INTRODUCTION TO LAW: UNIT 7 – LAW OF EVIDENCE

TB: CHAPTER 12
WHAT IS THE LAW OF EVIDENCE?

 Regulates the manner in which facts are proved in court.

 Largely codified in the following legislation:

1. The Civil Proceedings Evidence Act
2. The Criminal Procedure Act
3. The Law of Evidence Amendment Act
4. The Electronic Communications and Transactions Act
5. The Criminal Law Amendment Act
FORMS OF EVIDENCE

 ADMISSIBLE EVIDENCE

(1) Oral evidence: most commonly furnished.

 Weight that a court attaches to the evidence depends on a

number of factors:

 CREDIBILITY
1. Leading questions?
2. Cautionary rule? (evidence of single witness; young children)
sexual misconduct??
FORMS OF EVIDENCE

 ADMISSIBLE EVIDENCE

(1) Oral evidence:

 Expert evidence = opinion evidence of an expert is on a different footing

than that of a layperson (see opinion evidence)

 Particular knowledge/training, better equipped than the court in his/her field.

 E.g. handwriting expert; fingerprint expert; ballistics expert.

(Remember: the court is not obliged to follow the expert opinion. It is

the opinion of he court that finally determines the outcome of the case)
FORMS OF EVIDENCE

 ADMISSIBLE EVIDENCE

(2) Documentary Evidence:

 E.g. affidavits; maps; wills.

 Less force than oral evidence. Reason = witness can’t be cross-
examined.
 Easily forged.

 Therefore certain requirements:

1. Usually handed in by witness who must authenticate
2. Best evidence rule?
FORMS OF EVIDENCE

 ADMISSIBLE EVIDENCE

(3) Real Evidence:

 An object = murder weapon; stolen goods etc.

 A person can qualify as real evidence. E.g. to determine age/injuries

 Inspection in loco? Court visits incident/crime scene (also qualifies as

real evidence of what is furnished)
FORMS OF EVIDENCE

 ADMISSIBLE EVIDENCE

(4) Electronic Evidence:

 Electronic Communications and Transactions Act = allows for admission

of electronic data; data messages

 E.g. E-mails; voice messages

 S15(3): factors in evaluating the weight??

FORMS OF EVIDENCE

 ADMISSIBLE EVIDENCE

(5) Other probative matter:

 Presumptions = (a) rebuttable?

(b) irrebuttable?

 Judicial notice = court accepts something as fact because it is well-

known. (even though it has not been proven or formally admitted in court)
FORMS OF EVIDENCE

 ADMISSIBLE EVIDENCE

(6) Direct and circumstantial evidence:

1. Direct = eye witness gives evidence of what he physically observes

(direct observations of the facts of the case).

2. Circumstantial/indirect = does not carry the same weight as direct

evidence. E.g. A was murdered and B was seen entering A’s house
through a window the night of the murder. Evidence that someone saw
this is circumstantial.
FORMS OF EVIDENCE

 INADMISSIBLE EVIDENCE

 Evidence that will generally not be allowed.

 If the evidence is not relevant, it is usually inadmissible.
 This type of evidence is usually unreliable and prejudices the chance of a
fair trial.

NB  know why it isn’t allowed + exceptions to the general

rule
FORMS OF EVIDENCE

 INADMISSIBLE EVIDENCE

NB  know why it isn’t allowed + exceptions

(1) Character evidence: the purpose of this evidence is to show that the
accused has a tendency to act in a certain way. (usually inadmissible)

 Exceptions
a) Sexual offences
b) Strong logical and relevant link
c) Actions of defamation
d) Accused gives evidence of his/her own good character, the State can now lead
evidence of his/her bad character
(Also allowed in trial on sentence = mitigating/aggravating circumstances)
FORMS OF EVIDENCE

 INADMISSIBLE EVIDENCE

NB  know why it isn’t allowed + exceptions

(2) Hearsay evidence: evidence about a statement which another person

made to the witness. Something that is not personally observed by the
witness.

 Usually unreliable. Reason = the person who made the statement isn’t
under oath; statement can’t be tested
FORMS OF EVIDENCE
 INADMISSIBLE EVIDENCE

NB  know why it isn’t allowed + exceptions

(2) Hearsay evidence (continued):

 Exception. Court will take into account:

a) Nature;
b) Purpose; and
c) Reason why the evidence is not given by the person who made the
statement.
FORMS OF EVIDENCE

 INADMISSIBLE EVIDENCE

NB  know why it isn’t allowed + exceptions

(3) Opinion evidence: only the observations of a witness are relevant. The
conclusions he/she draws from those observations are irrelevant.

 Reason = it is the courts duty to draw conclusions from the facts before it.

 Exceptions = in individual cases court may allow it:

a) impossible to give evidence of the facts without stating an opinion;
b) expert opinion
FORMS OF EVIDENCE

 INADMISSIBLE EVIDENCE

NB  know why it isn’t allowed + exceptions

(4) Privilege evidence: evidence that may be admissible but may be

withheld. Reason = (1) protect the interest of a specific person OR (2) the
public

 Private privilege = (a) legal professional privilege (b) marital privilege

(c) privilege against self-incrimination
 Public privilege?

Know the difference between the two!!

EVIDENCE UNCONSTITUTIONALLY OBTAINED

 In the process of obtaining evidence, sometimes a person’s constitutional

rights may be violated.

 Such evidence is NOT necessarily inadmissible. S 35(5) of the Const.

gives the presiding officer a discretion to exclude such evidence if:

1. It would lead to an unfair trial; or otherwise

2. Be detrimental to the administration of justice.

 S v Soci
 S v Mthembu
PRINCIPLES OF NATURAL JUSTICE

 Audi alteram partem (hear the other side)

 Be informed of charge
 Reasonable opportunity to answer to the charges
 Tribunal must listen to both sides

 Nemo iudex in sua causa (no one should be a judge in his own case)

 The tribunal must be free of any discriminatory motives

 No member of the tribunal may have an interest in the matter