TOPIC 4: REAL EVIDENCE

CHAPTER 12: Real evidence

REAL EVIDENCE:
- objects and related things which, if relevant, wi l be admissible evidence,
for example a knife, photograph, voice recording, letter or even the facial
features of a person. Only the object itself is identified and the contents of
the object, if any, are not relied on. For example, a stolen photograph
submitted as evidence of a theft is an item of real evidence because the
content of the photograph is not being relied on

S v M:
Real evidence is an object which, on proper identification, becomes evidence of
itself. Real evidence is, therefore, any tangible thing that we produce for the
court to inspect so as to enable the court to draw a conclusion as to any fact in
issue.

Examples of real evidence include:

- the appearance of persons
- tape recordings
- fingerprints
- handwriting samples blood tests
- weapons used in the commission of a crime
- photographs
- films
- video recordings
- documents
- any other thing that we can see or hear

The admissibility requirement for real evidence is that the piece of real evidence
must be relevant to proceedings. There are also the standard requirements that
the real evidence must, like all evidence, be properly identified and must not be
excluded by any other rule of evidence.
The weight a court affords to an item of real evidence is largely dependent on
the testimony associated with it. This testimony is usually given by a witness
who can clarify or explain what the item of real evidence is and what it is being
used to demonstrate.
For example, in a murder trial where the deceased was shot, a gun
presented as evidence in court will have no weight unless a witness links it to the
crime. A ballistics expert will testify that the fatal shot was fired from that
particular gun. Likewise, there is no point in entering fingerprints into evidence
unless a fingerprint expert explains the similarities of the fingerprints found to
those of the accused.
The court may make its own observations in respect of real evidence admitted,
provided that no specialist or expert knowledge is required to do so. Where the
court’s interpretation of real evidence requires more than ordinary knowledge or
skill, the evidence of an expert will be necessary and such expert evidence
should be received.
- Thus, a court may measure an item such as footprints,3 but would need
an expert lip reader to testify as to what a person is saying in a soundless
video recording.

IMMEDIATE VERSUS REPORTED REAL EVIDENCE

Immediate real evidence refers to a With reported real evidence, a witness

situation where we produce the item gives oral testimony in court
of real evidence in court for inspection describing the real evidence but we
in conjunction with oral testimony by do not present the real evidence itself
a witness. The witness identifies the in court for inspection. This does not
real evidence, describes it, or offers render the real evidence inadmissible.
an explanation as to its relevance as The weight the court gives to such
evidence in the proceedings. evidence may be affected if the real
evidence is available but the party
relying on the real evidence elects not
to produce it.

APPEARANCE OF PERSONS
A person’s physical appearance and characteristics may be relevant to a matter
and, as such, will be real evidence that a court may wish to inspect. Where a
party wants to present a person’s physical appearance and characteristics as
real evidence, they may do so either by having the individual in court where the
person can be observed or by presenting photographs and so on into evidence.
Instances where the appearance of persons is necessary include:
- where the court wishes to examine wounds or injuries sustained by a
person
- where a party wishes to establish the identity of a person
- where a party wishes to establish a person’s size, strength, dexterity or to
examine identifying features such as tattoos or scars
- where a party wishes to show parentage (evidence of the child’s
appearance compared with that of the alleged parent is of limited value. It
may be of greater value when dealing with a situation where there are
apparent differences in ethnicity between parents or between a parent
 and an alleged child7 but this method has been superseded by significant
advances in technology that are more reliable and accurate)
- where a party wishes to establish ethnic origins where a party wishes to
estimate the approximate age of that individual (section 337 of the
Criminal Procedure Act 51 of 1977 allows a court to consider a person’s
physical appearance and characteristics to do this, but section 337(b)
excludes such estimations where the precise age of the accused is an
element of the offence)
- where a court wishes to establish competency to testify (a court may
observe a witness’s mental abilities to determine his or her competency to
testify).

TAPE RECORDINGS
Tape recordings may be admissible as real evidence providing:
- the tape recording is shown to the court’s satisfaction to be prima facie
original
- the tape recording is sufficiently intelligible
- evidence is led which identifies the speakers in the tape recording either
by testimonial evidence of witnesses who heard the speech or
conversation that was recorded or by inference drawn from what was said
in the recording
- any accompanying transcript of the tape recording is identified by the
person who transcribed it

FINGERPRINTS
A fingerprint is an impression left by the friction ridges of a human finger. A
friction ridge is a raised portion of the skin on the fingers and toes. Sweat or any
other substance which may be on the fingers or toes at the time the print is
made leaves impressions of these ridges behind on a surface.
Fingerprints are unique to an individual. No two people will ever have the same
fingerprints, not even identical twins.
- Thus, fingerprint evidence found at the scene of a crime has strong
probative value in linking the accused to the crime.

We gather fingerprint evidence by taking an exemplar of the suspect’s

fingerprints and comparing it to fingerprints found at the scene of the crime or
on an object pertinent to the crime. If there are seven points of similarity
between the exemplar fingerprints and those found at the crime scene, this is
sufficient to prove beyond doubt that the same person made the prints.
 - An expert in dermatoglyphics, the science of fingerprints, will make the
comparison. If the court is satisfied as to his or her expertise, it will accept
the evidence.
- The evidence of the comparison may be given orally or by way of affidavit
in terms of section 212(4) and (6) of the Criminal Procedure Act, 1977.

Handwriting
Handwriting is unique in that an ordinary layperson, the court itself or an expert
witness can make handwriting comparisons. In terms of section 228 of the
Criminal Procedure Act, 1977 and section 4 of the Civil Proceedings Evidence Act
25 of 1965, whenever the veracity of a particular handwriting is in dispute, a
genuine handwritten sample may be compared to the disputed piece of
handwriting. Both the disputed piece and the genuine sample are items of real
evidence.
- A handwriting expert, known as a questioned document examiner, may
give evidence concerning the comparison.
- A layperson can also give evidence provided that he or she knows the
writing being compared.
- A court is not bound by the expert’s opinion and may even draw its own
conclusions from its own comparisons.

BLOOD TESTS, TISSUE TYPING AND DNA

Blood tests are often used in litigation. In criminal matters, blood alcohol levels
are pertinent in cases such as driving with excessive blood alcohol levels. In civil
matters, blood tests are used, for example, where paternity is in issue. In
criminal matters, a person is obliged to submit to a blood test. However, in civil
matters, it is not clear whether a person may be ordered to submit to blood or
tissue typing tests.
- Pg 238

Inspections in loco
Section 169 of the Criminal Procedure Act, 1977, High Court Rule 39(16) (d) and
Magistrates’ Courts Rule 30(1)(d) all allow for inspections in loco to be held in
both criminal and civil matters.
An inspection in loco occurs where a court and both parties inspect a particular
location which is relevant to the matter being heard. They may also go to inspect
an object or objects that could not practically be brought to court. Inspections in
loco are generally held in the presence of both parties to a matter.
- An inspection in loco attended by one party only is irregular. The court
may mero motu raise the issue of an inspection in loco or one of the
parties may apply for one to be held. However, it is up to the court to
exercise its discretion as to whether to grant such an application or not.
- An inspection in loco may be useful as it can facilitate the court’s ability to
follow the oral evidence with greater clarity. It also affords the court an
opportunity to observe real evidence that is additional to the oral evidence
adduced in court.

If an inspection in loco is held:

- observations by the court should be recorded
- parties should be given an opportunity to make submissions and lead
evidence where they consider the observations to be incorrect
- witnesses who are present at the inspection and who point out items
and/or places during it should be called, or recalled if they have already
testified, to give oral evidence in court on what they pointed out at the
inspection.
TOPIC 5: DOCUMENTARY EVIDENCE

Chapter 11 – documentary evidence

- S v Porrit and Another 2022 (1) SACR 88 (GJ)

- Standard Merchant Bank Ltd v Creaser 1982 (4) SA 671 (W)
- Barclays Western Bank v Creser 1982 (2) SA 104 (T).

R v Daye gives the common law definition of a document as ‘any written thing
capable of being evidence’. Section 33 of the Civil Proceedings Evidence Act 25
of 1965 (‘CPEA’) expands on this definition to include any ‘book, map, plan,
drawing or photograph’. Section 221 of the Criminal Procedure Act 51 of 1977
(‘CPA’) states that the term ‘documentary evidence’ may comprise any device by
which information is stored or recorded.
- The current term ‘document’ also covers data messages, computer discs,
flash drives, tape recordings and microfilms.

To be admissible at trial as evidence, documents must meet the common law

requirements of relevance, originality and authenticity.
- originality (of document): one of the requirements for admitting a
document into court is the general rule that only the original of the
document concerned is admissible
- authenticity (of document): one of the requirements for admitting a
document into court is that the authorship of the document must be
proved

The essential evidentiary difference between admitting a document at trial as

documentary evidence or as real evidence lies in the purpose for which the
document is admitted.
- Where the contents of a document are at issue before the court, the
document must be admitted as documentary evidence, but where the
document is admitted merely to prove its existence as an object, then it
may be admitted as an item of real evidence.

For example, a copy of a typed contract will constitute documentary evidence

where it is admitted to establish the terms of the contract. However, it will
constitute real evidence if it is admitted for the purpose of proving the existence
of the written contract in the circumstance where one of the parties denies that a
written contract was ever created.
Categories of documents
All documents fall into two general categories and may be labelled as either
private or public documents.
- The category of public documents further includes a sub-category of
official documents.
- Private or public documents may also be labelled as ancient documents
when they are 20 years or older and have been correctly and properly
archived.
- Foreign documents are documents drafted and executed in a foreign
country and certified in terms of High Court Rule 63 for use in a South
African court.
- In terms of section 1 of the Electronic Communications and Transactions
Act 25 of 2002, an electronic document that exists in a digitalised form is
referred to as a data message where data is defined as ‘electronic
representations of information in any form’.

Northern Mounted Rifles v O’Callaghan: A public document is positively

defined as a document drafted by a public official in the execution of a
public duty, intended for public use and to which a member of the
public has a common law and constitutional right of access.
The public official’s duty is twofold:
(i) to ensure that the contents of the public document are truthful and
accurate, and
(ii) (ii) that the document is properly maintained as a permanent record for
public use.

Section 19(1) of the CPEA defines an official document as being ‘in the
custody or under the control of any state official by virtue of his/her
office’.
S v Mpumlo: The principal distinguishing feature of an official document is that it
is drafted for state administrative use and placed in the custody of a designated
state official and may only be accessed or made public on the instruction of a
designated senior departmental official mandated to do so in civil proceedings or
a director of public prosecutions in criminal proceedings.

A private document is legally defined in negative terms as ‘any

document which is not a public document’.
A private document must comply with the requirements of the hearsay rule as
defined in section 3 of the Law of Evidence Amendment Act 1988 when adduced
at trial, whereas a public document may be adduced at trial as an exception to
the hearsay rule.
All documents are subject to privilege and may not be adduced at trial when
falling within the ambit of either private or public privilege.

Admissibility of documentary evidence

Three formal common law requirements must be met before documentary
evidence is admissible at trial:
- Relevance: the statement or document must be relevant.
- Originality: the original document must be produced in court.
- Authenticity: the authenticity of the document must be proved.

In addition to these formal requirements and before a relevant, original and

authenticated document may be admitted at trial it must first be identified,
discovered to the opposing party and produced for inspection.
- In civil matters there are specific formal procedures of identification,
discovery, inspection and production which must be met before a
document may be adduced at trial.
 - There are no formal rules of discovery in criminal matters although the
prosecution is obliged to provide further particulars in writing to an
accused. The accused is constitutionally entitled to access a police docket
subject to the rules of privilege.

The purpose for which the documentary evidence is to be admitted must also be
established.
- Where a party intends adducing documentary evidence to prove the truth
of the contents of the document, then such documentary evidence falls
within the parameters of documentary hearsay.
- The requirements of section 3 of the Law of Evidence Amendment Act 45
of 1988, Part VI of the CPEA, or other statutory provisions dealing with
documentary hearsay will also have to be met in addition to the above
requirements in order to admit a document.

11.3.1 Inspection and discovery

In order to establish which particular documents may be relevant to a proposed
civil litigation, a number of formal pre-trial discovery procedures are set out in
the High Court and Magistrates’ Courts Rules.
During the preparation for trial stage of civil proceedings, the opposing parties
are obliged to list all relevant documents by way of a discovery affidavit and to
produce for inspection all documents (including any plans, maps, X-rays, CTA
scans, written medical examinations and summaries of expert opinions) in their
possession or control intended to be used as evidence at trial.
A subpoena duces tecum may be used to oblige a third party to produce any
document at trial where the document is in possession or control of a third party.
A document which has not been formally identified and discovered may not be
adduced at a civil trial.

In criminal proceedings there are no formal rules of discovery, but an accused

may in terms of section 87(1) of the CPA request further particulars in writing
from the prosecution and may also access any part of the police docket subject
to police docket privilege.

11.3.2 The production of the original document

A party must produce the original document in court where the contents of the
document are themselves in issue or where the contents serve as evidence of
other issues.
Multiple originals such as carbon copies and initialled copies may also be
admitted as if they are originals.
S v Mbovana: The same applies to photostat copies. Each part of a counterpart
copy, where a document is made in duplicate and a different person signs each
copy, will be admissible as evidence against the person who signed it. This
occurs frequently when one party signs a document and faxes or emails it to
another party who then prints and signs it

1. The best evidence versus secondary evidence

- The best evidence rule holds that no evidence may be admitted at trial to
prove the contents of a document except the original document itself (i.e.
the best or primary evidence) (Standard Merchant Bank v Rowe).
- In terms of this rule, primary evidence in the form of an original document
is preferable to secondary evidence in the form of a copy of the document
because it is the best evidence available.
- Primary evidence is evidence that tends to suggest that there is no better
evidence available. Secondary evidence is evidence that tends to suggest
that there is better evidence available (Transnet Ltd v Newlyn Investments
(Pty) Ltd).
- An example of secondary evidence is a copy of a person’s identity
document. The actual identity document itself is primary evidence.
- R v Amod & Co (Pty) Ltd: held that the best evidence rule only applies
when the contents of a document are in dispute, in which case the original
document must be produced. Secondary evidence or a copy of a
document is acceptable where the dispute merely concerns the existence
of a document.
-
The following circumstances do not require the production of an original
document at trial:
- Where the existence of a relationship or status flowing from a document is
in dispute: For example, The existence of a partnership may be proved
without producing the written partnership agreement.
- Where oral testimony instead of documentary evidence will suffice: The
appearance of a person may be proved by oral evidence without
producing a photograph.

2. Admissibility of secondary evidence

- Secondary evidence of a document is admissible if there is an acceptable
explanation for the non-availability of the original. Any secondary copy is
 acceptable, even the oral evidence of a person who can remember the
contents of a document.
- Where a statute requires a particular form of a copy (usually in the form of
a certified copy), a party may not adduce other secondary evidence unless
the party has a reasonable explanation for the absence of the original or
the statutorily required copy.
Secondary evidence is admissible where:
- the existence of the document rather than its contents is a fact in issue.
- Barclay Western Bank v Creser: it can be shown that the original has been
destroyed and a diligent search has failed to locate the original.
- the production of the original may result in a criminal charge.
- the production of the original is impossible.
- the original is in the possession of an opposing party who has been given
notice to produce it and has failed to do so.
- the original is in the possession of a third party who refuses to produce it,
despite being served with a subpoena duces tecum, on the basis of
privilege or that the person resides outside the court’s jurisdiction.

There are also a large number of statutory provisions which allow the contents of
documents to be proved by secondary evidence without the need to produce the
original. Examples of some of these statutory provisions are:
Section 233(1) of the CPA and section 18(1) of the CPEA: copies or extracts of
public documents are admissible at trial when signed or certified as true by an
officer in whose custody the original document is entrusted.
Section 234(1) of the CPA and sections 19(1) and 20 of the CPEA: copies or
extracts of official documents certified by the State official in control of the
original document or the head of the particular department are admissible at
trial. Note that the original official document itself may not be produced without
an order from the Director of Public Prosecutions (DPP) in criminal matters or the
head of the department to whom the original document has been entrusted in
civil matters.

11.3.3 Proof of authenticity

A document must be original and authentic in order to be admitted at trial
especially where the contents of the document are in dispute.
- Evidence must be led to prove the authenticity of the document (i.e. the
authenticity of a document is proved by establishing the authorship of the
document).

A document may be authenticated by the following persons:

1. The author, executor or other signatory.
2. A witness who signed the document.
3. Any person who can identify the signature.
4. An attested document (i.e. a will or testamentary writing) is signed in front
of witnesses able to testify that the author has signed the document and
has done so before their very eyes as confirmed by their signatures as
witnesses in terms of section 36 of the CPEA.
 5. Any person who has lawful control and custody of the document.
6. A handwriting expert may make handwriting comparisons to prove
authenticity in terms of s 228 of the CPA.
7. A notary public is a good example of a reliable witness to a signature.
8. In civil proceedings, authenticity of a document may be confirmed by
serving a notice in terms of High Court Rule 35(9) on an opposing party
requiring the party to admit that the identified document was properly
executed and authenticated.

Where the contents of a document are in dispute, calling the author, signatory or
a person who witnessed the signing of a document to the witness box serves two
evidentiary purposes:
- Firstly, it serves to avoid an objection based on hearsay as the witness
may testify as to the trustworthiness of the document’s contents.
- Secondly, the witness may also testify as to the authenticity of the
document.

Where a document cannot be authenticated, it cannot be used in evidence or for

the purpose of cross-examination. A document need not be authenticated for the
purpose of adducing it in civil proceedings when the following procedural rules
are adhered to. The document must’ve been:
- Produced in court as part of the pre-trial discovery process
- Produced in court under subpoena duces tecum
- Part of an interlocutory affidavit
- Been handed up from the bar

In addition to these procedural rules, the requirement of authenticity may be

waived where:
- the court takes judicial notice of the document
- the opposing party to a dispute acknowledges its authenticity
- s 34(1) and (2) of the CPEA applies in civil matters - any statement made
by a person in a document and tending to establish that fact shall on
production of the original document be admissible as evidence of that fact.
- foreign documents have been authenticated in their country of origin by
the signature or seal of the head of a South African diplomatic mission in
terms of High Court Rule 63(1)-(5) read with Rule 27(3). Rule 63 is merely
directory and the authenticity of a foreign document may be proved or
disproved in the normal course of trial proceedings by direct or
circumstantial evidence.
A number of statutory provisions which waive the requirement of producing the
original at trial and allow instead for the admission of a certified copy also waive
the evidentiary requirement of authenticity.

11.4 The procedural steps in admitting a document in civil proceedings

There are 10 practical steps that must be taken by a legal practitioner when
adducing a document as evidence in a civil trial. These are:
1. Identify all relevant documents intended to be used as evidence.
2. Determine whether the document is an original or a copy.
3. Discover all relevant documents not covered by privilege.
4. Allow for the inspection and examination of these documents by the
opposing party.
5. Determine whether there are any common law or statutory exceptions to
the admissibility of the original and/or any exceptions to the requirement
of authenticity.
6. Serve a notice in terms of High Court Rule 35(9) or Magistrates’ Courts
Rule 23(10) on all other parties to the litigation requiring them to admit
the authenticity of the documents intended to be used at trial.
7. Avoid the hearsay trap by subpoenaing all witnesses capable of testifying
or proving the originality and/or authenticity of a relevant document.
8. Provide bona fide reasons why the original document has been lost and
why only a secondary copy is being admitted as evidence.
9. Provide for expert witness testimony where necessary.
10.Determine whether a document is intended to be admitted for the
probative value of its contents (i.e. as documentary evidence) or merely to
prove its existence as an object (i.e. as real evidence)