101_2017_3_e-4

EVI3701/101/3/2017
Tutorial Letter 101/3/2017
Law of Evidence: Admissibility of

Evidence
EVI3701
Semesters 1 and 2
Department of Criminal and Procedural Law
This tutorial letter contains important information

about your module.
BARCODE
CONTENTS
Page
1 INTRODUCTION AND WELCOME. 3
2 PURPOSE AND OUTCOME 3
3 COMMUNICATION WITH YOUR LECTURERS 4

3.1 Calling or visiting lecturers. 4
3.2 E-mailing lecturers 5
3.3 Contact details of lecturers 5
4 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION 5
5 STUDENT SUPPORT SYSTEM 6

5.1 Student counselling 6
5.2 Learning centres 6
5.3 Group discussions 6
5.4 Contact with fellow students. 6
5.5 myUnisa 6
5.6 Free computer and internet access 6
5.7 Library services and resources information 7
6 STUDY MATERIAL 7
6.1 Inventory letter 7
6.2 Study material 7
6.3 Prescribed textbooks. 8
6.4 Study guide . 8
7 HOW THE EXAMINATION SYSTEM WORKS 9

7.1 Admission to the examination 9
7.2 Examination period 9
7.3 Examination paper 9
7.4 Previous examination papers 9
7.5 Supplementary examination and the semester mark 10
7.6 Tutorial letter with information on the examination 10
8 HOW THE ASSIGNMENT SYSTEM WORKS 10

8.1 General remarks 10
8.2 Commentaries and feedback on assignments 10
8.3 Submission dates 11
8.4 Cooperation between students 11
9 THE ASSIGNMENTS 11
9.1 FIRST SEMESTER: COMPULSORY ASSIGNMENT 01 11
9.2 FIRST SEMESTER: COMPULSORY ASSIGNMENT 02 13
9.3 SECOND SEMESTER: COMPULSORY ASSIGNMENT 01 18
9.4 SECOND SEMESTER: COMPULSORY ASSIGNMENT 02 20
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EVI3701/101/3/2017
1 INTRODUCTION AND WELCOME

Welcome to the module Law of Evidence: admissibility of evidence! You will find a
similar word of welcome in the introduction to your study guide. Please read both these
introductory words of welcome with care, and note that, should the information they
impart differ, you should follow the information in this tutorial letter.
The Law of Evidence is presented in two modules, namely Evidence: admissibility of

evidence (EVI3701) and Evidence: the presentation and assessment of evidence
(EVI3702). This tutorial letter pertains to EVI3701 only, for both semesters of 2017. Both
modules are normally taken during the third year of study.
We are pleased to welcome you to this module, and hope that you will find it both
interesting and rewarding. We will do our best to help you achieve success in your study
of this module. You will be well on your way to success if you start studying early in
the semester/year and complete the assignments with due diligence. You will receive a
number of tutorial letters during the year. A tutorial letter is our way of communicating
with you about teaching, learning and assessment.
Tutorial letter 101 contains important information about the scheme of work, resources
and assignments for this module. We urge you to read this tutorial letter carefully and to
keep it at hand when working through the tutorial material, preparing the assignments,
preparing for the examination and addressing questions to your lecturers.
Please read Tutorial Letter 301 in combination with Tutorial Letter 101 as it gives you an
idea of generally important information when studying from a distance and about a
particular college.
In this tutorial letter, you will find the assignments for both semesters and instructions on
the preparation and submission of the assignments. This tutorial letter also provides all
the information you need with regard to the prescribed tutorial material and how to
obtain it. Please study this information carefully and make sure that you obtain the
prescribed material as soon as possible. We have also included some general and
administrative information about this module. Please study this section of the tutorial
letter carefully.
Right from the start we would like to point out that you must read all the tutorial letters
you receive during the semester immediately and carefully, as they always contain
important and sometimes urgent information.
We hope that you will enjoy this module, and wish you all the best!
2 PURPOSE AND OUTCOME

The purpose of this module is for students to gain knowledge, skills and competencies
to analyse and solve problems relating to the general concepts and sources of the law of
evidence and the admissibility of evidence.
A range of tasks in the study guide and tutorial letters, assignments and examinations
will ensure that students achieve the following outcomes:
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■ identification and comprehension of the role of the general concepts and sources
of the law of evidence and the admissibility of evidence in current South African
law and everyday life
■ an understanding of the history and theoretical framework of the general

concepts and sources of the law of evidence and the admissibility of evidence
■ application of the concepts and sources regarding the general concepts and
sources of the law of evidence and the admissibility of evidence in practical
situations, as well as the solving of multidimensional legal problems associated
with the general concepts and sources of law of evidence and the admissibility of
evidence
■ understanding the legal methods of enquiry and research into the general
concepts and sources of the law of evidence and the admissibility of evidence
3 COMMUNICATION WITH YOUR LECTURERS

All queries that are not of a purely administrative nature but which concern the
content of this module should be directed to the lecturers. Please have your study
material with you when you contact us. Administrative queries include questions regarding
your tutorial material, availability of prescribed books, whether assignments have been
received, what marks you obtained, as well as when you will be writing the examination.
You are most welcome to contact us regarding any academic enquiries. Our contact
details are set out in the table below. Note that it is not advisable to address a letter or fax
to a specific lecturer personally, as he or she may be absent from the office from time to
time. Address any postal letter (snail mail) as follows:
The Module Leader (EVI3701)

Department of Criminal and Procedural Law
PO Box 392
UNISA
0003
PLEASE NOTE: Letters to lecturers may not be enclosed with or inserted into
assignments.
3.1 Calling or visiting lecturers
You are always welcome to call the lecturers or to send them an e-mail. You will always
have a better chance of getting hold of the lecturers before 13:00, but if the lecturer is
not available, messages can be left on the answering system (voicemail).
Alternatively you can phone the departmental secretaries at 012 429 8397/8444/4995.
y o u are also welcome to visit us in person, on the 8th floor of the Cas van Vuuren
Building, Main Campus, Muckleneuk Ridge. However, always make an appointment
before you do so. This will prevent a situation where you arrive at our offices, only to
find that we have a prior engagement or are on leave.
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3.2 E-mailing lecturers
E-mail is increasingly the preferred method of communication. You can either e-mail
us directly, or via the relevant links on myUnisa. If you send the same message to more
than one lecturer, please select one to send the message to, and “CC” the others. This
will speed up a response from our side.
3.3 Contact details of lecturers
Lecturer Telephone Office E-mail

Prof SS Nel 012 429 8336 Cas van Vuuren 8-80 nelss@unisa.ac.za
Adv M Monyakane 012 428 4294 Cas van Vuuren 8-74 monyammm@unisa.ac.za
4 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION

Students should address all queries on administrative matters to the addresses or
telephone or fax numbers of the relevant administrative department. Contact addresses
of the various departments are included in the booklet Study@Unisa, which you will
receive with your tutorial material. This booklet contains information on how to contact
the University (e.g. to whom you may write, important telephone and fax numbers,
addresses, and details of the times certain facilities are open). For convenience, we
repeat that administrative queries include questions regarding, for instance, your tutorial
material, the availability of prescribed books, whether your assignments have been
received, what marks you obtained for the assignment, any arrangements regarding
the examination, and the re-marking of examination papers. Please remember that, a t
certain times of the year, the University is inundated with enquiries from thousands of
students. Try to space your enquiries so that they will not overlap with these busy
periods. Always have your student number at hand when you call the University. Note
that you may also use the Unisa website (www.unisa.ac.za) or e-mail if you have
access to such facilities. More facilities are continuously recorded on the website.
How can students now contact Unisa?
■ Unisa website (http://www.unisa.ac.za & http://mobi.unisa.ac.za)

All study-related information is now available on the new Unisa corporate website in
both web and mobi formats.
■ myUnisa (https://my.unisa.ac.za/portal & https://my.unisa.ac.za/portal/pda)

Students can access their own information via the myUnisa website or mobi site.
■ E-mail (info@unisa.ac.za)
Students may send an e-mail to info@unisa.ac.za for information on how to contact
Unisa via e-mail.
■ SMS (32695 – only for students in South Africa)

Students may send an SMS to 32695 for more information on how to contact Unisa
via SMS.
■ Fax 012 429 4150

Student support system
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5 STUDENT SUPPORT SYSTEM
5.1 Student counselling
For information on the various student support systems and services available at
Unisa (eg student counselling, tutorial classes, language support), please consult the
booklet Study@Unisa. It is particularly important that you make use of these services if
you are struggling with your studies or if you want to improve your language and writing
skills.
5.2 Learning centres
Tutorial services are available for this module at the various Unisa learning
centres. Please consult the publication Study@Unisa for further information.
5.3 Group discussions
There are no group discussions scheduled for 2017.
5.4 Contact with fellow students
5.4.1 Study groups
It is advisable to form study groups and to have contact with fellow students. The
addresses of students in your area may be obtained from the following department:
Directorate: Student Administration and Registration

PO Box 392
UNISA
0003
5.5 myUNISA
If you have access to a computer that is linked to the internet, you can quickly access
resources and information at the University. The myUnisa learning management system
is Unisa’s online campus which will help you to communicate with your lecturers, with
other students and with the administrative departments of Unisa – all through the
internet.
To go to the myUnisa website, start at the main Unisa website,

http://www.unisa.ac.za, and then click on Login to myUnisa on the right-hand side of
the screen. This should take you to the myUnisa website. You can also go there directly
by typing in http://my.unisa.ac.za.
Please consult the booklet Study@Unisa, which you received with your study material,
for more information on myUnisa.
5.6 Free computer and internet access
Unisa has entered into partnerships with establishments (referred to as telecentres) in

various locations across South Africa to enable you (as a Unisa student) free access to
computers and the internet. This access enables you to perform the following academic-
related activities: registration; online submission of assignments; and engaging in e-
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tutoring activities and signature courses. Please note that any other activity outside of
these is for your own costing, for instance printing and photocopying. For more
information on the telecentre nearest to you, please visit www.unisa.ac.za/telecentres.
5.7 Library services and resources information
For brief information go to : http://www.unisa.ac.za/contents/studies/docs/myStudies-at-

Unisa2016-brochure.pdf
For more detailed information, go to the Unisa website: http://www.unisa.ac.za/, click on
Library
For research support and services of Personal Librarians, go to:
http://www.unisa.ac.za/Default.asp?Cmd=ViewContent&ContentID=7102
The Library has compiled numerous library guides:
 find recommended reading in the print collection and e-reserves -
http://libguides.unisa.ac.za/request/undergrad
 request material - http://libguides.unisa.ac.za/request/request
 postgraduate information services - http://libguides.unisa.ac.za/request/postgrad
 finding , obtaining and using library resources and tools to assist in doing research
http://libguides.unisa.ac.za/Research_Skills
 how to contact the Library/find us on social media/frequently asked questions -
http://libguides.unisa.ac.za/ask
6 STUDY MATERIAL
6.1 Inventory letter
At the time of registration, you will receive an inventory letter which will indicate which
items you have received in your study package, as well as those that are still
outstanding. Also see the publication Study@Unisa.
Check the study material you have received against the inventory letter. You should
have received all the items specified in the inventory, unless there is a statement such
as “out of stock” or “not available”. If any item is missing, follow the instructions on the
back of the inventory letter without delay.
6.2 Study material
The tutorial material for Evidence: admissibility of evidence (EVI3701) consists of the
following:
(a) two prescribed textbooks (which you have to purchase yourself)

(b) a study guide
(c) tutorial letters (which you will receive during the year/semester)
The Department of Despatch will provide the tutorial letters and study guide for this
module. Some of this study material may not be available when you register. Apart
from Tutorial Letters 101 and 301, you will also receive other tutorial letters during the
year/semester. These tutorial letters will be despatched to you as soon as they are
available or needed (for instance, for feedback on an assignment). Tutorial letters are
part of your study material for assignment and examination purposes. Read and re-read
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each tutorial letter; keep them for reference purposes, and study them again. We do not
know which tutorial letters reach you and which do not. Therefore the onus is on you to
ensure that you receive every tutorial letter. Generally, the last letter which you will
receive will deal with your preparation for the examination, and should reach you not
later than approximately three weeks before the examination.
If you have access to the internet, you can view the study guides and tutorial letters for
the modules for which you are registered on the University’s online campus, myUnisa, at
http://my.unisa.ac.za.
6.3 Prescribed textbooks
The prescribed textbooks for this module for 2017 are the following:
(a) Schwikkard PJ & Van der Merwe SE Principles of Evidence 4 ed (2016) Juta Cape
Town.
(b) Van der Merwe DP, Terblanche SS, Naudé BC & Moodley K The Law of
Evidence: Cases and Statutes 5ed (2016) Juta Cape Town.
Please consult the list of official booksellers and their addresses listed in the booklet
my Studies@Unisa. If you have any difficulties in obtaining books from these
bookshops, please send an e-mail to vospresc@unisa.ac.za or contact the Registrar as
soon as possible at 012 429 4152.
6.4 Study guide
You will receive one study guide for EVI3701. The study guide consists of 16 study
units. The introduction contains a description of the literature for this course and the
study method you should follow. Please read the introductory unit of your study guide
carefully, as it sets out what we expect of you in this module.
Bear in mind that merely memorising the contents of the study guide is not sufficient.
You must also consult your prescribed books. Certain parts of the work which you
must study for the examination are not discussed in the study guide but only in your
textbook. You have to study these parts of the syllabus in the abovementioned
book. In the course of the discussions in the study guide, we refer you to those parts
of the book which you must study. Furthermore, if the discussion of a certain topic in
the study guide is not clear to you, it will probably become clear if you consult the
discussion of that particular topic in the prescribed works.
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7 HOW THE EXAMINATION SYSTEM WORKS

7.1 Admission to the examination
You must submit two compulsory assignments during the semester for which
you are registered. If you are registered for the first semester, you must submit
the first semester’s assignments only. If you are registered for the second
semester, you must submit the second semester’s assignments only. Both
assignments contribute to your semester mark.
NB! PLEASE NOTE THAT YOU MUST SUBMIT THE FIRST ASSIGNMENT IN
ORDER TO GAIN ENTRANCE TO THE EXAMINATION.
All students who submit the first compulsory assignment in time (before or on the date
of submission) will be admitted to the examination, regardless of the mark obtained. In
other words, a student who submitted the first assignment but obtained 0% will still be
allowed to sit for the examination. Students who do not submit the first compulsory
assignment before or on the due date will not receive admission to write the
examination, irrespective of whether or not they submit the second compulsory
assignment thereafter.
The two compulsory assignments (10% each) will comprise 20% of your final mark.
7.2 Examination period
EVI3701 is a semester module. This means that if you are registered for the first
semester, you will write the examination in May/June 2017 and the supplementary
examination in October/November 2017. If you are registered for the second semester,
you will write the examination in October/November 2017 and the supplementary
examination in May/June
2017. During the course of the semester, the Examination Section will send you
information regarding the examination in general, examination venues, examination
dates and examination times.
7.3 Examination paper
At the end of the semester you will write one two (2)-hour paper. This paper counts
100 marks and contributes 80% towards your final mark.
Please note that, irrespective of your semester mark obtained, you must obtain at
least 40% in the examination in order for your semester mark to be taken into
account for your final mark.
7.4 Previous examination papers
You may accept that examination questions will be similar to the questions asked in the
activities in your study guide and in the assignments. The assignments also contain
questions from previous examination papers. These will give you a good idea of the way
examination questions are formulated. You will be given feedback on these questions
in a following tutorial letter, and that will indicate how such questions should be
answered. Previous examination papers are also available on myUnisa.
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7.5 Supplementary examination and the semester mark
Please note that should the University grant you a supplementary examination, your
semester mark will not count towards your final mark. In other words, your
examination will count 100% of your final mark and you will have to achieve a mark of at
least 50% in the supplementary examination to pass this module.
However, this arrangement will not affect students who write the aegrotat (sick)
examination. In other words, students who for health reasons are unable to write the
examination and have a medical certificate to prove it, will be in the same position as
students who wrote the examination. Their semester mark will constitute 20% of their
final mark.
7.6 Tutorial letter with information on the examination
To help you in your preparation for the examination, you will receive a tutorial letter
which will explain the format of the examination paper and set out clearly what material
you have to study for examination purposes.
8 HOW THE ASSIGNMENT SYSTEM WORKS

8.1 General remarks
Assignments should be addressed to: The Registrar

PO Box 392
UNISA
0003
You may submit written assignments and assignments done on mark-reading

sheets either by post or electronically via myUnisa. Assignments may not be submitted
by fax or e-mail. For detailed information and requirements as far as assignments are
concerned, see the booklet Study@Unisa, which you received with your study material.
To submit an assignment via myUnisa, do the following:
■ Go to myUnisa.
■ Log in with your student number and password.
■ Select the module.
■ Click on Assignments in the left-hand menu.
■ Click on the assignment number you want to submit.
■ Follow the instructions on the screen.
8.2 Commentaries and feedback on assignments
Commentaries on compulsory assignments will be sent to all students registered

for this module in a follow-up tutorial letter, and not only to those students who
submitted the assignments. Please check your answers as soon as you receive the
commentaries. The assignments, and the commentaries on these assignments,
constitute an important part of your learning and will help you to be better prepared for
the next assignment and the examination.
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8.3 Submission dates
The closing dates for the submission of the two compulsory assignments are:
First semester:
■ 10 March 2017 – Assignment 01
3 April 2017 – Assignment 02
Second semester:
■ 18 August 2017 – Assignment 01
08 September 2017 – Assignment 02
Please note that the closing dates for assignments are the dates when assignments
must reach Unisa.
8.4 Cooperation between students
Please note: Although students may work together when preparing assignments,
each student must write and submit his or her own individual assignment. In other
words, you must submit your own ideas in your own words, sometimes interspersing
relevant short quotations that are properly referenced. It is unacceptable for students to
submit identical assignments on the basis that they worked together. That is copying (a
form of plagiarism) and none of these assignments will be marked. Furthermore, you
may be penalised or subjected to disciplinary proceedings by the University.
For general information and requirements as far as assignments are concerned, see the
brochure Study@Unisa, which you received with your study material.
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9 THE ASSIGNMENTS
This section contains the two compulsory assignments which have been set for this
module. The first assignment contains essay questions, similar to the ones you can
expect in the examination. The second assignment consists of multiple-choice questions.
9.1 FIRST SEMESTER: COMPULSORY ASSIGNMENT 01
Closing date: 10 March 2017 Unique assignment number: 592415
Please note that this assignment is compulsory for students registered for EVI3701 in
the FIRST SEMESTER. It is the first compulsory assignment for the FIRST SEMESTER.
You have to submit this assignment on time in order to obtain admission to the
examination in May/June 2017. Do not delay completing the assignment. The onus to
ensure that it is submitted on time rests with you.
This assignment consists of a problem question. Consult the booklet Study @ Unisa
regarding requirements for submitting the assignment. Substantiate your answers and
refer to decided cases, where relevant. In determining the length of your answers you
should be guided by the marks allocated to each subdivision.
Please note that problem questions should always be answered with the following
guidelines in mind:
■ Identify and state the central issue of a particular question. This should be done with
reference to the facts of the question and a definition. Always consider that more than
one issue could be involved.
■ Always give a definition of the particular concept or type of evidence you have
identified.
■ State the general rule regarding admissibility or the type of evidence and mention all
the exceptions.
■ Discuss the relevant exception or give a general discussion of the law applicable to
the specific issue involved. The marks set at a specific question will be the best
indication of the amount of information you should give. Never forget to discuss cases
and legislation.
■ Give a motivated conclusion with reference to the facts of the question.
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QUESTION:
A suspect in police custody makes a statement to the arresting officer, Mr Mhlongo. He alleges
that he punched Ndhlovu full of holes without paying attention as to where he was inserting his
knife, so that in future, when Ndhlovu thought of taking other people’s beers, he would think
twice. Mr Ndhlovu took his friend (Mr Litako)’s beer and drank it all while Litako went to the
bathroom. As the suspect was looking after Litako’s beer, he then knifed Ndhlovu, as he
explained. While relating his story to Mhlongo, Litako was present and listening. The suspect is
subsequently charged of murdering Ndhlovu.
(1) Define the suspect’s statement to Mr Mhlongo. Consider the principle in S v Yende 1987
(3) SA 367 (A) in your discussion. (5)
(2) Fully discuss, with reference to decided cases, the admissibility of the suspect’s
statement to Mr Mhlongo. (5)
(3) The prosecutor wants to call Litako to come and testify as to the truth of the statement.
Explain the possibility that the defence counsel would object to this type of evidence. (5)
(4) Under what circumstances would a similar type of evidence as Litako’s be admissible?
Refer to relevant case law. (5)
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9.2 FIRST SEMESTER: COMPULSORY ASSIGNMENT 02
Closing date: 3 April 2017 Unique assignment number: 827784
the FIRST SEMESTER. It is the second compulsory assignment for the FIRST
SEMESTER.
Assignment 02/2017 contains multiple-choice questions. It consists of a number of

statements, with a number of possible answers. You have to select the correct answer
and enter it on the mark-reading sheet. For the completion of Assignment 02/2017, see
the relevant section of the booklet Study @ Unisa. It is most important that you use an
HB pencil. Remember that the mark-reading sheet is marked by computer and that you
have to follow the instructions carefully to ensure that your assignment is marked
correctly.
Also remember to enter the “UNIQUE ASSIGNMENT NUMBER” in the relevant space
on the mark-reading sheet.
Note that this assignment will serve as an overview of the entire study guide, as the
relevant information might come from any of the chapters.
Please note that the assignments for the two semesters are not the same and that you
must ensure that you answer the questions for the semester for which you registered.
Question 1
(a) If the current South African law does not provide a solution to an evidentiary problem, our
courts will first of all search for the answer in the early Roman-Dutch law.
(b) Evidence obtained in a manner that violates the Constitution will always be inadmissible.
(c) Substantive law indicates which procedure must be followed to prove a case.
(d) The facts in dispute in a particular case are heavily influenced by the applicable
substantive law.
Answer 1
(1) Only statements (a) and (b) are correct.

(2) Only statements (a), (b) and (d) are correct.
(3) Only statement (c) is correct.
(4) Only statement (d) is correct.
(5) All the statements are correct.
Question 2
(a) A statement that was made without prejudice and in good faith can be disclosed if it
constitutes an act of insolvency.
(b) A previous consistent statement will not be admitted even if it is relevant in supporting the
credibility of the witness.
(c) Facts relevant to the facts in issue may become in issue themselves. An example would
be the reliability of a witness.
(d) If all the parties to an issue agree to the admission of hearsay evidence, that evidence
will no longer be hearsay and consequently becomes admissible.
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Answer 2
(1) Only statements (a) and (c) are correct.

(2) Only statements (b) and (c) are correct.
(3) Only statements (a), (b) and (c) are correct.
(4) Only statements (a), (c) and (d) are correct.
(5) None of the statements is correct.
Question 3
(a) During a trial, the court first has to consider the competency of a witness, then the
admissibility of evidence, and finally the weight or persuasive value of evidence. The
weight of evidence therefore plays no part when the court considers the admissibility of
that evidence.
(b) A finding by a court that a particular piece of evidence is inadmissible due to irrelevance
is final and cannot be reconsidered during the course of the same trial.
(c) The accused, in trying to dispute the admissibility of a confession that was made while he
or she was in detention, wants to present evidence that, on other occasions, the police
have used improper means to get statements from him or her. This evidence is evidence
about previous consistent statements.
(d) Similar-fact evidence can only be used by the state, since the law prohibits the accused
from using similar-fact evidence to his advantage.
Answer 3

(4) Only statements (c) and (d) are correct.
(5) Only statement (b) is correct.
Question 4
(a) When evidence about someone’s character is important for purposes of the law of
evidence, the common law states that only evidence of the true nature of such a person
may be presented.
(b) Section 197 of the Criminal Procedure Act 51 of 1977 protects an accused against
answering certain questions during cross-examination, but this protection falls away
where the accused is charged with the crime of receiving stolen property.
(c) In the case of an alleged offence of a sexual nature, evidence of a previous
consistent statement will inter alia be admissible if the complaint was made at the first
reasonable opportunity, but not later than 48 hours after the offence was committed.
(d) In S v Moti 1998 (2) SACR 245 (SCA), the court found evidence of a photo-identification
to be admissible as an exception to the rule against the admissibility of similar-fact
evidence.
Answer 4

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(5) Only statements (b) and (d) are correct.
Question 5
Mr C testifies in court about the theft of his car. During cross-examination the defence alleges
that he is lying. The prosecutor accordingly calls Mr W to come and testify that Mr C had earlier
told him the same thing. Mr W’s evidence is
(a) hearsay evidence.

(b) evidence about a previous consistent statement.
(c) admissible if it is presented to corroborate Mr C’s evidence.
(d) admissible if it is presented to strengthen Mr C’s credibility.
Answer 5
(1) Only statements (a) and (d) are correct.

(5) Only statements (b), (c) and (d) are correct.
Question 6
(a) If the measures that our courts have developed to ensure the accuracy of identification
parades have not been complied with, evidence of an identification during such a parade
will necessarily be inadmissible.
(b) A number of principles have developed over time to ensure the fairness of an
identification parade. One principle is that it is important that the people in the parade do
not wear similar clothes.
(c) There is question of a previous consistent statement when, during testimony in court, a
witness repeats a statement consistent with one made on a previous occasion, in order
to corroborate his or her evidence.
(d) There is question of a previous consistent statement when a witness repeats a consistent
statement made by another witness on a previous occasion, which serves as self-
corroboration for the other witness.
Answer 6

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Question 7
(a) Although a court has a discretion to allow hearsay evidence, this discretion will more
readily be exercised in criminal than in civil matters.
(b) The court's approach in McDonald’s Corp v Joburgers Drive-Inn Restaurant 1997 (1) SA
1 (A) provides a good example of how the common law hearsay exceptions should be
handled today.
(c) A statement made to a justice of the peace will in principle be a confession if the
statement was made freely and voluntarily, while the declarant was in his sound and
sober senses and without being unduly influenced to make the statement.
(d) When experts refer to textbooks while testifying in court, they must not merely convey the
opinion of the writer of the textbook to the court, since that will constitute evidence of a
previous consistent statement.
Answer 7

Question 8
(a) If a witness in a civil case tells the court that something was admitted by another person,
such evidence will constitute hearsay evidence.
(b) In criminal cases, formal admissions and confessions are normally confirmed and
reduced to writing by a magistrate before the accused appears in court.
(c) A confession made to a justice of the peace must be confirmed and reduced to writing in
the presence of a magistrate or a peace officer in order to be admissible.
(d) The accused points out the weapon that he used to kill his wife. His act of pointing out
can be described as an informal admission.
Answer 8

(3) Only statement (a) is correct.
Question 9
(a) Privilege evidence is excluded because it is irrelevant.

(b) The testimony given by a witness in a criminal case can never be used against him or her
in a subsequent criminal case if the presiding officer at the first proceedings did not
inform such a person of his or her rights as a witness.
(c) According to S v Dlamini 1999 (2) SACR 51 (CC), any evidence given by an accused
during a bail hearing can never be used against him or her in the main trial.
(d) Legal professional privilege falls away if a statement can prove the innocence of an
accused.
17
Answer 9

Question 10
(a) A spouse can claim marital privilege with regard to communications which were made
during the course of a marriage, even if the spouses are already divorced at the time the
privilege is claimed.
(b) Marital privilege belongs to the party who made a specific communication.
(c) Marital privilege belongs to the party to whom a specific communication was made.
(d) If public policy requires that the identity of an informer be kept secret, this should be
done, even where informers themselves want to disclose their identity.
Answer 10

18
EVI3701/101/3/2017
9.3 SECOND SEMESTER: COMPULSORY ASSIGNMENT 01
Closing date: 18 August 2017 Unique assignment number: 723100
the SECOND SEMESTER. It is the first compulsory assignment for the SECOND
SEMESTER. Do not delay completing the assignment. The onus to ensure that it is
submitted in time rests with you. This assignment consists of a problem question.
Consult the booklet Study@Unisa regarding requirements for submitting the
assignment. Substantiate your answers and refer to decided cases, where relevant. In
determining the length of your answers, you should be guided by the marks allocated to
each subdivision.
Please note that problem questions should always be answered with the following
guidelines in mind:
■ Identify and state the central issue of a particular question. This should be done with
reference to the facts of the question and a definition. Always consider that more than
one issue could be involved.
■ Always give a definition of the particular concept or type of evidence you have
identified.
■ State the general rule regarding admissibility or the type of evidence and mention all the
exceptions.
■ Discuss the relevant exception or give a general discussion of the law applicable to the
specific issue involved. The marks set at a specific question will be the best indication of
the amount of information you should give. Never forget to discuss cases and legislation.
■ Give a motivated conclusion with reference to the facts of the question.
19
QUESTION:
The accused, a doctor, is charged with two counts of indecent assault on two female patients
that allegedly took place while they were under hypnosis. The first count alleges that he had
indecently assaulted a woman called Tshepang during a consultation on 21 August 2015. The
second count alleges that he had indecently assaulted a woman called Majane on 02
September 2015. For reasons unrelated to the alleged indecent assault, Tshepang committed
suicide before the start of the trial. Several months before her death she had, however, made a
statement to the police about the alleged assault. She had also told two friends, Ken and Alan,
that the accused had indecently assaulted her. The prosecution also obtained statements from
three other witnesses who alleged that the accused had made improper suggestions to them
while under hypnosis. From the start of the investigation, it is clear that the accused’s version is
that both women are lying about the events in question. Fully discuss, with reference to decided
cases, the admissibility of the following possible evidence:
(1) Testimony by the three other witnesses who alleged that the accused had made
improper suggestions to them while under hypnosis. (5)
(2) The admissibility of the hearsay statements Tshepang had made to Ken, Alan and to the
police. (4)
(3) The admissibility of evidence given by witnesses who tell the court that Majane had also
made previous statements to them about the alleged indecent assaults. (4)
(4) Evidence given on behalf of the accused by witnesses who testify about his good
character. (3)
(5) Evidence given on behalf of the accused by witnesses who testify about the character of
Tshepang and Majane. (Discuss in terms of section 227 of the Criminal Procedure Act 51
of 1977.) (4)
20
EVI3701/101/3/2017
9.4 SECOND SEMESTER: COMPULSORY ASSIGNMENT 02
Closing date: 08 September 2017 Unique assignment number: 881308
the SECOND SEMESTER. It is the second compulsory assignment for the SECOND
SEMESTER.
Assignment 02/2017 contains multiple-choice questions. It consists of a number of

statements, with a number of possible answers. You have to select the correct answer
and enter it on the mark-reading sheet. For the completion of Assignment 02/2017, see
the relevant section of the booklet Study @ Unisa. It is most important that you use an
HB pencil. Remember that the mark-reading sheet is marked by computer and that you
have to follow the instructions carefully to ensure that your assignment is marked
correctly. Also remember to enter the UNIQUE ASSIGNMENT NUMBER in the relevant
space on the mark-reading sheet.
Note that this assignment will serve as an introduction to the entire study guide, as the
relevant information might come from any of the chapters. However, it is not
necessary to read those sections in the chapter not pertaining to the relevant question.
Please note that the assignments for the two semesters are not the same and that you
must ensure that you answer the questions for the semester for which you registered.
Question 1
In Hlongwane v Rector, St Francis College 1989 (3) SA 318 (D), the court indicated the
following considerations which favoured the exclusion of the hearsay evidence:
(a) The probative value of the hearsay evidence. The hearsay was corroborated by various
other pieces of evidence.
(b) The nature of the proceedings, the nature of the evidence and the purpose for which the
evidence was tendered.
(c) The reason why the person on whose credibility the evidence depended did not testify,
namely intimidation and fear of reprisals.
(d) The fact that the admission of the hearsay evidence would bring the issue to a close.
Answer 1

21
Question 2
(a) In the case of a residuary clause, our courts have to determine what the English law
entailed immediately before South Africa became a republic in 1961.
(b) Roman-Dutch law is the common law of South Africa and therefore constitutes the
historical source of our substantive and formal law.
(c) In terms of section 35(1) of the Constitution, every arrested person has the right to
adduce and challenge evidence.
(d) A finding by a court that a particular piece of evidence is inadmissible due to irrelevance
is final and cannot be reconsidered during the course of the same trial.
Answer 2

Question 3
(a) A person is charged with fraud in that he or she made a false statement to a financial
institution. Evidence that this person has, on previous occasions, made similar false
statements to other financial institutions, is hearsay evidence.
(b) A person is charged with fraud in that he or she made a false statement to a financial
institution. Evidence that this person has, on previous occasions, made similar false
statements to other financial institutions, is evidence about previous consistent
statements.
(c) The accused, in trying to dispute the admissibility of a confession made while he or she
was in detention, wants to tender evidence that, on other occasions, the police have
used improper means to get statements from him or her. This evidence is evidence of
previous consistent statements.
(d) The accused is charged with dealing in dagga. The fact that the accused has previously
been convicted of dealing in dagga is hearsay evidence.
Answer 3

22
EVI3701/101/3/2017
Question 4
(a) A similar fact may be distinguished from a previous consistent statement in that a similar
fact will seldom, if ever, take the form of a statement.
(b) Similar-fact evidence can only be used by the state, since the law prohibits the accused
from using similar-fact evidence to his advantage.
(c) Section 197 of the Criminal Procedure Act 51 of 1977 protects an accused against
answering certain questions during cross-examination, but this protection falls away where
the accused gives evidence against any other person charged with the same offence or
an offence in respect of the same facts.
(d) When evidence about someone’s character is important for purposes of the law of
evidence, the common law states that only evidence of the general reputation of such a
person may be presented.
Answer 4

Question 5
Section 35(5) of the Constitution reads as follows:
(a) “Evidence obtained in a manner that violates any right in the Bill of Rights can be excluded
if the admission of that evidence would render the trial unfair or otherwise be detrimental
to the administration of justice.”
(b) “Evidence obtained in a manner that violates any right in the Bill of Rights should be
excluded if the admission of that evidence would be detrimental to the administration of
justice or otherwise render the trial unfair.”
(c) “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.”
(d) “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 and also be
detrimental to the administration of justice.”
Answer 5

23
Question 6
(a) In the case of an alleged offence of a sexual nature, evidence of a previous consistent
statement will inter alia be admissible if the complaint was made at the first reasonable
opportunity, but not later than 48 hours after the offence was committed.
(b) A number of principles have over time developed to ensure the fairness of an
identification parade. One principle is that it is important that the people in the line-up do
not wear similar clothes.
(c) There is question of a previous consistent statement when, during testimony in court, a
witness repeats a statement consistent with one made on a previous occasion, in order
to corroborate his or her evidence.
(d) There is question of a previous consistent statement when a witness repeats a consistent
statement made by another witness on a previous occasion, which serves as self-
corroboration for the other witness.
Answer 6

Question 7
In the course of a civil matter, the plaintiff wants to present the record of a witness’ testimony in
a criminal trial based on the same facts, as evidence against the defendant. Consider the
following statements:
(a) The evidence is hearsay evidence.

(b) The evidence is opinion evidence.
Later in the same civil matter, the plaintiff wants to furnish the court’s finding in the previous
criminal matter as evidence in the civil matter.
(c) The evidence is admissible hearsay evidence.

(d) The evidence is admissible opinion evidence.
Answer 7

24
EVI3701/101/3/2017
Question 8
(a) If a witness in a criminal case tells the court that something was admitted or confessed
by a non-testifying accused, such evidence – strictly speaking – amounts to hearsay
evidence.
(b) Hearsay evidence consists of oral evidence about that which a witness previously heard
and wants to testify about in court. Hearsay can therefore never be in a written form.
(c) The court's approach in McDonald’s Corp v Joburgers Drive-Inn Restaurant 1997 (1) SA
1 (A) provides a good example of how the common law hearsay exceptions should be
handled at present.
(d) Although a court has a discretion to allow hearsay evidence, this discretion will more
readily be exercised in criminal than in civil matters.
Answer 8

(2) Only statements (a), (b) and (d) are correct.
Question 9
(a) A statement that contains a defence can never be a confession.

(b) A confession can only be used as evidence in court if it was also reduced to writing at the
time it was made.
(c) If an accused gives evidence about a statement which is to his or her advantage and
which forms part of an inadmissible confession, the otherwise inadmissible confession
might become admissible.
(d) If you make a confession to a friend (who is not also a peace officer), evidence about that
confession will be inadmissible, unless your friend is also a justice of the peace.
Answer 9

25
Question 10
The investigating officer takes A, the accused in a murder case, to a place in the bush where A
points out a pistol. “This is the pistol”, he declares. Ballistic tests confirm that the pistol was used
to kill the deceased. A’s behaviour (not his statement) is
(a) a formal admission.

(b) an informal admission.
(c) an informal admission by conduct.
(d) a confession by conduct.
Answer 10

This brings us to the end of this tutorial letter. We hope that you will
enjoy this module, and wish you success with your studies.
PROF SS NEL
ADV M MONYAKANE
26

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EVI3701/101/3/2017

Tutorial Letter 101/3/2017

Law of Evidence: Admissibility of

Department of Criminal and Procedural Law

This tutorial letter contains important information

1 INTRODUCTION AND WELCOME. 3

2 PURPOSE AND OUTCOME 3

3 COMMUNICATION WITH YOUR LECTURERS 4

4 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION 5

5 STUDENT SUPPORT SYSTEM 6

7 HOW THE EXAMINATION SYSTEM WORKS 9

8 HOW THE ASSIGNMENT SYSTEM WORKS 10

1 INTRODUCTION AND WELCOME

The Law of Evidence is presented in two modules, namely Evidence: admissibility of

2 PURPOSE AND OUTCOME

■ an understanding of the history and theoretical framework of the general

3 COMMUNICATION WITH YOUR LECTURERS

The Module Leader (EVI3701)

3.1 Calling or visiting lecturers

3.2 E-mailing lecturers

3.3 Contact details of lecturers

Lecturer Telephone Office E-mail

4 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION

How can students now contact Unisa?

■ Unisa website (http://www.unisa.ac.za & http://mobi.unisa.ac.za)

■ myUnisa (https://my.unisa.ac.za/portal & https://my.unisa.ac.za/portal/pda)

■ SMS (32695 – only for students in South Africa)

■ Fax 012 429 4150

5.2 Learning centres

5.3 Group discussions

There are no group discussions scheduled for 2017.

5.4 Contact with fellow students

5.4.1 Study groups

Directorate: Student Administration and Registration

To go to the myUnisa website, start at the main Unisa website,

5.6 Free computer and internet access

Unisa has entered into partnerships with establishments (referred to as telecentres) in

5.7 Library services and resources information

For brief information go to : http://www.unisa.ac.za/contents/studies/docs/myStudies-at-

6.2 Study material

(a) two prescribed textbooks (which you have to purchase yourself)

6.3 Prescribed textbooks

6.4 Study guide

7 HOW THE EXAMINATION SYSTEM WORKS

7.2 Examination period

7.3 Examination paper

7.4 Previous examination papers

7.6 Tutorial letter with information on the examination

8 HOW THE ASSIGNMENT SYSTEM WORKS

Assignments should be addressed to: The Registrar

You may submit written assignments and assignments done on mark-reading

To submit an assignment via myUnisa, do the following:

8.2 Commentaries and feedback on assignments

Commentaries on compulsory assignments will be sent to all students registered

8.3 Submission dates

8.4 Cooperation between students

9.1 FIRST SEMESTER: COMPULSORY ASSIGNMENT 01

Closing date: 10 March 2017 Unique assignment number: 592415

■ Give a motivated conclusion with reference to the facts of the question.