659e-f.
421 At 659e-f.
Footnote - 422
422 At 660d-e.
422 At 660d-e.
Footnote - 423
423 At 660g.
423 At 660g.
Footnote - 424
424 2002 (1) SACR 598 (T).
424 2002 (1) SACR 598 (T).
Footnote - 425
425 The "Wade-Gilbert" rule stems from two judgments delivered by the Supreme Court of the
USA on the same day: United States v Wade 388 US 218 (1967) and United States v Gilbert 388 US
263 (1967). The essence of the rule is that evidence of identification of an accused at a post-
indictment parade held in breach of the Sixth Amendment right to counsel, must be excluded.
425 The "Wade-Gilbert" rule stems from two judgments delivered by the Supreme Court of
the USA on the same day: United States v Wade 388 US 218 (1967) and United States v
Gilbert 388 US 263 (1967). The essence of the rule is that evidence of identification of an
accused at a post-indictment parade held in breach of the Sixth Amendment right to counsel,
must be excluded.
Footnote - 426
426 At 602f--603c. However, in an obiter dictum Bertelsmann J did note that there could be some
merit in the "Wade-Gilbert" rule (at 602G-H): "Met verwysing na die beslissing in US v Wade 288 US
218, waarop steun geplaas is vir die betoog dat regsverteenwoordiging tydens die parade
noodsaaklik is, moet in die eerste instansie daarop gewys word dat hierdie beslissing betrekking het
op 'n uitkenningsparade wat gehou is nadat die beskuldigde reeds formeel aangekla is. Dit is nie
volgens die afskrif van die uitspraak tot ons beskikking duidelik of hy op daardie stadium reeds
gepleit het al dan nie. Omstandighede verskil as die parade dan gehou word van dié wat tydens die
ondersoekfase van die saak heers voordat 'n beskuldigde formeel aangekla is: daarna is die
geskilpunte tussen Staat en verdediging deur die akte van beskuldiging en die pleit bepaal. 'n
Uitkenningsparade wat gehou word na die formele aanklag gestel is (en daarop gepleit is) kan
moontlik tot voordeel van die Staat strek sonder dat die beskuldigde die geleentheid gegun is om die
effek van die aldus verkreë getuienis by die oorweging van sy pleit of pleitverduideliking in
aanmerking te neem. Regsverteenwoordiging mag tydens 'n parade wat onder hierdie
omstandighede gehou word, wel noodsaaklik wees."
426 At 602f--603c. However, in an obiter dictum Bertelsmann J did note that there could be
some merit in the "Wade-Gilbert" rule (at 602G-H): "Met verwysing na die beslissing in US v
Wade 288 US 218, waarop steun geplaas is vir die betoog dat regsverteenwoordiging tydens
die parade noodsaaklik is, moet in die eerste instansie daarop gewys word dat hierdie
beslissing betrekking het op 'n uitkenningsparade wat gehou is nadat die beskuldigde reeds
formeel aangekla is. Dit is nie volgens die afskrif van die uitspraak tot ons beskikking duidelik
of hy op daardie stadium reeds gepleit het al dan nie. Omstandighede verskil as die parade dan
gehou word van dié wat tydens die ondersoekfase van die saak heers voordat 'n beskuldigde
formeel aangekla is: daarna is die geskilpunte tussen Staat en verdediging deur die akte van
beskuldiging en die pleit bepaal. 'n Uitkenningsparade wat gehou word na die formele aanklag
gestel is (en daarop gepleit is) kan moontlik tot voordeel van die Staat strek sonder dat die
beskuldigde die geleentheid gegun is om die effek van die aldus verkreë getuienis by die
oorweging van sy pleit of pleitverduideliking in aanmerking te neem. Regsverteenwoordiging
mag tydens 'n parade wat onder hierdie omstandighede gehou word, wel noodsaaklik wees."
Footnote - 427
427 At 603d-e. See also S v Monyane2001 (1) SACR 115 (T) 134i-135b. In R v Ross 1987 37 CRR
369 (SCC) it was held that an arrestee's right to legal representation, as contained in s 10(b) of the
Charter, included the right to legal representation at the parade, as well as the right to legal advice
prior to participation in such a parade. See further Van der Merwe in Du Toit et al Commentary 3-16.
427 At 603d-e. See also S v Monyane2001 (1) SACR 115 (T) 134i-135b. In R v Ross 1987 37
CRR 369 (SCC) it was held that an arrestee's right to legal representation, as contained in s
10(b) of the Charter, included the right to legal representation at the parade, as well as the
right to legal advice prior to participation in such a parade. See further Van der Merwe in Du
Toit et al Commentary 3-16.
Footnote - 428
428 At 604d.
428 At 604d.
Footnote - 429
429 At 604f.
429 At 604f.
Footnote - 430
430 At 604c.
430 At 604c.
Footnote - 431
431 At 604d.
431 At 604d.
Footnote - 432
432 At 604b-c.
432 At 604b-c.
Footnote - 433
433 See S v Bailey2007 (2) SACR 1 (C) at [27] and [28]. See also generally S v Tandwa2008 (1)
SACR 613 (SCA) at [129].
433 See S v Bailey2007 (2) SACR 1 (C) at [27] and [28]. See also generally S v Tandwa2008
(1) SACR 613 (SCA) at [129].
Footnote - 434
434 S v Hlalikaya1997 (1) SACR 613 (SE) 617d-g; S v Zwayi1997 (2) SACR 772 (Ck); and see
generally S v Monyane supra 134. For some critical comments on S v Hlalikaya supra, see Zeffertt
1997 ASSAL 718 729-30.
434 S v Hlalikaya1997 (1) SACR 613 (SE) 617d-g; S v Zwayi1997 (2) SACR 772 (Ck); and
see generally S v Monyane supra 134. For some critical comments on S v Hlalikaya supra, see
Zeffertt 1997 ASSAL 718 729-30.
Document 105 of 330
12.10 The Second Leg of the test in s 35(5): "If …

Admission … would otherwise be detrimental to the
administration of Justice"
The relationship and interaction between the above test and the first leg of the
test in s 35(5), were identified and discussed in § 12.8 above. The second leg of
the test is the final filter: if the admission of the unconstitutionally obtained
evidence would not render the trial unfair, such evidence must nevertheless still
be excluded if the court is satisfied that admission would be detrimental to the
administration of justice.
Cloete J has remarked in passing that the criterion of "bringing the
administration of justice into disrepute" as contained in s 24(2) of the Charter is
"perhaps a test with a higher threshold for exclusion than that contained in s
[35(5)] of the Constitution". 435 In S v Naidoo counsel for the defence argued
that the latter is less stringent than the former. 436 It seems, however, to be
inevitable that if a South African court were to conclude that admission of the
impugned evidence would bring the administration of justice into disrepute, 437
then it would also have to conclude that such admission would be detrimental to
the administration of justice as envisaged in the second leg of the test in s 35(5).
In S v Mphala Cloete J observed as follows with reference to the second leg of
the test in s 35(5): 438
"So far as the administration of justice is concerned, there must be a balance
between, on the one hand, respect (particularly by law enforcement agencies) for
the Bill of Rights and, on the other, respect (particularly by the man in the street)
for the judicial process. Overemphasis of the former would lead to acquittals on what
would be perceived by the public as technicalities, whilst overemphasis of the latter
would lead at best to a dilution of the Bill of Rights and at worst to its provisions
being negated."
The extremely high level of crime (and especially violent crime) in South Africa,
makes it an onerous task to attain, maintain and defend the balance referred to
by Cloete J above. Davis J has also made reference to the burden of the crime
wave and its impact on the need to achieve some balance between crime control
and due process. 439
3rd Ed, 2009 ch12-p249
It is submitted that the courts are — in their interpretation of the second (or
over-arching) test in s 35(5) — fully entitled to lean in favour of crime control.
For purposes of the second leg of the test in s 35(5), a wide variety of factors and
considerations must come into play. The need to protect constitutional rights and
due process, is one. But this need — albeit an ever important one — can never
preclude a court in the exercise of its discretion from taking into account that
society has a legitimate interest not only in the outcome of a criminal trial, but
also the reasons which led to the acquittal of the factually guilty. And whilst it is
probably true that public opinion is peripheral to determining whether admission
would render the trial unfair, 440 the same cannot be said for purposes of the
second leg of the test: public opinion — including public acceptance of a verdict
and support for the system — must go into the scale as a weighty factor. The
particularly high crime rate currently prevalent in South Africa — and of which
Ackermann J has taken judicial notice 441 — is something which is directly
relevant when a court is required to respond to the second leg of the test in s
35(5). Much can be said in favour of the approach adopted in S v Ngcobo. 442 In
this case Combrinck J, writing for a full bench, paid particular attention to the
current state of endemic crime in the country and the public's reaction to the
exclusion of unconstitutionally obtained but highly incriminating evidence. 443 It is
submitted that the approach adopted by Langenhoven in his doctoral thesis, is a
sound one: he argues strongly in defence of the Constitutional right to a fair trial
in the interpretation and application of s 35(5), but also argues that where
admission of the impugned evidence would not deprive the accused of this right,
the second leg of the test provides ample room for a court to take into account
that — despite the long-term values which the Constitution seeks to secure —
South Africa has reached a point where the level of serious crime has become
unacceptable to law-abiding citizens. 444
It should be stressed that Langenhoven's argument is not based on the idea
that a court is in the exercise of its discretion bound by predicted public reaction
to the
3rd Ed, 2009 ch12-p250
exclusion of unconstitutionally obtained evidence. The essence of his argument is

that the second leg of the test in s 35(5) of the Constitution creates a discretion
which is wide enough to accommodate prevailing public opinion as an important
factor. This approach, it is submitted, is not in conflict with the Constitutional
Court's pronouncements in S v Makwanyane. In this case — which dealt with the
constitutional validity of the death penalty — it was noted that whilst public
opinion did have some relevance, "it is no substitute for the duty vested in the
Courts to interpret the Constitution and to uphold its provisions without fear or
favour". 446 It is submitted that there is a vast difference between the role of
public opinion in determining the constitutional validity of a particular sentence
and the role of public opinion in exercising the discretion, established by the
Constitution, whether to exclude evidence on account of the fact that its
admission would be detrimental to the administration of justice.
Under the interim Constitution the courts, it seems, were at times extremely
cautious in referring to or relying on public opinion (see § 12.7.2.3 above). This is
understandable because they did not have the constitutional guidance and clear
discretion currently embodied in s 35(5) of the Constitution. Section 35(5)
requires that a balance must be struck. Overemphasis of the longer term
constitutional values may result in a fairly rigid exclusionary rule — a result which
the drafters of s 35(5) clearly wished to avoid. At the same time, however,
overemphasis of public opinion would result in a wide inclusionary approach — an
approach which is, for the reasons advanced in §§ 12.4.1–12.4.6 above,
incompatible with a constitutional due process system. And whilst it is certainly
true that an exclusionary rule seeks to promote social rather than individual
justice, 447 it is also true that a discretionary exclusionary rule — like the one in s
35(5) — requires a court to ensure that the exclusion of unconstitutionally
obtained evidence is, on the facts of each individual case, not detrimental to the
administration of justice. It is possible to identify factors or considerations (see
§§ 12.10.1–12.10.6 below) which the court should take into account in deciding
whether evidence should in terms of the second leg of the test
3rd Ed, 2009 ch12-p251
in s 35(5), be excluded. There appears to be a general trend to admit the

impugned evidence once the court is satisfied that its decision to admit will not
create a precedent which would encourage the police to procure evidence
unconstitutionally. 448 It should also be borne in mind that because of the
discretion in s 35(5), judicial integrity is not necessarily compromised by the
admission of unconstitutionally obtained evidence (see § 12.4.4 above).
12.10.1 The presence or absence of good faith (and reasonable)

police conduct
The extent to which the good faith of the police can or should play a role in the
exclusion of unconstitutionally obtained evidence, has received attention in
foreign jurisdictions like the United States of America (see § 12.5.1.2 above) and
Canada (see § 12.6.2 above). Is the good faith (or, for that matter, the bad faith)
of the police a factor which ought to be taken into account in responding to the
second leg of the test in s 35(5)? One of the purposes of exclusion is to
discourage unconstitutional police conduct. The exclusionary rule has a deterrent
and educative function which, in turn, has an ultimate preventive effect (see §
12.4.1 above).
However, of what value is the preventive function (deterrence rationale,
educative basis, disciplinary aim) of the exclusionary rule in a situation where the
police had acted in a good faith (and reasonable) belief that they were not in
breach of constitutional rights in procuring the evidence in the manner in which
they did? Can it really be said that the admission of evidence obtained in such a
situation would be "detrimental to the administration of justice"? It has been
said: 449
"The major argument in favour of [a good faith] exception to exclusionary sanctions
is that it would permit the use of evidence in those situations in which no significant
preventive function may be served by exclusion. Law enforcement officers who have
exercised reasonable care in ascertaining the law and in attempting to apply it to the
facts before them have arguably done all that the exclusionary sanctions can
reasonably demand. Exclusion of evidence because the officers, despite their efforts,
were incorrect in their conclusion that they were complying with the law would serve
no function. Adequate incentive for law enforcement officers to exert their best
efforts to comply with the law is created by excluding evidence in those cases where
the officers have neither acted properly nor exercised reasonable care in
determining whether the actions were within legal requirements … On the other
hand, it can be argued that excluding evidence obtained in what is ultimately
determined to be an impermissible fashion will further the preventive function of the
exclusionary sanctions, despite the officers' 'good faith' belief that their actions were
appropriate. Exclusion in such cases may create an incentive for officers to inform
themselves more adequately concerning legal requirements and their application.
Further, trial judges — especially those hostile to legal limitations on law
enforcement conduct — may too readily and uncritically find that officers who acted
improperly nevertheless had the 'good faith' belief necessary to render the
exclusionary sanction inapplicable. Law enforcement perception that the exception
will be often and uncritically found applicable may blunt whatever deterrent impact
the underlying exclusionary sanction can be expected to have … A 'good faith'
exception may also be inconsistent with purposes of exclusionary sanctions other
than that of deterrence. It may, for example, detract from the sanction's educative
effect. Further, the need to assure judicial integrity may argue against such an
exception."
3rd Ed, 2009 ch12-p252
In at least one South African case decided under the interim Constitution, it was
pointed out that an exclusionary rule which allows a "good faith" exception,
creates a risk of encouraging police officials to remain ignorant of their legal
duties and the constitutional rights of suspects, arrested persons and accused. 450
In several cases decided under s 35(5), the presence or absence of good faith on
the part of the police arose directly or indirectly.
In S v Naidoo the prosecution sought to rely on evidence of conversations
intercepted in terms of the Interception and Monitoring Prohibition Act. 452 It was
common cause that a judge properly designated in terms of this Act had — on the
basis of information as required in terms of the Act — given the necessary
permission for the interception of certain telephonic conversations. At the trial,
however, the court was satisfied that the police who had applied for the
necessary judicial permission to intercept and monitor the conversations, had
given false or misleading information to obtain such permission and that,
accordingly, there had been an infringement of the accused's constitutional right
to privacy. McCall J found that admission of the evidence of the intercepted
conversations would render the trial unfair. 453 Having reached this conclusion, it
was — strictly speaking — not necessary for McCall J to have dealt with the
question whether admission of the evidence would "otherwise be detrimental to
the interests of justice". However, he did decide this issue and remarked and
found as follows: 454
"Both the interim Constitution and the new Constitution affirm the Legislature's
commitment to the concept of protection of private communications against violation
or infringement. To countenance the violations in this case would leave the general
public with the impression that the courts are prepared to condone serious failures
by the police to observe the laid-down standards of investigation so long as a
conviction results … The robbery in question has been referred to as the biggest
robbery in the history of South Africa. There may be those members of the public
who will regard the exclusion of the evidence as being evidence of undue leniency
towards criminals. The answer to that is that the crime in this country cannot be
brought under control unless we have an efficient, honest, responsible and respected
police force, capable of enforcing the law. One of the mistakes which must be learnt
from the past is that illegal methods of investigation are unacceptable and can only
bring the administration of justice into disrepute, particularly when they impinge
upon the basic human rights which the Constitution seeks to protect … Having given
this matter anxious consideration I am satisfied that, taking all of the circumstances
to which I have referred into account, to admit the evidence of the telephonic
conversations would be detrimental to the administration of justice."
Naidoo is the text-book example of the principle that the "bad faith" conduct of
the police should weigh heavily in favour of the exclusion of unconstitutionally
obtained evidence: it is not in the interests of justice to permit the police to
deliberately flout those rules which govern their investigative powers and which
seek to
3rd Ed, 2009 ch12-p253
protect constitutional rights. Where the primary rules (in this instance the
provisions of the Interception and Monitoring Prohibition Act) are clear, the
secondary rule (in this instance the exclusionary rule contained in section 35(5))
ought to be invoked with vigour (see § 12.4.6 above).
It is clear that the "bad faith" conduct of the police in Naidoo played a major
role in the court's decision to exclude. This was not a case where the police had
made a reasonable mistake in their interpretation of the Interception and
Monitoring Prohibition Act. Nor was it a case where the police had inadvertently
failed to comply with a technical provision of this Act. Had there been such a
reasonable mistake or inadvertent technical error, the result might very well have
been different. In such circumstances exclusion would probably have been
detrimental to the administration of justice.
In S v Hena Plasket J, in excluding the impugned evidence, observed as follows
with reference to the bad faith and unreasonable conduct of the police:
"The conduct complained of — the abduction and assault of accused 1 to force him
to incriminate himself and lead his captors to other incriminating evidence — could
not conceivably have been committed in good faith. It must have been committed in
bad faith. Whether the police can be said to have had actual knowledge of the
unlawful methods used has not been established, but their abdication of
responsibility cannot have been in good faith either. Every policeman must be taken
to know that he or she has been clothed with statutory authority to investigate
crime, and that this function cannot be 'sub-contracted' to untrained civilians. To do
so could not be reasonable and, in my view, the police cannot distance themselves
from the consequence of doing so. These factors also operate against the admission
of the evidence. There is no indication of any public-safety concerns or urgency that
could have served as justification for the violations of rights." 455
S v Mphala is also a case where the presence of bad faith left the court no option
but to conclude that admission of the evidence would — quite apart from
rendering the trial unfair — also be detrimental to the administration of justice.
The salient facts of this case were set out in § 12.9.5 above. In considering
whether exclusion in terms of the second leg of the test was required, Cloete J
found as follows: 457
"When regard is had to the manner in which the confessions were obtained and the
consequence of their admission, the decision that has to be made on the facts of the
present matter appears to me to be obvious … The State would not have been in
possession of confessions which implicate the accused to the hilt and which, if
admitted, would probably be decisive of their guilt, but for the fact that the
Investigating Officer caused the confessions to be taken … (a) at a time when he
knew that the accused's attorney did not wish them to make any statement before
consulting with him … (b) without informing the accused of that fact and the fact
that their attorney was on his way; and (c) after he had misled their attorney as to
the time when the statements would be taken (obviously with a view to ensuring
that the statements would be made before the attorney arrived) … I cannot accept
that the conduct of the Investigating Officer was anything but intentional. In such a
case the emphasis falls on the 'detrimental to the administration of justice' portion
of s 35(5) and the disciplinary function of the Court … "
Solid support for the decision in Mphala can be found in several Canadian cases in
which it was held that where the police had deliberately violated a Charter right in
3rd Ed, 2009 ch12-p254
order to obtain incriminating evidence, the admission of such evidence would

tend to bring the administration of justice into disrepute. 458
In S v Madiba two policemen, D and M, had obtained real evidence (two
firearms) in the course of a search of premises which they had forcibly entered.
The court was satisfied that there had been a breach of the accused's
constitutional right to privacy. This breach, however, was carefully weighed in the
light of the specific circumstances of the case and the motive that D and M had
for acting in the manner in which they did. D and M were the only witnesses who
had testified at the trial within a trial concerning the admissibility of the evidence.
They were found credible witnesses. And in the course of his judgment Hurt J
paid much attention to the explanation that D and M gave for "their decision to
make the aggressive entry …" 460 (ie, kicking in the door unannounced and
entering the room armed). Noting that both the concept of fairness and the
concept of maintaining the standards of administration of justice have a reciprocal
nature about them, Hurt J held: 461
"[T]his Court does have a discretion which it must exercise within the precepts set
by section 35(5) … As I have already indicated, it seems to me that, but for the
nicety of knocking and requesting a right of entry, which was plainly disregarded,
the conduct of [D] and [M] complied with the provisions of section 41 of Act 75 of
1969, and if that is the case, I do not consider that the act of forcing entry into his
particular room was a sufficiently grave violation to warrant a ruling that the
evidence which they gained in the course of the search was inadmissible … Even if I
am wrong in that view, I come to the conclusion that, in the circumstances which
prevailed, and given that:
(1) the accused were suspected of a very serious crime involving the use of
firearms to kill a person;
(2) the information that [M] and [D] had at their disposal was that the accused
were in possession of firearms and likely to resist arrest;
(3) the surroundings, where the room in which the accused were, was situated,
were such that a 'shoot-out' might occur if more prosaic methods of arrest
and search were adopted by the police;
(4) on the evidence which the two policemen gave (which is the only evidence
before this Court in relation to this ruling), the interests of safety to the police,
the community and the accused themselves, warranted the form of entry and
demand which was decided upon;
the extent of the infringement of the right to privacy was such as to pale into
insignificance compared with the importance of achievement of the object which the
police had in the course of their duties."
Hurt J accordingly exercised his discretion in favour of admitting the evidence.
But he was at pains to point out that his decision should not in anyway be
interpreted as a "blanket authority" to law enforcement officers to resort to
"unorthodox methods" in criminal investigations. "[E]ach case" said Hurt J "will
ultimately have to be decided on its own facts". 462
It should be noted that in Madiba the officers only over-stepped the
constitutional line in so far as it was necessary to eliminate the personal and
public safety risks encountered by them (see § 12.10.2 below). This, no doubt, is
a redeeming factor.
3rd Ed, 2009 ch12-p255
And this, no doubt, is a clear indication of good faith and reasonable conduct. It is
submitted that Madiba is authority for the following basic proposition: the
exclusion of unconstitutionally obtained evidence — however necessary it might
be for purposes of promoting legality and enforcing constitutional rights — must
always be considered in the context of the realities that police officers face in the
execution of their duties. This proposition — which even the most ardent
supporters of constitutional due process should be able to swallow without
choking — has an inevitable sub-proposition: one of the realities of criminal
investigation is that police officers will — from time to time under pressing
circumstances and through no fault of their own — have to take snap decisions on
"constitutional issues" (without the advantage of having heard learned counsel!).
It is submitted that courts should, in their subsequent judicial assessment of the
conduct of the police officer, constantly bear in mind that the blunder of the
bobby on the beat was not necessarily a deliberate attempt to circumvent or side-
step constitutional rights.
There are situations where the court will have to exclude the evidence even
though the individual police officer concerned was bona fide. In S v Soci Erasmus
J — in applying s 35(5) — admitted the accused's confession to a magistrate, but
excluded the evidence of a pointing out by the accused in the presence of the
police: 464
"The failure of the police, especially Superintendent [G] to inform the accused
properly of his right to consult there and then with a legal practitioner violated a
fundamental right of the accused in relation to the very matter at hand, that is the
projected pointing out … This violation was not however mala fide or even conscious.
Superintendent [G] in fact did his best to treat the accused fairly by complying
conscientiously with departmental prescriptions, in accordance with a form supplied
for such purposes. The fault lies rather with the form apparently drafted by legal
advisors of the South African Police Service. There can be little excuse for the
oversight, as the lacuna in the form was the basis of the judgment in S v Marx … 465
The documents supplied for the use by police operating in the field should set out
the rights of arrested and detained persons fully in clear and simple language."
At first blush it might seem as if Erasmus J was rather harsh in his assessment of
the matter. But a moment's reflection on the practical and theoretical issues
involved, will show that he was not. Soci is a good example of a case where there
was a need to exclude on the basis of "systemic deterrence": 466 the good faith of
the individual police officers concerned becomes irrelevant when "the system" —
that is, the South African Police Service (hereafter "the SAPS") — has issued
directives which do not comply with or fall short of constitutional demands which
are clear or which, as in Soci, have been clarified by the High Court at an earlier
stage in a reported decision. Surely, in a situation where it is clear that an entity
like the SAPS has failed to respect (or has chosen to ignore) constitutional rights,
it would be detrimental to the administration of justice to admit the evidence on
account of
3rd Ed, 2009 ch12-p256

the "good faith" and reasonable conduct of the individual officer concerned. It is
the SAPS — and not the individual officer — that must be brought to heel.
It is submitted that all the above cases clearly indicate that the "good faith"
conduct of the police (or their "bad faith" conduct) will play an important role in
the interpretation of the second leg of the test in s 35(5). "Good faith" conduct
which is reasonable having regard to the specific circumstances of the case,
should in principle weigh heavily in favour of admission. This approach will not
create a situation where individual police officers or the SAPS would be
encouraged to be as ignorant as possible in order to have evidence admitted. But
"good faith" alone is not enough. "Good faith" must also be reasonable. And an
objective test must be applied. An exclusionary rule which ignores "good faith"
reasonable police conduct, will be out of line with the realities of our
constitutionalized criminal justice system. There are many situations where
criminal law practitioners and academics would, even after careful reflection, find
it very difficult to say — let alone predict what a court might find — what a police
officer could or should have done, given specific facts and having regard to
constitutional requirements and statutory rules governing police investigative
powers. If the courts in their interpretation and application of the second leg of
the test in s 35(5), were to ignore good faith and reasonable — even though
unconstitutional — conduct of a police officer, there would probably be very little
incentive for police officers in general to comply or attempt to comply with
constitutional requirements.
12.10.2 Public safety and urgency

S v Madiba — which is discussed in § 12.10.1 above — serves as authority that
public safety (including the safety of the police) and urgency are factors which
can favour admission of the unconstitutionally obtained evidence. 468 The
presence of these factors is frequently an indication of good faith on the part of
the police (see § 12.10.1 above). The fact that unconstitutional conduct was
resorted to in order to prevent the imminent destruction of valuable evidence,
should as a rule also militate against the exclusion of such evidence. 469
12.10.3 Nature and seriousness of the violation

In S v Mark it was noted that the infringement of a constitutional right can lie
somewhere on a scale ranging from the trivial, technical and inadvertent to the
gross, violent, deliberate and cruel. 471 A court may accordingly consider the
"nature and extent" 472 of the constitutional infringement: 473
3rd Ed, 2009 ch12-p257

"Getuienis verkry as gevolg van 'n bloot tegniese of onbenullige skending, sal meer
geredelik [toegelaat] word as getuienis verkry as gevolg van 'n growwe of ernstige
skending. Indien die getuienis verkry is as gevolg van 'n flagrante of growwe
skending terwyl die misdryf wat die beskuldigde gepleeg het gering is, sal uitsluiting
'n sterk moontlikheid wees."
A matter which is closely linked to the nature and seriousness of the violation, is
whether the unconstitutional conduct was the result of an ad hoc decision or
whether it was part of a settled or deliberate policy 474 to act with disregard for
constitutional rights. 475 In the latter instance the evidence should as a rule be
excluded. 476 Here, too, it is ultimately a matter of determining the presence or
absence of good faith on the part of the police (see § 12.10.1 above) and to
discipline the police where necessary.
12.10.4 The availability of lawful means or methods of securing

the evidence
In R v Collins Lamer J said: 477
"I should add that the availability of other investigatory techniques and the fact that
the evidence could have been obtained without the violation of the Charter tend to
render the Charter violation more serious. We are considering the actual conduct of
the authorities and the evidence must not be admitted on the basis that they could
have proceeded otherwise and obtained the evidence properly. In fact, their failure
to proceed properly when that option was open to them tends to indicate a blatant
disregard for the Charter, which is a factor supporting the exclusion of the
evidence."
In R v Feeney the majority of the Supreme Court of Canada confirmed this
approach and added that "[if] other techniques were indeed available, it is
demonstrative of bad faith and is particularly serious that the police chose to
violate the appellant's rights". 478 In South Africa the matter seems to turn on the
presence or absence of good faith and reasonable conduct (see § 12.10.1 above).
And the fact that alternative lawful means were available, is not necessarily
decisive in excluding the evidence: where the court makes a finding that on the
facts the police had acted in good faith and that their failure to follow prescribed
lawful procedures was "technical and inadvertent in nature … the administration
of justice would be brought into disrepute if this evidence were to be excluded".
479
In Canada it has been held that the non-availability of lawful methods is

neither an excuse nor a justification for constitutionally impermissible
investigative techniques; and in such an instance the Charter violation would be
more serious than it would be otherwise. 480
3rd Ed, 2009 ch12-p258
12.10.5 Real evidence

In S v Mkhize Willis J, writing for a unanimous full bench, followed the principle
established in R v Collins (see §§ 12.6.1 and 12.9.6 above) and confirmed in R v
Jacoy: 483 the admission of unconstitutionally obtained real evidence — as
opposed to unconstitutionally obtained testimonial communications — will rarely
render the trial unfair; 484 and the admissibility of such evidence should therefore
in principle be decided with reference to the second leg of the test. For this
purpose the court may take into account "whether the violation was in good faith,
and whether it was inadvertent or of a merely technical nature". 485 In Mkhize
Willis J also found that even if a search warrant had been applied for in terms of
the CPA "nothing that the appellant could lawfully have done would have
prevented the discovery of the pistol" 486 in the appellant's locker at his place of
employment. The court also found — perhaps rather generously — that the police
officer concerned had acted in good faith. The evidence was held admissible. 487
The statement in Mkhize to the effect that unconstitutionally obtained real
evidence will rarely render the trial unfair, must now be read subject to what the
Supreme Court of Appeal said in S v Tandwa, namely that the distinction between
testimonial communications and real evidence is misleading because "the
question should be whether the accused was compelled to provide the evidence."
488 At any rate, in Tandwa the unconstitutionally obtained real evidence (the
accused was assaulted) was not only excluded on account of fair trial
considerations, but also on the basis that admission thereof would have been
detrimental to the administration of justice (see § 12.9.7(c) above).
12.10.6 Inevitable discovery or discovery on the basis of an

independent source
It is submitted that for purposes of the second leg of the test in s 35(5), our
courts may take into account, where appropriate, that the "inevitable discovery"
of real evidence is a factor favouring admissibility: if the real evidence would —
but for the unconstitutional conduct — have been discovered by lawful means,
the exclusion of such evidence would generally be detrimental to the
3rd Ed, 2009 ch12-p259
administration of justice. 489 This approach is in line with the "inevitable

discovery" exception created by the Supreme Court of the USA 490 and the
approach of the Supreme Court of Canada as explained in R v Stillmann and R v
Feeney. 492
The rationale of the independent source doctrine as applied in the USA 493 and
Canada 494 should also play a role in determining whether admission of the
impugned evidence would be detrimental to the administration of justice.
Footnote - 435
435 S v Mphala1998 (1) SACR 654 (W) 659i-j.
435 S v Mphala1998 (1) SACR 654 (W) 659i-j.
Footnote - 436
436 S v Naidoo1998 (1) SACR 479 (N) 522g.
436 S v Naidoo1998 (1) SACR 479 (N) 522g.
Footnote - 437
437 On the meaning of "disrepute" in Canadian Law, see § 12.6.3 above. The reasonable person
test as applied by the Canadian court in R v Collins 1987 28 CRR 122 (SCC) in determining disrepute
provides a useful mechanism for incorporating public opinion whilst avoiding compromising judicial
integrity. In terms of this test the court is required to take into account the views of the reasonable
person, who is usually the average person in the community, "but only when the community's current
mood is reasonable" (at 136). However, the court in exercising its discretion must consider "long-
term community values" and "not render a decision that would be unacceptable to the community
when that community is not being wrought with passion or otherwise under passing stress due to
current events".
437 On the meaning of "disrepute" in Canadian Law, see § 12.6.3 above. The reasonable
person test as applied by the Canadian court in R v Collins 1987 28 CRR 122 (SCC) in
determining disrepute provides a useful mechanism for incorporating public opinion whilst
avoiding compromising judicial integrity. In terms of this test the court is required to take into
account the views of the reasonable person, who is usually the average person in the
community, "but only when the community's current mood is reasonable" (at 136). However,
the court in exercising its discretion must consider "long-term community values" and "not
render a decision that would be unacceptable to the community when that community is not
being wrought with passion or otherwise under passing stress due to current events".
Footnote - 438
438 Supra 657g-h. Emphasis added. This passage was cited with approval by the Supreme Court of
Appeal in S v Tandwa2008 (1) SACR 613 (SCA) at [118] and S v Pillay2004 (2) SACR 419 (SCA) at
447i-j.
438 Supra 657g-h. Emphasis added. This passage was cited with approval by the Supreme
Court of Appeal in S v Tandwa2008 (1) SACR 613 (SCA) at [118] and S v Pillay2004 (2) SACR
419 (SCA) at 447i-j.
Footnote - 439
439 S v Cloete1999 (2) SACR 137 (C) 150h. See S v Pillay supra 450i-451j.
439 S v Cloete1999 (2) SACR 137 (C) 150h. See S v Pillay supra 450i-451j.
Footnote - 440
440 S v Nombewu1996 (2) SACR 396 (E) 422h-i.
440 S v Nombewu1996 (2) SACR 396 (E) 422h-i.

Footnote - 441
441 Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) at [152]. See further §
27.5.8 below.
441 Ferreira v Levin NO; Vryenhoek v Powell NO1996 (1) SA 984 (CC) at [152]. See further §
27.5.8 below.
Footnote - 442
442 1998 10 BCLR 1248 (N). See also S v Shongwe1998 (2) SACR 321 (T).
442 1998 10 BCLR 1248 (N). See also S v Shongwe1998 (2) SACR 321 (T).
Footnote - 443
443 S v Ngcobo supra 1254E-J (emphasis added): "It is essential that society should have
confidence in the judicial system. Such confidence is eroded where Courts on the first intimation that
one of an accused's constitutional rights has been infringed excludes evidence which is otherwise
admissible. Such evidence is very often conclusive of the guilt of the accused. It is either admissions
or a confession made voluntarily and without undue influence wherein the accused implicates himself
in the commission of the offence or it is the discovery either by way of a search or a pointing-out of
objects such as the murder weapon or property of the victim which conclusively link the accused to
the crime. At the best of times but particularly in the current state of endemic violent crime in all
parts of our country it is unacceptable to the public that such evidence be excluded. Indeed the
reaction is one of shock, fury and outrage when a criminal is freed because of the exclusion of such
evidence. One need only postulate the facts of the present matter to illustrate the point. A
defenceless woman and three men are gunned down in cold blood in the sanctity of their home in the
middle of the day. The slain woman's personal belongings taken during the course of the robbery are
dug up by the appellant in a mealie field behind his parents' home the next night. Imagine the
reaction of the man or woman in the street if the appellant were acquitted because Captain Kweyama
failed to again warn the appellant of his right to silence and the consequences of his act of pointing-
out the stolen property. It has become noticeable in appeals and reviews from the lower courts which
have come before us that at the first intimation that an accused's constitutional rights have been
infringed the evidence tainted by such infringement is without further ado excluded. It is necessary
therefore to emphasise the discretion which rests in the presiding officer to decide whether the
evidence should be excluded. That discretion still remains as is apparent from the wording of section
35(5) of the final Constitution." See also S v Tandwa supra [121].
443 S v Ngcobo supra 1254E-J (emphasis added): "It is essential that society should have
confidence in the judicial system. Such confidence is eroded where Courts on the first
intimation that one of an accused's constitutional rights has been infringed excludes evidence
which is otherwise admissible. Such evidence is very often conclusive of the guilt of the
accused. It is either admissions or a confession made voluntarily and without undue influence
wherein the accused implicates himself in the commission of the offence or it is the discovery
either by way of a search or a pointing-out of objects such as the murder weapon or property
of the victim which conclusively link the accused to the crime. At the best of times but
particularly in the current state of endemic violent crime in all parts of our country it is
unacceptable to the public that such evidence be excluded. Indeed the reaction is one of shock,
fury and outrage when a criminal is freed because of the exclusion of such evidence. One need
only postulate the facts of the present matter to illustrate the point. A defenceless woman and
three men are gunned down in cold blood in the sanctity of their home in the middle of the
day. The slain woman's personal belongings taken during the course of the robbery are dug up
by the appellant in a mealie field behind his parents' home the next night. Imagine the reaction
of the man or woman in the street if the appellant were acquitted because Captain Kweyama
failed to again warn the appellant of his right to silence and the consequences of his act of
pointing-out the stolen property. It has become noticeable in appeals and reviews from the
lower courts which have come before us that at the first intimation that an accused's
constitutional rights have been infringed the evidence tainted by such infringement is without
further ado excluded. It is necessary therefore to emphasise the discretion which rests in the
presiding officer to decide whether the evidence should be excluded. That discretion still
remains as is apparent from the wording of section 35(5) of the final Constitution." See also S
v Tandwa supra [121].
Footnote - 444
444 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 355, 357. See also generally S v
Soci1998 (2) SACR 275 (E) 297f-g.
444 Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 355, 357. See also generally S
v Soci1998 (2) SACR 275 (E) 297f-g.
Footnote - 445
445 1995 (3) SA 391 (CC).
445 1995 (3) SA 391 (CC).
Footnote - 446
446 At [88]. In a dissenting judgment in S v Pillay2004 (2) SACR 419 (SCA) Scott JA said (at 448)
that in S v Makwanyana supra "Chaskalson P warned of the dangers of relying on public opinion. That
was in the context of the constitutionality of the death penalty. It seems to me, however, that the
very nature of the second leg of the inquiry postulated in s 35(5) of the Constitution contemplates a
reference to public opinion. It must, at the least, therefore constitute an important element of the
inquiry. In R v Collins (supra at 524 (DLR), 282 (SCR) and 135 (CRR)) the test adopted was that of
'the reasonable man, dispassionate and fully apprised of the circumstances of the case'. Although the
inquiry in Canada is somewhat different, ie whether the admission of the infringing evidence 'would
bring the administration of justice into disrepute', the test adopted strikes me as more apt than a
simple reference to public opinion, subject as it frequently is to 'the shifting winds of passion'. The
only refinement I would add is that the reference must be understood as not to an individual but to
the reasonable and dispassionate members of society."
446 At [88]. In a dissenting judgment in S v Pillay2004 (2) SACR 419 (SCA) Scott JA said (at
448) that in S v Makwanyana supra "Chaskalson P warned of the dangers of relying on public
opinion. That was in the context of the constitutionality of the death penalty. It seems to me,
however, that the very nature of the second leg of the inquiry postulated in s 35(5) of the
Constitution contemplates a reference to public opinion. It must, at the least, therefore
constitute an important element of the inquiry. In R v Collins (supra at 524 (DLR), 282 (SCR)
and 135 (CRR)) the test adopted was that of 'the reasonable man, dispassionate and fully
apprised of the circumstances of the case'. Although the inquiry in Canada is somewhat
different, ie whether the admission of the infringing evidence 'would bring the administration of
justice into disrepute', the test adopted strikes me as more apt than a simple reference to
public opinion, subject as it frequently is to 'the shifting winds of passion'. The only refinement
I would add is that the reference must be understood as not to an individual but to the
reasonable and dispassionate members of society."
Footnote - 447
447 Diamond "The State and the Accused: Balance of Advantage in Criminal Procedure" 1960 69
Yale LJ 1149 states (emphasis added): "The principal objective of criminal procedure, like that of
procedure generally, is to assure a just disposition of the dispute before the court. But because time,
resources and the ability to determine what is just are limited, a procedural system inevitably
represents a series of compromises. Justice to society is sometimes taken to require that a given case
be used not only to deal with the situation immediately before the court but also to serve a larger
public interest. In criminal cases, the accused may get relief, not so much out of concern for him or
for the 'truth', but because he is strategically located, and motivated, to call the attention of the
courts to excesses in the administration of criminal justice. The underlying premise is that of a social
utilitarianism. If the criminal goes free in order to serve a larger and more important end, then social
justice is done, even if individual justice is not. For example, if the police beat an offender in order to
extract a confession, the social interest is held to require that the confession be excluded from
evidence, even if amply corroborated. The same is true, in varying extents in the several states,
when evidence is illegally seized, or telephones 'tapped', or counsel denied …"
447 Diamond "The State and the Accused: Balance of Advantage in Criminal Procedure" 1960
69 Yale LJ 1149 states (emphasis added): "The principal objective of criminal procedure, like
that of procedure generally, is to assure a just disposition of the dispute before the court. But
because time, resources and the ability to determine what is just are limited, a procedural
system inevitably represents a series of compromises. Justice to society is sometimes taken to
require that a given case be used not only to deal with the situation immediately before the
court but also to serve a larger public interest. In criminal cases, the accused may get relief,
not so much out of concern for him or for the 'truth', but because he is strategically located,
and motivated, to call the attention of the courts to excesses in the administration of criminal
justice. The underlying premise is that of a social utilitarianism. If the criminal goes free in
order to serve a larger and more important end, then social justice is done, even if individual
justice is not. For example, if the police beat an offender in order to extract a confession, the
social interest is held to require that the confession be excluded from evidence, even if amply
corroborated. The same is true, in varying extents in the several states, when evidence is
illegally seized, or telephones 'tapped', or counsel denied …"
Footnote - 448
448 See, eg, S v Lottering 1999 12 BCLR 1478 (N) 1483H where Levinsohn J said: "I hasten to say
that each case must be decided on its own facts and the decision in this one must not be construed
as a licence to police officers to ignore or overlook the constitutional protection afforded to accused
persons." For a discussion of this case, see § 12.9.4 above. See also S v Mkhize1999 (2) SACR 632
(W) 638b-c.
448 See, eg, S v Lottering 1999 12 BCLR 1478 (N) 1483H where Levinsohn J said: "I hasten
to say that each case must be decided on its own facts and the decision in this one must not be
construed as a licence to police officers to ignore or overlook the constitutional protection
afforded to accused persons." For a discussion of this case, see § 12.9.4 above. See also S v
Mkhize1999 (2) SACR 632 (W) 638b-c.
Footnote - 449
449 Cleary (ed) McCormick on Evidence 3 ed (1984) 507. Emphasis added.
449 Cleary (ed) McCormick on Evidence 3 ed (1984) 507. Emphasis added.
Footnote - 450
450 See the decision by Farlam J in S v Motloutsi1996 (1) SACR 78 (C) 87i where he cited the
following passage from The People v Shaw 1928 IR 1 at 33-34: "To hold otherwise would be to hold
what to many people would be an absurd position, namely, that the less a police officer knew about
the Constitution and, indeed, of the law itself, the more likely he would be to have the evidence which
he obtained in breach of the law (and/or the Constitution) admitted in court." See, however, S v
Mkhize supra 637f.
450 See the decision by Farlam J in S v Motloutsi1996 (1) SACR 78 (C) 87i where he cited
the following passage from The People v Shaw 1928 IR 1 at 33-34: "To hold otherwise would
be to hold what to many people would be an absurd position, namely, that the less a police
officer knew about the Constitution and, indeed, of the law itself, the more likely he would be
to have the evidence which he obtained in breach of the law (and/or the Constitution) admitted
in court." See, however, S v Mkhize supra 637f.
Footnote - 451
451 1998 (1) SACR 479 (N).
451 1998 (1) SACR 479 (N).
Footnote - 452
452 Act 127 of 1992. See now the Regulation of Interception of Communications and Provision of
Communication-related Information Act 70 of 2002.
452 Act 127 of 1992. See now the Regulation of Interception of Communications and
Provision of Communication-related Information Act 70 of 2002.
Footnote - 453
453 S v Naidoo supra 527f. For a critical comment on this finding, see § 12.9.4 above.
453 S v Naidoo supra 527f. For a critical comment on this finding, see § 12.9.4 above.
Footnote - 454
454 At 530g. Emphasis added.
454 At 530g. Emphasis added.
Footnote - 455
455 2006 (2) SACR 33 (SE) at 42a-b.
455 2006 (2) SACR 33 (SE) at 42a-b.
Footnote - 456
456 1998 (1) SACR 388 (W).
456 1998 (1) SACR 388 (W).
Footnote - 457
457 At 399h-400b. Emphasis added.
457 At 399h-400b. Emphasis added.
Footnote - 458
458 See, eg, R v Duguay 1989 1 SCR 93.
458 See, eg, R v Duguay 1989 1 SCR 93.
Footnote - 459
459 1998 1 BCLR 38 (D). See also S v Mkhize1999 (2) SACR 632 (W).
459 1998 1 BCLR 38 (D). See also S v Mkhize1999 (2) SACR 632 (W).
Footnote - 460
460 At 41J.
460 At 41J.
Footnote - 461
461 At 441-45D.
461 At 441-45D.
Footnote - 462
462 At 45E.
462 At 45E.
Footnote - 463
463 1998 (2) SACR 275 (E). See also § 12.9.4 above for a discussion of this case.
463 1998 (2) SACR 275 (E). See also § 12.9.4 above for a discussion of this case.
Footnote - 464
464 At 296g-296b-g.
464 At 296g-296b-g.
Footnote - 465
465 1996 (2) SACR 140 (W). See also §§ 12.7.2.1 and 12.9.5 above.
465 1996 (2) SACR 140 (W). See also §§ 12.7.2.1 and 12.9.5 above.
Footnote - 466
466 This term is used by Kamisar "'Comparative Reprehensibility' and the Fourth Amendment
Exclusionary Rule" 1987 86 Michigan LR 1 34 n 147.
466 This term is used by Kamisar "'Comparative Reprehensibility' and the Fourth Amendment
Exclusionary Rule" 1987 86 Michigan LR 1 34 n 147.
Footnote - 467
467 1998 1 BCLR 38 (D).
467 1998 1 BCLR 38 (D).
Footnote - 468
468 See, eg, S v Lottering 1999 12 BCLR 1478 (N) as discussed in § 12.9.4 above. See also New
York v Quarles 467 US 649 (1984) as discussed in §§ 12.5.2.2 and 12.9.4 above.
468 See, eg, S v Lottering 1999 12 BCLR 1478 (N) as discussed in § 12.9.4 above. See also
New York v Quarles 467 US 649 (1984) as discussed in §§ 12.5.2.2 and 12.9.4 above.
Footnote - 469
469 This would in terms of Irish law qualify as an "extraordinary excusing circumstance". See
generally The People (Attorney General) v O'Brien 1965 IR 142 and S v Mark2001 (1) SACR 572 (C)
578e.
469 This would in terms of Irish law qualify as an "extraordinary excusing circumstance". See
generally The People (Attorney General) v O'Brien 1965 IR 142 and S v Mark2001 (1) SACR
572 (C) 578e.
Footnote - 470
470 S v Mark supra 578a.
470 S v Mark supra 578a.
Footnote - 471
471 In R v Collins 1987 28 CRR 122 (SCC) it was held that for purposes of determining whether
admission of the evidence would bring the administration of justice into disrepute, a court should ask
— and respond to — the following question: "Was the Charter violation serious or was it of a merely
technical nature?"
471 In R v Collins 1987 28 CRR 122 (SCC) it was held that for purposes of determining
whether admission of the evidence would bring the administration of justice into disrepute, a
court should ask — and respond to — the following question: "Was the Charter violation serious
or was it of a merely technical nature?"
Footnote - 472
472 S v Mark supra 578c-d. See also S v Tandwa2008 (1) SACR 613 (SCA) at [117] and [128] and
S v Mthembu2008 (2) SACR 407 (SCA).
472 S v Mark supra 578c-d. See also S v Tandwa2008 (1) SACR 613 (SCA) at [117] and
[128] and S v Mthembu2008 (2) SACR 407 (SCA).
Footnote - 473
473 Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 362-3.
473 Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 362-3.
Footnote - 474
474 See, eg, S v Seseane2000 (2) SACR 225 (O) as well as the approach adopted by Mpati DP and
Motata AJA in S v Pillay2004 (2) SACR 419 (SCA) at [95].
474 See, eg, S v Seseane2000 (2) SACR 225 (O) as well as the approach adopted by Mpati
DP and Motata AJA in S v Pillay2004 (2) SACR 419 (SCA) at [95].
Footnote - 475
475 See generally S v Mark supra 578d.
475 See generally S v Mark supra 578d.
Footnote - 476
476 S v Seseane supra.
476 S v Seseane supra.
Footnote - 477
477 Supra 138. In S v Hena2006 (2) SACR 33 (SE) at 42f-g Plasket J, in excluding the impugned
evidence, attached much weight to the fact that the police had not made use of available lawful
means.
477 Supra 138. In S v Hena2006 (2) SACR 33 (SE) at 42f-g Plasket J, in excluding the
impugned evidence, attached much weight to the fact that the police had not made use of
available lawful means.
Footnote - 478
478 1997 44 CRR 2d 1 (SCC) 37.
478 1997 44 CRR 2d 1 (SCC) 37.
Footnote - 479
479 S v Mkhize1999 (2) SACR 632 (W) 638e. See also the remarks made by Scott JA in S v
Pillay2004 (2) SACR 419 (SCA) at 448e.
479 S v Mkhize1999 (2) SACR 632 (W) 638e. See also the remarks made by Scott JA in S v
Pillay2004 (2) SACR 419 (SCA) at 448e.
Footnote - 480
480 R v Kokesch 1990 50 CRR 285 (SCC).
480 R v Kokesch 1990 50 CRR 285 (SCC).
Footnote - 481
481 Supra 637g-h.
481 Supra 637g-h.
Footnote - 482
482 1987 28 CRR 122 (SCC) at 137.
482 1987 28 CRR 122 (SCC) at 137.
Footnote - 483
483 1988 38 CRR 290 (SCC) at 298.
483 1988 38 CRR 290 (SCC) at 298.
Footnote - 484
484 See also generally S v M2002 (2) SACR 411 (SCA) and S v Pillay2004 (2) SACR 419 (SCA) at
450f.
484 See also generally S v M2002 (2) SACR 411 (SCA) and S v Pillay2004 (2) SACR 419
(SCA) at 450f.
Footnote - 485
485 S v Mkhize supra 637h.
485 S v Mkhize supra 637h.
Footnote - 486
486 Supra 637i.
486 Supra 637i.
Footnote - 487
487 At 638b-e Willis J held (emphasis added): "It would, in my view, make a mockery of our law of
criminal procedure to hold that evidence stumbled upon on the search for evidence in another case
would, for this reason, be held to be inadmissible against the present appellant. Moreover, I cannot
believe that admitting the evidence of the pistol's discovery in this case can be interpreted as giving
the police carte blanche to raid the homes of the innocent at whim or upon fancy, capriciously or
arbitrarily … In my view, the admission of this evidence would not render the trial of the appellant
unfair or otherwise be detrimental to the administration of justice … Regardless of whether a trial
court has a true or narrow discretion to admit evidence in violation of the Bill of Rights in our
Constitution and regardless of which test is to be applied as to the circumstances under which a Court
of appeal may interfere in the decision of the court a quo to admit such evidence, I am satisfied that
Nugent J correctly decided that, even if the discovery of the pistol was made and the evidence in
respect thereof obtained in circumstances which were not covered by s 22(b) of the [CPA] the
evidence should be admitted. It is real evidence. Furthermore, Superintendent Lang acted in good
faith, in that, if it be accepted that he failed to comply with the provisions of the Act relating to a
search, such failure was inadvertent and technical in nature. In my view, the administration of justice
would be brought into disrepute if this evidence were to be excluded."
487 At 638b-e Willis J held (emphasis added): "It would, in my view, make a mockery of our
law of criminal procedure to hold that evidence stumbled upon on the search for evidence in
another case would, for this reason, be held to be inadmissible against the present appellant.
Moreover, I cannot believe that admitting the evidence of the pistol's discovery in this case can
be interpreted as giving the police carte blanche to raid the homes of the innocent at whim or
upon fancy, capriciously or arbitrarily … In my view, the admission of this evidence would not
render the trial of the appellant unfair or otherwise be detrimental to the administration of
justice … Regardless of whether a trial court has a true or narrow discretion to admit evidence
in violation of the Bill of Rights in our Constitution and regardless of which test is to be applied
as to the circumstances under which a Court of appeal may interfere in the decision of the
court a quo to admit such evidence, I am satisfied that Nugent J correctly decided that, even if
the discovery of the pistol was made and the evidence in respect thereof obtained in
circumstances which were not covered by s 22(b) of the [CPA] the evidence should be
admitted. It is real evidence. Furthermore, Superintendent Lang acted in good faith, in that, if
it be accepted that he failed to comply with the provisions of the Act relating to a search, such
failure was inadvertent and technical in nature. In my view, the administration of justice would
be brought into disrepute if this evidence were to be excluded."
Footnote - 488
488 2008 (1) SACR 613 (SCA) at [125].
488 2008 (1) SACR 613 (SCA) at [125].
Footnote - 489
489 This seems to have been part of the reasoning of the full bench in S v Mkhize supra 637j-638a.
489 This seems to have been part of the reasoning of the full bench in S v Mkhize supra
637j-638a.
Footnote - 490
490 See § 12.5.2.4 above. See also generally the remarks made by Cachalia JA in S v
Mthembu2008 (2) SACR 407 (SCA) at [33]. See further the discussion of S v Pillay2004 (2) SACR 419
(SCA) by Naudé 2008 SACJ 168.
490 See § 12.5.2.4 above. See also generally the remarks made by Cachalia JA in S v
Mthembu2008 (2) SACR 407 (SCA) at [33]. See further the discussion of S v Pillay2004 (2)
SACR 419 (SCA) by Naudé 2008 SACJ 168.
Footnote - 491
491 1997 42 CRR 2d 189 (SCC) 228-229 and R v Black 1989 47 CRR 171 (SCC). See further n 414
above. Sopinka, Lederman & Bryant The Law of Evidence in Canada 440 state that "Stillman
extended the principle of discoverability to all evidence classified as conscriptive. Apparently, the
extension of the discoverability principle to conscriptive, derivative evidence was designed to meet
the criticism that automatically excluding all evidence was perceived as over-compensating or being
too generous to the rights of the accused."
491 1997 42 CRR 2d 189 (SCC) 228-229 and R v Black 1989 47 CRR 171 (SCC). See further
n 414 above. Sopinka, Lederman & Bryant The Law of Evidence in Canada 440 state that
"Stillman extended the principle of discoverability to all evidence classified as conscriptive.
Apparently, the extension of the discoverability principle to conscriptive, derivative evidence
was designed to meet the criticism that automatically excluding all evidence was perceived as
over-compensating or being too generous to the rights of the accused."
Footnote - 492
492 1997 44 CRR 2d 1 (SCC).
492 1997 44 CRR 2d 1 (SCC).
Footnote - 493
493 See § 12.5.1.3 above. See generally S v Mthembu supra at [33].
493 See § 12.5.1.3 above. See generally S v Mthembu supra at [33].
Footnote - 494
494 See § 12.6.1 above.
494 See § 12.6.1 above.
Document 106 of 330
12.11 Section 35(5) and Procedural Matters

12.11.1 The trial within a trial 495
A trial within a trial should as a rule be held where the defence objects to the
admissibility of evidence on the basis of s 35(5). 496 The reason for this procedure
is to ensure that an accused can testify on the issue concerning the admissibility
of the impugned evidence without exposing himself to cross-examination on guilt
497 and an accused is — for purposes of exercising his right to testify or not at the
end of the state's case in the main trial — entitled to know what evidence has
been admitted as part of the state's case against him. 498
A trial within a trial is unnecessary where the parties agree that the facts are
common cause or almost wholly common cause 499 or where the court is satisfied
that the objection raised by the defence affects the weight and not the
admissibility of the evidence. 500 The court must in each case decide whether the
challenge is directed at the weight or the admissibility of the evidence. 501
3rd Ed, 2009 ch12-p260
12.11.2 The burden of proof: incidence and standard

There is a great deal of confusion concerning the burden of proof and the
application of s 35(5). 502 In S v Naidoo McCall J, relying on some cases decided
under the interim Constitution, 504 expressed the opinion that "the defence bore
the burden of proving, on a preponderance of probabilities, the existence of the
constitutional right on which the accused relied and its infringement". 505 In S v
Gumede Magid J accepted that "the party seeking to exclude the evidence …
bears the onus of establishing that the admission of the disputed evidence 'would
render the trial unfair or otherwise be detrimental to the administration of
justice"'. 506 However, in S v Soci Erasmus J referred to S v Nombewu, 508 his
own earlier decision under the interim Constitution, where he had said that "the
rules of law relating to burden of proof do not apply, either for the final decision
on the question, or for proof of the individual facts which bear on that decision."
509 In Soci he concluded that "there is no onus on the State to disprove the fact
of an alleged violation of an accused's rights under the Constitution". 510
It is impossible to reconcile the above viewpoints. It is submitted that an
alternative approach is possible. First, the defence must allege — but need not
prove 511 — that there has been an infringement of a constitutional right of the
accused and that s 35(5) calls for exclusion. Second, in the course of the trial
within a trial (see § 12.11.1 above) the distinction between "purely factual
matters [as opposed to] matters of judgment and value" 512 must be borne in
mind. The accused must get the benefit of the doubt on factual matters which the
state fails to prove beyond a reasonable doubt. For example, where the defence
alleges that
3rd Ed, 2009 ch12-p261
the accused never consented to the warrantless search of his property (or was
not given the required constitutional warnings upon arrest), the prosecution will
have to prove the presence of consent (or the fact that the warnings were given)
if that is part of its case. 513Third, once the necessary factual findings have been
made and it is concluded that the evidence was indeed obtained in breach of
constitutional rights, the court is required to exercise its discretion and make a
value judgment on the question whether admission of the evidence would result
in one of the consequences identified in s 35(5). And there can be no question of
an onus in respect of this decision; 514 nor should there be a presumption in
favour of or against the admission of the evidence. 515
Footnote - 495
495 On the role of assessors, see S v Naidoo1998 (1) SACR 479 (N) 486a-487c and compare S v
Mayekiso1996 (2) SACR 298 (C) 203i-j. As far as admissions and confessions are concerned, see
respectively §§ 16.7.4 and 17.6 below.
495 On the role of assessors, see S v Naidoo1998 (1) SACR 479 (N) 486a-487c and compare
S v Mayekiso1996 (2) SACR 298 (C) 203i-j. As far as admissions and confessions are
concerned, see respectively §§ 16.7.4 and 17.6 below.
Footnote - 496
496 Director of Public Prosecutions, Transvaal v Viljoen2005 (1) SACR 505 (SCA). This case
overruled S v Viljoen 2003 4 BCLR 450 (T). See generally S v Ngcobo 1998 10 BCLR 1248 (N)
1255A; S v Mhlakaza1996 (2) SACR 187 (C); S v Mayekiso1996 (2) SACR 298 (C); S v Ntzweli2001
(2) SACR 361 (C). In S v Hlalikaya1997 (1) SACR 613 (SE) a trial within a trial was held to
determine the admissibility of evidence obtained at a photo identification parade.
496 Director of Public Prosecutions, Transvaal v Viljoen2005 (1) SACR 505 (SCA). This case
overruled S v Viljoen 2003 4 BCLR 450 (T). See generally S v Ngcobo 1998 10 BCLR 1248 (N)
1255A; S v Mhlakaza1996 (2) SACR 187 (C); S v Mayekiso1996 (2) SACR 298 (C); S v
Ntzweli2001 (2) SACR 361 (C). In S v Hlalikaya1997 (1) SACR 613 (SE) a trial within a trial
was held to determine the admissibility of evidence obtained at a photo identification parade.
Footnote - 497
497 S v Ntzweli supra 364f.
497 S v Ntzweli supra 364f.
Footnote - 498
498 See generally S v Monyane2001 (1) SACR 115 (T). In this case the court also noted the
conflict between S v Vilakazi1996 (1) SACR 425 (T) and S v Mhalakaza supra.
498 See generally S v Monyane2001 (1) SACR 115 (T). In this case the court also noted the
conflict between S v Vilakazi1996 (1) SACR 425 (T) and S v Mhalakaza supra.
Footnote - 499
499 S v Kidson1999 (1) SACR 338 (W) 340e-f. See also S v Hena 2006 2 SACR (SE) at 39d-e. In
this case the parties had also agreed to dispense with a trial within a trial.
499 S v Kidson1999 (1) SACR 338 (W) 340e-f. See also S v Hena 2006 2 SACR (SE) at 39d-e.
In this case the parties had also agreed to dispense with a trial within a trial.
Footnote - 500
500 S v Vilakazi supra; S v Mokoena1998 (2) SACR 642 (W); S v Mphala1998 (1) SACR 654 (W).
500 S v Vilakazi supra; S v Mokoena1998 (2) SACR 642 (W); S v Mphala1998 (1) SACR 654
(W).
Footnote - 501
501 S v Bailey2007 (2) SACR 1 (C) at [39].
501 S v Bailey2007 (2) SACR 1 (C) at [39].
Footnote - 502
502 For an extensive and critical discussion, see Schwikkard Presumption of Innocence (1999) 56-
61.
502 For an extensive and critical discussion, see Schwikkard Presumption of Innocence
(1999) 56-61.
Footnote - 503
503 1998 (1) SACR 479 (N).
503 1998 (1) SACR 479 (N).
Footnote - 504
504 S v Sebejan1997 (1) SACR 626 (W) 628e; S v Mathebula1997 (1) SACR 10 (W) 16i-j. See also
generally S v Hlalikaya1997 (1) SACR 613 (SE) 615c. In S v Vilakazi1996 (1) SACR 425 (T) 428c the
matter was mentioned but not decided.
504 S v Sebejan1997 (1) SACR 626 (W) 628e; S v Mathebula1997 (1) SACR 10 (W) 16i-j.
See also generally S v Hlalikaya1997 (1) SACR 613 (SE) 615c. In S v Vilakazi1996 (1) SACR
425 (T) 428c the matter was mentioned but not decided.
Footnote - 505
505 S v Naidoo supra 523a. At 523b McCall J further said that "it may well be that during the
course of a trial-within-a-trial the onus on the different issues will tend to shift back and forth
between the accused and the State". Schwikkard Presumption of Innocence 61-2 n 100 points out
that by making this statement McCall J fails to distinguish between the evidential burden that can
shift and the burden of proof which remains fixed. See also § 31.2 below. The position in Canadian
law, which seems to have influenced McCall J, is set out by Sopinka, Lederman & Bryant The Law of
Evidence in Canada 420.
505 S v Naidoo supra 523a. At 523b McCall J further said that "it may well be that during the
course of a trial-within-a-trial the onus on the different issues will tend to shift back and forth
between the accused and the State". Schwikkard Presumption of Innocence 61-2 n 100 points
out that by making this statement McCall J fails to distinguish between the evidential burden
that can shift and the burden of proof which remains fixed. See also § 31.2 below. The position
in Canadian law, which seems to have influenced McCall J, is set out by Sopinka, Lederman &
Bryant The Law of Evidence in Canada 420.
Footnote - 506
506 1998 5 BCLR 530 (D). See also 538I. Gumede was followed in S v Lottering 1999 12 BCLR
1478 (N).
506 1998 5 BCLR 530 (D). See also 538I. Gumede was followed in S v Lottering 1999 12
BCLR 1478 (N).
Footnote - 507
507 1998 (2) SACR 275 (E) 288j-289a.
507 1998 (2) SACR 275 (E) 288j-289a.
Footnote - 508
508 1996 (2) SACR 396 (E).
508 1996 (2) SACR 396 (E).
Footnote - 509
509 S v Nombewu supra 420f-g.
509 S v Nombewu supra 420f-g.
Footnote - 510
510 S v Soci supra 289d. This statement is correct in so far as it will always be open to the state to
argue that even if the evidence were obtained unconstitutionally, its admission will not have the
consequences identified in s 35(5).
510 S v Soci supra 289d. This statement is correct in so far as it will always be open to the
state to argue that even if the evidence were obtained unconstitutionally, its admission will not
have the consequences identified in s 35(5).
Footnote - 511
511 See the full bench decision (per Du Plessis J, Basson and Preller JJ concurring) in S v
Mgcina2007 (1) SACR 82 (T) at 95a-i and S v Brown1996 (2) SACR 49 (NC) at 73b. It is submitted
that the accused is not an applicant seeking a remedy. If he relies on s 35(5) he is — unless the
contrary is indicated — also not seeking to have a law declared constitutionally invalid. The
principles established in, eg, Ferreira v Levin NO; Vryenhoek v Powell NO 1996 SA 984 (CC) at [44]
are not applicable to an objection to the admissibility of evidence. See S v Mgcina supra at 95b-d
where it was held that the well established two-stage approach that is applied where the
constitutionality of a statute or common-law rule is attacked, does not apply to the situation now
under discussion.
511 See the full bench decision (per Du Plessis J, Basson and Preller JJ concurring) in S v
Mgcina2007 (1) SACR 82 (T) at 95a-i and S v Brown1996 (2) SACR 49 (NC) at 73b. It is
submitted that the accused is not an applicant seeking a remedy. If he relies on s 35(5) he is
— unless the contrary is indicated — also not seeking to have a law declared constitutionally
invalid. The principles established in, eg, Ferreira v Levin NO; Vryenhoek v Powell NO 1996 SA
984 (CC) at [44] are not applicable to an objection to the admissibility of evidence. See S v
Mgcina supra at 95b-d where it was held that the well established two-stage approach that is
applied where the constitutionality of a statute or common-law rule is attacked, does not apply
to the situation now under discussion.
Footnote - 512
512 See generally Mirfield Silence, Confessions and Improperly Obtained Evidence (1997) 47. See
also the use of the words "value judgment" by Bozalek J in S v De Vries (unreported CPD decision,
case no 67/05, 11 June 2008) at [7]. He nevertheless accepted, without deciding, that the state has
to prove that the trial would not be unfair or otherwise detrimental to the administration of justice.
512 See generally Mirfield Silence, Confessions and Improperly Obtained Evidence (1997) 47.
See also the use of the words "value judgment" by Bozalek J in S v De Vries (unreported CPD
decision, case no 67/05, 11 June 2008) at [7]. He nevertheless accepted, without deciding,
that the state has to prove that the trial would not be unfair or otherwise detrimental to the
administration of justice.
Footnote - 513
513 S v Mgcina supra 95g-i and S v Brown supra 73b. This does not mean that in every instance
the state is required to disprove any breach of every conceivable constitutional right. It is only
where the defence raises the matter that the state would have to prove the contrary beyond
reasonable doubt. See S v Mgcina supra at 95j-96a. See generally S v Mayekiso1996 (2) SACR 298
(C) 305d, which was decided under the interim Constitution.
513 S v Mgcina supra 95g-i and S v Brown supra 73b. This does not mean that in every
instance the state is required to disprove any breach of every conceivable constitutional right.
It is only where the defence raises the matter that the state would have to prove the contrary
beyond reasonable doubt. See S v Mgcina supra at 95j-96a. See generally S v Mayekiso1996
(2) SACR 298 (C) 305d, which was decided under the interim Constitution.
Footnote - 514
514 S v Nombewu supra 420f-g; S v Soci supra 289d. However, compare R v Collins 1987 28 CRR
122 (SCC) 134 where it was held that "the applicant must make it more probable than not that the
admission of the evidence would bring the administration of justice into disrepute" as provided for in
s 24(2) of the Charter. Stuart Charter Justice in Canadian Criminal Law 2 ed (1996) 485 makes the
following valid observations: "It is unfortunate that the word 'established' in s 24(2) has led the
Supreme Court to conclude that there is some burden of proof on the accused. The language of
burdens of proof is more appropriate to matters of establishing facts rather than to an issue of
whether evidence should be excluded. One never speaks, for example, of the burden of proving that
evidence was inadmissible hearsay. As a practical matter many of the issues under s 24(2) such as
issues of the seriousness of the offence and the seriousness of the violation are questions of value to
be assessed by the court rather than proved."
514 S v Nombewu supra 420f-g; S v Soci supra 289d. However, compare R v Collins 1987 28
CRR 122 (SCC) 134 where it was held that "the applicant must make it more probable than not
that the admission of the evidence would bring the administration of justice into disrepute" as
provided for in s 24(2) of the Charter. Stuart Charter Justice in Canadian Criminal Law 2 ed
(1996) 485 makes the following valid observations: "It is unfortunate that the word
'established' in s 24(2) has led the Supreme Court to conclude that there is some burden of
proof on the accused. The language of burdens of proof is more appropriate to matters of
establishing facts rather than to an issue of whether evidence should be excluded. One never
speaks, for example, of the burden of proving that evidence was inadmissible hearsay. As a
practical matter many of the issues under s 24(2) such as issues of the seriousness of the
offence and the seriousness of the violation are questions of value to be assessed by the court
rather than proved."
Footnote - 515
515 See generally S v Hammer1994 (2) SACR 496 (C) 499d-e. A ruling on admissibility in a trial
within a trial is also interlocutory and may be reviewed at the end of the trial in the light of later
evidence. See S v Tsotetsi (3)2003 (2) SACR 648 (W) as read with S v Tsotetsi (1)2003 (2) SACR
623 (W). It should also be noted that a trial is not automatically rendered unfair by the fact that the
nature of the impugned evidence becomes known to the court during s 35(5) proceedings. See S v
Maputle2003 (2) SACR 15 (SCA) at [11].
515 See generally S v Hammer1994 (2) SACR 496 (C) 499d-e. A ruling on admissibility in a
trial within a trial is also interlocutory and may be reviewed at the end of the trial in the light of
later evidence. See S v Tsotetsi (3)2003 (2) SACR 648 (W) as read with S v Tsotetsi (1)2003
(2) SACR 623 (W). It should also be noted that a trial is not automatically rendered unfair by
the fact that the nature of the impugned evidence becomes known to the court during s 35(5)
proceedings. See S v Maputle2003 (2) SACR 15 (SCA) at [11].
Document 107 of 330
12.12 Evidence Procured by means of Entrapment (S

252A of the CPA and s 35(5) of the Constitution)
A trap is neither an accomplice 516 nor an informer, 517 but "a person who, with a
view to securing the conviction of another, proposes certain criminal conduct to
him, and himself ostensibly takes part therein … [H]e creates the occasion for
someone else to commit the offence". 518 Entrapment is a "proactive investigative
technique." 519 There are various forms of entrapment. 520 It is generally
considered a controversial form of procuring evidence, 521 even though it must be
conceded that there are situations where entrapment or engagement in
undercover operations is the only effective means of detecting and investigating
the
3rd Ed, 2009 ch12-p262
commission of an offence. 522 There is, however, always the risk that an
otherwise innocent person might have been induced to commit the crime on
account of the persuasive conduct of, or methods employed by, the trap.
In terms of common-law principles entrapment is no defence. 523 And rules of
exclusion in respect of entrapment evidence, do not apply. 524 The court,
however, must assess the evidence of a trap with caution (see § 30.11.1 below);
and in the event of a conviction, entrapment may, where appropriate, serve as a
mitigating factor in imposing sentence. 525
Under the interim Constitution it was accepted that entrapment could not be a
substantive defence. 526 The courts also had to receive evidence of entrapment
(in the sense that there was no evidentiary rule of exclusion). 527 But most courts
held that in their evaluation of the evidence, they were required to consider
whether the police procedures had been so fundamentally unfair that the accused
was deprived of his constitutional right to a fair trial in terms of s 25(3) of the
interim Constitution. 528
Section 252A of the CPA was inserted by s 1 of the Criminal Procedure Second
Amendment Act 529 and came into operation on 29 November 1996. 530 Section
252A 531 — which is contained in Appendix D to this work — regulates the setting
of traps and the engaging in undercover operations. 532 No substantive defence of
entrapment was created by this section. However, following the general
recommendations made by the South African Law Commission, 533 the legislature
opted for a qualified rule of exclusion. Section 252A(3)(a) — which must be read
with s 252A(1) 534 and 252A(2) 535 — provides as follows: 536
3rd Ed, 2009 ch12-p263

"If a court in any criminal proceedings finds that in the setting of a trap or the
engaging in an undercover operation the conduct goes beyond providing an
opportunity to commit an offence, the court may refuse to allow such evidence to be
tendered or may refuse to allow such evidence already tendered, to stand, if the
evidence was obtained in an improper or unfair manner and that the admission of
such evidence would render the trial unfair or would otherwise be detrimental to the
administration of justice."
Section 252A(3)(b) stipulates that the court — when considering the admissibility
of the evidence — "shall weigh up the public interest against the personal interest
of the accused". The same section also requires the court to have regard to
several factors, if applicable. These factors are set out in s 252A(3)(b)(i) to
252A(3)(b)(vi). Section 252A(3)(b)(iii) provides that one of the factors the court
is required to consider, is "the nature and seriousness of any infringement of any
fundamental right contained in the Constitution."
Section 252A(6) provides that if the question is raised whether entrapment
evidence should in terms of s 252A(3)(a) be excluded,
"the burden of proof to show, on a balance of probabilities, that the evidence is
admissible, shall rest on the prosecution: Provided that the accused shall furnish the
grounds on which the admissibility of the evidence is challenged: Provided further
that if the accused is not represented the court shall raise the question of the
admissibility of the evidence." 537
The question whether evidence should be excluded in terms of s 252A(3)(a), may
— on application of the accused or the prosecution, or by order of the court mero
motu — be adjudicated as a separate issue in dispute, 538 that is, by having a
trial within a trial.
It should be noted that the discretionary rule of exclusion created by s
252A(3)(a), remains subject to the provisions of s 35(5) of the Constitution. 539
Section 252A(3)(a) creates the impression that evidence may be admitted even if
"the admission of such evidence would render the trial unfair or would otherwise
be detrimental to the administration of justice". However, where the entrapment
evidence was unconstitutionally obtained, the provisions of s 35(5) must prevail:
the court must exclude the evidence if it is satisfied that admission would result
in one of the consequences identified in s 35(5). 540
In Amod v S the conviction and sentence were set aside because the police
procedures and conduct in the course of entrapment, rendered the appellant's
trial unfair. Section 252A was invoked. The police were extremely persistent in
selling gold to the accused. They offered the accused a reduction in the purchase
price after he had indicated his unwillingness to conclude the transaction at the
initial price. They resorted to verbal persuasion and also offered him a credit
facility. A
3rd Ed, 2009 ch12-p264
number of attempts were made over a substantial period of time to entice the
accused. 542
Footnote - 516
516 R v Ndimangele 1913 CPD 708 709.
516 R v Ndimangele 1913 CPD 708 709.
Footnote - 517
517 See § 11.4.2 above as well as Van Niekerk, Van der Merwe & Van Wyk Privilegies in die
Bewysreg (1984) 258.
517 See § 11.4.2 above as well as Van Niekerk, Van der Merwe & Van Wyk Privilegies in die
Bewysreg (1984) 258.
Footnote - 518
518 S v Malinga1963 (1) SA 692 (A) 693.
518 S v Malinga1963 (1) SA 692 (A) 693.
Footnote - 519
519 Bronitt & Roche "Between Rhetoric and Reality: Sociolegal and Republican Perspectives on
Entrapment" 2000 4 The International Journal of Evidence and Proof 77. See also generally Naudé
1998 SACJ 213 214-5.
519 Bronitt & Roche "Between Rhetoric and Reality: Sociolegal and Republican Perspectives
on Entrapment" 2000 4 The International Journal of Evidence and Proof 77. See also generally
Naudé 1998 SACJ 213 214-5.
Footnote - 520
520 See generally S v Azov1974 (1) SA 808 (T) 809; Bronstein 1997 SALJ 108 109-10.
520 See generally S v Azov1974 (1) SA 808 (T) 809; Bronstein 1997 SALJ 108 109-10.
Footnote - 521
521 On entrapment in general, see Labuschagne 1976 De Jure 16; Colman 1954 SALJ 120;
Engelbrecht 1989 De Rebus 421; Louw 1995 SACJ 286; Zeffertt 1976 SALJ 130; Feltoe 1974
Rhodesian LJ 52; Bertelsmann 1970 THRHR 348; Crofton 1977 Natal Univ LR 271. For judicial
criticism of entrapment, see generally R v Vlok & Vlok1954 (1) SA 203 (SWA); S v Petkar1988 (3) SA
571 (A); S v Ohlenschlager1992 (1) SACR 695 (T).
521 On entrapment in general, see Labuschagne 1976 De Jure 16; Colman 1954 SALJ 120;
Engelbrecht 1989 De Rebus 421; Louw 1995 SACJ 286; Zeffertt 1976 SALJ 130; Feltoe 1974
Rhodesian LJ 52; Bertelsmann 1970 THRHR 348; Crofton 1977 Natal Univ LR 271. For judicial
criticism of entrapment, see generally R v Vlok & Vlok1954 (1) SA 203 (SWA); S v Petkar1988
(3) SA 571 (A); S v Ohlenschlager1992 (1) SACR 695 (T).
Footnote - 522
522 Van der Mescht 1995 SACJ 271; Bester De Rebus 706 707; S v Odugo2001 (1) SACR 560 (W)
568d.
522 Van der Mescht 1995 SACJ 271; Bester De Rebus 706 707; S v Odugo2001 (1) SACR
560 (W) 568d.
Footnote - 523
523 S v Dube2000 (1) SACR 53 (N); S v Hassen1997 (1) SACR 247 (T); S v Desai1997 (1) SACR 38
(W). For a comparative analysis of entrapment as a substantive defence, see Labuschagne 1993 SACJ
208. For entrapment as a defence in the USA, see Sherman v United States 356 US 369 (1958) and
Anon "Entrapment" 1960 73 Harvard LR 1333.
523 S v Dube2000 (1) SACR 53 (N); S v Hassen1997 (1) SACR 247 (T); S v Desai1997 (1)
SACR 38 (W). For a comparative analysis of entrapment as a substantive defence, see
Labuschagne 1993 SACJ 208. For entrapment as a defence in the USA, see Sherman v United
States 356 US 369 (1958) and Anon "Entrapment" 1960 73 Harvard LR 1333.
Footnote - 524
524 S v Desai supra; R v Ahmed1958 (3) SA 313 (T) 317.
524 S v Desai supra; R v Ahmed1958 (3) SA 313 (T) 317.
Footnote - 525
525 R v Small1968 (3) SA 561 (RAD); S v Sellem1992 (2) SACR 19 (A).
525 R v Small1968 (3) SA 561 (RAD); S v Sellem1992 (2) SACR 19 (A).
Footnote - 526
526 Mendez v Kitching NO1995 (2) SACR 634 (E); S v Hassen supra; S v Hayes1998 (1) SACR 625
(O).
526 Mendez v Kitching NO1995 (2) SACR 634 (E); S v Hassen supra; S v Hayes1998 (1)
SACR 625 (O).
Footnote - 527
527 Mendes v Kitching NO supra; S v Desai supra; S v Hassen supra.
527 Mendes v Kitching NO supra; S v Desai supra; S v Hassen supra.
Footnote - 528
528 S v Nortje1996 (2) SACR 308 (C); S v Hassen supra; Mendes v Kitching NO supra. S v Desai
supra was an exception. See further Naudé 2001 SACJ 38.
528 S v Nortje1996 (2) SACR 308 (C); S v Hassen supra; Mendes v Kitching NO supra. S v
Desai supra was an exception. See further Naudé 2001 SACJ 38.
Footnote - 529
529 Act 85 of 1996, which was signed by the President on 6 Nov 1996.
529 Act 85 of 1996, which was signed by the President on 6 Nov 1996.
Footnote - 530
530 See Gov Gazette no 17646 of 29 Nov 1996. Section 252A does not have retrospective effect.
See S v Dube supra 71c.
530 See Gov Gazette no 17646 of 29 Nov 1996. Section 252A does not have retrospective
effect. See S v Dube supra 71c.
Footnote - 531
531 For an extensive and critical discussion of this section, see Bronstein 1997 SALJ 108 127-33.
531 For an extensive and critical discussion of this section, see Bronstein 1997 SALJ 108
127-33.
Footnote - 532
532 Section 252A does not apply to traps set by private individuals, but only to entrapment
operations engaged in by law enforcement officers or state officials or their agents as referred to in s
252A(1). See S v Dube supra 71d-e. See further S v Makhanya2002 (3) SA 201 (N).
532 Section 252A does not apply to traps set by private individuals, but only to entrapment
operations engaged in by law enforcement officers or state officials or their agents as referred
to in s 252A(1). See S v Dube supra 71d-e. See further S v Makhanya2002 (3) SA 201 (N).
Footnote - 533
533 See the Law Commission's Working Paper 52, Project 84 Application of the Trapping System
(1993) and the final report on Project 84 Application of the Trapping System (1994). For critical
comments on these recommendations, see Louw 1995 SACJ 286 289-94.
533 See the Law Commission's Working Paper 52, Project 84 Application of the Trapping
System (1993) and the final report on Project 84 Application of the Trapping System (1994).
For critical comments on these recommendations, see Louw 1995 SACJ 286 289-94.
Footnote - 534
534 The gist of this section is that evidence obtained by way of entrapment shall be admissible if
the conduct of the trap did not go beyond providing an opportunity to commit an offence.
534 The gist of this section is that evidence obtained by way of entrapment shall be
admissible if the conduct of the trap did not go beyond providing an opportunity to commit an
offence.
Footnote - 535
535 This section sets out the various factors which the court must take into account in considering
whether the conduct concerned went beyond providing an opportunity to commit an offence. See S v
Hammond2008 (1) SACR 476 (SCA).
535 This section sets out the various factors which the court must take into account in
considering whether the conduct concerned went beyond providing an opportunity to commit
an offence. See S v Hammond2008 (1) SACR 476 (SCA).
Footnote - 536
536 Emphasis added. See also generally S v Thinta2006 (1) SACR 4 (E) at [26].
536 Emphasis added. See also generally S v Thinta2006 (1) SACR 4 (E) at [26].
Footnote - 537
537 On the application of this standard of proof, see S v Reeding2005 (2) SACR 631 (C) at 640a-b.
537 On the application of this standard of proof, see S v Reeding2005 (2) SACR 631 (C) at
640a-b.
Footnote - 538
538 Section 252A(7).
538 Section 252A(7).
Footnote - 539
539 See generally Naudé 1998 SACJ 213 218 and S v Odugo2001 (1) SACR 560 (W) 568b. See also
S v Spies2000 (1) SACR 312 (SCA).
539 See generally Naudé 1998 SACJ 213 218 and S v Odugo2001 (1) SACR 560 (W) 568b.
See also S v Spies2000 (1) SACR 312 (SCA).
Footnote - 540
540 Paizes in Du Toit et al Commentary 24-134. See also S v Reeding supra at 639-640.
540 Paizes in Du Toit et al Commentary 24-134. See also S v Reeding supra at 639-640.
Footnote - 541
541 2001 4 All SA 13 (E). See S v Odugo supra for a case where entrapment evidence was
admitted.
541 2001 4 All SA 13 (E). See S v Odugo supra for a case where entrapment evidence was
admitted.
Footnote - 542
542 In R v Mack 1989 44 CCC 3d 513 (SCC) the police trap also went too far. The accused — a
former drug user — was over a period of six months repeatedly approached (at and one stage
threatened) by a police agent to agreeing to deal in cocaine. On "abuse of process", see generally
Naudé 2001 SACJ 38 49-51. There is a fine line between a trap acting within or outside his mandate.
Section 252A(5)(b) should be understood in this context. See S v Domingo2002 (1) SACR 641 (C) at
646.
542 In R v Mack 1989 44 CCC 3d 513 (SCC) the police trap also went too far. The accused —
a former drug user — was over a period of six months repeatedly approached (at and one
stage threatened) by a police agent to agreeing to deal in cocaine. On "abuse of process", see
generally Naudé 2001 SACJ 38 49-51. There is a fine line between a trap acting within or
outside his mandate. Section 252A(5)(b) should be understood in this context. See S v
Domingo2002 (1) SACR 641 (C) at 646.
Document 108 of 330
12.13 Civil Cases

Shell SA (Edms) Bpk v Voorsitter, Dorperaad van die OVS — decided in 1992 —
was the first case in which the common-law inclusionary approach was, for
purposes of civil proceedings, subjected to critical scrutiny. 544 Distinguishing
Botha v Botha and relying on, inter alia, S v Mushimba and a post-30 May 1961
English decision, 547 Lombard J ruled certain evidence inadmissible on the basis
that he had a discretion to exclude improperly obtained evidence. 548 Relying on
Lombard J's decision as well as the decision of Myburgh J in Motor Industry Fund
Administrators Pty Ltd v Janit, 549 Hurt J concluded in Lenco Holdings Ltd v
Ekstein that "in civil proceedings, the Court has a discretion to exclude evidence
… obtained by a criminal act or otherwise improperly". 550 Judicial integrity and
the integrity of the judicial system were some of the factors which led the court
to exclude the impugned evidence. 551 On the available evidence, there was also
no indication that the applicant had attempted or contemplated lawful methods of
procuring the evidence "before taking the decision to resort to crime." 552
The discretion which developed in the pre-constitutional era, also has a solid
constitutional basis despite the fact that s 35(5) is not — as was pointed out in §
12.1 above — applicable to civil proceedings. 553 After all, in terms of s 34 of the
Constitution there is a right to a fair civil trial. 554
In Fedics Group (Pty) Ltd v Matus Brand J observed that the denial of a
discretion in civil proceedings to exclude illegally or otherwise improperly
obtained evidence
3rd Ed, 2009 ch12-p265
would be "a retrogressive step in the development of our law …" 556 In the
exercise of this discretion, he found, a court is directed by s 39(2) of the
Constitution to "promote the spirit, purport and objects" of the Bill of Rights in
developing the common law. 557 Having noted the fundamental differences
between criminal and civil proceedings, 558 Brand J observed: 559
"Without trying to formulate principles of general validity or rules of general
application, the implications of these differences between criminal and civil
proceedings in the present context are, in my view, twofold. On the one hand, the
litigant who seeks to introduce evidence which was obtained through a deliberate
violation of constitutional rights will have to explain why he could not achieve justice
by following the ordinary procedure, including the Anton Piller procedure, available
to him. On the other hand, the Court will, in the exercise of its discretion, have
regard to the type of evidence which was in fact obtained. Is it the type of evidence
which could never be lawfully obtained and/or introduced without the opponent's co-
operation, such as privileged communications, or the recording of a tapped
telephone conversation, or is it the type of evidence involved in this case, namely
documents and information which the litigant would or should eventually have
obtained through lawful means? In the latter case, the Court should, I think, be
more inclined to exercise its discretion in favour of the litigant who seeks to
introduce the evidence than it would be in the case of the former. It goes without
saying that the Court will, in any event, have regard to all the other circumstances
of the particular case."
Taking into account various relevant facts, 560 the court ultimately concluded that
the impugned evidence was admissible even though there had been a breach of
the constitutional right to privacy in the procurement of the evidence.
In Protea Technology Ltd v Wainer Heher J held that the Interception and
Monitoring Prohibition Act did not expressly or by necessary inference render the
production of recordings made in violation of its terms, inadmissible in evidence
before a court trying a civil dispute. 562 On the facts of the case it was also held
that the respondent could not rely on the constitutional right to privacy and that
the impugned evidence was admissible. 563 Heher J, however, also ruled that
even if the finding that the respondent could not rely on the constitutional right to
privacy were wrong, he would — after having adjusted the test for admissibility
3rd Ed, 2009 ch12-p266
to meet constitutional requirements 564 — nevertheless have admitted the

evidence. 565
In Lotter v Arlow the applicant, a creditor of the respondents, had requested
her attorneys to instruct a valuator to investigate whether the respondents had
any disposable assets. Having received his instructions, the valuator unlawfully
entered the residential premises of the respondents. He found a Mercedes, worth
R125 000. Bertelsmann J excluded the evidence of the valuator. The main
reasons for exclusion were the following: the valuator knew he was acting
unlawfully; 567 the respondents' constitutional right to privacy was infringed; 568
the applicant had resorted to self-help whilst lawful means were available; 569
there was no evidence that the respondents had been acting unlawfully; 570
admission of the evidence would have brought the administration of justice into
disrepute, encouraging disrespect for the law and the Constitution; 571 neither the
applicant nor the evaluator gave any reasons why it was necessary to proceed in
the manner in which they did. 572
Footnote - 543
543 1992 (1) SA 906 (O).
543 1992 (1) SA 906 (O).
Footnote - 544
544 See especially 915B-917G.
544 See especially 915B-917G.
Footnote - 545
545 1972 (2) SA 559 (N).
545 1972 (2) SA 559 (N).
Footnote - 546
546 1977 (2) SA 829 (A) 840D-F. See also § 10.3.3 above.
546 1977 (2) SA 829 (A) 840D-F. See also § 10.3.3 above.
Footnote - 547
547 Derby & Co Ltd v Weldon 1990 3 All ER 762 (ChD) & (CA).
547 Derby & Co Ltd v Weldon 1990 3 All ER 762 (ChD) & (CA).
Footnote - 548
548 Shell SA (Edms) Bpk v Voorsitter, Dorperaad van die OVS supra 917H-I.
548 Shell SA (Edms) Bpk v Voorsitter, Dorperaad van die OVS supra 917H-I.
Footnote - 549
549 1994 (3) SA 56 (W). On appeal in this case, the SCA expressly refrained from deciding the
issue. See Janit v Motor Industry Fund Administrators (Pty) Ltd1995 (4) SA 293 (A) 307B-C.
549 1994 (3) SA 56 (W). On appeal in this case, the SCA expressly refrained from deciding
the issue. See Janit v Motor Industry Fund Administrators (Pty) Ltd1995 (4) SA 293 (A) 307B-
C.
Footnote - 550
550 1996 (2) SA 693 (N) 704B-C.
550 1996 (2) SA 693 (N) 704B-C.
Footnote - 551
551 At 706J-707A: "[T]he applicants regarded cloak and dagger tactics as the order of the day. I
do not think that it would be appropriate for this Court to be seen to lightly associate itself with a
tactic of this nature … I consider that the Court would be so associating itself if it were, without
demur, to apply the categorical imperative … and say that simply because the matter in the
transcript is plainly relevant it must be admissible. In my view, the tapes and transcripts which are
now before me should not be admitted … "
551 At 706J-707A: "[T]he applicants regarded cloak and dagger tactics as the order of the
day. I do not think that it would be appropriate for this Court to be seen to lightly associate
itself with a tactic of this nature … I consider that the Court would be so associating itself if it
were, without demur, to apply the categorical imperative … and say that simply because the
matter in the transcript is plainly relevant it must be admissible. In my view, the tapes and
transcripts which are now before me should not be admitted … "
Footnote - 552
552 At 706E-F.
552 At 706E-F.
Footnote - 553
553 Tap Wine Trading v Cape Classic Wines (Western Cape)1999 (4) SA 194 (C) is clearly wrong.
553 Tap Wine Trading v Cape Classic Wines (Western Cape)1999 (4) SA 194 (C) is clearly
wrong.
Footnote - 554
554 See generally Erasmus 1996 Obiter 291 and the following articles by De Vos: 1991 TSAR 353;
1995 Stell LR 34 and 1997 TSAR 444.
554 See generally Erasmus 1996 Obiter 291 and the following articles by De Vos: 1991 TSAR
353; 1995 Stell LR 34 and 1997 TSAR 444.
Footnote - 555
555 1998 (2) SA 617 (C). See further Bilchitz 1998 ASSAL 735 753-57 for a discussion of this case.
555 1998 (2) SA 617 (C). See further Bilchitz 1998 ASSAL 735 753-57 for a discussion of this
case.
Footnote - 556
556 At 636D-E.
556 At 636D-E.
Footnote - 557
557 At 638C-D.
557 At 638C-D.
Footnote - 558
558 At 639E-640B.
558 At 639E-640B.
Footnote - 559
559 At 640C-E.
559 At 640C-E.
Footnote - 560
560 Some of the facts were the following: the violation of privacy was in respect of an office and
not a private dwelling (at 642E); the applicants on reasonable grounds believed that they had to
search for the documents as a matter of urgency as the documents were about to be removed (at
642F); the applicants were — on the information available to them at the relevant time —
"reasonable in their apprehension that they would not achieve justice by involving the ordinary
procedures, including the Anton Piller procedure, available to them" (at 642F); legal advice given by
senior counsel was that the search of the office would be lawful (at 642G); the documents found
during the course of the search were all discoverable and would therefore have been legitimately
obtained by the applicants at some stage during the proceedings: "The advantage gained by the
applicants as a result of the search of [the] office, though of significant importance, was, therefore
at best, a procedural one." (at 642I).
560 Some of the facts were the following: the violation of privacy was in respect of an office
and not a private dwelling (at 642E); the applicants on reasonable grounds believed that they
had to search for the documents as a matter of urgency as the documents were about to be
removed (at 642F); the applicants were — on the information available to them at the relevant
time — "reasonable in their apprehension that they would not achieve justice by involving the
ordinary procedures, including the Anton Piller procedure, available to them" (at 642F); legal
advice given by senior counsel was that the search of the office would be lawful (at 642G); the
documents found during the course of the search were all discoverable and would therefore
have been legitimately obtained by the applicants at some stage during the proceedings: "The
advantage gained by the applicants as a result of the search of [the] office, though of
significant importance, was, therefore at best, a procedural one." (at 642I).
Footnote - 561
561 1997 9 BCLR 1225 (W).
561 1997 9 BCLR 1225 (W).

Footnote - 562
562 At 1237D-E. See also the example given by Heher J at 1237A-D. See further Waste Products
Utilisation (Pty) Ltd v Wilkes2003 (2) SA 515 (W).
562 At 1237D-E. See also the example given by Heher J at 1237A-D. See further Waste
Products Utilisation (Pty) Ltd v Wilkes2003 (2) SA 515 (W).
Footnote - 563
563 At 1241F-G.
563 At 1241F-G.
Footnote - 564
564 At 1241H-1242F (emphasis added): "The common law as it has been modified is essentially
directed to enabling a court to exercise a flexibility consistent with justice. In doing so the rule
properly applied would embody the critical factors which are inherent in the Constitution. For
example, it would take account of the very great importance of protecting and preserving individual
privacy and that an invasion is prima facie unlawful; it would weigh against that interest the concern
of society that the truth about unlawful conduct should be exposed; it will look to the safeguards
which ensure the truth and reliability of the information; and it asks whether the invasion of the
right could not be minimised or avoided by other means. It seems to me that the retention of the
discretion of the court is reasonable in an open and democratic society. The common-law rule is
however inconsistent with the Constitution to this extent: it starts with the assumption that all
evidence however obtained is admissible subject to the court's discretion to exclude it. If the
common law is at odds with the Constitution the courts must, if that can realistically be done,
develop the common law in such a manner as to promote the spirit, purport and objects of the Bill of
Rights. Such development requires the test of admissibility to be formulated differently: any
evidence which depends upon the breach of a fundamental constitutional right can only be admitted
if the admission of the evidence is justifiable by the standards laid down in section 36(1). Thus if a
person proves, whether in civil or criminal proceedings, that a right identified in Chapter 2 of the
Constitution (other than a non-derogable right) has been infringed, the onus lies upon the party who
seeks to benefit in any way from that infringement to satisfy the court that the common law (or a
statute as the case may be) provides a limitation of the nature referred to in section 36(1). Prima
facie, the complainant has the right to have it excluded. In order to decide whether the right should
prevail with unmitigated force or whether it should be regarded as partially or wholly overridden,
each case will have to be considered on its own facts and a discretion exercised with judicial regard
to the substance of section 36(1). Thus, for example, that the breach of rights occurred in
conjunction with a breach of the criminal law is not of itself decisive. One must constantly be
conscious of the danger of allowing the unyielding pursuit of truth and the inflexible suppression of
wrongdoing to blind one to the possibility that the very right which the Constitution protects could
be negated or obscured by the insensitivity to broader policy considerations inherent in such single-
mindedness. Section 36(1) of the Constitution seeks to ensure that the wider vision is maintained.
Uncovering the truth and exposing the ungodly are not thereby relegated to unimportance. They
are, as they ever have been, weights in the scales of justice. Is the exercise of discretion by a court
to admit evidence obtained in breach of a fundamental right reasonable to justifiable at all? If it is,
how should that discretion be exercised?" It is, with respect, a novel way of invoking s 36(1) of the
Constitution.
564 At 1241H-1242F (emphasis added): "The common law as it has been modified is
essentially directed to enabling a court to exercise a flexibility consistent with justice. In doing
so the rule properly applied would embody the critical factors which are inherent in the
Constitution. For example, it would take account of the very great importance of protecting and
preserving individual privacy and that an invasion is prima facie unlawful; it would weigh
against that interest the concern of society that the truth about unlawful conduct should be
exposed; it will look to the safeguards which ensure the truth and reliability of the information;
and it asks whether the invasion of the right could not be minimised or avoided by other
means. It seems to me that the retention of the discretion of the court is reasonable in an open
and democratic society. The common-law rule is however inconsistent with the Constitution to
this extent: it starts with the assumption that all evidence however obtained is admissible
subject to the court's discretion to exclude it. If the common law is at odds with the
Constitution the courts must, if that can realistically be done, develop the common law in such
a manner as to promote the spirit, purport and objects of the Bill of Rights. Such development
requires the test of admissibility to be formulated differently: any evidence which depends
upon the breach of a fundamental constitutional right can only be admitted if the admission of
the evidence is justifiable by the standards laid down in section 36(1). Thus if a person proves,
whether in civil or criminal proceedings, that a right identified in Chapter 2 of the Constitution
(other than a non-derogable right) has been infringed, the onus lies upon the party who seeks
to benefit in any way from that infringement to satisfy the court that the common law (or a
statute as the case may be) provides a limitation of the nature referred to in section 36(1).
Prima facie, the complainant has the right to have it excluded. In order to decide whether the
right should prevail with unmitigated force or whether it should be regarded as partially or
wholly overridden, each case will have to be considered on its own facts and a discretion
exercised with judicial regard to the substance of section 36(1). Thus, for example, that the
breach of rights occurred in conjunction with a breach of the criminal law is not of itself
decisive. One must constantly be conscious of the danger of allowing the unyielding pursuit of
truth and the inflexible suppression of wrongdoing to blind one to the possibility that the very
right which the Constitution protects could be negated or obscured by the insensitivity to
broader policy considerations inherent in such single-mindedness. Section 36(1) of the
Constitution seeks to ensure that the wider vision is maintained. Uncovering the truth and
exposing the ungodly are not thereby relegated to unimportance. They are, as they ever have
been, weights in the scales of justice. Is the exercise of discretion by a court to admit evidence
obtained in breach of a fundamental right reasonable to justifiable at all? If it is, how should
that discretion be exercised?" It is, with respect, a novel way of invoking s 36(1) of the
Constitution.
Footnote - 565
565 The factors that the court would have considered in admitting the evidence are set out at
1242H-1244B.
565 The factors that the court would have considered in admitting the evidence are set out at
1242H-1244B.
Footnote - 566
566 2002 (6) SA 60 (T).
566 2002 (6) SA 60 (T).
Footnote - 567
567 At 63A.
567 At 63A.
Footnote - 568
568 At 62D and 63A.
568 At 62D and 63A.
Footnote - 569
569 At 65C.
569 At 65C.
Footnote - 570
570 At 65F.
570 At 65F.
Footnote - 571
571 At 65G-H.
571 At 65G-H.
Footnote - 572
572 At 63G and 65C.

572 At 63G and 65C.
Document 109 of 330
Section E
Exclusion of relevant evidence:
Unconstitutionally obtained evidence
13. Hearsay — P J Schwikkard
14. A Selection of Common-Law Exceptions to The Hearsay Rule: A Brief
Perspective — P J Schwikkard
15. Selected Statutory Exceptions to The Hearsay Rule — P J Schwikkard
Document 110 of 330
Chapter 13
Hearsay
P J Schwikkard
13.1 Introduction
13.2 The rationale for the exclusion of hearsay
13.2.1 Procedural context
13.2.2 Cost effectiveness
13.2.3 Best evidence
13.2.4 Complexity
13.2.5 Socially necessary
13.2.6 Safeguard against abuse of power
13.2.7 A constitutional requirement
13.3 Section 3 of the Law of Evidence Amendment Act 45 of 1988
13.4 The definition of hearsay
13.5 Admission by consent
13.6 The provisional admission of hearsay
13.7 Discretion in terms of Act 45 of 1988
13.7.1 The nature of the proceedings: s 3(1)(c)(i)
13.7.2 The nature of the evidence: s 3(1)(c)(ii)
13.7.3 The purpose for which the evidence is tendered: s 3(1)(c)(iii)
13.7.4 The probative value of the evidence: s 3(1)(c)(iv)
13.7.5 The reason why the evidence is not given by the person upon
whose credibility the probative value depends: s 3(1)(c)(v)
13.7.6 Prejudice to opponent: s 3(1)(c)(vi)
13.7.7 Any other factor which in the opinion of the court should be taken
into account: s 3(1)(c)(vii)
13.8 Procedural issues
13.9 Conclusion
3rd Ed, 2009 ch13-p269
13.1 Introduction
The Law of Evidence Amendment Act 45 of 1988 rendered the common-law rules
1 applicable to hearsay obsolete 2 and redefined hearsay to mean "evidence,
whether oral or in writing, the probative value of which depends upon the
credibility of any person other than the person giving such evidence". Hearsay
evidence is generally inadmissible.
Footnote - 1
1 See ch 14 for a discussion of the common law.
1 See ch 14 for a discussion of the common law.
Footnote - 2
2 Mnyama v Gxalaba1990 (1) SA 650 (C). However, see § 13.7.7 below.
2 Mnyama v Gxalaba1990 (1) SA 650 (C). However, see § 13.7.7 below.
Document 111 of 330
13.2 The rationale for the exclusion of hearsay

evidence
Historically the exclusionary rule was viewed as necessary to guard against the
danger that the trier of fact, and more particularly the jury, might place undue
3rd Ed, 2009 ch13-p270
weight on hearsay evidence despite its inherent weakness. The counter argument
is that we all use hearsay statements in making decisions in everyday life and in
doing so take into account its potential unreliability. Consequently, there is no
reason to assume that either juries or professional judges lack the necessary
sophistication to accord hearsay evidence its appropriate weight. 3 This line of
reasoning leads to the assertion that "it is better to admit flawed testimony for
what it is worth, giving the opponent a chance to expose its defects, than to take
the chance of a miscarriage of justice because the trier is deprived of
information". 4
Although not conclusive, empirical research indicates that juries are not unduly
influenced by hearsay evidence 5 and consequently it can be assumed that a
unitary court is even less likely to accord inappropriate weight to hearsay
evidence. In a unitary system there is a further safeguard in that the court must
give reasons for its judgment and would have to justify its reliance on hearsay in
reaching a decision. Consequently, if the danger of undue weight being accorded
to hearsay was the sole rationale of the hearsay rule, it would make little sense to
retain the hearsay rule. Therefore, it is necessary to consider other possible
justifications for the hearsay rule.
13.2.1 Procedural context
The distinguishing feature of adversarial proceedings that are relevant to the
moulding of the hearsay rule, are party control of investigation and presentation,
the passive role of the presiding officer, and concentration of proceedings.
The dominant and partisan role of the parties in adversarial proceedings
increases the possibility of misleading evidence being introduced. Consequently,
there needs to be an immediate mechanism for testing evidence and this
mechanism is cross-examination. 6 It is the absence of the opportunity to cross-
examine the declarant on whom the probative value of the evidence depends
which makes hearsay potentially unreliable in common-law systems. 7
In adversarial systems adjudication takes place at a relatively concentrated
trial where the principle of orality guides the presentation of evidence. The
presentation of hearsay evidence is frequently something of a "surprise" for the
person
3rd Ed, 2009 ch13-p271
against whom it is sought to be admitted and there is no time to locate or

prepare a basis of challenging the credibility of the hearsay declarant. 8
The principle of orality is directly related to a belief underlying the adversarial
system that an adjudicator is best able to make accurate decisions of fact where
the witness upon whom the probative value of the evidence depends, testifies in
open court. 9 A witness who testifies in open court does so in circumstances in
which the solemnity of proceedings is reinforced by potential liability for perjury.
The presence of the party against whom the testimony is given also encourages
circumspection on the part of the witness. The court's ability to observe the
witness's demeanour contributes to a more reliable assessment of credibility.
However, the central objection is embedded in a belief in the effectiveness of the
adversarial mechanism for truth finding — cross examination. 10 When hearsay
evidence is admitted these advantages of testifying in open court are lost.
Consequently the "four 'dangers' of faulty perception, erroneous memory,
insincerity, and ambiguity in narration" are inherent in the admission of hearsay.
11
This traditional rationale must be assessed in light of a significant body of

research that indicates that the observation of demeanour (see § 30.4 below)
does not necessarily contribute to an accurate assessment of credibility, and that
there is little certainty as regards the efficacy of cross-examination in enhancing
the reliability of decision making. 12 Furthermore, it is "questionable whether the
oath discourages untruthfulness to the extent to which it has been traditionally
assumed to do". 13 Consequently, Choo concludes that "whilst it may be true that
hearsay evidence is likely, in many circumstances, to be less reliable than non-
hearsay evidence, the actual extent to which it is less reliable can only be a
matter of speculation, and must be dependent on the particular circumstances".
14
3rd Ed, 2009 ch13-p272
13.2.2 Cost effectiveness

The hearsay rule has also been justified on a utilitarian basis. The argument is
that it pays for itself "because it is cheaper to test witnesses in court than prepare
and offer evidence bearing on the credibility of remote declarants". 15 This is a
questionable assertion as it would no doubt frequently be cheaper to offer a
report of what a witness said than to call the witness. 16 Allen argues vociferously
against the cost justification and points to the time spent litigating the rule. 17 He
also notes that the hearsay rule also imposes costs on academic institutions as a
disproportionate amount of time is spent teaching and writing about the hearsay
rule. 18
13.2.3 Best evidence

Another justification for the hearsay rule is that it is necessary to encourage
parties to call the original declarant. 19 However, this clearly has no application
where the hearsay evidence is the best evidence available. 20 Furthermore, the
risk of low weight being attached to the hearsay evidence should act as a
sufficient incentive to call the original declarant. It can also be argued that if the
original declarant is available there is nothing prohibiting the party against whom
the hearsay is admitted from calling the original declarant. 21
13.2.4 Complexity
An argument can be made that in effect the hearsay rule merely requires the
court to engage in the same inquiry as it would in determining legal relevance,
namely: does the probative value of the evidence exceed its prejudicial value?
What then is the utility of the hearsay rule? Zeffertt, Paizes & Skeen 22 justify a
separate hearsay rule on the basis that hearsay attracts specific prejudicial
qualities and challenges that are not necessarily features of other types of
evidence — and to include these in the legal relevance inquiry "would be to over-
burden that doctrine and to encumber it unnecessarily with principles applicable
only to a particular kind of evidence". 23
It has also been argued that if the hearsay rule is subsumed under a general
relevance inquiry this will discourage settlement as parties are unlikely to be able
to predict the outcome on the basis of what evidence is likely to be admitted. 24
In response it might be asserted that the hearsay rule is so poorly understood
that parties are in any event unable to predict admissibility.
On the other side of the score sheet is the assertion that if hearsay was
properly subjected to the relevance inquiry and admitted when probative value
exceeds
3rd Ed, 2009 ch13-p273
prejudicial effect, the truth-seeking function of the court would be better

advanced. Friedman argues that "if live testimony by the declarant would be
more probative than prejudicial then most often ... hearsay would be more
probative than prejudicial". 25 Consequently, to presumptively exclude hearsay is
not rational: if probative value exceeds prejudicial effect "then the burden of
producing the declarant should be placed on the person objecting to the hearsay".
26
13.2.5 Socially necessary

Scallen asserts that the hearsay rule has a societal dimension centred on a
number of accusatorial relationships 27 namely, that between the accused and the
witness who testifies against the accused and that between the accused and the
state. In a civil context the second relationship is absent.
Placing emphasis on the importance of shared responsibility for outcomes and
individual consciousness of guilt, Scallen argues that "confrontation is necessary
as part of the social relationship between the individual defendant and the
accusing witness". 28 She argues that the societal dimension of confrontation
strengthens the legitimacy and integrity of adversarial processes 29 and that
"participation in decision making is critical to the perception of procedural
justice". 30 However, Scallen also acknowledges that in certain circumstances
there may be no societal value in confrontation. For example, "[b]ecause of the
difference in vulnerability and power between the individuals, a confrontation
between child and adult may be qualitatively and ethically different than a
confrontation between two adults". 31
13.2.6 Safeguard against the abuse of power

The hearsay rule can also be viewed "as a way of protecting individual rights from
the intrusion of government, or as a way of influencing the conduct of police and
prosecutors in the process of preparing and preserving evidence". 32 (This
rationale also supports an argument that the standard for admissibility for
hearsay should be lower for an accused than the prosecution in criminal trials.) 33
Raeder argues that although a relaxation of the hearsay rule might allow an
accused to make greater use of hearsay it "is also likely to result in prosecutors
deluging the trial with hearsay" and
3rd Ed, 2009 ch13-p274
that "such wholesale use of hearsay would change the way criminal trials look
and might lower public acceptance of verdicts". 34
13.2.7 A constitutional requirement

Section 35(3)(i) of the Constitution includes the right to challenge evidence as a
component of the right to a fair trial. In S v Ndhlovu the Supreme Court of Appeal
considered whether cross-examination of the hearsay declarant was an
indispensable component of the right to challenge evidence. The court held that
whilst the unregulated admission of hearsay evidence might infringe the right to
challenge evidence, s 3 of the 1988 Act which is primarily an exclusionary rule
provides legislative criteria which protect against any infringement of the right to
challenge evidence. 36 For further discussion of the constitutionality of s 3, see §
13.7.6 below.
Footnote - 3
3 Mueller "Post modern hearsay reform: the importance of complexity" (1992) 76 Minnesota Law
Review 367 at 380. See also Nance "Commentary: A response to Professor Damaska: Understanding
responses to hearsay: an extension of comparative analysis" (1992) 76 Minnesota Law Review 459 at
463 who expresses his scepticism as follows: "The difficulty for a taint theory is explaining why being
exposed to admittedly relevant information, that may be very probative, should lead to greater
inaccuracy, especially when the information carries on its face a consumer warning … by virtue of its
derivative status". See also Miene, Park & Borgida "Juror decision making and the evaluation of
hearsay evidence" (1992) 76 Minnesota Law Review 683.
3 Mueller "Post modern hearsay reform: the importance of complexity" (1992) 76 Minnesota
Law Review 367 at 380. See also Nance "Commentary: A response to Professor Damaska:
Understanding responses to hearsay: an extension of comparative analysis" (1992) 76
Minnesota Law Review 459 at 463 who expresses his scepticism as follows: "The difficulty for a
taint theory is explaining why being exposed to admittedly relevant information, that may be
very probative, should lead to greater inaccuracy, especially when the information carries on its
face a consumer warning … by virtue of its derivative status". See also Miene, Park & Borgida
"Juror decision making and the evaluation of hearsay evidence" (1992) 76 Minnesota Law
Review 683.
Footnote - 4
4 Bull, Kovera, Park, Penrod "Juror's perceptions of eyewitness and hearsay evidence" (1992) 76
Minnesota Law Review 703 at 704. See also Shapiro "Saving Desdemona" (2001) 22 Cardozo Law
Review 1771, Callen "Othello could not optimize: economics, hearsay, and less adversary systems"
(2001) 22 Cardozo Law Review 1791.
4 Bull, Kovera, Park, Penrod "Juror's perceptions of eyewitness and hearsay evidence" (1992)
76 Minnesota Law Review 703 at 704. See also Shapiro "Saving Desdemona" (2001) 22
Cardozo Law Review 1771, Callen "Othello could not optimize: economics, hearsay, and less
adversary systems" (2001) 22 Cardozo Law Review 1791.
Footnote - 5
5 See generally Park "The new wave of hearsay reform scholarship" (1992) 76 Minnesota Law
Review 363, Mueller op cit.
5 See generally Park "The new wave of hearsay reform scholarship" (1992) 76 Minnesota
Law Review 363, Mueller op cit.
Footnote - 6
6 Damaska Evidence Law Adrift (1987) 79-80.
6 Damaska Evidence Law Adrift (1987) 79-80.
Footnote - 7
7 See Damaska op cit 85 where he notes that a rule excluding hearsay also acts as an incentive for
parties to produce the best evidence available.
7 See Damaska op cit 85 where he notes that a rule excluding hearsay also acts as an
incentive for parties to produce the best evidence available.
Footnote - 8
8 See Damaska op cit 64-5 where he contrasts the concentrated trial proceedings in adversarial
common-law systems and the more episodic procedures used by the Continental courts as follows:
"When a witness reproduces any person's out-of-court statement, or when that statement is
contained in a document, there is enough time in the unhurried atmosphere of Continental litigation
to seek out this person for presentation in court — at the next procedural instalment, if necessary.
And if this person's court testimony differs from that quoted by the hearsay witness, the court has
heard them both and is thus in position to evaluate relative trustworthiness. Due to the comparatively
informal style of adducing evidence that prevails on the Continent — the hearsay witness and the
declarant can even be made to confront each other. And if the declarant turns out to be unavailable,
normally there is sufficient time before the next instalment to collect the information necessary to
gauge his credibility. Also, if hearsay evidence is relied upon by the court of first instance, the retrial
of factual issues on appeal in Continental courts provides yet another opportunity to check the
information bearing on the reliability of derivative statements. A relatively more lenient approach to
the use of potentially treacherous derivative proof seems justified."
8 See Damaska op cit 64-5 where he contrasts the concentrated trial proceedings in
adversarial common-law systems and the more episodic procedures used by the Continental
courts as follows: "When a witness reproduces any person's out-of-court statement, or when
that statement is contained in a document, there is enough time in the unhurried atmosphere
of Continental litigation to seek out this person for presentation in court — at the next
procedural instalment, if necessary. And if this person's court testimony differs from that
quoted by the hearsay witness, the court has heard them both and is thus in position to
evaluate relative trustworthiness. Due to the comparatively informal style of adducing evidence
that prevails on the Continent — the hearsay witness and the declarant can even be made to
confront each other. And if the declarant turns out to be unavailable, normally there is
sufficient time before the next instalment to collect the information necessary to gauge his
credibility. Also, if hearsay evidence is relied upon by the court of first instance, the retrial of
factual issues on appeal in Continental courts provides yet another opportunity to check the
information bearing on the reliability of derivative statements. A relatively more lenient
approach to the use of potentially treacherous derivative proof seems justified."
Footnote - 9
9 See Delisle, Stuart & Tanovich Evidence: Principles and Problems 7 ed (2004) 537-538;
Wiessenberger Federal Rules of Evidence (1987) 331. The principle of orality is also referred to in §§
1.5.2 and 1.6 above.
9 See Delisle, Stuart & Tanovich Evidence: Principles and Problems 7 ed (2004) 537-538;
Wiessenberger Federal Rules of Evidence (1987) 331. The principle of orality is also referred to
in §§ 1.5.2 and 1.6 above.
Footnote - 10
10 See S v Ndhlovu2002 (2) SACR 325 (SCA).
10 See S v Ndhlovu2002 (2) SACR 325 (SCA).
Footnote - 11
11 Choo Hearsay and Confrontation in Criminal Trials (1996) 42. See also Delisle et al op cit 538;
Sopinka, Lederman & Bryant The Law of Evidence in Canada 2 ed (1999) 174; Raeder "Finding the
proper balance in hearsay policy. The uniform rules attempt to stem the hearsay tide in criminal
cases without prohibiting all non-traditional hearsay" (2001) 54 Oklahoma Law Review 631. See also
Zeffertt, Paizes & Skeen The South African Law of Evidence (2003) 378; S v Ndhlovu2002 (2) SACR
325 (SCA).
11 Choo Hearsay and Confrontation in Criminal Trials (1996) 42. See also Delisle et al op cit
538; Sopinka, Lederman & Bryant The Law of Evidence in Canada 2 ed (1999) 174; Raeder
"Finding the proper balance in hearsay policy. The uniform rules attempt to stem the hearsay
tide in criminal cases without prohibiting all non-traditional hearsay" (2001) 54 Oklahoma Law
Review 631. See also Zeffertt, Paizes & Skeen The South African Law of Evidence (2003) 378;
S v Ndhlovu2002 (2) SACR 325 (SCA).
Footnote - 12
12 Choo op cit 43.
12 Choo op cit 43.
Footnote - 13
13 Choo op cit 43.
13 Choo op cit 43.
Footnote - 14
14 Choo op cit 43. See also Mueller "Post modern hearsay reform: the importance of complexity"
(1992) 76 Minnesota Law Review 367 at 380.
14 Choo op cit 43. See also Mueller "Post modern hearsay reform: the importance of
complexity" (1992) 76 Minnesota Law Review 367 at 380.
Footnote - 15
15 Mueller op cit 376.
15 Mueller op cit 376.
Footnote - 16
16 Mueller ibid.
16 Mueller ibid.
Footnote - 17
17 Allen "Commentary: A response to Professor Friedman. The evolution of the hearsay rule to a
rule of admission" (1992) 76 Minnesota Law Review 797 at 800.
17 Allen "Commentary: A response to Professor Friedman. The evolution of the hearsay rule
to a rule of admission" (1992) 76 Minnesota Law Review 797 at 800.
Footnote - 18
18 Allen ibid.
18 Allen ibid.
Footnote - 19
19 Nance "Commentary: A response to Professor Damaska: Understanding responses to hearsay:

an extension of the comparative analysis" (1992) 76 Minnesota Law Review 459. See also Friedman
"Toward a partial economic, game theoretic analysis of hearsay" (1992) 76 Minnesota Law Review
723 at 728.
19 Nance "Commentary: A response to Professor Damaska: Understanding responses to

hearsay: an extension of the comparative analysis" (1992) 76 Minnesota Law Review 459. See
also Friedman "Toward a partial economic, game theoretic analysis of hearsay" (1992) 76
Minnesota Law Review 723 at 728.
Footnote - 20
20 See for example, Tijmstra NO v Blunt-Mackenzie NO2002 (1) SA 459 (T) at 466.
20 See for example, Tijmstra NO v Blunt-Mackenzie NO2002 (1) SA 459 (T) at 466.
Footnote - 21
21 Nance op cit 463. This assumes that it is justified to place the costs of calling the original
declarant on the party against whom the hearsay is admitted.
21 Nance op cit 463. This assumes that it is justified to place the costs of calling the original
declarant on the party against whom the hearsay is admitted.
Footnote - 22
22 The South African Law of Evidence 377.
22 The South African Law of Evidence 377.
Footnote - 23
23 Ibid.
23 Ibid.
Footnote - 24
24 Raeder op cit 516.
24 Raeder op cit 516.
Footnote - 25
25 Friedman op cit 724.
25 Friedman op cit 724.
Footnote - 26
26 Ibid. However, Friedman notes that other considerations may require a departure from this
approach — "such as whether the proponent has a substantial advantage in satisfying all or part of
the burden of producing the declarant, or whether the proponent has given late notice of his intention
to offer hearsay".
26 Ibid. However, Friedman notes that other considerations may require a departure from
this approach — "such as whether the proponent has a substantial advantage in satisfying all
or part of the burden of producing the declarant, or whether the proponent has given late
notice of his intention to offer hearsay".
Footnote - 27
27 Scallen "Constitutional dimensions of hearsay reform: Toward a three dimensional confrontation

clause" (1992) 76 Minnesota Law Review 623 at 635.
27 Scallen "Constitutional dimensions of hearsay reform: Toward a three dimensional

confrontation clause" (1992) 76 Minnesota Law Review 623 at 635.
Footnote - 28
28 Op cit 644.
28 Op cit 644.
Footnote - 29
29 Op cit 646.
29 Op cit 646.
Footnote - 30
30 Op cit 647. See also Friedman "Face to face: Rediscovering the right to confront prosecution
witnesses" (2004) 8 International Journal of Evidence and Proof 1; Roberts & Zuckerman Criminal
Evidence (2004) 667-670.
30 Op cit 647. See also Friedman "Face to face: Rediscovering the right to confront
prosecution witnesses" (2004) 8 International Journal of Evidence and Proof 1; Roberts &
Zuckerman Criminal Evidence (2004) 667-670.
Footnote - 31
31 Op cit 653. See also generally § 18.11.2 above, where the right to confront is discussed in the
context of the intermediary as provided for in s 170A of the CPA.
31 Op cit 653. See also generally § 18.11.2 above, where the right to confront is discussed in
the context of the intermediary as provided for in s 170A of the CPA.
Footnote - 32
32 Park op cit 365. See also Choo op cit; Friedman "Face to face: rediscovering the right to confront
prosecution witnesses" (2004) 8 International Journal of Evidence and Proof 1; Ho "Confrontation and
hearsay: a critique of Crawford" (2004) 8 International Journal of Evidence and Proof 147 at 156.
Mueller op cit 384 notes that other grounds for objecting to hearsay include "concerns about …
concocted or exaggerated statements, and the use of trained investigators to exact statements by
trickery and offers of immunity or leniency".
32 Park op cit 365. See also Choo op cit; Friedman "Face to face: rediscovering the right to
confront prosecution witnesses" (2004) 8 International Journal of Evidence and Proof 1; Ho
"Confrontation and hearsay: a critique of Crawford" (2004) 8 International Journal of Evidence
and Proof 147 at 156. Mueller op cit 384 notes that other grounds for objecting to hearsay
include "concerns about … concocted or exaggerated statements, and the use of trained
investigators to exact statements by trickery and offers of immunity or leniency".
Footnote - 33
33 See Scallen op cit 649. See also Ho op cit 151.
33 See Scallen op cit 649. See also Ho op cit 151.
Footnote - 34
34 Raeder "Commentary: A response to Professor Swift: The hearsay rule at work: has it been
abolished de facto by judicial discretion" (1992) 76 Minnesota Law Review 507 at 512. See also Swift
"The hearsay rule at work: has it been abolished de facto by judicial discretion" (1992) 76 Minnesota
Law Review 473. See Roberts & Zuckerman Criminal Evidence op cit 599 and 603 who note that one
of the reasons that the hearsay rule has endured in criminal proceedings "is that hearsay evidence
involves unacceptable risks of convicting the innocent".
34 Raeder "Commentary: A response to Professor Swift: The hearsay rule at work: has it
been abolished de facto by judicial discretion" (1992) 76 Minnesota Law Review 507 at 512.
See also Swift "The hearsay rule at work: has it been abolished de facto by judicial discretion"
(1992) 76 Minnesota Law Review 473. See Roberts & Zuckerman Criminal Evidence op cit 599
and 603 who note that one of the reasons that the hearsay rule has endured in criminal
proceedings "is that hearsay evidence involves unacceptable risks of convicting the innocent".
Footnote - 35
35 2002 (2) SACR 325 (SCA).
35 2002 (2) SACR 325 (SCA).
Footnote - 36
36 Cf Schwikkard 2003 (120) SALJ 63; Zeffertt, Paizes & Skeen 378-9; S v Mokoena2006 (1) SACR
29 (W) at 48h. The Canadian hearsay rule has similarly passed constitutional muster. In terms of the
Canadian rule "[w]ritten or oral statements, or communicative conduct made by person otherwise
than in testimony at the proceedings in which it is offered, are inadmissible, if such statements or
conduct are tendered either as proof of their truth or as proof of assertions implicit therein". This
exclusionary rule is then subject to a number of exceptions. See Sopinka, Lederman & Bryant The
Law of Evidence in Canada (1999) 173 et seq. See also Delisle & Stuart Evidence Principles and
Problems op cit 537.
36 Cf Schwikkard 2003 (120) SALJ 63; Zeffertt, Paizes & Skeen 378-9; S v Mokoena2006 (1)
SACR 29 (W) at 48h. The Canadian hearsay rule has similarly passed constitutional muster. In
terms of the Canadian rule "[w]ritten or oral statements, or communicative conduct made by
person otherwise than in testimony at the proceedings in which it is offered, are inadmissible, if
such statements or conduct are tendered either as proof of their truth or as proof of assertions
implicit therein". This exclusionary rule is then subject to a number of exceptions. See Sopinka,
Lederman & Bryant The Law of Evidence in Canada (1999) 173 et seq. See also Delisle &
Stuart Evidence Principles and Problems op cit 537.
Document 112 of 330
13.3 Section 3 of the Law of Evidence Amendment Act

45 of 1988
Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides:
"3. (1) Subject to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings, unless —
(a) each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c) the court having regard to —
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might
entail; and
(vii) any other factor which should in the opinion of the court be taken into
account,
is of the opinion that such evidence should be admitted in the interests of justice.
(2) The provisions of subsection (1) shall not render admissible any evidence
which is inadmissible on any ground other than that such evidence is hearsay
evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection (1)(b)
if the court is informed that the person upon whose credibility the probative value of
such evidence depends, will himself testify in such proceedings: Provided that if such
person does not later testify in such proceedings, the hearsay evidence shall be left
out of account unless the hearsay evidence
3rd Ed, 2009 ch13-p275

is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in
terms of paragraph (c ) of that subsection.
(4) For the purposes of this section —
• 'hearsay evidence' means evidence, whether oral or in writing, the probative
value of which depends upon the credibility of any person other than the
person giving such evidence;
• 'party' means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution."
Document 113 of 330
13.4 The definition of hearsay

Section 3(4) of Act 45 of 1988 defines hearsay as "evidence, whether oral or in
writing, the probative value of which depends upon the credibility of any person
other than the person giving such evidence". The first step in applying the
definition would be to ask what the probative value of evidence is. For example, X
parks outside a supermarket and when he comes out he notices that somebody
must have reversed into the back of his car whilst he was shopping. A total
stranger comes up to him and says he witnessed the accident and recorded the
number of the other car. The stranger hands a piece of paper, on which a motor
vehicle registration number is written, over to X and then disappears never to be
seen again. X does not ask the stranger her name. The number given to X
corresponds with a car owned by Y. X sues Y. The piece of paper is tendered into
evidence. Its probative value is to establish that Y's car was the car that collided
with X's car. The next question must be upon whose credibility does the probative
value depend. To a limited extent the probative value rests on X in that he can
testify to and be cross-examined on his interaction with the stranger. However,
primarily the probative value would rest on the stranger. The fact that the
probative value partially rests on X will not negate the hearsay nature of the
evidence. Zeffertt, Paizes & Skeen prefer the view that "depends" requires that
the "probative value depend[s] sufficiently upon the credibility of someone other
than the witness to lead a court to believe that its potential for prejudice [is]
sufficiently great to warrant a full examination of all the relevant facts." 37
The courts need to guard against treating the common-law assertion-oriented
definition as functionally equivalent to the declarant-oriented definition provided
in s 3(4). Van Heerden JA in an obiter dictum in Mdani v Allianz Insurance Ltd
applied the statutory definition of hearsay as follows:
"If A testified that B made such an admission, A's evidence in itself is clearly not
hearsay. Whether B in fact made the admission, depends upon A's credibility and
can be tested by cross-examination. What is hearsay, is the content of the
admission if it is to be used to establish the truth of what was said. And whether the
content is true or not, depends entirely upon B's credibility."
This is a fusion of both the assertion-oriented and declarant-oriented definitions.
Paizes 39 gives the following example (amongst others) to illustrate the fallacy of
equating the two definitions: A tells B "I am alive" and this is tendered to
establish that A was in fact alive at the time. If we apply the common-law
assertion-oriented
3rd Ed, 2009 ch13-p276
definition, then the evidence must be hearsay. However, if we apply the

declarant-oriented test — namely does the probative value depend upon the
credibility of the non-witness who utters the words in question? — then it is not
hearsay, because the conclusion that A was alive is self-evident, since he spoke
the words.
Footnote - 37
37 At 366, emphasis in original text.
37 At 366, emphasis in original text.
Footnote - 38
38 1991 (1) SA 184 (A).
38 1991 (1) SA 184 (A).
Footnote - 39
39 Paizes 1983 SALJ 71 at 77.
39 Paizes 1983 SALJ 71 at 77.
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Document 1 of 330

E van der Berg

Juta's Quarterly Review of South African Law on

Mode of Citation of Principal Works and

CPA Criminal Procedure Act 51 of 1977

CPEA Civil Proceedings Evidence Act 25 of 1965

Du Toit et al E du Toit, F J de Jager, A P Paizes, A St Q Skeen, S E van der Merwe Commentary on

Schmidt & C W H Schmidt & H Rademeyer Bewysreg 4ed (2000)

Schmidt & Schmidt & Rademeyer Law of Evidence (2007)

Wigmore H J Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common

Zeffertt, Paizes & The South African Law of Evidence (2003)

3rd Ed, 2009 ch1-p1

3rd Ed, 2009 ch1-p2

1 Tapper Cross & Tapper On Evidence 11 ed (2007) 1.

1 Tapper Cross & Tapper On Evidence 11 ed (2007) 1.

1.2 Scope and functions of the law of evidence

1.3 Early history and development of the English law of

3rd Ed, 2009 ch1-p3

1.3.1 The religious (primitive) stage

3rd Ed, 2009 ch1-p4

1.3.2 The formal stage

1.3.3 The rational stage (and development of the jury) 26

3rd Ed, 2009 ch1-p5

3rd Ed, 2009 ch1-p6

7 See generally Nokes An Introduction to Evidence 4 ed (1967) 18; Thayer A Preliminary

10 Nokes An Introduction to Evidence 4 ed (1967) 18. However, cf Schwikkard Presumption of

10 Nokes An Introduction to Evidence 4 ed (1967) 18. However, cf Schwikkard Presumption

14 Paton & Derham A Text-book of Jurisprudence (1972) 597.

14 Paton & Derham A Text-book of Jurisprudence (1972) 597.

15 See also § 30.4 below.

15 See also § 30.4 below.

18 Van der Merwe 1991 Stell LR 281 290.

18 Van der Merwe 1991 Stell LR 281 290.

22 Langbein Torture and the Law of Proof (1977) 6.

22 Langbein Torture and the Law of Proof (1977) 6.

24 Best A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of

27 White "Origin and Development of Trial by Jury" 1961 29 Tennessee LR 8 15.

27 White "Origin and Development of Trial by Jury" 1961 29 Tennessee LR 8 15.

28 Bushell's Case 124 ER 1006 1009.

28 Bushell's Case 124 ER 1006 1009.

29 Forkosch "The Nature of Legal Evidence" 1971 59 California LR 1356 1373.

29 Forkosch "The Nature of Legal Evidence" 1971 59 California LR 1356 1373.

31 Section 3 of the Administration of Justice (Further Amendment) Act 11 of 1927.

31 Section 3 of the Administration of Justice (Further Amendment) Act 11 of 1927.

32 Abolition of Juries Act 34 of 1969.

32 Abolition of Juries Act 34 of 1969.

33 Van der Merwe 1991 Stell LR 281.

33 Van der Merwe 1991 Stell LR 281.

3rd Ed, 2009 ch1-p7

38 Mueller & Le Poole-Griffiths Comparative Criminal Procedure (1969) 50.

39 Morgan "Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence"

1.5 Ordinary Courts and Small Claims Courts: An

3rd Ed, 2009 ch1-p8

in Anglo-American tradition, practice, rules and principles. But the procedural

3rd Ed, 2009 ch1-p9

1.5.2 Accusatorial versus inquisitorial procedure 53

3rd Ed, 2009 ch1-p10

energy, ruthlessness and even permissible rudeness which the cross-examiner