Weekly Lecture/Comment: Lecture 1 (LEV3701)

Lecture 1 (General approach to the study material and Learning Units 1, 2 and 3)

General approach to the study material and answering questions in the exam
General approach to the study material

Note that the information in your study guide and the feedback to all activities form your primary
study material for the exam. Also note that feedback to the activities is provided in tutorial letter
102 that can be found under “Official Study Material” on myUnisa. Do not leave out any part of
the Study Guide! Ensure that you fully understand all the concepts explained and work through
the questions for self-evaluation at the end of each learning unit. Feedback on these questions can
also be found in tutorial letter 102. The activities and self-evaluation questions are very
important for purposes of the examination.

Remember that the law of evidence is broadly divided into 3 sections:

• The presentation of evidence

• The admissibility of evidence
• The evaluation of evidence

Keep this in mind whenever you answer questions in the exam, since it will help you orientate in
the right direction and prevent you from providing incorrect or unnecessary information. Some
concepts overlap, and it is important that you discuss the correct concept by identifying what
section of the law of evidence is at issue. See, for example, the rule regarding the competence and
compellability of a spouse to testify. There is also a related rule that deals with communications
between spouses that are privileged information. The one rule deals with the presentation of
evidence and the other deals with the admissibility of evidence. Also see the rule relating to the
competence of children to testify. There is also a related rule that deals with caution when children
are testifying. The one rule deals with the presentation of evidence and the other with the evaluation
and assessment of evidence.

Another important aspect to remember is that different evidentiary principles apply in civil and
criminal cases. Therefore, always ask yourself whether a particular question involves a criminal or
a civil matter.

The textbook and casebook

You are frequently referred to these two sources. If you are told to read from the textbook or from
a case, you need to do so to get some background. Remember, however, that all feedback on
activities should be studied for the examination, even if the activity deals with work you were
required only to read. If you are told to study a specific case or section in the textbook, you must
do so because any number of questions may be set on that material. In this case, you should also
keep your own notes in addition to those contained in the present tutorial letter. You will find that
you cannot follow only one way of studying the law of evidence and that you will have to adapt your
study methods according to the requirements of a particular learning unit.
Answering questions in the examination

Although the LEV3701 examination will be a closed-book exam consisting of multiple-choice

questions, you should study for it in the same way you study for any other examination. The exam
is going to test the practical application of the principles you have studied, and you will struggle
with the paper if you did not put in the necessary time and effort.

Problem-type questions: General remarks

We include the following discussion to give you a holistic view of how to approach problems
regarding the law of evidence in general. Over the years, we have found that students’ method of
answering questions in the exam presents the biggest obstacle in passing this course. Students
often study more than enough to pass the course but fail to provide enough information in the exam
to enable them to pass. Students instinctively jump, for example, to a conclusion about the
admissibility of specific evidence without discussing the relevant law on the specific type of
evidence or without evaluating the facts of a specific question. There is simply not enough
information provided to enable them to pass. You must state and explain the law on a specific issue
and when there are certain requirements for the admissibility of a piece of evidence, for example,
the meaning of these requirements must be explained fully. Generally, a 5-mark question will
require you to wright at least a page and a 10-mark question will require you to write down at least
1½ pages.

All problem-type questions must be answered with reference to the following basic principles:

■ Identify and state the central issue of a 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 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 allocated to a specific question will be the best indication of the amount
of information you should give. Never forget to discuss cases, legislation and any requirements for
admissibility.
■ Give a motivated conclusion with reference to the facts of the question.
Learning Units 1, 2 and 3
These learning units are straightforward and there is nothing complicated about them. It is
important that you understand under what branch of our law the law of evidence falls under and
why this is the case. You should further be able to explain the difference between the historical and
knowledge sources of the law of evidence.
Note that a residuary section does not refer a part of the South African law, but to a part of English
law. An import residuary section is section 252 of the Criminal Procedure Act 51 of 1977 and you
will see how this section is relevant at the learning unit dealing with character evidence (see
Learning Unit 10).
Also note that arrested, detained and accused persons have different rights. You will later see how
the rights are relevant. If arrested, detained and accused persons are not informed of their rights,
this might affect the admissibility of evidence obtained from them (see, for example, Learning Units
14 and 15).
You can read through the section that deals with the law of evidence and our customary law, but
you need not study it for purposes of the examination.
It is important that you do the activities and questions for self-evaluation at the end of the learning
units. The feedback on them should be studied.