CHAPTER 12 – UNCONSTITUTIONALLY OBTAINED EVIDENCE Note – this whole chapter has been reproduced as it will be easier to follow it that

way. Semester 2 begins from the section titled ‘S 35(5) of the Constitution’. 1 Introduction

This topic covers a wide field. There are numerous cases relating to the admissibility of this kind of evidence. We are talking here of highly relevant evidence that is excluded on the basis of other considerations. This section is governed by section 35(5) of the Constitution: Evidence obtained in a manner that violates any right in the BoR must be excluded if the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. This section has not yet been interpreted by the CC. S 35 (5) closely resembles the equivalent Canadian provision. Thus, our courts have followed Canadian jurisprudence on this topic. Unconstitutionally obtained evidence is another rule which excludes certain relevant evidence. Here’s a practical scenario: the state obtains evidence in breach of accused’s constitutional right to not incriminate himself. Should this evidence, which is taken to be highly relevant, be excluded or not? Should the court have the discretion to decide this issue? 2 The competing interests

Once again, we are dealing with a conflict of interests that needs to be kept in a proper balance: - The interest of the citizen: protected against illegal or unlawful action on the part of the authorities - Interest of the state: to ensure that relevant evidence bearing on the commission of a crime and necessary to enable justice to be done is not excluded on some technical ground Lord Cooper in Lawrie v Mure: Ultimately, balancing these is a matter of reconciling both, as either in the extreme is undesirable. History of the Rule The USA has a strict exclusionary approach to protect rights in the American BoR, and to promote substantive and procedural due process. This rule infiltrated other systems, although in a modified form, as a discretionary rule. It has also had an impact on regional and international systems and tribunals. Anglo-American systems initially relied on the English common law approach, but an emphasis on judicial integrity and the promotion of legality/protection of fundamental rights has led to the adoption of a discretionary approach either through a Constitution/ BoR or by judicial creation. In SA, the final constitution took cue from the Canadian Charter. They adopted a via media approach as a compromise between the extreme American approach and the approach formerly in SA. For the rationale for this approach, see the ‘exclusionary’ approach below.

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There are three approaches used in South Africa in this regard: inclusionary, exclusionary & discretionary: 3 Inclusionary Approach

This is the traditional Anglo-SA approach prior to the Constitution: All relevant evidence is admissible. The court is thus not concerned with the manner in which it was obtained. The main argument in its favour is essentially that it is pragmatic and expedient. There is however, a qualification as per Karuma v R 1955 AC (England): this rule is subject to a very limited judicial discretion, if the strict rules of evidence operate unfairly against the accused. The rationale behind this is that: 1. The end justifies the means This is the crux of the approach. According to the Wout, this is quite a common standpoint. It means that if there is illegal conduct on the part of the police in obtaining the evidence, but that this evidence leads to a conviction, then it is justified. Criticism against this approach is stated by that Super-Jew Brandeis J in Olmstead v US: “If the government becomes a law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy to declare that, in the administration of criminal law, the end justifies the means” The main counter argument: Two wrongs do not make a right Other rationale: a) Criminals do not restrict themselves in committing crimes so why should the police restrict their methods. b) The probative value and the relevance of evidence is not impaired by unlawful methods employed in acquiring it. c) Exclusionary rule necessarily requires investigation and adjudication of collateral issues which blurs true issues by shifting focus on to conduct of police rather than accused. d) There are sufficient other remedies available to accused whose rights have been violated. e) Policing is social service aimed at protecting society and for purpose of effective law enforcement, society must tolerate illegal police conduct. f) Exclusionary approach has no deterrent effect g) Not purpose of law of evidence to deter illegal police conduct and not meant to be indirect form of punishment h) Exclusionary rule protects the guilty from conviction i) Criminals do not restrict themselves in committing crimes or in the weapons or means that they use – so why should the police restrict their methods j) Exclusionary rule frustrates effective policing Page 2 of 154

k) Exclusionary rule allows police to frustrate the judicial process through unlawful conduct l) Public policy does not militate against admission of unlawfully obtained evidence m) Argued that exclusion of unconstitutionally obtained evidence is perceived by society as a condonation of unlawful acts. Argued that if an accused who is factually guilty walks free because of technical blunder by state, then the criminal justice system is held in disrespect by the public. n) Exclusionary rule may have unintended result of limiting ambit of fundamental rights in order to admit crucial evidence. o) Exclusionary approach allows no room for proportionality p) Prosecutor may accept plea of guilty on lesser offence in unacceptable circs because she is apprehensive about the operation of the exclusionary approach There are obvious rebuttals to many of these. 4 Exclusionary Approach

If evidence is gathered by illegal conduct on part of the police then such evidence is excluded (bar some minor exceptions). Thus, if the police use unconstitutional methods the courts as a rule will exclude it. This is pretty much the direct opposite of the inclusionary approach and is the approach followed in the US. The Preventative Effect Argument This approach influences the police to comply with the law and follow the rules in gathering evidence against the accused. Elkins v US: The purpose of rule is to deter. The rule will compel respect by removing the incentive to disregard constitutional guarantees. In this sense, the court fulfils a kind of ‘disciplinary’ function. In South Africa, this approach was referred to in S v Mphala Due Process in the context of the Bill of Rights In the prosecution of crime, due process must be followed from the outset until the end of proceedings. Unconstitutionally obtained evidence should be excluded because if not, it will compromise other more important values. We must ensure that the conviction of the accused takes place according to a proper procedure, whereby his constitutional rights are respected throughout all the critical stages of a prosecution. This argument receives more strength when viewed in the context of a BOR that demands and guarantees it, and places important constitutional limitations on official power. It acts not as an evidential barrier, but rather as a constitutional barrier. Procedural justice must be maintained at both the gate-house and the mansion (ie. the courthouse). This famous quote is one which Wouter uses a lot. Underlying this idea is the principle of legality: in prosecution of the accused, the state must comply with the law, and can therefore only use legal means to investigate a crime.

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social justice is achieved and in this regard one can say that the integrity of the system is protected and judicial integrity is also ensured. Acceptance of this principle leads to further valid argument: the exclusionary principle it is not primarily aimed at discouraging unconstitutional official conduct. justice may not be served because an accused who is factually guilty may walk free because of some technical blunder of the state. Primary Rules and the Secondary Rules The exclusionary rule merely reinforces the existing rules regulating police powers. but must still consider these facets in exercising discretion (S v Hena) Principle of Self-Correction An effective due process systemmust have the inherent ability to correct abuses within the system. Page 4 of 154 . one must take into account that in terms of this approach. See S v Naidoo 5 The Exclusionary Rule in the USA The USA. which essentially holds that you cannot convict someone unless you have kept all their rights in order. which prohibits unlawful search and seizures without a warrant and prohibits the obtaining of a warrant without probable cause. Doctrine of Legal Guilt The role that that the exclusionary rule plays in ensuring that the notion of legality is retained in the criminal justice system is supported by the due process doctrine of legal guilt. that in admitting such evidence: 1) courts will violate constitution. the moment they occur. These exceptions can assist SA courts in applying s 35(5). afforded them a fair trial and the case has been conducted in a procedurally fair manner. The rule is enforced by the 4th amendment. Good authority for this is the case of S v Lwane Judicial Integrity The Supreme Court of the USA have identified four facets to this approach.This may mean that in an individual case. as discussed above. has a judicially created rigid exclusionary rule with judicially created exceptions thereto. but its true purpose is to serve as an effective internal tool for maintaining and protecting the value of the system as a whole. 2) courts will act contrary to oath to uphold Constitution 3) courts will be indirectly encouraging violations 4) courts will create impression that they sanction unconstitutional conduct This argument loses ground where a discretionary rule is provided for. However.

The court held that this real evidence was admissible. Then. There are certain exceptions to the rule. the court dealt with the position at federal level which made evidence obtained inadmissible.This is backed up by case law: In the case of Weeks v US. for purpose of impeaching credibility. found drugs. Good Faith Exception The policeman acted reasonably and in good faith in relying on a certain statute or a warrant. they must have standing. the same principle was announced as far as prosecution at state trials level was concerned. there are certain principles in connection to the Mapp case. the accused’s rights must have been infringed by the conduct of the police. In this case. These principles limit the ambit of this decision. Page 5 of 154 . Accused must have standing 2. The primary example comes from Arizona v Evans. Independent Source Exception Evidence is obtained unconstitutionally and later a warrant is secured by means of independent source. There can be no deterrent reason for excluding evidence in this case. Rule does not apply to civil tax action initiated by federal govt or to evidence secured by private individual as opposed to state official 3. In the textbook. but not to a great extent. One of the principles is that. Real evidence excluded by Mapp can. Evidence excluded by Mapp can be used by grand jury in deciding whether to indict 6. There are exceptions to the rule. Exclusion is not required when connection between unconstitutional conduct & discovery of challenged evidence is so attenuated that dissipates the taint. in Mapp v Ohio. But in searching him. The rule and ambit of the rule as laid out in Mapp (not prescribed) 1. for the accused to request the exclusion of evidence obtained contrary to this amendment. be introduced to contradict statement made by accused in evidence in chief or cross 4. To have standing. The Stop & Frisk Exception Real evidence obtained during so called ‘stop & frisk’ (field detention and patting down of outer clothing on basis that suspects some form of criminal activity) is admissible. the reasons for which are that that an inflexible exclusionary rule would over hamper the police and then they won’t be able to function. as the police would be hamstringed and not be able to function. Procedure is of importance in practice and principle. the real evidence seized in terms of the warrant will be admissible on the ground that it was secured through sources independent from and unconnected with the initial unconstitutional discovery. where a policeman arrested man in mistaken belief that there was a warrant out (but it had been invalidated). 4th Amendment does not apply to unlawful search or seizure or property located in foreign country & owned by accused who is a non-resident alien 5.

Of course there are some exceptions to this rule.Right to have lawyer present during interrogation . the statement can be used in cross examination. Ambit of the Exclusionary Rule in Miranda The rule is confined to custodial interrogation or where individual has been deprived of freedom in any significant way (usually when he has been detained and is to be questioned by the police). it was inevitable that the body would have been discovered – 200 volunteers & policemen used a grid search method. real evidence that is discovered as a result of an unconstitutionally obtained statement. to impeach credibility. knowingly and intelligently. The rule is activated by express questioning and the functional equivalent [anything reasonably likely to elicit an incriminating response]. there is a duty on the policeman to issue certain warnings to person in detention: . But what about the body that was found? This is derivative evidence. Clearly. It was clear they would have found her and this evidence would have been allowed. Impeachment Where a statement was obtained unconstitutionally and the accused testifies at trial. Evidence of a prosecution witness identified as a result of accused’s non-coerced but inadmissible statements obtained in breach of Miranda is admissible. This is a bit haphazard in its approach. Deal with the safety concern first. the statements could not be allowed in as evidence. if chooses to speak. Where do you draw the line? Page 6 of 154 . the police found the body of the deceased. this is for limited purpose i.Furthermore.e. according to the evidence. This normally suffers the same fate of the statement. The court allowed the evidence as to the condition of the body. well now you know they come from the case of Miranda v Arizona. statements obtained are admissible at a later stage. whatever he says may be used against him . However. but where there is a conflict between this evidence and the content of the statement made. In this case. if can’t afford to appoint own lawyer. As a result. one will be appointed for him at state expense Evidence obtained in conflict with these warnings will be excluded. When a person is apprehended and questioned. lets turn to them now The ‘public safety’ exception If there is a threat to public safety you don’t need to receive the suspect’s answers right away. This was because.Right to consult with a lawyer . what now if the search party was much smaller. The accused can waive his rights voluntarily. The purpose of these warnings is to protect the accused’s rights against self incrimination.Right to remain silent. The right to counsel was incorporated in the Miranda Warnings to secure thus purpose.The Miranda Warnings (Miranda v Arizona 384 US 436 (1966)) You’ve seen this in the movies. or did not have this instrument. Inevitable discovery In the case of Nix v Williams an unconstitutionally obtained statement and pointing out (from the accused) was obtained from the police.

They were arrested and the drugs were found on them. It must consider all factors relating to the seriousness of the potential infringement. What about the evidence that was discovered? Was this heroin in her hand now inadmissible? The trial court held that the search of the accused was unlawful. the accused and another man left a pub. The police officer then entered the pub and grabbed the accused by the throat.” 1.. They have a duty to exclude it. Will the trial be fair or unfair? 2. Our courts have shown an inclination to seek support from the Canadian Supreme Courts. Ie. to determine if admission of the evidence would bring the administration of justice into disrepute. 3. The throat grab was to prevent the drugs from being swallowed. that Wouter did extensively in class. pulling her to the ground. then the court MUST exclude the evidence. having regard to all the circumstances of the case. yet the policeman had a reasonable suspicion to infer that the woman was holding onto drugs. She was holding onto a balloon filled with heroin. Page 7 of 154 . Thus the court exercises some discretion. We now turn to some very important Canadian cases. Secondly.. which means you’d better love this section. 6 S 24(2) of the Canadian Charter (this is the discretionary approach) We now turn to the position in Canada. If it would bring the administration of justice into disrepute. The Impact of the admission of the evidence on the fairness of the trial If found to render the trial unfair. the evidence must be excluded without considering factors relating to seriousness of breach or the effect of the exclusion on the repute of the system. the court must first make a factual finding as to whether there was an infringement of a right protected in the Charter. the court must make a value judgement. At some stage. It was quite clear the action of the policeman was unlawful and contrary to the rights in the charter. so pay attention. “Where a court concludes that evidence was obtained in a manner that infringed the rights or freedoms of the Charter. the evidence shall be excluded if having regard. They were being watched because there was a suspicion that they were holding onto some nice heroin. According to the Canadian approach. R v Collins 1987 28 CRR 122 (SCC) The police were keeping certain people under surveillance by a drug squad..Evidence obtained contrary to these rules will be inadmissible and will be excluded. Facts show that the force was considerable. but nevertheless the court admitted the evidence because the court was of the view that it should not be excluded in terms of 24(2).

Page 8 of 154 . they made denigrating remarks about the counsel whom he eventually got in touch with. the broad test that the court laid down in applying this provision (would the admission of the evidence put the admin of justice in disrepute?) must be considered from the perspective of a reasonable man. He agreed to this and. Real evidence that was obtained (physical evidence. not statements or pointing out) in a manner that violated the character of the Charter will rarely operate unfairly for that reason alone. In the end. Assault would be serious. The court must also consider the urgency and risk of losing the evidence etc. They persistently and vigorously questioned him although he said he wanted to consult his lawyer. he made a statement to his girlfriend to the effect that he had taken the police to place where he took the gun and something to the effect that he knew something about the death of that woman. The seriousness of the Charter Violation Was the infringement trivial or very serious? The court must look at the actions of the police. then the evidence must be excluded. as would the exclusion of all warnings. the court held that the manner of arrest was a serious infringement on the rights of the accused.On appeal to the Supreme Court: (Majority) Judge LamerFirstly. The real evidence already existed and did not come into being as a result of the infringed right. But totally different considerations apply when the accused is compelled to make a statement or forced to point out something (testimonial evidence). R v Burlinghan The accused was charged with the murder of two women. The case dealt with the murder of one of the women. Would a reasonable person in this situation see the administration of justice in disrepute? This is thus an objective test. The court then laid down certain factors which they need to take into account: 1. which was under a frozen river. the court did exclude the evidence even though it is not self-incriminating because of the manner of the arrest. The court must consider the effect of excluding or admitting the evidence To what extent would the inclusion/ exclusion of the evidence have on the repute of the administration of justice? Thus. he is convicting himself from his own mouth. Whilst he was in custody. They also deceived him with a plea bargain. took them to the place where he hid the gun. 3. Further. The circumstances were similar in both cases: there was evidence of sexual intercourse and both women was shot in the head. Afterwards. An appeal was allowed. Fairness of the trial Would admission of the evidence render the trial unfair? If yes. 2. In this scenario his right to self incrimination is infringed. In this case. after giving a full confession. claiming that they would only charge him with second degree murder which was ‘only on offer over a weekend’ when the counsel was not available. police did a few things that affected the evidence that was discovered.

the courts had moved away from the differential treatment of real and testimonial evidence. However. the appeal was allowed and a retrial was ordered.The trial court held that any statement he made or anything he pointed out was not admissible because his rights in terms of the Charter were infringed. then what was the effect thereof? Must all the derivative evidence be excluded? Issue (1) The accused’s right to counsel was clearly infringed because of the manner of questioning (continuing & persistent despite request for lawyer). Therefore. if they go on authority of R v Collins.A 17 year old minor was charged with the murder of a 14 year old girl. There was a possible rape involved. The court held that derivative evidence ‘is the fruit of the poisonous tree’. then the finding of the gun in and of itself should not operate unfairly against the accused. They went a step further in R v Stillman. The admissibility of evidence (under s24 (2)) obtained in such a manner depended ultimately not on the nature of the evidence but whether it would only have been obtained without the compelled assistance of the accused. the denigrating remarks regarding counsel and the way the plea bargain was presented. R v Stillman 1997 42 CRR (2d) 189 (SCC) This case received a lot of criticism. It would also not have happened had he not been treated in the way he had by the police. They acknowledged that it would never have been found if it were not for the malicious actions of the police against the accused. Because of this close link.The finding of gun & statement to girlfriend. Supreme Court issues: 1) Was the accused’s right to counsel infringed by the actions of the police? 2) If yes.e.Thus. the court pointed out that. in subsequent cases. Regarding the statement to the accused’s girlfriend: the court pointed out that a close link existed between the statement made to his girlfriend and the treatment he received from the police. this derivative evidence should also be excluded. the court allowed the finding of the gun and the evidence of his girlfriend. They took Page 9 of 154 . However. but he wasn’t charged or convicted for that. The court then looked to position of the gun. the police started to systematically take bodily samples from him. Thus. the court started moving away from the framework of the Collins case. Issue (2) The court was asked: Does S 24(2) have the effect that all derivative evidence should be excluded? I. Soon after the lawyers left. The court pointed out that the gun is real evidence and said that. the evidence regarding the finding of gun should be excluded. He immediately got hold of two lawyers who told the police he would not give bodily samples or statements.

They then took saliva. the court must look at the other two factors from Collins case: It must consider the seriousness of the violation and the effect of exclusion on the repute of the administration of justice However. that the court must consider the effect of excluding or admitting the evidence). The taking of bodily samples of the accused against the wishes of the accused also infringes his right to self incrimination – this is trite as it is only with regard to testimonials NOT applicable to real evidence (this includes bodily samples). Wouter said this). it was questioned whether or not it was admissible or not. there must be a distinction drawn between conscriptive evidence (where the accused was compelled) and nonconscriptive evidence (where he was not compelled). The court admitted all the evidence. The same three factors were kept in place (the fairness of the trial. On appeal. He asked to go to the bathroom and he blew his nose. And so this evidence shouldn’t be excluded (the evidence towards the tissue). The court held that whether the evidence is real or not is not relevant to application of s 24(2). The defence said that the evidence contained in the tissue. There was an interval. where the challenged evidence would have been discovered in the absence of unlawful conscription of the accused. All this was obtained against the instruction of the attorneys and was presented at the trial court. If it is not compelled (and thus fair). Thus the majority took the view that his rights were infringed because the defence had already stated that they were not going to make any statements or give any samples. They took imprints of his teeth to match the bite marks on her abdomen. As the first step in ‘fair trial analysis’.hair from his scalp and his pubes (no jokes. then admission will not render the trial unfair. the actions by the police were not flagrant thus it was not conscriptive. Thus this action clearly was an infringement of the section of the charter dealing with search and seizures. Page 10 of 154 . There was no provision at this time allowing the police to take samples. The court followed a totally different approach with regard to the factor regarding the fairness of the trial. What matters is whether it is conscriptive or not-conscriptive. If it is compelled (conscriptive). He was released and rearrested. and then he was questioned. This can be illustrated this by either (1) an independent source or (2) an inevitable discovery. The reasoning in Burlingham was taken further and confirmed: this case provided a systematic analysis of ‘fair trial analysis’. this would render the trial unfair as the compelled use of body or provision of bodily samples will generally result in unfair trial just as surely as a compelled statement. The court retained the framework from Collins. the seriousness of the charter violation. The principle that privilege against self-incrimination is only applicable to testimonial evidence should be rejected). he discarded the tissue and the policeman picked up the tissue and used that for DNA analysis.

How serious was the police’s conduct).Three police officials were patrolling an area at a school which was notorious for drug dealing. the court must assess and balance certain factors. (he was detained in the sense that they cornered him and he felt he could not escape them). A guy walked past. The second issue regarded the admissibility of the gun as evidence. See the Thandwa case. Was it allowed? The judge here was in the minority in the Stillman case. otherwise it would look as if the court is associating itself with the police) 2. the court must balance the effect of admitting the evidence with the society’s confidence in the justice system. the higher the chance that the court would not allow the evidence. would consider the admission of this evidence as bringing the administration of justice into disrepute (effectively the objective bystander test). The more serious. this was an infringement of one of his charter rights. The court decided it was necessary to restate the position due to the heavy criticism that they’d received post-Stillman. When faced with an application for exclusion.So it was ordered to have a re-trial where only the tissue would be admitted The Stillman case is influential in our courts as we have turned our back on Collins and used the Stillman approach. It vindicated many of the critics of Stillman. R v Grant This case came 10 years after Stillman. When faced with an application for exclusion under S 24. Page 11 of 154 . The broad test is whether a reasonable person. the more serious the impact on the accused. Two of the policemen were in plain clothes and in an unmarked car. a. The seriousness of the charter infringing state conduct (ie. Thus. the higher the chance that the court will exclude the evidence (naturally. The three policemen approached and cornered him. The impact of the breach on the charter protected interest of the accused a. They laid down a new framework to apply this provision. The new approach involves the following three factors: 1. The one policeman asked whether he had something he shouldn’t have and he replied that he had a loaded revolver and a bag of weed. informed of all relevant circumstances and informed of the charter. it was found on the facts that the accused had been detained at the stage when the police asked him the question “have you got something you shouldn’t have?” But until he himself came out with the incriminating evidence. In the Supreme Court. The infringement of his right arose as he was already detained and then asked a question while at no stage was he warned about his right to counsel. they didn’t have a reasonable suspicion to detain him and thus this was an arbitrary detention. saw the uniformed cop and got nervous. One was in uniform in a cop car. Again.

which is physical evidence that is derived from an unconstitutionally obtained statement. the court must apply these factors. Privilege against selfincrimination only refers to statements. How important is this evidence for the state’s case? The court then looked at the different types of evidence. The court then applied the factors to the facts. Factors relevant to the seriousness of the Charter violations In R v Therens the court notes that in these types of cases one must determine whether the ‘violation’ was committed in good faith. he came forward and told them things he should not have. the goal of finding the truth vs. they distance themselves from Stillman. Thus. they also referred to derivative evidence. Stillman has been criticised for casting the ‘flexible for all circumstances’ test into a straight jacket (conscriptive / nonconscriptive) that determines admissibility solely on those two factors rather than considering other. Having distinguished all these types. factors. in each case where the admissibility of evidence is concerned. perhaps important. willful or flagrant? Or was it motivated by urgency or necessity to prevent loss or destruction of evidence? In R v Greffe the court noted that there is no exhaustive list of factors. Non-bodily evidence (e. Society’s interest in the adjudication of the case and its merits (ie. which is not their fault).g. Page 12 of 154 .For example. the evidence was rightly admitted and so the appeal was dismissed. there is no infringement of privilege against self-incrimination.3. not bodily evidence. inadvertently or of a technical nature or was it deliberate. Thus the court put the privilege against self-incrimination in the CORRECT perspective again. What is the reliability of the evidence? a murder weapon etc) . Regarding bodily evidence . if the police enters a person’s house in the middle of the night without a warrant and find an incriminating object there. Regarding the statements by the accused the privilege against self-incrimination is of great importance. As the legal position was uncertain. The court recognized that different considerations apply to bodily evidence. the same approach or factors must be applied to ALL of these different types of evidence.Here. The court must always consider the further question of whether it will be detrimental for the administration of justice. From an SA perspective: The differentiation between real and testimonial is a valid distinction in the context of the privilege against self-incrimination and for the purpose of a fair trial. The cumulative impact of all factors must be taken into account in assessing seriousness of the Charter’s violation. They concluded that the action of the police was not really abusive or flagrant as it wasn’t clear to them that they had detained him (in their mind they had just stopped him on the street and asked him a question. the rights of the accused) a.

The court held that it had discretion to exclude relevant evidence such as this based on public policy. he made a confession to one of the doctors. namely whether it would infringe the right to a fair trial and whether it would be detrimental to the administration of justice. There was a question as to his mental capacity at the trial. This means that the court must consider both legs. no untruth or deception which amounted to unacceptable police conduct. there had been no entrapment. (2) The evidence had been obtained by duress from an accused Today S 35(5) is applicable where evidence is obtained by infringing a constitutional right: ‘Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. The court was not concerned with how it was obtained. no guile. exercising his discretion to exclude the evidence. it was admissible. The court held that the evidence of a covert recording was held to be admissible: It was not prohibited by the Act. dispassionate and fully apprised of the facts of the case? Anglo-South African Common Law Inclusionary Approach Back in the day. as the evidence can be obtained unlawfully or improperly but without infringing a constitutional right. the conduct of the police accordingly provided no ground for exclusion and admission could not have rendered trial unfair.’ In this regard. the common law discretion is still applicable.Effect of exclusion on the repute of the administration of justice The key question to ask is would it bring the administration of justice into disrepute in the eyes of the reasonable person. The court held that unlawfully obtained evidence could be excluded only where: (1) The accused had been compelled to provide evidence against himself. The state wanted to present this as evidence. There was a limited qualification as seen in the Roomer case: in a criminal case. Page 13 of 154 . and even if there was a contravention of the Act. if the evidence was relevant. Thus. the court always has discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused. Here it was excluded for such considerations. According to Kidson the common law discretion is still applicable. Whilst at the institution. In S v Nel the judge refused to accept evidence. but it must be exercised in the context of what was held in this case. the admissibility of evidence should still be broadly considered more or less in same manner as s 35(5). In S v Forbes the accused was sent for mental observation. Even where a constitutional right wasn’t infringed. it was formal and minimal.

We dealt with it in Criminal Procedure. is that the failure of the police to inform the arrestee of his relevant constitutional rights at every critical stage would. Thus. the right against selfincrimination and the right to be presumed innocent. Discretion to Exclude Unconstitutionally Obtained Real Evidence S v Motloutsi covers this area.The Interim Constitution The IC did not contain any express provision governing the admissibility of unconstitutionally obtained evidence. The cases dealing with this issue under the IC are not all uniform. So this is only for you guys who loved Crim Proc and want to remember what it felt like. A few hours after his arrest. The court refers to two concepts (Wouter loves these so you better make sure you know them): 1. However. Here it is again. This is a broad right which included under it a number of other rights. Say this an you’ll be considered a genius. although they had received no consent from the accused. require the exclusion of all testimonial communications. as a general rule. The police asked permission to search were allowed by the owner. The court Page 14 of 154 . the po-po went to his house (at 3am) and found the owner there. we can say that the right to fair trial was used in number of cases as the basis of exclusion of evidence. The courts responded by citing various reasons for excluding evidence that would previously have been admitted: Protection of the Constitutional Right to Fair Trial S 25 dealt with right to fair trial. What emerged from this case. but has everything to ensure that accused is treated fairly throughout the entire criminal process. But constitutionalisation required an immediate and fundamental reappraisal of SA jurisprudence on admissibility. discretion was exercised by the court In S v Melani the court first pointed out the importance of the right to counsel and the importance of informing the accused of their right to counsel. The court held further that this protection has nothing to do with the reliability of evidence. This right is used mostly to protect other rights. The accused was arrested. The ‘gate house’ – this refers to the police station and interrogation process 2. It transpired that the accused was renting a room in his home. The Constitution makes it abundantly clear that this protection of arrested person exists from the inception of the criminal process right throughout until the conclusion of the trial. The ‘mansion’ – this refers to the court house and where the trial takes place It doesn’t help that you have most fair procedures in the world in the mansion if in the gate house police can use any imaginable method to get information out of the accused. the search was not in accordance with legal requirements. The search took place without a warrant although the police could easily have obtained a warrant. This is not prescribed (even though it’s in the course outline). and several others. This was also held in the Miranda case (see above): the rights to remain silent. In these cases. especially in the case of testimonial evidence.

Canadian Charter and. in several other decisions. it was adopted in toto. the courts were clearly concerned with the administration of justice being brought into disrepute. In the exercise of its discretion. trial fairness was not the ground for exclusion of the evidence. As you can guess. Public Opinion and Repute of the System Although the courts are accountable to the public. This is what court focused on (invasion of privacy). S v Mayekiso followed the case above. regarding the accused’s rights. it clearly has similar discretion in a constitutional context. the police action amounted to a conscious and deliberate violation of the accused’s right to privacy. Again the court excluded unconstitutionally obtained real evidence because limited probative value was outweighed by breach of constitutional rights. the issue was whether this evidence was admissible. conscious violation of the accused’s constitutional rights. In this case there was no evidence that an unconstitutional search and seizure had taken place with a view to preventing imminent destruction of significant evidence. Malefo. The court also referred to the test in the Canadian Charter. Despite denials to the contrary. the court will exclude such evidence unless there are extraordinary excusing circumstances. but declined to follow the exclusionary rule therein as it was held to be too strict. The court held that. and thus the privilege against self-incrimination did not arise. the court should weigh up objects of the IC (Human rights protection) against policy considerations (the interest in justice being done). the court referred to an Irish case – People v O’Brien – and followed the approach taken therein: “Where there was a deliberate. they should not seek public popularity. the courts came close to adopting this approach c. in one case. Thereafter. However. The police found blood stained bank notes there. Farlam JA in Motloutsi said that this was an NB factor. Therefore. but found that this is too narrow an approach. in a non-constitutional context.f.found that the permission that the owner gave was not valid permission with regard to searching the accused’s room. as a general rule. but too narrow in itself. Therefore. The court referred to Mapp v Ohio (see above). then. The court held that. END OF SEMESTER 1 Page 15 of 154 . it has the discretion to exclude evidence. The interests of society do not displace the longer term purposes of a Constitution which limit government power and seek to establish a democratic order based on recognition of human rights.” The court ultimately excluded the unconstitutionally obtained evidence as its probative value was outweighed by the fact that the constitutional rights of the accused had been infringed.

 However.7 S 35(5) of the Final Constitution S 35(5) provides that “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”. As a result. but warns that they have shifted toward extremely aggressive exclusionary approach which this section was designed to protect against. a prosecution witness and accomplice who had testified after having been warned in terms of S 204 CPA. the court specifically points this out. In S v Naidoo. but the reverse is not necessarily true. ‘unfair trial’ falls underthe umbrella factor of ‘detriment to administration of justice’. had been tortured by police. the court must make a value judgment by exercising its discretion: it must take into account all the facts of the case. It is clear that the considerations that play a role in the context of a fair trial are not necessarily the same as regards the other question regarding detriment to the administration of justice. That this is a correct interpretation is clear from the wording of the section. If there has been a breach of another right. or otherwise be detrimental to the administration of justice’. fair trial principles and public policy. S 35(5): the threshold test This section is only applied when a constitutional right has been violated. a number of articles incriminating the accused were discovered. The court held that it was of no relevance that this was a breach of the constitutional rights of a witness as opposed to that of an accused. But when the court decides this. and was no bar to subjecting impugned evidence to admissibility in Constitution. whereby the court must ensure the constitutional right to a fair trial is not compromised. We have a qualified exclusionary rule where the discretion of the court plays a role. There is similarity between this provision and S 24(2) of the Canadian Charter. What are the elements of the court’s discretion?  The court must make factual finding as to whether there was an infringement of the accused’s rights  There must be a link between the infringement and how this evidence was obtained  There is a duty upon the court to exclude the evidence once it is found that admission of the evidence would make the trial unfair or would be detrimental to administration of justice (thus there is a fixed constitutional rule of exclusion). S 35(5): the causal link between violation and procurement In S v Mthembu it was common cause that R. The court supports the referral to Canadian cases. The court in Naidoo held that evidence will always be detrimental to the administration of justice when the right to a fair trial is infringed. which states that the evidence would ‘render the trial unfair. With Page 16 of 154 . this is determined by common law discretion.

In this case. In Soci. In S v Hena. the oral testimony in court was not. This is a wrong formulation because the court must exclude the evidence if it makes such a finding. This man and the complainant went to home of the person who had sold the cellphone. The judge held that although he finds that the admission would be detrimental to administration of justice he maintained that he nonetheless had discretion. Where the accused relies on S 35(5) in circumstances where it is alleged that his constitutional rights were breached. Thus there is no reason of principle or policy to interpret this section differently. She gave this information to a man who was a member of the anti-crime committee (a private body). there is an inextricable link between torture and the nature of the evidence: torture had irredeemably stained the evidence. The state tried to link the first accused to robbery and rape by means of cell phone of one of the complainants: After the incident. the link was weak and although the statements after the beating were unquestionably tainted. yet closed their eyes to the committee’s conduct. Page 17 of 154 . the courts should take a liberal interpretation to ‘evidence obtained in a manner that violates any right in the Bill of Rights’. questioned and assaulted. two accused were charged with robbery and the rape of two complainants. The investigating officer testified to the working relationship between the police and the anti-crime committee. The court came to the conclusion that admission of this evidence would be detrimental to the administration of justice because there was a severe invasion of right to security of accused’s person. but in SA (as held in Mthembu) S 35(5) requires the exclusion of evidence improperly obtained from any person. S 35(5) and ‘standing’ Standing is a requirement in US and Canada. the court held this included all acts performed by a detainee subsequent to the infringement of his constitutional rights in the course of pre-trial investigations. Two and a half years later. The accused was put into the boot of the man’s car and taken to the office of committee where he was kept for a long time. Davis proceeded from the premise that there had to be a sufficient link between the oral testimony of the four witnesses and the earlier infringement of their constitutional rights. S 35(5) and the admissibility of evidence unconstitutionally procured by private individuals S 35(5) also applies to a situation where the prosecution wishes to introduce evidence obtained unconstitutionally by private individuals. they all insisted that this identification had been given voluntarily. the complainant had received information that a certain person had sold her cellphone to someone else. four prisoners who had been beaten by wardens identified a murderer. In S v Mark. who turned out to be the accused.regard to the causal link. The court held that the accused’s rights were severely infringed by the committee and that the conduct of police in this case was clearly questionable because they had delegated their powers to the committee.

S 35(5) and the co-accused’s constitutional right to a fair trial In S v Aimes (not prescribed). the right to remain silent and the presumption of innocence that are enumerated in the Constitution. the interests of society and public policy. This means that the S 35(5) fair trial requirement is flexible enough to permit discretion to be exercised on the basis of the facts of the case and other factors and considerations such as the nature and extent of the constitutional breach and the presence or absence of prejudice to accused. whilst absence or inadequate furnishing of the constitutionally required warnings does have an adverse impact on fairness of entire process. this does not mean that the admission of evidence so obtained would inevitably result in accused being deprived of his constitutional right to a fair trial. even during the states of emergency. as it is important to exclude evidence to enforce due process. Because the policeman did not act deliberately or Page 18 of 154 . but crime control is sometimes important! The privilege against compelled self-incrimination: trial fairness and the court’s discretion The court’s approach is that. the court held that it was common cause that: (1) The constitutional rights of accused were violated.e. S 35(5) and S 37 – derogation in states of emergency S 35(5) cannot be derogated from. It’s difficult for Wouter to admit. and (3) The framers of the Constitution had in mind that the accused’s rights should be respected at all times. (2) The accused had made an admission incriminating himself in the commission of the crime. weighing up all competing interests. In S v Lottering. The court needs to ensure that exclusion of the evidence does not tilt the balance too far in favour of due process. The court must exercise a value judgment.Desai J held that the admission of accused number one’s bail evidence – obtained in breach of his right to be advised to remain silent – would violate accused number two’s right to a fair trial. but these are not exhaustive. The court partakes in the following process in evaluating s35(5): 8 The first leg of the test in S 35(5) – “Would admission of the evidence infringe the accused’s right to a fair trial?” This is a broad comprehensive right that encompasses several other rights.S 35(5) and S 36 – the limitations clause The minimum requirement for invocation of this section is for the infringement to be a law of general application. i.

Trial fairness and the admissibility of derivative evidence Is the trial fairness requirement embodied in S 35(5) Constitution triggered in respect of the admissibility of real evidence discovered on the basis of information contained in unconstitutionally obtained testimonial communication? In Stillman and Burlingham. There should not have been improper interference with her autonomy.real evidence. the court should be able to rely on an independent source and inevitable discovery principles. the ‘fruit of the poisonous tree’ doctrine need not be invoked with vigor. in following the Canadian approach. In instances involving non-violent conduct. Wouter says that this does not make it less worthy of protection. Derivative real evidence pre-existed the breach and did not come into existence as a result thereof 2. It would generally not render the trial unfair. but the court should look to the administration of justice.evidence from the accused Our courts. The nature and extent of the breach which led to discovery of the real evidence 3. Where real evidence is discovered on account of non-coerced but inadmissible testimonial communication. a waiver of one’s rights (to privilege etc)must be given by a person who abandons the right knowingly and with understanding of what she is abandoning. have consistently held that the privilege against selfincrimination is confined to testimonial utterances or communications and does not extend to real evidence. The notions of basic fairness and justice must be applied with reference to the facts of the case and the court must remain flexible. as it has the potential to be excluded on the grounds that it is detrimental to the justice system.flagrantly. The court must exercise discretion. his actions were not detrimental to the administration of justice. where the court eliminated the distinction between self-incriminating statements and real evidence in the context of the trial fairness test. But this was changed by Stillman. it was held that this evidence must be excluded. Page 19 of 154 .After the waiver. Waiver. The court should rely on disciplinary function in protecting the judicial integrity of the system as a whole (see Tandwa below). but she cannot undo the consequences of her earlier choice to make a statement by later re-asserting her rights. 4. trial fairness and the court’s discretion To be valid. the accused can re-assert her rights. This approach might be artificial. Exclusion of unconstitutionally obtained testimonial evidence does not necessarily answer the issue of derivative real evidence Examples of factors that the court will consider: 1. however. but as a reasonable policeman would have done. Police violence cannot be sanctioned. Schwikkard argues that the exclusion of testimonial communication cannot automatically require exclusion of derivative real evidence which independently links accused to crime. the implication of which is that admitting the evidence would not have rendered trial unfair (despite the violation of the accused’s right). Trial fairness and the court’s discretion: self-incrimination.

The court in S v Tandwa– an important case – followed the approach taken in Stillman.must be taken into account here The high level of crime in SA must also be taken into account The court must consider how serious the infringement of the constitutional rights has been   In the case of S v Ngcobo. pointing out of money is also communicative and thus must also be excluded. The court should not immediately exclude evidence if there is a minor infringement of a constitutional right. It was common cause that each of these accused were assaulted by the police and that each pointed out the place where the money was hidden [in a tin and suitcase respectively]. Trial fairness and the admissibility of evidence from an ID parade without legal representation Where identification evidence stemming from an identification parade is inadmissible due to a lack of legal representation for the accused. The court rejected this argument. a woman and three men were shot and a large amount of money was robbed from them. However. Shortly after this. He pointed out the belongings of the deceased. Most importantly. 9 The second leg of the test in S 35(5): “Would admission of the evidence be detrimental to the administration of justice?” When court exercises its discretion in terms of this leg of the provision. Public opinion. Further. One of the accused was arrested and was duly warned in terms of his constitutional rights after his arrest. emphasizing that this was not a serious infringement of his constitutional rights. in-court identification will only be admissible if the court is satisfied that the in-court identification is based on observations made by the witness other than at the parade identification. Page 20 of 154 . which is real evidence? The court held that the pointing out of the bucket of money and discovery of the bucket itself is not admissible as although this is real evidence and not testimonial evidence. including public acceptance of a verdict and support for the system. Any statement that comes up as a result of an assault must be inadmissible because constitutional rights are infringed. the court held that the distinction between real and testimonial is not really valid: the question is rather how the evidence was obtained. This is the approach at the moment in SA law. he was taken to point out certain things. A number of accused were involved.6million took place. The court held that their constitutional rights had been infringed and the money discovered as a result of pointings out of accused (communicative testimonial evidence). it must endeavor to strike a fair balance between two opposites (and remember how much Wouter LOVES these) – the concepts of due process and crime control:   The court must ensure that the police in their investigation of crime must respect the constitutional rights of the individual The court must also strive to ensure that the person on the street has respect for the administration of justice. it is ‘inextricably tainted with police brutality’. what about the money itself. Two accused were arrested and taken in by the police to be questioned. A robbery of R9. The defence argued that he wasn’t warned again prior to the pointing out.

One of the accused lost his cellphone. honest and responsible police force. In S v Lottering. it was not obtained by compulsion. The Constitution affirms the legislature’s commitment to protection of private communications against violation or infringement. crime cannot be brought under control unless there is an efficient. The court held that such action is not reasonable. The question was whether this incriminating evidence was admissible.There are several factors which the court should take into account in deciding whether evidence should be excluded in terms of the second leg of the test: (a) The presence or absence of good faith and reasonable police conduct (an objective test) The main argument in favour of a good faith exception to not admitting unconstitutionally obtained evidence is that it would permit the use of evidence in situations in which no significant deterrent function would be served by excluding it. Although this is testimonial evidence. However. Witnesses took a policeman into the nightclub and pointed out the accused. The accused pointed to someone who handed over the knife. The police monitored the cellphone and obtained incriminating evidence which they planned to use to nail the accused.This may encourage officers to become acquainted with the law. In S v Mphala. and to countenance these would leave the public with the impression that courts are prepared to condone serious failures to observe standards of investigation. there was a dangerous weapon in the room and thus that the policeman acted reasonably (and in good faith) in this case. As we well know by now. although judges may too easily find for good faith. This all happened quickly and thus the policeman did not warn him of his constitutional rights. The court pointed out that time was of the essence. the court held that the actions of the police were improper and concluded that admission of the evidence would result in an unfair trial and would infringe the accused’s right against self incrimination. The policeman told the accused of the allegations. the court held that the conduct complained of could not possibly have been in good faith. and held that admission of such evidence would bring the administration of justice into disrepute. In S v Naidoo. the accused stabbed someone in the back before running into a nightclub. The court considered the second leg of the right (would admission of the evidence be detriment to the administration of justice) and held that to admit this evidence would be detrimental to the administration of justice. The court found support in various Canadian cases where the police deliberately violated a Charter right. the court held that the presence of bad faith conduct should weigh heavily in favour of exclusion of the evidence. they supplied false information under oath. After the robbery. Page 21 of 154 . In their application to the judge. The judge accepted their evidence and granted the order. A robbery was in progress. the conduct of investigating officer was held to be intentional. The police had ‘subcontracted’ statutory authority to investigate a crime to untrained civilians. arrested him and asked him where the knife was. In S v Hena. the police had a squiz at the numbers that had been phoned from the cellphone and applied to a judge for an order allowing them to monitor the cellphone.

The policemen kicked open the door and found the accused in the room. They fed false information to the judge to obtain the order. The court held that the good faith of the police officer is irrelevant where SAPS had issued directives that did not comply with constitutional demands. The court applied this to the case. Subsequently. Note that this is not a blanket authority allowing law enforcement officers to use unorthodox methods. searching of the house without a warrant. conscriptive or not conscriptive]. she was charged. They arrived at the house without a warrant (when they could have obtained one) and thus the search was unlawful.  Page 22 of 154 . the actions of the police were reasonable. The accused was charged as an accessory after the fact. Second leg: The court looked at the behavior of the police. including using false information regarding order. arrested them before discovering a pistol and revolver. The court proceeded as follows:  First leg: the court referred to the distinction found in Canadian case law – was the accused compelled? [i. holding that it was not conscriptive and thus that admission of the evidence would not lead to an unfair trial. The court used its discretion to consider the following relevant factors argued by the state:     The accused were suspected of serious crimes involving the use of firearms to kill a person The information that the police had at their disposal was that the accused was likely to resist arrest as they were in possession of firearms The surroundings were such that a shoot-out may have occurred It was in the interests of safety to police. but allowed for a confession to the magistrate. where they were told that inside the house there were people suspected of serious crimes who were heavily armed. The court in Soci did not allow for admission of a pointing out. they realized that the money was at her house. The question was whether the finding of money and the evidence was admissible against her. This case of S v Pillay is a good indicator of the two-step approach. two policemen arrived at a house in the middle of the night. the community and the accused themselves to enter the premises The court came to the conclusion that given all the circumstances. After monitoring the phone.e. the police used devious methods to persuade the accused to point out where the money was by indicating that she would not be charged for any crime. The police applied to the judge for an order allowing them to monitor her phone. A group of baddies staged a robbery of R31million. and their deceiving of the accused by making false promises. The police found over R5million in her house. The court had to consider whether the lack of a warrant infringed the accused’s right to privacy.In S v Madiba. The court held that this improper conduct would result in the evidence being detrimental to the administration of justice. Furthermore. The case shows how exclusion must be considered in the context of realities faced by police in the execution of their duties. There was a need to exclude the pointing out on the grounds of ‘systematic deterrence’.

technical and inadvertent to gross. (c) Nature and seriousness of the violation The nature and seriousness of the violation can be scaled. deliberate and cruel. the exclusion of such evidence would generally be detrimental to administration of justice. (d) The availability of lawful means or methods of securing evidence This turns on good faith and reasonable conduct. as a requirement for admissibility. The accused is entitled to know what evidence has been admitted as part of case against him. This is closely linked to whether the violation was a result of an ad hoc decision or part of a settled or deliberate policy to act with disregard for constitutional rights. This procedure is not used where the facts are common cause or where the objection relates to weight of the evidence as opposed to admissibility thereof. This is in line with the USA and Canadian approaches. the court held that unconstitutionally obtained real evidence will rarely render a trial unfair. from trivial. 10 S 35(5) and procedural matters Trial within a trial The accused can testify as to an issue concerning admissibility without exposing himself to crossexamination on his guilt. Page 23 of 154 . the court held that the presence of these two factors is frequently an indication of good faith on the part of the police. Thus the fact that unconstitutional conduct was resorted to in order to protect the imminent destruction of valuable evidence should militate against the exclusion of the evidence. Thus the court conducts a trial within a trial. rather than real/testimonial difference. (e) Real evidence In Mkhize.(b) Public safety and urgency In Madiba. (f) Inevitable discovery If the evidence would have been discovered by lawful means but for the unconstitutional conduct. violent. This must now be read subject to Tandwa. which focuses on the lack of compulsion.

In considering admissibility. it has a discretion to exclude evidence obtained by a criminal act or otherwise improperly. the court held that. but need not prove. this is subject to the Constitution: if it is unconstitutionally obtained. There is no question of onus here. The Interim Constitution held that entrapment is not a substantive defence. entrapment runs the risk of an innocent person being induced to commit a crime. entrapment is not a defence and cannot serve as an evidentiary rule of exclusion. In Fedics Group. in terms of the common law. In terms of the common Law. Traps are used to secure a conviction by creating an occasion for a person(s) to commit a criminal offence. This pre-constitutional discretion has a strong constitutional basis today. Evidence procured by means of entrapment (S 252A of CPA and S 35(5) of Constitution) 11 Entrapment is a proactive investigation technique. In spite of the obvious ethical and moral controversies that go with ‘tempting’ citizens to engage in criminal activities. the court must consider several factors and weigh up all competing interests. S 252A of the CPA(“authority to make use of traps and undercover operations and admissibility of evidence so obtained”) did not create a substantive defence of entrapment. and could not serve as an evidentiary rule of exclusion. The burden of proof rests on the prosecution on a balance of probabilities to show that the evidence is admissible. However. the court has to consider whether the procedure was so unfair that the accused was deprived of his constitutional right to a fair trial in the evaluation of evidence. particularly in S 34 (the right to a fair civil trial). However. that there has been an infringement of a constitutional right and that s35(5) calls for the evidence’s exclusion The court must conduct a trial within a trial where the accused must be given the benefit of the doubt on factual matters which the state fails to prove beyond a reasonable doubt Once the necessary factual findings have been made and the court concludes that the evidence was indeed obtained in breach of the accused’s constitutional rights. Regardless. the court may refuse to allow such evidence (note – this gives the court discretion) if the evidence was obtained in an improper or unfair manner and the admission of such evidence would render the trial unfair or would be detrimental to the administration of justice. The court must assess the trap with caution. the court is required to exercise its discretion and make a value judgment as to its admissibility. S 35(5) trumps the CPA! 12 Civil cases regarding S 35(5) In Lenco Holdings. but created a qualified rule of exclusion: if the conduct goes beyond providing the opportunity to commit the offence. legal scholars agree that in certain circumstances traps are the only efficacious means of detecting and investigating crimes and achieving justice. the court held that exercise of this discretion is directed by S 39(2) of the Constitution (…promote Page 24 of 154 .Burden of proof: incidence and standard    The defence must allege.

the spirit, purport and objects of the Bill of Rights in developing the common law). In this case, evidence was held to be admissible despite a breach of the right to privacy. Before application for sequestration, the creditor in Lotter v Arlow obtained a court judgment against the respondent. The sheriff found no property to attach. The creditor instructed his attorney to send an evaluator to the house of the respondent. The evaluator went to the house, but did not obtain permission to enter premises. He persuaded the housekeeper to let him in. On the premises, he found a Mercedes which the housekeeper told him belonged to the owner of the house. The evaluator gave the Merc the value of R125k. With this evidence, the creditor launched an application for sequestration of the respondent. The court held that there were a number of problems with this evidence:
  

What the housekeeper said was hearsay It wasn’t clear if the car belonged to the respondent or the financial institution Critically, this evidence was obtained in an unconstitutional matter as the evaluator had not obtained permission to enter the premises. The court held that in its discretion it would only allow unconstitutionally obtained evidence to be admitted if it would not make the proceedings unfair or bring the administration of justice into disrepute.

On the facts, the action would clearly bring the administration of justice into disrepute. Furthermore, there were legal means to go about doing what the creditor wanted to do, and he ignored these.

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13 - HEARSAY 1 Introduction

The common law definition of hearsay evidence can be found in Estate De Wet v De Wet 1924 CPD, namely that, "It is the evidence of statements made by persons not called as witnesses which are tendered for the purposes of proving the truth of what is contained in the statement." In the case of Moshoeshoe v Moshoeshoe and Others the court noted that: “This was the old approach before the acceptance of the accommodation by the South African Law Commission and the promulgation of the LEAA [see below]. The emphasis thus no longer falls on the purpose with which the declarant made the statement but rather on the question of the credibility of the declarer. The new approach has thus simplified the definition of hearsay evidence to mean, statement, be it oral or written, given by someone other than the person who made the assertion, in circumstances where it is important that the asserter be cross-examined. Although the purpose for which the statement is tendered is no longer the primary test for hearsay evidence, it nonetheless remains one of the factors which the court must consider.” In studying the issue of hearsay, keep in mind two broad issues: 1. What is hearsay? 2. What are the rules of admissibility of hearsay? These must remain two separate enquiries. Definition The Law of Evidence Amendment Act (LEAA) has rendered the common law rules applicable to hearsay obsolete and redefined hearsay to mean ‘evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence’. Analysis of the LEAA definition a) Whether oral or in writing? It is not crystal clear whether this refers to the evidence in court (viva voce) or to the statement that was made by the declarant only? The definition appears to include communicative conduct – thus Wouter says that oral and writing probably refers to in court. Zeffert and Paizes agree with him. b) Person other than the witness Unlike in the common law, the LEAA makes provision for hearsay evidence to be admitted provisionally if the court is informed that the declarant will be called at a later stage as a witness.

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c) ...depends on the credibility of any person other than [the witness] What is meant by ‘depends on’? Depends entirely upon? Or depends to some extent? Hardly any evidence would be hearsay if this meant ‘depends entirely upon’. If it only depends to some extent, then the ambit would be too wide. Wouter says that it must depend sufficiently or mostly upon the credibility of the declarant. Zeffert and Paizes, the overlords of all things hearsay, agree with him. 2 Rationale for the exclusion of the Hearsay evidence General rule The general rule is that hearsay evidence is inadmissible. We’ll be concentrating on the exceptions. Surprise! The rationale for the rule wasn’t specifically discussed in class, but is worth going over. Note the exceptions and challenges to the rationales offered below. The hearsay rule developed in the English case law over a number of centuries, as the courts were of the view that hearsay evidence should not be presented to the jury or judge because they would give too much weight to this evidence. However, we all use hearsay statements in making decisions in everyday life, and in so doing we take into account its potential unreliability.Because we do this, there is no reason to assume that juries or judges lack the necessary sophistication to accord hearsay evidence its appropriate weight. In a unitary system, the court is unlikely to accord inappropriate weight to hearsay evidence. The court must give reasons for its judgment and would have to justify its reliance of hearsay evidence. As Schwikkard says, ‘it is better to admit flawed testimony for what it’s worth, giving the opponent the chance to expose its defects, than to take a chance of a miscarriage of justice because the trier is deprived of the information’. Thus, if the danger of undue weight was the only reason justifying the hearsay rule, it would make little sense to retain the rule. We must thus consider other possible justifications for the rule. Note that these were not discussed at length in class. We should probably concentrate only on ‘Procedural context’: 1. Procedural context The distinguishing features of adversarial proceedings that are relevant to the moulding of the hearsay rule are: - party control of investigation and presentation; - the passive role of the presiding officer; - the concentration of proceedings The dominant and partisan role of the parties increases the possibility of misleading evidence being introduced. There needs to be a mechanism for testing evidence: this mechanism is cross examination. It is the absence of the opportunity to cross examine the declarant on whom the probative value of the evidence depends which makes hearsay potentially unreliable in common law systems. Crossexamination is an important mechanism to establish the truth. Page 27 of 154

Complexity It has been argued that the hearsay rule merely requires the court to engage in the same inquiry as it would for determining legal relevance of other evidence: does the probative value of the evidence exceed its prejudicial value? If this is so. Some also say that if it is subsumed under the general legal relevance inquiry it will discourage settlement of cases before trial. Cost effectiveness The hearsay rule has also been justified on a utilitarian basis. the actual extent of its unreliability is speculative and must depend on the particular circumstances. some argue that it’s frequently cheaper to in fact offer a report of what a witness said than to call the witness. To include all these in the legal relevance enquiry would ‘over-burden that doctrine and encumber it unnecessarily with principles applicable only to a particular kind of evidence’. In addition. 2. The adjudicator cannot examine the demeanour of the witness when he is not in court. 3. testifies in open court. Thus. upon whom the probative value of evidence depends. while cross examination is also no possible in this instance. 4. But this has no application where the hearsay evidence is the best evidence available. The rationale is that the witness in court testifies in circumstances in which there is a potential liability for perjury (i. Critics have argued that it is questionable whether people are less likely to lie under oath. in adversarial systems. lying under oath). The efficacy of cross examination in enhancing the reliability of decision making has also been challenged. adjudication takes place at a relatively concentrated trial where the principle of orality guides the presentation of evidence. as parties are unlikely to be able to predict the outcome of a future trial on the basis of what evidence they think is likely to be admitted. Best evidence A justification for the rule is that it’s necessary to encourage parties to call the original declarant as this supposedly offers the best evidence. The risk of low weight being attached to hearsay evidence should act as sufficient incentive to call the original declarant. Hearsay evidence often comes as a surprise for the person against whom it is admitted. Some also say that the hearsay rule imposes costs on academic institutions as a disproportionate amount of time is spent teaching and writing about the rule. However. The argument is that it pays for itself ‘because it is cheaper to test witnesses in court than prepare and offer evidence bearing on the credibility of remote declarants’. Others say that the hearsay Page 28 of 154 .In addition. and such a person therefore doesn’t have time to prepare a challenge to the credibility of the declarant. while hearsay evidence may be less reliable than other types of evidence. The principle of orality is based on the belief that the adjudicator is best able to make accurate decisions of fact where the witness. then what is the use of the hearsay rule?Paizes and his mates say that there must be a separate hearsay rule because hearsay attracts specific prejudicial qualities and challenges that are not necessarily features of other types of evidence.e. research has shown that observation of demeanour is not necessarily an accurate assessment of credibility.

7. 2. or as a way of influencing the conduct of police and prosecutors in the process of preparing and preserving evidence. This is because what a person says to his own detriment has a ring of truth. You might ask. Page 29 of 154 . Others argue that if hearsay evidence was properly subjected to the relevance inquiry and admitted when probative value exceeded the prejudicial effect of the evidence. See further below. as a wholesale admittance of hearsay evidence would afford the state with too much power against the accused. 1.However. Importantly. 6. We’ll be coming to a detailed overview of confessions and admissions in a later section. there may be a difference in vulnerability and power between the individuals which negates this value completely. Note on admissions and confessions Wouter has indicated that the cases of S v Ndhlovu and S v Molimi are important for the exam. Socially necessary Scallen argues that confrontation is necessary as part of the social relationship between the defendant and the accusing witness. Safeguard against abuse of power The hearsay rule can be seen as a way of protecting individual rights from the intrusion of government. confessions and admissions are admissible against their maker. s3 of the LEAA (which is primarily an exclusionary rule). The rules of admissibility for each of these differ. and hence they should be differentiated. In S v Ndhlovu. she acknowledges that in certain circumstances there may be no societal value in confrontation.rule is so poorly understood that this problem (of not knowing what evidence will be admitted) exists anyway. whether or not he testifies in court. 5. these statements have always been allowed. She argues that the societal dimension of confrontation strengthens the legitimacy and integrity of the adversarial processes and that participation in decision making is critical to the perception of procedural justice. whilst unregulated admission of hearsay evidence might infringe the right to challenge evidence. For example. A constitutional requirement S 35(3)(i) of the Constitution includes the right to challenge evidence as a component of the right to a fair trial. provides legislative criteria which protect against any infringement of the right to challenge evidence. the SCA considered whether cross examination of the hearsay declarant was an indispensible component of the right to challenge evidence. The court held that. but it’s important to understand what they are in the context of the cases of S v Ndhlovu and S v Molimi. An admission is the confirmation of a detrimental fact. the truth seeking function of the court would in fact be better advanced. A confession is a comprehensive admission and unequivocal admission of guilt. isn’t this hearsay? Although it strictly speaking is.

the purpose for which the evidence is tendered. the rule was that hearsay was not admissible. the probative value of the evidence. hearsay evidence shall not be admitted as evidence at criminal or civil proceedings. A confession cannot be admitted against anyone other than the person who made it (see S 219 of CPA). is of the opinion that such evidence should be admitted in the interests of justice. iv. However in the case of an admission. himself testifies at such proceedings. the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends. Keep this in mind when you read S v Ndhlovu and S v Molimi. The provisional admission of hearsay – s3(1)(b) 3. Admission by consent of the opponent – s3(1)(a) 2. 3 Exceptions to the hearsay rule Under the common law. #2 makes a confession or admission. the nature of the proceedings. vi. vii. and any other factor which should in the opinion of the court be taken into account.For example. ‘THESE CASES SHOULD MAYBE BE IN THE EXAM’ (Wouter). It is admissible against him whether he testifies or not. any prejudice to a party which the admission of such evidence might entail. (b) the person upon whose credibility the probative value of such evidence depends. but that this rule was subject to certain exceptions. iii. or (c) the court. v. Judicial discretion in terms of the LEAA if in the interests of justice – s3(1)(c) Page 30 of 154 . They are important. there are two accused persons. ii. There are three kinds of exceptions to the hearsay rule which we will deal with in detail: 1. the nature of the evidence. Although hearsay evidence is still inadmissible today. But what if in this confession or admission he implicates #1? Is this admissible against #1 too? The answer in brief lies in distinguishing between a confession and an admission. the scope of hearsay evidence is much wider than in the past due to: Section 3 of the Law of Evidence Amendment Act 45 of 1988 (1) Subject to the provisions of any other law. there is no such prohibition and therefore it may be admitted as an exception to the hearsay rule. unless(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings. having regard toi.

However. At trial #3 and #4 testified but denied making these statements. The presiding officer must also be sure that the accused knows what they are consenting to. Consent will also be inferred where a party deliberately elicits hearsay evidence from her opponent in cross-examination. the hearsay evidence will not be taken into account unless it is admitted by consent in terms of s3(1)(a) or is admitted by the court in the interests of justice as provided for in s3(1)(c) (see below for more on this subsection). The person who bought the deceased’s cellphone pointed out #2 as one of the sellers of the phone. Accused #1 was found in possession of a pistol used to kill the deceased. The accused must know what they are consenting to. The failure to object to the admission of hearsay evidence may be regarded as consent.” The prejudice that arises with hearsay evidence results from the inability to cross-examine and observe the witness. this will not be considered consent of admission of the evidence unless the presiding officer has explained the whole procedure clearly to the accused. The presiding offer will need to check with the accused each time the hearsay evidence arises. and they do not object to the evidence. As per s3(1)(b) of the LEAA: “hearsay may be provisionally admitted where the court is informed that the person upon whose credibility [is in issue] is going to testify at some future time in the proceedings. as the accused will likely not recognise it each time.Admission by consent of one’s opponent s3(1)(a) of Law of Evidence Amendment Act allows hearsay evidence to be admitted by consent of the person against whom it is admitted. This is particularly pertinent where the accused is unrepresented. In this instance. consent will be implied. The trial court rejected this as the statements were made freely and voluntarily. The provisional admission of hearsay This arises when the person on whom the probative value depends is going to testify later anyway. both these statements incriminated not only themselves but also accused #1 and #2. However. This is known as ‘informed consent’. The SCA had to establish Page 31 of 154 . s3(3) provides that if the relevant person does not testify. If an accused does not object to the admission of hearsay evidence and is represented. The evidence can be admitted provisionally in anticipation. The facts of Ndhlovu are as follows: A man was killed in cold blood by four other guys who wanted to rob him of his cellphone. #3 made an oral statement to a police officer. this prejudice is removed. was established that 3(1)(b)and s3(3) must be read together. If the accused is unrepresented. A judicial officer also has a duty to explain to a witness who may be tendering hearsay evidence to avoid doing so until the court has made a ruling in this regard. In S vNgwani(not prescribed). if testimony is to follow. the court held that the presiding officer must properly explain the relevant law to an unrepresented accused. #3 and #4 had run away after the incident. whilst #4 made a written statement. In S v Ndhlovu 2002 (2) SACR 325 (SCA). the court will usually hold this to be tacit consent of the evidence.

purpose and reliability of the evidence can be separated in an inquiry from the probative value and prejudice of the evidence. 5. and did not require the witness to repeat the extracurial statement under oath. In the court a quo. However. Cameron JA still admitted the hearsay evidence. However. The LEAA has relaxed the rigidity and eliminated some of the uncertainty of the common law with regard to hearsay evidence. the probative value of the evidence. Judicial discretion to admit hearsay in terms of the LEAA: “If in the interests of justice” s3(1)(c) confers judicial discretion on presiding officers to admit hearsay evidence if the admission of the evidence would be in the interests of justice.In exercising this discretion. Although the witnesses did not testify in court.Goldstein J had held that the statement made by one accused against his coaccused could be admitted in terms of s3(1)(b). as well as any other factor which in the opinion of the court should be taken into account. It might seem that the nature. This section thus seems to be a consequence of the basic rule that all evidence admitted must be relevant. is of the opinion that such evidence should be admitted in the interests of justice. Page 32 of 154 . In McDonalds Corporation v Joburgers Drive Inn Restaurant(not prescribed). the court emphasised that the decision to admit evidence is not simply an exercise of judicial discretion but a decision of law which can be overruled by an appeal court if found to be wrong. holding that to interpret it otherwise would render s3(1)(b) superfluous. the nature of the evidence. the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends. However. the factors of S 3(1)(c) are still reasonably confusing. and 7. 4. the nature of the proceedings. It is best understood in light of the directive given in Hewan v Kourie NO(the facts of which we don’t think are important): ‘the subsection requires the court. Cameron JA held that ss3(1)(b) needs to be read with ss3(3). 6. any other factor which should in the opinion of the court be taken into account. in the exercise of its discretion. many of these factors are used to establish other factors. 2. the court must consider six specified factors. the purpose for which the evidence is tendered. the requirements of which must be met if the evidence is to be submitted (if the relevant person does not testify in terms of s3(1)(b)). SCA rejected this interpretation. the courts have not applied them in a uniform manner. He took a literal interpretation in this regard.whether the statements made by #3 and #4 were admissible against #1 and #2. to have regard to the collective and interrelated effect of the considerations set out [in this subsection+’. s3(1)(c) justified admitting the hearsay evidence. any prejudice to a party which the admission of such evidence might entail.Because of the vagueness of these concepts. 3. as they amounted to hearsay. The factors the court must consider are found in S 3(1)(c) of the LEAA: 1. as will be seen below.

For example. Page 33 of 154 . The degree of hearsay will be relevant. Therefore. In a criminal case. 2. As bail proceedings are neither criminal nor civil. the witness can at least be cross examined about the hearsay. In Vigario v Afrox (not prescribed). the Restitution of Land Rights Act permits the Land Claims Court to receive hearsay evidence. Hearsay will be more readily admitted in application proceedings rather than at trial (action proceedings). the rules of evidence don’t usually apply and hearsay evidence is generally admissible. However. the hearsay is on paper. In Swissborough Diamond Mines(not prescribed). a court will be more hesitant to admit hearsay against the accused than in a civil case where parties are on a different level. Many factors affect reliability. Focus on the relevant cases: 1. the reliability diminishing where it is second hand hearsay. Therefore. Reliability will be enhanced by other evidence supporting the hearsay evidence. it can be inferred from Hewan v Kouriethat courts are primarily concerned with the reliability of the evidence when considering its nature. referring to S 3(1)(c). In a trial. The court may consider the simplicity of the subject matter and the absence of contradictory evidence. These include whether the non-witness had or has no interest in the matter before the court and that the statement was made against the interests of the declarant. there is an argument that they should allow hearsay more easily in a trial because the witness can still be cross-examined. S 3 is subject to the provisions of any other law and consequently won’t apply in proceedings governed by statute where special provisions are made in regard to hearsay evidence. the court refused to admit the hearsay evidence in interlocutory proceedings in the absence of urgency or special circumstances.We now look at the six factors (from the LEAA) that the court takes into account indealing with the admittance of hearsay evidence. but in application proceedings. held that it is because of the presumption of innocence that courts are reluctant to allow untested evidence to be used against the accused in criminal cases. The Nature of the Proceedings s3(1)(c)(i) In Metedad v National Employers’ General Insurance Co Ltd. This criteria is also prominent when considering its probative value. The contemporaneity (taken or occurring at the same time) and spontaneity of the hearsay statement may be taken into account. the court. the quasi-judicial nature of the inquest proceedings and its inquiry into the terms of the relevant Act was a factor taken into account when admitting the hearsay evidence. this does not mean that it won’t be used constructively to find the truth in civil cases. this section won’t often be applied in criminal cases. The Nature of the Evidence s3(1)(c)(ii) Although there is no clear guidance from the case law.

Where a person is prohibited in law from disclosing information. For example. In Metedad. The reason why the evidence is not given by the person upon whose credibility the probative value depends: S 3(1)(c)(v) The reason why evidence is not given depends on the facts of the case. This means not only ‘what will the hearsay evidence prove if admitted.. 4. Truthfulness and reliability are in essence one criterion that is examined when looking at the nature of the evidence. Page 34 of 154 . The difficulty with the approach in Mpofuis that it becomes difficult to ascertain what the legislature meant by ‘the purpose’.3. A wide variety of reasons might exist. the evidence should generally be admitted in the interests of justice. it would defeat the purpose of the application if the witness was required to testify at the hearing.. as we’ve seen. including loss of his life. but will it do so reliably?’ Thus. The court in this case stressed that the important criteria for determining admissibility were truthfulness and reliability. 5. This approach was rejected in S v Mpofu. The probative value of the evidence: S 3(1)(c)(iv) The primary reason for not allowing evidence to be admitted is because it is considered unreliable. St Francis College (not prescribed) the court held that the fact that the hearsay evidence pertained to an issue fundamental to the case before it favoured admitting it. it was held that this meant nothing more than that evidence tendered for a compelling reason would stand a better chance of admission that evidence tendered for a doubtful or illegitimate purpose. This is naturally difficult to distinguish from the relevance enquiry contained in S 3(1)(c)(iv) and (vi). the court held that ‘probative value means value for the purposes of proof. this is difficult to distinguish from ‘the purpose’ for which the evidence is tendered. To ascertain whether evidence is sufficiently relevant. the declarant might be dead. the court will weigh the probative value of the evidence against the potential prejudice to the party against whom it is admitted. For example. in Welz v Hall(not prescribed). The purpose for which the evidence is tendered In Hlogwane v Rector. ill or abroad. In S v Nzama(not prescribed) the court held that where an application was made for a witness to testify in disguise for fear of retribution. Anything indicating why he is not available may be taken into account. In S v Ndhlovu.the court held that where evidence could not be given by a revenue official who made a document because he was prohibited by legislation from doing so. Thus Woutie thinks this is the most important factor a court should take into account. the court will generally admit hearsay evidence.

Cameron JA in Ndhlovu noted that s3 was primarily an exclusionary rule and held that the legislative criteria to be taken into account when applying the ‘interests of justice’ test were ‘consonant with the constitution’. What it contains is the rightto challenge evidence(subject to the s36 limitations clause). The court in S v Ndhlovu(see above for the facts) identified the following disadvantages that may accrue as a result of the admission of hearsay evidence: 1. But once the court has found that it is in the interest of justice to admit the hearsay. the right to challenge evidence does not encompass the right to cross examine the original declarant. although the admission of hearsay evidence denies the accused the right to cross examine. the inability to tract witness and the extremely frail health of witness. He is also able to scrutinise its probative value. the right entails that the accused is entitled to resist the application to hear the hearsay evidence. InS v Ramawhale(not prescribed).Other circumstances that might make it necessary to introduce hearsay include death of a declarant. since it is not possible to cross examine the person who tenders the evidence.In such circumstances. He held that the manner in which s3 regulates the admission of hearsay is in line with developments in other democratic societies based on human rights. we are only concerned with procedural prejudice. equality and freedom. However. 2. Its reception exposes the party opposing its proof to the procedural unfairness of not being able to counter effectively inferences that may be drawn from it. This raises the question of whether the admission of hearsay evidence infringes the constitutional right to challenge evidence. accused #3 and #4 had radically disavowed their earlier statements. as this is a course dealing with the law of evidence. 6. Page 35 of 154 . The court had to enquire whether these statements could be admitted. The BOR does not guarantee and entitlement to subject all evidence to cross examination. including its reliability. Cameron JA held that. It’s not subject to the reliability checks applied to first-hand testimony. this does not mean that the use of hearsay evidence violated the accused’s right to challenge evidence by cross-examination. the court held that it would be unduly prejudicial if an accused found himself forced to testify in order to rebut hearsay evidence in the absence of direct evidence supporting the prosecution’s case. then the right to cross examine falls away and no constitutional right is infringed. You will recall that at the trial. Prejudice to opponents: S 3(1)(c)(vi) The admission of hearsay evidence may result in procedural and substantive prejudice.Where the evidence is hearsay. a witness’ absence from the country. if it is meant that the inability to cross examine the source of the statement in itself violates the ‘right’ to challenge evidence. The admission of hearsay evidence may unduly lengthen proceedings and place an onerous duty of rebuttal on the party against whom it is admitted.

according to case law. We’ll come back to further common law exceptions in Chapter 14. This is because cross examination is a vital part of the right to challenge evidence and. were objectively reliable and provided the compelling justification that must always be sought if hearsay evidence is to play a decisive or even significant part in convicting an accused. in S v Mbanjwa (not prescribed). The admissibility of hearsay evidence cannot be decided once the accused has already presented his case. Thus Cameron JA should have been more awake. Wouter does not agree with Cameron JA’s approach. 4 Procedural issues In S v Ndhlovu it was noted that were a number of duties resting on the presiding officers to ensure that the accused’s rights were upheld:    They must actively guard against the inadvertent admission or ‘venting’ of hearsay evidence They must ensure that the significance of the contents of s3 are properly explained to an unrepresented accused They must protect an accused from the late or unheralded admission of hearsay evidence.The court held that the reliability of their previous statements could not be ignored as they were spot on the facts.Thus the common law exceptions are factors that a court may take into account in exercising their discretion to admit the evidence in the interests of justice. these exceptions are not irrelevant due to their possible incorporation in terms of this provision. Due notice of the intention to lead hearsay evidence is not a pre-requisite for admissibility. the court took into account that a deceased’s statement was akin to a spontaneous dying declaration. For example. it will mitigate any prejudice that might result from the admission of the hearsay in so far as it enables the person against whom the hearsay is admitted to lead evidence in rebuttal. The evidence was thus admitted. had high probative value. The admission of hearsay must be dealt with clearly and timeously. 7. does infringe this right. Any other factor which in the opinion of the court should be taken into account S 3(1)(c)(vii) ‘Any other factor’ means that the court can take into account anything it deems relevant. This is also the view of Zeffers and Paizes. but it can be justified by the limitations clause. The quality of the hearsay evidence and the extraneous reliability guarantors made it imperative that this evidence be admitted. The common law exceptions to the hearsay rule have become obsolete since the operation of the LEAA. Page 36 of 154 . the court must give a ruling on its admissibility before the accused presents his case. However. the CC held thatwhere the state wants to present hearsay evidence. The four accused were all convicted of murder and of robbery with aggravating circumstances. In S v Molimi(prescribed). He thinks that a better approach would be to say that this provision does infringe the right to challenge evidence. if left out. and held that these types of hearsay statements were exceptionally admissible at common law. However.

2 Exceptions to the hearsay rule The difficulty with the common law hearsay rule was that it sometimes led to the exclusion of relevant and reliable evidence. Although. place and circumstances with some transaction which is at issue that they can be said to form part of that transaction. We don’t need to know it in as much detail so please use your discretion. In order to avoid this unfortunate consequence of the rule. This is because the court can take into account evidence that would have been admitted under the common law through the provision found in s3(1)(c)(vii) of the LEAAallowing the court to take into account ‘any other factor’ in deciding whether or not to admit hearsay evidence.None of the cases in this section are prescribed. The purpose for tendering the statement was critical in determining whether the statement was hearsay or not. they may still be considered as ‘any other factor’ that the court may take into consideration in exercising its discretion to admit hearsay evidence in the interests of justice: Res gestae statements Evidence of facts may be admissible as part of the res gestae if these facts are so closely connected in time.Wouter advised that we should just read through it. This section deals with common law exceptions to the hearsay rule. but the fact that the statement was made. are the product of an instinctive response and therefore less likely to be an invention or deliberate Page 37 of 154 . due to the LEAA. In Subramanian v Public Prosecutorit was noted that evidence is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. The court has held that these kind of statements. Although the common law exceptionsare now obsolete. Various categories of res gestae evolved to facilitate the admission of hearsay evidence: 1. these exceptions are now obsolete. hearsay evidence was defined as any statement other than one made by a person while giving oral evidence in the proceedings.14 – A SELECTION OF COMMON LAW EXCEPTIONS TO THE HEARSAY RULE Note: This chapter is quite detailed. despite their hearsay nature. It is not hearsay and is admissible when it is proposed to establish by evidence. a number of ad hoc exceptions developed. Spontaneous Statements: A spontaneous statement occurs where there was no time for a person to reflect on what they are saying. In Mnyama v Gxalaba 1990 (C). not the truth of the statement. 1 Common law definition of hearsay At common law. they are not completely irrelevant. and presented as evidence of any fact or opinion stated. the court held that the LEAA rendered the common law rules applicable to hearsay obsolete and redefined hearsay.

and the act could only be properly evaluated as evidence if it was considered in conjunction with the statement. Composite Acts: Where an act was accompanied by a hearsay statement. This can be seen in R v Kukubula. the statement could only be admitted if certain conditions were met: a. The statement must have been made whilst the stress was still ‘so operative on the speaker that his reflective powers may be assumed to have been in abeyance’. the state of mind of the declarant must be relevant to an issue before the court. It could be used only to explain the act The exception applied to both written and oral statements. The court admitted the hearsay letter in support of the proof of suicide and the prosecution’s contention as to the state of the deceased’s mind. The appeal court held that ‘the act of writing down the number was. the statement also demonstrated the state of mind. The witness transferred the number onto a piece of paper. The witness had disappeared at the time of the trial and the prosecution called another witness to hand the piece of paper bearing the registration number of the car into evidence. The court noted that the fact that a statement was made in response to a question is not necessarily an indication of absence of spontaneity. it must be so closely linked to the event which gave rise to it that the presiding officer is able to conclude that the ‘event’ dominated the mind of the declarant at the time of uttering the statement. c.. b. The court held that the following conditions need to exist for a resgestae statement to be admitted into evidence: a. d. in all circumstances part of the res gestae accompanying the events constituting the robbery. Its admission into evidence was one of the grounds of appeal.distortion. The letter. The rationale for this Page 38 of 154 . 3. In S v Tuge.. and was therefore admissible under that exception to the hearsay rule’.In order for the statement to be regarded as spontaneous. The statement must not amount to a reconstruction of a past event.a witness to a robbery wrote down the number of the robbers’ car on his hand as the car drove off. the prosecution sought to have a letter written by `M’ admitted on the basis that it was relevant to sentence. if admitted. The original speaker must be shown to be an unavailable witness. The court has the discretion to determine whether there was sufficient spontaneity.although the accused had pleaded guilty to making imputations of witchcraft. The statement must have been by the actor c. would show that M committed suicide in consequence of an imputation against him by the accused that he was a wizard as well as M’s state of mind at the time. In order to be admissible. Declarations of State of Mind: In Kukubula. There must have been occurrence which produced a stress of nervous excitement. Thus they can be admitted. The statement and act had to be approximately contemporaneous b. 2. The problem with this exception is that it is precisely the stress and absence of reflective powers that make such ‘excited utterances’ unreliable.

Declarations of Physical Sensations: Statements of a non-witness such as ‘my head is aching’ and ‘I’m going to vomit’ were admitted at common law as evidence of contemporaneous physical sensations.exception is that such statements are often the best and sometimes the only evidence of a person’s state of mind. The rationale underpinning this exception was necessity and reliability. in the end. The person had to be really scared. the court took into account that the deceased’s statement was akin to a dying declaration and was a spontaneous statement. As seen above. The wife argued the same and brought evidence that the deceased had told her he wanted to be buried in Cape Town. The court held that the statement was allowed in terms of common law. c. The necessity argument is easily understood. but attached very little weight to it (and thus. The deceased would otherwise have been a competent witness. I think Leo poisoned me’ – only ‘my stomach hurts’ would be admissible. The brother argued that it was his duty to determine the location of his brother’s burial plot and to bury him. the declarant ‘was under a settled hopeless expectation of death’. and these types of hearsay statements were exceptionally admissible at common law. Dying Declarations In terms of the common law. the body was delivered to the brother). d. S 3 of the LEAA did away with the necessity of fitting statements into categories and allows res gestae statements and other hearsay statements to be admitted where there are sufficient indications of reliability and relevance to justify their admission in the interests of justice. For example. The rationale was reliability. Page 39 of 154 . The second part of the statement would only admissible if it met the requirements of another exception to the hearsay rule. b. dying declarations (see below). The brother wanted him buried in the Transkei. The declaration was relevant to the cause of death. 4. but the reliability argument is questionable in that it would be a ‘leap of faith’ rather than logic to assume that ‘a settled hopeless expectation of death’ is a guarantee against deception. in S v Mbanjwa (not prescribed). if a non-witness made the statement ‘my stomach hurts. Under common law. This case involved a dispute between the brother of a deceased guy and the deceased’s common law wife. The evidence could only be admitted to prove the symptoms and not the cause of the physical sensation. especially when the hearsay statement was consistent with the proven facts. dying declarations could be admitted provided: a. The evidence was adduced on a charge of murder or culpable homicide. and At the time of making the statement. a statement made by someone on his death bed could be brought to court as evidence by someone else.

omitting the formal parts thereof’. The court did not allow the statement. Proof of trial and conviction or acquittal of any person S 17 of the CPEA states that ‘the trial and conviction or acquittal of any person may be proved by the production of a document certified or purporting to be certified by the registrar or clerk of the court or other officer having the custody of the records of the court where such conviction of acquittal took place. so just read over this chapter briefly.15 – STATUTORY EXCEPTIONS TO THE HEARSAY RULE Note – Wouter said we only need to know that these exceptions exist. to be a copy of the record of the charge and of the trial. By having your facts admitted (via affidavits) these facts may be allowed.which can be admitted provided certain conditions are met. as the case may be. The courts take the view that the common law rule in Hollington v Hewthorn (prescribed from Semester 1) in terms of which a criminal court conviction is not admissible in subsequent civil proceedings as evidence that the accused committed the offence for which he was convicted is not negated by S 17. The defendant got his girlfriend to make a statement about how drunk he was to the attorney. In the case of Boshoff v Nel (not prescribed)the defendant was involved in a dispute with another person in relation to a property. conviction and judgment or acquittal. Page 40 of 154 . This section only deals with the statutory exceptions contained in the CPEA and the CPA. It deals with written statements. except for S 216 and S 223 of the CPA which referred to the common law in force on 30 May 1961. the LEAA did not repeal existing legislative provisions governing the admission of hearsay evidence. We need to know that there is a statutory provision dealing with written evidence. thereby circumventing the hearsay rule. In fact. The girlfriend died. The tendency of the courts has been to allow alternate routes to admissibility. clerk or other officer. The defendant said that he was so drunk that he did not know what he was doing. 2 Civil Proceedings Evidence Act 25 of 1965 (CPEA) In civil proceedings. due to them falling under statutory exceptions to the hearsay rule 1 Introduction Section 3 of the LEAA is ‘subject to the provisions of any other law’. The requirements are strict: ● The statement of an interested person will not be admitted. Simply know that you can use affidavits to prove certain facts that would normally fall under the hearsay rule. see s34 of the Civil Proceedings Evidence Act 1965 which deals with the admissibility of documentary evidence as to the facts in issue. The plaintiff said that defendant gave an option to buy the property. because the girlfriend was an interested party. or by the deputy of such registrar.

) The existence of a precious metal or stone The finding of and action taken in connection with a fingerprint or palmprint Proof of. It does not however lighten the prosecutions burden of proof. Bankers books 3. the exceptions on the list below can be proved by affidavits and thus oral evidence in support does not need to be given. 11. some of the statutory exceptions: From the Civil Proceedings Evidence Act: 1. 6. S212 may be utilised by both the prosecution and the defence. It is simply a device to avoid the inconvenience of requiring oral testimony. General evidence of documentary evidence as to facts in issue From the Criminal Procedure Act: 4. 8.. 12. or condition of a dead body Chain of custody of any object in the states possession Affidavits by persons in a foreign country Admission of written statements by consent Evidence recorded at a preparatory examination or former trial Admissibility of certain trade or business records Page 41 of 154 . 10. 9.3 Criminal Proceedings An affidavit that meets the requirements of s212 of the CPA constitutes prima facie proof of the matters stated in it. Evidence of the times of sunrise or sunset 2. Here they are. 13. 15. 4 Some Statutory Exceptions to the Hearsay Rule Remember. 7. Performance (or lack of performance) of a state/official act Denial of information given to an official or state person Official acts when an official is supposed to record or register something Facts which require specialised skills (such as something with regard to biology or chemistry etc.. 14. 5.

Instead. Therefore there is no need to prove that fact in court. It’s important in our system to distinguish between informal admissions and confessions as the rules of admissibility differ for these. 2 Admissions and Confessions – Distinguish An admission is a statement which is adverse to the party concerned. Formal Admission A formal admission is made during the judicial (legal) process and is a confirmation of a fact in issue between the parties. A formal admission makes a fact in issue no longer so. if he admits to the cause of death. as do their consequences. then is out of dispute. that fact will not be in issue anymore). it gets noted. It is necessary to differentiate between an opponent’s witness and your own witness. where the defendant admits to a material allegation by the plaintiff) or in criminal proceedings. it arises during the pleadings (for example. and only then may you commence with cross-examination. this is considered clear cross-examination material. Formal admissions are binding on the maker and are generally made in order to reduce the number of issues before the court. This is necessary because the requirements for admission differ. The court will make an inference with respect to the credibility of the witness. 1 Previous Inconsistent Statements (links to Ch 25 – Impeaching the credibility of a witness) A previous inconsistent statement arises when the witness is in the witness box relaying a story and which is contrary to a statement previously made. You can’t simply cross-examine your own witness. The admissibility requirements for confessions are stricter. which can impact on his credibility. In a civil case. whereas informal admissions merely constitute an item of evidence that can be contradicted or explained away. Page 42 of 154 . We also look at previous inconsistent statements which impact detrimentally on the party concerned. You may ask what the reason is for the differences in his statements. This gives rise to a strange situation in court where an advocate may strategically argue strongly that his client’s statement was a confession and not an admission (as he doesn’t want the statement admitted). you can ask the court to first declare your witness as a hostile witness. For example. If an opponent’s witness makes an inconsistent statement. We need to distinguish between an admission and a confession. at the beginning of the trial (where the defence admits to one of the facts in issue. But sometimes your own witness contradicts a statement he made prior to the proceedings. Note that the Constitution (and English law) do not differentiate between admissions and confessions.16 – PREVIOUS DETRIMENTAL STATEMENTS This chapter in the textbook only discusses informal admissions and confessions. and you may cross-examine him immediately.

For example. Where there has been no attempt at trial to introduce hearsay evidence it is manifestly unfair to the appellant for the State to invoke the s3(1) provisions at the appeal stage. informal admissions may. if conditions for this are not met. even where it includes self-serving statements. Keep in mind the nice exceptions to the hearsay rule that we discussed above. This cannot be noted as a formal admission. It is also possible for a formal admission to be made at this time. Section 3(4) of the LEAA defines hearsay evidence as ‘evidence. but can be regarded as an informal one. and at the trial the cop can be called to testify regarding this admission An informal admission can also arise during plea proceedings. the maker is entitled to have the whole statement put before the court. in many instances. be hearsay in nature. Note that in S v Ralukukwe the court held that the admissibility of this kind of hearsay evidence must be dealt with timeously (i. the probative value of which depends upon the credibility of any person other than the person giving such evidence’. Informal admissions may be admitted to prove the truth of their contents. whether or not he testifies. Once part of a statement has been allowed into evidence as an admission. Wouter says that informal admissions are ‘not hit by the hearsay rule’. because a party can hardly complain that when he made the statement he was not on oath or did not have an opportunity to cross-examine himself’. Page 43 of 154 . before the accused has been heard). provided that. which is adverse to that party’s case. then such an adverse statement will be regarded as informal admission. For example. However. the cop may be called to the witness box despite the driver not testifying. one can say that ‘admissions or confessions do not have the same drawbacks inherent in hearsay.Informal Admissions – a brief An informal admission is an extra-judicial statement. it is admitted in terms of s 3(1) of the LEAA (see above). an admission could be. where the accused is asked to plea and is asked for a reason for the plea – for example. Nevertheless. an informal admission will arise where a driver admits to the police after a motor vehicle collision that he did not stop at the traffic light. Note (because Wouter said that this case was important) the court in Ralukukwealso held that whereas a confession could not be admitted as evidence against a co-accused. since a co-accused's admission was hearsay.The admission is admissible against the person who made the admission. made outside of civil or criminal court proceedings. This is clearly an admission that he was not properly aware and thus negligent. Since a statement may constitute an admission even though the party is unaware that what he is saying is contrary to his interests. Remember from Ndhlovu that an admission by an accused that implicates a co-accused can be admitted as hearsay against the co-accused. The rationale for admitting such evidence is that a person is unlikely to make an admission adverse to his interests if the contents of that admission are not true. provided the two components form part of a single statement. whether oral or in writing. When the probative value of an informal admission depends primarily on its maker (which will almost inevitably be the case) it will be a hearsay statement.e. in explaining why he pleaded not guilty.

Requirements for an admission differ A court needs to differentiate between (informal) admissions and confessions because. This differentiation may sound easy. 2. the court will not deal with this issue as the parties will have consensus as to whether the statement concerned is an admission or confession. on his arrest. If it is a confession. Confessions do not have the effect of eliminating the facts in issue. As a confession is also an extra-judicial statement out of court. Only formal admissions have this effect. for example. for a statement to be an admissible confession. Is the statement Admissible? Thus. Although the confession is an extra judicial statement and part of the evidentiary material that the state uses to try to prove the guilt of the accused. In the case of S v Grove-Mitchell. 3 Informal Admissions Two issues There are two issues that the court needs to deal with upfront: 1. this can be super confusing. In some instances. Page 44 of 154 . an adverse statement has been made. as mentioned above. The court held that this was not a confession because. it will ask if the statement has the effect of eliminating the facts in issue. the accused is still free to dispute that confession. the admission requirements for confessions are stricter. the accused may have shot the victim self-defence.Confession A confession is an unequivocal admission of guilt. a comprehensive admission to all elements of the crime has been made. It is also necessary to make this distinction because a conviction can be made solely on the basis of a confession in the correct circumstances. Is the Statement an Admission or Confession When the court considers this issue. the accused in this case said ‘I emptied the gun on her’ and ‘I shot her full of holes’. where the accused admits to all the elements of the crime. That he said those things is still pretty stupid. If it is an admission. as they are made during the legal proceedings with a view of having this effect. Only once answered can the court consider which rules of admissibility will be acceptable. but it’s not always so easy to classify in certain factual scenarios. the courts follow quite a strict approach: the statement must be an unconditional admission of guilt.

By remaining quiet. The admission of an accused can be admitted against the co-accused. 5 Different kinds of admissions Oral or written Requirements for admission also differ if the evidence is oral or written. Written evidence arises where the person concerned makes a written statement to the police/magistrate in which he admits certain negative facts. an admission is always admissible against the maker of the statement whether he testifies or not. The plaintiff sues the defendant because the third party has no money. If the state is not informed of this evidence prior to the trial. by an action or even by a gesture. Vicarious Admissions A vicarious admission arises where a third party. it may happen that the third party was driving a car belonging to the defendant company during the course and scope of the third party’s employment with the defendant company. an admission must be proved to have been made voluntarily before it can be admitted into evidence.4 Admissibility As mentioned. accusing him of being the cause of his daughter’s pregnancy. This was regarded as an admission by conduct. a person can also make an admission. Rationale The rationale for admitting this kind of evidence is found in the mantra ‘what a person says to his or her own detriment has a ring of truth’. the only requirement for admissibility is that the statement must be relevant. Silence in the face of an accusation may amount to an admission when it forms the basis of a commonsense inference against a party. By Conduct – a brief Admissions may be contained in a verbal or written statement and they may also be inferred by conduct. The court must question whether that admission is admissible against the defendant. Page 45 of 154 . In criminal matters. In response.e. it may make it difficult for the state to present evidence to rebut the statement.e. In civil matters. the accused ‘lowered his head in shame’. A good example can be found in Jacobs v Henning(‘the seduction case’) where the plaintiff’s father confronted the accused. provided the requirements for admissibility are met (i. who is not party to the proceedings (i. there is the additional requirement that such statements cannot be disclosed without the consent of both parties. For example. not the plaintiff/state or defendant/accused) makes an admission relevant to the proceedings. Where statements are made in the course of negotiations for the settlement of a dispute. the statement is not hit by the hearsay rule (it’s outside the ambit of hearsay or it’s admissible as an exception)). See below.

but the accused says at the trial that he was in Durban visiting his mistress. it seems fair to extract the conclusion the common law position remains more or less intact. because of the accused’s constitutional right to remain silent and privilege against self-incrimination. although Wouter told us ‘just to look at it’: The appellant was a co-accused whose convictions on a charge of murder and 2 counts of attempted murder had been confirmed by the SCA. the courts will not make a negative inference in this regard. if the accused raises his defence only at the trial and not before. and the constitutionality of drawing an adverse inference as to the credibility of the accused from pre -trial silence. which dealt with similar provision in Northern Ireland to same effect (see Semester One). This is because the state is deprived of the opportunity to make an enquiry as to the veracity of the defence. For example. This was seen in the Murray case. as the state hasn’t had an opportunity to properly deal with the defence.5 Admissions by conduct such as action/gesture/silence When are these kinds of evidence admissible? Silence In criminal cases. Does he have a duty to raise this early on or at the trial and. It is a daunting task to determine the ratio because everyone followed different reasons. On arrest. if he does not. The court in this case also applied its mind to the permissibility of drawing an adverse inference of guilt from pre-trial silence. but coupled with this. he should inform the state timeously so that they can investigate the defence prior to the trial. In England there is staturory provision that allows for this: When a person is arrested. then the court may make an inference. In terms of the common law. there is not an opportunity for the state to go to Durban and investigate the veracity of the accused’s defence. the accused may raise an alibi defence claiming that he isn’t guilty. This is clearly contrary to the South African position. as the trial is in Cape Town. The accused can raise a defence late in the trial. Disclosure of alibi by accused at trial stage During the trial. told that if he had defence that he intends to rely on in trial and he does not mention it now. Because of the constitutional right. police will inform him of his right to remain silent. can there be an inference as to the credibility of his alibi? The common law rule states that. the accused was warned of his right to remain Page 46 of 154 . but the court must take this into account as a factor. if the accused intends relying on an alibi. Now. The constitutionality of this approach to the late disclosure of an alibi was considered in S v Thebus. then the court can make an inference. as he wasn’t at the scene of the crime when the crime occurred. S v Thebus We have included a summary of Thebusbelow (taken from Principles). a crime was committed in Cape Town. there is a limited scope for inferences in this regard. However.

pre-trial silence of an accused can never warrant the drawing of an inference of guilt’ as this would undermine both the rights to remain silent and to be presumed innocent. He acknowledged that an election to disclose one’s defence only when one appears on trial is not only legitimate but also protected in the Constitution. However. The latter would not necessarily infringe the presumption of innocence. he held that this protection would not preclude cross-examination of the accused’s election to remain silent as it would go to credit. and only disclosed his alibi defence two years later when the matter came to trial. Moseneke drew a distinction between an inference as to guilt and an inference pertaining to credibility on the basis of a person’s pre-trial silence. The effect on weight is not a result of a negative inference as to credibility or guilt but rather a product of the evaluation of evidence in an adversarial system.silent. At the trial. He states that ‘in our constitutional setting. the textbook argues that this distinction is tendentious. with respect to the late disclosure of an alibi defence. The objective of the right to silence during trial is to secure a fair trial. However. The drawing of an inference would render the mandatory warning of the right to remain silent ‘a trap instead of a means for finding out the truth in the interests of justice’. he concluded that the common law rule is a justifiable limitation of the right to remain silent and that late disclosure of an alibi may have consequences which ‘can legitimately be taken into account in evaluating the evidence as a whole’. After making his original oral statement. Such cross-examination would not unjustifiably limit the right to remain silent provided it was conducted with due regard to the dictates of trial justice. it would have contradicted the details of his alibi). He alibi defence was rejected in both the trial court and the SCA. The latter is treated as an unavoidable consequence of adversarial proceedings: late disclosure precludes the prosecution from properly investigating the alibi. On appeal to the CC. the accused contended that the SCA had erred in drawing a negative inference from the accused’s failure to disclose his alibi defence timeously. whereas the right to pre-trial silence seeks to oust the compulsion to speak. For example. However. There were 4 separate judgments: Moseneke J emphasised the distinction between pre-trial silence and trial silence. Taking into account the limited use of an inference based on the late disclosure of an alibi. As a result it will not be fully tested and less weight must be attached to it. Moseneke’s judgment also supports a distinction being drawn between an inference as to guilt and the effect of late disclosure on the evaluation of the weight to accorded to the alibi defence. Moseneke equates this procedural consequence with an inference as to credibility and drawing such inference amounts to a compulsion to speak and this limit’s the accused’s right to silence. a negative inference as to credibility will inevitably be a factor taken into account in the ultimate determination of guilt or innocence. Goldstone and O’Regan JJ concurred in the result be dissented insofar as they reached the conclusion that drawing an adverse inference from the appellant’s failure to timeously disclose his Page 47 of 154 . the accused refused to make a written statement. but nevertheless elected to make an oral statement in which he described the whereabouts of his family at the time of the shooting. he testified that this statement was not intended to include himself (if it did. He further noted that it is constitutionally mandatory to warn accused of their right to remain silent but that it is not mandatory that they be warned that their silence may possibly be used against them and that their silence will be taken into account in determining the weight to be accorded to an alibi.

He rejected the distinction between trial and pre-trial silence and held that S 35(1)(a) and S 35(3)(h) ‘represent a continuum’. took a different approach. that the alibi evidence is not to be believed. be found in S 35(3). there is no basis on which to forbid the drawing of inferences. or the interrogation of such exercise on cross-examination. Ngcobo J found that the first appellant’s right to pre-trial silence was not implicated in the matter because the first appellant had been warned of his right to remain silent but instead chose to make an exculpatory statement which was inconsistent with his alibi. He held that the ultimate objective of the right to remain silent is to ensure a fair trial. In a judgment concurred in by Langa DCJ. an adverse inference from the late disclosure of an alibi would constitute a justifiable limitation on the right to remain silent. Although they might be conceptually different. will often be no more different to the effect of the inference to be drawn with respect to guilt. namely.alibi was an unjustifiable infringement of the right to remain silent. the precise nature of the negative consequences of remaining silent at trial is not altogether clear. They also rejected Moseneke J’s conclusion that it is constitutionally permissible to cross-examine the accused on his election to remain silent. They find that the right to silence prohibits the drawing of an adverse inference from the failure of the accused to disclose an alibi before the trial commences for two reasons: First. the ‘practical effect of the adverse inference to be drawn for the purposes of credit. it is unfair subsequently to use that silence to discredit the person. it would be unfair in light of the constitutionally mandate warning of the right to remain silent. Consequently he held that provided that the drawing of inferences from the exercise of the right to remain silent. the concluded that if the warning was revised (so that accused persons are properly informed that if they fail to disclose a defence or material fact prior to their trial. However. Yacoob locates it in S 35(5). Secondly. Thus. presumably. However. Page 48 of 154 . and in so doing it must balance the interests of the accused with that of society at large and the administration of justice. Section 35(5) confers discretion on the courts to admit evidence even where it was unconstitutionally obtained provided that it is fair to do so and its admission is not detrimental to the administration of justice. and second. First. An adverse inference as to credibility or guilt 2. namely that the late tender of the alibi suggests that it is manufactured and that the accused is guilty’. Yacoob although concurring with the result. that failure may be used against them in the trial). There appear to be 2 options: 1. the court must ensure that it is a fair trial overall. once an arrested person has been informed of the right to remain silent and implicitly that she or he will not be penalised for exercising this right. a rule against the drawing of adverse inferences from pre-trial silence protects arrested persons from improper questioning and procedures by the police. He accordingly found it unnecessary to decide the question whether failing to disclose an alibi defence to the police can ever attract an adverse inference. an accused should not be required to explain why he chose to exercise a constitutional right. They rejected the distinction between adverse inferences going to guilt and those going to credit. Because this broad concept of trial fairness cannot. A conclusion that in the absence of contradictory evidence the evidence is sufficient to convict. does not ultimately render the trial unfair.

it must be established in the light of the surrounding circumstances that it would be reasonable to draw the inference that the party did not respond because he acknowledged that the contents of the letter were true. It doesn’t seem too important for this course (but you never know with Wouter’s multiple choice!) In certain circumstances. In this instance. may be taken to constitute an admission by him of the truth of the assertion. For example. in the context of civil litigation.’ ‘And an adverse inference will more readily be drawn when the unchallenged assertion had been preceded by correspondence or negotiations between the parties relative to the subject matter of the assertion’. Page 49 of 154 . Trial silence – infra under evaluation of evidence This occurs where the accused elects not to testify at the trial (or chooses not to call witnesses in his defence). Failure to answer letters This arises. the Constitutional Court has avoided pronouncing upon the constitutionality of using trial silence as an item of evidence. Importantly. in McWilliams v First Consolidated Holdingsit was held that ‘when according to ordinary commercial practice and human expectation firm repudiation of such an assertion would be the norm if it was not accepted as correct. This is mainly an issue where somebody makes a statement implicating a party and this party then remains quiet (or even denies the statement). an admission may be inferred from the failure to answer a letter. Thus. Statements made in presence of a party A statement made in the presence of a party may be put before the court in order that the court may assess whether the party’s response to hearing the statement amounted to an acceptance of its truth. the courts are more reluctant to draw such inference. Another difficulty that arises with drawing inferences from trial silence is the following: What is the inference to be drawn if the accused remains silent on the advice of counsel? In these circumstances it would be difficult for the court to conclude that an inference to credibility or guilt was the only reasonable inference. an inference can be made.In (1) silence becomes an item of evidence whereas in (2) the negative consequence is simply an unavoidable possibility in the final evaluation of evidence. the court held that an acknowledgment of paternity could not be inferred from his silence. The problem with (1) is that to use silence as an item of evidence against the accused may well infringe the right to remain silent. However. To date. a court is not entitled to make any negative inference when the accused decides not to testify. as responding to a letter requires a greater degree of positive conduct than an oral denial. unless satisfactorily explained.. generally. in R v Westwhere the accused had failed to respond to a letter from the complainant alleging that he was the cause of her pregnancy. but there are nonetheless consequences that accrue. This is an important issue that we will discuss when we deal with evaluation of evidence. See the section on evaluation of evidence at the end of this course.. such party’s silence and inaction. In each case. as the court has no contrary evidence to the state’s case. before an admission can be inferred.

due to the employee/employer relationship. held that this was an admission by conduct. He was charged with the rape of a woman in his ambulance. As we know. In the case of an unrepresented accused.In the case of S v Rthe accused was an ambulance driver. this can be construed as an admission and inference that you agree with the witness’s version of events. It has however been argued that there are other reasons (besides hearsay) for excluding vicarious admissions: Page 50 of 154 . this rule should not apply at all. 6 Vicarious admission The definition of a vicarious admission can be found above.thus common law can still play a role in this sense. During the trial. the child and the complainant. allowing this evidence to be admitted. The appeal court held that this constituted an informal admission of the source of the blood samples. did not say anything. Is the third party employer’s admission of his own negligence admissible against his employer in a case where his employer has been sued as the defendant? General Rule As a general rule. Thus the court will consider the exceptions to the hearsay rule discussed above. when the judge exercises his discretion in this regard. One of these purposes is that when you cross examine a witness. Failure to cross-examine Cross examination has a number of purposes. it was alleged that the prosecution had failed to present formal evidence indicating that the blood samples identifying the appellant as the father of the child received as a result of the rape were taken from himself. a statement made out of court. The court. he can take into account the common law exceptions to the hearsay rule . who was in her presence. by a person who is not a party to the suit. the appellant had been convicted in a regional court. On appeal. there are some exceptions where vicarious admission can be admitted against a party – for example. An admission of co-accused can also be admitted as hearsay against accused. in terms of the common law. Keep in mind the accused’s constitutional right to remain silent in criminal proceedings. you must question the witness specifically on those points where your client’s (i. as the cross examination having focused on the reliability of the analysis of the samples. When the ambulance arrived at the hospital. the source of the blood samples had not been raised in cross examination. If a party fails to cross-examine on one of the issues.e. This we dealt with under hearsay evidence in the Ndhlovu case. the accused’s) version differs from that of the witness. as it is regarded as hearsay. In S v Mathlare. The accused. However. This is because the accused is a lay person and doesn’t know what is potting with regards to all things legal. because he said nothing. the victim claimed that she was raped by the accused. is not admissible.

statements made by one of them will be admissible against the other. The liability of the employer is identical to the liability of the employee. 2. There are 3 main categories of vicarious admissions: I. but it fell under the privity or identity of interest exception. the driver was not available to give evidence at the trial. One of the issues to be decided by the court was whether an admission made by the driver of the defendant’s lorry (the driver being the defendant’s employee) was admissible against the defendant. However. who was not party to the suit. the relevance of these exceptional categories in terms of which vicarious admissions are admissible needs to be reassessed following Mdani. which was tendered against a third-party insurer *following an accidenct where the driver’s car hit a pedestrian]. In Botes v Van Deventer (also see Semester 1) the plaintiff claimed damages for loss incurred as a result of a lorry colliding with his racehorse. and in the case of an owner andpredecessor in title. Therefore by application of S 3(2) of LEAA. The court held the statement to be admissible.curial statement made by an insured driver.Prior to Mdaniv AllianzInsurance Ltd it was widely accepted that certain exceptions existed in terms of which an admission of a third party (X) could be proved against a part (Y) to litigation. The court a quo found the evidence to be inadmissible in accordance with its interpretation of Union and South West Africa Insurance Co Ltd v Quantana NO: not only are such statements inadmissible because they are hearsay in nature. The evidence in issue consisted of extra. Where a litigant adopts the statement of a third party as his statement and ratifies it. These exceptions are referred to as vicarious admissions. Privity exists between persons who have successive interests in the same property. Identity exists between persons who have concurrent joint interests or liabilities. the fact that S 3(1) permits hearsay to be admitted in certain circumstances does not enable the court to override the rule that vicarious extra-curial admissions Page 51 of 154 . Exceptions Where two people share a privity or identity of interest or obligation. In such a case. there is an identity of interest between the employer and employee. III. the admission may be proved against Y. Hoffmann and Zeffertt make the following distinction between privity and identity: 1. It follows from this rule that an employee’s statement will be admissible against the employer as there is a sufficient identity of interest to allow for this. The employee/employer relationship is the most notable exception to the vicarious evidence rule. In terms of substantive law an employer is vicariously liable for a delict committed by his employee in the course of his employment. However. This was a vicarious admission. The court held that an employer is vicariously liable for a delict committed by his employee acting in the course and scope of his employment. Where X has express or implied authority to make a statement on behalf of Y. but also because of their vicarious nature. Where X and Y share a privity or identity of interest. The driver had made a statement to the police in which he admitted that the accident was due to his negligence. II.

the common law justifications for admitting such statements may still be a factor to be taken into account by the court in the exercise of its discretion to admit hearsay in the interests of justice. admissions included in a statement by a person involved in a dispute and which are genuinely aimed at achieving a compromise are protected from disclosure. Zeffertt criticizes the decision inMdani. A ‘without prejudice’ offer will only be protected from disclosure if it is made in good faith. However. the vicarious admission rule. in reality. Paizes also argued that the vicarious admission rule still has a role to play in the law of evidence. If the statement contains statements which are criminal or fraudulent. Parties would be reluctant to be frank if what they said might be held against them in the event of negotiations failing. When a vicarious admission is rejected to failing to meet the requirements of admissibility. statements made by someone to whom a party has referred others for information may be proved against him as an admission concerning the subject matter of the reference. This approach was later endorsed by the SCA in Makhatini v RAF. the court held that it was clear from Quantana that the statement in question was held to be inadmissible on a single ground: that it was hearsay.curial admissions made by a person who is not a party to the suit will depend solely on whether the statement is exceptionally admissible as hearsay in terms of S 3(1) of the LEAA. it is excluded as hearsay but there are other reasons to warrant the exclusion. Such admissions may only be accepted into evidence with the consent of both parties.and statements are generally inadmissible. It therefore appears that the admissibility of extra. an admission by one spouse is generally inadmissible against the other spouse unless it relates to the joint interest of the spouses in the community estate. NOTE OTHER EXAMPLES: An accused’s out-of-court statement incriminating a co-accused. it should still be excluded if it is not sufficiently relevant. 7 Statements made without prejudice The general rule in civil matters is that an admission will be accepted into evidence provided that it is relevant. On appeal. However. an admission at trial made by a legal representative. it will not automatically be Page 52 of 154 . The rationale for this rule is based on public policy which encourages the private settlement of disputes by the parties themselves. Legal representatives tend to preface such statements with the words ‘without prejudice’ meaning that the statement is made without prejudice to the rights of the person making the offer in the event of the offer being refused. He argues that inadmissible admissions are categorized as an inadmissible species of hearsay. He argues that it does not follow that because evidence in Quntana was excluded as hearsay. He argues that vicarious admissions are also excluded because they are irrelevant and even though such an admission may pass the hearsay test. acts and declarations in furtherance of a common purpose. that the theoretically true basis of its exclusion was not. an admission made by a partner concerning partnership affairs. or in a deferred sharing of profits under the accrual system. These are not examinable.

. However. an extra-judicial statement such as an admission made by an accused may not be admitted into evidence unless it is proved to have been made freely and voluntarily. it will remain privileged since such threat is implicit in every offer of compromise. Once a settlement is reached. the offer and threat will be heard in court. s219A of the CPA provides that ‘evidence of any admission made extra-judicially by any person in relation to the commission of an offence shall. the requirements for admissions and confessions differ. if such admission does not constitute a confession to that offence and is proved to have been voluntarily made by the person. If the statement is accompanied by a threat of litigation should the offer not be accepted. On the other hand. An admission will only be found to be involuntary if it has been induced by a promise or threat proceeding from a person in authority. The test is a subjective test to determine whether the accused was under pressure and thus induced to make the admission. where an offer contains a threat which is relevant to establishing that the offer was not bona fide. Remember that the Constitution does not differentiate confessions and admissions (as we’ve already seen). even if a statement is made in good faith. it will not be protected from disclosure. Thus. Impact of the Constitution This section may well provide the courts with the opportunity to depart from the artificial and technical common law interpretation of the requirement of ‘voluntariness’. provided the statement is tendered to prove the commission of the act. s35(1)(c) provides that an arrested person shall have the right ‘not to be compelled to make any confession or admission that can be used in evidence against’ him’.’ In S v Yolelo the AD held that in the common law there was a requirement that an admission must be made voluntarily.presumed to be in made faith. Page 53 of 154 . privilege ceases to exist. the earlier ‘without prejudice’ statement will remain protected from disclosure. Nothing has changed with regards tothe meaning of voluntariness in relation to admissions.. Then. it will be admissible if the attempts at settlement constitute an act of insolvency. However. If a statement contains an offer that is accompanied by an unequivocal and unconditional acknowledgment of liability. The meaning of ‘freely and voluntary’ is restrictive. be admissible in evidence against him at criminal proceedings relating to that offence. However if the same or some connected issue is later disputed. s219A is a codification of the common law. 8 Admissions by the accused S 219A of the CPA – Requirement of Voluntariness At common law. or an offence or an incitement to commit an offence. there is nothing in this section to suggest that admissions and confessions should be treated differently. But in our law. and the criminal or fraudulent content will only be relevant to admissibility if it tends to show bad faith.

and therefore his right to a fair trial was also infringed The court held that the right to counsel and the right to remain silent go hand-in-hand. The statement was thus not given voluntarily and was rather the result of the threatening behaviour of the arresting officer 2. the court held that: 1. At 03h15 in the morning. there is no reason for this distinction. The court considered the differentiation between admissions and confessions and noted that historically. held the court. the accused’s constitutional right to remain silent was infringed.S v Agnew S 217 of CPA requires confessions to be made freely and voluntarily whilst the maker is in his sound and sober senses and without having been unduly influenced thereto. so it is easier to include an admission. The right to counsel helps reinforce/protect the right to remain silent. The court held that it must take into consideration the Constitution. The court had to decide whether this statement to the magistrate was admissible. the accused made a statement to the magistrate telling all (note: it’s not relevant whether this was a confession or admission). Page 54 of 154 . the accused felt a keen desire to ‘spill the beans’. and admissions and confessions should comply with the same requirements. But. in many instances admissions could be as damaging as confessions. which does not make this distinction. The court held that the differentiation between admissions and confessions leads to an unsatisfactory situation. This case is important for two reasons: 1. then it is difficult to understand how incriminating statements contained in confessions should be treated differently from words amounting to admissions only” An admission does not have to conform to the same requirements as a confession. The court held that this differentiation was unsatisfactory: “If full effect is given to the maxim that no one should be obliged to incriminate himself. As the captain avoided the accused’s attorney. The court took into account that the statement made was not done so voluntarily. The parties planned for the police officer and the accused to meet the attorney at the police station’s charge office. 2. the policeman did not stick to the agreement. The accused was arrested at his home at 01h50 in the morning after which his attorney was called by phone. and negated the constitutional grounds. The policeman asked if he was prepared to make a statement to a magistrate. The policeman argued later that there had been no such agreement. that he was gonna get raped). The attorney said later that he had asked the policeman not to take a statement.e. After being told about the conditions in the holding cells (i. After this ramble. However. The accused and policeman went and had coffee. one of the reasons for the distinction was the assumption that admissions need not be guarded against to the same extent as confessions. he infringed this right to remain silent.

If it becomes clear that he does not dispute one of the facta probanda or facts in dispute. that the statement should also be excluded because it had been obtained in violation of the accused’s constitutional right to remain silent and his right to legal representation. The magistrate will also try and ascertain the facts in dispute. Upon a plea of not guilty the magistrate may ask the accused to make a statement disclosing the outline of his defence.However. If the accused does not make such statement or makes one but it is unclear as to what is in issue. has recommended that admissions. which provides for the exclusion of evidence obtained in violation of the Bill of Rights. s219A(1) of the CPA provides that ‘where the admission is made to a magistrate and reduced to writing by him or is confirmed and reduced to writing in the presence of the magistrate. there is a duty upon the court to enquire whether an allegation that is not put in dispute by the plea can be noted as an admission. Burden of proof in S 219A(1)(b) In accordance with the presumption of innocence. the magistrate can question him to find out what is exactly what is in dispute. confessions and pointings out should all be subject to the same requirements of admissibility: namely that they were made freely and voluntarily. which did not have a S 35(5) section. In terms of this section. the admission shall. in sound and sober sense and without undue influence. the prosecution bears the burden of proving beyond a reasonable doubt that the accused made an admission freely and voluntarily. then the court will consider the admission to be an informal admission. Plea proceedings especially S 115 CPA In terms of this section. upon mere production at the proceedings in question of the document in which the admission is contained: a. if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and to the best of his ability with regards to the content of the admission and any question put to such person by the magistrate. more importantly. and Page 55 of 154 . the court held. the magistrate must ask him if he can enter a formal admission. Note: this case was decided in terms of the Interim Constitution. However.Thus the finding was based instead on the constitutional right to fairness of the trial. be admissible in evidence against such person if it appears from such document that the admission was made by a person whose name corresponds to that of such person and in the case of an admission made to a magistrate through an interpreter. Position in England and the findings of the SA Law Commission The South African Law Commission. If it is not one of the facta probanda or the accused does not give permission. the magistrate will ask the accused whether he wants to disclose his defence. following the trend of the US and the UK.

the court holds a trial within a trial. A trial within a trial is also held to determine whether a statement is an admission or confession. There is however little doubt that if the S 219A presumption were to come before the CC it would suffer the same fate as the one contained in S 217. The important thing is that the merits are not important. like at any other trial. Page 56 of 154 . The court may not. both parties will present evidence and witnesses will be cross examined. the court suspends the case and starts a trial within a trial. take into account the statement (directly or indirectly) if the statement is found to be inadmissible. This procedural framework is the same as the English procedure in this regard. then it was presumed to have been done voluntarily. in further proceedings. is presumed. Thereafter. noted that the presumption contained in S 219(A)(1)(b) had been invalidated by the CC’s ruling in Zuma (where the court found a similar presumption to S 219(A)(1)(b) contained in S 217(1)(b)(ii) of the CPA pertaining to confessions). there was an onus on the accused. only the admissibility of the evidence (statement) is considered. In Zuma. in an obiter dictum.’ The position has changed here in view of the case of S v Zuma. The court held that the previous rule infringed upon the presumption of innocence and was unconstitutional. This is held to determine the admissibility of the admission. the court must have a trial within in a trial or it will be a procedurally fatal. Prior to this case. Principles of Evidence states that the CC in Zuma specifically restricted its finding of unconstitutionality to the presumption contained in S 217 and it is therefore doubtful whether the presumption contained in S 219A can be said to be invalidated merely by the application of the ruling inZuma. If the admission was made in writing before a magistrate. In Agnew. Trial within a trial Where the admissibility of an admission or confession is in question. the court. The onus is now on the state to prove that the admission was made voluntarily. this was abolished. to have been voluntarily made by such person if it appears from the document in which the admission is contained that the admission was voluntarily made by such person. the case proceeds on the merits.b. unless the contrary is proven. If the defence puts the admissibility of the incriminating admission at issue. Here. If a statement amounts to an admission.

Even before the Constitution. there is another consideration that is more important: In a civilized legal system. But. since then. one must keep the following two issues apart: 1. Like in informal admissions. 2 General Keep in mind the distinction between a formal/informal admission and a confession. out of court (extra-judicially). Is this statement a confession? To answer this question one must know what the definition of a confession is. Does the confession have the effect of eliminating the facts in issue? The accused can still come to court out of trial and dispute its admissibility. Only a formal admission has the effect of eliminating the facts in issue. This was the primary reason for exclusion at common law. Rationale for excluding involuntary admissions and confessions Why does the law exclude involuntary admissions and confessions? 1. to all the elements of a crime charged. 2. The police must conduct their business within the confines of the law and cannot extract incriminating information from suspects by improper or illegal means. improper and abusive conduct from police cannot be tolerated. 2. These statements are not very reliable If the confession/admission has been extracted. there were provisions regulating the admissibility of admissions and confessions (s217 of the CPA). We also know that the court will not actually go through these two enquiries mechanically. as parties are often ad idem as to whether it is confession or admission.17 – CONFESSIONS 1 Introduction Confessions are a special type of comprehensive admission. Policy considerations According to recent case law. A statement is a confession when the maker of it admits. We know by now that the requirements of admissibility differ in the case of confessions. Is this statement admissible? This question is answered once you have answered the above question. Confessions carry special rules of admissibility which do not apply to admissions and are invoked only in criminal trials. There are more and stricter requirements. is this really reliable? It’s possible the accused made the statement to escape the pain of his nuts being pummelled. In S v January. It therefore does NOT put the facts in issue out of dispute. Prokureur-Generaal. Natal v KhumaloVan Heerden JA held that ‘in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment Page 57 of 154 . these rules have been embodied in our beloved Bill of Rights.

he said. to have actually been committed. Also. R v Becker The authoritative definition is found in this case. When he was arrested. the confession is confirmed in a material respect or. Viljoen was a soldier who set fire to the building of an Afrikaans newspaper.” Note that a confession is not an admission in court. So requirements for admission of confessions are onerous and the consequences of doing so can be serious. it is necessary to know what a confession is. If not. so we look to the common law. the courts applied the Becker definition strictly. as the wording left open the possibility of a defence such as that of self-defence.’ This is entrenched in S 35(1)(c) of the Constitution. As we know by now.if made in a court of law. the common law and statute make it important to make this distinction because the requirements for admissibility of confessions are currently much more onerous in our law than the requirements for admissibility of admissions. during WWII. If he had said “I murdered the stinking bitch” it would have been different. other than such confession. It must have been clear from the statement that the accused explicitly admitted to all the elements of the crime.’ Page 58 of 154 . it would simply be an admission. ‘Can you blame me. but a statement in which the accused admits all the elements of a crime. In the case of R v Viljoen. that question has not yet been conclusively dealt with by our courts. she is full of holes”. He was charged with arson. Strict application of the definition by our courts For decades.or improper pressure in order to extract confessions. S 209 of the CPA provides that an accused may be convicted of an offence on the single evidence of a confession where. 3 Definition of Confessions In order to ascertain whether the statement is an admission or confession. Statute doesn’t include a definition. Remember section 35(3)(j)also makes the privilege against self-incrimination a key aspect of the right to a fair trial. I emptied the gun on her. A confession is “[a]n unequivocal acknowledgement of guilt…on the part of the accused…[which]. The court held that this did not amount to a confession. we are fighting up north and our soldiers are getting killed here by the Ossewabrandwag. Why distinguish between admissions and confessions? Although Schwikkard explains that it is not constitutionally sound to distinguish between admissions and confessions. which provides that an arrested person has the right ‘not to be compelled to make a confession or admission that could be used in evidence against him’. the offence is proved by evidence. because it could be interpreted as ‘can you blame me if I did it.… would have amounted to a plea of guilty. Also remember that the accused has a right to be informed of his constitutional rights. a bunch of raging pro-Nazi lunatics called the Ossewabrandwag were getting up to some serious mischief across South Africa..’ The court did not take ‘can you blame me’ as a confession.In S v Grove-Mitchell a man was charged with murder.. He admitted to shooting the women with whom he had been living by stating to the police that he had “shot her six times.

What if the accused makes a statement that is exculpatory in relation to the main charge. he said ‘You caught me. The court in this case held that what is important is that the effect of the statement must amount to a confession. whether he realizes is or not”. Objective test-also applicable w. However. but must restrict itself to considering the circumstances which put the statement in its proper setting and which help to ascertain the true meaning of the words used. but incriminating in respect of a lesser charge? Is that a confession to the lesser charge? The classic example is where an accused charged of raping a girl younger than 16 makes a statement indicating that he had consensual sex with her. and interpreted his statement as a confession and a plea for mercy. the courts can take into account the circumstances and context surrounding the making of the statement in order to decide whether it is a confession or not. the court can have regard to the circumstances surrounding the statement. objectively speaking (i. Has the accused made a confession regarding a charge of statutory rape? Page 59 of 154 . Apparently this doos was seeking good treatment from the authorities. including the necessary implication of the words. Qualification – circumstances surrounding the statements can be taken into account We have seen how the courts interpret this definition in their uber-strict way. It is only subjective in the sense that the court must ensure that he intended to utter the words that he did. exculpatory statement but incriminating as to lesser offence What if the accused is not clued up on the law and thinks he is making an exculpatory statement (statement clearing the accused of guilt) that actually incriminates him? Before S v Yende. that’s what the court will hold: “It is not whether the accused intends to admit that he is guilty but whether he intends to admit to facts which make him guilty. The accused was arrested on a charge that he illegally brought cattle into South Africa from Botswana. but here the AD said that an objective approach must be taken.r. they interpreted confessions in this narrow. the position was uncertain. looking at the words the accused used).e.In determining whether a statement amounts to a confession. but incriminating with regard to statutory rape.t. If. The statement is exculpatory with regard to rape.’ The court held that the guy knew what the police were doing. this amounts to a confession. I am a poor boy. Rationale underlying the strict approach The courts were critical of a requirement in the CPA that a confession made with an ordinary police officer or magistrate had to be reduced to writing before being admissible. Also in determining whether a statement amounts to an admission a court must look at the statement in its entirety. strict manner. Because of this. When the police caught the guy red handed. In the case of R v Swart there were statutory requirements in place regarding the moving of cattle.

The second reason is that. it will amount o a confession to that lesser offence.The case law isn’t altogether clear although it seems that it can serve as a confession to the lesser offence. So if it is an unequivocal admission of guilt on the lesser offence. whether the accused meant it to be or not. class of offence or power. intend to admit facts which make him guilty of the lesser crime for which he could be convicted on the main charge. if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly to the best of his ability with regard t the contents of the confession and any question put to such person by the magistrate. In R v Goliaththe court said this would constitute a confession to the lesser charge.” 1 In accordance with section 334(1) it also includes anyone the Minister declares to be a peace officer for a certain period in relation to an area. whether he realised it or not. The court in S v Ffound that such a statement could not be a confession for either of two reasons. to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto. The first reason is that the accused intended to exculpate himself when he made the statement. a confession made to such peace officer which related to an offence with reference to which such peace officer is authorized to exercise any power conferred upon him under that section. upon the mere production thereof at the proceedings in question – (i) be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person. Page 60 of 154 . and (ii) be presumed. or. when he made the statement which was exculpatory in respect of the main charge. if we apply the objective test there were still defences open to the accused on the facts. or is confirmed and reduced to writing in the presence of a magistrate. 3 Requirements for admissibility S 217(1) of the CPA – keep in mind Constitution S 35(1)(a)/(b)/(c) and S 35(2)(b) Section 217(1) of the CPA provides: “Evidence of any confession made by any person in relation to the commission of any offence shall. So again the question is: Did the accused. Schwikkard thinks there is no reason why the objective test from Yendecan’t apply to situations where an exculpatory statement incriminates an accused in respect of a lesser offence. if it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober sense and without having been unduly influenced thereto. shall not be admissible in evidence. be admissible in evidence against such person at criminal proceedings relating to such offence: Provided – (a) that a confession made to a peace officer other than a magistrate or justice. unless the contrary is proved. in the case of a peace officer referred to in section 3341. and (b) that where the confession is made to a magistrate and reduced to writing by him. if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto. but in S v Fthe court said it can’t amount to such a confession. the confession shall. unless confirmed and reduced to writing in the presence of a magistrate or justice. offence. and in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter.

Obviously violence or a threat of assault constitutes undue influence. Thus. This is a much wider concept than is required in order to admit an admission. the accused has been unduly influenced. Sound and sober senses – meaning? It must be shown that the accused was “in sound and sober senses”. section 217(1)(b) has been declared unconstitutional. Nonetheless. If it is repugnant. even when someone makes a statement voluntarily. a confession can be excluded on the basis that these S 217 requirements were not complied with. Although this is a confined definition. In terms of the common law. Practically speaking. 3. There are many circumstances indicating undue influence. The test is subjective. Thus in practice. is somewhat redundant. this requirement. that he must be informed of these rights by the police. 2. The test the court applied in this case (Mpetha (2)) was to ask whether the process that led to the confession is repugnant to the principles upon which our criminal law is based. It is about the will of the accused as it actually operated and was affected by outside influence that is the concern. the meaning of ‘involuntary’ is confined to having been produced by threat or promise thereof by a person in authority. For example. Just being drunk or in great pain at the time of the statement won’t automatically make the confessing inadmissible. and thus is interpreted in the same narrow way it is in the case of admissions. Substantive requirements 1. The common law meaning of ‘voluntary’ applies here. but so do subtler forms of influence like the promise of some benefit or an implied threat or promise.As will be discussed. in the case of confessions. a confession can also be excluded if it would lead to the infringement of any constitutional rights. there is a broader basis for the exclusion of a confession than there was in the past. the overall test is much wider due to the requirement that there not be undue influence. Without undue influence – test is from cf S v Mpetha (2) per Williamson J Undue influence is present where some external factor operates so as to extinguish the accused’s freedom of will. if it is a consequence of some undue influence it will be excluded. it technically remains and is distinct from the undue influence inquiry.In our present dispensation. it must have been made freely and voluntarily. The court explained that objective factors do have a role in this subjective inquiry. Freely and voluntary – cf narrow common law meaning In order for a confession to be admissible. it will be hard for the Page 61 of 154 . in the case of confessions. If there are factors in a particular case that the court thinks are objectively calculated to influence the will of a person. There are also a number of provisos that must be taken into account from the subsections. this effectively means is that the accused must have understood and appreciated what it is that he said. while one must also keep in mind the accused’s constitutional rights. Remember. So. before a confession will be admitted the general rule is that the prosecution must establish that the confession was made freely and voluntarily by the accused whilst in sound and sober senses and without having been unduly influenced thereto (the substantive requirements at the start of the section). In addition. The undue influence doesn’t have to come from a person in authority.

which he does not have before an enquiry. So when we ask if the absence of legal representation led to undue influence we look at the subjective influence on the will of the accused. or does it amount to an undue influence which is inadmissible under s 217(1) of the CPA? The Insolvency Act and the Companies Act allow for the setting up of an enquiry into a person’s affairs where there are allegations of improper conduct by a debtor (who is now insolvent). Conversely if there are factors present which the court thinks are not objectively calculated or likely to influence the will of the accused. the Constitutional Court declared a provision in the Companies Act unconstitutional in so far as it allowed this evidence to be used in subsequent criminal proceedings. When we are dealing with a confession obtained as a result of undue influence we have said that the test is subjective. In S v M. So even if s 217(1) is satisfied. A confession will be admissible if it complies with the substantive requirements as well as a number of provisos: Page 62 of 154 . the court dealt with a juvenile appearing in a criminal court’s right to be assisted by his or her parent or guardian. Although a person appearing before such an enquiry cannot claim privilege against self incrimination. voluntarily. Schwikkard suggests that when we’re asking if the confession was unconstitutionally obtained we must apply an objective test. Note that this wasn’t discussed in class. In Ferrera. as well as an undue influence which is shown to in fact have had no meaningful influence on the subjective will of the accused. The court took into account the constitutional protection of the right to remain silent and the privilege against self-incrimination.prosecution to show that there is not reasonable possibility that these factors didn’t have an influence subjectively on the accused. Remember that section 35(2)(b) of the Constitution provides that anyone who is detained must be advised of their right to consult a legal practitioner. and held that the failure to afford a young person the assistance of a parent or guardian where it is reasonably possible to do so may lead to a conclusion that the confession of that young person was not made freely. the evidence obtained cannot be used at the criminal trial as he has the right to a fair trial. Furthermore the court held that an undue influence which is trivial must be ignored. the insolvent cannot claim any privilege against self-incrimination. or without undue influence. Statements made under statutory compulsion Is a statement made under a statutory compulsion admissible. Statutory provisions which permit the use of evidence obtained in breach of the privilege against self-incrimination will thus be unconstitutional. At such an enquiry. it won’t be easy for the defence to persuade the court that there is a reasonable possibility that the will of the accused was subjectively influenced. a failure to advise the accused of this right might lead to its exclusion based on unconstitutionally obtained evidence. The AD equated the right of a juvenile to be assisted by his parents with the right to legal representation. But when we argue that the evidence was unconstitutionally obtained because the right to legal representation wasn’t advised of we are just asking an objective question of fact as to whether or not that right was actually advised of.

the right not to be compelled to make a confession. Reversing the onus would seriously compromise these rights. if it appears from the document that the confession was made freely and voluntarily. it is deemed admissible in evidence upon mere production. knowing the confession won’t be admissible. so long as the name of the accused and the person who made the confession correspond. a confession to a constable or sergeant is not admissible. or not made voluntarily. Confession made to a magistrate: This confession is admissible. Thus. Page 63 of 154 . The court in S v Zuma dealt with the above presumption. if a confession is reduced to writing and confirmed in the presence of a magistrate. it is presumed to have been made freely and voluntarily in sound and sober sense and without undue influence. who has no idea as to what happened before. If the police official. The onus is on the accused to prove that the statement was not his. while the accused was of sound and sober mind. It found that the presumption placed the burden of proving that the confession was not made freely and voluntarily on the accused. The magistrate must thus ensure that the statement is made voluntarily. a ‘veil’ is created between the first statement (made to the police) and the second one made to the magistrate. According to s 217(1)(b)(ii). and the right not to be a compellable witness against oneself. and without undue influence. Confessions made to a peace officer (in practice an ordinary police official): This confession will not be admissible unless it is confirmed or put in writing before a police official with an officer’s ranking (a magistrate or justice of the peace). and that this must be proved on a balance of probabilities. in sound and sober senses. sends the accused to a magistrate. It will be admissible so long as it was made freely and voluntarily. He could be intimidated before he went to the magistrate. It is then presumed that the confession was made voluntarily. The court held that the common law rule placing the burden of proving that a confession was made freely and voluntarily on the state was essential to the right to remain silent after arrest.Provisos S 217(1) of the CPA requires that where a confession is made to a peace officer who is not a magistrate or justice of the peace it must be confirmed or reduced to writing in the presence of a magistrate or justice of the peace. The section 25(3) (of the Interim Constitution) right to a fair trial is a broad one and encompasses the common law rule on the burden of proof. The provision provides that when and accused makes a confession to a peace officer who is a magistrate or justice of the peace it needs to be reduced to writing. So section 217(1)(b)(ii) was declared invalid! Relationship between Confession confirmed and those reduced to writing and undue influence Often when confessions have been confirmed and reduced to writing in front of a magistrate or justice of the peace it has led to allegations of undue influence. Furthermore. Anything can happen to the accused before he meets the magistrate.

If it was done voluntarily to a police captain (justice of the peace) or magistrate. Wouter says that “You can say its hearsay. Police constable or sergeant The proviso applies. Thus there is less likelihood of intimidation when made to a magistrate or police officers (who sit at a higher level). Of course. Now that Zuma abolished the reverse onus for when a confession is reduced to writing and confirmed in the presence of a magistrate the significance of the above is diminished. The above factors just become relevant in terms of the inquiry as to whether the confession was made freely. you are the main witness. or constituted undue influence. voluntarily. InS v Colt the court said that when an accused comes to make a confession to a magistrate the magistrate must ask whether the accused has previously made a statement and if so.In S v Lathait was held that a cop who was attached to the unit that investigated the matter. the nature of the statement and the reasons he wants to repeat it. they aren’t prevailing when the accused comes before the magistrate. not a justice of the peace. Still the reduction to writing requirement remains where the confession is made to a peace officer other than a magistrate or a justice of the peace. at the trial. The law commission has said that the writing requirement should be abolished. that is the reasoning behind it. Member of the public What happens if you catch an intruder in your house in the process of putting your TV in his trolley? He immediately confesses that he broke a window and is in the process of stealing your lekker new Sony HD TV. but the substantive requirements still apply. Wouter thinks that although both of these arguments are faulty. believe me”. in principle the proviso does apply. if the captain is also the investigating officer. it would be more difficult for the state to show that the requirements of voluntariness and undue influence were met. in sound and sober sense and without undue influence. The state can call you to testify about the matter. 2. The police are called in and. are the requirements of S 217 applicable here? The above requirement only applies to police officers who are not justices of the peace. Can you testify regarding the oral statement made by the accused? Although a confession or admission is always admissible against the maker (see above). Page 64 of 154 . and the accused makes an oral confession to him. Wouter thinks that the legislature had it in mind that a confession made to a police officer on the ground level contains a greater risk of intimidation. 3. Thus it additionally does not apply to member of public. It should now be clear that the prosecution will always bear the burden of proving the confession was made in line with S 217(1). but it’s admissible. But in S v Mbatha the AD said this should just be a factor in determining whether the confession was made freely and voluntarily and without undue influence.The idea is that the magistrate should ensure that if there were circumstances which impacted the accused’s freedom. Police captain or magistrate The writing requirement applies to the situation where the officer is an ordinary police official. Consider the position regarding the following: Oral confessions made to: 1. Thanks Wouter. If not. should not take the confessions. the proviso of writing is not required.

relating to the situation in practice where the accused says that his statement was repeated parrot-fashion from the police. The inquiry is not about establishing guilt. it is a material irregularity and according to S v Mdyogoloit constitutes and infringement on the constitutional right to remain silent and is a fatal irregularity. The accused may have said things that only the accused will know about (information about friends and family members. S v Post dealt with a scenario where the accused made a pointing out. and not the police. the content of the confession becomes relevant. Position regarding content of confession Generally. The court will then busy itself with a trial within a trial in this regard. for example). is the true source. At this point.4 Trial within a trial (a ‘voir dire’ in England) This section is similar to the one in Admissions Necessary to determine admissibility The purpose of the trial within a trial has been discussed above. Wouter: “What happens quite frequent (sic) is the accused says no no no no I never said all that!” In this scenario. The court is concerned with the circumstances in which it was disclosed and not with the merits of the confession. it is required to make a credibility finding as to the policemen and the accused. Admissibility of a confession is determined at a trial within a trial. the accused will allege that a statement (the supposed confession) was taken down when he was threatened. the content of the confession cannot be disclosed at this point in time as this might prejudice the accused. The prosecution may cross-examine on the contents of the confession and only the portions referred to in cross examination may become part of the record. In this instance. For the court to decide on the truth of the confession. it may not be sufficient for the accused to testify that he was assaulted. If there is not trial within a trial when the issue of admissibility of confessions is disputed. and thus the prosecutor may ask the police where he got this information. there is a proviso in this regard. and therefore the statement should not be admissible. but to show that he was of sound and sober mind in order to ascertain if the evidence was admissible. Against that background. Importantly. Cameron J held that in the circumstances the contemporaneous Page 65 of 154 . The state calls witnesses to testify regarding how the confession was made. the court allowed the prosecution to present evidence as to his conduct and what was said prior to the pointing out. The purpose of this was not to show the truth or falsity of what he said. thus showing that the accused. which was subsequently put in dispute. the accused is required to show that the confession was not made voluntarily (for example. Therefore there is a general rule that the accused may not be cross examined at the trial within a trial as to whether the confession is true or not. The accused claimed that he was flippin’ high and that he was not in his sound and sober senses. However. He may want to say that the information itself comes from the police and that the police forced him to confess in a certain way to a magistrate. because he confessed after being assaulted). but simply the admissibility of the confession.

The prosecution and a state witness. a policeman). So the prosecution can never introduce evidence of an inadmissible confession. but had not disclosed this to the defence. There is substantial overlap between these two sections. But if during the course of the trial evidence comes to light which causes the court to question its earlier ruling. The position is not clear however. provided the court is satisfied that the confession is favourable to the accused. Thus the ambit of when this kind of confession is admissible is narrow. The court said that even thought the prosecution had acted in good faith. so at the main trial the prosecution can’t lead evidence of the accused’s testimony at the trial within a trial and a presiding officer can’t have regard to evidence given at the trial within a trial when deciding guilt.record of the accused’s pointing out was the best evidence of the accused’s soundness of senses and to not allow that evidence would be unfair to the state. it can overrule that previous ruling. 6 Facts discovered as a result of an inadmissible admission or confession and pointing out There are two relevant subsections here. The issue of admissibility must be kept separate from the issue of guilt. where an accused (perhaps mistakenly) elicits evidence of an inadmissible confession when leading or cross examining witnesses (for example. The right to a fair trial demanded that the question and answer revealing the confession be struck from the record. it had erred in not disclosing the confession to the defence counsel. However the court can’t provisionally allow a confession on the basis that evidence may emerge later to justify the admission. 5 Inadmissible confession elicited by accused (which subsequently becomes admissible) When a confession falls short of the requirements of S 217(1) it is unconditionally inadmissibleand as a general rule cannot become admissible by waiver or consent of the accused. had discovered that the accused had made a confession. Page 66 of 154 . S v Nkata held that even the preamble to an inadmissible confession couldn’t be used in cross-examination of the accused and doing so constitutes an irregularity. the essence of which is contained in S 218(2). the confession will be admitted into evidence. The accused may lead the same evidence that was led at the trial within a trial at the main trial in order to persuade the court that. The defence then unwittingly elicited the contents of the confession when cross examining Sergeant Khanye. little weight should be attached to it (a question of weight of evidence rather than admissibility). Sergeant Khanye. What about a damning confession? In S v Xaba the court’s approach to determining the admissibility of a confession elicited by cross examination focused on the right to a fair trial. Once the court is satisfied that the requirements of S 217(1) have been met. owing to the circumstances in which the confession was made. S 218(1) and S 218(2) of the CPA. If it had been done the counsel could have consulted further with his client and may not have asked the question. S 217(3) provides that such a statement can become admissible.

it is apparent from the Constitution and case law (see Sheehama) that although the court has a discretion in this regard. In S v Magwaza it was held that where a court has certain knowledge not only that the pointing out forms part of an inadmissible confession but also what the precise contents of the confession are. notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against such accused at such proceedings. The courts have held that a confession in the guise of a pointing out is inadmissible. Essence of the provision contained in S 218(2) of the CPA Thus evidence relating to something pointed out. It provides: 218. in terms of that discretion. it was still admissible based on the above requirement. If the rights contained in S 35(5) are infringed. it should exclude the evidence of the pointing out. (2) Evidence may be admitted at criminal proceedings that anything was pointed out by an accused appearing at such proceedings or that any fact or thing was discovered in consequence of information given by such accused. or evidence of something discovered. submission of the evidence would make the trial unfair. Of course. Wouter says that the original idea or intention of the legislature with regard to this section was to try and separate things from a statement that was not admissible.Section 218 deals with the admissibility of facts discovered as a consequence of inadmissible admissions or confessions. Despite that broad purpose. Comments on the provision 1. Pointing out – discovery not necessary A pointing out is ‘an overt act whereby the accused indicates physically to the inquisitor the presence or location of something or someplace actually visible to the inquisitor. For example. Note that S 218(2) doesn’t allow statementsaccompanying the pointing out to be admitted into evidence. Wouter himself proclaims that “S 218 must be read in tandem (sic) with the Constitution”. In R v Tebetha the court held that even though a pointing out was conducted as a result of an inadmissible statement. this section is qualified by the Constitution. Thus. may be admitted despite the fact that it forms part of an inadmissible statement. notwithstanding that the witness who gives evidence of such fact. if the scene of a crime is pointed out by the accused. Admissibility of facts discovered by means ofinadmissible confession— (1) Evidence may be admitted at criminal proceedings of any fact otherwise in evidence. it may not exercise its discretion if the pointing out was not done voluntarily. Page 67 of 154 . Note the word ‘may’ gives a court discretion – cfS v Mmonwa This indicates that the court has discretion. discovered such fact or obtained knowledge of such fact only in consequence of informationgiven by an accused appearing at such proceedings in any confession or statement which by law is not admissible in evidence against such accused at such proceedings. the courts have interpreted this section strictly and confined it to a narrow ambit due to the impact of the Constitution.’ Evidence of a pointing out will be admissible even if no concrete facts were discovered as a result. this will be admissible despite the police already knowing about it. and notwithstanding that the fact was discovered or came to the knowledge of such witness against the wish or will of such accused. All that is necessary is that it is shown that the accused knew of a fact relevant to his guilt. 2.

Prior case law had held that. There used to be a view that evidence of a pointing out would be admissible notwithstanding that it was obtained as a result of the use of violence. Pointing out. I. 3. The courts used to place great importance on the idea that facts discovered in consequence of an inadmissible confession. Information given – discovery necessary Remember that s 218(2) doesn’t only allow facts discovered as a result of a pointing out to be admitted. The question of this exception was answered in S v January. This was central to the arguments for admitting a pointing out. Prokureur-Generaal. Natal v Khumalo. it is an informal admission by way of conduct. in terms of s 218(1). it must comply with voluntariness. and not any accompanying statements.However. The problem is then that the whole confession could be admitted based on the theory of confirmation. but also evidence of any fact or thing discovered in consequence of information given by the accused. A member of the investigating unit is involved in the pointing out A person with prior knowledge of the relevant places or objects is involved in the pointing out. Furthermore. Involuntary admissions are inadmissible and the wording admits no exceptions. where the police forced a pointing out by the accused. the court disagreed with the approach in Magwazabased on the fact that S 218(2) makes the fact that a pointing out forms part of an inadmissible confession irrelevant to the question of the admissibility of that pointing out. It is only the pointing out that may be admissible. requires voluntariness even if something was discovered A pointing out is not a statement. Obviously this wouldn’t stand anymore. as an extra-judicial admission. could not be excluded for being unreliable. Prior to this there were cases that said the contrary (i. In other words. That is why in Sheehama. It also will be admissible even if it came to the knowledge of the witness against the wish or will of the accused. The court held further that since it is extra-judicial. The AD held that S 219A could not be interpreted to preserve this exception. The court will consider in each case whether the accused acted freely and voluntarily. Page 68 of 154 . in S v Masilela. unlike the confession itself. that pointing out can be admitted even if it wasn’t voluntary).e. the discovery would be allowed on the basis of confirmation by subsequent discovery. II. the evidence could be admitted because the problem of unreliability would fall away when the contents could be proven true by other evidence. For example. evidence of a fact will be admissible notwithstanding that the witness discovered or obtained knowledge of the fact in consequence of an inadmissible confession. 4.So the theory of confirmation by subsequent discovery is now dead in our law. even if involuntary.For example the courts don’t like it when. the court held that a pointing out amounts to an extra-judicial admission. even where that information forms part of an inadmissible statement. III.In Samhando it was held that a pointing out forming part of an inadmissible statement could be admitted in accordance with the theory of confirmation by subsequently discovered facts. An interpreter who is attached to the investigating unit is used during the pointing out However these things won’t automatically render the pointing out inadmissible. and then discover something important to their case. and the court in Sheehama said that a pointing out must be made freely and voluntarily.

in sound and sober sense and without undue influence’. Remember also that post Zumathat presumption no longer exists because it was declared unconstitutional. The first accused had also not been warned that the resultant evidence could be used against him. Schwikkard (and the Law Reform guys) think that there is therefore no good reason to retain this requirement. the question of admissibility will again be ‘was it made freely and voluntarily. The requirement of writing and confirmation in the case of certain peace officers has not provided the intended protection to the accused. voluntarily. and without undue influence. Perhaps the reluctance by the courts to view something as a confession comes from judicial disapproval of the requirement that a confession made to a peace officer be reduced to writing. the court said. the right to be advised of your right to legal representation etc. The point is that it quite obviously is an infringement on fair trial rights. Remember that prior to Zumathere was a proviso that once such a confession was reduced to writing in the presence of a magistrate. or constitutes a confession. Furthermore. there is a clear overlap between the two. Remember that there is always the question of unconstitutionally obtained evidence. As it stands. The court said that the non-compliance with the Judge's Rules and the failure to advice the accused of the right to legal representation was a common law ground for a finding of inadmissibility. It has instead dropped a veil between the treatment of the accused by his custodians and his resultant confession. Then we can scrap the common law notion of voluntariness which can we easily subsumed under the broader notion of undue influence. Then the court said that the provisions of S 25(1)(c)of the Interim Constitution meant the court should look beyond the requirements of reliability and voluntariness of the evidence. scrapping it should reduce resistance to the idea of making admissions and confessions subject to the same requirements for admissibility. In S v Melani two accuseds had not been informed properly of their right to legal representation before making their pointing outs. Page 69 of 154 . If evidence obtained as a result of a pointing out was obtained unconstitutionally it can be excluded. in sound and sober senses. Note: S 35(5) of Constitution: S 218(2) must be read in tandem with this provision! 7 Argument for reform Schwikkard argues that the constitutional privilege against self-incrimination requires that there not be a distinction in the rules of admissibility between confessions and admissions.So where a pointing out cannot be separated from a confession. Furthermore to admit this evidence. it would be presumed to have been made freely. would bring the administration of justice into disrepute.

whereas in the Continental system. this gestures and sign language is permitted. There are some exceptions which we’ll come to. A witness and an accused can give evidence through an interpreter. In the case of persons under the age of 18 viva voce includes any form of non-verbal expression. So the question here is how does a court evaluate eyewitness evidence? The rule is that in Page 70 of 154 . The magistrate did not see anything wrong with this and he allowed the document to be read into the record by the witness. In this case. Section 161 of the CPA provides that a witness in criminal proceedings should (except where the CPA or any other law provides otherwise) give evidence viva voce. The principle of orality for the French (for example). In the US. The rationale for the principle of orality is that parties should be able to confront the witnesses who testify against them and should be able to challenge evidence in a situation where they may observe the demeanour of the witness in order to assess his credibility. This means that witnesses are called to give viva voce evidence in court directly to the judge. it has been shown (through DNA testing) that a large number of convictions based on eyewitness evidence are based on mistakes and that the person was actually innocent. the principle of orality is applied fully. it often happens that they are mistaken. InS v Adendorffcounsel had prepared a 15 page memorandum of his client’s evidence for the court’s convenience.In the case of deaf or mute persons. comes in at the stage of the oral address of the advocates. This case is an example of improper procedure. However. even in the instances where documentary evidence or real evidence is presented in court. Viva voce evidence includes gestures by deaf and mute witnesses and children. In the Common Law system. Generally evidence for both parties must be given orally in civil and criminal proceedings. the judge gathers evidence.18 – ORAL EVIDENCE 1 Introduction The principle of orality – the meaning in common law systems In our system. S 171 (the use of an intermediary) applies. Case of the eye witness An eyewitness is someone who is able to identify the perpetrator. Viva voce requirement in S 161 of the CPA – note the ambit S 161 of the CPA states that: Witnesses must give their evidence viva voce. Statements are taken and put in writing and when the case comes before the court the written documents are used as evidence. a witness is called to identify the document or real object in order to show its authenticity. a witness is called up to give viva voce evidence from the witness box. Different meaning in continental systems The principle of orality has a different meaning in certain systems. Section 42 of the CPEA incorporates the general common law provision that witnesses should give oral evidence in civil proceedings. Thus the principle is applied totally differently. When a child finds it difficult to explain the experience in words.

More information on the variables that affect the reliability of eye witness evidence: The most obvious variables that affect the reliability of eye witness evidence are stress or trauma. which is why we have cautionary rules in this regard. registrar. But a memory can be reconstructed. Our system is well aware of the possibility of mistaken identity.the case of a single witness. Cross-race and own-race bias is also an influencing factor and research has shown that it is easier to identify someone of your own race. The risk is that the eyewitness can be certain but still wrong. The oath must be administered by the judge. The oath is to be administered in the manner which most clearly conveys to the witness the meaning of an oath and which the witness considers to be binding on his conscience. stress and trauma. Section 163 allows a person who objects to either taking the oath or taking it in its prescribed form. An eye witness must go through examination in chief and must also be subject to cross-examination. Wouter says this is unlikely to find support in practice but it is noteworthy. A person who attends the court in obedience to a subpoena duces tecum doesn’t have to take an oath unless he is required to go into the witness box and identify and hand in the document. affirmation or warning to speak the truth The first thing which occurs when a witness steps into the witness box is that he or she takes an affirmation or an oath. or presiding officer. such evidence must be approached with caution. this process is quite complicated. Post-event information is information that comes forward after the event. Section 40 allows for an affirmation to be made in lieu of an oath. Another factor is weapon focus where the witness may focus more on the weapon than the features of the person. Section 39 of the CPEA provides that no person (except those mentioned in SS 40 and 41) may give evidence except under oath. the idea that ‘maybe he wore glasses’ crosses the witness’s mind and so an incorrect idea of the perpetrator starts to form in the witness’s mind. cross-racial bias and post event information. the court might be well advised to hear expert evidence to assist the court in evaluating such evidence. 2 Oath. which influence an eyewitness’s competency to accurately identify someone. The oath or affirmation may be administered through or by an interpreter instructed by the court. thereafter questioning commences. There are certain factors. A witness may be influenced by other events and their memory may be altered in accordance with information received such as conversations with other witnesses and news reports. In certain circumstances. A note about memory: One’s memory is not static and it alters over time. These include. However. weapon focus. InHolzhausen v Roodtthe court accepted testimony relating to the reactions of a rape victim after the event. For example if the witness is asked the question ‘what kind of glasses did the perpetrator wear?’ At this point. An affirmation has the same legal effect as an oath. Section 162 of the CPA provides that no person shall be examined as a witness without taking the oath in the form set out in the section. in order to assist with the evaluation of such evidence.Be aware thatcross-examination has its limits. Your memory can be influenced without you even knowing it. to make an affirmation to speak the truth. The maker of either may be charged with perjury or statutory perjury (and NOT purgatory). Page 71 of 154 .

The witness must simply put their version before the court. who then sorts out any damage done in cross-examination Examination in chief (a) Purpose The purpose of examination in chief is to present evidence favourable to the version of the party calling the witness and to have the witness relate to the court what had happened. 3.. Section 164 of the CPA allows for any person found not to understand the nature and import of the oath or affirmation. he may take an affirmation instead.Historical important of oath and underlying rationale The oath has a long history. the state makes an allegation against the accused. We distinguish between three forms of questioning: 1. Remember that where a witness does not want to take the oath in the format it is couched in or because the witness has no religious belief (and therefore it has no meaning to them). When a witness is a child who cannot understand the importance of an oath. Examination in chief: person A. The rationale behind the oath is that it used to be unthinkable that someone would swear in front of God and lie. the judge must then admonish the child witness to speak the truth. the judge or presiding officer should admonish (caution) that person to speak the truth. However. Present position and role of cross-examination Today the importance of the oath has diminished to a large extent. Presentation of oral evidence is done by way of questioning and answering. to give evidence at criminal proceedings without taking the oath or affirmation. Party control is where the legal representatives play an active role and are in control of legal proceedings. If the person has been admonished and is found to falsely and wilfully state an untruth may be charged with perjury or statutory perjury.which won’t be told here. They decide whom they are going to choose as witnesses. In a criminal trial. 4 Presentation of oral evidence – questioning Principle of party control as opposed to judicial control The principle of party control applies in our system and judicial control applies in the continental system.. Page 72 of 154 . as many people do not have strong religious beliefs. In this scenario. the state will call these witnesses in the examination in chief to support the state’s version of events and to prove the allegations against the accused. who cross-examines the witness Re-examination: person A. An affirmation has the same legal effect as an oath. However. From there. who calls the witness Cross examination: the opponent (B). and in what order the witnesses should be called (unless the witness is the accused as they must always testify first). in our system cross-examination is a tool used to discover the truth. the witness is required to affirm that he will speak the truth and this affirmation has the same legal effect as an oath. The court is not allowed to cross-examine but questions may be asked to clarify issues. The advocates play the primary role in questioning. Section 41 of the CPEA has similar provisions. 2.

(e) Previous consistent statement – supra We have encountered this before (see 1st semester’s notes). The reason for this rule is to prevent a party from influencing the witness in the witness box. Page 73 of 154 . Cross-examination (a) Questioning of opponent’s witness This occurs after examination in chief. The earlier written statement serves a very limited purpose. (d) Impeachment of own witness – infra Generally a person who calls a witness is considered to hold him to be a truthful person. But sometimes it’s better to let the witness just yap without interruption. being to assist a party in examining a witness on facts falling within the latter’s knowledge. where the facts are really in issue then. it depends on the circumstances. The witness is under the control of the examiner. These generally may not be proved or quoted by the party conducting examinations (see Chapter 9). You could also impeach the credibility of a witness (see Chapter 25). The essence of a defence should in principle be introduced in cross-examination. Generally they are prohibited from being asked in examination in chief. This is because the witness may readily or lazily adopt the desired answer. They may also in limited instances and with strict requirements being satisfied. What about when a witness unexpectedly gives unfavourable evidence? The general rule is that a party may not cross examine his own witness unless the witness has been declared by the court to be a hostile witness.Cross-examination is a fundamental procedural right. Leading questions are those. be used to refresh the memory of the witness while he is in the witness box (see Chapter 24). When it comes to the crucial aspects of the case. Note that not all yes or no questions are leading questions. even if it is trying to protect a witness. while a question which suggests the specific tenor of the answer desired obviously is. Failure to allow cross-examination constitutes a gross irregularity. the witness will normallybe told to tell the court in his own words what happened. A question which legitimately suggest to the witness the topic of the answer required is not a leading one. Cross-examination is the name given to the questioning of an opponent’s witness. For example: did you see when the accused took the bicycle? The witness is not let loose to ramble on about irrelevant matters. (c) No leading questions A leading question is one which either suggests the answer or assumes the existence of certain facts which might be in issue. The court cannot prevent cross examination. but the examiner may not ask leading questions. There is no rule governing these two options. Almost invariably a party presents evidence in chief of his witness on the basis of some earlier extra-curial statements made by that witness. But you could call another witness to contradict the double-crosser. This is not an absolute rule.(b) Method The examination in chief takes the form of question and answer. which suggest a certain answer. We know that there are some instances where the previous consistent statements may be put to more use.

enabling proper evaluation. 2. Test the credibility of the opponent’s witness – now honesty comes into play. There are advocates in SA who appear to be very quiet and don’t get excited at all. For example. If you don’t do this. then you must question him on all these aspects and put it to him that your client has got a different version. (d) Duty to cross-examine There exists a duty on the cross-examiner to cross-examine on all aspects which are in issue. then the prosecutor will say that what you are telling us was never put to the state witnesses. The witness must be treated in a dignified way. but you can’t just keep questioning and questioning ad nauseam. If there is a disputed aspect and there is no cross-examination then it is deemed to be admitted (an adverse inference is drawn). Vexatious. relating to an aspect which is not at all relevant to the case: you can question him on a lie he told some time before and in totally different circumstances. You can also cross-examine a witness purely on issues of credibility. Try and get favourable results from the opponent’s witness – don’t antagonise him immediately. but their questions are deadly. oppressive or discourteous questioning The cross-examiner must control himself and courtesy must be maintained. so leading questions may be asked. Pointless repetition A cross examiner may ask a witness to repeat something to test reliability and credibility. in this regard that a witness may be perfectly honest but completely unreliable due to imperfect faculties. this inference cannot be drawn when dealing with an unrepresented accused. so then you must put your client's version to every witness. 3. abusive. Page 74 of 154 . This way the court gets the whole picture. For example if your client disagrees with what the witness has said.(b) Purpose 1. (e) Limits of cross-examination – duty of court to control 1. if the accused is unrepresented then there exists a duty on the court to assist the accused in conducting the cross-examination. Is the witness to be believed or not? 4. However there is a proviso. Also. which have nothing to do with the present case.the answer to such a collateral issue is final in the sense that you cannot then call other evidence to refute what the witness has said. Put your version to the witness and get him to respond – If the accused's version differs from what the state witness’s are saying. However. because the cross examiner can test the veracity. If you do extract something favourable it will be weighty as it comes from the opponent’s witness. 2.Remember. (c) Wide scope The ambit is much wider than examination in chief. Test the witness’s reliability. One mustn’t make the mistake to think that cross-examination must be aggressive to be effective.

the cross-examiner cannot put it to the witness. where a person elicits inadmissible evidence which is unfavourable to him or fails to object to such evidence. the dignity of the court must be maintained at all times. this is now under section 166(3) of the CPA. For now Van der Merwe notes that a witness may be cross-examined as to his memory. Inadmissible evidence You cannot put anything to a witness. The witness can be cross-examined on a collateral issue but there is the proviso regarding finality of the witness’s answer. You can’t put it to the witness that he previously said something earlier in a way that is misleading as to what he actually said. Cross-examination on the basis of a privileged statement is also inadmissible. Misleading questions Misleading questions to the witness will be disallowed. The safeguard is that such evidence must not be detrimental toward the accused. 7. If the accused made a confession and the confession was not admitted. 8. it generally does not become admissible. Court’s discretion to curtail – common law and S 166(3) CPA. Previous convictions and similar facts – S 197 CPA – supra We dealt with this in the context of character evidence and also similar fact evidence. As a rule previous convictions and similar facts evidence is not allowed but there are certain exceptions and if they apply then cross-examination can take place (SS 197 and 211 of the CPA). If the court is of the view that the crossexamination is protracting proceedings unnecessarily and thereby causing unreasonable delay in proceedings. and you want to put it to the witness. If the court is not satisfied with the answer of the cross-examiner then they can lay down limits and curtail the crossexamination on this aspect. Cross-examination as to credibility – infra This is when your questions deal only with the credibility of your witness. This is allowed. andthen the leave.In terms of these sectionsan accused who gives evidence may neither be asked nor required to answer any questions which tend to show that he has been convicted of or charged with another offence apart from the one for which he is standing trial. which is not admissible. They are dealt with in Chapter 25. If the witness said something earlier. 4. There are two situations where cross-examination as to credit may be followed up with contradicting evidence. you need to be very careful. honesty. This aspect and the rule that answers given to questions in cross-examination relating to collateral issues are final are discussed in detail in Chapter 25. he may be held to have consented to its admission. then the court can ask the relevance of the examination. The court plays a passive role. In criminal cases where an accused elicits unfavourable evidence which is inadmissible. but there are strict limits. For example: if the advocate for the defence is examining and puts a careless question (which brings an answer which is negative to the accused). This was dealt with in detail in Chapter 6. but had a common law ability to use its discretion to curtail crossexamination. reliability. Page 75 of 154 . The court will ask the witness. accuracy and consistency in relating his story. An answer to a question which solely concerns the credibility of a witness must be taken as final.3. 5. In civil cases. Dignity of court Although you can attack the credibility and reliability of the witness. There are instances where inadmissible evidence may be elicited. perception. 6.

Reexamination is conducted in line with the rules covering examination in chief (i. remains the witness of the party who originally called him. If matters areleft unexplained they may give a wrong impression or lead to false deductions.e. The court usually allows cross-examination of such a witness. he or she has to avoid trying to cross-examine and rather take a neutral and impartial role of a judge.The court should in a fair and impartial manner lead the evidence of any witness it may call. A witness who is recalled by the court may only be cross-examined with leave of the court. Where a part of a document was referred to in cross-examination. (a) Purpose The judge has authority intervene and to ask the witness questions at any stage but this is limited only to questions providing clarity on an issue that is unclear at that point in time. But. A recalled witness however. If a witness’s testimony was severally damaged in cross-examination then this process is used to soften the damage. so he or she will normally not play any leading role in questioning the witness. A party has a right to re-examine. leading questions are not permitted). re. In such a case. cross. Thus. but can control that cross-examination. It is limited as. (a) Purpose The re-examination is aimed at clearing up matter from the cross-examination and giving the witness a fair chance to explain what he said under the cross-examination. If evidence of a recalled witness is adverse to a party. it is often hard to overcome this damage in re-examination. that party should be given the chance to lead evidence in rebuttal. Examination by the court In our system. this is flexible. But new matters (that were not raised in evidence in chief) may only be canvassed with leave of the court. once the damage has been done in crossexamination. that whole document may be referred to in re-examination. which should then allow cross-examination on that new evidence. Page 76 of 154 . (b) Ambit The right to re-examine is not restricted to matters raised for the first time during crossexamination. But this is limited authority. Re-examination is called a retrieval process. or after) in order to clear up any uncertainty. because it depends on the circumstances. at any stage (in chief.Re-examination Re-examination follows cross-examination. the judge plays a passive role. the judge will normally ask the parties if they have anything else to ask in view of what has now come out under his question. The judge must at all timesstay unbiased and must in no way compromise his unbiased position. It is conducted by the party who initially called the witness. The judge can always ask questions.

(b) Ambit In S v Rall it was said that it is difficult and undesirable to define exactly the limits within which judicial questioning should be confined. Certain broad limitations were mentioned: (a) the judge must conduct the trial so that his impartiality and fairness are manifest to all concerned; (b) a judge should refrain from questioning in such a way or to such an extent as to lose judicial impartiality and objectivity; and (c) a judge should desist from questioning in a way which may intimidate a witness so as to affect his demeanour or credibility.If a judge oversteps his bounds, that amounts to an irregularity, and whether an appeal court will intervene depends on whether the accused suffers any prejudice. 5 The intermediary

This is a special procedure which can form a study on its own. The important aspects will be highlighted. Provisions of S 170A of the CPA This provision was introduced in order to address the plight of the child witness. It is a general provision that can be applied in all aspects involving children (under 18), but is especially important in the cases of children being molested.Section 170A(1) of the CPA provides that whenever criminal proceedings are pending before any court and it appears to such court that the proceedings would expose any witness under the biological or mental age of 18 to undue mental stress or suffering if he or she testifies, the court may appoint an intermediary in order to enable such witness to give his or her testimony. Section 170(A)(2)(a)says that all types of examinations of that witness must take place through an intermediary. Only the court may question the witness without going through the intermediary. The provision applies to a child witness in sexual cases who has a biological or mental age below 18. In such a case the court may then use an intermediary to present evidence. Previously the provision only mentioned biological age but it was changed after certain cases came before the court where the witness was above the age of 18 but had the mental capacity of, for example, a 7 year old. The intermediary may put the general purpose to the witness. Section 170(A)(2)(b)says that the intermediary may, unless the court directs otherwise, convey the general purport of the question to the witness. So the intermediary may relay the question in a different form to how it was asked, so long as the general purport is conveyed. If the advocate asking the question is not satisfied with the way it was relayed he may request that the exact question is relayed. The court then has the authority to decide whether the request should be granted. The courts may, mero motu, or in response to objections, direct the intermediary to put the original question or make another attempt at conveying the general purport. Or the court may itself direct the question as it sees fit. But the court must ensure that the nature of its question is such that it doesn’t ‘descend into the arena’.If a question is put to the witness, and the intermediary thinks that the question may not be understandable, the intermediary may change the question to make it understandable. Page 77 of 154

Usually, the prosecutor will request the court for an intermediary to be appointed if it seems that the witness is experiencing undue stress and is suffering. The defence has a right to respond to this evidence given by the witness. Once an intermediary has been appointed, the court may then also order the child and the intermediary to be put in a separate room where the witness will not be able to observe the accused and other role players in court. Although the child cannot see the accused and others, the accused and others are still able to observe the child witness and his or her demeanour. This will usually be done by CCTV. Note that once and intermediary is appointed it does not necessarily mean that they will be stationed in a separate room. However, in practice this will almost always be the case. The Act lists all the persons who can be appointed as an intermediary. In practice mostly social workers and psychologists but a whole list of professions are mentioned. Comparative Perspective from the USA (a) 6th Amendment – right to confront The 6th amendment right of the accused to confront the witnesses testifying against him is affected. This right to confront is interpreted in cases to mean a face to face confrontation i.e. the accused is entitled to see the witness who is testifying against him and the witness must be able to see the accused. Against this backdrop, lets look at the cases. (b) Compare Coy v Iowaand Maryland v Craig with S 170A. In Coy v Iowa, two 13-year-old complainants in a sexual assault case were called to testify against the accused. Legislation provided for a screen to be put in the court. The accused could ‘dimly perceive them’. The question is did the screen infringe the accused rights to confront the complaints? There are two important points about this matter. The first is that the screen prevented the accused from seeing the witness properly. Secondly the legislation applied irrespective of whether the child witness’s would suffer any kind of stress while testifying in the normal way (so they automatically applied the relevant section without inquiring whether they would suffer any kind of stress). The accused was convicted and it went on appeal to the Supreme Court. The Supreme Court found that the screen had infringed the accused’s right to confront his witness because there was no face-to-face confrontation. One of the judges specifically pointed out that given the correct circumstances; it would be possible to provide for something like the screen. The problem in this case was that the accused could not observe the complainants properly and the section was applied automatically. In Maryland v Craig similar legislation, but in a different state, provided for the witness to give evidence over a close circuit TV. This case differs from the Coy case in two respects. Firstly, in this case the legislation provided for one-way CCTV (i.e. the accused could properly observe the witness testifying but the witness could not see the accused). Secondly, the legislation also required the court to make a specific finding as to whether the witness would suffer under stress if she were to testify in the normal way.The court had to consider the state of mind of the witness first. The majority of the Supreme Court found this legislation to be in order. The court said that a face-to-face confrontation was not necessary. The accused could still observe the demeanour of the witness etc.

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In South Africa, we have similarities and differences to the above system. We have an intermediary who puts question directly to the witness even when the witness is separate from the court. Iowa legislation is quite far removed from our system. There, the accused can observe the complainants clearly via a television channel. Furthermore, according to our legislation, the court must first make a specific finding whether the witness would suffer undue stress and suffering.The Maryland legislation is much closer to this provision - however, there is one very important difference between our procedure and both procedures in America: in the US legislation, there is no provision for anintermediary and questions are put directly to the witness by counsel. Constitutionality of S 170A (a) K v Regional Court Magistrate This case was a full bench decision in the Eastern Cape. A 16 year old girl was raped and the state wanted to appoint an intermediary.But when the state applied for this appointment, the defence raised the objection that this procedure is unconstitutional. It was then referred to the full bench of the high court.In this case the defence raised two grounds to say that this provision is unconstitutional as it: 1. Infringed of the accused’s right to a public trial The mere fact that a person is in another room doesn’t make the trial not public. There was thus very little substance to this contention. 2. Infringed the accused’s right to cross-examine, which is part and parcel of the accused’s right to a fair trial. The cross-examiner cannot question the witness directly and is not face to face with the witness. The court can direct the question to be put directly and correctly to the witness. The intermediary will then have to put the question in the required wording. Given these problems, can one then say that there is an infringement of the right to a fair trial? The court decided that despite the argument put forward, the provision does not infringe the right to challenge the witness because the direct cross-examination of the witness is not essential. The provision serves a worthy purpose and the defence can still observe the witness. The right to a public trial entails that the public has access to the courtroom and the use of an intermediary does not impact this. Furthermore, the right to cross-examine is not an absolute right and so they concluded that this procedure does not infringe the right to a fair trial. The face to face confrontation and the right to question the witness directly are the essential features of cross-examination. In addition, the wording of the questions may be changed. Wouter thus thinks that this can be criticised, because it does infringe the right to challenge the evidence by cross-examination. Butcan it be justified? In this situation, it can be justified, as it protects child witnesses. Additionally, there are measures to protect the accused, as he may observe the witness

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The court found this to demand that a child be exposed to as little stress and mental anguish as possible.and if he is not happy with the way that the question is put to the witness. The high court judge was mainly concerned with the wording of s 170 A ‘if there would be undue stress or suffering’ if the child were to testify in the normal way. in the other case an intermediary was used. that were before the North Gauteng High Court. and therefore whether the CC can entertain the issues? This is not important for our purposes. For some reason. The question in the Constitutional Court was whether it was correct for the trial court to raise this issue mero motu. The HC judge also had a problem with ‘may appoint’ intermediary. similar. unless there are cogent reasons not to appoint such intermediary. (b) DPP v Phaswane. He raised various aspects of the act. It is not clear whether or not the Constitutional Court will confirm the unconstitutionality of S 170A(1) on the grounds advance by Bertelsmann J. Both cases dealt with sexual offences and application of intermediary proceedings. in which event the court shall place such reasons on record before the commencement of the proceedings. the trial court judge raised the question whether the procedure was Constitutional. The court declared S 170A(1) unconstitutional to the extent that it granted a discretion to the court to appoint or not to appoint an intermediary when a child witness is to be called at a criminal trial. whenever criminal proceedings are pending before any court in which any witness under the biological or mental age of eighteen years is to testify. S 28(2) states that a child’s best interests are of paramount importance in every matter concerning the child. He averred that the court is obliged to call an intermediary.Van der Merwe suggests that s 170A(1) is not incompatible with the constitutional injunction ‘best interests of the child’. Bertelsmann J held that s 170A(1) was unconstitutional on account of s 28(2) of the Constitution. the court shallappoint a competent person as an intermediary for each witness under the biological age of eighteen years in order to enable such witness to give his or her evidence through an intermediary as contemplated in this section. In the one case. In his view the section should be applicable to all children under 18 and that there need not be an initial finding about whether it will cause undue stress. The main question before the court was whether s170A dealing with the appointment of the intermediary was consistent with S 28(3) of the Constitution that deals with the Page 80 of 154 . S v Mokoena There were two cases. It was accordingly ordered that S 170A(1) should read: Subject to subsection (4). an intermediary was not used. mero motu (the court raised the issue itself). The courts have sometimes taken ‘undue’ to mean ‘excessive’ and it is this interpretation that creates the constitutional problem. ‘Undue’ must be taken to mean ‘not in accordance with what is just and right’ in order for the threshold not to be set so high as to ignore the standard of the best interests of the child in each case. he can ask that the question be put in its original wording. and the court may appoint a competent person for a witness under the mental age of eighteen years in order to give his or her evidence through that intermediary. being unconstitutional because they were not in line with S 28 of the Constitution because they do not put the interests of the child as paramount. The individualized test of ‘undue mental stress or suffering’ means that in each case the best interest of the child concerned should be taken into account.

but for the sake of clarity. Not ‘extraordinary’ stress. It is also needed for individualised justice. The purpose of the provision is to protect vulnerable witnesses. The trial court was of the view that. that it was in conflict with S28(2) of the Constitution.interests of the child and holds this to be paramount. The CC decided for the sake of clarity. Thus the younger the child.The CC found that the trial judge was not competent to raise most of the issues he raised. the meaning attached in the trial court is therefore utter crap. The following comes from the judgment in S v Stefaans 1999 (C):    The possible dangers the use of an intermediary might pose to the accused’s right to a fair trial. mental abuse or insult to the witness have occurred The giving of evidence in court is inevitably stressful. then other court should take the interpretation which is in accordance with the constitution. the more likely the stress will be “undue”.The only issue he could raise referred to the one case dealing with S 170(1)A. particularly S28 (2). The discretion must be applied correctly. Page 81 of 154 . Principles and considerations in the application of s170A The courts should consider the following factors when applying s170A. this was because the section has been incorrectly applied. dealing with intermediary. Where the court is confronted with legislation and there are two possibilities. because this section only kicks in when there is undue stress and that the court only has a discretion. and this makes it constitutional.For example a young. 2. even where the prosecutor does not make application. The meaning of ‘undue’ mental stress must be construed in light of S 28(2). The child does not first have to be exposed to undue mental stress. and the fact is that the necessity of an intermediary varies from witness to witness. shy witness versus 17-year-old angry witness are very different. It is context sensitive etc. But on a side note. – see above) 4. Judicial officers are under a duty to look out for the best interests of the child. The CC concluded that the trial court’s findings were incorrect. and therefore should take it upon themselves to make use of this provisionif it seems to be required. 3. (By implication. and held that. the court decided on all the issues before it. It is circumscribed by the Constitution. the proper way to interpret legislation is through the use of the golden rule. The section will find ease of application where physical trauma. to answer all the issues raised by the trial court. Is the discretion unconstitutional? The ‘discretion’ is not a full one. We do not need to go into the issue of condonation or the proper way to go about statutory interpretation. 1.. A pre-trial assessment should be conducted. if there were problems in practice. This is why the CC had to consider what the meaning of ‘undue stress’ is. “Undue” is seen as something more than the ordinary stress associated with the procedure.

In S v Fthe court said that the all the requirements of (a) – (c) must be met as well as one of the requirements of either (d) or (e). with the court ascribing the plain meaning of the text to the section. where doubt seems to exist. in order to ensure a fair and just trial. S 158(3) provides that a court may only make such an order where the facilities are readily available or obtainable and if it appears to the court that to do so would either: (a) (b) (c) (d) prevent unreasonable delay. If the application IS opposed. But the section also contains a proviso that the prosecutor and accused retain the right to question and observe the demeanour of the witness. The conflict between S v Fand S v Staggiewas resolved in S v Domingo. Where the accused is unrepresented. If the section is invoked. save costs. the presiding officer should require appropriate evidence in order to allow him to exercise proper discretion as to whether or not to allow the application. the application is to be treated as opposed. be convenient. summarised for your reading pleasure! 6 Evidence by means of closed circuit television or similar electronic media S 158(2)(a)of the CPA allows for a court – subject to S 153 – on its own initiative or on application by the public prosecutor. such application might be more readily granted. Page 82 of 154 . The court agreed with the Staggie interpretation that all the requirements should be read disjunctively. Note: Wouter has said we should read over the rest of this chapter in the textbook. the clear example being those over the age of 18. be in the interest of security of the state or of public safety or in the interests of justice or the public. It was really down to a matter of interpretation of the statute. or (e) prevent the likelihood that prejudice or harm might result to any person if he or she testifies in the proceedings. S 158(4) allows the court. the presiding officer should be mindful of the risks that are posed to the efficacy of cross-examination by the use of the intermediary. his or her rights to oppose the application should be carefully explained and. to make the giving of evidence per s 158(2) subject to such conditions as it deems necessary. in S v Staggie the court said that the approach from S v F was ‘clearly wrong’. The court also pointed out that the fifth requirement (e) compliments S 170A by making allowance for persons who aren’t covered by that section.     A witness who knows the accused and is still willing to testify is less likely to be “unduly” affected by the giving of testimony. If application to use the section is apposed. to order that a witness or accused give evidence by means of closed circuit TV or similar electronic media. Recall also that the court cannot disallow cross-examination. Here it is. The court held that all the requirement (a) – (e) should be read disjunctively. The person in respect of whim the order is made must consent thereto. Furthermore such an order may be made on the application of an accused or witness. However.

8 Evidence on commission in civil cases Supreme Court Rule 38(3) provides that a court may. A person who asks for a commission is at a disadvantage in that the weight attached to such evidence is lessened by the court not being able to observe the witness’s demeanour. or appear before such magistrate. The court may add its own questions. A list of proposed questions is drawn up by the parties. and examine the witness. The rights of parties to proceedings where a commission is issue in terms of S 171 are governed by S 172. Magistrate’s courts may issue commissions in terms of S 53 of the Magistrates Court Act. expense or inconvenience the court may dispense with such attendance and issue a commission to any magistrate. Courts will normally grant a commission rather than lose the evidence. and returns the records to the original court.7 Evidence on commission in criminal cases Section 171(1)(a) of the CPA provides that whenever criminal proceedings are pending before any court and it appears to such court on application made to it that the examination of any witness who is resident in South Africa is necessary in the interests of justice and that the attendance of such witness cannot be obtained without undue delay. in the case of an accused who is not in custody or in the case of a private prosecutor. (b) The witness concerned must give evidence under oath or affirmation. where it appears convenient or necessary for the purposes of justice. The specific matter. The interrogatories are then sent to the court having jurisdiction where the witness is present. make an order for the taking of evidence before a commissioner. In magistrates courts the appropriate section is S 52 of the Magistrates’ Courts Act. Right of representation and cross examination will be afforded at the hearing of the commission. with regards to which the evidence of the witness is required. This applies generally in civil cases as well. He must then take down the evidence. Te interrogatories will be read as evidence at the trial and form part of the evidential material. forms part of the record of the court that issued the commission. in person. which provides that the parties may: (a) transmit interrogatories in writing which the court issuing the commission may think relevant to the issue. He or she must then read it and sign it as must the magistrate. and the magistrate to whom the commission is issued. Page 83 of 154 . This court then summons the witness. as perRobinson v Randfontein Estates. either by a legal representative or. The principles governing the issuing of interrogatories are similar to those for the issuing of commissions. The magistrate to whom the commission is issues must proceed to where the witness is or common the witness before him. records the answers. such evidence. 9 Interrogatories In civil cases interrogatories may be granted in terms of Supreme Court rule 38(5) and S 32 of the Supreme Court Act. puts the questions to him. However a person is more greatly disadvantaged when refused a commission as the evidence won’t be put before the court at all. in so far as it is admissible. The parties to the proceedings have the right to inspect the evidence. shall examine the witness upon such interrogatories. must be set out in the application.

his evidence may be read if it is apparent from the record that the opposing party had the opportunity to cross-examine the witness. a Supreme Court has the power to order evidence to be taken on commission on the application of a person who alleges that he will become entitled to an interest in some asset upon the happening of a future event. 11 Evidence in former proceedings Section 214 of the CPA allows for the reading of a witness’s evidence at a preparatory examination at a subsequent trial if it is proved to the satisfaction of the court that the witness is dead or incapable of giving evidence or too ill to attend the trial or is being kept away from the trial by the means and connivance of the accused and if the evidence was recorded by a magistrate or regional court magistrate. In R v Stolz it was held that the discretion should be exercised sparingly and. the court should be very slow to admit such evidence. If a witness gave evidence at a preparatory examination and cannot be found after a diligent search or cannot be compelled to attend trial. where the nature o the evidence would depend on the credibility of the witness. but who cannot bring an action before the event occurs. Page 84 of 154 . 12 Preserved evidence In terms of S 23(1) of the CPEA and S 19(1)(c) of the Supreme Court Act. The court has discretion as to whether to allow production of the evidence of a witness who cannot be found.10 Evidence by way of affidavit Evidence received by way of affidavit in terms of SS 212 and 212A of the CPA and S 22 of the CPEA is properly discussed in Chapter 15. It must also be shown that the accused or the state (as the case may be) had a chance to cross-examine the absent witness.

a voice recording. For example. All objects must be labelled and numbered. There may be situations where a court. However. for example. In some instances. a scar on the accused’s face. we love it). blood tests (see below). This is specifically important for any appeal that may follow. 1. for example.Because there is no other means to present it to the court it is prepared in a document. The court should not attempt to make any observations which require expert knowledge but may itself conduct any test where expert assistance would be superfluous. Collier says that these are objects which are ‘hard and physical’ (yes. it was held that ‘real evidence is an object which. a photo. broadly speaking. oral evidence dominates our procedure). the real evidence will be contained in a document or similar material. If. becomes. a letter or even the appearance of a witness in the witness box)’. fingerprints. the length of the blade of a murder weapon was not described in the record.1. it will be received as an exhibit. video recordings. Thus. the appeal court may rule against the court a quo. 1 Introduction In S v M. and if there is no other rule of evidence demanding exclusion.19 – REAL EVIDENCE There are no prescribed cases for this section. upon proper identification. call a witness who can identify the object. If such properly identified real evidence is relevant. it can refer to a situation where the court goes to the scene (such as an inspection in loco) where certain observations are made and recorded. a tape recording. charts. (Remember. having received real evidence for its inspection and assessment. such as measuring exhibits. of itself. this refers to the situation where a physical object is relevant to the facts in issue (this is the court’s test for admissibility) and a party wants to present that physical object as evidence in the case. evidence (such as a knife. The real evidence is contained in this material – the material is used for the sake of convenience or necessity (to enable evidence to be placed before the court). in the absence of a formal admission by the opponent. The party who wishes to produce real evidence for inspection by the court must. duly labelled and numbered and available for inspection by the court. Page 85 of 154 . can or should also receive expert evidence to enhance or contribute to the court’s interpretation of the evidence. Real evidence usually owes its efficacy and relevance to the testimony of the witness who identifies the object for what it purports to be. it can go wider than this . Alternatively. The court’s function and the limits of its observations The court should describe the exhibit carefully so that the details may be embodied in the record.It can also refer to a situation where the court observes certain features of a person.

a party’s reliance of reported real evidence may affect the weight of such evidence and may. 3 Appearance of Person A person’s physical appearance and characteristics are considered to be real evidence. in addition to his identification of the real evidence and other oral descriptions or explanations of such real evidence. also presents the evidence itself to the court for inspection. The resemblance of a child to reputed parent The resemblance of a child to his reputed mother or father may afford some evidence of parentage. although the value of such evidence is marginal. if in criminal proceedings the age of any person is a relevant fact and there is no or insufficient evidence available at the proceedings. Immediate real evidence is received where the witness. Physical appearance as real evidence of approximate age The physical appearance of a person may serve as real evidence of his approximate age. have an adverse effect on the case of the party concerned. However. In terms of S 337 of the CPA. Page 86 of 154 . but the relevant real evidence is not produced in court. The evidence may carry slightly more weight if the parents are of different ethnic origins and the child is in appearance of mixed origin. the court may. Court’s observation of the witness for the purpose of determining competency to testify Where the issue is whether a witness is (on account of his mental inability) incompetent to testify. Identity may be established by a person’s physical characteristics. The court may examine wounds sustained by a person and should describe its observations for purposes of the record. allow the witness to testify so that the court can observe him and form its own opinion on the witness’s ability to testify. (SS (b) makes it clear that an estimation of age based on appearance is not permitted where the precise age of the accused is an element of the crime). for the purposes of determining this issue. The situation where relevant real evidence is not adduced Reported real evidence is received when oral evidence is given describing relevant real evidence.1. The estimated age will be deemed correct unless it is subsequently proved that the estimate was incorrect (S 337(a)) and the accused could not have been lawfully convicted of the offence with which he was charged if the correct age had been proved (S 337(b)).2. where appropriate. Reported real evidence is admissible. the presiding officer can estimate the age of such person by his appearance or any other information which might be available. We now deal with different types of real evidence: 2 Weapons used to commit the crime We all know what these are.

Films and Video Recordings Photographs may be produced as real evidence of matters such as injuries or accident damage. Once a court accepts that the witness is an expert it will. The recording must be sufficiently intelligible. so long as it satisfied the requirement of relevance. linking the accused with the commission of the crime. 6 Photographs. He then sends off the folien and fingerprints taken from the suspect to a police expert. subject to any dispute as to authenticity or interpretation. Page 87 of 154 . In other instances there must be evidence that the photograph is a true likeness of the items shown in it. The usual manner in which fingerprint evidence is obtained is as follows:       A policeman will lift fingerprints by means of folien (fingerprint lifting material) from the object. Witnesses may also identify persons by examining photographs. A photo may also be used where an item is too bulky to produce in court. If a transcript of a recording is produced as evidence. the transcript must be identified by the person who made it and there must be evidence to identify the speakers. 5 Fingerprints Evidence that fingerprints were found at the scene of the crime or on a particular object is often of strong probative value. The evidence of the comparison may be given orally or by affidavit. In S v Mpumlo. The expert will then compare the fingerprints of the suspect to those found at the scene. accept his evidence Footprints do not require explanation by an expert and a court is not obliged to accept an opinion as to the identity of footprints. The court must be satisfied that it is shown prima facie that the recording is original. the court must be satisfied that the transcript is accurate. A photograph is a document in terms of Part VI of the CPEA (S 33) and is admissible both civil and criminal proceedings if the photographer has acknowledged in writing that he is responsible for its accuracy. The principles regarding the use of films as real evidence are the same as those for photographs. as a general rule.4 Tape Recordings Tape recordings may be admissible as real evidence. The main danger concerning this type of evidence is the possibility of editing or alteration of the tapes.the court held that a video film was not a document but was real evidence which. could be produced. S 232 of the CPA expressly allows for the production of photographs. The expert will mount enlarged photos of the two sets of prints side by side and mark the points of similarity.

The power to hold inspections in locois conferred on a court in criminal cases by S 169 of the CPA and in civil cases by Supreme Court Rule 39(16)(d) and Magistrates Courts Rule 30(1)(d). in order for the parties to be afforded the opportunity to make submissions and lead evidence to correct any observations made by the court which they deem incorrect. If witnesses point out items or places during the inspection. That the recording was faithful. The inspection should be held in the presence of both parties. 7 Voice Samples Voice samples are admissible. d. Reliability need only be established later – all that need be established for admissibility is that prima facie the recordings had some probative value. The court will do this to understand the evidence better. It was held that the state had to prove the following factors beyond a reasonable doubt: a. which would be used to compare to other voices. c. Page 88 of 154 . f. In S v Baleka it was held that sound recordings and video recordings. but for the quality of the voice. The court will adjourn before going to the relevant place to observe certain things there. e. Whatever is observed there will be read into the record. It argued that these were not for the content of what the accused said. That they related to the incident in question. it may enable the court to follow the oral evidence more clearly 2. are real evidence to which the rules relating the documentary evidence are not applicable. and a combination of the two. the State wished to take voice samples of the accused. 8 Inspections in loco A court has discretion to hold an inspection in loco to observe the scene of an incident or the nature of an object which cannot be produced in court. In the Levackcase. they should subsequently be called or recalled to give evidence on what was indicated at the inspection. That no interference had taken place. That the identity of the speakers was identified. and That the recordings were sufficiently intelligible.In S v Ramgobinthe court held that there was no difference in principle between the admission of audio tapes and video recordings. An inspection in locois designed to achieve two main purposes: 1. it may enable the court to observe certain real evidence in addition to the oral evidence The inspection should take place before the evidence and arguments have been completed. Originality. b. The court in this case was unable to agree with the stringent test for admissibility laid down in Ramgobinbecause it is absurd to exclude evidence because it is potentially dangerous.



Comparison of disputed writing with any writing proved to be genuine may be made by a witness. Such writings and evidence of the witnesses may be submitted as proof or otherwise of the writing in dispute (S 228 of CPA and S 4 of CPEA). The writing submitted for comparison is considered real evidence. An expert in the comparison of handwriting is known as a ‘questioned document examiner’. Procedurally, he will put the different handwritings on a chart to compare the two. The court is not bound by the expert’s opinion. A layman may give evidence concerning the comparison of handwriting that he knows. A court may also draw its own conclusions from its own comparisons. 10 Blood Tests, Tissue Typing and DNA Identification (‘DNA Fingerprints’)

The results of blood tests may be used in litigation. This is usually done in cases of driving under the influence of alcohol or driving with an excess blood-alcohol level. In paternity cases, the most a blood test can do is give a negative result stating that the alleged father did not spawn the child. The HLA tissue typing test can be used to prove paternity to a much more certain degree than a blood test. A far more precise method can be found in DNA’ fingerprinting’, which can be used for a number of other forensic purposes. It is especially useful to identify the perpetratorin rape cases, and can be used to determine the identity of a deceased person where other reliable means are no longer possible. Because each person has a unique genetic code, this evidence plays such an important role of identifying persons. 11 Linguistic Fingerprinting

The idiolect (‘jargon’) of each person is unique. They use certain words (active or passive, writing style, use of punctuation which may differentiate them from other people.

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20 – DOCUMENTARY EVIDENCE There are no prescribed cases in this section too, Go Province! 1 Introduction

The rules regulating the admission of documents where the purpose of admission is to prove what the document contains (i.e. its content) and not to prove that the facts contained in the document are true. In the latter case, the evidence will inevitably fall to be hearsay, and admissibility will be regulated by S 3 of the LEAA, Part VI of the CPEA, or some other statutory provision (See section 15 above). The admission of documents for non-hearsay purposes is governed by the common law and a few statutory provisions. Thus, it’s important to know what the document is, which differs from how we deal with real or oral evidence. The content of the document is what is relevant and it’s the content which serves as the evidence. Despite this, a document can also serve as real evidence. For example, in the instance of a stolen document, we will not care about the content of the document but whether or not it can be admitted at all. Once it can be admitted, its content will then be looked at. This, strictly speaking, would not serve as documentary evidence until such time as it has been admitted. 2 What is a ‘document?’

There is no single common law definition of what constitutes a document. Case law gives a wide description - in R v Daye, a document was held to be ‘any written thing capable of being evidence’, no matter what it is written on (i.e. it doesn’t necessarily have to be contained on paper). ‘Document’ has also been statutorily defined, and varies between statutes. For example, S 33 of the CPEA defines a document as including ‘any book, map, plan, drawing or photograph’ and S 221 of the CPA defines a document as including ‘any device by means of which information is recorded or stored’. The Electronic Communications and Transactions Act accommodates developments in technology by creating a new type of evidence, namely, a ‘data message’ which is defined as ‘data generated, sent, received or stored by electronic means and includes....a stored record’. 3 Admissibility Requirements

In order to get a document admitted into evidence there are generally three rules (rules 2-4) which must be complied with: 1. The content of the document must be relevant(this, like all evidence is a standard requirement, Wouter mentioned this in class, it is not one of the three main requirements, which come from the textbook); 2. The original document must be produced; 3. The document must be authenticated; and

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4. Where applicable, the document must be stamped in accordance with the Stamp Duties Act 77 of 1968 Rules 2-4 are subject to exceptions. The content of the document This is pretty self-evident. The original document It is not always clear how to identify an original document, which must be produced for the documentary evidence to be admissible. Normally, the document is handed in through a witness. The document is labelled and given a letter of identification – for example, ‘exhibit A’. Originality would appear to correspond with the original source of recording. This is in order to avoid error or falsification. The rationale underlying this requirement is also consistent with the ‘best evidence rule’ which provides that the original of a document is the best evidence of its contents. However, as noted in Welz v Hall, ‘...the rule is an ancient one...going back to a time before faxes and photocopying machines, when making copies was difficult and such copies as were made often inaccurate. Under those circumstances courts, naturally, insisted upon production of the original document as being the most reliable of its contents’. Nevertheless, the original remains a requirement in our law, a consequence of which is that secondary evidence may not be used to prove the contents of the document. However, if secondary evidence is the only means of proving the document, it may be admitted to prove the contents of a document in the following circumstances: 1. 2. 3. 4. 5. The document is lost or destroyed (factual evidence must be presented to prove this); The document is in the possession of the opposing party; The document is in the possession of a third party; It is impossible or inconvenient to produce the original; or It is permitted by statute 6. The production of the document would illegal (i.e. it is kept somewhere from where it would be illegal to remove it)(this was added from class notes) In Singh v Govender Brothers Construction,the issue on appeal was whether the magistrate was correct in allowing secondary evidence of a contract in the form of a fax of the original contract. With regard to (1) above, the court said that a document will be said to be lost ‘when although its existence is presumed, the precise place of its existence cannot be remembered by anyone who can reasonably be expected to have known it, and it cannot be found despite adequate search’. With regard to (2) above, it was held in Singh that mere notice to produce and non-production of the document will not, on its own, justify the reception of secondary evidence. Where the document is in the possession of the opponent, the opponent must be given a reasonable opportunity to comply with the notice, and the notice need not be formal. It remains disputed whether notice can be implied.

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b. it must be established. if a document is older than 20 years and Page 92 of 154 . before secondary evidence can be led. v. unless the document is one which proves itself. the attesting witness. ii. that a subpoena duces tecum was served on the third party to produce the document and that the third party refused to do so. a witness will be called to testify as to the documents authenticity – for example. the writer or signatory thereof. e. the various ways a document can be authenticated were described as follows: ‘The law in relation to the proof of private documents is that the document must be identified by a witness who is either: i. the person who found it in possession of the opposite party. any copy thereof or extract therefrom proved to be an examined copy or extract or purporting to be signed and certified as a true copy or extract by the officer whose custody the original is entrusted. An example of secondary evidence permitted by statute is S 18(1) of the CPEA which reads: ‘whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from proper custody. Is produced under a discovery order. f. The impossibility or inconvenience of producing the original document is ascertained on a case by case basis. Usually. iv.e. This can be done in a number of ways. unless it: a. In the Howard & Decker case. the person in whose lawful custody the document is. a handwriting expert. or Is one which may be handed in from the Bar. in terms of S 37 of the CPEA.’ The effect of S 36 of the CPEA is that the only instance in which the evidence of an attesting witness is required to prove a document is in the case of a will. There are a number of statutory provisions which circumvent the common law requirement of proof of authenticity. c. depending on the purpose for which it is tendered. or Is produced under a subpoena duces tecum. iii. The requirement that a document be authenticated generally means no more than tendering evidence of authorship or possession. or Is an affidavit in interlocutory proceedings. In all other cases the document may be proved by evidence identifying the author. by testifying that he drew it up. or May be judicially noticed by a court. i. or Is admitted by the opposite party. shall be admissible in evidence’ Authenticity It is necessary to show that the document is what it purports to be. on the basis of a recognised privilege. Secondary evidence will also be allowed where the third party resides outside of the jurisdiction of the court and is uncooperative.Where the document is in the possession of a third party. For example. signed it etc. d.

the document may be admitted. Parties must then allow inspection of the documents discovered except for those covered by privilege (such as that between attorney and client). S 234 states that a document written by a state official does not need to be the original. If the fiscusinterests can be met retroactively. S 231 of the CPA states that documents generated in public office do not need to be authenticated.has been kept in proper custody it will be rebuttably presumed to have been duly executed. However. in particular. unless expressly provided in any other law. shall not be produced or given as evidence or made available in any court. Section 222 of CPA makes this applicable to criminal proceedings. Page 93 of 154 . 4 Civil Discovery In civil proceedings. litigants may be called upon to ‘discover’ all documents they have in their possession or under their control which relate to the action. this requirement is not applicable to documents submitted in criminal proceedings. no document which is required to be stamped under the Act shall be made available for any purpose unless it is duly stamped. and. and in civil proceedings. If a party fails to discover a document they may then be barred from using the document at trial. The Stamp Duties Act Section 12 of the Act states that. the failure to have the document stamped will not constitute an absolute bar to admissibility. The rationale for requiring compliance with the Stamp Duties Act appears primarily to protect the interests of the fiscus.

Electronic evidence can be considered hearsay in two respects: 1. As a response to the difficulties confronting electronic evidence over the years. Because of this. Data is digital if it is in a format created or stored on an electronic device such as a computer or the internet.21 – ELECTRONIC EVIDENCE AND RELATED MATTERS Wou has declared this chapter is NOT in the exam . if you can’t have the person who authored the documentary evidence testify in court. The credibility of the computer process (e. electronic documents. it must not be hearsay). The credibility of a person holding a stored record is not apparent (a typed up account of something is an entirely human intervention and. DVDs. and thus there have been legislative interventions. can we rely on FNB’s banking system?) It is with this second type of evidence that the courts have taken a very exclusionary approach. CDs. Digital data is inherently problematic for the law of evidence in that it is easy to manipulate or alter. and thus the admissibility of such evidence is constrained by the requirements of admissibility applicable to documentary and hearsay evidence. it becomes hearsay. MP3s and so on. b) To the extent that the hearsay rule may apply to computer-related evidence. the Electronic Communications and Transactions Act (ECTA) was recently passed. Remember. Wouter the ou ballie calls this ‘machine generated evidence’. Examples include digital photos.g. where the evidence is fixed and permanent. an automated transaction) is not apparent (for example. The ECTA gives parties the opportunity to lead evidence of this nature in court. just as if it was done in handwriting. but must also overcome the rules relating to authenticity and the production of the original version.e. the credibility depends on the author being there) 2. It became important to have a ‘paper trail’ to show the integrity of the digital evidence in court. as the CPA and CPEA provide exceptions to the hearsay rule Page 94 of 154 .winning! 1 Introduction This chapter deals with electronic evidence in the form of digital data. electronic evidence must not only be relevant and otherwise admissible (i. Traditionally. the courts’ approach to electronic evidence has been conservative and exclusionary.Note that the provisions of the ECTA that we will look at are not a picture of clarity and are under review by the SA Law Commission. Digital devices differ from analogue devices such as vinyl records. 2 The Position Prior To The ECTA The position prior to ECTA is still relevant in those circumstances where: a) The ECTA does not apply retrospectively. photographic film and so on.

In the Narliscase. computer related evidence was generally regulated in terms of three pieces of legislation: the Computer Evidence Act. in certain circumstances. the provisions of the CPA and CPEA may still be called upon to assist with the admissibility of specific electronic evidence. Section 221 provides for certain trade or business records to be admitted into evidence as proof of their contents if: Page 95 of 154 . Very mature.The Act contained overly technical requirements. but not easy enough. they welcomed its repeal. The Criminal Procedure Act (CPA) The CPA regulates the admissibility of computer printouts of a computer that recorded or stored information. The Computer Evidence Act(now repealed) The Act provided that an authenticated computer printout was admissible as evidence of any fact recorded in it where direct oral evidence of the fact would be admissible. The court could attach as much or as little evidential weight to the printout as the circumstances of the case dictated. After everyone realized how lame and unsuccessful it was. S 34 of the CPEA provides for the admissibility. ‘Authenticated’ meant that the printout must have been accompanied by an authenticating affidavit and other supplementary affidavits necessary to establish the reliability of the information contained in the printout. Troubled by the decision in this case. This made it easier to admit evidence. was passed. Thus in 1983. Civil Proceedings before the ECTA 1. which was to apply to civil proceedings. which were difficult to meet. the CPEA and the CPA. The courts’ approach to the admissibility of computer printouts in criminal proceedings is found in S 221 (business records) and S 236 (banking records). Criminal Proceedings before the ECTA 1. It also only applied in civil proceedings. Civil Proceedings Evidence Act Inadequacies in the law of evidence relating to computer generated evidence became apparent for the first time in 1976 case of Narlis v South African Bank of Athens. The ECTA repealed the Computer Evidence Act. the Computer Evidence Act. However. the South African Law Commission recommended that a new statute be drafted to deal with computer generated evidence. SA bank of Athens tried to show indebtedness by showing a print out of a statement. Was this admissible in terms of S 34? The court held that a computer is not a person and that computerised bank documents establishing the principal debt did not constitute a statement made by a person and therefore did not prove the contents thereof. 2.Prior to the ECTA. of a statement made by a person in a document.

EDI. The Act defines data as ‘electronic representations of information in any form’ (covers a paper printout but also allows for other forms of output in court e. In S v Harper. internet.e. a document includes any device by means of which information is recorded or stored and a statement includes any representation of fact whether made in words or otherwise. and (b) a stored record. the court called for ‘this lacunae in our law be filled and for new legislation relating specifically to computer evidence in criminal cases to be considered and promulgated. "Data Message" meansdata was held that information obtained from computer printouts would be admissible only if the function of the computer was purely passive in that it merely recorded or stored the information (i.g. or cannot reasonably be expected to recollect the matters dealt with in the document.’ Such legislation is contained in S 15 of the ECTA which came into operation soon after Mashiyi.e. computers are active in that they sort and collate information and make adjustments. We can thus take our computers to court and produce evidence there. In this case. intranet. email.a. In terms of the Act. sms etc. out of the country. Thus this broad definition includes all computer generated or stored records. sorting.and S 221 was read to exclude computer printouts that contained information ‘obtained after treatment by arrangement. S 15 goes further than the previous statues in dealing with electronic evidence. not computer processed records). Page 96 of 154 . where the voice is used in anautomatedtransaction. 3 The Electronic Communications and Transactions Act 25 of 2002 S 15 of ECTA The ECTA. where the operations carried out by it are more than mere storage or recording of information. physically or mentally unfit to attend as a witness. received or stored by electronic means and includes: (a) voice. a data-projector). The decision in Harperwas applied in S v Mashiyi. the person who supplied the information is dead. and b. cannot be identified or found. However. sent. moves beyond the concept of ‘computer printouts’ and focuses on the terms ‘data’ and ‘data messages’. synthesis and calculation by the computer’ (i. "Data" means electronic representations of information in any form. Thus the definition of ‘document’ was held to not be wide enough to cover a computer. the most recent statute regulating this kind of evidence. they are compiled in the course of business from information supplied by persons having personal knowledge of the matters dealt with in the document. computer processed records).

any other relevant factor. the reliability of the manner in which the data message was generated. or b. The existing rules disallowing this kind of evidence were overly prejudicial. (3) In assessing the evidential weight of a data message. regard must be had toa. the reliability of the manner in which the integrity of the data message was maintained. b. copy. S 15 helps us overcome the hearsay rule.The principles which inform S 15 are: 1. This section provides that: (1) In any legal proceedings the rules of evidence must not be applied so as to deny the admissibility of a data message in evidencea. (4) A data message made by a person in the ordinary course of business. 3. Thus. printout or extract. that message can be used in court. criminal. (2) Information in the form of a data message must be given due evidential weight. or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person. c. the manner in which its originator was identified. Admissibility and the evidential weight of these messages are explicitly dealt with under this section. It applies to all legal proceedings. ‘Functional equivalence’ principle: an electronic document must be the functional equivalent of a paper document. For example. the rules of a self regulatory organisation or any other law or the common law admissible in evidence against any person and rebuttable proof of the facts contained in such record. and d. Page 97 of 154 . you should give the sms the same value as its paper equivalent. There are thus various hurdles to overcome if we are to rely on S 15. 2. on the grounds that it is not in its original form. The principle says that when you have law like this. if it is the best evidence that the person adducing it could reasonably be expected to obtain. What is important is functional equivalence. stored or communicated. is on its mere production in any civil. We have now done away with the distinction between digital and other evidence. on the mere grounds that it is constituted by a data message. administrative or disciplinary proceedings under any law. The ECTA validates electronic transactions. if Dani uses her cellphone to send a message. criminal and civil.

The court distinguished between two types of electronic evidence: 1. Partly-Inclusionary approach (recognises two types of evidence – real and hearsay) The court in Ndlovu v Minister of Correctional Services(a Witwatersrand decision) held thatS 15 instead facilitates admissibility by excluding evidence rules which deny the admissibility of electronic evidence purely because of its electronic origin (as seen above). This contrasts with the Ndiki case. Collier says that it is unlikely that this approach will ever be followed by our courts. It is admissible as evidence in terms of SS (2) and the court’s discretion simply relates to the evidential weight to be given thereto. The court held that in such instance. According to Ndlovu. Page 98 of 154 . all data messages are admissible. and not when deciding whether or not to admit it. S 3 of the LEAA will not apply.The admissibility of evidence in terms of S 15 The meaning of S 15 is not completely clear. and due evidential weight to be given thereto according to an assessment having due regard to certain factors. The ECTA is thus inclusionary as opposed to exclusionary. it will thus fall under the normal rules of hearsay discussed above. Inclusionary approach: With this approach. if electronic evidence is considered hearsay by the courts. Evidence that depends solely of the reliability and accuracy of the computer itself. They are only admissible in terms of S 3 of Law of Evidence Amendment act and other exceptions. 3. The second type would be where the probative value of the evidence depends upon the ‘credibility’ of the computer (because the information was processed by the computer). and we should reserve the traditional concerns when we are looking at the weight to be attached. Thus this kind of ‘hearsay’ evidence dependent is admissible. 2. The first type being where the probative value of the information in a data message depends upon the credibility of a natural personother than the person giving the evidence. S 15 could theoretically allow three approaches: 1. S 15 treats such a data message in the same way as real evidence is treated at common law. In such instances S 15 will not override the normal rules applying to hearsay evidence. especially due to our strong common law heritage and legislative intent. where the court (obiter) interpreted S 15 as distinguishing between two types of evidence: a. its operating systems and programmes. constitutes real evidence. Exclusionary approach (all messages are hearsay): In terms of this approach. all data messages are hearsay. 2. and that S 15 intends for such ‘hearsay’ evidence to be admitted.

Other provisions in the ECTA which may be useful in particular circumstances include S 14. namely: 1. This would do away with the difficult task of having to distinguish between what would constitute hearsay and what would constitute real evidence.” In an obiter statement in the Ndlovu case. Page 99 of 154 . On the other hand. the court expressed the view that S 15(4) renders two types of ‘documents’ admissible and as constituting rebuttable proof of the facts contained therein on mere production. or extracts from a business record which are certified to be correct. where the computer evidence records data. which sets out the requirements for a document to be considered to be in original form. the probative value of which depends on a person not called as a witness.Evidence will only be admissible in terms of s3 of the Law of Evidence Amendment Act and other exceptions (see above). Note also that this section highlights a rebuttable presumption in respect of content. the rules of a self regulatory organisation or any other law or the common law admissible in evidence against any person and rebuttable proof of the facts contained in such record. S 13 (signature) and S 18 (notarisation) provide for the compliance with the formal requirements of signature and notarisation by way of used of an advanced electronic signature to be attached to a data message.any government / municipal body / department of state] in theordinary course of business. criminal. Business records admissible in terms of S 15(4) S 15(4) reads: “A data message made by a person [this includes a ‘public body’ . printout or extract. data messages made in the ordinary course of business (not requiring certification as to its correctness). it is hearsay evidence which may become admissible in terms of the provisions of the LEAA. This exclusionary approach considers all data messages (regardless of whether they are stored or automated) as hearsay because they rely either on (a) the credibility of witnesses or (b) the credibility of a computer. or the CPA and CPEA. and S 17 on the production of a document or information by means of a data message. or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person. The Ndiki court held obiter that the meaning of hearsay must be extended to include evidence that depends upon the accuracy of the computer. S 16 on the retention of information in the form of a data. printouts. copies. but the hearsay hurdle still needs to be overcome.b. copy. This is massively intrusive on the functional equivalence test. S 15 helps us get the evidence into the courtroom. Collier doesn’t like this approach. administrative or disciplinary proceedings under any law. is on its mere production in any civil. and 2.

The institution of these cyber inspectors is one of the criticisms of the Act. The Act also establishes ‘cyber inspectors’.4 Gathering and Presenting Electronic Evidence We didn’t do this section in class. Often. Laws are territorial in nature but the internet is not. This will require the engagement of appropriate forensic experts and the adherence to procedures which ensue that the chain of evidence is intact. The provisions of the Act have particularly bleak consequences for the right to privacy and may offend the right to challenge evidence and the privilege against self incrimination. Page 100 of 154 . thus far (unsurprisingly). international cooperation and consensus is necessary. either to assist the perpetrator to conceal the offence or simply as a result of the layout of the network. none have been appointed. so just read over it Gathering electronic evidence presents unique challenges. The implementation of some of the provisions of ECTA may face constitutional scrutiny in the future. who have wide ranging and invasive search and seizure rights in so far as computer related matters are concerned. Section 90 of the ECTA therefore makes provision for the extension of territorial jurisdictions in certain circumstances and for appropriate search and seizure provisions. storing it and presenting it in court. Today. a perpetrator need not ever be at the physical location of the offence. employed by the Department of Communications. What we need are detailed procedures that the courts have approved as complying with the general law and with the constitution for collecting electronic evidence. The evidence must be expertly collected and preserved in a manner that renders it useful for trial purposes. Evidence of an offence can be stored at a remote location. Hofman argues that there is a gap in our law here. and.

or one who does attend but refuses to testify. The court must decide any question concerning the competence or compellability of any witness. The method of examining and deciding issues relating to competence or compellability is normally that of a trial within a trial. or where applicable. A competent witness is a person whom the law allows a party to ask. If a competent and compellable witness wishes to rely on a particular privilege. the court can also decide the issue of competence on the basis of its own observations. A compellable witness is a person whom the law allows a party to force to give evidence. to give evidence. In other systems.A party to a civil case is not only competent to testify in his own defence but he can also be compelled by his opponent to give evidence for the latter’s case.22 – COMPETENCE AND COMPELLABILITY OF WITNESSES 1 Introduction The competence and compellability of a witness should not be confused with the possible privileges he might claim. However. Page 101 of 154 . but not to compel. The witness can avoid punishment by presenting an acceptable excuse. 3 Procedure – when competence and compellability are in issue Parties cannot consent to the admission of an incompetent witness’s evidence. he may not refuse to enter the witness box: he may only claim his privilege once the relevant question is put to him in the witness box. without requiring a trial within a trial. Such a witness. A competent and compellable witness who refuses to attend the proceedings may be brought before the court by means of a warrant of arrest. by the law as it stood ‘on the 30th of May 1961’. 2 General Rule In both civil and criminal proceedings the general rule is that every person is presumed to be competent and compellable to give evidence unless the matter of competence and compellability is regulated by statutory provisions. the parties to the case are not considered as competent witnesses. Presumption of competence and compellability(contra Continental System) In South Africa. may also be tried and punished summarily by the court for his failure or refusal. following the English example (and in contrast to the French model followed by continental systems) the parties to a civil case are regarded as competent witnesses.If you are competent and compellable you must appear in court.

Such investigation may be conducted by means of a trial within a trial. The decision to call them rests in the discretion of the prosecutor and will depend on considerations such as the availability of other witnesses and the seriousness of the offence with which the parent is charged. Mentally disordered and intoxicated persons S 194 of the CPA provides that no person appearing or proved to be afflicted with mental illness or to labouring under any imbecility of mind due to intoxication or drugs or the like and who is thereby deprived of the proper use of his reason shall be a competent witness whilst so afflicted or disabled. In S v Zenzilethe court concluded. He refused to hear her evidence because he had already decided that she was incapable of understanding the proceedings. the child may give his evidence without taking the oath but the court must admonish (warn) him to speak the truth. A very young child may testify provided that he (a) appreciates the duty of speaking the truth. At common law there is also no specific age limit. A finding of mental normality or otherwise is interlocutory and can be altered if the evidence so indicates. (b) has sufficient intelligence and (c) can communicate effectively.4 Categories of Persons Children There is no statutory provision governing a child’s capacity to give evidence. pending an appeal against an order for her detention in a psychiatric hospital. In addition. When the conduct of a witness creates the impression of a mental disorder which might affect his competence to testify. or person under the influence or drugs. But in appropriate circumstances the court can also rely on its own observations of the witness in the witness box. the magistrate refused to hear the evidence of the accused in her application for bail. Evidence of children is approached with caution. Note the degree of the condition – it must affect your proper use of reason when deciding these matters. An intoxicated person. on the basis of its observations of the witness during evidence in chief. will regain his competence when sober. The High Court pointed out that the magistrate had deprived himself of the opportunity to observe the witness’s behaviour in the witness box and concluded that this was a gross irregularity. Page 102 of 154 . without resorting to a trial within a trial. In S v Malcolm. to determine competency of the witness. Children are competent and compellable to testify against their parents but it was noted in R v Zuluthat this is undesirable. it has happened that in certain circumstances a person who appeared to be mentally disordered was allowed to testify.that her mental condition was such that she could not understand simple questions and therefore could not convey her observations to the court. A child who is competent may be sworn in. Without finding it necessary to direct a trial within a trial the court determined that the witness was incompetent. If the court is not so satisfied. provided that the court is of the opinion that he understands the nature and religious sanction of the oath. the court must investigate and determine this issue before proceeding with the trial on the merits.

if the accused enters the witness box of his own volition then he is considered to be a competent witness. But the state cannot call him as a witness for the prosecution as his competence is confined to being a witness for his own defence. Officers of the court Attorneys. Hearing impaired and mute persons Such persons are competent and compellable if they can communicate with the court. Judicial officers Judges and magistrates are not competent to give evidence in cases over which they preside or have presided. An accused is therefore a competent but non-compellable witness. 3. The CPA provides that in the case of hearing and mute persons. The court should have postponed the matter. If the charge against the accused is withdrawn. The court can recall him if things are not clear from his initial testimony. An interpreter can be present to convey what they are communicating. 2. when he denied that he had been drinking. A subpoena cannot be issued against a competent judge without leave of the High Court.However. If the accused pleads guilty and the trial of the accused and his co-accused are separated (it is desirable that he is convicted and sentenced before being called as a witness) Page 103 of 154 . It is extremely undesirable that they testify in such cases as they would compromise their independence with regard to the case and put their credibility at stake. In the witness box and in his own defence he was drunk. It is only by terminating his status as an accused in the same proceedings as the coaccused. oral evidence include sign language. If the accused is found not guilty and discharged. An accused may also incriminate a co-accused whilst giving evidence on his own behalf. The magistrate viewed this as contempt of court and found him guilty of the offence of contempt. The matter went on review and the review judge came to the conclusion that this was an irregularity because he was not in a fit state to make a proper defence. The magistrate required him to undergo a breathalyser test which showed that he was over the limit. that he can become a witness for the prosecution against his former co-accused. advocates and prosecutors are competent witnesses in cases in which they are professionally involved. they should recuse themselves. The accused The accused (whether or not charged jointly with another accused) is not compellable (due to the presumption of innocence etc). However. a co-accused cannot compel another accused to give evidence on his behalf. Accused and co-accused An accused who testifies in his own defence may in the process give evidence which is favourable to a co-accused. Such change of status can be achieved in the following ways: 1. The magistrate started questioning him. If they have personal knowledge of a fact in dispute. They may then testify after their recusal.In S v Nqula (not prescribed) the accused was charged with drunken driving and appeared in court. No recusal is necessary where judicial notice may be taken.

b. Remember this applies to spouses in a civil union and also to spouses married in terms of African Customary Law: 1. frank and openwill he be granted indemnity. The rule of non-compellability of spouses is based on the consideration that the marital relationship between the accused and his spouse should be protected. Spouses The position of a spouse to be called as a witness for or against another spouse depends on the nature of the proceedings. this was changed by S 195 of the CPA by declaring a current spouse to be a competent witness for the state in the normal course of events. Both were incompetent witnesses for the prosecution in relation to matters that occurred whilst their respective marriage to the accused existed. The wife is a competent witness for the defence and she is competent AND compellable when called to testify on behalf of the accused. Although a former spouse is not mentioned in this provision. To treat a current spouse as competent and a former spouse as incompetent would be Page 104 of 154 . bigamy or incest. in the crimes above. However. iniuria or maintenance. a former spouse was in the same position as a current spouse. for a coaccused. she is only competent to testify and NOT compellable. In terms of the common law. 2. Witnesses for the prosecution: The general rule is that a spouse is a competent but not compellable witness for the prosecution. If the trials of the accused and co accused are separated for another valid reason (here he should also be convicted and sentenced before being called as a witness) Note: that since the former accused is ordinarily an accomplice. The (now) witness will be warned that only if his testimony is satisfactory. she must clearly be included within its ambit. a. Note: A co–accused can become a witness for prosecution if the state withdraws the case against one of the accused on condition he becomes a state witness in terms of S 204 of the CPA (indemnity). However. For example. Criminal Cases: In criminal cases and in terms of S 195 of the CPA a distinction is drawn between the case where the spouse of an accused testifies on behalf of the defence and where the spouse is called as a witness on behalf of the prosecution. The exception (when the spouse is both competent and compellable) kicks in when the charges against the accused are against the marriage itself. or affect the marriage in some way.4. assault of the wife or kids. However. this consideration loses its validity since these crimes are generally directed against the person of the spouse. the cautionary rule regarding evidence given my accomplices will apply. Witnesses for the defence: Lets assume the husband is on trial. or one of their children. Civil Cases: In civil cases the spouse of a party is a competent and compellable witness for and against the party concerned.

Such immunity includes non-compellability as witnesses. This was one of the issues that the Constitutional Court in President of RSA v SARFU had to determine (you’ll.. The public interest in preserving the dignity and status of the president’s office 2. err. remember this case from Admin Law). notwithstanding that the former might not be a competent witness for the state against the latter as per S 196(2) of CPA. But. such as the president’s schedule. the testimony of the president could be taken at the white house to accommodate his busy schedule. Heads of State The President is clearly a competent witness but there has been some controversy about his compellability. In a situation where the president needs to be called. the court must exercise restraint.. The court must consider whatever the interests of justice demand. In the case of Clinton v Jonesa US case. Once the court has decided there are exceptional circumstances. In terms of S 3 of the Diplomatic Immunities and Privileges Act foreign heads of state and diplomatic agents are immune from criminal and civil jurisdiction of South African Courts. which occurred stante matrimonio. When this came before the CC. such as taking a commission to his house or something of that sort. In S v Taylor it was held that ‘wife or husband’ contained in S 195 and S 196 include the former spouse of an accused if she is required to testify to events.. Where a husband and wife are charged jointly. The court stated that ‘this is a question of considerable constitutional significance going to the heart of the separation of powers under the Constitution. namely 1. This case involved a commission of enquiry launched by President Mandela. The need to obtain relevant evidence before the court to ensure that they are not impeded in the administration of justice. such evidence will be admissible. Mandela was called before the court to testify.absurd. neither of them can be called as a witness for the prosecution. Page 105 of 154 . and only give an order like that in exceptional circumstances. and must then look at how they would best not infringe on the president’s dignity. if either of them testifies in his or her own defence and incriminates the other party. Judge De Villiers referred to oral evidence and asked for certain witnesses. the CC looked at situations where the president would need to be called as a witness.’ The court pointed out that there are two contrasting aspects of public policy that might be in conflict in this situation. SARFU wanted to set it aside because it was not properly constituted. the court needs to make the relevant considerations.

23 – THE CALLING OF WITNESSES Pay special attention over the next few chapters to the following aspects : the competency of the witness. Page 106 of 154 . If the accused testifies after having heard the testimony of his witnesses. in the absence of an account given by the accused. he may be cross-examined on the reasons for this sequence and. or he may rely on his passive defence right by closing his case without testifying and without calling any defence witnesses. the calling of the witness. The court however added the following rider: the accused must also be informed of the prejudicial consequence of exercising the constitutional right to refuse to testify. Or the accused can combine his active and passive defence rights: as a constitutionally non-compellable witness he may refuse to testify and merely call one or more defence witnesses. The rule of practice is that before a witness testifies(unless he is an expert witness). The accused has the right to be present during proceedings so he hears everything being said. In S v Brown it was held that the court must inform an undefended accused that he has a constitutional right to silence and that no adverse inference can be drawn from the mere fact that he has opted for silence. then elects to testify after (one or more of) the defence witnesses. 2 Order in which evidence is presented (in civil cases there is no complication) S 151(1)(b) of the CPA Section 151(1)(b)(i) -Accused who wishes to testify must do so before calling other witnesses. may run the risk that at the end of the trial the court may conclude that he had tailored his evidence in the light of the evidence given by the defence’s witnesses. namely that the prosecution’s prima facie case that he committed the crime will be left and not contradicted and. Court may draw a reasonable inference. the accused will have 3 main options: he may rely on his constitutional active defence right by testifying in his own defence and calling defence witnesses. This chapter deals with the calling of witnesses. 1 Witnesses called by the defence in criminal proceedings Options available to accused after the close of the state’s case If there is no discharge in terms of S 174 of CPA. depending on his explanations. Duty of court – see S v Brown 1996 (2) SACR 49 (NC) The court has the duty to explain above options to an unrepresented accused. the court will decide the case on the prosecution’s version. This section was put in place to prevent the accused from tailoring his evidence before he testifies. except if court (on good cause shown) allows otherwise The purpose of this section is clear. The accused may also elect to testify without calling any defence witnesses. he must sit outside the court. Section 151(1)(b)(ii) -Accused declines to testify. refreshing the memory of the witness and questions pertaining to the credibility of the witness.

the accused could potentially tailor his evidence to fit in with what the defence witnesses have said. It is however established practice that where there are several accused. in the order in which they are listed in the charge. An accused whom has closed his case without having testified will be permitted to testify if he is unexpectedly incriminated by a co-accused. specifically the right to adduce and challenge evidence. It is incorrect procedure to ask an accused to exercise his choice of giving evidence and/or calling witnesses before the accused preceding him in numerical order. Thus there is always the possibility to request this leave from our distinguished and sympathetic courts. Re-opening of case – leave of court Once your case is closed. which the court assented to. In the case of State v Van der Vyfer. the judge put it to the defence’s advocate that the accused did not testify. this does not apply (as discussed above) to the accused. After the state had finished their address. In addition.usually best for accused to testify first When the state presents evidence and calls witnesses. Page 107 of 154 . Vdf was alleged to have killed Inge Lotz in Stellenbosch. that is. they should put their cases in numerical order. whom has the constitutional right to be present in court the whole time. You need leave from the court having submitted a reasonable reason why this evidence was not presented and why it would not be detrimental. You’ve now come across new information or new witnesses. and while the defence’s advocate was addressing the court. these witnesses have to wait outside. But the Constitution does not say in what sequence the accused (or state) must produce evidence. Due to this. In court. Tactical point of view . However. It is arguable that this section infringes the accused’s right to a fair trial.Section 151(1)(b)(i) does not apply where there are more than one accused. He submitted an application for the court’s leave for him to testify. the defence closed their case having elected not to put the accused in the witness box. In S v Ngobeni it was held that S 151 does not prescribe the order in which several accused should respectively put their cases to the court. Going first shows that he isn’t such a slimy asshole. Also. This perturbed the accused. who indicated to his advocate that he wanted to testify. has closed his case. the accused is forced at the outset to decide as to how he will talk to the court. Constitutional Perspective The Van der Merwe et al textbook argues that this provision may be unconstitutional.They cannot sit inside and listen to what other witnesses say. you cannot present further evidence unless you ask for leave from the court. there is no similar provision dealing with the state (keep in mind that state witnesses do not have the same right to be present as the accused). This rule of practice can be departed from if one of the parties applies for such departure in circumstances where the court is of the opinion that none of the parties would be prejudiced and that such departure would be in the interests of fairness and justice.

and to call a witness to express an opinion as to the uprightness of an opponent’s witness. 5. Reopening may be allowed in order to prove a previous inconsistent statement. 2. to introduce facts that a witness is biased (if bias is denied under cross-examination). 4. Section 248(1) of CPA creates a presumption that the accused possessed a particular qualification or acted in a particular capacity if such allegation is made by the prosecution in the charge. an application to re-open a case to lead further evidence must be decided on the basis on numerous considerations including: the reason why the evidence was not led timeously.A party who has formally closed his case will generally not be permitted to present further evidence by calling for further evidence. In civil cases. the need for finality in judicial proceedings etc. This purpose of this general rule is to promote the finality of litigation. or calling more witnesses. The court may permit a party to present evidence in the form of a rebuttal of a new matter introduced during the course of the opponent’s evidence. 3. the degree of materiality of the evidence. An accused who has closed his case without having testified will be allowed to testify if he is later unexpectedly incriminated by a co-accused. Page 108 of 154 . S 248(2) provides that if such allegation is denied or evidence is led to disprove it after the prosecution has closed its case. There are however some exceptions: 1. the balance of prejudice (prejudice to the plaintiff if application refused and prejudice to defendant if application granted). the prosecution may adduce any evidence and submit any argument in support of the allegation as if it had not closed its case. if the party concerned could not reasonably have foreseen the presentation of the new issue. the stage reached in litigation.

Part VI cannot be relied upon in all circumstances. Zeffertt. This is a necessary exception to the general rule that witnesses must testify on the basis of an independent recollection of the relevant facts. Present recollection revived ‘Present recollection revived’ refers to the situation where consulting the record or statement merely serves as a trigger that re-establishes or triggers the memory of the witness: the witness can actively recall the forgotten events and can testify without further recourse to the written statement. In terms of these rules. Thus they are generally not permitted to rely on. Human memory is fallible. The complexity of some issues may also make it extremely difficult for a witness to testify without the aid of an earlier record.but limited Legislation has amended the above position to a certain extent. may read or rely on his earlier record in an attempt to refresh his memory. recourse must be had to the common law rules for refreshing the memory of a witness. or refer to a statement. Thus in terms of Part VI of the CPEA. Exceptions – part VI of the CPEA(as read with S 222 of CPA) . Common law exception due to fallibility of memory – refreshing memory of a witness However. note or document whilst testifying. witnesses are required to give an independent oral testimony. a witness. and the situation where a person has a present recollection and bolsters it with a contemporaneous aid to memory in the form of a note. a police officer who investigated the scene of a crime and made a note of what the registration number is. The preference for oral evidence is a corner-stone of the common law evidential system where crossexamination plays a pivotal role: greater weight is attached to viva voce statements of witnesses than to their earlier recorded statements. For example. Part VI of the CPEA (as read with S 222 of CPA) gives effect to the valid argument that the written statement of a witness may. Where it is not applicable. but not corroborate.24 – REFRESHING THE MEMORY OF A WITNESS 1 Introduction Important of the principle of orality As a general rule. a prior written statement can be submitted in order to supplement. who has forgotten all or a part of the events in respect of which he is to testify. the evidence of a witness who cannot recall an event or some details thereof. 2 Distinction between present recollection revived and past recollection recorded The phrase ‘refreshing of memory’ is really a misnomer. Paizes and Skeen argue that it fails to distinguish between the situation where a person no longer has any recollection at all of an event but had made a note of it when he did. Page 109 of 154 . in certain circumstances. depending on the circumstances. be more accurate than his recollection in court. especially in those situations where considerable time has elapsed between the actual event and the witness’s narration in court.

it was held that the court may adjourn to give a testifying witnessan opportunity to refresh his memory from his statement (which cannot be used for refreshing his memory whilst in Page 110 of 154 . but it may not help to trigger his memory at all. which. Thirdly. after having examined the written source. But if it is clear that the witness is still testifying from memory after the adjournment. If. and the court should order. There are several reasons why a witness should be allowed to refresh his memory before testifying: Firstly. however. Thus. if denied the opportunity to refresh their memories prior to trial.He may need to see the document. 3 Refreshing of memory before the witness gives evidence No general rule exists which precludes a witness from reading his statement before entering the witness box. that witnesses should as a rule testify from memory. the opposing party may demand. oral evidence is received in the case of present recollection revived (because the witness testifies from memory) and documentary evidence is received in the case of past recollection recorded (because the witness relies on the contents of the documents). indirectly encourages parties and witnesses to refresh their memories out of court. that the privileged document be produced. then the document must be produced. testimony in the witness box will become a test of memory. In R v Da Silva. it becomes clear that the witness merely memorised the contents of his statement before trial. and in fact has no independent recollection of the events. the court will have to be satisfied that holder of any possible privilege has expressly or by necessary implication waived his privilege. a rule prohibiting pre-trial refreshment of memory can create serious problems for an honest witness and will have little or no effect on a dishonest witness. Fourthly. Any privilege which may relate to such document remains intact. it can be argued that pre-trial refreshment of memory is a procedural right based on the fundamental rule that a party should be given an adequate opportunity to prepare for the trial. A document used for pre-trial refreshing of memory need not be made available to the court or opposing party. no longer any memory to refresh.The court can consider the document. but it does not become documentary evidence. the common law approach. Secondly. 4 Refreshing of memory during an adjournment There is no rule prohibiting a witness whose testimony has been interrupted by an adjournment from refreshing his memory during the adjournment. An example of this may be a pathologist who does loads of autopsies. However. The evidential consequences which flow from such conduct are that if it is clear that the witness memorised the contents of his statement during the adjournment. in effect. still has no independent recollection and can only vouch for the accuracy and reliability of the written source – there is. rather than truthfulness. the document need not be produced. It remains oral evidence as the witness is not relying on the document. Past recollection recorded ‘Past recollection recorded’ refers to the situation where the witness.The report is submitted and recorded as documentary evidence.

That he made a statement much nearer to the time of the events and that the contents of the statement represented his recollection at the time he made it. the law is flexible in this regard and inference drawn from circumstantial evidence can assist the court in determining the presence or absence of personal knowledge. That he wished to have an opportunity to read the statement before he continued to give evidence There are also ethical rules dealing with the presentation of evidence. 5 Refreshing of memory while the witness is in the witness box – requirements The party who wishes to refresh the memory of the witness in the witness-box from an earlier record must prove that the following requirements have been met: Personal knowledge of the event The witness must have had personal knowledge of the event. if there is an adjournment. The court may do so if it is satisfied: 1. Thus. The need for this requirement is to avoid the inadvertent admission of hearsay. That he had not read the statement before coming into the witness box. and 4. Fresh in the memory The old English common law requirement was that the writing should have been made contemporaneously or almost contemporaneously with the events. That the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place. Verification of a document used to refresh memory The witness must have made the recording. The court must be satisfied that the witness’s claim that he cannot recollect is genuine. whereas certain other circumstances may demand a careful inquiry.the witness box because it fails to meet the necessary requirements). Proof of personal knowledge may be difficult in the case of past recollection recorded. the witness may refresh his memory. In the normal course of events the witness’s mere ipse dixit may be sufficient. The correct test is therefore where the writing came into Page 111 of 154 . It was however realised that this strict requirement was inappropriate. After a witness is called and gives evidence. Inability to recollect It must be shown that the witness is unable to recollect fully on a matter on which he is being examined. However. 2. the state can cross examine him. However it is also accepted that the witness may use the record of somebody else where the recording took place upon the instructions of the witness (in which event the original recorder should also testify) or where the witness read the record and accepted its accuracy (in which event the original recorder need not testify). 3. but the advocate may not have any contact with his witness during this time.

Note that the effect of Shabalala is that the prosecution no longer has blanket docket privilege on statements obtained from state witnesses – see Semester 1. is seen as the ‘source’ of the oral evidence. Where the document is privileged. The presence or absence of substantial contemporaneity is merely a factor which can assist the court in determining whether the writing came into existence at a time when the facts were still fresh in the memory of the witness. Furthermore. Page 112 of 154 . the original document must be used. For example. This rule may however be departed from where the opponent fails to reject a copy or where it can be shown that the original has been lost or destroyed. If a copy is used. its accuracy must be proved. The opposing party may waive his right of access to a document used by a witness. the holder of the privilege can either waive privilege so that the document can be produced (and the witness may use it) or claim privilege so that the document cannot be produced (and the witness may not use it). a court has discretion to restrict cross-examination relating to the parts of the produced document which were used by the witness. seen the registration number and shouted out to a bystander to take it down. the witness might have observed something like a hit and run. The approach is more flexible in the case of present recollection revived because memory. or was checked or verified.being. and not the document. at a time when the facts were still fresh in the memory of the witness. Production of document A document used to refresh memory whilst in the witness-box must be made available to the court and the opponent in order to enable them to inspect it. Use of original document In the case of past recollection recorded.

the advocate went ahead. and by any evidence by which. 2 Impeaching the credibility of an opponent’s witness S 190(1) of the CPA provides. the AD had found the same captain to be a shit witness. At some stage. it was found that the magistrate’s court made a mistake admitting the evidence of the captain. as this is not allowed. Section 42 of the CPEA has a similar effect. D was found guilty. The accused’s advocate put it to the captain that. The captain denied this allegation. it may be done in any manner in which. The advocate couldn’t introduce the judgment in Mogalies. The reason for this rule is not to prolong the trial with matters that are not necessary. as well as one’s own witness. Thus the court must apply the common law as is stood on 30 May 1961. A multiplicity of collateral issues can cloud the real issues and delay the court in really coming to grips with the real issues. The advocate did what he wanted and the prosecution and magistrate allowed this. In terms of this section. Then. These common law methods. In the case of S v Damalis. claiming that he spoke the truth. On appeal.The answer of a witness is final! After the witness has denied that he lied. The court of appeal was not impressed with the way the defence conducted its defence and cross-examination. as a general rule. He had given R500 to a police captain to induce the captain to allow him to continue with his illegal gambling. there was even a possibility of exhibits being put into evidence. the credibility of such witness might on 30 May 1961 have been impeached by such party. Cross-examination as to credit on a collateral issue (an issue not related to the facts in issue) An answer given by a witness under cross-examination in response to a question which concerns matters which are relevant to the issue may be contradicted by other evidence. inter alia. and he was in possession of the judgment in Mogaliescase and he started to put passages of the judgement to the captain. the answer must. in the Mogaliescase. that a party in criminal proceedings may impeach the credibility of any witness called against such party. rules and principles are set out below. it amounts to an irregularity. you cannot put the record of another court to the witness that amounts to including inadmissible evidence by stealth. holding that it was highly irregular for the rules of evidence to be‘cast to the wind’.25 – IMPEACHING THE CREDIBILITY OF A WITNESS 1 Introduction The purpose of this chapter is to identify and explain the rules and principles which govern the situation where impeachment of the credibility of an opponent’s witness. The witness’s answer in a collateral issue was ignored and thus the rule was ignored. Page 113 of 154 . be accepted as final in the sense that the cross-examiner may not adduce evidence to contradict the answer. as it became evidence in this case and. The captain was called to testify as to the circumstances. D was charged with bribery in the Magistrates Court. But if an answer is given to a question which is relevant solely to the credit of the witness on some other collateral matter. is attempted through cross-examination or the leading of evidence.

It was alleged in crossexamination that she was the plaintiff’s mistress – an allegation which she denied.where a witness for the prosecution denied under crossexamination that he had threatened the accused. if such prejudice or bias is denied by the witness. it was held that in the face of denial. The presence of bias or absence of bias must be brought to the court’s attention so that it can make a proper assessment of the evidence concerned and. but the rule must be maintained. Counsel defending an accused who has a criminal record should avoid impeaching the credit of a prosecution witness on the basis of his previous convictions. In S v Zwane it was held that ‘relevance to the issue before the court determines whether or not evidence is collateral. However. he is entitled to the protection granted to him in terms of the rules relating to character evidence (See chap 6). ‘the furthest that the cross examiner could go is to show the relevant portion of the previous record to the witness and say: “Look at this paper. on appeal. do you still adhere to your answer?’ If the witness does adhere to his answer. However. Exceptions (i) Previous convictions of opponent’s witness On the basis of the 30 May 1961 provision as contained in S 190 (1) of the CPA and S 42 of the CPEA. he could succeed in putting a question mark behind the credibility of the witness. as this would cause the accused to lose the protection.’ The exact meaning of ‘collateral’ is still not entirely clear. the court held that an integral part of the accused’s defence was that he had every reason to believe that the witness had intended to attack him. the cross-examiner may prove such previous convictions.If a cross examiner is skilled in the art of examination. or that he is prejudiced against the case of the cross-examiner. Some say that this is an exception to the rule that the answer given by a witness under cross-examination to a collateral matter is final. In the event of a denial. the credit of an opponent’s witness may be impeached with reference to his previous convictions. The defendant was permitted to call witnesses to contradict this denial. In S v Zwaneit was held that a witness could be asked if he has been disbelieved in previous judicial proceedings. it can be argued that bias or prejudice is not a collateral matter. However. If the accused will be testifying in his own defence. then that is the end of the enquiry. (ii) Bias of opponent’s witness A witness may be cross examined on facts which tend to show that he is biased in favour of the party who called him. and the prosecution may then prove the previous convictions of the accused. The witness may be asked if he has any previous convictions. The issue was therefore not a collateral one and the accused should have been allowed to adduce evidence in an attempt to contradict the denial. which he enjoys in terms of S 197 of the CPA. In Thomas v David the plaintiff called his female housekeeper who was one of the attesting witnesses to the defendant’s signature on a promissory note. and in the event of a denial or refusal to admit or answer. The trial court denied the accused an opportunity to adduce evidence to contradict the denial. Page 114 of 154 . A good example lies in R v Marsh. evidence may be called to contradict him.. and what is relevant depends on the facts of each case’. the matter should be clarified by adducting evidence..

it can be proved . This procedure gave rise to the idea that a party vouches for or guarantees the credibility of the witness called by him.provided it is relevant to facts in issue. going beyond mere collateral matters. be called to those parts of the writing which are to used for the purpose of contradicting him. and he may thereupon make such use of it for the purposes of the trial as he may think fit. Section 5 of the English Criminal Procedure Act of 1865 is relevant here: ‘ A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relative to the subject-matter of the indictment or proceeding. as a general rule. without such writing being show to him. but if it is intended to contradict such witness by such writing. The rule against impeachment of your own witness became part of adversarial system: it was accepted that a party had a right to cross-examine an opponent’s witness but could not.’ The fact that the presiding officer may make use of the statement for purposes he may think fit does not entitle him to use the contents of the statement as evidence. to require the production of the writing for his inspection. If a witness says two different things on two different occasions. Two things you can do: a) call another witness or b) put the previous statement to the witness as a previous inconsistent statement. The procedure would have made no sense if the party could contradict the very oathhelper called by him. Exceptions: example of a practical situation There are however exceptions to this general rule. provided always that it shall be competent for the judge. Consider this example: You are in possession of a witness’s statement. At some stage in the course of the trial he tells a totally different story.Cross-examination on and proof of previous inconsistent statements (a) Witness can be cross-examined on a previous inconsistent statement. cross-examine a witness called by him. But proof of a prior inconsistent statement is permitted only if it is relevant. The most important historical reason for this rule was the procedure of calling up ‘oath-helpers’. before contradictory proof can be given. The statement may be proved if the witness denies having made it. his attention must. 3 Impeaching the credibility of your own witness General Rule The general rule is that a party is not permitted to impeach the credibility of a witness called by him. (b) If he denies his statement. You have consulted with him. it affects the credibility of the witness. In one exceptional situation. at any time during the trial. he is allowed to cross-examine his own witness. You have reason to believe he’ll say X. A witness may be cross-examined with reference to a prior statement made by him and which is inconsistent with his testimony in court. In certain circumstances. Page 115 of 154 . a party may attempt to contradict his own witness by calling another witness or by proving a previous inconsistent statement against his own witness.

’ Both sections also make it clear that that proof of a previous inconsistent statement against a party’s own witness may proceed regardless of whether the witness is or is not. The purpose of such an application is to obtain the right to cross-examine one’s own witness in the same way as if the latter had been called by an opponent.(a) Calling another witness A party may always call a witness to contradict the evidence given by a witness who was also called by that party. a party did not have an unqualified right to impeach the credibility of his own witness by proving an inconsistent statement made by such witness. Page 116 of 154 . The test is subjective. The mere fact that the witness has made a previous inconsistent statement in NOT enough to have him declared as hostile. the fact that the witness is the prosecution’s witness who was warned in terms of S 204 of the CPA and who therefore has prospects of receiving indemnity. The party seeking a declaration of hostility has a difficult task: he must prove that the witness has an antagonistic animus so that he may cross-examine him – and yet if he could cross-examine. This application is not easily granted. in the opinion of the court.The fact that a party has proved a previous inconsistent statement against his own witness does not automatically entitle the party to embark upon cross-examination of the witness concerned: cross-examination can take place only once the party has successfully applied to court to have his witness declare hostile. adverse to the party who called him. If the witness cannot give a plausible explanation as to why he’s behaving like such a dick. The position was changed by S 57 of the General Law Amendment Act of 1935 and is currently governed by S 190(2) of the CPA and S 7 of the CPEA (the two sections are substantially similar). In this situation you need to prove the original statement. Cross-examination can occur if the witness is declared hostile. The party bringing the application has the burden of satisfying the court that the witness is ‘not desirous of telling the truth at the instance of the party calling him’ – an antagonistic animus must be proved. he would have a better chance of exposing the required animus. and the fact that a witness has deceived a party into calling him as a witness. In deciding to bring such an application. (b) Proving a previous inconsistent statement against your own witness. At common law. like the first witness (and all other witnesses) may only give admissible evidence. then put the portions of the statement to the witness which he contradicted in his later testimony. However. none of which are necessarily decisive. the court will make a negative inference against him. ‘Hostile’ is not the equivalent of ‘adverse’ or ‘unfavourable’. (c) Hostile witness An application to have a witness declared hostile may be brought in the course of evidence in chief or re-examination. Further factors which the court will consider when deciding to grant the application. The fact that a party may call another witness to contradict his own previous witness or otherwise impeach the latter’s credibility is a clear indication that the idea that a party somehow ‘guarantees’ the credibility of his own witness is based on a fiction. Neither S 7 of CPEA nor S 190(2) of the CPA requires that the statement should be relevant ‘to the subject matter of the indictment or proceedings. What must be shown is that the witness has a hostile intent with regards to the examiner. the second witness. the party concerned must weigh the risks: would an opportunity to crossexamine promote his case? Or would it merely give the witness a further opportunity to give evidence supporting the opponent’s case. are: the relationship between the witness and the parties involved in the dispute. This is not an exhaustive list.

In terms of S 35(3)(i) of the Constitution. Does this right to cross-examine have any impact on the common law rule that a party (the accused) may not cross-examine his own witness unless declared hostile? In Chambers v Mississippi. the accused had been denied his constitutional due process right to a fair trial. The court held that the rule in the present case was doubly harmful to the accused: not only was he precluded from cross-examining M. The court further disagreed with the finding of the courts a quo that the evidence of M was not adverse to the accused. it had violated the constitutional rights of the accused. It was held that the availability of the right to confront and cross-examine those who gave damaging evidence against the accused has never been held to depend on whether the witness was initially put on the stand by the accused or by the state. The court stated that the Mississippi rule rests on the presumption. but he was also restricted in the scope of his direct examination by the rule’s corollary requirement that the party calling the witness is bound by anything he might say. M’s retraction of the confession inculpated the accused to the same extent that it exculpated M. The court rejected a right of such substance in the criminal process that may be governed by that technicality or by any unrealistic or narrow definition of the word ‘against’. M repudiated his confession and asserted an alibi. On appeal. It noted that rule most likely originated at the time when oath-takers were called to stand behind a particular party’s position in any controversy. interfered with the accused’s right to defend against the State’s charges. The Supreme Court of the USA did not declare the Mississippi rule unconstitutional. the accused called “M” to introduce M’s written confession to the crime with which the accused was charged. but held that. The accused sought permission to cross-examine M with regard to the circumstances of his written confession and the alibi as asserted. as applied to the facts of the case. which includes the right to challenge evidence. It held that it could not be disputed that M’s testimony was therefore seriously adverse to the accused. The right to a fair trial should be the ultimate test. The right to challenge evidence includes the right to cross-examine. the Supreme Court of the USA did not agree. instead of the court questioning whether the accused has proved the defence witness ‘hostile’ in the technical sense of the word. The authors of the textbook submit that in our law the rule that an accused may not cross-examine a witness unless declared hostile may have to be considered in light of the accused’s constitutional right to cross-examine.that a party who calls a witness vouches for his credibility. Page 117 of 154 . having regard to the circumstances of the case. But under cross-examination by the state. The trial court refused to give such permission basing its decision on a Mississippi rule prohibiting a party from impeaching his own witness unless found ‘adverse’. Therefore the ‘voucher rule’ as applied in the current case. the Mississippi Supreme Court agreed that M’s testimony was not adverse to the accused as M has at no stage ‘pointed a finger at’ (incriminated) the accused. It held that. This was duly done.without regards to the circumstances of the particular case. an accused has the right to a fair trial. including the right to confront and cross-examine. The role of these oath-takers and the ‘voucher rule’ bears little present relationship to the realities of the criminal process. However.

Page 118 of 154 . but only if appears that these other witnesses are themselves also going to testify either for the prosecution or for the defence.1 Proof of the previous inconsistent statement may also take place only once the witness has been given sufficient particulars of the alleged previous inconsistent statement to designate the occasion on which it was made. 4.3 If the witness denies having made the statement. It is not properly proved if read from the bar.g. 4. through witnesses who heard or recorded it. 4.2 The witness must be given an opportunity of explaining the inconsistency if he admits having made the statement.4 Proof of Previous Inconsistent Statements The following rules and principles govern the proof or probative value of previous inconsistent statements and form part of the process discussed above: The witness must.4 Proof of a previous inconsistent statement merely has an impact on credibility.7 In S v Tshabalala. What is the nature of the inconsistency? What is the extent thereof? 4. it was confirmed that. the statement – whether oral or in writing – must be proved in a manner -e.6 A witness who is confronted with a previous inconsistent statement should not be urged to adhere to his previous statement: he should be called upon to speak the truth. It was also stressed in this case that if a witness’s own statement is sought to be used during his cross-examination.5 The degree to which the proof of a previous inconsistent statement affects the credibility of the witness depends upon the facts. such statements may provisionally be used during cross-examination of the witness. 4. at some stage prior to the attempt to prove his inconsistent statement. 4. The contents of the statement can never be elevated to the status of ‘evidence’ despite the fact that the statement is received and marked as an exhibit. be asked whether he has made a prior statement inconsistent with his testimony in court. it has first to be established that the statement was properly deposed to by him. It proves inconsistency. where a witness is being cross-examined on the basis of inconsistencies between his evidence and the statements of other persons who have not yet testified. 4.

to distinguish between a formal and informal admission. there are some exceptions. 1 Introduction The general rule is that all relevant facts must be proved on the basis of evidence presented by the parties. the question of whether it was made freely and voluntarily. for example.26 – FORMAL ADMISSIONS Note: this is a short chapter in Principles which we should read. Time and costs are saved. For and admission to be formal it must be made as part of the judicial process. While formal admissions serve to narrow down the issues. In S v Kuzwayothe court held that a party cannot employ a formal admission as a means of getting on record something which the opponent does not propose to make part of his case. It is only a formal admission that puts the facts in issue out of dispute. It is important. The court also noted that when the state elects to accept an admission. Or it can be with regards to a facta probantia. informal admissions often given rise to new issues. However. this rule is subject to a contextual analysis and where the admission is tendered and formulated by the accused it would be appropriate to apply the rule of interpretation in terms of which written provisions should be interpreted against the party drafting them. the maker of an informal admission need not even be aware that he is making an admission. In contrast. The maker of an informal admission is free to lead evidence to contract such admission or to explain it away. Evidence need not be adduced to prove a fact where a formal admission is made by one of the parties or where the court takes judicial notice of that fact. then the admission constitutes sufficient proof of every fact which it covers. however. The accused can still deny everything and put to the state proof with regards to an informal admission. An informal admission can occur extra-judicially or sometimes in the plea stages of the court. 2 The nature and rationale of formal admissions For the purposes of trial a party may formally admit one of more facts. The application of a presumption of law may also have the effect of dispensing with the necessity to adduce evidence pertaining to a particular fact. The weight accorded to an informal admission will vary according to the surrounding circumstances. A party must intend to make a formal admission and the existence of the requisite intention is determined by means of a subjective test. Formal admissions are binding on their makers and normally cannot be withdrawn or contradicted unless certain legal requirements have been satisfied. The distinction between formal and informal admissions (this was emphasized in class) An informal admission is usually made out of court and merely constitutes an item of evidence which can be contradicted or explained away. He is not going to focus on it. However. These facts then no longer need to be proved by his adversary. Page 119 of 154 . In S v Groenewaldthe court was called upon to interpret an admission. In contrast. a formal admission is generally made in the pleadings or in court and is considered to be ‘conclusive proof’ of the fact admitted. Cameron JA noted the rule of interpretation in terms of which an ambiguous admission made by the accused should be interpreted in favour of the accused.

27 – JUDICIAL NOTICE 1 Introduction

What happens if a magistrate observes an accident on the way to court and the case then appears before him? He clearly cannot preside if he has personal knowledge of the relevant facts in the case. The following points apply: 1. The court may not use private information concerning the facts in issue 2. If a judicial officer has such information he must recuse himself 3. However, a judge or magistrate may accept the truth of facts that are well known or easily ascertainable e.g. Christmas is on the 25th of December 4. A fact that the fact is judicially noted cannot be rebutted (this was adopted from the English common law and still applies today). 2 The nature and rationale of Judicial Notice

The law of evidence permits, in certain circumstances, a judicial officer to accept the truth of certain facts which are known to him, even though no evidence was led to prove these facts. This process is known as judicial notice and must be distinguished from the procedure of receiving evidence. For example, the judicial officer may accept that there are 12 months in a year. These facts are so well known or can so easily be ascertained that evidence to prove them would be completely unnecessary and even absurd. The purpose of the doctrine of judicial notice is that it expedites the hearing of many cases. Much time would be wasted if every fact, which was not admitted, had to be the subject of evidence, which would, in many instances, become costly and difficult to obtain. In addition, the doctrine tends to produce uniformity of decisions on matters of fact where a diversity of findings might sometimes be distinctly embarrassing. The doctrine deprives the parties of an opportunity to cross-examine. Consequently, the courts apply the doctrine with caution. 3 The limits of Judicial Notice: basic principles Notorious Facts (a) Facts of general knowledge: An example is Christmas day or the fact Pretoria is South Africa’s capital. In R v Tagerthe trial court took judicial notice of a delicious milkshake. The appeal court said no, you can’t take judicial notice of a milkshake no matter how delicious it is. In R v African Canning Co it was said that notorious facts include elemental experience in human nature, commercial affairs and everyday life. (b) Specific facts that are notorious Facts may be judicially noticed even if they are not facts of general knowledge. The proviso is that these facts should be notorious among all reasonably well-informed people in the area where the court sits. In R v Levitt a local court took judicial notice of the fact that Franschhoek is not a small place and it contains a number of streets. An example is the crime rate in a certain jurisdiction or the high rate of theft or robbery. The court can take notice of that when it comes to sentencing.

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Facts which are easily ascertainable These relate to facts which can be ascertained with the aid of specific material such as: (a) a standard map to determine a place (b) A calendar to determine a date (c) Dictionaries for the meaning of a normal word (i.e. not a scientific word) Facts which are not generally known but which are readily and easily ascertainable should also be judicially noticed. However, they should be easily ascertainable from sources of indisputable authority, like the above listed examples. Section 229 of CPA and s26 of CPEA contain provisions to the effect that certain official tables, approved in the Gazette, may on mere production thereof serve as proof of the exact times of sunrise and sunset at specific places in South Africa. In R v Sibuyi it was held that although a court might take judicial notice of the accuracy of almanacs, calendars and diaries as regards days and months, they could not be regarded as indisputably accurate as regards the phases of the moon, the rising and setting of the sun, or the state of the tides. It was held that such evidence is hearsay and did not merit being admitted as an exception to the hearsay rule. 4 Assorted Examples

There was very little said in class about this and we were told to just read over this section from the textbook, so we are going to be very brief here. 1.1. Animals The instinctive behaviour of domesticated animals should be judicially noticed. It has been held judicial notice is irregular in respect of the following: the local market value of animals; the manner of estimating the age of animals; and that a particular skin was that of a particular species of buck. The following have been judicially noticed: dangerous wild animals remain potentially dangerous even after docile behaviour has come about as a result of semi-domesticity; rhinos are rarer than elephants and brand marks on cattle do not fade completely. These were considered to be of general knowledge. 1.2. Racial Characteristics The doctrine of judicial notice has not escaped the effects of the historically inherent injustice of the South African social structure. Clearly racist generalisations are not matters which should be the subject of judicial notice. 1.3. Political and constitutional matters The sovereignty of foreign states and the existence of a state of way may normally be judicially noticed. An appropriate certificate may be obtained from the executive if the court does not have sufficient information to take judicial notice of certain political and state matters, for example whether a war has been declared. This certificate is treated as one of indisputable accuracy. Certain political circumstances (e.g. the existence of a specific political system) in a specific country or area may be judicially noticed if sufficiently notorious.

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1.4. Matters of science and scientific research Matters of science may not be judicially noticed unless ‘they have permeated into the background knowledge of non-specialists’. Such matters can be said to be noticed on the basis of general notoriety. Judicial notice has been taken of the fact that no two fingerprints are the same and the normal period of human gestation, but not the possible limits within which the period may be abnormal except in the most extreme cases. When evidence includes measurement by a mechanical or scientific instrument it is ordinarily required to be accompanied by testimony as to the trustworthiness of the method or process used to make the measurement, as well as the accuracy of the instrument used. However, in certain circumstances, the court will take judicial notice if the reliability of the measuring device and expert evidence will not be necessary. 1.5. Financial matters and commercial practices Judicial notice has been taken of the fact that the value of money has declined over the years; that most public companies are incorporated for the purpose of making a profit from income; the practice of furnishing bank guarantees in sales of land; and the practice of making payment by cheque. 1.6. Functioning of traffic lights In Gomes v Visser it was held that in civil cases a court can take judicial notice of the fact that when the lights facing in one direction at a right-angled intersection are green, those facing at right angles to them should be, and probably are, red. 1.7. Historical facts, words and phrases There is no general rule that facts which are reliably (as opposed to easily and reliably) ascertainable can be judicially noticed. However, our courts have used history books to establish historical facts. Courts have also made use of dictionaries to establish the meaning of words. 1.8. Crime Judicial notice has been taken of a number of matters relating to crime. Judicial notice has been taken of the fact that South Africa is ‘currently engulfed by an acceptably high crime rate’. 1.9. Social conditions In Mohlomi v Minister of Defence, Didcott J took judicial notice of ‘the state of affairs prevailing in South Africa, a land where poverty and illiteracy abound and differences of language and culture are pronounced , where such conditions isolate the people whom they handicap from the mainstream of the law, where most persons are either unaware of or poorly informed of their legal rights and what they should do to enforce those, and where access to profession advice and assistance that they need so sorely is often difficult for financial and geographical reasons’. 5 Law

Judicial notice must be taken of South African law. Parties may not lead evidence in order to clarify the nature and ambit of a South African legal rule. They may however do so by way of argument. This is particularly necessary where the court on its own initiative has consulted case law, legislation or textbooks in order to seek clarification of a legal rule. It appraises itself of what the law is. In our law, the judge gets assistance from the advocate or attorney (as this is their duty). One can distinguish a number of different laws: Page 122 of 154

but there was no evidence presented to the parties. Judicial notice may now be taken of both indigenous and foreign law in terms of s1 of the LEAA: 1(1) Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall not be opposed to the principles of public policy or natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles. The court referred to the section that it can take judicial notice. 1(2) The provisions of subsection (1) shall not preclude any party from adducing evidence of the substance of the legal rule contemplated in that subsection which is in issue at the proceedings concerned. The applicant was a US company who acquired the copyright in the US. by-laws etc) and private Acts of Parliament are judicially noticed in terms of statutory law. whilst subordinate legislation (regulations. courts should take judicial notice of it. Harnischfeger Corporation v Appleton involved an application for an interdict. Proviso #2 – any party can adduce evidence on any legal rule. based on an alleged infringement of a copyright belonging to the applicant. Foreign Law Where the foreign law in question cannot be ascertained readily and with sufficient certainty. But this was not the position in the ordinary courts where such indigenous law and customs were treated as foreign law. foreign law had to be proved by calling an expert witness and could not be judicially noticed. Until 1988. Foreign copyright law was applicable to the facts. The mere fact that a particular rule is vague will not entitle a party to adduce expert evidence.Statute and common law Judicial notice is taken of Acts of Parliament and of the provincial legislatures. Public international law that has acquired the status of custom is judicially noticed. Judicial notice should also be taken of any law which purports to be published under the superintendence or authority of the Government Printer. it must be proved by means of expert evidence. Proviso #1 – indigenous law must not be against public policy or natural justice. As customary international law is seen as forming part of the common law. Section 232 of the Constitution provides that ‘customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’. The question was whether the courts could take judicial notice of this law. which is in issue. the relevant statute must be placed before the court. Indigenous and foreign law Prior to the Law of Evidence Amendment Act 1988. Where a party seeks to rely on statutory foreign law. There are no exceptions to this rule. Colonial statutes and ordinances are judicially noticed in terms of our common law. Public International law Public international law consists of the body of rules governing the relations between states in times of peace and war. if it could be obtained Page 123 of 154 . the courts of chiefs and headmen could take judicial notice of indigenous laws and customs.The rules of our common law are judicially noticed.

purpose and objects of the Bill of Rights’. At common law ‘each aspect of foreign law is a factual question and any evidence on that aspect must emanate from someone with the necessary expertise.’ The court reached the questionable conclusion that the rule could not be against public policy because the deceased would have been entitled to exclude his illegitimate child if he had died testate. shall be recognised and applied by the courts subject to the fundamental rights contained in the Constitution and to any legislations dealing specifically therewith. If the litigant fails to establish the applicability of the indigenous law. came to the conclusion that the American law in point was neither readily accessible nor ascertainable and consequently the common law had to be applied. In Mthembu v Letsela the court. tribunal or forum must promote the spirit. like the common law. Unless judicial notice can be taken of the principles they must be alleged and proved.readily and with sufficient certainty. The status of indigenous law was reaffirmed in the interim Constitution by Constitutional Principle XIII which provides that ‘indigenous law. finding that accessible library holdings on the relevant topic of American law were inadequate.’ Section 39(2) of the Constitution states that ‘when interpreting any legislation and when developing the common law and customary law. Fleming DJP. a litigant who wishes to have an action determined by indigenous law must prove that indigenous law is applicable to the case. the boni mores manifested in public opinion. Thus. common law will apply. Indigenous Law In Maisela v KgolaneNOit was held that in terms of S 1(1) of LEAA. The court held that it needs to have the relevant material available. In Harnischfegerthe court held that this presumption applied to both common and statutory law. it was not possible to obtain it readily and with sufficient certainty. In terms of S 1(1) a court may not take judicial notice of indigenous law that is contrary to the principles of public policy or natural justice. Public policy reflects the mores and fundamental assumptions of the community. Page 124 of 154 .’ It will be presumed that there is no distinction between foreign and South African law and the onus rests on the person asserting a distinction to produce evidence. A litigant may adduce expert evidence to prove those principles that are not readily ascertainable. in determining whether a rule of indigenous law which excluded illegitimate children from sharing in the intestate succession of their father was contrary to public policy. every court. it is the general sense of justice in the community. described public policy in the following terms: ‘The interests of the community are of paramount importance in relation to the concept of public policy.

It is argued that Page 125 of 154 . it is invalid. Presumptions of fact. and 3. 3 Classification of presumptions There are traditionally three categories of presumptions: 1. They are as good as a proven fact. It is normally so that if the parties go through a marriage ceremony. the term ‘presumption’ is misleading because these are really rules of substantive law. we are talking about presumptions with basic facts. it is a valid marriage. 2. A presumption is generally acceptance of a fact without proof. In this context. the presumption of innocence is not applied because common sense tells us that most accused persons are likely to be innocent. There is another kind of presumption: a conclusion (the presumed fact). Rebuttable presumptions of law. Also. which assume the truth of certain matters for the purpose of some given inquiry’. but because policy considerations require us to minimise the risk of convicting innocent persons. In R v Bakes the first type of presumption was labelled a ‘presumption without basic facts’. the presumption of innocence requires the prosecution to prove the accused’s guilt. they are used for the sake of normality. which may or must be drawn in the absence of contrary evidence’. It is an exception to the norm that if parties go through a marriage.’ When we discussed presumptions below. and the second type. Heydon argues that in terms of this definition presumptions merely state the effect of the rules as to the burden of proof. Elliot defines a presumption as ‘a conclusion. once it is proved that two people went through a marriage ceremony their marriage is presumed valid. For example. Irrebuttable presumptions of law. For example. 2 Foundation Presumptions have been described as ‘aids to reasoning and argumentation. which may or must be drawn if another fact (the basic fact) is first proved. They save time by not requiring a party to prove something that is most probably true. Presumptions also allocate burdens of proof in accordance with the probabilities and dictates of fairness. Some assert that presumptions assist courts in reaching a valid and effective affirmative finding. For example. Irrebuttable presumptions of law (a) Conclusive proof Irrebuttable presumptions of law furnish conclusive proof of the facts presumed and cannot be rebutted by evidence to the contrary. Presumptions also reflect policy preferences as to desired outcomes. a ‘presumption with basic facts.28 – PRESUMPTIONS 1 What is a presumption? A precise and readily identifiable definition of the term ‘presumption’ is probably impossible to formulate because the nature and effect of presumptions are so varied.

it can be presumed that a person found in possession of recently stolen goods stole them or received them knowing that they were stolen. Evidence is presented showing certain facts. In S v Skweyiya. Consequently. held that the facts did not justify invoking the presumption that the accused himself actually stole them. but not guilty of theft. This relates to a scenario where the court makes certain inferences from a certain factual bias. Rebuttable presumptions of law These ‘are rules of law compelling the provisional assumption of a fact. (b) Examples For example. it creates a certain factual basis. he was found guilty of receiving stolen property. is an inference. However. is there an onus or merely an evidential burden. he lied to the police telling them that he didn’t have a key to the boot. For example. 4 Some examples of presumptions There are three things to remember when looking at this section: what is presumed. Once there is proof of a wedding ceremony. some children under the age of 7 are capable of distinguishing between good and evil. evidence can be presented to show that one or more of the substantive requirements for marriage were not complied with. The court. If there is evidence to show that the traffic lights were green in a certain direction. they should not be disguised as presumptions. Where a presumption infringes a constitutional right. Presumptions of fact Presumptions of fact are described by Elliot as ‘merely frequently recurring examples of circumstantial evidence’. it is an application of common sense. The accused lied again and told the police that he did not know that the goods were in his boot. When the boot was eventually opened. when the accused was stopped at a road block. what is the factual basis that activates the presumption? Page 126 of 154 . In actual fact. Therefore Zeffertt et al are of the view that the rule would be better phrased as ‘No child under the age of 7 may be convicted of a criminal offence’. A court is not obliged to draw the inference dictated by a presumption of fact if such inference would not accord with common sense. The court makes certain inferences. because a child under the age of 7 is presumed to be incapable of discerning between good and evil. They are provisional in the sense that the assumption will stand unless it is destroyed by countervailing evidence’. It is also not a case of a legal rule obliging a court to do that. finding that the goods were of the type that could be quickly sold. he cannot be held to be criminally or delictually liable. a logical connection between the evidence which triggers the presumption and the presumed fact will be a prerequisite for constitutional justification. and from that the court can infer certain facts. therefore the marriage is invalid. all it is. and not because they necessarily reflect reality. The most important example is that of res ipsa loquitur (the facts speak for themselves). so the court can infer that the traffic lights in the other direction were red. However. it was found to contain a stolen hi-fi and bedspreads.because these presumptions exist for reasons of public policy. then the court provisionally accepts that the marriage is valid.

The standard of proof is a balance of probabilities. is it only evidential? It places an onus on the party that wants to dispute the presumption. evidence of witnesses who attended the marriage ceremony and evidence of witnesses who knew that the couple lived together as husband and wife and were generally considered to be married. where does the onus lie. There was evidence that there had been a decree of divorce (indicating that there had previously been a valid marriage between F and H). The court held that all this evidence considered together established a very strong prima facie case that F and H were legally can bring witnesses. Page 127 of 154 . Legitimacy Once a party alleging legitimacy has proved that the child was conceived by a woman whilst she was married. The party contesting legitimacy must prove a balance of probabilities that the child was not conceived as a result of intercourse between the spouses. Although in Aronegary v Vaigalie the presumption was held to persist ‘unless the contrary be clearly proved’ the authors of the textbook argue that an analysis of the majority of cases would indicate that this is a presumption of fact. for example. The onus is on the person who challenges the validity of the marriage to show that it is invalid. NOTE: This is a presumption of all and it places the onus on the party resisting it. What is the effect. A legal burden is created by this presumption. Common sense tells us that the court did not have to invoke a presumption of law to reach this conclusion as the facts alone were sufficient to establish a prima facie case. in Fitzgerald v Green the validity of the marriage of the marriage between F and H was in issue.Marriage The validity of marriage will be presumed once evidence is adduced showing that a marriage ceremony was performed. This presumption can be rebutted by leading evidence of DNA tests showing that the spouse was not the father or by establishing that the husband was sterile. This is normally proved by a marriage certificate. by evidence of witnesses who were present at the marriage ceremony or by satisfactory evidence of cohabitation and repute. The court held that the presumption that they were married in community of property could be defeated by satisfactory evidence to the contrary. In Brummand v Brummand’s Estate the parties’ the marriage certificate did not reflect whether they were married with or without an ante-nuptial contract. The validity of the marriage was challenged on the ground that it was not recorded in the relevant register. Either spouse may give evidence that they did not shag during the period when the child was conceived. The court. although noting that the ordinary way of proving a marriage was to produce the register with a certified extract from it. Thus it appears that a presumption of fact and not a presumption of law applied in this case. This case indicates that this presumption is a rebuttable presumption of law. held that it could be proved in other ways. Every marriage is presumed to be in community of property unless the contrary is proved. What is presumed? It is a valid marriage. but there are also other means . For example. This rebuttable presumption of law creates a legal burden in that the validity of the marriage must be disproved on a balance of probabilities. the child will be presumed to be legitimate. What is the factual basis which activates this presumption? Proof of a wedding ceremony.

the old common law presumption created a legal burden. and furthermore X admitted to this. in the absence of evidence to the contrary which raises a reasonable doubt. There used to be a presumption that a person who refused to submit to a paternity test did so in order to conceal the truth in regard to the paternity of the child. What is the factual basis? In terms of the common law. Paternity of children born out of wedlock Section 36 of the Children’s Act: ‘if in legal proceedings it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother at any time when the child could have been conceived. Page 128 of 154 . there wasa presumption that if a man had sexual intercourse with a woman at any time. who is X. we have two presumptions applicable. F v L 1987 Wis the only prescribed case in this chapter. Thus. L had married X on 15 December 1978. She gave birth to a child on 6 January 1979. which leads to presumption of X and F being fathers. there was a presumption that the child is his. that marriage (see above) points out the father. F alleged that he had had sexual intercourse with L in April 1978. However. this presumption has been repealed and replaced with S 37 of the Children’s Act which merely states that person who refuses to submit to the paternity must be warned that such refusal may have an effect on his credibility. presumed to be the biological father of the child’. in the absence of evidence that could raise reasonable doubt.What is the factual basis? If there is evidence that a child is born from a woman who is married to a man at the time of birth or time of conception or anywhere in between. Secondly. This can be rebutted by a few methods.the husband is the father of the child. but argued that she had also had sexual intercourse with X during this period. while this statutory presumption places an evidential burden on the alleged father. A similar presumption existed at common law. Is there onus or just evidential burden? The onus is placed on the party who is presumed to be the father. evidence that no sexual intercourse took place. In this case. that intercourse leads to fatherhood.What is presumed? The man who had intercourse with the mother is the father of the child.on evidence that a man had sexual intercourse with a woman at a time that the child could have been conceived then. that person is. blood tests. use of contraceptives etc (the court wasn’t impressed with this). Wouter says that the presumption is applicable if the woman is married at the time that the child is born. Firstly. the child is presumed to be the father’s. The court gave preference to L’s choice (X). L pointed out X as the father. However.F applied to court for an order declaring him to be the father of L’s child (the mother had disputed his paternity). L accepted that. This case is just authority for the presumption that it is possible to have more than one presumption applicable to a case. What is presumed? Pater est quem nuptiae demonstrant (the father is he who is pointed by the marriage). Now. evidence that the husband is sterile. then it is presumed that the child is legitimate . The textbook only talks about the woman being married at the time of conception.

It was held that the burst tyre was not a neutral fact as regards the alleged negligence. this does not mean that he must prove that he was not negligent. the motor car slides down the hill.. It is almost exclusively applied where the cause of an accident is unknown. If it is the type of accident that does not ordinarily occur in the absence of negligence. the evidence proves beyond a reasonable doubt that a death has occurred. there is a duty to present evidence. in Arthur v Bezuidenhout and Mienythe appellant’s vehicle had suddenly swerved onto the incorrect side of the road and collided head-on with the respondent’s vehicle. What is presumed? Presumed negligence.’. He must merely show that the facts are consistent with an inference not involving negligence. or he must adduce evidence so as to raise a reasonable doubt. in certain circumstances a person can be presumed to have died. Section 16(1) of the Inquests Act provides: ‘If in the case of an inquest where the body of the person concerned is alleged to have been destroyed or where nobody has been found or recovered. For example. an inference of negligence may be drawn from the accident itself. A judicial declaration of death is a presumption in Page 129 of 154 . The applicant must persuade the court that death can be inferred on a preponderance of probability from the evidence. Once such finding is made the magistrate is required the record of the inquest to a provincial of local division of the High Court for review. The court found that the maxim res ipsa loquitur applied and negligence was inferred. Both drivers had been killed and there was no clear explanation as to cause of the accident.Res ipsa loquitur – the matter speaks for itself This maxim means ‘the matter speaks for itself’. Where an inference of negligence is drawn an evidential burden is cast on the defendant. However. he gets out. the judicial officer holding such inquest shall record a finding accordingly. Is there onus or just evidential burden? It places no onus on the party who wants to resist this. in Madyosi v Eagle Insurance the court found that the maxim did not apply. so just read over it! Death In terms of both the common law and the Inquests Act. The court found that the only known facts relating to the negligence did not only consist of the occurrence itself. A bus left the road and overturned after the left tyre had burst. The court concluded that the fact of the burst tyre precluded the inference being drawn from the mere fact of the occurrence. Note – the rest was not covered in class but is in the textbook. At common law. What is the factual basis? This is an inference that the court makes based on certain facts: a motorist parks his motor vehicle on an incline. However. it should not strictly be classified as a presumption but rather as a permissible inference which may be drawn if it is sustained by the proven facts. but there is no onus. It was known that the bust overturned because of the burst tyre.. As this presumption is not based on a rule of law but on common-sense reasoning. Once the finding is confirmed by the High Court it is no longer necessary to make an application to court for an order presuming death. death is not required to be proved beyond reasonable doubt.

In other cases it is treated as a presumption of law. unless the contrary intention appears. The date of death: The court will presume the death to have occurred on or before a particular date only if the evidence supports such a finding. in the case of persons working in the private sector. the position in respect of registered letters is different both at common law and in terms of statute. Presumption of death and dissolution of marriage:Section 2 of the Dissolution of Marriages on Presumption of Death Act provides that when a married person has been presumed dead in terms of the Inquests Act ‘the marriage in question shall for all purposes be deemed to have been dissolved by death’. it also appears that factors such as absence of prejudice and the intention of the testator also affect the willingness of the court to presume simultaneous death. In Cape Coast Exploration Ltd v Scholtz it was held that ‘we must presume that an official will carry out the ordinary work of his office. or 'give". and posting a registered letter containing the Page 130 of 154 . based upon the presumption that what regularly happens is likely to have happened again. the party alleging a particular order of death bears the onus of proof. Where people have died in a common disaster. Regularity The presumption of regularity is based on the maxim omnia preaesumuntur rite essa act described by Zeffertt et al as follows: ‘In some cases it appears to be no more than an ordinary inference. the younger is deemed to have survived the elder. In Nepgen NO v Van Dyk NO it was held that there is no presumption in our law such as the English law presumption that if the order of death is uncertain. This presumption of simultaneous death is one of fact and will generally only invoked where on the facts it appears most probable that the deaths were simultaneous. An unregistered letter that is presumed to be posted will not be presumed to have been received. S 7 of the Interpretation Act holds that: ‘Meaning of service by post.’ One can use circumstantial evidence can be adduced to prove that a letter was posted. However. Consequently. This is a presumption of fact. This is more easily done in the case of public officials as the court will take judicial notice of the existence of an official routine. or any other expression is used. the service shall be deemed to be effected by properly addressing. the court will require evidence of an office routine from which posting can be inferred. or 'send". the former is dispatched in the ordinary course of business to the person concerned and that he has received it’. the courts have frequently held that they died simultaneously. therefore the burden of proof is not affected. The presumption casts an evidentiary burden on persons alleging that they did not receive the letter. then. In S v Buys it was held that if a letter was sent by registered post it will give rise to a presumption that it was received.Where any law authorizes or requires any document to be served by post. hence we must presume that if an official letter is written and a copy filed. However. sometimes placing an onus upon the opposing party and sometimes creating only a duty to adduce contrary evidence.. However. The party alleging posting may lead evidence establishing the existence of a routine used for posting letters and showing that the letter in question was dealt with in this routine manner. prepaying.that it is based on circumstantial evidence and can be invalidated if the person is subsequently proved to be alive.. whether the expression 'serve".

thirdly. Page 131 of 154 . that it involves to some extent the security of apparently vested rights so that the presumption will serve to prevent an unwholesome uncertainty. and in cases where proof of non-compliance with a formality would involve the disturbance of old and vested rights. In S v Thornhill is was held that the effect of the presumption on the burden of proof varies: ‘In some criminal cases it has been said to place an onus upon the accused. unless the contrary is proved. secondly. that the circumstances of the case add some element of probability.. The following are conditions for the operation of the presumption as set out by Wigmore: First. to have been effected at the time at which the letter would be delivered in the ordinary course of post. In civil cases however. that the matter is more or less in the past and incapable of easily procured evidence.. and. It is also presumed that an official has acted in compliance with prescribed formalities. but in others the judges have used language which indicated that the presumption could be rebutted by some evidence upon which the court could find that the requisite formalities were not complied with. the presumption has often been treated as placing an onus upon the opposing party.document. In R v Jenkins it was held that it could not be presumed that an arrest was lawful. This presumption place a legal burden of the party alleging the contrary. the onus of rebuttal has been very heavy indeed.’ Public officials are rebuttably presumed to have been properly appointed. that it involves a mere formality or detail of required procedure in the routine of litigation or of the public officer’s action.’ The presumption should not be interpreted as meaning that it will be presumed that all official acts are lawful. and finally.

and shall on conviction be personally liable to punishment therefor . Wouter said that we should just read over it from the textbook.29 – A CONSTITUTIONAL PERSPECTIVE ON STATUTORY PRESUMPTIONS Note: this chapter is really short. The following cases demonstrate this infringement. The court therefore rejected the ‘greater includes the lesser test’. According to this test a reverse onus could be saved if the legislature. the court held. then there is an infringement of the presumption of innocence which is unconstitutional. The presumption of innocence At common law and as a constitutional right the presumption places a burden on the prosecution to prove the guilt of an accused person beyond a reasonable doubt. where a statutory presumption requires the accused to prove or disprove an element of an offence or excuse on a balance of probabilities. unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it. such a presumption would create the possibility of conviction despite the existence of reasonable doubt (and therefore infringe the presumption of innocence).” Langa J favoured the approach of the Canadian Supreme Court in R v Whyteand R v Keegstraand held that the section imposed an onus on the accused to prove an element relevant to the verdict. exception or defence. a director or servant of the corporate body shall be deemed to be guilty of the said offence. at the time of the commission of the offence. whether by the performance of any act or by the failure to perform any act. The presumption applies to the elements of the state’s case that must be established in order to justify punishment. In S v Coetzee the Constitutional Court dealt with the effect of the presumption of innocence on a statutory provision requiring the accused to prove an exemption. The section placed a burden on the accused to prove in certain circumstance that a confession was inadmissible on a balance of probabilities. in Page 132 of 154 . either jointly with the corporate body or apart therefrom. The court was required to determine the constitutionality of S 332(5) of the CPA. Furthermore. for which any corporate body is or was liable to prosecution.There are no prescribed cases here. Infringements of the presumption of innocence In S v Zuma the Constitutional Court considered reverse onuses for the first time.We have included the relevant and important parts for you. which provides: “When an offence has been committed. It was not relevant whether the element was of the offence or formulated in a way which permits a conviction despite the existence of reasonable doubt in regard to the substantial part of the offence. any person who was. The court found that the section placed a burden on the accused to prove a fact on a balance of probabilities and therefore breached the constitutional right to be presumed innocent. where it dealt with the constitutionality of S 217(1)(b)(ii) of the CPA. So the gist of the issue is that if a statutory presumption puts the onus on the accused (in respect of a substantial element of the offence) and this presumption permits conviction despite the existence of reasonable doubt with regard to that part of the evidence. the presumption of evidence. The court held that the presumption of innocence is infringed whenever there is a possibility of a conviction despite the existence of reasonable doubt. is breached. and shall be liable to prosecution therefor.

The issue of determining the application of the presumption of innocence to regulatory offences has yet to be determined by the courts. As a result of the presumption. The court (O’Regan J) found that the use of the wording ‘shall be prima facie evidence’ indicated a mere evidentiary burden. and that this belief was reasonable. So Schwikkard thinks that O’Regan J got it wrong. The presumption requires that the court presume the person in control or in charge of the place permitted the gambling game. in the absence of other evidence capable of raising reasonable doubt. at the time of acquiring the goods. The court in S v Manamela drew a distinction between an infringement of the right to remain silent and the presumption of innocence. because the court concluded that the section infringed the right to a fair trial by allowing innocent persons to be brought to trial merely upon proof of a fact which did not indicate any criminal behaviour (for example merely possessing playing cards). The court was dealing with a reverse onus imbedded in S 37 of the General Law Amendment Act 62 of 1955. The Scagelljudgment should have distinguished between permissive and mandatory evidentiary burdens. The court was dealing with a section of the gambling act that basically said when any gambling instruments were found at any place or on the person of anyone found at any place it will be prima facie evidence for the person in control of the place permitted the playing of the game. The proof of the basic fact has a very tenuous relationship with the presumed fact.creating the special defence in respect of which the accused bears the onus. The presumption of innocence was infringed because the section imposed a ‘full legal burden of proof on the accused. does not create the possibility of conviction despite the evidence of reasonable doubt. he would be liable to conviction despite the existence of such doubt. The right to remain silent was infringed because the accused had to establish that he or she believed the goods were not stolen. unlike a legal burden. that they were not stolen. Therefore we are dealing with a presumption that could lead to a conviction despite the existence of a reasonable doubt. even where the prosecution had led no evidence regarding this belief. which merely requires evidence sufficient to give rise to a reasonable doubt to prevent conviction. The Constitutional Court in Scagell v Attorney-General of the Western Capedid not distinguish between permissive and mandatory evidentiary presumptions. The majority held that this reverse onus was a justiciable limit on the right to remain silent but not a justifiable limit on the presumption of innocence. The court found it unnecessary to consider whether the section nonetheless infringed the presumption of innocence by relieving the prosecution of its duty to prove all the elements of the offence charged. has prevented the hardship the accused would otherwise have suffered if it had created an absolute liability defence. Adopting the terminology of Canadian and American courts. the section in question created a mandatory presumption. if the accused exercised his right to silence. The court held that an evidentiary burden. and that this belief was reasonable. Very broadly this reverse onus was such that when the prosecution had proved that the accused was in possession of certain stolen goods the accused must establish that he or she believed. The Constitutional Court has however indicated that the regulatory nature of an offence is better considered as a factor in determining whether a provision Page 133 of 154 .

Page 134 of 154 . only a duty to rebut the prima facie case presented by state. then there is no duty to persuade court. The position is not the same where the provision merely imposes an evidentiary duty on the accused.constitutes a justifiable limitation on the presumption of innocence rather than in establishing a breach thereof. Here it is sufficient for him to merely create reasonable doubt in the eyes of the court to be acquitted. This approach is desirable as it allows the courts to focus on the values at stake in the particular context rather than the unruly distinction between regulatory and criminal offences.

(b) their reliability. We will look at the following closely linked issues: 1. the less convincing will be the latter. apart from the factors mentioned under (a)(ii). not necessarily in order of importance. Remember. which can only be applied by the court once it establishes the facts. probabilities prevail. But when all factors are equipoised. occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The evidentiary burden 4. The more convincing the former. it must do so keeping in mind who bares the onus of proof – this is known as the ‘incidence’ of onus) 3. the law of evidence does not deal with substantive law. That in turn will depend on a variety of subsidiary factors. this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. The evaluation and weight of the evidence (various rules) 2. The onus of proof (when the court evaluates evidence. As to (b). integrity and independence of his recall thereof. This factual basis is determined by evaluating all the probative material admitted during the trial. as a final step. determine whether the party burdened with the onus of proof has succeeded in discharging it. (iii) internal contradictions in his evidence.2 For this purpose all probative material admitted must be evaluated The task of weighing the probative material takes place after the parties have closed their respective cases and delivered their arguments. (b) and (c) the court will then. The court should give reasons for its decisions. The standard of proof 5. (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. The duty to begin (to give evidence) 1 Introduction The court must determine the facts before anything else A court must first determine the factual basis of the case before pronouncing on the rights and liabilities of the parties. a witness’s reliability will depend. In the light of its assessment of (a). which will doubtless be the rare one. (iv) and (v) above. As to (a). (iv) external contradictions with what was pleaded or put on his behalf. (v) the probability or improbability of particular aspects of his version.30 – THE EVALUATION OF EVIDENCE Try remember the beginning of this course: There are two broad themes in the law of evidence: 1. latent and blatant. the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. The hard case. The court’s duty to evaluate probative material is similar to the function of any non-judicial fact finder: credibility is determined. The admissibility of evidence (containing many boring rules which we now know) 2. or with established fact or with his own extra curial statements or actions. inferences 2 The following informative guidelines for the resolution of factual disputes were given in Stellenbosch Farmers’ Winery Group ltd v Martell et Cie: To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses. and (c) the probabilities. on (i) the opportunities he had to experience or observe the event in question and (ii) the quality. such as (i) the witness’s candour and demeanour in the witness-box. As to (c). Page 135 of 154 . The court must attach weight to the material to determine if the party carrying the burden of proof has discharged it in accordance with the applicable standard of proof. The evaluation or weight to be attached to the admitted evidence The following three chapters deal with the second theme. (ii) his bias.

if any. Corroboration Corroboration. The compartmentalised and fragmented approach of the magistrate is illogical and wrong. A provision which places the onus on the accused regarding an essential element of the offense can lead to a conviction despite reasonable doubt. is included in this evaluation. should be weighed to see if it supports any of the evidence tendered. as must corroborative evidence. There are a few legal rules which can assist the court. When the onus is merely an evidentiary burden (to present evidence in face of a prima facie case) then it is acceptable. Two basic principles in the evaluation of evidence must be kept in mind. But these must be distinguished from speculation and conjecture. But by and large the task is a matter of common sense logic and experience. as you know from the movies. Independently verifiable evidence. and probabilities and improbabilities are considered. probabilities must be distinguished from conjecture or speculation. the reliability and opportunity for observation of the respective witnesses. is simply the confirmation (via evidence) of a certain fact. the intrinsic merits or demerits of the testimony itself. taking account of: 3 the probabilities. 2 Basic Principles Inferences and probabilities to be distinguished from conjecture Inferences may be drawn and probabilities considered during the evaluation of evidence.are drawn. and all other relevant factors. All evidence. Page 136 of 154 . if any. evidence must be weighed in its totality. If there are no such facts to infer from then the method of inference fails and we are left with mere conjecture or speculation. Whenever corroboration is present it will be easier to conclude that the required standard of proof has been met. So corroboration is important even though not required by law (except in the case of confessions).Second. inconsistencies or contradiction. Thus this has been held to be unconstitutional. In Caswell v Powell Duffryn Associated Collieries Ltd (not prescribed). including presumptions. In considering whether evidence is reliable the quality of that evidence must of necessity be evaluated. corroboration. Evidence must be weighed as a whole. First. it was held that there can be no proper inferences unless there are objective facts from which to infer the facts which it is sought to establish. formal admissions and judicial notice. the absence of interest or bias. So the court must avoid piecemeal processes of reasoning. Avoidance of piecemeal processes of adjudication In S v Trainor Navsa JA said: A conspectus of all the evidence is required. Evidence must of course be evaluated against the onus on any particular issue or in respect of the case in its entirety. Evidence that is reliable should be weighed alongside such evidence as may be found to be false.

who demanded money from the teller. But the justification for the legal view must I think be that generally it would be too dangerous to take this into account and therefore it is best to have a universal rule. the main perpetrator. the court held that “*B+y corroboration is meant other evidencewhich supports the evidence of the complainant and which renders the evidence of the accused less probable. a bank client who was in the bank at that time also observed everything. However. For example. The rationale of the rule against self corroboration was explained in Director of Public Prosecutions v Kilbourne as follows: “There is nothing technical in the idea of corroboration.” Essentially. for example was the emotional stress genuine or simulated. The rule against self-corroboration In S v Gentle. It merely shows that the witness is consistent. had a big scar on his face. the injuries suffered by the victim of a violent offence may furnish corroboration of his or her testimony. And the law says that a witness cannot corroborate himself. A court can convict on the basis of a confession. When the teller is called as a witness. features of the body identified during an assault case can be taken into account as real evidence corroborating a story. However.” Repetition of a story by a witness can at most prove consistency and cannot amount to corroboration. This is really all back to the common sense approach. So may emotional distress shortly after a violent incident. Much will depend on the facts of the case and the nature of the defence advanced by the accused. In addition. If he is called as a witness and he says the same thing then he becomes corroborating witness as he corroborates the evidence submitted by the bank teller. For example. If there is any real chance that there has been collusion between the makers of the two statements we should not accept them as corroborative. The rule against self-corroboration only applies to oral or written communication by the witness concerned. In the case of S v Mjoli the court took account a previous incriminating statement made in the plea Page 137 of 154 . on the issues in dispute. it still does not provide corroboration of the evidence. as long as the confession is corroborated. a witness’s previous statement cannot be used to corroborate his evidence (think back to previous consistent statements). such corroborating evidence must be approached with caution because a witness can injure himself. In ordinary affairs we are often influenced by the fact that the maker of the doubted statement has consistently said the same thing ever since the event described happened. the previous consistent statement becomes admissible but even in these instances. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in. In ordinary life we should be and in law we are required to be careful in applying this idea. and was it really the result of the fact that the witness was the victim. In certain instances. We must be astute to see that the apparently corroborative statement is truly independent of the doubted statement. the better it fits in the more one is inclined to believe it. there’s been a bank robbery. some types of corroboration are excluded from the rule against self-corroboration.It is evidence confirming a certain fact For example. she describes the robbery as it took place. As with all bank robbers. The facts in issues may require the court to consider certain risk before allowing bodily and emotional condition to be considered corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter. She identifies the accused and the scar on his face.

The landlord then pitched up. Note that meeting the requirements of S 209 does not mean a conviction will necessarily follow. to have been actually committed. The rule against self-corroboration Corroboration is an important means to satisfy a cautionary rule. other than such confession. The reason for a confession being confirmed is that there are sometimes false confessions. because the accomplice may have good reason to lie. This is the one area in which corroborations are required by law. For example. S 209 looks at the circumstances in which an admissible confessionwill be sufficient for the purposes of of the accused’s explanation of the plea confirmed his extra-curial confession. In S v Rossouw. A court must still ultimately decide that guilt has been proven beyond a reasonable doubt. The majority found the evidence admissible. despite finding that. his mother and his brother were sentenced to hang. if such confession is confirmed in a material respect or. there had been sufficient confirmation of the confession in material respects. The section holds that there must be either confirmation in a material respect or evidence aliunde (outside) the confession that the offence has been committed. where the confession is not so confirmed. where the confession is not so confirmed. He. ‘what on earth could motivate someone to make a false confession?’ But it does happen. The court held there was no proof of guilt beyond a reasonable doubt. but other parts contradicted it. 209. other than the confession. evidence submitted by of an accomplice results in the court applying a cautionary rule.—An accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question. it will look for safeguards in the form of corroboration of the accomplice’s evidence. Page 138 of 154 . the courts are going against this rationale. telling everyone that he had been kidnapped by someone else! 3 A confession made in the course of plea proceedings does not need to satisfy the requirements of s209. S 209 serves to prevent convictions on the basis of false confessions. Once the court has warned itself. In many instances they will overlap. Keep this in mind when reading about cautionary rules below. if such confession is confirmed in a material respect or. Wouter reminds us that we may think.But such a confession (or admission) may for the purposes of s209 serve as confirmation of an extra-curial confession proved by the prosecution against the accused. There was a strong minority judgment which held that it is true that sometimes confessions are incorrect. despite its admission being against the rule of self-corroboration. The case is controversial. Section 209 provides that an accused may be convicted of an offence on the single evidence of a confession by such accused that he committed the offence in question. Conviction may follow on confession by accused. if the offence is proved by evidence.3 The purpose of this requirement is to prevent a false confession serving as basis of a conviction. if the offence is proved by evidence. Corroboration of confessions We mentioned S 209 of the CPA briefly when looking at the admissibility of confessions. By allowing an accused’s previous statements to confirm the confession. for the purposes of s 209.procedures by the accused. the accused confessed to the murder of his landlord. to have been actually committed. In Perry. as corroboration of the evidence.

if there are any signs of suicide which contradict the confession. But there was no evidence aliunde (outside) the confessions/admissions of the offence having been committed. The prosecution also proved various confessions which the accused had made to her daughter. Note that in Blyth. For example. that if that is the case. by stabbing that person several times in the back with a knife. and not the arsenic poisoning. The wife said that he letter was a false confession. The court will look if. The wife told the doctor about her husband’s heart problems. The issue was whether the various confessions. He called the doctor (who was not his normal doctor) but did not tell him about the vomiting.the accused wrote a letter to the policeconfessing to the murder of her husband by arsenic poisoning. The letter to the investigating officer was held to be ambiguous. It was confirmation in a material respect. One day. or if there is in fact evidence outside the confession to show the crime was committed. If the accused had testified things might have turned out differently. Negpen J held that the required confirmation may come from another extra-curial confession made by the accused. So if ‘A’ confesses to the stabbing and murdering of B. if it is proved that B died as a result of stab wounds. and never entered the witness box. The requirement then is simply that a material aspect of the confession be confirmed. could be said to have been confirmed in a material respect. This does not really protect an accused against a false confession though.The court said. there is a body showing several stab wounds in the back (hence there’s a confirmation).In R v Blyth 1940 AD 353. He was diagnosed with heart problems. a high degree of confirmation was required. bearing in mind that despite the fulfilment of S 209 the court must ultimately decide if there is reasonable doubt as to the guilt of the accused. where she mentioned specifically that she murdered him with arsenic. Her husband was a serious drinker. S 209 can be satisfied. it would be sufficient for the purposes of s 209. he started vomiting all over himself.The circumstances of the accused’s husband’s death were consistent with both murder and suicide. but if the wounds were on his wrists. There is evidence of his confession. But note that the accused did not testify in this case. and therefore could not provide sufficient Page 139 of 154 . The court said that for a conviction there had to be compliance with S 209 of the CPA ANDthe standard of proof beyond reasonable doubt. The judge held further that because the confession to the magistrate was in certain respects unsatisfactory. even though it did not connect her to the murder and did not amount to evidence aliunde that her husband had been murdered. The fact that the body contained some arsenic was found to be sufficient confirmation of the confession. things would be different. it is not necessary to prove that the offence was committed. the AD rejected the defence argument that suicide had not been rule out beyond a reasonable doubt. or at least one of them. the stabbing. as the prosecution merely has to prove the commission of the crime. but does this evidence show that a crime had been committed? What if it was a suicide? Let’s say that a person confesses to murder. by evidence aliunde the confession. In S v Erasmus (not prescribed) the prosecution proved both a confession by the accused to a magistrate as well as an incrimination letter which the accused had written to the investigating officer. as we’ve said. Wouter discussed the following: this evidence confirms the confession. Later the letter was sent to the police and the victim’s body was exhumed. like in Blyth (and as we’ve said above). but did he commit the offence? The stab wounds in the back show that an offence was committed. The fact that the stab wounds were in his back rules out suicide. for example.

In the Page 140 of 154 . The fact that a confession complies with s 209 does not mean that the contents thereof must necessarily be accepted as the truth. their behaviour in the witness box. 5 Circumstantial Evidence Recall that circumstantial evidence furnishes indirect proof. as a perfectly honest witness could look nervous. and the impression they create.confirmation. Everything will depend on the particular circumstances of the case. A wide variety of factors must be taken into account in the assessment of a witness’s credibility. our law does not follow the old rule ‘once a liar. does he look down and does he avoid eye contact? Demeanour is considered real evidence. their character and personality. Take as an example a murder. demeanour is a tricky horse to ride. because the witness has made no direct assertion with regard to the facts in issue. Does he look nervous.’ Mendacity (a synonym for ‘dishonesty) is a factor to consider. but other aspects of his evidence may be accepted. in the sense that it is something that the trial court observes. The court may be more careful of this person. However. Despite the inferences that could be made. ‘At best. Furthermore it was held that the prosecution has discharge of the onus of proving the murder beyond a reasonable doubt. Credibility of witnesses can be decisive to the outcome of a case. including: the general quality of testimony the consistency. while a guilty person could look perfectly calm and confident. always a liar’. If C testifies that A had a motive to kill B or that he saw A running from B’s home with a knife. It is a type of evidence from which the court is required to draw inferences from the relevant facts as to the facts in issue. That constitutes direct evidence. 4 Credibility: The impact of demeanour and mendacity Take note briefly of the following. Demeanour of a witness includes their manner of testifying. that constitutes circumstantial evidence. S v Blom is an example of the accused being acquitted because the two confessions proved against him both contained material untruths. the court should not rely too extensively on demeanour. both within the content and structure the witnesses own evidence and with the objective facts the witnesses capacity and opportunities to be able to depose to the events he claims to have knowledge of the witness’s integrity and candour age where relevant personal interest in the outcome of litigation intellect objectivity the witness’s temperament and personality the witness’s ability to effectively communicate what he intends to say the weight to be attached and the relevance of the witness’s version of events An assessment of credibility that includes demeanour is an inevitable consequence of a trial system based on orality and confrontation. Circumstantial evidence is not necessarily always weaker than direct evidence. where C testifies that he saw A stabbing B. but the confession to the accused’s daughter could.

he saw the doctor a further two times. Evidence of conduct before showing motive.process of drawing inferences from circumstantial evidence. All the circumstantial evidence relevant to the facts in issue could be considered by the court. This case is authority that the courts must reason on the basis of circumstantial evidence in criminal cases. Remember the dog of all dogs Tilly? He identified this and was held to be a hero to all who have studied the Law of Evidence. There reasons contradicted each other. When purchasing the chloroform. Furthermore. which could then make inferences to the matter in casu. Her body was found on a railway line after a train had connected with her body. where he gave two different reasons as to why his back was sore. showing a guilty conscience The accused had seen a doctor prior to the event. There also existed evidence showing blood and hair on the accused’s clothes. was charged with the murder of a young black woman. Amplification of heavy dose chloroform Evidence was submitted to the court in three major categories. a white man. A heavy blow to the head 2. There was also evidence that he had purchased chloroform. he made false statements to a police officer who confronted him about the chloroform which he had on him. and evidence to show he had a design There was evidence showing that the accused had enjoyed an illicit relationship with the deceased. the accused left his takkie at the scene of the murder. and that she was pregnant. After the event. In S v Shabala. Inferences in Criminal cases – two cardinal rules of Logic R v Blom is the locus classicus on this issue and is always being referred to by everyone from Wouter to the courts. there are two cardinal rules of logic which cannot be ignored. That is the evidence against the accused. certain rules of logic must be followed and the difference between criminal and civil standards of proof is important. Watermeyer J held that in reasoning by inference in a criminal case. Page 141 of 154 . The facts are as follows: The accused. This showed that he had a guilty conscience. There were two possibilities as to how she died: 1. which corresponded to the deceased’s hair and blood. Evidence showing opportunity There was evidence showing he had ridden a bike to the scene of the crime. R v De Villiers pointed out that the court should not consider each item of circumstantial evidence in isolation and then give the accused the benefit of the doubt as to the inference to be drawn from each single circumstance. The medical evidence showed that the deceased was dead before she was put on the railway line. he has given a false name and another reason for buying the chloroform. Evidence of conduct of accused after the event. Court must consider the cumulative effect of all the circumstantial evidence The court should always consider the cumulative effect of all items of circumstantial evidence.

This is obviously just a restatement of ‘in a criminal case you can’t hold inferences to be correct when there is reasonable doubt’. Why only reasonable inferences? Why not probable inferences? This relates to the standard of proof. but not second. The medical evidence showed that the deceased died either by a blow to the head. The second rule is that the proved facts should be such that they exclude every reasonable inference from them save the one that is sought to be drawn. it may return a verdict of not guilty. there must be a doubt as to whether the inference sought to be drawn is correct. In AA Onderlinge Assuransie Bpk v De Beer(not prescribed) it was held that a plaintiff who relies on circumstantial evidence (in the civil case) will discharge the burden of proof if he can convince the court that the inference he advocates in the most readily apparent and acceptable inference from a number of possible inferences. the only reasonable inference was that the accused was guilty of the offence. It must be the only reasonable inference. In this case. Any other reasonable evidence must be excluded. The court then applied these two cardinal rules of logic to the facts of the case. This is because of the lesser standard of proof in civil proceedings. medical evidence showing that the cause of death was a stab wound). If not.  Certain facts will be beyond doubt (for example. if stab wounds were proved.Inference must be consistent with the proved facts. In civil cases the standard of proof is on a balance of probabilities. but need not be the only reasonable inference. Thus in civil proceedings. that inference cannot be drawn. then those inferences must be consistent with the certain facts. Page 142 of 154 . Inferences in Civil cases Wouter did not spend much time on this.—If. Thus inference must be the most probable inference. The conduct of the accused swayed the court in favour of showing that the only inference that could be made was to convict the accused. killing the deceased with chloroform. The first rule in Blom applies. The standard of proof in criminal cases is beyond reasonable doubt. If not. where the accused showed a guilty mind. at the close of the case for the prosecution at any trial. Accused may be discharged at close of case for prosecution. the inference was that the accused caused the death of the deceased with the application of chloroform. Note that the rules set out in R v Blom are not applicable when considering an application for a discharge in terms of S 174 of the CPA. If the court wants to make inferences in this regard. the inference sought to be drawn must also be consistent with all the proved facts. Because of the conduct of the accused after the event. the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge. or chloroform.The first rule is the inference sought to be drawn must be consistent with all the proved facts. Thus the court cannot hold that the accused had killed the deceased with a gun. 174.  The inference the court makes must be the only reasonable inference. The standard of proof differs in a civil case so the inference in civil cases can be the most probable.

Failure to Cross Examine A failure to cross-examine is generally considered an indication that the party who had the opportunity to do so did not wish to dispute the version or aspects of the version put by the particular witness who was available for cross-examination. Furthermore. it must at least indicate that it is doing so with circumspection and that it is fully aware of the dangers of this approach. in that prima facie proof may become conclusive proof. This was not discussed in class.Credibility of a Witness: Previous Experience of the Courts Previous experience that a court has of a witness has limited value and could operate unfairly and lead to injustice. What is the effect of the accused’s silence in face of a prima facie case made by the state? Remember that the accused has the right to remain silent. it was held that the court is under a duty to warn the accused in this regard. The court has a duty to warn an unrepresented accused that there may be these consequences to him not testifying. We didn’t discuss this in class. the court has no room to move and must convict him. What will be the result of the accused failing to enter the witness box? In civil cases. This will depend upon the circumstances of the case. The answer comes from S v Brown However. no adverse inference can be drawn against accused merely because he exercised his right to remain silent. 6 Failure of a party to testify (and the constitutional right to remain silent) This is the important section in this chapter. the court will decide the case on the un-contradicted prima facie case of the state. the acceptance of the credibility of a state witness does not necessarily equate to a rejection of the accused’s version of the story. consider the following: Was the party concerned perhaps under Page 143 of 154 . Wouter reminds us that the right to remain silent cannot exclude common sense. Failure to call available witnesses A party’s failure to call available witnesses may in exceptional circumstances lead to an adverse inference being drawn against the party so failing. depending upon all the circumstances of that case. However. The accused has no way of testing the court’s opinions and usually has no prior knowledge of those opinions. inter alia. InBrown. the state has made a prima facie case against him. The fact that the accused remained silent is not an extra piece of evidence that the court can take into account against the accused. a party’s failure to give testimony under oath or affirmation may have an adverse effect on his case. If the accused remains silent in a prima facie these circumstances. However. Where the court does rely on its own knowledge of witnesses. The court should. This may result in negative consequences for the accused. Failure to cross-examine may not be held against an illiterate and unrepresented accused.

where an accomplice gives evidence. The cautionary rule requires: 1) that the court is compelled to consciously remind itself to be careful in considering evidence which practice has taught should be viewed with suspicion 2) that the court should seek some or other safeguard reducing the risk of the wrong finding due to suspect evidence The practice originated at the time of the jury system. evidence of an alibi and evidence of or opinion regarding handwriting. mendacity (dishonesty). For example an accomplice. it should not affect the standards of proof. the absence of gainsaying testimony etc. Any factor which in the ordinary course of human experience can reduce the risk of a wrong finding will suffice. Furthermore corroboration is not the only manner of satisfying the cautionary rule. Note that when a cautionary rule does apply. For example. Definition The cautionary rule is a rule of practice which must be followed whenever evidence of certain witnesses is evaluated. It has been held that. In addition.4 4 S v Masuku gave this account of the principlesrelating to the evidence of an accomplice: Page 144 of 154 . 7 The cautionary rules This was emphasised in class. where the judge warned the jury not to attach too much weight to certain evidence. it can reduce the risk of a wrong conviction. Additional instances where the court should exercise caution include evidence of voice identification. Evidence of an accomplice: One such instance that the court should view with suspicion is the case of certain witnesses who may have special motives to give false evidence. he can do this easily as hehas intimate knowledge of how the crime was committed. who may have special reasons for wanting to incriminate the accused falsely. a failure to cross-examine. or unreliable? We didn’t discuss this in class. 1. implicated a relative against whom he bears no ill will. The exercise of caution should not be allowed to replace the exercise of common sense.the erroneous but bona fide impression that he had proved his case and that there was therefore no need to have called the witness? Is there a possibility that the party concerned believed that the potential witness was biased. and in addition to the accused. An accomplice will have a motive to lie and put blame on the accused. Instances where cautionary rules are applied Note that this is not a closed list. hostile. It serves a reminder to the court of the danger which may be involved with the facile or superficial acceptance of the credibility of certain witnesses.

In the absence of any of the aforementioned. per S v Dladla the cautionary rule is applied to an accused that testified in his own defence and implicated his co-accused. Rather. In S v Mthetwa it was explained that human observation is fallible and therefore it is not enough that the identifying witness is honest. if corroboration is sought it must be corroboration directly implicating the accused in the commission of the offence. private detectives. the proximity of the witness. 3.The evidence of an accessory after the fact is subject also falls within the ambit of the cautionary rule. the distinction between real and testimonial was held to not really be valid: the question is rather how the evidence was obtained – see Chapter 12]. The parade must have taken place in a proper way and proper fashion. the extent of the witness’s prior knowledge of the accused etc. including lighting. Such corroboration may however be found in the evidence of another accomplice provided that the latter is a reliable witness. are beyond question. 3. This will depend on numerous factors. 2. Note that identification in court (dock identification) is of little probative value. as there may be a risk of an accused trying to save his own skin at the cost of another accused. more weight will be given to the parade than the ‘dock identification’ – which in general is given very little probative weight. the latter remains an accomplice and the court is not relieved of its duty to examine his evidence also with caution. a child can testify at a very young age but needs to be able to have limited imagination and be good at 1. Evidence of children: R v Manda pointed to imaginativeness and suggestibility of children as only two amongst a number of reasons why evidence of children should be approached with caution. the opportunity for observation. 5. A court will more readily accept evidence of identification by a witness where such has been confirmed at a properly conducted formal identification parade where there were no material irregularities and where there are detailed rules to govern the procedure. and the demerits of the accused as a witness. There is not a specific age whereby the cautionary rule applies. he had become convinced that he was the offender. it is competent for a court to convict on the evidence of an accomplice only where the court understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is only permissible where the merits f the accomplice as a witness. 4. having seen the offender in the dock. Page 145 of 154 . The following witnesses are also suspected of having an ulterior motive for giving evidence: the plaintiff in paternity and seduction cases. The assurance may be found there the accused is a lying witness. The risk of false incrimination will be reduced where the accomplice is a friend of the accused 9. Evidence of identification: Experience has shown that it is very easy for the identifying witness to be mistaken. You should also remember the Tandwa case in this regard![here. A court should be alert that a person may identify a person in court simply because. Where there is no such corroboration there must be some other assurance that the evidence of the accomplice is reliable. Caution in dealing with the evidence of an accomplice is imperative An accomplice is a witness with a possible motive to tell lies about an innocent accused Corroboration of the details of crime (not corroboration which implicates the accused) is not enough to show the truthfulness of the accomplice. The reliability of his observation must also be tested. corroboration. 6. Furthermore. The list is not exhaustive. To satisfy the cautionary rule. and persons who claim against the estates of deceased persons. It is not a closed list and it’s basically common sense stuff. 10. or where he does not give evidence 8. If it is. 2. 7. Where the corroboration of an accomplice is offered by the evidence of another accomplice.

The following paragraph was not dealt with in class. the jilted lover’s revenge) c. BeforeJackson. Page 146 of 154 . it was argued by the defence that the regional magistrate had erred in not applying the cautionary rule correctly. The possibility existed for emotional reaction or spite (i. and. In S v Webberit was decided that the evidence of a single witness should be approached with caution. he says. He was found guilty in the trial court. Thus. Zeffert notes that this rule has not been applied rigorously in many cases. in the absence of corroboration. The same is true of judgment in civil cases. 5. Jacksoninvolved a case of attempted rape by a policeman. She can make the implications of the charge and make it difficult to for the man to refute it. it is possible that the witness made a mistake. 4. The act took place in secret and the complainant was involved and has intimate knowledge of what happened. evidence must be satisfactory in all material respects. Section 208 of the CPA provides that an accused may be convicted of any offence on the single evidence of any competent witness. what they imagined and what was suggested to them. The correct approach is to assess the intensity of the bias and to determine the importance thereof in light of the evidence as a whole. Single witness: The court can make a finding on evidence of a single witness. However. the court’s reasoning for the cautionary rule was that: a. Having done so. so just read over it: In S v Sauls it was said that there is no rule of thumb test when it comes to considering the credibility of a single witness. the evidence of a single witness must be satisfactory in all material respects. where parties are caught in the act. The South African Law Commission has recommended that the cautionary rule relating to children be abolished. Circumstances may force the complainant to represent consensual sex as rape – for example. although it is somewhat risky to base a finding on one person’s version of the facts. but it remains to be seen what will come of the recommendation.communicating (how ridiculous). The trial court should weigh the evidence of the single witness and should consider its merits and demerits. b.In the absence of corroboration. As a general rule. argued that this rule should be abolished. is ‘is there proof beyond reasonable doubt?’ Evidence of a single witness can be accepted as long as it meets this bottom line. it should decide whether it is satisfied that the truth has been told despite shortcomings or defects or contradictions in the evidence. honesty does not mean reliability. It was based on an archaic view of female psychology and was thankfully abolished in S v Jackson 1998 (1) SACR 470 (SCA) (prescribed). young children can’t properly distinguish between what they experienced.e. such evidence shouldn’t necessarily be rejected merely because the single witness appears to have an interest or bias to the accused. Even when there is an honest witness.The most important question (‘the bottom line’) to ask. in the alternative. On appeal. Evidence of the complainant in sexual cases (this cautionary rule has been abolished): There used to be a cautionary rule applying to the evidence of female complainants in sexual cases. The test is found inRex v Mokoena. The state held that the magistrate did apply the cautionary rule correctly.

He stopped on the side of the road and raped her while his co-accused. the courts may approach the evidence with caution. it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. Du Plessis. the court held that it is clear that the Jackson rule is abolished: you can only treat sexual cases with caution if there is a single witness. the South Africa Law Commission thinks that Jacksonmerely reformulates the old rule. In addition. Three men were charged with the rape of a 29 year old girl at a night club. R v Easton: “In some cases.told the other two men to“move away." S v M applied S v Jackson. The court held that there is no truth to the myth that women habitually claim that they have been raped.The appeal court held that the evidence in a particular case may call for a cautionary approach. and doesn’t abolish it (probably because the court held that it ‘may call for a cautionary approach’). De Kock. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. Statutory confirmation of the abolition of this cautionary rule is found in section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. on account of the nature of the offence’.However.) Fletcher v State (not prescribed) applied Jackson. Wouter also thinks that the rule has been reformulated and not abolished. The court cited the following passage from the English case of R v Makanjuola. The evidence must be looked at as a whole in order to assess its reliability. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. with caution. He went to the police. ‘in a particular case with certain circumstances. held her down. it is my turn”. He then took her. which came into operation on 16 December 2007. The court held that there is no general cautionary rule that arises when the complainant gives evidence in a rape case. he agrees with the criticism to the cautionary rule.He was found not guilty in the trial court due to his actions. put her on his shoulder and ran away. Page 147 of 154 . but that this is a far cry from a cautionary rule. The general view seems to be that the cautionary rule is abolished. This section doesn’t oust the application of the cautionary rule where the complainant happens to be a single witness or where identity is in issue (as a single witness. He told the other two to move away. The textbook thinks this view makes no sense and that there is nothing unclear about what Olivier JA was doing in Jackson. and thathe wants to help her. He then whispered to the girl that she must co-operate. Fletcher offered a lift to the complainant. However. a court may not treat the evidence of a complainant in criminal proceedings involving the alleged commission of a sexual offence pending before that court. the rule stereotyped woman as unreliable. The other two accusedwere convicted. she may give sketchy evidence etc. such as a case where the only witness is the women alleging rape’. An evidential basis does not include mere suggestions by cross-examining counsel. On appeal. IT provides ‘notwithstanding any other law.The third guy. which was based onirrational and outdated perceptions. and negated the humiliation and difficulty that a woman faces in bringing this kind of evidence.

(b) Evidentiary Burden This is the duty to adduce evidence to combat a prima facie case made by the opponent. In the case of damages for assault. In those exceptional cases where the onus is on the accused in respect of certain elements of the offence. the court clarifies this. he must prove this. All the probative material that was admitted must therefore be evaluated and in this process. Distinguish (a) Burden (onus) of Proof This is the duty on a party to persuade the court of his version of the facts. The accused will have a duty to rebut the prima faciecase and he will succeed if he creates reasonable doubt by showing that his version is reasonably possibility true. then the standard is proof on a balance of probabilities as it is in civil cases. which is reasonably possibly true then the state has not discharged its duty. however.CHAPTER 31 & 32 – WEIGHT OF EVIDENCE. If the onus in the latter is on the plaintiff. the court must attach weight in order to decide whether the person with the burden of proof has discharged that burden. he has the duty to show that his version is more probable than the defendant’s. From the accused perspective it means that if the accused presents a version. in civil cases – it is usually on the plaintiff. The law of evidence is about establishing the facts. Criminal cases Where the mental illness or defect of the accused is raised. which are necessary before the substantive law can be applied. Standards of proof These are the standards to determine if the party carrying the burden of proof has discharged it. the onus is on the plaintiff to prove the assault but if the defendant raises the special defence of self-defence. If there is a murder trial and the state produces eyewitnesses implicating the accused. there are a number of exceptions and the onus may be on the plaintiff in certain elements but the onus may be on the defendant on other elements. the onus is on the accused to show that he was criminally not responsible and he must show this on a balance of probabilities. one must distinguish two situations: (i) a substantive law defence ala S 78 of CPA. that evidence will make out a prima facie case at the end of the state’s case. due to Page 148 of 154 . In S v Van Neyden. (ii) and any procedural issues relating to the triability of the accused ala S 77 of the CPA. Where the substantive defence (“the then issue”) is raised to the effect that he could not appreciate the wrongfulness of his act or he could not act in accordance with the appreciation. If the procedural issue is raised to the effect that. The incidence of this burden: in criminal proceedings – it is on the state in all elements of the crime except in relation to the plea of insanity. STANDARDS AND BURDEN OF PROOF & EVALUATION OF EVIDENCE Note – these two chapters have been combined as that’s how they were taught! 1 Introduction A court must determine the facts before it can pronounce on the rights. In a criminal case the standard of proof is beyond reasonable doubt. duties and liabilities of the parties.

If the answer is yes. The accused has to lay a foundation in order to succeed. Non-pathological capacity This is brought on by anger or stress. the onus remains on the state and must be discharged beyond reasonable doubt. the onus is on the defendant to prove his defence. In some instances the onus falls on the defendant to prove his case and sometimes he also has to begin. There is also a duty to begin which usually falls on the plaintiff. In Shuping.mental illness or defect. (ii) Civil Cases In most instances the onus of proof is on the plaintiff and there is also a duty to present evidence in order to discharge the onus to prove the case. He has the duty to present evidence to combat a prima facie case against him as well. the court said that the Constitution curtailed the discretion a court had in the context of S 174 to the extent that it is almost nonexistent. then the application must be refused. The duty of an accused to introduce a defence There is a duty on the accused to raise a defence and he will do so at the plea stage where he is asked for an explanation of his plea (he is not obliged to explain as he has the right to remain silent) but if he does not do it there. he cannot be tried because he is incapable of understanding the proceedings so that he can make a defence (“the now issue”). In S 174. in the opinion of the court. Examples are (pg 572 footnote 4 & 6) a landlord and tenant relationship in a case where there was damage or where there is a contract and the defendant alleges that the contract is unlawful or raises the defence of prescription then the defendant has the onus. however if the answer is no then the court must ask. there is no evidence against the accused. in S v Mathebula. Application for discharge of the accused S 174 of CPA The important case is Lubaxa. Is there a reasonable possibility that the evidence may be supplemented by the defence? If the answer is yes. if at the end of the state’s case. Page 149 of 154 . In an assault claim where the defendant raises a special defence of self-defence as in Mabaso. the court may acquit the accused. This comes from the common law and was confirmed in legislation. then court must refuse the application. In Lubaxa the court held that the second part of the inquiry is not appropriate where there is only one accused such that there is a duty to discharge. It is order for the state to rely on the evidence of an accomplice and thus it is in order for the section to apply in this way. If there is more than one accused then a court has discretion to refuse an application for discharge even if there is no evidence but there is a reasonable possibility that the defence may supplement the state’s case (one of the co-accused will implicate the other). the court held that there are two questions to ask when faced with this situation: (i) Is there evidence upon which a reasonable man mighty convict? This measure was to prevent a case with no grounds to come before a jury. The party relying on the contract must prove the contract even where he has to prove a negative such seen (pg 573 footnote 8). The court decided that if there is no evidence implicating the accused then the court is obliged to acquit the accused even in the case that there is more than one accused thusShuping is no longer valid. In the constitutional era. he must at least do so at the cross-examination.

This can also be granted at the end of the trial. He has the onus as well as the duty to begin leading evidence. eye-sight. However. if the defendant is of the view that the plaintiff has not made a case then he can ask for absolution from the instance. etc of witness are important. At the end. The court will also ask whether the onus has been discharged. The duty to begin This can in some instances rest on the defendant such as where the plaintiff sues the defendant for payment for a loan and the defendant admits the loan but avers that the loan has been paid. The view is expressed in some cases that the evidentiary burden shifts from one party to another depending on how the parties make their case – this unnecessarily complicates matters. the order has not got res judicata effect such that the plaintiff can raise the issue again based on the same cause of action. the test is whether there is evidence upon which a reasonable court might find for the plaintiff. In SFW Group v Martell the court dealt with having to resolve a Factual Dispute. bias towards a party and contradictions between evidence given and prior statements are considered when weighing up the evidence given by a witness. Now that we have no jury. Resolving a factual dispute Witnesses Credibility The demeanour of the witness is important. Absolution from the instance There is a possibility at the end of the plaintiff’s case. Reliability Time frame or opportunity to observe. it could rather be explained as when a party makes his case and he has a duty to present evidence and by the end of his case he has established a prima facie case and then the other party needs to just show that his version is more probable. The test at the end of the plaintiff’s case was whether there was evidence that a reasonable man might find for the plaintiff – the plaintiff must at least succeed in making out a prima facie case to avoid such an order from being given.Evidentiary Burden The onus rests on a particular party as determined at the beginning of the trial and this does not shift from one party to another although different elements may need to be proved by different parties. 2 The Evaluation of Evidence There are certain basic rules applicable to the evaluation of evidence. The court will also take into account the probabilities to determine whose version is reliable. the court asks whether the plaintiff has succeeded in discharging his onus then if not the court can grant absolution. if the court at the end of the trial cannot find an outweighing factor. Page 150 of 154 .

the previous consistent statement can never provide corroboration. This rule against self-corroboration only applies to oral or written statements but it does not apply to real evidence such as conditions or features of the complainant’s body. because the reason for the rule is that a confession must be confirmed in order to prevent the admission of false confessions. It is compulsory with regard to confessions (S 209). A witness’s previous statement cannot then be presented as evidence to corroborate his statement. Where the accused. The magistrate should have just stated the material portions of the evidence. Cautionary rules apply to identificatory rules. An example is there was a bank robbery and the main robber had a big scar on his face and he is caught and a bank teller is called as a witness and he describes the robbery and identified the accused and mentioned the scar on the accused. The court said that the magistrate was untidy. the evidence can be admitted as held in S v Mjoli. There must be reasons given to explain why certain evidence was accepted while other evidence was rejected. The majority in this case found that a prior admission that the accused had made in the plea proceedings could be taken to corroborate evidence of his confession. however. The injuries of a rape victim for instance can corroborate her evidence but must still be taken with caution as a witness can hurt themselves. for example. A previous consistent statement is generally not admissible but there are exceptions to this rule but even in the exceptional cases. One must distinguish inferences from mere conjecture or speculation – there must be objective facts from which inferences can be made. In many cases there is no direct evidence but there is only circumstantial evidence from which the court can make certain inferences about what happened.Courts must give reasons In S v Bhengu the court dealt with a judgment delivered by a magistrate and the judge was scathing about the quality of the magistrate’s decision. There is also a client who observed the robbery and the accused. This is a controversial issue. disjointed and he just repeated what the witnesses said in his reasoning. One must distinguish the instance where corroboration is compulsory and the context of cautionary rules. made a confession and the confession is admitted against him. Page 151 of 154 . Basic Principles When the court evaluates the evidence then it must do so in its totality. Where corroborating evidence is presented to the disadvantage of the witness. The court must not just place too much weight to one portion of evidence. If you allow an accused to corroborate the confession with a previous admission then the risk is not averted. looking at the evidence as a whole. As rule corroboration must come from a source independent form a witness who stands to be corroborated which is the rule against self-corroboration as held in Kilborn. If the latter is called as a witness then he will corroborate the facts of the teller. The judge said that what is appreciated by courts is quality and not quantity of judgments. Corroboration This is the confirmation of a certain fact by evidence. Another example is in S v Erasmus.

The accused’s husband was a heavy drinker and had been diagnosed as having a heart problem. Credibility: the impact of Demeanour and Mendacity The demeanour of the witness is one of the things that can be taken into account to test the credibility of the witness but not too much weight can be placed on this. Perry confessed that he. In Perry’s case. The court found that there was confirmation here as she mentioned in the letter that she murdered him with arsenic and arsenic was found in his body. Then 10 months later when she was living with another man and in a fit of rage she wrote a letter saying she had poisoned her husband. his brother and his mother had murdered their landlord. pointing out by the accused. On this evidence it was said that the body of her husband was poisoned and upon the examination arsenic was found in the body. Page 152 of 154 . It was argued that it’s necessary that evidence of a commission of a crime must be present but the court said this is not necessary where there is a confirmation of a confession. NOTE: the discovery of arsenic in his body does not show that a crime was committed – as this is reconcilable with suicide. the husband and the wife called in a doctor and told him about the husband’s heart failure. There may be an overlap in the sense that the evidence outside may prove the confession in a material respect. At the trial she did not testify in her own defence. On 2 January 1939. The purpose of this requirement is to try to prevent a false confession from forming the basis of a conviction. With regard to when it is found that a witness lied at some point – “to be false in one aspect does not mean that you were false in all aspects” but the fact that you did lie in one aspect is a factor that the court will take into account in evaluating the totality of the evidence. In the case with the dog Tilly there was circumstantial evidence such as blood and hair of the accused. Evidence outside the confession that an offence was committed (not that the accused did it) If the accused confesses that he stabbed the deceased in the back and then it is found that there are stabs wounds found on the deceased back then this shows that a crime was committed. Confirmation in a material respect R v Blyth 1940 AD 353 is the key case. etc. The doctor pronounced that he died due to heart failure. An example of the application of this is R v Blyth. which was found. “Demeanour is a tricky horse to ride” . The accused was charged with the murder of her husband and the main evidence was a confession in a note sent to the police. At the appeal it was argued that it was necessary to show that there must be evidence of the crime but the court disputed this. Circumstantial evidence This is evidence regarding facts relevant to the facts in issue from which the court can make inferences regarding the facts in issue (facta probanda). The court must consider the cumulative effect of all the circumstantial evidence. They were hanged and three years later the landlord appeared. She refused to admit that the confession was true.Corroborations of confessions S 209 says that a court may convict an accused on the single evidence of a confession if the evidence is proved by evidence outside the confession or if the content of the confession is confirmed in a material respect.words from the Wou.

When the court makes an inference. They said the death was caused by shock trauma to the head but they could not what decide if it was either due to a blow to her head or administration of concentrated chloroform to the face. the inference drawn must be consistent with the proved facts. (ii) evidence that the accused had the opportunity to kill the deceased – he was close to the scene of the crime. Watermeyer J laid down the two cardinal rules. If the inference can be made that she died from a blow to her head then the inference cannot be made. Failure of a party to testify. The conduct of the accused (his guilty conscience) after the event led to the court saying that the only reasonable inference was that she died from the chloroform. A white man was charged with the murder of a black girl. This may have certain consequences because the prima facie case MAY become conclusive proof against the accused. The two main judgments (Stradford CJ and Watermeyer J) are important. The right to remain silent cannot exclude common sense reasoning. the inference drawn must be consistent with the proved facts 2. The proved facts must be such that they exclude every reasonable inference drawn from them save from the one drawn – the inference the court makes must be the only reasonable (standard of proof is beyond reasonable doubt) inference that can be made. (iii) evidence of his actions after the event – he had gone to see a doctor before and after the event (twice after the event) and he had different contradictory statements as to how his back was injured and when he was questioned by the police about him buying chloroform he lied. The rules had to be applied. Inferences in Civil cases – Govan v Skidmore 1. The inference the court makes must be the most probable inference that can be made. the state wants to show or make the inference that she died before she was placed on the railway. Her body was found on a railway line and her head was crushed by the train. All the evidence against the accused was in the form of circumstantial evidence: (i) evidence showing that the accused had a motive to kill the deceased and design to kill someone – evidence showed that the deceased and the accused had a relationship and she fell pregnant and he wanted the baby to be aborted but it failed (motive) and he had bought chloroform (design). Page 153 of 154 . especially considering the constitutional right to remain silent What is the effect of the accused’s silence in the face of a prima facie case by the state? S v Brown is the key case. When the court makes an inference. In R v Blom the Court laid down these two rules. Here the court noted that no adverse inference can be drawn against the accused merely because he exercised his right to remain silent.Inferences in Criminal Cases – Two Cardinal Rules of Logic: R v Blom 1939 AD 188 1. Remembering the two possibilities from the doctors examination. The case against the accused was that he had administered concentrated chloroform to her head. and 2. Her body was examined by two doctors and they came to the firm conclusion that she was dead before her body was placed on the railway line. It is an extra piece of evidence that goes into the scale against the accused BUT in that event the court will decide the case on the non contradicted evidence of the state.

3 policeman were found guilty of murder but appealed to the SCA. They based their claim on circumstantial evidence. the failure to testify by the accused is bound to strengthen the state’s case. Thus the SCA overturned the decision of the court a quo. In Burger And Others v S 2010. Remember in Blom this inference must be the sole inference for a conviction to be given Page 154 of 154 . The court cannot exclude dependable evidence especial where the accused chooses not to respond to it.In Mapanda v State 2010 SCA. the court said that if a witness has given evidence directly implicating the accused. The SCA applied Blom and came to the conclusion that the trial court did not correctly apply those rules because on the evidence as a whole there was another reasonable inference that was possible and not the guilt of the accused. In such instances. the latter cannot afford to leave such evidence unanswered. The guilt of the accused was not the only inference sought to be drawn. The question is whether this statement by the Court is correct.

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