LAW OF EVIDENCE - HISTORICAL DEVELOPMENT & SOURCES

1) EVOLUTION OF THE LAW OF EVIDENCE

 The South African law of evidence is based on the English law of evidence as it was on the 30 th of May 1961.
 The religious stage:
o This stage was characterized by illogical and primitive thinking.
o There were 3 methods of determining innocence:
i. Divine judgment;
ii. Purifying oath; and
iii. Compurgators (this was not the same as a witness, he was merely a person who testified about
the character of the accused).
o During the Anglo-Norman period, compurgators developed into juries. Dueling also developed.
o In 1215 the pope forbade trial by ordeal.
 The formal stage:
o During this stage, confessions were often obtained by the use of torture.
o Presumptions developed.
o Rules were set down preventing people with an interest in the outcome of the trial from testifying.
 The rational stage is characterized by human reason.

2) FORMATIVE FACTORS OF THE ANGLO-AMERICAN SYSTEM

 The jury system saw the development of assessors.
 The doctrine of precedent features in this system.
o Precedent is only applicable to rulings from higher courts or courts with the same status.
o The facts of the case must be the same for precedent to be applicable.
 Oaths are still used because it is the strongest known hold on a conscience.
 This system is accusatorial.
o Therefore, the judge is passive, and
o He who alleges must prove.

3) THE CONSTITUTION
 Chapter 2 contains fundamental rights.
 S36 (1) sets out the limitations of rights.
 S39 (1) refers to the interpretation of the constitution.
o Interpretation must promote the values of the constitution;
o Foreign law may be considered; and
o International law must be considered.
 Our constitution is similar to the Canadian Charter (due to the limitations clause), therefore, Canadian
constitutional decisions are important.

4) THE OATH
 If an accused refuses to take the oath, their guilt is confirmed according to s163.
 S164 states that the court must enquire whether or not such a person understands the nature of the oath.
 In the case of children, competency must first be determined.

5) SOURCES
 The South African law of evidence isn’t codified.
 The constitution is a source that must be followed.
o The difference between the old and the present constitutions is that rights are now guaranteed.
 Legislations must be obeyed.
o The Criminal Procedure Act is applicable,
o As well as the Civil Procedure Evidence Act, and
o The Law of Evidence Amendment Act.
 Cases set precedent.
 BASIC CONCEPTS

THE LAW

PUBLIC LAW Private law

Material law
FORMAL LAW

Criminal law
EVIDENCE Criminal
Procedure
SUBSTANTIVE (material) ADJECTIVE (formal)
 Determines rights, duties and powers.  Determines procedure, pleadings and proof.
 Determines the remedy to an infringement.  Governs litigation.
 Determines the facts at issue.  Determines the probative facts that prove the facts
at issue.
 Facum probandum.  Facta probantia.
 Common law is Roman-Dutch law.  Common law is English law.

 Admissibility: A fact is admissible if the law allows it to be proven by evidence.

o To be admissible, a fact must be in issue, or have a degree of relevance to the fact at issue.
o Evidence is admissible if the court rules allow it to be adduced before the court.
 Burden of proof: This is the duty to prove the facts in issue.
 Burden of rebuttal: This is the burden to rebut prima facie evidence to avoid a decision against oneself.
 Nexus: A causal connection between two sets of facts with relevance as a basis.
 Probative material: All materials that can give proof.
 Witness: A person who gives sworn evidence at a hearing.
 Compellability: The capacity to be lawfully obliged to give evidence.
 Competence: The capacity to give evidence.
 Evidence: Testimony of a witness, the production of documents, and exhibits to be used as proof.
 Facts in issue (facta probanda): Facts that must be proved to establish a case.
 Facts relevant to the facts in issue (facta probantia): Facts that render probable the existence/non-existence of a
fact in issue.
 Law of evidence: That part of the law that determines what proof (how and by whom) may be put before the
court to prove facts.
 Prima facie: Provisionally accepted, but rebuttable.
 Primary evidence: The best and strongest evidence that was available.
 Privilege: The right to withhold information.
 Proof: The method of establishing the existence/non-existence of a fact.
o Quantum: Balance of probability, or beyond reasonable doubt.
 Relevance: The relationship between two facts, wherein, according to logic or common experience, the
existence of one fact renders probable the existence of the other.
 Secondary evidence: This evidence implies that better evidence exists.
 Subpoena: The document issued in a civil or criminal court, requesting a person to be present at a specific time
and place for a specific purpose.
 Testimony: The statement of a witness sworn in court offered as evidence of the truth.
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 RELEVANCE AND ADMISSIBILITY

1) ADMISSIBILITY AND THE ASSESSMENT OF EVIDENCE

 The Anglo-American system draws a distinction between the rules of admissibility, and the rules of assessment of
evidence.
o This system aims its admissibility rules at excluding different types of evidence.
 The continental systems, on the other hand, allow all the evidence and it is the court’s function to lend
appropriate weight to the different pieces of evidence.
 The rules regarding the assessment of evidence are aimed at assisting the courts in evaluating evidence.
 In assessing evidence, the court must:
o Draw credibility findings;
o Draw inferences; and
o Consider all the possibilities.
 Assessing evidence allows the court to determine whether a case has been proven or not.

2) ADMISSIBILITY
 The admissibility rules determine what qualifies as evidence.
 Most rules regarding admissibility are negative in nature.
 The law sets requirements to be met before it will take that evidence into consideration:
o Relevance (able to contribute to proving the facts in issue)
 Previous consistent statements;
 Similar fact evidence; Generally
 Character evidence; inadmissible
 Collateral facts; and
 Opinion evidence, are all inadmissible.
o Other exclusionary rules (additional requirements to relevance). These rules refer to evidence that is
relevant, but is still excluded.
 Competence and compellability of witnesses;
 Privilege;
 Hearsay;
 Documents; and
 Admissions and confessions.
 Therefore, the general rule is that all relevant facts are admissible, subject to certain qualifications in the form of
the exclusionary rules.
 The exclusionary rules are not a numerous clausus.

2.1 Nature and origin of our system

 Our system is based on the English system.
 The English system is a comprehensive set of rules aimed as excluding evidence.
 The English system is characterized by:
o The accusatory system;
o The jury system; and
o The doctrine of precedent.
 The proof of admissibility is a legal question, which is settled by a trial within a trial.
o In most cases, the judge will decide. But in cases of confessions or statements made by the accused,
assessors must assist the judge.

2.2 Wrongfully obtained evidence

 The English system places no bearing on the wrongfulness because the question is whether or not the evidence is
relevant.
 The constitution changed that and provides that the Canadian system should be followed. This system gives the
judge three options:
o Rigid inclusion (English);
o Rigid exclusion (US); or
o A compromise (Canada) – the judge has the discretion to exclude evidence in certain circumstances.
This balances the interests of the accused and the community.

2.3 Judicial discretion

 The court has no discretion to allow inadmissible evidence, except in the case of hearsay.
 The court has a limited discretion to exclude admissible evidence if
o The probative force of the evidence is slight and the prejudice is potentially high; or
o If the evidence should be excluded according to public policy.
 This discretion is provided by s35(5) of the constitution.
  The court may allow inadmissible evidence if the counter party gives permission, but this permission must be
qualified.

3) RELEVANCE
 The relevance rule is negatively stated: irrelevant evidence is inadmissible. This rule is stated in s210 of the Criminal
Procedure Act.
 Evidence is relevant if there is a logical connection between the evidence and the fact in issue.
 Relevant evidence must have a minimum degree of probative force, i.e. it must be possible to draw a
reasonable inference from the fact concerned regarding the fact in issue.

4) FACTS IN ISSUE AND FACTS RELEVANT TO FACTS IN ISSUE

Facts in issue (facta probanda) Facts relevant to facts in issue (facta probantia)
 Facts needed by law to establish a  These facts render probable the existence of
claim/liability/defense forming the subject matter of facts in issue.
proceedings, and which are in dispute.  They provide proof.
 In a civil trial,  They don’t have to be proved/disproved.
o They are set out in the pleadings, and  Facta probantia must be logically relevant to
o Their proof/disproof is essential. be admissible.
 In a criminal trial,  These facts may form part of a series of facts
o They are the elements of the crime, from which inferences may be drawn.
o Allegations are made in the charge sheet,  They can become secondary facts in issue.
o Defenses are relevant, and  Secondary facts in issue are established during
o They include the admissions of the accused. the proceedings.
 Direct evidence is always relevant.
 The primary facts in issue are established before the trial.

5) TO PROVE A FACT IN ISSUE

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6) S v ORRIE 2005
 The accused made an exculpatory statement to the police.
o He later claimed that he hadn’t been told of his rights and that he hadn’t been informed that he was a
suspect.
 Held:
o Any person with a normal intelligence in the position of the accused would realize that he was a suspect.
o A suspect, like an accused, is entitled to a fair pre-trial procedure.
o S35 (3) of the constitution states that any evidence obtained in violation of the rights in chapter 2 must be
excluded it its admissibility would render the trial unfair or detrimental to the administration of justice.
 Therefore, fairness identity the decisive factor.
 The question of the nature and extent of the prejudice suffered becomes relevant.
o Therefore, admissibility of a statement made without warning will inevitably taint the fairness of the
subsequent trial. Therefore the statement cannot be admissible.

PREVIOUS CONSISTENT STATEMENT

1) ORIGIN & GIST

 Admissibility means that a fact is able to prove or disprove a fact in issue in order to be relevant.
  When referring to a fact in issue, both primary and secondary facts in issue are referred to.
 S252 of the Criminal Procedure Act provides that the origin of previous consistent statements lies in English law as
it was on the 30th of May 1961 if there is no relevant legislation or amendments.
 A previous consistent statement is defined as a statement (written or oral) made by a witness before its repetition
in court. Such a statement must have been made previously and must be concurrent with the present statement.

2) MOST COMMON SITUATIONS

 Previous consistent statements are most commonly found in the following situations:
a. A makes a statement to B, who records it in writing. A then adduces this written record in court.
b. A tells a version to B. At the trial, both persons then refer to the statement.
c. A witness at the trial states that they gave the same evidence to B, who is not a witness.
d. The accused gives a statement at trial, and later repeats it under oath.
 The question of previous consistent statement can be raised during
o The examination in chief
 The prosecutor can refer the witness to his previous statement.
 The witness was asked about what another witness said to them.
 The prosecutor refers the witness to a statement in the docket.
o Cross-examination (the state witness can be asked if he also related the version given in the court to
someone else;
o Re-examination (the prosecutor refers the witness to an earlier statement as a previous consistent
statement; or
o When the accused repeats a statement he made earlier during his plea.

3) PLACE IN THE LAW OF EVIDENCE

 This is a relevancy question.
 All the exclusionary rules have the following 3 characteristics:
1. They are questions of admissibility;
2. They are rules with exceptions; and
3. They deal with facts that are inadmissible due to irrelevancy.
 This rule applies in both civil and criminal cases.

4) REASON FOR THE RULE

 The general rule is that previous consistent statements are inadmissible due to irrelevancy.
 The rule exists to prevent self-corroboration.
 Factors to consider include:
o Fabrications;
o Insufficient evidential value;
o Unreliability;
 If the person adducing the evidence can justify its relevance, the reason for its inadmissibility falls away.
 The fact can only be admissible if it falls within a common law exception.

5) COMMON LAW EXCEPTIONS

 Rebutting allegations of recent fabrication.
 Previous identification/recognition.
 Complaints by victims of sexual offences.
 Memory refreshing.
 Statements procured by scientific methods.
 Previous statements by the accused.

6) REBUTTING AN ALLEGATION OF A PREVIOUS CONSISTENT STATEMENT

 Attorneys allege the reference to a previous consistent statement to test the memory and credibility of the
witness.
 It’s also a ploy of cross examiners to imply fabrications.
 In order to repair the damage done in cross examination, a previous consistent statement can be proven.
o However, its contents don’t become admissible, only the fact that the previous consistent statement was
made.
 This exception serves the purpose to repair the credibility of a witness, which has been attacked during cross-
examination.

7) PREVIOUS IDENTIFICATION/RECOGNITION
7.1 Of the accused
 This only proves consistency i.e. the fact that the witness was able to identify the accused at another time.
 Identity parades must comply with strict rules and regulations.
 Dock identifications have little value unless that witness knew the accused before.
 Identikit
o The court in S v M held that they are inadmissible, but they should be admissible.
 o These serve as previous consistent statements if they were repeated by the witness of the artist at the trial.
 Conduct of the accused,
o If evidence is given at the trial regarding the conduct of the accused, and the witness’s statement
corresponded with such evidence, there was no previous consistent statement.
 Identification from photos
o These are admissible, but their probative force is suspect.
o It is admissible to give photographs to potential witnesses to try to identify the accused.
o Photos should be shown under similar regulations as those applied in identity parades.
o The factors to be considered include the number of photos shown, the quality of the photos and any
similarities in the features of the photographed persons.
 Voice parades must be conducted in a manner similar to identification parades.

7.2 Identification of something or someone other than the accused

 Previous identification of something or somebody other than the accused is mostly applicable to prior statements
in which the accused is identified, but is not restricted thereto.
 Previous statements may refer to other persons or things e.g. the murder weapon.

7.3 S v T 2005
 This was a case of sodomy where a street committee held an informal identity parade.
 In terms of the law, identity parades are subject to strict rules and regulations.
o This is to ensure fairness and to guarantee the reliability of the evidence provided by the parade.
o Evidence regarding identity should be treated with caution due to the possibility of an honest mistake.
 The court held that at the informal parade, no regulations or rules were followed. E.g. there was no record of the
proceedings, and therefore the court could not determine its compliance with any of the rules.
o Therefore, no reliance/weight could be placed on the parade because the evidence contained therein
was tainted by the irregularities.

8) COMPLAINTS BY VICTIMS OF SEXUAL OFFENCES

 This exception to the rule is linked to the nature of the crime, and not the sex of the victim.
 Regarding rape, absence of consent is needed.
 Examples of these offences include sodomy, incest, rape, assault, indecent assault etc.
 A victim’s statement must meet certain requirements for it to be admissible.

8.1Requirements
 The complainant must be the victim.
o In certain crimes there can be no victim e.g. sodomy only has co-accused and accomplices.
o Physical contact with the victim is required.
o Persons who may not or cannot consent are considered to be victims e.g. juveniles and mentally ill
persons.
 A complaint must have been made voluntarily.
o This means that there could have been no undue pressure on the victim to tell, and or the victim should
not have been intimidated into telling.
o The statement may consist of answers to questions if no leading or suggestive questions were asked.
 The victim must testify.
o Therefore the victim must be a competent witness.
o This doesn’t amount to hearsay.
o This is done in order to prove consistency.
 The complaint must have been made at the first reasonable opportunity to the first reasonable person.
o Factors to consider here include the relationship between the victim and the perpetrator, the age of the
victim, the victim’s ability to testify etc.
 S v De Villiers 1999
o This was a case of a sexual offence.
o The complainants’ statements to the police differed materially from their evidence in court.
o There was a certain amount of uniform deviation, and this was suggestive of collusion between the
witnesses.
o The discrepancy, along with the amount of uniformity in deviation amounted to a detraction of the
witness’s credibility.

8.2 Kind of offence

 The act need not have been violent.
 The offence must have consisted of a sexual connotation and physical contact.
 However, in certain offences, physical contact is not a requirement e.g. assault, crimen inuria, therefore, the
distinction between physical and non-physical contact should be abolished.

8.3 What may be proved and its purpose

 Both the fact that there was a complaint, and the specific allegations in the charge may be proven.
  The person adducing a previous consistent statement may want to:
o Rebut the defense of consent;
o Show that a suspicion that other facts are illogical is unfounded; or
o Rebut the suspicion of a lack of credibility.
 Therefore, the general purpose is to show consistency where credibility is under attack.
 The circumstances of the complainant may be adduced to show consistency e.g. emotional stress, injuries,
manner of dress etc.

8.4 Previous consistent statement v conduct

 A previous consistent statement and conduct is not the same thing.
 Evidence of the emotional state of the victim can be admissible to prove the physical condition of the victim.
o In S v S 1990 (1), the court held that the shaken condition of the woman concerned served as
corroboration for her insistence that she was raped.
 The physical condition of the victim has nothing to do with a previous consistent statement when the evidence
was given by another person.
o This evidence is circumstantial.
o However, it may corroborate the fact in issue.

8.5 S v S 1990
 This was a rape case where the only witness was the complainant.
 The court had to warn itself about the dangers of uncritically accepting the evidence of the complainant, and or
a single witness.
o The cautionary rule should always be applies in these 2 circumstances.
o The credibility of the suspect was of material importance since it was her word against the accused.
 A judgment must always state that it applied the cautionary rules.

9) MEMORY REFRESHING
 It is admissible for a witness to refresh their memory from a previous document.
 However, the document itself is not admissible as evidence unless the parties agree for it to be admitted.

10) STATEMENTS PROCURED BY SCIENTIFIC METHODS

 E.g. hypnosis, polygraph tests etc
 The courts won’t accept this type of evidence because its reliability is suspect.
 Other rules of evidence must be considered e.g. opinion evidence.
 These methods may be of value to the police during their investigation into the matter.

11) PREVIOUS STATEMENTS MADE BY THE ACCUSED

 This could take the form of a document containing a statement made by the accused to another.
 Depending on the nature of the contents, such a document may be admissible.
 Such a document usually contains:
o Incriminating statements e.g. admissions. Such documents are admissible if they meet the requirements
for the admissibility of admissions.
o Exculpatory/self-serving statements. Generally, these documents cannot be admitted in the accused’
favour.
 However, the exception is in the case of a statement made during arrest or when certain objects
are found upon them. Then these documents will be admissible to prove the attitude and
reaction of the accused at the time of questioning.
 This type of statement can also be used to show consistency on the part of the accused.
o Partly exculpatory and incrimination statements. If the previous statement consists of both an admission,
and self-serving statements, the whole statement is admissible.

SIMILAR FACTS

 Relevance depends on the facts’ ability to prove or rebut the fact in issue. This rule is subject to the exclusionary
rules, similar fact evidence being one of them.
o Similar facts are admissible in both civil and criminal courts.
o However, criminal courts are more reluctant to admit similar fact evidence than civil courts.
 S255 states that the law applicable to similar fact evidence is that which applied on the 30th May 1961.
 Similar facts refer to at least two sets of facts that seem to be similar.
o The first set of facts is the facts at issue.
o The second are the probative material.
o Such a fact can be referred to as en element of the crime/delict, motive, or intention.
 o Van Der Merwe states that similar facts refer to one’s conduct on an occasion(s) other than the occasion
in dispute, which is of such a nature that it is logically connected or substantially similar to the other
occasion.
 The general rule regarding similar fact evidence is that it’s inadmissible i.e. the court can’t infer that something
happened just because similar events happened on other occasions.
o The court may not infer that a person committed a wrongful act just because they have a propensity to
perform wrongful acts.
 The reason for the rule:
o No reasonable inference can be drawn from them.
o They are irrelevant.
o It is a waste of time to admit side issues.
o The accused may be unfairly surprised at court and not prepared to defend himself.
o It would result in the police merely looking for someone with a previous conviction similar to the act in
question.

1) NEXUS PROVIDING RELEVANCE (i.e. when similar facts are admissible)

 Continuous conduct:
o This is when the accused previously acted in a similar way under similar circumstances.
o These similar facts can be admissible to prove a course of action.
o Courts have a wide discretion in this respect.
 Improbability of coincidence:
o This occurs when the offence is committed in such a specific manner/method that the probability of
another person having committed an identical offence in exactly the same manner is remote.
o Here proximity in time, opportunity, method and surrounding circumstances will play a determining role.
o This is especially useful when a defence of coincidence or ignorance has been raised.
 Common source:
o This is a factual question.
o If the source of products is the same, then evidence that other receivers of that product suffered similar
consequences will be admissible.
 Common locality:
o This is when similar facts will be admissible to prove or rebut an alibi.
 Rebuttal of an otherwise available defense:
o Here the accused claims that he was physically incapable of committing the offence.
o In this case, similar fact evidence will be admissible to prove that the accused previously performed
similar deeds shortly before the offence was committed.
o Remember the case of the rapist who claimed impotence but was found to have a venereal disease
contracted from women.
o In this instance, similar facts may only be led if the defence was raised first.
 Striking similarity:
o This is derived from the English law and could provide a nexus.
o A further degree of special comparison is needed i.e. to ignore unusual features would be to defy logic
and common sense.
o See S v D.
 Cumulative application of different similar facts:
o I.e. the quantum of similar facts that can be simultaneously applied.
o Similar facts can corroborate each other.
o The quantum can also be important in the weight assessment of the evidence.

2) APPLICATION OF THE RULE

 The act:
o Although the existence of a similar fact doesn’t prove the act, if does make the inference irresistible.
o The repetition of acts may have the combined effect that the court can’t conclude that the incident
was a coincidence.
 Opportunity, means, and ability:
o Similar facts may be used to prove this.
 Identity/alibi:
o The state often encounters the problem of not having enough evidence to connect the accused with
the crime. Therefore, they will use evidence of other crimes committed in the same manner.
o Peculiarity of the offence, opportunity and the propensity of the accused to commit crimes of that
nature become crucial.
o In the case of S v D 1990, the accused was found to have used the phrase “sleep down” with all the
victims and he had a habit of taking his victims’ watches..
 The court found that this statement made by him was insufficient evidence.
 However, the phrase coupled with the similar method used, the time and place of all the crimes
amounted to striking similarity.
 Therefore, similar facts may corroborate each other.
  Intention:
o Intention is a question of inference. It is often difficult to adduce enough evidence to prove this
inference. Therefore, the court will use similar conduct to prove intention.
o Intention refers to knowledge, or knowledge of wrongfulness.
o Evidence of previous plans to commit the offence is also admissible only if the accused expressed the
intention to commit such an offence.
 Systematic conduct:
o Here the question arises whether the court may use evidence of one count as relevant evidence for
another count.
o Evidence of similarity of methods used will often be allowed when the charges are of the same nature
and extent.
o However, if a similar fact is adduced to show systematic dishonesty, it is inadmissible.
 Negligence:
o Similar facts to prove negligence are usually inadmissible because they provide no nexus.
o However, when previous conduct is similar to the fact in issue, and it is possible to show a nexus,
negligence can be proved.
o The absence of negligence (i.e. carefulness) can be proven by way of similar fact evidence.
 Motive:
o Similar facts can be adduced to prove motive.

3) STATUTORY APPLICATION
3.1 S197 – the character of the accused during cross examination
 S197 of the Criminal Procedures Act provides the privileges of the accused when he’s giving evidence.
 According to this section, the accused may not be cross-examined regarding:
o Previous convictions,
o Previous involvement in crime, or
o His good/bad behaviour.
 UNLESS:
o He tried to establish his own character, or challenged the prosecution witness’s character;
o The accused gave evidence against a co-accused;
o The accused is questioned about stolen property; or
o It is impossible not to lead evidence of previous convictions e.g. if he escaped from lawful custody, it
must be put to the accused that he was in lawful custody and was convicted.

3.2 S211
 Except where otherwise provided by the Criminal Procedure Act, or where the fact of previous convictions is an
element of an offence, evidence of previous convictions may not be led.

3.3 S227 – The character of the victim of accused in sexual offences
 The admissibility of evidence of the character of the accused or the victim is determined by the law as it was on
30 May 1961.
 Evidence of the victim’s sexual history shall not be adduced (i.e. by a witness), nor shall the victim be questioned
thereabout except with leave of the court which must be satisfied that such evidence would be relevant.
 The trial may take place in camera.
 This section includes male witnesses, victims or accused.

4) QUANTUM OF PROOF
 Similar facts may be used to corroborate other facts.
 The existence of similar fact evidence may enhance the value of other evidence.

5) S v PIETERSEN 2002
 Accused 1 cross-examined accused 2 in terms of s197 (b).
o This cross examination was allowed regarding previous conviction.
o However, accused 1 tried to go further and question accused 2 about the underlying facts of his previous
conviction.
 In terms of s197 (b),
o When this section is used, the shield against cross examination regarding credit is lifted.
o However, the witness still has an ordinary witness’s immunity against questions that are irrelevant to
credibility.
 The trial must be fair.
 The court has a discretion to restrict and control the ambit of the questioning under this section.
o The questioning must be relevant to the witness’s credibility.
o The questioning mustn’t prejudice that accused to the extent that his right to a fair trial is undermined.
 The court held that:
o Questioning in terms of s197 (b) regarding previous convictions is allowed.
o Cross-examination about the details of the previous convictions is not allowed.
6) S v D 1991
 This was a case of multiple rapes. The accused in this case had a habit of taking his victim’s wrist watches and
telling them to ‘sleep down’.
 2 of the complainants in this case couldn’t identify the accused. This was the fact in issue.
 The court held that the statement ‘sleep down’ was not sufficient on its own.
o However, the statement coupled with the wrist watch habit and the time manner and place of the
various crimes was sufficient to prove that the accused had committed all the counts on the charge
sheet.
 Therefore, the court held that the striking similarity of the facts taken together were sufficient to prove the case,
whilst the facts on their own only amounted to circumstantial evidence.

CHARACTER EVIDENCE

 It must be determined if “character” refers to moral disposition (which is a subjective test), or to reputation (which
is an objective test).
o Generally, only reputation should be considered.
o However, in practice direct evidence of moral disposition is often admitted.
o S197 includes both subjective and objective factors. This section is only used in cross-examination.
 The general rule regarding character evidence is that it is irrelevant regarding the merits, and therefore
inadmissible.
o Sentencing is different.

1) CIVIL CASES
1.1 Plaintiff
 The plaintiff’s character is usually irrelevant.
 In certain cases, it can be relevant e.g. defamation, breach of faith, seduction and divorce.

1.2 Defendant
 The defendant’s character is irrelevant.
 Except in obvious cases it is relevant e.g. fraud, adultery, and seduction.

2) CRIMINAL CASES
2.1 Accused
 Evidence of his good character is irrelevant (logically). But evidence may be led to prove good character if the
character of the accused is relevant to the offence.
 Evidence of bad character is also usually irrelevant. Except if:
o The evidence is admissible as similar fact evidence;
o The evidence is relevant to the proof and therefore admissible; or
o The accused led evidence of his good character; the prosecutor may lead evidence of his bad
character if the question of character is strictly relevant to the charge (s197).
 Note: s197 regulates the cross examination regarding character, but not regarding leading evidence of bad
character.

2.2 Opponent’s witness

 Character may only be challenged if it is relevant to the witness’s credibility.
 There are requirements to be met in order to challenge a witness’s credibility:
o The question must be relevant to credibility;
o Only a generally bad reputation, or unreliability may be proven; and
o It the evidence is only relevant to show previous lies, it is inadmissible.
 A witness’s credibility can be challenged by evidence of a previous inconsistent statement. But such a statement
will only be relevant if it relates to the subject matter of the proceedings.
o The attorney must explain the surrounding circumstances of the statement, and he must put the
statement to the witness.
o Such a statement can only be proved if the witness denies to statement.

2.3 The character of a party’s own witness

 The party may not impeach the credibility of their own witness.
 But if the witness unexpectedly becomes a hindrance, the accused may:
o Lead evidence contradicting the witness’s statement;
o Declare the witness a hostile witness; or
o Prove a previous inconsistent statement against him.
  The previous inconsistent statement must be put to the witness. If he admits the statement, if must be handed in
to the court, but if he denies it, the attorney must prove it against the witness.

2.4 The character of the complainant

 The complainant is considered to be an ordinary witness. However, he is more likely to have a motive to
incriminate the accused.
 Therefore, the question must be asked to what extent the complainant’s previous behavior can be used as
evidence to prove that his testimony is untrustworthy?
 S227 of the Act states that rape victims may not be questioned unless the court believes that their testimony will
be relevant.

3) S v M 2002
 The appellant was charged with raping his daughter.
o After his conviction, he brought a remittal with a statement by the victim’s apparent boyfriend who
claimed to have had consensual inter course with the victim since she was aged 9.
 The court held:
o There was no question of disbelieving a witness, or of finding his evidence to be false unless his testimony
was put to the complainant, who would then rebut it.
o The court found the witness (the boyfriend) to be plainly dishonest and that there wasn’t the remotest
possibility that the complainant would have agreed to the claimed relationship with the witness,
therefore the court didn’t recall the complainant to rebut the witness’s statement.
 The witness’s evidence was flawed with serious improbabilities.
 He was found to be directly dishonest.
o The improbabilities regarding the witness’s evidence only indicated lies, but that added to the letter and
the suspicion that the witness had been procured by the appellant to give false evidence resulted in the
certainty that this was the case (the procurement of the witness).
o The complainant was found to be intelligent and honest.

COLLATERAL FACTS

 According to the court in S v Sinkankanka, the term ‘collateral’ isn’t readily susceptible to a comprehensive
definition which will fit all cases.
 Therefore, there is no general test to determine collateral facts.
 The Supreme Court of Appeal equates the English test for collateral facts with the criterion for relevance.
 All facts that on the face of it are unconnected to the facts in issue should be treated as collateral facts.
 Collateral facts are subordinate facts. There are 2 types:
o Facts affecting the credibility of a witness.
o Facts proved as a condition to the admission of certain evidence.
 Therefore, the general rule states that an answer relating to the credibility of a witness, or other collateral matter,
is final.

1) THE RULE
 According to the traditional approach, answers to questions in cross-examination, and those emanating from
collateral facts, can't be rebutted by further evidence.
 However, the modern approach differs.
o Answers to questions relating solely to credibility, as a general rule, are final, and are only rebuttable if the
answer is relevant.
o Therefore, if a person can prove that answers to questions don’t solely relate to credibility, but to
admissibility on other grounds, the general rule doesn’t feature.
 The modern approach rule exists because it saves an unnecessary waste of time.
o It is also common sense that matters relevant to credibility are very wide, therefore, if all collateral facts
were admissible, the trial would be indefinitely prolonged.

2) EXCEPTIONS TO THE RULE

 Previous inconsistent statements,
o The presiding officer must decide if the statement is relevant, and
o The person trying to prove such a statement must do so because the witness denied it.
o Such a statement need not have been made under oath.
 Previous convictions of the accused.
o These are usually regarded as character or similar fact evidence.
o The underlying principle is the fact that that accused person was previously convicted of an offence is
collateral to the present offence.
o Therefore, s197 is an exception under collateral facts.
  Bias.
o When the witness is biased towards a party, the question is relevant to the relationship between the
persons.
o Contradictory evidence may be adduced.
o As long as bias is clearly enunciated and compatible with the facts, the questions as evidence
thereabout are relevant and admissible.
o Hypothesis and general insinuations (based on speculations) are collateral facts and inadmissible, and
the answers thereto are final.
 Physical or psychological defects influencing credibility.
o Expert medical evidence can be impeded by the credibility of the witness.

3) S v SINKANKANKA 1963
 The accused and the witness claimed to be together at the time of the commission of the crime, and that the
witness later went to a fire station.
 The accused’ witness was questioned regarding the witness’s alibi.
o It was argued that this questioning was related solely to the witness’s credibility on a collateral issue upon
which rebutting evidence was inadmissible.
o Therefore, it was argued, the allowing of such evidence was a material irregularity resulting in prejudice
to the accused.
 The court reiterated that a witness’s reply to a collateral issue was conclusive and the opposing party could not
be permitted to adduce contradictory evidence.
 The court further stated that the term ‘collateral fact’ is not readily susceptible to a comprehensive definition.
o The test in terms of Attorney General v Hitchcock (an English case) provided that if an answer of a
witness is a matter that you could be allowed to prove in your evidence, then it is a matter upon which
you may contradict him.
o This test is difficult to apply in all cases.
o The English test can be equated with the test for relevancy i.e. if the answer is relevant to the matter
before the court, that answer may be contradicted.
 The court held that the matter in the cross-examination of the witness was related to his credibility as well as the
fact in issue, and therefore rebutting evidence was admissible.

4) S v CHAVULLA 1999
 The question in this case was whether the evidence given during the bail application was admissible in the main
trial.
 The court held that the admissibility of such evidence was subject to the requirements that:
o It must be relevant at the main trial, and
o It must be admissible in terms of the ordinary rules of admissibility.

OPINION EVIDENCE

 Opinion evidence is inadmissible as a general rule.

 There are 2 exceptions:
o Layman evidence will be admitted is it is difficult to explain a matter without such evidence.
o Expert evidence is admissible if the matter requires such evidence, and the evidence falls within the
expert’s field of expertise.
 This rule exists because:
o The witness appropriates the functions of the court, and there is the danger that the court will adopt the
witness’s views as his own.
o Only observations are relevant, and opinions entail the inference drawn from such an observation.
 The rule in practice.
o Opinion evidence is often admissible, despite it containing an observation and an inference, because it
is often impossible to distinguish between an opinion and an observation.
o Such evidence may carry little value.
o Certain instances when opinion evidence is allowed include evidence of age, speed, intoxication,
handwriting etc.
o Whether certain opinion evidence is admissible is determined by laid down requirements.

1) LAYMAN OPINION
 The point of departure is that the court itself is a non-expert, and therefore can draw inferences from facts.
Therefore the layman’s opinion is irrelevant.
 Certain requirements must be met before opinion evidence can become admissible.

1.1 Requirements
  The witness must be competent.
 The grounds for the opinion must be stated.
o This prevents the court from being misled.
o The court can judge the witness’s reasoning and reject the opinion if it is unfounded.
o The witness may be questioned regarding facts upon which the opinion is founded.
o The court has no discretion in this regard. Therefore grounds must always be stated.
 There must be non-substitution.
o This means that the court mustn’t substitute the witness’s opinion for his own.
o The ultimate issue doctrine states that a witness’s opinion on final or ultimate issues is inadmissible
because the court must decide thereupon.
o The exception to this is expert opinions because specific knowledge is required.

1.2 Is opinion that is admissible evidence in X also admissible in Y?

 In Hollington v Hawthorn 1943, the court held that you can't use the record of a criminal case in a civil case –
witnesses must be called to testify again.
o This case was criticized and led to the amendment of the English law.
 Application of the Hollington case in South Africa.
o The Supreme Court of Appeal criticized this case.
o In the Hassim case, the courts formulated an exception to Hollington. Each case is decided on its own
merits, therefore if opinion evidence was properly admitted in X and is relevant in Y, it should be
permissible for the record of X to be admitted in Y.

1.3 Probative value of opinion evidence

 Opinion evidence may be admissible, but it will be of little value, therefore conflicting evidence will be sufficient
to rebut it.
 Such evidence is usually accepted as prima facie true, and therefore its value will only depend on whether or not
it is challenged (and to what extent it is challenged).

1.4 Examples of admissible layman opinion evidence

 Handwriting.
o S228 makes a comparison between handwriting samples admissible.
 Identification.
 Speed, age, condition, value.
 Intoxication.
o The facts and circumstances of the inference must be provided.
 Matrimony.
o The fact that a man and a women have been living together for a long time permits the inference by a
witness that they were married.
 Reputation.
o Regarding honesty and morality, opinion evidence is admissible, however, evidence regarding specific
instances is inadmissible.

2) EXPERT EVIDENCE
 Expert evidence is admissible because the expert is better equipped to make inferences than the court.
 Such evidence is only admissible when EXPERT evidence is given according to expert knowledge. All other
evidence given by the expert witness will constitute layman evidence.
 However, due to technological advances and publication thereof, the courts are often able to make their own
expert inferences without the assistance of an actual expert.
o Judges often are able to take judicial notice of things that previously needed expert evidence.

2.1 Requirements for admissibility

 The expert must be competent i.e. he must be qualified.
o He can be questioned regarding his expertise/knowledge/experience.
o The court will decide if he is competent.
o No specific qualifications are required.
 He must state the grounds for his inference.
o Evidence must be linked to the facts of the case. If the expert doesn’t know the facts of the case, the
situation may be put to him hypothetically or he may be required to listen to the evidence of other
witnesses.
o However, the factual position must be correctly put to the witness before he is questioned.
o The facts and findings upon which the evidence is given must be stated.
o The stated grounds are relevant to the admissibility and the weight of the evidence.
 Non-substitution.
o The court must decide if the expert evidence is acceptable.
o If the evidence is very technical (and the court can't draw conclusions of its own), the court will be
bound to rely on the evidence of the expert and will only decide on the witness’s credibility.
 o Expert evidence may be compared to other expert evidence.

2.2 Formal requirements

 The expert must be civilly subpoenaed.
o 14 days notice must be given to the opposing party.
o A summary of the evidence and reasons must be submitted to the opponent.
o Sometimes the court will dispense with these requirements.
 S77 and s7 of the Criminal Procedures Act provides for the admissibility of expert evidence when a persons
mental condition is in question.
 Expert evidence may be adduced by means of an affidavit or certificate in certain circumstances.
 A subpoenaed witness is compelled to give evidence.

2.3 Examples
 Handwriting.
o Any layman can see similarities and differences once they have been pointed out, therefore this
evidence will be treated with circumspection.
 Finger printing
o The court is compelled to depend on the expert evidence.
o A conviction may follow solely from evidence of finger prints.
o A fingerprint expert may provide his evidence in an affidavit.
 A shoe print is more reliable than a foot print.
 Medical evidence.
o Motivation must be given.
o In the occurrence of conflicting evidence, the court must look at qualifications and experience, and the
relationship between the doctor and his patient.
o The submitted report must be read into the record.
o The contents of the report must be confirmed by the expert.
 Textbooks.
o The witness may not merely quote, he must have experience and may only use the textbook to refresh his
memory, or as authority.
o The book isn’t evidence.
 Tool marks and ballistics.
o Tool marks must be treated in the same way as handwriting.
o Ballistic marks are more susceptible to precise identification.
 Foreign law.
o If the foreign act is not submitted and evidence is not given about it, the South African law applies.
 Intoxication.
o An expert is needed to determine the degree of intoxication (e.g. too drunk to drive).
o An experienced policeman who has worked extensively with drunken driving cases may provide expert
evidence in this regard.
o Therefore it is not always required to tender medical evidence.

2.4 Probative value

 The court will decide if the evidence is admissible.
 The court must not blindly act upon expert evidence but must decide for itself if it can accept the opinion.
 If the expert evidence isn’t challenged, it is regarded as prima facie proof.
 The court can appoint an expert to act as an assessor during the trial.

3) S V KLEYNHANS 2005
 In this court the appellant led a report by a social worker as expert evidence. This report contained information
about the circumstances of the appellant.
 The social worker had to be called as an expert because she had no personal knowledge of any of the matters
before the court.
 The court held that this report could not constitute expert evidence because:
o The social worker was not the best person to present this information. She only had a second-hand
account thereof and the person who should have presented the evidence was the accused or a
member of her family. This is because she had first-hand knowledge of the facts contained in the report.
o There was no basis laid for the leading of expert evidence.
o The social worker didn’t comply with the requirements for expert evidence.
o There was no reason why the court couldn’t draw its own inferences from the facts.
 The court reiterated the requirements for expert evidence:
o The matter must have required expert skill or knowledge.
o The court must draw its own inferences.
o The expert must be qualified.
o The expert must provide reasons for his opinion.
o The evidence must be sufficiently relevant.
 o Opinion evidence may not usurp the position of the court. A witness may not provide an opinion on the
legal or general merits of the case and a witness’s evidence should not be preferred on an ultimate issue.

COMPETENCE AND COMELLABILITY

 Competence means that a witness is allowed by law to testify.

 Compellability means that he must testify.
 In general, every person who is able to communicate sensibly and to understand that he is expected to tell the
truth is a competent witness.
 S192 – every witness in criminal proceedings is competent unless expressly excluded.
 S8 of the Civil Proceedings Act provides the same in civil trials.
 S193 – the court must decide if a witness is competent. There are 3 scenarios when a court must exercise its
discretion:
o The judge’s observation.
o The court must evaluate testimony.
o When formally proving competence in a trial-within-a-trial.
 If a person is incapable of testifying the parties may not agree to the admission of his evidence.

1) COMPETENCE
 A question of competence is determined in a trial in a trial.

1.1 Incompetence due to state of mind

 S194 – certain witnesses are incompetent due to their state of mind.
 The following requirements must be met:
o There must be an affliction due to mental illness, imbecility, intoxication etc,
o Which deprives that witness of the proper use of his reason,
o Whilst testifying.
 ‘Deprived of the proper use of his reason’ does not include a person who is mentally retarded or feeble-minded.
 If a person becomes incompetent under s194 during proceedings, the evidence already given by him will only
stand:
o In so far as it is not disputed.
o In so far as the opposing party has completed cross-examination.
 S9 – no intoxicated person deprived of the proper use of his reason may be competent.
o Therefore, he will regain his competence once sober.
 The weight or value of this witness’s evidence may be influenced by his affliction.

1.2 Deaf mutes

 Such witnesses are competent as far as they are able to communicate their evidence.
 S161 – viva voce evidence includes sign language.

1.3 Children
 A child is incompetent if they
o Have insufficient intelligence to testify, or
o Have no proper appreciation of speaking the truth.
 S163 – unsworn or unaffirmed evidence is admissible if the child has been admonished by the presiding officer in
terms of s164 to tell the truth, the whole truth and noting but the truth.
 S170A – evidence may be given through intermediaries and in a separate room.
 For a child to be competent, he must meet certain common law requirements:
o He must be of the age, or have the knowledge, to be able to distinguish between right and wrong.
o S164 prescribes the manner in which the child may testify.
o The child must be in a separate room, and may possible require an intermediary.
o The court must refer to the cautionary rule.
 Woji:
o There are no statutory requirements for a child’s evidence to be corroborated.
o It must be determined if the child is trustworthy.
o The child’s trustworthiness depends on:
 His power of observation (is he intelligent enough to observe),
 His powder of recollection (is he old enough to remember), and
 His power of narration (can he understand the questions put to him and can he frame express
and intelligent answers).
o Other factors to be taken into account are:
 Is the child honest (is he conscious of his duty to speak the truth) and
 The nature of the evidence.
 o There is a danger in believing this evidence if it is the only available evidence (cautionary rule).
o Children usually have vivid memories of unusual incidents.

1.4 Spouses
 A spouse is competent and sometimes compellable.
 A spouse used to be completely barred from testifying against their spouse (under common law), but the position
has been changed by statute.
 S196 – a spouse is a competent witness for the defense.
o Such a witness may be compellable for their spouse, but not for a co-accused.
o The evidence of an accused given upon his own application in his own defense at joint criminal
proceedings is admissible against a co-accused.
 S195(1) – a spouse (including customary spouses) can be a competent witness for the state. However, they are
not compellable unless:
o There was a crime against the person or child of either of them;
o Any offence against a child;
o Maintenance;
o Bigamy;
o Incest;
o Abduction;
o Perjury.
 S195(2) – ‘Marriage’ for these purposes includes customary marriages under indigenous law and any religious
marriage.

1.5 Officers of the court

 A judge or magistrate can't testify in cases over which they preside. They must recuse themselves.
 Other officers are competent, but are undesirable as witnesses.

1.6 The accused

 S196 – the accused is competent to testify in his own defense.
 However, he isn’t compellable.
 His evidence must be given under oath or affirmation.

1.7 Co-accused
 This person is competent and sometimes compellable.
 He can testify for the defense.
o An accused cannot compel his co-accused to testify.
o He may testify on his own behalf, but not on behalf of his co-accused.
o The prosecutor and the accused are entitled to cross-examine him.
 If the co-accused are spouses,
o The fact that they are spouses is irrelevant.
o They can't compel each other to testify.
o Each may testify on his own behalf.
o Evidence against their spouse is admissible.
 The co-accused may also be a prosecution witness. The state may only call a co-accused as a witness if:
o Charges are withdrawn;
o After pleading, they are formally acquitted and discharged;
o The co-accused pleads guilty and there is therefore no longer any dispute between him and the state;
o Trials are separated.
 The testimony of a co-accused state witness must be considered with caution, because there might be a motive
to incriminate.
Note: competence and compellability refers to a relationship between persons, while privilege refers to a
communication between persons.

2) COMPELLABILITY
 Certain persons are not compellable:
o The president;
o Members of parliament;
o Diplomatic representatives;
o Judges (however, they can be subpoenaed in civil cases with the courts consent).

3) CONSEQUENCES OF REFUSAL TO TESTIFY

 S189 of CPA endows the court with certain powers regarding recalcitrant witnesses.
o A hostile witness is a witness who won’t testify.
o A recalcitrant witness is a person who testifies but perjures.
  The court can sentence such a witness to jail (for less than 2 years in civil matters, and less than 5 years on criminal
matters).
o This sentence can be repeated.
o The person will be imprisoned unless they can convince the court of a just excuse for having done so
(perjured).

PRIVILAGE

 Privilege refers to the right to withhold relevant information.

o This can result in important information being withheld; therefore, the fairness of the trial could be
impeded.
o Privilege is justified by public policy.
 A competent and compellable witness may not refuse to take the oath. However, he may appeal to his privilege.

1) PRIVATE PRIVILAGE
 This right may be waived.
 The person claiming the privilege must raise it himself.

1.1 Matrimonial privilege

 S198 – a partner to a marriage cannot disclose communications between spouses to such marriage made at any
time in the duration of the marriage. This also applies after divorce or annulment.
 S199 – a witness cannot answer a question which their spouse, as a witness, couldn’t answer.
 S10 of the Civil Proceedings Act is the same as s198 but doesn’t discriminate between civil and criminal
proceedings.
 It is important to note that privilege protects communications between spouses.
o Therefore, a 3rd person who overheard the communication cannot claim the right to privilege.
o The communication need not have been confidential.
o This right protects the relationship between spouses.
 Privilege applies to:
o The person to whom the statement was made;
o Not persons married under indigenous law; and
o Parties to divorce and annulment (not widow/widowers).

1.2 Occupational privilege

 S201 – no legal representative is competent to give evidence against a client or previous client with regards to
professional communications.
 This privilege exists in order to enable the client to freely consult without fear of their attorney being compelled to
testify.
 The nature of the privilege:
o Statements regarding legal advice or litigation are protected from being made public.
o Only communications are privileged.
o The privilege belongs to the client.
o This right may be waived.
o The client forfeits this protection if he reveals the communication himself.
o 3rd parties aren’t bound by the privilege.
o If it is in the interests of justice, the court may revoke the privilege.
 The right may only be waived regarding a question, and not regarding the whole communication.
 This privilege must meet certain requirements:
o The attorney must have acted in his official capacity (this includes pro bono work);
o The communication must have been confidential;
o The statement must have been made with the purpose of obtaining or giving legal advice or litigation.
o The advice must have been proper (a request for information as to how to commit a crime isn’t
privileged).
 Mohamed:
o Limiting the scope of legal professional privilege to private practioners is not justified as long as ‘in house’
advisors remember the difference between communications made in their professional capacity
(protected) and other communications.
o Confidential communications between the state and its legal advisors is confidential advice.
o What is legal privilege depends on the facts – the court has a power to examine the communication and
determine if it is privileged.
o M claimed access to certain documents but the court held that they were privileged because they
amounted to legal advice and were marked ‘confidential’.
 1.3 Settlement statements
 The privilege in this instance belongs to both parties.
 Settlement statements most often occur in civil cases.
 Such a statement is protected even though it may contain an admission.
 The settlement must have been bona fide.
 The purpose of this protection is to:
o Enable negotiation without fear of concessions and statements being used against them if no
agreement is reached.
o Reduce litigation.
 3rd parties are also forbidden to give evidence regarding the contents of settlement statements.
 Letters not containing the phrase ‘without prejudice’ can still be privileged.
 Privilege falls away of the settlement is:
o An act of insolvency;
o An offence; or
o An incitement to commit an offence.

1.4 Privilege against self-incrimination

 This refers to the right to remain silent.
o Both the accused and the witness have this right before and during trial.
 S203 – witnesses are excused from answering self-incriminating questions.
 S200 – such a person isn’t excused from answering questions to establish civil liability on his part.
 S35 (1) of the constitution provides arrested persons with the right to :
o Remain silent;
o Be informed of his rights; and
o Not to be compelled to make admissions or confessions.
 S35 (3) of the constitution further provides an accused person with the right to a fair trial (this includes not being
compelled to give self-incriminating evidence).
 The purpose of this privilege is to encourage persons in the possession of evidence to give it without the fear of
prosecution.
 The witness may not refuse to be sworn in on the grounds of self-incrimination – he must wait for the specific
question before he can claim his privilege.
 Witnesses must be informed of their privilege by the presiding officer.
 The court is entitled to refuse privilege if it isn’t self-incriminating.
 The court may not anticipate the privilege by refusing to allow the question to be asked. The witness must decide
for himself whether or not to answer the question.
 If the accused is a witness, he may claim this right, except with regard to crimes he’s committed.
o This is because he waived his right when he entered the witness box.
 An admission of guilt amounts to a waiver of the privilege.
 S204 makes provision for state witnesses.
o These witnesses must answer all questions put to them.
o They are usually indemnified from prosecution if they answer the questions openly and frankly.
o If they aren’t indemnified, their answers cannot be used against them.

2) PUBLIC PRIVILEGE/ADMINISTRATION OF JUSTICE

 The purpose of public privilege is to protect the interests of society.

2.1 Informers
 An informer must inform voluntarily and be unidentified.
 They may not be called as a witness.
 A person who participates in a trap is identified and can be called as a witness.
 The informer’s identification and information are privileged.
 This privilege exists because it’s in the interests of the state that informers feel free to assist the police without fear.
 The presiding officer has a discretion to suspend the rule and allow the disclosure of the information.
 Privilege doesn’t include:
o Police witnesses in criminal cases;
o Complainants in criminal cases; and
o Anyone whose identity need not be kept secret.

2.2 Judicial officers

 A judge or magistrate may not be questioned regarding the exercise of their functions.
 They also need not give evidence about occurrences in court.

2.3 Police docket privilege

Previously, the docket (excluding the accused statement) was privileged information.
  However, s32 of 108/96 provides for the right to access to information, and s35 provides for the right to a free and
fair trial (including the right to be informed of the charge against one)
 S v Shabalala
o The plaintiff in this matter claimed access to the docket in terms of his right to information and his right to
a fair trial which implies the right to know the allegations in the charge sheet.
o The court held that this privilege no longer exists, unless the document identifies an informer.
 The court may order the disclosure of privileged information in the docket (even if it prejudices the state).
 Mohamed.

HEARSAY EVIDENCE

 This is evidence regarding a statement made by X to a witness.

 This evidence is usually unreliable, therefore it is generally inadmissible.
o This is because the person who made the statement wasn’t under oath and can't be cross-examined.
 Before 1988, the English law applied.
o This law stated that hearsay evidence was inadmissible except in a few cases.
 In 1988 the Law of Evidence Amendment Act gave a new definition to hearsay evidence and granted the courts
a judicial discretion to allow the evidence.
 Therefore, the general rule provides that hearsay evidence is inadmissible.

1) PROVISIONS OF THE LAW OF EVIDENCE AMENDMENT ACT

 S9 repealed s216 and s223 of the Criminal Procedure Act.
o S216 provided that the common law regarding hearsay applied.
o S223 provided that a dying declaration was an exception to the rule against hearsay and was therefore
admissible.
 S3 amounts to a codification of hearsay evidence. It states that

(1) Hearsay evidence is inadmissible unless:

a. All parties agree to its admissibility;
b. The person on who’s credibility the probative value of the evidence depends testifies in person (the
person who made the statement); or
c. If the court is of the opinion that the evidence is admissible in the interests of justice, it must pay regard to:
 The nature of the procedure;
 The nature of the evidence;
 The purpose of the adducement;
 Probative value of the evidence;
 Why the evidence isn’t given by the person who made the statement;
 Prejudice to other persons due to the admission; and
 Other factors.
(2) The provisions of (1) don’t make evidence admissible when it was originally inadmissible for other reasons e.g.
previous consistent statement.
(3) Hearsay evidence is provisionally admissible in accordance with (1)(b) if the court is informed that the person
who originally made the statement will testify, and if he doesn’t do so, the evidence may be struck out.
(4) Hearsay evidence is evidence (oral or written) of a statement made by X to a witness.

2) DEFINITION OF HEARSAY EVIDENCE

 Originally (since Estate De Wet v De Wet 1924), this was a statement made by a person who wasn’t a witness,
which was tendered for the purpose of proving the truth of what was contained in a statement.
o This definition was ‘ascertainment-orientated’ i.e. the emphasis was on the purpose of the declarant for
making the statement.
 In1983, the court in Paizes recommended the ‘declarant-orientated’ approach.
o This was accepted in by the Law Commission, and incorporated in s3 (4) of the 1988 Act.
o The question now falls on the credibility of the declarant, and not on the purpose of making the
declaration.
 The new definition provides that hearsay evidence is evidence given by someone other than the person who
made the statement in court, in circumstances where it is important that the assertor be cross-examined.

3) EXCEPTIONS TO THE RULE OF INADMISSIBILITY

 The common law exceptions are a numerous clausus and can only be extended by legislation.
 The following are statutory exceptions.

3.1 S3 (1) ‘subject to the provisions of other law…’

 E.g. the Births, Marriages and Deaths Registration Act.
 3.2 S3 (1)(a) consent by the opposing party
 This is a type of plea bargaining section.
 The agreement may be reached before or during the trial.
 If the defendant isn’t represented, the court must be wary and explain the situation fully.
o The court must warn the defendant of the consequences of consent.
o The court must also inform the defendant that he in not obliged to consent.
 Consent must be expressly given (not tacit or implied).

3.3 S3 (1)(b) preliminary admissibility

 The person giving hearsay evidence must inform the court that the declarant will testify.
 If the declarant testifies, provisionally allowed hearsay evidence will become a previous consistent statement.

3.4 S3 (1)(c) judicial discretion

 This will only apply as a last resort.
 This section shouldn’t be used unless strongly warranted by the circumstances.
 It must be in the interests of justice.
 There are 7 factors the court must consider:
o The nature of the procedure (civil or criminal);
o The nature of the evidence;
o The purpose of the tendering;
o Probative value (hearsay evidence should be presented late in the trial because there will then be more
evidence on which to base its value);
o Why the evidence isn’t given by the person who made the statement;
o Prejudice to other persons due to the admission; and
o Other (these will depend on the facts of the case must always be in the interests of justice).

3.5 Other limitations

 S3(2) states that evidence that is admissible in regard to s3(1) must still comply with the requirements for
admissibility.

4) NDLOVU
 S3 fuses admissibility with reliability.
 The ‘interests of justice’ test along with the criteria to be considered amount to interpretation in terms of the
constitutional values.
 Safeguards for the accused’ right to a fair trial:
o The presiding officer has a duty to prevent witnesses from venting hearsay evidence.
o S3 can't be used against an unrepresented accused without explaining its significance.
o The accused can't be ambushed with the late admission of hearsay evidence.
 Permission to admit the evidence must be obtained timeously.
 Before the state closes its case, the presiding officer must decide on the admissibility of hearsay
evidence – this informs the accused of the evidence against him.
 A decision on admissibility is a decision of the law and not the exercise of a discretion.
 The use of hearsay evidence doesn’t violate the right to challenge evidence.
o The right to challenge evidence doesn’t amount to a right to cross-examine all evidence.
o This amounts to the right to resist the admission of the evidence and to scrutinize its value and reliability.
 Hearsay evidence provisionally admitted in terms of s(1)(b):
o If the original declarant doesn’t confirm the statement, its value depends on the credibility of the
declarant at the time when the statement was made.
o The evidence can be admitted if it is in the interests of justice.
 To determine ‘probative value’ it must be asked:
o What will the hearsay prove if it is admitted, and
o Will it do so reliably?
 ‘Prejudice’ refers to procedural prejudice.

5) SAAT
 R and M (Mozambican policemen) gave evidence at a previous trial.
o They were not recalled in the present trial because it was impossible to secure their presence.
o Is the evidence given by them admissible in the present trial?
 The current issue was the same as the one at the previous trial, and the accused had the same legal
representative.
 Despite s3(1)(c), the courts are still reluctant to admit hearsay evidence (especially in criminal proceedings)
because they can't challenge the veracity of the declarant.
 At issue was reliability of the evidence:
o The contradictions between the evidence of the two policemen didn’t indicate dishonesty.
o The evidence corroborated evidence of SAPS.
 o R and M didn’t stand to gain or lose anything by testifying.
 The admittance of the evidence didn’t amount to prejudice because R and M had been excessively cross-
examined at the previous trial regarding the same matter by the same counsel.
 It was in the interests of justice to admit the evidence.
 The evidence of witnesses in previous trials amounts to hearsay evidence.
o The record is not proof of the facts contained therein.
o The record is only proof that the facts were correctly recorded.
 S3(4) must be interpreted widely to include witnesses not in the witness box.

DOCUMENTARY AND REAL EVIDENCE

1) THE 6 GOLDEN RULES WHEN DEALING WITH DOCUMENTS

1. Identify.
2. Typify/characterize.
a. Real (exhibit 1, 2, 3…)
i. Small – bring to court
ii. Inspection in loco
iii. Photograph s232
b. Document (exhibit a, b, c…)
i. Public
ii. Private
iii. Official
3. Common law or statutory law
4. Admissibility requirements.
a. Generally admissible
b. Genuine and authentic
c. Best evidence rule
5. Manner of presentation.
6. Effect or value.

2) THE DIFFERENCE BETWEEN A DOCUMENT AND A REAL EXHIBIT

2.1 Nature of real evidence

 This is normally an object. It can also be a person.
 Although this evidence is often accompanied by oral evidence (often someone has to identify the object and
place it in context), it is still evidence in its own right.
 When an expert is called in to explain what an object is, this constitutes opinion evidence, but the object is still
real evidence.
 These things are referred to as ‘exhibit 1, 2, 3 etc’.
 An inspection in loco gives evidence of what was inspected.

2.2 Nature of documentary evidence

 A document is defined as any written thing that is capable of being evidence.
o This definition is wide and includes films and tapes.
o According to the CPA, a document includes any device by which information can be recorded and
stored.
 A document can provide strong evidence, but it can also be forged. Therefore, the courts developed
requirements aimed at ensuring the authenticity of the contents of the document.
o These requirements depend on what type of document is in question.
 There are 3 kinds of documents:
o Public,
o Private, and
o Official.
 It isn’t important upon which surface the writing is found.

3) APPLIANCES AND DEVICES

 Due to technological advances, new equipment can produce evidence.
 Therefore, it is necessary to provide for new methods of evidence apart from the recognized categories (real,
documentary and personal/oral).
 Synman is of the opinion that technological evidence can be classified into real and documentary evidence.
o If the evidence can be obtained from any surface, the question isn’t regarding the production, but
regarding the purposes for which the evidence is needed.
o If writing should be read and interpreted, it is documentary.
 o If the evidence is only admissible on face value, it is real evidence.
 For technological evidence to be relevant, it must be testified that the equipment was in proper working order at
that specific time.
 Reliability can be accepted through judicial notice.

3.1 Photos
 A photo can be real evidence (e.g. a stolen item), or it can be documentary evidence (e.g. to show graffiti on a
wall).
 It is usually presented with evidence as to who took the photo and the contents to be identified.
 S232 of the CPA provides that a party may provide a photo (with leave of the court) instead of producing the
object itself in court.
o This is despite the availability of the actual object.

3.2 Video tapes

 The originality of the tape and its contents must be identified.
 According to Mpumlo, a tape must be treated as real evidence; therefore, evidence of the authenticity and
originality thereof wouldn’t be required for its admissibility.
 Defects affect the weight of the evidence, rather than the admissibility.
 It must be shown that the contents are relevant.

3.3 Sound recordings

 Audiotapes are generally regarded are documentary evidence.
 However, tapes can be edited and amended. Therefore, the courts have to be convinced that they haven’t
been tampered with before they can be admitted.
 The speaker must be identified.
 Defects affect weight and not admissibility.

3.4 Computers
 A computer is mainly used to process and store information.
 The product of a computer is usually a printout in documentary form.
 There is a move towards regarding printouts as real evidence instead of documentary evidence.
 The Computer Evidence Act of 1983 provides for the authentication of a printout by means of an affidavit by
someone who had an overview of the whole computer process.
o Such people are scarce and the act has been criticized.
 S15 of the Electronic Communications and Transactions Act of 2003 deals with the admissibility and weight of
data messages: A data message means data generated, sent, received, or stored by electronic means,
including a voice used in automated transactions, and a stored record.

4) DIFFERENT TYPES OF DOCUMENTS

4.1 Public documents

 A public document is a document:
o Which has been draw up by a public official
o In the execution of a public duty,
o Which is intended for public used, and
o To which the public has a right of access.
 Public documents may be tendered as an exception to the hearsay rule.
 They need not be identified or authenticated.
 Secondary evidence (copies) of the contents of such documents is admissible.
o S233 of the CPA and s18 of the Civil Proceedings Act are applicable regarding the admissibility of a
certified copy.

4.2 Official documents

 An official document is a document in the custody or under the control of an official of the state.
 Official documents are often, but not always, public documents.
 Custody of a document is usually entrusted by statute.
 S234 of CPA provides for the admissibility of a certified copy of an official document.
o The original can only be ordered with the consent of the attorney-general.

5.3 Private documents

 This is any document which isn’t a public document.
 Most documents are private, even if the public has access thereto e.g. newspaper.

5) COMMON LAW ADMISSIBILITY REQUIREMENTS

5.1 Generally admissible

  All other requirements in the law of evidence have been met.
 E.g. contents must be relevant and admissible.

5.2 Genuine and authentic

 This requirement means that the document must be what it claims to be.
 This deals with the nature of the document e.g. a will, a contract.
 The following persons may authenticate a document:
o The author or signatory.
o A witness.
o A person who can identify the signature.
o A lawful custodian or controller of the document.
 Sometimes a document need not be authenticated:
o Documents older than 20 years.
o When the opposing party produced it and asked for it to be put before the court.
o When the court takes judicial notice of the document.
o When the opposing party acknowledges its authenticity.
o When statutory provisions create exceptions to the general rule apply.
o When foreign documents have been authenticated in their country of origin.

5.3 Primary (best evidence rule)

 Primary evidence means the original document.
 The rule is that where the contents of the document are being proved, the original document must be produced.
 Generally, a document only has one original, however, the courts have recognized the possibility of there being
more than one original. This can be the case in carbon copies.
o Da Matta v Otto: carbon copies are not copies but simultaneously produced originals
 There are exceptions to the rule that the contents of a document can only be proved by the presentation of the
document itself.
o Where the mere existence of the document has to be proved.
o Where the contents of the document are admitted.
o Where the original was destroyed, or after a reasonable search, could not be found.
o Where it would be impossible or inconvenient to produce the original (e.g. computer printouts).
o Where the opposing party is in possession of the original and, after reasonable notice calling on him to
produce it, he failed to do so.
o Where the document is a public or official document.
 The prohibition of secondary evidence only applies when the contents of the document are proved by means of
evidence other than the document itself.
o E.g. the price of a product can be produced by an eye-witness, without having to present the invoice.

6) MANNER OF PRESENTATION

6.1 A document in the possession of the party who wishes to prove it is usually produced and identified by a
competent witness
 If the document is in the possession of a 3rd party, he/she can be compelled to bring the document to court by a
subpoena duces tecum.
 There is no discovery procedure in criminal proceedings.
 The accused and the state may both issue subpoenas.
 In a case of an official private document, the attorney general must consent before the original may be
presented in a criminal case.
o This authorization is seldom needed because copies are usually easily available.

6.2 Documents may be handed in from the bar or side-bar

 This is only in exceptional cases.
 E.g. if an act states that a certain type of document is admissible on mere presentation if it meets the admissibility
requirements.

6.3 Opposing party admits admissibility requirements

 Then the document may be handed in.
 This doesn’t necessarily mean that the content of the document is admitted.
 The opposing party may choose to admit the content of the document, and then the document is handed in for
practical reasons only.

6.4 A party alleges that he doesn’t want to object to admissibility yet

 The court will provisionally allow the document.
 This has problems:
o Questioning on the document is usually allowed, and this might have to be scratched.
o The first party might not know of the admissibility of the evidence at the closure of its case.
 o The second party might have to make a decision on giving evidence, depending on the admissibility of
the document.
 A better approach would be to settle the matter in a trial within a trial.
o This gives the presenter the opportunity of convincing the court of the admissibility of the document.
o The ruling of the court often provides the parties with more certainty.

7) EFFECT OR VALUE
 Documents are used in court for various reasons:
o As substitutes for oral evidence.
o Used as a supplement to oral evidence.
o Aids to witnesses to refresh memory.
 The legislator sometimes determines that certain documents contain prima facie evidence.
 Certain statutory provisions provide that certain documents’ probative value is ‘deemed unless the contrary is
proven’.
o Many of these ‘deemed’ provisions have been declared unconstitutional.

8) WASTE PRODUCTS V WILKES

 WP instituted action against W for unlawful competition.
 WP had illegal tape recordings.
o The recordings included a conversation between W and his attorney.
o The conversation between W and his attorney constituted attempts to alter evidence.
 W opposed the admission of the tapes because:
o The information was privileged.
o It had been unlawfully obtained.
 WP claimed the tapes were admissible because:
o The evidence provided was important.
o It couldn’t be otherwise obtained.
o The benefit (exposing the conduct) outweighed W’s privacy rights.
 The court held:
o There was no reason to doubt the authenticity of the tapes.
o The tapes were acceptable evidence.
o The courts have a discretion to admit the tape recordings (despite their illegality).
o The attorney-client communications were aimed at on offence and were therefore not privileged.

ADMISSIONS, CONFESSIONS AND POINTINGS OUT

1) 5 GOLDEN RULES
1. Identify
a. Admission or
b. Confession
2. Typify (what type)
a. Confessions - s217(1)
- s217(1)(a)
- s217(1)(b)
- s217(3) elicited confession
b. Admissions - civil procedure
- criminal procedure

Formal Informal

In facie curiae Ex facie curiae

 S115(2)(b)  S115(1)  S219(A)
 S220  Cross examination  Oral
 Testimony  Conduct
 Silence  Deemed
 S112 and s113

3. Admissibility requirements
a. Primary and
b. Secondary
4. Manner of presentation
a. Depends on 1,2,3
b. Viva voce or hand in documents.
5. Weight
 a. Inherent evidential value
b. Need corroboration?

2) DISTINCTION BETWEEN ADMISSIONS AND CONFESSIONS

 This distinction must be made as soon as possible because admissibility requirements depend on the nature of the
statement.
 A confession must be corroborated and sometimes must comply with statutory requirements.
 Therefore,
o There are different requirements, and
o These statements are made to different people.
 E.g. a delict

Prejudice Act
o The whole circle is the delict
o Each slice is an element
o A confession is re the whole delict
Intention / o An admission is re an element
Unlawfulness
negligence

Capacity

ADMISSIONS

1) NATURE AND APPLICATION

 An admission is defined as an acceptance by the accused of any fact that’s prejudicial to him.
 The content must be incriminating.
 The test is objective.
 Favorable statements are not admissions because they are inadmissible as previous consistent statements.
 The admissions must be factually orientated.
 It must be determined if the admission relates to:
o The merits, or
o Evidentiary aspects.

2) TYPES

2.1 Civil procedure

 An admission need not be proved.
o It cannot be rebutted.
o It can be withdrawn by an amendment.
 Requirements for an amendment:
o A reasonable explanation i.e. it must have been a bona fide error.
o A contractual party may not be prejudiced.

2.2 Criminal procedure – formal admission

 Such an admission can only be made in court.
 The requirements and weight of the 2 types are the same but they have different procedures,
 S115(2)(b)
o This admission may only be made during the plea process.
o If the accused makes a statement, the court must ask him if it can be recorded as an admission.
 If he agrees, the statement becomes a s115(2)(b) admission with the same effect as a s220
admission.
o If all admissions cover all allegations in the charge sheet, the accused may be convicted on his
admissions.
 S220
o This admission is sufficient proof.
o A formal admission is irrebuttable but may be revoked.
o This admission may be made at any time.
 o This admission must be carefully and correctly formulated and must be in writing.
o This exempts the state from proving the fact contained in the admission.
o It must be made with the intention for it to be used as an admission.
o If made by a legal representative, the court must ask the accused if he agrees with it.
o An undefended accused must be warned by the court of the effect and implications of this admission.
The court must also inform him that he is not obliged to make such an admission.

2.3 Criminal procedure – informal admissions

 These admissions may be made either in facie curiae or ex facie curiae.
o In facie curiae – the state must prove it was made voluntarily.
o Ex facie curiae – the state must prove that the accused made the admission and that it was made
voluntarily.
 The manner in which the admission was made influences the manner in which it is dealt with.

In facie curiae
 A confession is never made in facie because it amounts to a guilty plea.
 S115(1)
o This admission is an explanation of a plea.
o The content of the admission is not evidence.
o Admission of contents are informal admissions because they are not recorded in terms of s115(2)(b).
 During cross examination
o Propositions put to a witness are implied admissions.
o The witness need not intend to make the admission.
 During testimony
o The extent to which such an admission may be used depends on the circumstances.
 Silence during the plea, or failure to dispute
o The rule states that an admission may be inferred from silence or conduct only if an innocent person in
the same circumstances would be expected to defend himself or would have reacted differently.
o The merits are affected by the nature of the accusation, the person who makes the accusation, and the
circumstances.
o Does the exercise of the right to remain silent justify adverse inferences?
o An adverse inference cannot be drawn at:
 The scene of the crime,
 Plea proceedings, or
 Cross examination.
o An adverse inference can be drawn during the defense if there is a prima facie case against the
accused.
 S112 and s113
o S112 is a guilty plea and s113 is a not guilty plea.
o Prejudicial statements made by an accused in terms of s112(1) are admissions.
o Once the plea is altered in terms of s113, it becomes an in facie curiae informal admission.
o This is not unconstitutional.
o A suggested amendment to s113: if the court thinks that the accused doesn’t actually admit, has
incorrectly admitted, or has a valid defense, he must record a plea of not guilty.

Ex facie curiae
 The state must prove that the accused made the admission, and that it was voluntary (common law
requirements).
 S219A – admissibility of an admission made by the accused.
o The admission must be made before a Magistrate or in a Magistrate’s presence and it must be reduced
to writing.
o Such an admission is presumed to have been made voluntarily.
o The document may be handed in without viva voca evidence.
o This places the burden of rebuttal on the accused.
 Oral admissions:
o Such admissions are made outside the court and don’t comply with the requirements for s219A.
o If the admission is disputed, viva voce evidence may be led.
o The common law requirements apply.
 Admission by conduct:
o The right to remain silent must be kept in mind.
o The fact that the accused is warned that statement may be used against him leaves no room for
inferences.
o The acceptance by the accused of another’s statement amounts to an admission.
o This includes pointings-out

2.4 Distinction between formal and informal admissions

 FORMAL INFORMAL
Need not be proved Must be proved
Can't be rebutted Rebuttable
Made in court Made in or out of court

3) PRIMARY REQUIREMENTS
 The statement must have been made by the accused, or the accused accepted the statement through
conduct.
 The statement was made voluntarily.
o This is a common law requirement.
o The statement was made free from promises or threats.
 A promise is the expectancy that one’s position would be improved by the untruth.
 Threats include physical violence and pressure.
o To determine whether the untruth renders the admission inadmissible, it must be asked ‘would this have
persuaded an accused to accept the untruth?’.
o A dispute regarding this requirement is settled by a trial within a trial.

4) FORMALISTIC REQUIREMENTS
 S219A requirements:
o Made to a Magistrate.
o In writing.
o The deponent is the accused.
o The interpreter’s certification appeared on the document.
o Voluntariness.
 Consequences:
o The document is admissible by mere production.
o Presumed to be voluntary.

5) MEDIATE ADMISSIONS
 The rule: an admission can only be made by the accused.
 Exceptions:
o The accused authorized his representative to make his admission on his behalf.
o When juristic persons are prosecuted, admissions can be made by the company secretary or the
managing director as a representative of the company.

6) ADMISSIONS BY THE STATE

 The rule: only an accused or legal representative can make a s220 admission.
 It is suggested that s220 be amended to include that a prosecutor can make an admission.
 In terms of common law, the state can make admissions by limiting the facts in issue.
 The state is bound by the particulars in the charge sheet. These amount to admissions.
 Therefore, at any time the state can bind itself.

7) ADMISSIONS BY FORMER WITNESSES

 Regarding the admissibility of admissions in sworn statements by state witnesses, if the state decides to prosecute
the witness, can these statements be used against the witness? And if so, how?
 E.g. 1: at an inquest, X admits to causing Y’s death. At the later trial X’s attorney objects to the statement
because
o The accused was not informed of his right to remain silent and not to incriminate himself.
o The accused was forced.
o The accused was not informed of his right to legal representation.
 E.g. 2: at a burglary trial, X (the witness) admits that his gun was stolen. He is later tried for the negligent loss of the
gun, his attorney then objects to the statement because:
o X’s status has changed from witness to accused.
o There was a statutory duty on X to report the loss of the gun, therefore that admission was not voluntary.
 Therefore it depends on the circumstances.

8) ADMISSIONS AND THE CONSTITUTION

 S35(1)(c) – the right not to be compelled to incriminate oneself.
o This refers to voluntariness.
 S35(1)(b) – the right to remain silent.
o The accused must be informed of his right and the consequences of making a statement.
 S35 only relates to arrested persons.
 CONFESSIONS

 To determine if a statement amounts to a confession, it must be asked ‘would a guilty plea be recorded
thereupon’?
 A confession must be made outside of court.
 Is a statement a confession? Yende:
o Previously there were 3 positions:
 Objective i.e. look at the words only, or
 Subjectively i.e. look at the intention, or
 Yende test: Objective-subjective i.e. look at the circumstances.

1) TYPES
 The same requirements apply to s217(1), (1)(a) and (1)(b).
 S217(3) has different requirements.

1.1 S217(1)
 The confession is made to:
o A private person,
o A Justice of the Peace (lower ranks), or
o A Magistrate, but not recorded in terms of s217(1)(b).
 The confession need not be recorded in writing.
 The state bears the burden to prove that the requirements were met and that the admission is admissible.

1.2 S217(1)(a)
 This is made to Peace Officers.
 For it to be admissible, it must be confirmed and reduced to writing in the presence of a Magistrate or Justice of
the Peace.
 A Justice of the Peace is a constable, a sergeant or an inspector.
 Yende:
o Is a statement a s217(1)(a) confession?
o The objective test is better than the subjective test because the statement concerns facts and not
intention.
o The court created a new test: the objective test where subjective factors are considered.
 Circumstances are often needed to determine the meaning of a statement.
 Subjective circumstances may only be used if they help the court determine the true meaning of
the statement.

1.3 S217(1)(b)
 This confession is made to a Magistrate and reduced to writing.
 It is admissible upon mere production.

1.4 S217(3) – elicit confessions

 Inadmissible confessions can become admissible in certain circumstances.
 If the accused uses evidence in his confession to his benefit, the confession becomes admissible.
 Regarding an answer to a direct question in cross examination:
o Such an answer cannot be used to prove guilt.
o Makoena: since the accused waived is s217 protection, the whole confession becomes admissible.
 The statement must be reasonable and an answer to a direct question.
 The courts must inform the accused of the risks and consequences.

2) PRIMARY REQUIREMENTS
1. The accused made the confession.
o The confession can be made by an agent.
o The confession can be made by an interpreter.
2. It must be voluntary.
o S v Ndika:
 A self induced expectation of a benefit (even when it is refused by the state and the Magistrate
has warned against its not occurring) does not amount to undue influence, and the statement is
therefore not unfair.
 The court also looked at the factors regarding identification and considered the circumstances.
 The court held that there must be no foul play in photo parades.
3. The accused must have been in his sound and sober senses when he made the confession.
o This means that he knew and appreciated what he was saying.
o It depends on the degree of intoxication.
 4. It was made without undue influence.
o Any influence must be unseemingly i.e. not apparent, but real.

3) CONFESSION AGAINST A CO-ACCUSED

 S219 – a confession only applies against the deponent, but may serve as a basis for an admission by conduct of
another.
 Inferences against another person cannot be drawn from the confession.
 A confession implicating a co-accused and repeated in the witness box has evidentiary value against a co-
accused.

4) AFFIRMATION OF CONFESSION (see corroboration and cautionary rules)

 S209 – a conviction may follow by a confession of the accused only if:
o It has been confirmed, or
o The offence was proven.

DISCOVERY & POINTINGS OUT

 S218 – the admissibility of facts discovered through an inadmissible confession.

 Sheehama:
o Pointings out are extra curia admissions, therefore they must comply with the admission requirements.
o Evidence of a forced pointing out is inadmissible (it is not voluntary).
 January:
o Facts:
 During an investigation, the accused made a statement and pointed out the location of the
bodies.
 In the trial, the accused claimed that he had been assaulted by the police into making the
statement and the pointing out.
o The question to be determined was whether the evidence of the involuntary pointing out was admissible
if a relevant fact was found. The court said yes.
o The court held:
 S219A is clear and unambiguous i.e. an admission is only admissible if it is voluntary.
 The court accepted Sheehama in that a pointing out is an admission.
 All involuntary pointings out are inadmissible.
 A pointing out is subject to being informed of ones’ rights in terms of s35.

TRIAL-IN-A-TRIAL

 This trial is like any other trial.

o The procedure is the same.
o The rules of evidence are the same.
o The fact in issue must be admissibility.
 This creates a procedure where the court can enquire into a ‘new’ issue without affecting the main trial.
 The decision is interlocutory and may therefore be reversed/altered/reconsidered.
 No statements made by the accused during the trial within a trial are admissible in the main trial.
 This procedure is usually only used regarding s217(1)(b) confessions and s219A admissions.
 An accused may insist upon the determination of the admissibility of an incriminating statement made earlier.
 Provisional admissibility as an alternative.
o This is usually done with the assurance that the evidence of admissibility will be given at a later stage.
o There are certain dangers involved in this:
 The accused is entitled to testify regarding the admissibility of evidence only.
 The accused is entitled to know exactly what the state’s evidence is, therefore the trial with in the
trial should be used.

JUDICIAL NOTICE


BURDEN OF PROOF, INCIDENCE OF PROOF, QUANTUM OF PROOF
  The burden of proof is not the incidence of proof.
o If no distinction is drawn between the two, it is an irregularity.
 The use of incorrect terminology or motivation is grounds for appeal.
 The burden of proof is the onus.
 Definition: the burden or duty placed on the party by the rules of law.
o The burden is the duty to persuade.
 In criminal matters, the burden is always on the state.
o The shifting of the onus is rare.
o The burden is on the state because of the presumption of innocence and the maxim he who alleges
must prove.
 The overall burden refers to the entire crime, whilst the individual or individual burdens are to prove the elements
of the crime.

1) IN THE PRIMARY CASE (FACT IN ISSUE)

 The state bears the onus if the accused raises an alibi.
 If the accused uses a ground of justification, the state must prove unlawfulness.
 If criminal capacity is in issue, the state must prove the capacity (drunkenness, youthfulness, provocation).
 In the event of insanity,
o The onus is on the state if it wants the accused to be declared a state patient.
o The onus is on the accused if he uses insanity as a defense.
 If fault is in issue, the state must prove knowledge of unlawfulness.

2) IN SECONDARY MATTERS (ADMISSIBLE FACTS)

 The concept of burden is found in matters unrelated to the facta probanda.
 The courts shouldn’t use ‘burden of proof’ because the rules regulating the incidence of the burden are not
applicable to administration or procedural matters.
 Recognized situations:

2.1 Autre fois convict & autre fois acquit

 Here the burden is on the accused.
 The court usually expects the prosecutor to lead evidence in rebuttal because he is in a better position to
investigate the matter.

2.2 Trial within a trial

 This is used when the admissibility of evidence is disputed.
 The onus is on the person trying to admit the evidence.
 The court may not provisionally object to admissibility because the finding of the court is interlocutory.
o If the burden is not later discharged, the evidence is scraped non pro scripto.

2.3 Evidence on sentencing

 There are no fixed rules regarding mitigating factors.
 Generally, the only burden on the accused is to bring before the court factors with a mitigating effect.

3) BURDEN ON THE ACCUSED IN SPECIAL CIRCUMSTANCES

 There are 2 exceptions to the general rule regarding the burden of proof:

3.1 Common law exception

 If the accused claims lack of criminal responsibility due to mental illness, the onus is on the accused.
 This is because of the presumption of sanity in favour of the state.
 Criticism: why must a mentally ill accused prove his illness, but the criminal responsibility of drunks and others must
be proven by the state?

3.2 Statutory exception

 The legislature is sovereign, and can therefore place the burden on the accused.
o This amounts to a statutory intervention in the general rule.
 This duty must be clear, explicit and precise.
 The courts use ‘by necessary implication’ provisions to place the burden on the accused.
 Presumptions affect the burden.
o E.g. ‘unless the contrary is proved’ – proved is considered to be the decisive indication that the burden is
on the accused.
 Presumptions shouldn’t affect the incidence of the burden – they should only affect the norm to be complied
with.

4) BURDEN OF REBUTTAL
 This is the evidential burden.
  Definition: when the state has proven prima facie proof of blameworthiness there is a burden on the accused to
rebut the prima facie evidence.
 The burden shifts as the risk of failure shifts.
 This amounts to a duty to react.
 The purpose is to avoid conviction.

5) DUTY TO LAY THE BASIS

 The accused has the right to remain silent.
 The state must prove all the elements and disprove all defenses raised.
 The defense must be founded on the facts.
 If a defense is not raised in the explanation of the plea/cross examination/examination in chief, the defendant
cannot claim that the state failed to prove its case beyond reasonable doubt.
 The only defense where a basis need not be laid is youthfulness.
o 0-7 years has an irrrebuttable presumption.
o 7-14 years has a rebuttable presumption.

INCIDENCE OF PROOF

 The evidential burden depends on which party would lose the case if it stopped then and there.
 The basic rule is he who alleges must prove.
o The plaintiff usually bears the incidence.
o The defendant bears the incidence if he raised a new averment.
 The effect of presumptions:
o Presumptions are inferences of fact.
o They don’t affect the burden of proof, they only place the burden of rebuttal on the person against
whom the presumption operates.
o A presumption of law places the burden on the opposing party, but this is only a factor regarding
quantum and should not affect the burden.
 Peculiar knowledge: if only one person has information regarding the facts in issue, this is not a reason to burden
him.

1) CAUSE OF ACTION TEST

 The test states that the burden rests on the defendant regarding special defenses.
 Specific defenses:
o An exception.
o Private defense - Mabaso v Felix.
 Private defense is a defense against unlawfulness but it s regarded as a special defense because
the facts founding private defense are always pleaded by the defendant.
o Contract – the person relying on the terms of the contract bears the onus to prove the terms.
o Delict – the plaintiff must prove unlawfulness, fault and damages.
 Mabaso v Felix:
o In a matter regarding the plaintiff’s personality or physical integrity, the burden of proof is on the
defendant to prove the defense e.g. private defense.
o The plaintiff bears the onus to negate justifications in certain circumstances.

2) S v AMBROS
 A was convicted in terms of the Stock Theft Act.
o In the first trial he was denied representation by the Legal Aid Board and was therefore unrepresented.
 The Act provided:
o The onus is on the state if the accused was found on any road or thoroughfare.
o The onus is on the accused if he was apprehended any where else to prove he didn’t have the intention
to steal.
 Held:
o There is a constitutional obligation on the state to provide legal representation if it would otherwise result
in substantial injustice.
o There is a duty on the presiding officer to inform the accused of his right to representation, and failure to
do so amounted to an infringement of his right to a fair trial.
 The shifting of the onus is no longer constitutionally permissible.
 Therefore the state would also bear the onus to prove intention.

QUANTUM OF PROOF
  This is the standard the court must apply to prove if the case has been proved.
 The incidence indicates who bears the burden against.
o The standard operates after the incidence and prescribes how to discharge the burden.
 The standard differs between cases.

1) STANDARDS OF PROOF IN CRIMINAL MATTERS

1.1 Beyond reasonable doubt
 Emphasis in on ‘reasonable’.
 Miller v Minister of Pensions (English case)
o This quantum is not certainty, but rather a high degree of probability.
o Admitting fanciful possibilities would fail to protect society.
 Mlambo (minority judgment)
o There is no obligation on the state to close all avenues of escape.
o This standard refers to evidence of such high probability that an ordinary reasonable man, after a mature
consideration, would come to the conclusion that no reasonable doubt exists i.e. he would be morally
certain of guilt.
 This is not the same as reasonably possibly true.
 The type of offence doesn’t change the standard – the standard is constant.
 Phallo:
o A balance of probabilities is not the same as beyond a shadow of a doubt.
o Where there are more than 2 accused that cover up a crime committed by only one accused, all of the
accused can be convicted as accessories after the fact.

1.2 Reasonably possibly true

 This means that the accused bears the burden to cause a doubt in the judge’s mind.
 This is the opposite of beyond reasonable doubt.
 The doubt must be reasonable and it must have a factual basis.
 This does not mean that the accused must prove his innocence.

1.3 Balance of probabilities

 The burden of rebuttal is higher.
 The accused bears this burden.
 Presumptions apply – the accused must rebut presumptions to escape conviction.
 R v Jacobson: ‘it is not enough to raise doubt…, for to raise such a doubt is not proof to the contrary’
o At common law, the only instance where the accused must establish a defense on a balance of
probabilities is the defense of insanity.

1.4 Prima facie

 Strictly speaking, this is not a standard of proof.
 It is treated as a standard of proof because its interlocutory nature is equated with that which the state is trying to
achieve i.e. the state is trying to prove all facts in issue prima facie while the defendant is trying to raise a
reasonable doubt.
 There are 2 types:
o Rebut with ‘reasonably possibly true’ (low grading).
o Rebut with ‘balance of probabilities’ (high grading) – this includes legislation stating ‘presumed unless the
contrary is proven’.
 The stronger the state’s case, the greater the expectation that the defendant must provide an explanation.
 The state can use viva voce evidence, presumptions and other evidential material.
 S174 51/77 sets its own requirements, therefore prima facie is not used in that regard.

1.5 ‘Will a reasonable court be able to convict’

 This is the standard to meet if one wants to ward off an application of discharge in terms of s174.
 The burden is on the accused.
 Hiemstra: the point of departure is the court must decide if a reasonable person could properly convict.
 The court has a discretion to uphold the application.
 Credibility may be a factor.
 The discharge or the application need not succeed if there is a reasonable possibility that the evidence of the
defendant may supplement the state’s version.
 The state may appeal against a discharge.

2) GUIDELINES IN THE APPLICATION OF STANDARDS OF PROOF

 The guidelines shouldn’t influence the incidence.
 They may be used individually or collectively to determine the quantum.

2.1 Presumptions
 The right to remain silent may affect the operation of presumptions.
 Zuma
o The court considered the constitutionality of statutory presumptions in general.
o It looked at the s217(1)(b)(ii) presumption and declared it unconstitutional.
o A court must consider the content and consequences of presumptions to determine if they conflict with
the constitution or are justifiable.
o The court looked at foreign case law and the common law presumption that a confession is only
admissible if it is voluntary.
 USA/Canada: a presumption is legitimate if there is a rational connection between the facts
proven and the facts presumed.
 SA: the rational connection test is inconclusive.
o The rule that the plaintiff bears the onus to prove beyond a reasonable doubt that the confession was
voluntary is in terms of:
 The right to remain silent.
 The right not to be compelled to confess.
 The right to be presumed innocent.
 Te right not to be a compellable witness against oneself.
o The rule that the burden is on the state is an integral part of rights, and therefore s217 infringes the
constitution.
o This judgment is not regarding:
 All statutory provisions creating a presumption.
 The court didn’t declare all reverse onuses invalid.
 The decision doesn’t influence the statutory provisions with the appearance of presumptions, but
actually created a new crime.
 Irrebuttable presumptions:
o E.g. 0-7 years old children have no criminal capacity.
o If statute is silent regarding a statement (e.g. unless the contrary is proved) and doesn’t use the word
‘presume’, this is a deemed presumption.
o These presumptions cannot be disproved.
 Strong presumptions:
o These are presumptions with the result that the burden of rebuttal must be discharged with a stricter
standard.
o E.g. if the common law presumption of insanity is used as a defense against mental illness, this is a strong
presumption because it is insufficient for the defendant to only create a reasonable doubt, but must
actually prove the sanity on a balance of probabilities.
o These are found in legislation where is says ‘presumed unless the contrary is proved’.
 Weak presumptions:
o Such presumptions only need evidence to be rebutted.
o Such evidence need only be reasonably true.
o Such a presumption is regarded to be a substitute for evidence.

2.2 Factual evaluation and rules of law

 To determine if the standard of proof has been met, the judge must consider certain factors:
1. Probabilities
o The court places itself in the same factual position as the accused.
o Determine if the defendant’s actions are what the court would have done in the same situation.
o ‘Things inconsistent with human knowledge and experience are properly noted as improbable’.
2. Credibility
o This depends on the caution of the presiding officer.
o The presiding officer must distinguish between a lying witness and an honest witness who unintentionally
gives erroneous evidence.
3. Bias
o Determine if there is bias that will consciously or unconsciously affect the evidence.
o Insinuations of a general nature based on hypothesis rather than in facts are treated as collateral issued
and the answers thereto are final.
4. Appearance, behavior, demeanor
o The presiding officer must be cautious in this respect.
o It is hard to articulate why demeanor justifies a rejection of evidence.
5. Circumstantial evidence
o Inferences can be drawn; therefore logical rules must be followed to avoid speculation.
o S v De Blom rules:
 The inference must be consistent with the proven facts, and
 The inference must be the only reasonable inference that can be drawn.
6. Failure to cross examine
o The defendant has a duty to put its version to state witnesses.
o Such a failure is not fatal, but is a factor to be considered.
7. Failure to testify
 2.3 Lubaxa:
 Does a refusal to discharge at the close of the state’s case infringe the accused’ right to a fair trial?
 Held:
o The accused is only entitled to discharge if there is no possibility of a conviction other than self-
incrimination.
o Discharge is at the discretion of the judge.

3) QUANTUM IN CIVIL MATTERS

3.1 Criterion during trial
 The plaintiff usually bears the onus.
 Upon close of the plaintiff’s case, the defendant can apply for absolution from the instance.
 Criterion regarding absolution: ‘whether the evidence led is such that a reasonable person can decide in the
plaintiff’s favour’.
 If absolution is refused the defendant can close his case without leading evidence.
 If absolution is granted the case is not res iudicata and the plaintiff can later proceed on the same cause of
action.
 The court cannot grant absolution against a defendant who bears the onus.

3.2 Criterion at end of trial

 The standard is a balance of probabilities i.e. whose version of the facts is more probable.
 In provisional applications the criterion is prima facie.

CIRCUMSTANTIAL EVIDENCE

 Circumstantial evidence plays a role in the evaluation of evidence and in the answering of questions regarding
admissibility.
 Circumstantial evidence are inferences of fact or factual presumptions.

1) DIRECT AND INDIRECT

 Direct evidence is given by a witness about what he personally observed.
 Indirect evidence warrants inferences.
 There is a distinction between inferences and assumptions:
o Assumptions are assumed without a basis being laid.
o Inferences depend on factual information.

2) GUIDELINES
 There are 3 categories of inferences:
o Prospective evidence.
o Concomitant evidence.
o Retrospective evidence

2.1 Prospective evidence

 Continuity
o The inference of a certain state of affairs may be drawn if it is proved that the state of affairs existed in
the past.
o The ‘doctrine of recent possession’ means an accused in possession of stolen property without a
satisfactory explanation of the possession will be convicted of stealing or knowingly receiving stolen
property.
o The lapse of time between the incident and the possession is important – the longer the period the
weaker the inference.
 Correspondence in the course of business
o If an official letter is written and a copy is filed, it may be inferred that the addressee received the letter.
o If the letter was posted but not received, it cannot be inferred that the letter was stolen.
o There is a statutory presumption that certified mail was received.
 Habit
 Motive, plan, intention
o Evidence regarding motive is often allowed.
o The more probable the consequences, the more probable the inference that the accused foresaw the
consequences.
o Plans may be relevant.
o Because intention is subjective, it is mostly inferred.
o This is because actions are usually the expression of the will.
  Ability/knowledge
o This is extremely relevant.
o Failure to disclose may have an adverse affect.

2.2 Concomitant evidence

 Circumstances may more or less render the allegations probable.
 Opportunity
o Opportunity is often used to prove or disprove the presence of the accused as a certain place at a
certain time.
 Res gestae
o This refers to words/transactions/acts/occurrences.
o E.g. a discussion between persons before entering a pub can be used to infer their intention to gamble
inside.
o The lapse of time and context of the words must not be over emphasized.
 Standard of comparison
o This is evidence of how specific persons react to certain evidence.
o The test is that of a reasonable objective man.
 Res ipsa loquitur
o ‘The facts speak for themselves’.
o This is only applied when there is doubt regarding the real cause of action.
o This is not a presumption.
o It doesn’t affect the presumption of innocence.

2.3 Retrospective evidence

 Inferences can be drawn from subsequent conduct.
 Certain procedures and rules must be applied before such inferences can be drawn.
 Mechanical devices
o The court can draw the inference that the device was working in a certain manner as a certain time if
evidence is presented that it usually functions in that way,
o This is not a legal presumption.
o There is no burden on the opposing party to prove that a device malfunctioned.
o The court may take judicial notice of the manner in which a device operates.
 Possession as proof of ownership
o The person claiming ownership must prove possession.
o Therefore there is an inference that the possessor is the owner unless it is proved otherwise.
o This depends on the facts.
 Failure to explain or previous untruths
o This refers to the right to remain silent.
o The circumstances may lead to an adverse inference.
o Untruths outside the court may point to a guilty conscience.
 False evidence
o The courts are reluctant to regard a person as mendacious and to reject their evidence because they
told an untruth.
o The courts look at the circumstances of the untruth.
o There is a distinction between a deliberate liar and an honest witness who make an unintentional
mistake.
 Corpus delicti
o This is evidence that the crime was committed.
o The crime is usually proven through direct evidence e.g. a corpse was found.
o In terms of the CPA, the court can't convict on the single evidence of a confession.
o Material confirmation is needed to establish corpus delicti.
 Finger prints, blood tests, police dogs
o Finger prints are very strong circumstantial evidence.
o Blood tests are very important in paternity matters.
o The courts are skeptical regarding dogs but they do accept the evidence.

3) CIRCUMSTANTIAL FACTORS
3.1 Failure to testify
 This includes the right to remain silent.
o Depending on the facts, this may lead to an adverse inference.
 This is only a factor and shouldn’t receive too much value.
 Failure to testify regarding direct evidence adduced against an accused will strengthen the evidence because it
has not been contradicted.
o The stronger the state’s case, the stronger the expectation that the accused should reply.
 An adverse inference may be drawn if:
o The witness has intimate information and fails to disclose it.
 o The accused fails to refute evidence when he could have easily done so.
 The failure to testify may never fill a gap in the state’s case.

3.2 Failure to adduce available evidence

 ‘Available’ does not refer to the fact that the witness is a court, but rather to the fact that the evidence can be
obtained from the witness.
 According to ethics, if the prosecutor is aware of a material witness, he must call the witness and make the
witness available to the defense.
 Failure to adduce available documentary or real evidence may lead to an inference that the evidence is
detrimental.

3.3 Failure to cross-exam

 There is a duty to put your case to the opposing party.
 Failure to do so is not fatal, but is only a factor.

3.4 Witness’s presence in court

 A witness may be influenced by court proceedings; therefore it is general practice for witnesses to wait outside.
 Expert witnesses may sit in the trial, but this may still have an adverse effect on their testimony.

3.5 Court’s previous experience of the witness

 The presiding officer may take into account the fact that the witness has previously been credible.

4) APPLICATION AND VALUE OF CIRCUMSTANTIAL EVIDENCE

 Blom
o The rules of logic must be complied with once inferences are called for.
o The content of the rules depends on whether the proceedings are civil or criminal.
 Circumstantial evidence has a cumulative effect on adjudication.

CORROBORATION & CAUTIONARY RULES

CORROBORATION

 This is substantiating evidential material independent of the evidence in chief.

 Evidence other than that of the witness shows that the witness’s evidence is more probably true.
 If a confession is the only evidence,
o S209 states that corroboration is needed.
o S209 is the only instance when corroboration is a requirement.
 Corroboration is an aid in the evaluation of evidence.
 Dictionary meaning: evidence that confirms/supports/strengthens other evidence i.e. renders the other evidence
more probable.

1) RELATIONSHIP BETWEEN CORROBORATION AND CAUTIONART RULES

 They are often used as synonyms.
o This is because corroboration is usually the answer to a cautionary rule.
o I.e. the cautionary rule is satisfied if it is corroborated.
 Corroboration is never a requirement except in s209.

2) RULE AGAINST SELF-CORROBORATION

 Corroboration must come from an independent source.
o Therefore previous consistent statements fall under the rule against self-corroboration.
 Consistency is not corroboration.
 S209 is subject to the rule against self-corroboration.
 The rule was watered down in S v Mjoli:
o The source of the corroboration is not important, but more circumspection is required if it came from the
accused.
o According to the minority judgment, the majority decision is in conflict with the rule against self-
corroboration.
 One confession doesn’t corroborate another because the 2nd is only a repetition of the first.
 S v Mjoli:
o The court interpreted s209 to have 2 options:
 Confirmation of a confession.
 Aliunde evidence.
 o The facts:
 This was a s217(1)(b) confession.
 The state had a s115(1) admission only and no witnesses.
o The question to be answered was whether the court could convict on an admission?
o Held:
 A witness cannot corroborate himself.
 The accused can corroborate himself in the first option under s209.
 Therefore s209 is an exception to the rule against self-corroboration.

3) EVIDENTIAL MATERIAL AS CORROBORATION

 Material is often found in viva voce evidence, but all evidential material may serve as corroboration.
 Regarding pointings out, the material can be subjective or objective.
o Objective pointings out are those facts that are discovered as a result of pointings out and may be used
against multiple accused.
o Subjective pointings out are done by the accused himself and may only be used against the accused
himself.
 Such corroboration can be found in:
o Formal admissions.
o Informal s115 admissions.
o Admissions included in questions during cross examination.
o S112(1)(b) allegations after the application of s113.

4) ERRONEOUS USE OF ‘CORROBORATION’

 Regarding the evidence of a single witness:
o Don’t use ‘corroboration’.
o The court must look at other aids to determine reliability.
o Once there is corroboration, there is no longer a single witness.
 The probative value of aids depends on the facts.

5) CHARACTERISTICS
5.1 Admissible
 The state must first prove admissibility before is can argue corroboration.
 Schmidt: ‘facts which tend to render more probable the truth of a witness’s testimony on a material point are
admissible corroboration thereof, although otherwise irrelevant to the issue and although happening before the
date of the fact to be corroborated’.

5.2 Presented in any manner

 Usually witness A corroborates witness B.
 Circumstantial evidence may corroborate other evidence or witness.
 Admissible opinions of experts can corroborate the plaintiff’s claim.

5.3 Independent source

 This requirement is not strictly applied.
 This excludes the emotional and physical condition of the plaintiff.

5.4 Must be material

 Corroboration is not always needed to link the accused with the offence.
 If it satisfies the cautionary rule, the accused must be linked with the offence.

5.5 Doesn’t alter the standard of proof

 This is merely a means of achieving the standard.

5.6 May be presented by the opposing party

 The accused can:
o Corroborate himself with admissions.
o Corroborate a witness (if he confirms both versions).
 Cross examination may amount to corroboration.

6) STATUTORY REQUIREMENTS FOR CORROBORATION

 S209 – the court can convict on a confession in the following 2 situations:
o Confirmation of a confessions in material respects, or
o Proof through other evidence (independent from the confession) that the crime was actually committed.
 Since Mjoli any evidence (including admissions made by the accused) may serve as corroboration.

7) WARNINGS
 Put corroboration and cautionary rules under separate headings.
  Corroboration is any substantial evidence apart from the evidential material.
 S209: if a confession is the only evidence, corroboration is always needed.
 Because corroboration must be independent, there is the rule against self-corroboration.
o Exception to the rule: and informal admission may corroborate a confession in terms of s290 (Mjoli).
 The corroboration can be any material (Mjoli).
 Single evidence and corroboration are mutually destroying because they cancel each other out.

CAUTIONARY RULES

 Cautionary rules are judge-made rules of practice in terms of which the adjudicator must warn himself to be
cautious regarding certain evidence.
o Certain evidence must be regarded with suspicion because it is potentially unreliable (due to the subject
matter of the evidence or the witness).
 Cautionary rules must not be ignored.
 They force the court into a subjective state of mind but ‘the exercise of caution should not be allowed to
displace the exercise of common-sense’.
 If more than 1 rule apply:
o Each rule has its own approach and its own solution.
o Each rule has its own reasons for existence, and therefore all should be applied.
 The cautionary rules don’t alter the standard of proof.
 The presiding officer must be able to identity and apply the cautionary rules.
o He must be able to explain why certain evidence is reliable.

1) SINGLE EVIDENCE
 Never confuse the witness with evidence.
o The emphasis must be on the evidence and not on the witness.
 Multiple witnesses can give single evidence – this amounts to corroboration and is therefore not single evidence.
 S208: the accused may be convicted on single evidence.
o The evidence must be satisfactory and need not be perfect.
o The conviction must be beyond a reasonable doubt.
 There is no rule of thumb test regarding the consideration of the credibility of a single witness.
 Caution mustn’t replace common sense.
 The number of witnesses per party is not a determining factor.
 Sithole:
o The court held that since the complainant was a single witness, his evidence must be treated with
caution.
o His evidence was unsatisfactory because he was drunk at the time testified about.

2) COLLABORATORS
 Collaborators can be either:
o Participants (accomplices or co-perpetrators), or
o Non-participants (accessories after the fact).
 The rule applies equally to co co-accused and ex co-accused as long as they are collaborators.
 As soon as it appears that the witness is a collaborator, his evidence must be treated with caution.
o The evidence of an accomplice should only be accepted if it is corroborated.
 The origin of this rule: the risk that an accused may falsely incriminate collaborators in an attempt to shift the
blame or to exonerate himself.
 Evidence need not be free of criticism to be accepted.

3) TRAPS & ENTICERS

 An enticer is a participant whether or not he is successful in the enticement.
o Either way he is still liable as an accomplice or co-perpetrator to soliciting.
 A trap is a non-participant.
o This is a person who, in order to have another convicted, suggests criminal conduct and pretends to
participate but actually doesn’t.
o This evidence is suspect because the tap has a motive to convict.
o Entrapment is regulated by s252A.

4) PROSTITUTES
 Previously, the evidence of a prostitute was treated with caution and needed corroboration.
 Currently, the profession no longer taints the evidence of the witness as a person with a tendency towards
mendacity.
 Caution is only needed if:
 o The witness is involved in the crime,
o She holds a grudge, or
o She has a motive to falsely accuse the accused.

5) YOUNG CHILDREN
 There is no statuary provision against children giving evidence.
o There is no age limit, but age may play a role.
o There is no requirement of corroboration.
 The presiding officer must determine
o The competence of the child and
o If the child knows the difference between the truth and a lie.
 S164(1): the presiding officer must warn the child to speak the truth and explain the oath.
 Children are imaginative and subject to suggestibility, therefore caution should be applied.
 Leading questions must not be put to a child.
 Children are often more reliable that adults.
o Their powers of observation and memory are better.
o They have less motive to lie.
 An intermediary and a separate room may be used.

6) IDENTITY
 There is a distinction between the reliability of evidence and the witness’s credibility.
 Evidence regarding identity may be unreliable despite the witness’s honesty.
 Factors to be considered:
o The light,
o Proximity,
o Noticeable features,
o Whether the witness knew the accused before hand.
 Circumstantial evidence:
o Finger prints,
o Blood samples,
o Ballistics.
 Expert evidence and similar fact evidence may fall under identity.
 The De Blom rules regarding logic apply.
 Dock identification is criticized because it is equated with leading questions and is therefore inadmissible.

7) SEXUAL DEIVIANCY
 This is not regulated by law.
 Caution must be applied because:
o It is easy to fabricate and it is difficult to rebut.
o Revenge.
o Emotional stress.
o Financial status.
o An admission of voluntary sex may harm the plaintiff.
 The rule doesn’t discriminate against women – the only admonition is to apply common sense.
 Corroboration of the plaintiff’s version is not required.
 Van der Ross

8) PRIVATE DETECTIVES
 A private detective has a subjective interest in the case; therefore his evidence should be treated with caution.
 He is paid to procure information and therefore has a motive to further his client’s case.

9) WARNINGS
 Single evidence may be given by multiple witnesses.
o If evidence is corroborated, it is not single evidence.
o A cautionary rule is needed if there is single evidence.
 The court can convict on single evidence after the cautionary rule has been applied.
 A co-accused is not an accomplice.
o The contribution to the crime cannot be changed; therefore he is always a perpetrator or accomplice.
o If the charges are dropped, he is no longer an accused.
o The cautionary rule is applied because co-accused might have a motive to incriminate each other.
 Regarding children,
o Age is a factor, but not the determining factor.
o The age rules only apply to the child’s criminal capacity, and not to their capacity to testify as a witness.