The Admissibility &

Relevant Evidence.
Chapter 13 Law of Evidence.
Chapter 5 Principles of Evidence.
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.”
Admissibility.
• When it is said that evidence is admissible it means that the court must
consider it in deciding the factual issues.
Proof of admissibility: a trial within a trial.
• When a factual dispute arises about the admissibility of evidence, an
interim "trial within a trial" is held.
• Questions of law are, in principle, decided by the judge alone; questions
of fact are decided by the judge and, where applicable, the assessors.
• A dispute about admissibility must normally be settled separately
during the trial and not stand over for adjudication at the end of the
trial together with the other issues.
• If the question arises whether a self incriminating statement previously made
by the accused is admissible, he is entitled to insist on a trial within a trial.
• Failure to order a trial within a trial in circumstances where one should have
been held, constitutes a fundamental irregularity that may cause the conviction
to be set aside.
• The trial within a trial is restricted to the question of admissibility.
• At the conclusion of the trial within a trial the court must decide whether the
evidence is admissible or inadmissible. If found to be admissible it becomes
part of the evidential material; if found to be inadmissible it is excluded.
• Because the trial within a trial concerns the question of admissibility only,
issues relating to the merits of the case must not be raised at this stage.
• If the accused alleges that evidence is inadmissible because it was obtained as
a result of the infringement of constitutional rights, a trial within a trial must be
held to determine whether this is indeed the case.
Unconstitutionally obtained evidence.
Chapter 12 in principles of Evidence.
Criminal proceedings.
• The 1996 Constitution does contain a provision specifically relating to the admissibility
of evidence obtained in a manner that conflicts with the rights of the accused under
the Bill of Rights. Section 35(5) o f the Constitution reads 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.
• Key v Attorney General, Cape of Good Hope Provincial Division 1996 6 BCLR 788 (CC)
paragraph 13 Kriegler J remarked as follows in an already well known dictum:
• What the Constitution demands is that the accused be given a fair trial. Ultimately, as was held in
Ferreira v Levin, fairness is an issue that 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
requires that evidence, albeit obtained unconstitutionally, nevertheless be admitted
• In South Africa, prior to 1994, the admissibility of improperly
obtained evidence was determined based on its relevancy and
the court was not concerned how that evidence was obtained.
• The court, however, had a discretion to exclude evidence if the
strict rules of admissibility would operate against the accused.
• That approach changed with the advent of the interim
Constitution which came into force on 27 April 1994.
• Since 1994 the Constitution has required criminal trials to be
conducted in accordance with notions of basic fairness and
justice.
• Section 35(5) does not provide for automatic exclusion of
unconstitutionality obtained evidence.
• Evidence must be excluded only if it renders the trial unfair; or
is otherwise detrimental to the administration of justice.
• Whether the admission of evidence will bring the
administration of justice into disrepute requires a value
judgment, which inevitably involves considerations of
the interests of the public.
• 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.
• 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.
• Gumede v S [2017] JOL 36794 (SCA).
• Singh and others v S [2016] JOL 35577 (SCA).
• In considering whether the trial is fair, the question of prejudice to the
accused is relevant.
• The nature and degree of the prejudice will determine whether the
admission of the evidence will lead to an unfair trial.
• The presiding officer must ask him or herself whether the reasonable
person who was dispassionate and fully apprised of the circumstances
of the case, would believe that the admission of the evidence would
be detrimental to the administration of justice.
Civil proceedings.
• The context of section 35(5) leads to the conclusion that it relates
only to criminal proceedings.
• However, section 34 of the Constitution now makes it clear that the
parties to a civil action are also entitled to a fair trial.
• Evidence obtained in an unconstitutional manner ought therefore also
to be excluded in civil matters, although the courts retain a discretion
whether to do so.
• Two aspects that the court must consider in this connection are
discussed in Fedics Group (Pty) Ltd v Matus 1997 9 BCLR 1199 (C).
1. In the first place, the party who has obtained evidence in an
unconstitutional manner must show why the evidence was obtained in that
way and not by the use of existing procedures.
2. In the second place, the nature of the evidence must be examined.
Harvey v Niland 2016 2 SA 436 (ECG).
• Applicant and the Respondent, both members of a close corporation,
fell out and the Applicant later began suspecting that the Respondent
was breaching his fiduciary duties toward the close corporation.
• This was pertinently denied by the Respondent in prelitigation
correspondence.
• The Applicant’s suspicions lingered and when an employee informed
him that she had the Respondent's Facebook password, the Applicant
accessed the Respondent's posts and found, in the words of the court,
clear evidence not only of a breach of his fiduciary duties, but also
deceitful conduct.
• The application followed, but the Respondent applied for an order
striking the evidence obtained from his Facebook posts on account
thereof that it constituted an invasion of his constitutional right to
privacy.
• The court, accepting that there had been an infringement of the
Respondent's right to privacy as well as the statutory contravention,
nonetheless found in favour of the Applicant.
• The right to privacy had to be viewed in its proper context and,
although private information may have been accessed, what also
came to light was duplicitous conduct in contravention of the
Respondent's fiduciary duties, compounded by the fact that he had, in
writing, denied having acted in such a manner.
Consent to inadmissible evidence: failure
to object.
• Since a litigant may admit any fact, there can be no objection in
principle if he admits his opponent's evidence, that is to say he
consents to its admission even where it would be inadmissible.
• He then merely renounces the procedural protection he would
otherwise enjoy.
Relevance.
• 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 nonexistence of the other.
• A fact is usually regarded as relevant to another fact if there is a logical
connection between them.
• Evidence is relevant if it is logically probative or disprobative of some matter
which requires proof.
• Thus evidence is relevant if facts about which evidence is given can, on their own
or together with other facts, contribute to the proof or disproof of the facts in
issue.
• The requirement of relevance is confirmed in section 2 of the Civil Proceedings
Evidence Act 1965 and section 210 of the Criminal Procedure Act 1977.
Facts in issue and facts relevant to the facts in issue:
the factum probandum and the factum probans.
• It is customary to draw a dividing line between those facts that are directly
or primarily in issue and those facts which, although not directly in issue,
are nevertheless relevant to an issue.
• A "fact in issue" is, in this primary sense, one that, in the light of the
allegations in the pleadings or the charge sheet, is essential for one side
and disputed by his opponent.
• By essential is meant that if it is not proved, the party relying on it will
necessarily fail to prove his ground of action or defence.
• A fact that is only "relevant to a fact in issue" is not on its own essential for
the success of one of the parties, but is nevertheless capable (even if this is
in conjunction with other facts) of proving an essential fact.