EVI3701-exam - Notes - Docx 2

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EVI 3701
Study Unit 1 – Overview

State whether the following statements are true or false:
(1) The Law of Evidence is the name of the field of law that you are currently
studying. False (with capitals it refers to the course name)
(2) When it is said that ‘‘the court’’ makes a finding, this actually means that the
judicial officer presiding in the case (plus assessors where applicable) is making
the finding. True
(3) Oral evidence refers to evidence given by a witness from the witness box. True
(4) If evidence is contained in a document, the party who wants to present this
evidence will simply hand the document to the court. False
(5) Evidence that is provided by modern technology, such as computers and video
tapes, presents the law of evidence with difficulties that have not yet all been
resolved. True
(6) In the case of judicial notice and presumptions, evidential material is provided
without the presentation of evidence. True
(7) Decisions on the admissibility of evidence are made during the trial —
decisions on the weight of the evidence are made only at the end of the trial.
True (although, as you will learn later in this course, the weight of evidence may also impact on its
admissibility)
(8) The burden of proof plays an important role during the evaluation of evidence at the end of the
trial. True
(9) It is sometimes necessary for the court to approach certain evidence with caution. True
(10) The law of evidence plays an important role in every single court case conducted in our courts.
True
Study Unit 2 Concepts in the law of evidence
Besides evidence, what other forms of evidentiary material are there? Try to give an
example of each. Where possible, write down the references to decided cases in which
these other kinds of evidentiary material were at issue.
(1) Admissions — S v Mjoli 1981 (3) SA 1223 (A)
(2) Formal admissions — S v Mokgoledi 1966 (4) SA 335 (A)
(3) Judicial notice
(4) Presumptions — S v AR Wholesalers 1975 (1) SA 551 (NC)
Briefly explain, with reference to the two main branches of the law, how the law of evidence fits into the general structure of the law. (5)
Explain the difference between substantive law and adjective law and give an example of each.
Into which category does the law of evidence fall? (5)
Substantive law covers one’s rights and obligations. It tells what one may or may not do. Criminal
law is an example of substantive law. Adjective law (sometimes known as procedural law) prescribes
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the general procedure to be followed in court and legal transactions. Criminal procedure is an
example of adjective law. Therefore, the law of evidence is part of adjective law.
Briefly explain the relationship between “proof” and the law of evidence.(5)
The law of evidence may be defined as that field of law which generally regulates the proof of facts
in court. Proof therefore is central to the entire field of the law of evidence.
Proof : having sufficient grounds for a finding on a point in issue. Proof of a fact means that the
court has received probative material with regard to such fact and has accepted such fact as being
the truth for purposes of the specific case
Evidence : probative (evidentiary) material (oral, documentary or real evidence) which is produced in
court. Evidence of a fact is not yet proof of such fact: the court must still decide whether or not such
fact has been proved.
Evidential material : material which goes to furnish proof
Study unit 3 Sources of the law of evidence
Historical source of the law of evidence: Procedural law of South Africa is mostly drawn from
principles of English law and therefore regarded as the common law for the law of evidence in south
Africa, consequently courts may have recourse to English law in the event of any uncertainty on an
aspect of the law of evidence.
Knowledge sources are a wider concept, covering not only the historical sources, but also relevant
court cases creating binding law and applicable South African legislation eg the Criminal Procedure
Act 51 of 1977 and the Civil Proceedings Evidence Act 25 of 1965 applying particularly to the law of
evidence as well as the Constitution of the Republic of South Africa 1996 which is the highest source
of law and its principal provisions affecting the law of evidence are the fundamental rights (‘‘Bill of
Rights’’).
(1) Write down the wording of section 252 of the Criminal Procedure Act 51 of 1977.
Section 252 of CPA : The law as to the admissibility of evidence which was in force in respect of
criminal proceedings on the thirtieth day of May 1961, shall apply in any case not expressly
provided for by this Act or any other law.
(2) Explain what is meant by a ‘‘residuary clause’’ in South African law.

A residuary clause determines that foreign law has to be followed on topics for which no express
local statutory provision had been made (Indirect incorporation). These are those sections in South
African statutes which incorporate foreign law into South African law and thereby preserve that part
of foreign law.
Mention the principal provisions of the Constitution of the Republic of South Africa, 1996 that
affect the law of evidence. (5)
Section 35(1) of the Constitution provides that every arrested person shall have the right
(1) to be informed, in an understandable language, that he or she has the right to remain silent, and
about the consequences of making a statement (sec 35(1)(a) and (b))
(2) not to be compelled to make a confession or admission which could be used in evidence against
him or her (sec 35(1)(c))
Section 35(2) provides for the rights of a detained person including the right
(s 35(2)(a)) - to be informed promptly of the reason for being detained
(s 35 (2)(b)) - to choose, and to consult with a legal practitioner, and to be informed of this right
promptly
(s35(2)(c)) - to have a legal practitioner assigned to the detained person by the state and at state
expense if substantial injustice would otherwise result, and to be informed of this right promptly
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Section 35(3) provides that every accused person shall have the right to a fair trial, which includes
the right
(1) to be informed of the charge with sufficient details to answer it (sec 35(3)(a))
(2) to be presumed innocent, to remain silent during the plea proceedings as well as during the trial,
and not to testify during the trial (sec 35(3)(h)) and
(3) to adduce and challenge evidence and not to be a compellable witness against himself or herself
(sec 35(3)(I) and (j))
Section 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 would otherwise
be detrimental to the administration of justice.
Study unit 4 Relevance and admissibility of evidence

. explain the meaning of relevance and its relationship with the admissibility of evidence
. list the ‘‘facts in issue’’ in any given case
. relate the admissibility of evidence to questions such as the reasonableness of inferences drawn
from certain evidence and the prejudicial effect of admitting any evidence
From your reading material, give at least two examples that show that evidence may be
inadmissible, despite being relevant.
a) If the evidence is privileged.
b) If the evidence was obtained in breach of constitutional rights.
Definition of relevance:
There needs to be a logical connection between the issues of the case before the court and
the evidence. According to:
(1) Stephen: Essential elements are the following: two facts are related; one normally proves the
other or renders it probable (or not); whether the fact is past, present or future; either by itself or
with other facts.
(2) The US Federal Rules of Evidence: Evidence which tends to make any fact of consequence to the
action more, or less, probable than without the evidence
In the case of S v Shabalala 1986 (4) SA 734 (A);

(1) What is the main reason why the evidence about the behaviour of the police dog was not
admitted in R v Trupedo 1920 AD 58?
The probative value was too tenuous (flimsy), in other words not relevant. To draw inferences from
dogs’ abilities is to enter a region of “conjecture and uncertainty”.
(2) A number of writers have suggested that the decision in R v Trupedo does not mean that
evidence about tracking dogs will always be inadmissible. In what way do they argue should the
judgment be viewed?
The judgment was decided on the facts of the particular case and inadequacy of scientific knowledge
at the time. Modern information about the scenting ability of dogs and their training may justify
admission of the evidence.
(3) What role did the untrustworthiness of the evidence play in the court’s decision?
The (extreme) untrustworthiness was of fundamental importance. If this element is sufficiently
reduced the evidence would become admissible.
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(4) Finally, the court warned that the distinction between weight and admissibility should not be
blurred. What principle did the court establish in this connection?
If the weight of the evidence is so inconsequential and relevance so problematic, it serves no
purpose to accept the evidence.
Read S v Mavuso 1987 (3) SA 499 (A) Answer the following questions:
(1) Write down the ‘‘test’’ for relevance as stated in R v Mpanza 1915 AD 348 at 352.
“[A]ny facts are so relevant if from their existence inferences may properly be drawn as to the
existence of the fact in issue.”
(2) Why was the assumption that the accused knew dagga because of his previous conviction for
possession of dagga, a false one?
Firstly, the previous conviction was a very long time ago. Secondly, the definition of “possession” at
the time was so wide that a conviction could follow, even if the accused was merely found in the
vicinity of the dagga.
Study unit 5 Similar fact evidence
Read R v Solomons 1959 (2) SA 352 (A Note that one of the more important additional aspects of
the admissibility of evidence to come out of this judgment is that a piece of evidence may be
inadmissible at one point in a trial, and become admissible at a later stage (or vice versa)
Explain why the court eventually allowed the similar fact evidence. Identify the following in your
answer: the facts in issue, the similar facts and the nexus between the similar facts and the facts in
issue.
Give a definition of similar fact evidence. Explain how similar fact evidence might be irrelevant at one stage of the trial,
yet relevant at another stage, with reference to R v Solomons 1959 (2) SA 352 (A). (5)
During examination-in-chief of a witness, the state wanted to submit evidence about two
knife assaults which the accused had been involved in earlier on the night of the alleged
crime. (This is the similar fact evidence).
However, the court refused to admit this evidence because it was not sufficiently relevant at that
stage. Even though there was a logical connection between the facts in issue and the similar fact
evidence, the admission of the latter was not desirable. No reasonable inferences could be drawn
from the similar fact evidence that could help to decide the facts which were in issue at that stage.
Later on it transpired that there were additional facts in issue: the accused not only denied
that he had been in possession of a knife, but also denied that he had been anywhere
near the scene of the murder. He also lied about how he had obtained the jacket and the
watch. The similar fact evidence was then admitted, because a reasonable inference could
be drawn (from the similar fact evidence) on the new issues as to whether the accused
had a knife in his possession, his alibi and how he had obtained the jacket and the watch.
A nexus therefore existed between the similar fact evidence and the facts in issue.
Fully discuss the admissibility of similar fact evidence. Also refer in your answer to a definition,
examples and applicable cases. (10)
Similar fact evidence is evidence about a fact which is similar to a fact in issue such as:
1. a previous conviction of shoplifting where an accused is charged with shoplifting;
2. the state alleges that the accused is a serial killer, the facts of any one of the murders
will be similar to those related to all the other charges of murder;
3. the accused, in trying to dispute the admissibility of a confession made while he was in
detention, wants to tender evidence that, on other occasions, the police have used
improper means of investigation.
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Similar fact evidence is generally inadmissible because it is irrelevant and can be potentially
prejudicial to an accused in that he can be convicted, not because the crime in dispute has been
proved, but because of his criminal propensity or bad character. Similar fact evidence will be
admissible provided two elements are satisfied, namely:
1. There must be a logical connection (nexus) between the similar fact evidence (probans)
and the facts in issue (probandum).
2. The similar fact evidence must have sufficient probative value to warrant its reception.
There are a number of factors that may create the necessary link or nexus between the probans and
the probandum such as:
1. Use of particular modus operandi or pattern of behaviour.
2. Improbability of change and proof of identity, where for example, you have two or
more victims describing the incident in identical terms, the probability of all of them
fabricating the incident seems highly improbable. In the Thompson v R case the
accused had been charged with indecent assault on minor children, possession of
pornographic photos etc. The evidence of the two boys was found admissible on the
premise that it confirmed the offender’s identity and it was highly improbable that the
two boys would have identified the offender by coincidence.
3. Common source, for example, if it can be established that the source of a particular
commodity which is the subject-matter of the dispute comes from the same company
etc.
4. Proximity of time and space, for example, similar fact evidence becomes relevant and
admissible if the offender raises defence of an alibi and you can prove that a similar
offence was committed at the same time and area on another occasion.
5. Cumulative effect - all the evidence taken together point to the likelihood of the two
incidents being connected.
6. Similar fact evidence admissible only to rebut a defence that would be open to the
accused, for example, if A stabs B and denies possession of the weapon, then similar
fact evidence (previous stabbing) can be used to confirm the issue of possession and it
is the accused who usually creates the nexus.
Makin v Attorney General for New South Wales the application of the rules relating to the
admissibility of similar fact evidence is illustrated where a husband and wife were charged with the
murder of a child. Further investigations into the case revealed that the couple followed a particular
modus operandi where they would adopt children in return for a sum of money which was
inadequate to maintain them, that other bodies of children had been discovered in the houses
previously occupied by the couple and that four women had testified to the fact that they had given
their children up for adoption to the accused. The court allowed the evidence to disprove that the
baby had died of natural causes and not to show that the accused had a certain disposition to kill
babies and therefore that they had killed the child in question.
A is accused of murder in that he stabbed the deceased to death between 22h00 and 22h45 on the
night of 18th April 2005. The main state witness B, testifies that he accompanied A on the night in
question and that A was involved in two separate, unrelated incidents earlier that same night, in
which A had robbed two passers-by at knife-point. The attorney for the defence objects to
evidence relating to these two occasions, arguing that this evidence had nothing to do with the
charges against his client. If you were to be the judge adjudicating on this matter, what would be
your admissibility ruling on this point? Would it affect your ruling if A later denies being in
possession of a knife on the evening in question? (10) (check answer with lecturer)
The State also calls state witness C, who testifies that she accompanied the deceased on the
evening in question and later identified A as the perpetrator from photographs that had been
shown to her by the police.
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This question deals with similar fact evidence since the fact in issue involves stabbing and B’s
testimony regarding two separate, unrelated incidents in which A had robbed two passers-by at
knife-point is a similar fact. Similar fact evidence is evidence about a fact, which is similar to a fact in
issue.
General rule in terms of s210 of CPA: no evidence as to any fact, matter or thing shall be admissible
which is irrelevant, immaterial and which can’t prove or disprove any point or fact in issue.
However, Similar fact evidence is admissible in exceptional circumstances only i.e.:
1. There must be a logical connection (nexus) between the similar fact evidence and the
facts in issue.
2. The admittance of similar fact evidence must be desirable
Similar fact evidence is generally inadmissible because it is irrelevant and can be potentially
prejudicial to an accused in that he can be convicted, not because the crime in dispute has been
proved, but because of his criminal propensity or bad character. Similar fact evidence will be
admissible provided two elements are satisfied, namely:
1. There must be a logical connection (nexus) between the similar fact evidence (probans) and
the facts in issue (probandum).
In DPP v Boardman it was stated that the general principle is that similar fact evidence will be
admissible when the evidentiary value thereof outweighs the potential for prejudice.
In R v Solomons the state wanted to submit evidence about two knife assaults which the accused
had been involved in earlier on the night of the alleged crime. (This is the similar fact evidence).
However, the court refused to admit this evidence because it was not sufficiently relevant at that
stage. Even though there was a logical connection between the facts in issue and the similar fact
evidence, the admission of the latter was not desirable. No reasonable inferences could be drawn
from the similar fact evidence that could help to decide the facts which were in issue at that stage.
Later on it transpired that there were additional facts in issue: the accused not only denied
that he had been in possession of a knife, but also denied that he had been anywhere
near the scene of the murder. He also lied about how he had obtained the jacket and the
watch. The similar fact evidence was then admitted, because a reasonable inference could
be drawn (from the similar fact evidence) on the new issues as to whether the accused
had a knife in his possession, his alibi and how he had obtained the jacket and the watch.
A nexus therefore existed between the similar fact evidence and the facts in issue.
With regard to the case in question It would probably affect my initial ruling of inadmissibility of the
similar fact evidence if A later denies being in possession of a knife on the evening in question
because a reasonable inference could be drawn (from the similar fact evidence) on the new issues as
to whether the accused had a knife in his possession.
X is arrested and charged with the murder of a woman whom he had recently married. The victim
was found dead in her bath. The investigating officer, a captain in the SAPS, tells X that the police
are also investigating other murder cases against him and that he would possibly not be charged
with the other murders if he confesses to the current charge against him. X goes ahead and
confesses to the murder and also proceeds to point out a pair of gloves hidden away in his garage.
This pair of gloves was allegedly used in the process of drowning the victim and has some of her
hair attached to them. During the trial, however, the accused, who stands to benefit financially
from the woman’s death, alleges that the confession was not voluntarily done and also that the
woman’s death resulted from an epileptic fit. The prosecution seeks to present evidence that two
other women had died on subsequent dates shortly after having married to the accused and that
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both had died in their baths in circumstances very similar to those surrounding the death of the
victim in the case at hand. In each case the accused also stood to benefit financially from their
deaths. Would you allow this evidence? Fully discuss with reference to decided cases. (6)
Similar fact evidence is evidence about a fact which is similar to a fact in issue. And such evidence is
generally inadmissible because it is irrelevant and can be potentially prejudicial to an accused in that
he can be convicted, not because the crime in dispute has been proved, but because of his criminal
propensity or bad character. Similar fact evidence will be admissible provided two elements are
satisfied, namely:
1. There must be a logical connection (nexus) between the similar fact evidence (probans)
and the facts in issue (probandum).
There are a number of factors that may create the necessary link or nexus between the probans and
the probandum such as:
1. Use of particular modus operandi or pattern of behaviour.
2. Improbability of change and proof of identity, where for example, you
have two or more victims describing the incident in identical terms, the
probability of all of them fabricating the incident seems highly
improbable. In the Thompson v R case the accused had been charged
with indecent assault on minor children, possession of pornographic
photos etc. The evidence of the two boys was found admissible on the
premise that it confirmed the offender’s identity and it was highly
improbable that the two boys would have identified the offender by
coincidence.
3. Common source, for example, if it can be established that the source of
a particular commodity which is the subject-matter of the dispute comes
from the same company etc.
4. Proximity of time and space, for example, similar fact evidence becomes
relevant and admissible if the offender raises defence of an alibi and you
can prove that a similar offence was committed at the same time and
area on another occasion.
5. Cumulative effect - all the evidence taken together point to the
likelihood of the two incidents being connected.
6. Similar fact evidence admissible only to rebut a defence that would be
open to the accused, for example, if A stabs B and denies possession of
the weapon, then similar fact evidence (previous stabbing) can be used
to confirm the issue of possession and it is the accused who usually
creates the nexus.
Makin v Attorney General for New South Wales the application of the rules relating to the
admissibility of similar fact evidence is illustrated where a husband and wife were charged with the
murder of a child. Further investigations into the case revealed that the couple followed a particular
modus operandi where they would adopt children in return for a sum of money which was
inadequate to maintain them, that other bodies of children had been discovered in the houses
previously occupied by the couple and that four women had testified to the fact that they had given
their children up for adoption to the accused. The court allowed the evidence to disprove that the
baby had died of natural causes and not to show that the accused had a certain disposition to kill
babies and therefore that they had killed the child in question.
In terms of the given facts the court will probably allow the evidence to disprove that the woman
had died of epileptic fits and not to show that the accused had a certain disposition to kill woman
for financial reasons and therefore the accused had killed the victim in question.
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Study unit 6 Character evidence
Civil Matter;
General rule: Usually inadmissible – this rule is based on the relevancy principle.
Definition: Generally: only evidence of general reputation is relevant for the purposes of the law of
evidence.
In criminal matters;
Character of the accused: s227(1) evidence on the character of an accused will be admissible or
inadmissible if such evidence would have been admissible or inadmissible on the 30th May 1961 –
(residuary clause).
The accused's good character: The accused is always entitled to adduce evidence on his good
character, either by testifying himself or by calling witness to testify on his behalf.
The accused’s bad character: GR: inadmissible: But once the accused has adduced evidence as to his
good character, the prosecution may respond by Adducing evidence of the accused’s bad character,
Cross-examine the accused’s character witnesses and Cross-examine the accused, if he has given
evidence as to his good character.
Cross-examining the accused:

(1) The initial part of section 197 protects an accused against answering certain questions (mostly
questions asked by the prosecutor in cross-examination). Name the four categories of questions
for which protection is granted.
1. That the accused has committed an offence other than the one he is charged with.
2. That the accused has been convicted of an offence other than the one he is charged with.
3. That the accused has been charged with an offence other than the one he is currently
charged with.
4. That the accused is of bad character.
(2) This protection falls away under the circumstances mentioned in section 197(a)–(d). Briefly
discuss these circumstances in your own words.
a) Attempting to indicate his own good character, or attacking the character of another party.
b) Evidence against a co-accused or similar person.
c) Proceedings under sections 240 or 241 of the Criminal Procedure Act (where the charge is
one of receiving stolen property).
d) The accused may be cross-examined as to previous offences if the purpose of such evidence
is to show that he is guilty of the offence with which he is charged. This section confirms the
similar fact rule.
The accused’s previous convictions: s211

(1) What is the general rule regarding evidence of an accused’s previous convictions?
(1) It is inadmissible.
(2) What are the two exceptions to the general rule?

1. where the Criminal Procedure Act 51 of 1977 expressly provides otherwise, or
2. where the previous conviction is an element of the crime with which the accused is charged.
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(3) Try to think of an example of the second exception mentioned in section 211
(3) Escaping from prison.
(4) What does section 211 state about the cross-examination of the accused?
(4) The accused may not be asked whether he has previously been convicted.
What is the relationship between section 211 and the rule against the admissibility of similar fact
evidence?
Section 211 deals with any previous conviction. In the case of similar fact evidence, the previous
conviction has to be similar to the current one. In the latter event, the principles governing the
admissibility of similar fact evidence will take precedence over section 211, owing to the operation
of section 252 of the Criminal Procedure Act, which applies the law that was in force on 30 May
1961.
Character of the complainant: GR: prohibited

(1) What does section 227(2) state about the court’s function when evidence of the character of a
female complainant is to be led in cases of an indecent nature?
(1) Such evidence may not be adduced, and such female shall not be questioned regarding her
previous sexual history, except with the leave of the court, which leave shall not be granted unless
the court is satisfied that such evidence or questioning is relevant.
(2) Does the principle in question 1 also operate with regard to the crime for which the accused is
being tried?
(2) No, the proviso in section 227(2) states that the complainant’s prior sexual history with the
accused “in respect of the offence which is being tried” is relevant, and may be adduced.
(3) What does section 227(3) provide for?

(3) Section 227(3) provides that before an application for leave in terms of subsection 227(2) is heard
the court shall direct that any person whose presence is not necessary may not be present at the
proceedings, and the court may direct that a female referred to in subsection 227(2) may not be
present.
(4) Are the stipulations of section 227 applicable to both male and female complainants?
(4) Yes, section 227(4) makes the section 227 provisions also applicable to a male complainant.
In S v M 2003 (1) SA 341 (SCA) at 354 the court identified the following factors which it will have regard to in a section 227(2) enquiry. It held that these
factors will be proper for our courts to consider when judging whether or not evidence of the complainant's sexual history will be admissible and relevant
A final-year law student is charged with the alleged rape of a fellow student. During the trial the
victim testifies that the rape took place one night after a function on a deserted part of the
campus. She explains that she was involved in a fierce struggle with her assailant, and identifies
the accused as her attacker. During cross-examination it is put to her that she is lying because she
couldn’t have noted the assailant’s identity properly. There was no moon on the night in question,
and there are no lights on that part of the campus. The accused also cross-examines her about her
sexual relations with various other men, and indicates that he intends calling witnesses in this
regard. The prosecutor responds by calling the complainant’s flatmate, who testifies that the
complainant gave her a similar version of the events that very same night. She also testifies to
what the complainant said about the identity of her assailant.
(a) Fully discuss, with reference to legislation and guidelines from case law, whether you
would also have allowed the questions that were put to the complainant during cross-
examination. Also explain whether you will allow the accused to call witnesses in this regard. (10)
Section 227(2) of the Criminal Procedure Act 51 of 1977 states that evidence as to the character of a
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female complainant in cases of an indecent nature may not be adduced, and such female shall not
be questioned regarding her previous sexual history, except with leave from the court, which leave
shall not be granted unless the court is satisfied that such evidence or questioning is relevant or
unless prior sexual history evidence has been introduced by the prosecution. However, the
complainant’s prior sexual history with the accused “in respect of the offence which is being tried” is
relevant, and may be adduced. In the given situation, the questions are about the complainant’s
sexual activities with other men. They are therefore irrelevant and inadmissible.
In S v M 2003 (1) SA 341 (SCA) the court identified the following factors that should be considered in
a section 227(2) enquiry:
1. the interests of justice, including the right of the accused to make a full answer and defence
2. society's interest in encouraging the reporting of sexual assault offences
3. whether there is a reasonable prospect that the evidence will assist in arriving at a just
determination of the case
4. the need to remove any discriminatory belief or bias from the fact-finding process
5. the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility
6. the potential prejudice to the complainant's personal dignity and right of privacy
7. the right of the complainant and of every individual to personal security and to the full
protection and benefit of the law
8. any other factor that the presiding officer considers relevant
A well-known public figure is arrested early one morning for allegedly raping his assistant after a party in a hotel the night before. At
the police station DNA samples are taken from him. At the same time, tissue samples are taken from underneath the complainant’s
finger nails. During the trial the complainant testifies that the rape took place in a unoccupied hotel room shortly after the party ended.
She explains that she fought tooth and nail against her attacker, and identifies the accused as the assailant. During cross-examination it
is put to the complainant that she is lying because she couldn’t have observed the assailant’s identity properly, since the lights in the
room were not functioning properly and because she was intoxicated. The accused also cross-examines her about her sexual relations
with various other men and indicates that he intends calling witnesses in this regard. The prosecutor responds by calling the doorman
of the hotel where the rape allegedly took place. He testifies that the complainant gave him, that very same night, a similar version of
the facts in question. He also testifies as to what the complainant said about the identity of her assailant and about the complainant’s
state of sobriety. Assume that you are the magistrate. Fully discuss whether you would allow the questions that were put to the
complainant during cross-examination. (5)
As Above
What does section 227 of the Criminal Procedure Act 51 of 1977, as amended, state about the
court’s function when evidence of the character of a complainant is to be led in cases of an
indecent nature? Fully discuss with reference to decided cases. (5) as above
Study unit 7 Previous consistent statements
Definition: A previous consistent statement is: Statement made by a person which is consistent with
a statement made by the same person during testimony in court offered in an attempt to
corroborate this persons testimony.
General Rule - it’s inadmissible for a witness to testify that he made a statement consistent with his
evidence in court (or to be questioned to this effect) because evidence of a previous consistent
statement is irrelevant.
Reasons for the exclusion of previous consistent statements (why this evidence is irrelevant).
Write down the reasons below (not more than one line per reason).
(1) It has no probative force or value: a lie may be repeated as easily as the truth.
(2) It is easy to fabricate the evidence.
(3) It is superfluous.
(4) It is time-consuming, involves numerous collateral enquiries, and duplicates evidence without
any advantage.
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(5) The rule against self-corroboration limits its probative value.
Exceptions: Two pieces of evidence about a complaint made soon after an alleged offence of a
sexual nature are admissible even if this evidence is about a previous consistent statement. These
are
(1) evidence that such a complaint was made
(2) evidence about the contents of the complaint
Why are these two pieces of evidence of any importance in cases dealing with a sexual offence?
(1) Evidence that the complaint was made is important as it serves to support the credibility of the
complainant.
(2) Evidence on the content of the complaint will also indicate that the evidence tendered in court
has not been recently fabricated and will support the consistency, and therefore credibility of the
complainant.
Requirements before this exception can apply:

1. The exception applies to cases of a sexual nature if there’s been some degree of assault or
physical contact – in the case of young children, no physical contact is required. Eg Rape, incest
2. The complaint must have been made at the 1st reasonable opportunity – what is reasonable
depends on the facts of each case, age and understanding of complainant. R v Gow - court found it
reasonable that a girl who was assaulted on a train did not complain to the ticket inspector, but only
later to her mother
3. The complaint need not have been made totally spontaneously, but shouldn’t be the result of
questioning that is intimidating or leading. S v T - the complainant’s mother threatened to hit her
with a stick if she did not tell her who had sexually assaulted her. The daughter then identified her
stepfather. This evidence was excluded by the court.
4. The complainant has to give evidence – in the absence of any evidence by the complainant the
evidence could be inadmissible as hearsay unless it’s found to be relevant for some other
purpose other than proving the content of the complaint. S v R - the complainant, whilst
distressed and crying and under the influence of alcohol, complained about having been raped
almost immediately after the incident. At the time of the trial, however, she could not remember
anything about the incident. The court allowed evidence (by another witness) of her complaint
and the contents thereof, since it found such evidence relevant to indicate the complainant’s
state of mind at the time of the incident, and to counter the defence of consent (to sexual
intercourse).
There are at least three exceptions to the basic rule that previous inconsistent statements are
Inadmissible:
Exception 1 : TO REBUT AN ALLEGATIION OF FABRIICATIION

Summarise the legal position regarding the admissibility of previous consistent statements in
order to rebut a charge of recent fabrication in S v Bergh 1976 (4) SA 857 (A).
A charge of recent fabrication is rebutted when it is shown that, long before the alleged
fabrication in court, the witness had made a written or oral statement out of court which is
consistent with her evidence in court. The party calling the witness may prove that the
witness had no motive or opportunity to fabricate a false version. The previous consistent
statement will be admitted if it is relevant in supporting the credibility of the witness on this
point, and thus rebutting the attack on the credibility of the witness. However, it will not be
admitted to corroborate the witness’ evidence.
Exception 2: Prior identification:

12
Prior identification carries more weight
S v Moti 1998 (2) SACR 245 (SCA): The court found that, in principle, the evidence of
the photo identification was admissible. On which two grounds could the evidence
have been inadmissible? Why was it nevertheless admissible in this instance?
The most obvious ground on which the evidence could have been found inadmissible is that it
amounts to a previous consistent statement. Such evidence is inadmissible unless it falls within one
of the accepted exceptions. In this case, the exception of prior identification applies.
The main reason for this exception is that a previous identification is usually much more valuable
than an identification in court, when the mere fact that the accused is standing in the accused box
suggests that he is the guilty party.
The second ground on which the evidence could have been found inadmissible, is that it does not
have sufficient relevance to the facts in issue. The fact that the witness has identified the accused as
the robber is, without doubt, logically relevant to the question who the perpetrator was, but for
evidence to be admissible it should also have sufficient probative value.
It could be argued that the photo-identification took place under undesirable circumstances, where
the investigating officer could have planted ideas in the mind of the witness, and where the accused
and his legal representative had no control over the manner in which the identification was made
(this is controlled during a formal identification parade).
Corroborative evidence may increase the probative value (reliability) of evidence. In this case, there
was substantial corroboration between the two witnesses and the reliability of the evidence was
increased by a number of factors. The high level of logical relevance coupled with a fairly low level of
undesirability made this evidence admissible.
Exception 3: Identification parade
The dangers of the identification parade include:

The suspect may be placed to stand out / the witness may believe the perpetrator is in the line-up
and point out the person that resembles him most
Mention five principles that will help to ensure the fairness of an identification parade. (5)
i) It should be explained to the witness that the perpetrator may not necessarily be present.
ii) The witness ought to have given a description of the perpetrator before seeing the people in
the line-up.
iii) At least eight people should participate in the line-up and they should all resemble the
perpetrator to some extent.
iv) All the people should wear similar clothing.
v) If more than one witness is present, they should be kept separate and have no opportunity
of discussing the identity of the suspect.
vi) Nothing should be done that could influence the witness to point out any specific person.
During cross-examination the prosecutor puts it to X that he is lying about the events that took
place at the time his girlfriend went missing. X responds by calling the life guard to come and
testify about what X told him. What type of evidence is this? Explain with reference to a definition,
a general rule and exceptions. (Do not discuss hearsay evidence in your answer). (5)
This is evidence about a previous consistent statement defined as a statement made by a person
which is consistent with a statement made by the same person during testimony in court offered in
an attempt to corroborate this persons testimony.
13
Inadmissible: In the given case the following exception applies:
To rebut an allegation of fabrication
In S v Bergh it was stated that a charge of recent fabrication is rebutted when it is shown that, long
before the alleged fabrication in court, the witness had made a written or oral statement out of
court which is consistent with her evidence in court. The party calling the witness may prove that the
witness had no motive or opportunity to fabricate a false version. The previous consistent
statement will be admitted if it is relevant in supporting the credibility of the witness on this
point, and thus rebutting the attack on the credibility of the witness. However, it will not be
admitted to corroborate the witness’ evidence.
The rule of the law of evidence is that it is inadmissible for a witness to testify that she made a
statement consistent with her evidence in court. Does this rule also apply to complaints in sexual
cases? Fully discuss with reference to cases and applicable examples. (10)
Exceptions: Two pieces of evidence about a complaint made soon after an alleged offence of a
sexual nature are admissible even if this evidence is about a previous consistent statement. These
are: (1) evidence that such a complaint was made
(2) evidence about the contents of the complaint
Such evidence is important in cases dealing with a sexual offence because:
(1) Evidence that the complaint was made is important as it serves to support the credibility of the
complainant.
(2) Evidence on the content of the complaint will also indicate that the evidence tendered in court
has not been recently fabricated and will support the consistency, and therefore credibility of the
complainant.
Requirements before this exception can apply:
1. The exception applies to cases of a sexual nature if there’s been some degree of assault or
physical contact – in the case of young children, no physical contact is required. Eg Rape, incest
2. The complaint must have been made at the 1st reasonable opportunity – what is reasonable
depends on the facts of each case, age and understanding of complainant. R v Gow - court found it
reasonable that a girl who was assaulted on a train did not complain to the ticket inspector, but only
later to her mother
3. The complaint need not have been made totally spontaneously, but shouldn’t be the result of
questioning that is intimidating or leading. S v T - the complainant’s mother threatened to hit her
with a stick if she did not tell her who had sexually assaulted her. The daughter then identified her
stepfather. This evidence was excluded by the court.
4. The complainant has to give evidence – in the absence of any evidence by the complainant the
evidence could be inadmissible as hearsay unless it’s found to be relevant for some other
purpose other than proving the content of the complaint. S v R - the complainant, whilst
distressed and crying and under the influence of alcohol, complained about having been raped
almost immediately after the incident. At the time of the trial, however, she could not remember
anything about the incident. The court allowed evidence (by another witness) of her complaint
and the contents thereof, since it found such evidence relevant to indicate the complainant’s
state of mind at the time of the incident, and to counter the defence of consent (to sexual
intercourse).
14
A final-year law student is charged with the alleged rape of a fellow student. During the trial the
victim testifies that the rape took place one night after a function on a deserted part of the
campus. She explains that she was involved in a fierce struggle with her assailant, and identifies
the accused as her attacker. During cross-examination it is put to her that she is lying because she
couldn’t have noted the assailant’s identity properly. There was no moon on the night in question,
and there are no lights on that part of the campus. The accused also cross-examines her about her
sexual relations with various other men, and indicates that he intends calling witnesses in this
regard. The prosecutor responds by calling the complainant’s flatmate, who testifies that the
complainant gave her a similar version of the events that very same night. She also testifies to
what the complainant said about the identity of her assailant.
Because of the nature of the crime, the flatmate was allowed to testify as an exception. However,
before this exception can apply, certain requirements must be satisfied. Fully discuss the
exception and requirements with reference to decided cases. (10)
As Above
charges against his client. The State also calls state witness C, who testifies that she accompanied
the deceased on the evening in question and later identified A as the perpetrator from
photographs that had been shown to her by the police
Would you, as judge admit this type of evidence? What considerations would have an effect upon
your decision? (10)
The third state witness is D, a police constable, who testifies that immediately upon A’s
arrest and after having been warned of his rights by D, A admitted that a knife found in the bushes
near the crime scene had been in A’s possession on the night of the 18th of April 2005.
The evidence would be admitted on the following considerations:
Inadmissible: In the given case the following exception applies:
Identification parade
The dangers of the identification parade include:
The suspect may be placed to stand out / the witness may believe the perpetrator is in the line-up
and point out the person that resembles him most
To ensure the fairness of an identification parade:
1. It should be explained to the witness that the perpetrator may not necessarily be present.
2. The witness ought to have given a description of the perpetrator before seeing the people
in the line-up.
3. At least eight people should participate in the line-up and they should all resemble the
perpetrator to some extent.
4. All the people should wear similar clothing.
15
5. If more than one witness is present, they should be kept separate and have no opportunity
of discussing the identity of the suspect.
6. Nothing should be done that could influence the witness to point out any specific person.
S v Moti: In this case prior identification applied – the main reason for this exception is that previous
identification is more valuable than identification in court. It could be argued that the photo
identification took place under undesirable circumstances, where the investigating officer could have
planted ideas in the mind of the witness and where the A and his legal representative had no control
over the manner in which the identification was made.
Corroborative evidence may increase probative value. In this case there was substantial
corroboration between the 2 witnesses and the reliability of the evidence was increased by a
number of factors. The high level of logical relevance coupled with the low level of desirability made
this evidence legally relevant and thus admissible.
A well-known public figure is arrested early one morning for allegedly raping his assistant after a
party in a hotel the night before. At the police station DNA samples are taken from him. At the
same time, tissue samples are taken from underneath the complainant’s finger nails. During the
trial the complainant testifies that the rape took place in a unoccupied hotel room shortly after the
party ended. She explains that she fought tooth and nail against her attacker, and identifies the
accused as the assailant. During cross-examination it is put to the complainant that she is lying
because she couldn’t have observed the assailant’s identity properly, since the lights in the room
were not functioning properly and because she was intoxicated. The accused also cross-examines
her about her sexual relations with various other men and indicates that he intends calling
witnesses in this regard. The prosecutor responds by calling the doorman of the hotel where the
rape allegedly took place. He testifies that the complainant gave him, that very same night, a
similar version of the facts in question. He also testifies as to what the complainant said about the
identity of her assailant and about the complainant’s state of sobriety.
Give your motivated judgment, as a magistrate, on the question whether the doorman’s evidence
is admissible. (12)
The doorman is testifying about a previous consistent statement. Evidence about a previous
consistent statement is as a general rule inadmissible, but will be admissible if one of the exceptions
apply. The given situation falls within one of these exceptions, since it deals with a complaint in a
sexual case. See page 42 of the study guide for the requirements that have to be satisfied before this
exception will apply. It is necessary to mention and fully discuss these requirements with reference to
applicable cases. It is also possible to refer to another exceptional circumstance where a previous
consistent statement will be admissible, namely to rebut an allegation of recent fabrication. Please
see the discussion that starts on page 43 of your study guide.
As above but discuss to 2 exceptions
Study unit 8 Hearsay
Write down the definition of hearsay evidence, as contained in section 3(4) of the Law
of Evidence Amendment Act 45 of 1988.
Definition: s3 (4): hearsay evidence – evidence whether oral or in writing, the probative value of
which depends on the credibility of any person other than the person giving such
General Rule: it is relevant but inadmissible because it’s unreliable
Consider each of the following factual situations. State whether the particular piece of
evidence amounts to hearsay or not, and briefly explain your answer.
(1) A is charged with theft. It is alleged that she took a radio belonging to C from C’s
16
house. While giving evidence C testifies that, although she did not see A taking
the radio, her friend F did see A walking from C’s house carrying a radio similar
to C’s. Is C’s evidence hearsay?
(1) Yes. This is a typical form of hearsay, where the witness (C) tells the court what F had obviously
told her.
(2) Would your answer in (1) have differed had the prosecutor intended to call F as a witness (and
F was eventually called as a witness)? Would the evidence given by C be hearsay?
(2) Yes. Although her hearsay now becomes admissible (see 4.3), it remains hearsay.
Section 3(1) of the Law of Evidence Amendment Act 45 of 1988 contains three
exceptions:
a) Each party against whom the evidence is to be adduced agrees to its admission.
b) The person upon whose credibility the probative value of the hearsay evidence depends
testifies during the proceedings.
c) The court, having regard to various factors, is of the opinion that such evidence should be
admitted in the interests of justice.
Factors on which the court should base its discretion, and briefly summarise what each of these
factors is about. Include examples, where relevant. Pay particular attention to the case law as
discussed in the textbook.
1. The nature of the proceedings
As held in Metedad v National Employers’ General Insurance Co Ltd 1992 1 SA 494 (W) 499,
because of the presumption of innocence, our courts will be more inclined to admit hearsay
in civil cases than in criminal cases.
2. The nature of the evidence
Our case law provides no clear guidance, but it can be inferred from Hewan v Kourie NO
1993 3 SA 233 (T) that the reliability of the hearsay evidence is an important when
considering the nature of the evidence. The fact that the non-witness, for example, has or
had no interest in the matter before the court may impact on the reliability aspect.
3. The purpose for which the evidence is tendered
As held in Hlongwane v Rector, St Francis College 1989 3 SA 318 (D) and confirmed in
Metedad v National Employers’ General Insurance Co Ltd 1992 1 SA 494 (W) 499, evidence
pertaining to a fundamental issue in the case will be more readily accepted than a evidence
tendered for a doubtful purpose.
4. The probative value of the evidence
To determine if evidence is sufficiently relevant, the probative value is weighed against the
prejudice that a person against whom such evidence is adduced may suffer. Proof and
reliability are fundamental factors. In S v Ndhlovu the court explained: ‘‘ ‘Probative value’
means value for purposes of proof. This means not only, ‘what will the hearsay evidence
prove if admitted?’, but ‘will it do so reliably?’ ’’
5. The reason why the evidence is not given by the person upon whose credibility its
probative value depends
Necessity was a basis for the admission of hearsay at common law and it is still relevant in
terms of Section 3. Necessity could arise out of a number of situations, such as: death,
illness, absence from the Republic, frail health, inability to trace a witness and fear of
retribution. S v Nzama it was held that if a witness had to testify in disguise for fear of his
life, it would defeat the purpose if the witness were required to testify at the application.
6. Prejudice to opponents
In S v Ndhlovu 2002 2 SACR 325 (SCA) it was stated that our courts are generally reluctant to
admit hearsay evidence which leads to the conviction of an accused unless compelling
17
reasons exist for such admission. Where the interests of justice require the admission of
hearsay evidence, the right to challenge evidence doesn’t include the right to cross-examine
the original declarant as it is not an essential component of the right to challenge.
7. Any other factor which should, in the opinion of the court, be taken into account
Hearsay evidence that would have been admissible under common law will probably still be
admissible. In Mnyama v Gxalaba 1990 (1) SA 650 (C)), for example, the deceased's dying
declaration was accepted as an exception to the general rule and hearsay evidence was
admissible.
Note: S35 (3) provides that every accused has the right to present and challenge evidence – one may
confront his accuser. An accused who is deprived of seeing her accuser face to face may argue that,
because the state relied on hearsay evidence instead of calling as a witness the person who made
the statement in the first place, she (the accused) has been deprived of this constitutional right.
As a practical example of how a court applied the considerations on which it based its
discretion, read Hlongwane v Rector, St Francis College 1989 (3) SA 318 (D) and answer the
following questions:
(1) Name the considerations which favoured the exclusion of the hearsay evidence.
(1) The court held that the nature of the proceedings, the nature of the evidence, and
the purpose for which the evidence is tendered favoured the exclusion of the hearsay evidence.
(2) Name the considerations which favoured the acceptance of the hearsay evidence, and briefly
discuss why this was the case in each instance.
(a) The probative value of the hearsay evidence. The hearsay was corroborated (supported) by
various other pieces of evidence.
(b) The reason why the person on whose credibility the evidence depended did not testify, namely
intimidation and the fear of reprisals.
(c) Even though the opponents would be prejudiced by the admission of the evidence, the court
found the prejudice not to be so great, in view of all the facts of the matter.
(d) Among the other factors the court found further support for the admission of the hearsay
evidence in the fact that it would bring the issue to a close.
(3) Seeing that some considerations favoured the exclusion and other the acceptance of the
hearsay evidence, how did the court come to a decision in this case?
(3) The court weighed up all the relevant features referred to in section 3(1)(c) of the Act and
concluded that it would be in the interests of justice to admit the hearsay evidence.
McDonald’s Corp v Joburgers Drive-Inn Restaurant 1997 (1) SA 1 (A) - example of the application of
the statutory hearsay provisions.
In the past, the admissibility of market survey evidence was sometimes questioned, owing
to its hearsay nature. Under section 3 of the Law of Evidence Amendment Act 45 of 1988,
the question now is whether such evidence falls within the statutory definition of hearsay
evidence, in other words, whether it is evidence “the probative value of which depends
upon the credibility of any person other than the person giving such evidence”. The court
found neither the argument that it was hearsay nor the opposite argument to be
convincing, but found it unnecessary to decide the issue, since even if the evidence was
seen as hearsay evidence, it should be admitted under the exceptions provided for in
section 3(1)(c). The purpose for which the evidence was tendered was to show the extent
to which the name of McDonald’s and its trade marks were known amongst the public.
There would be no prejudice to the other parties, since they would be given a full
opportunity to check the results of the survey. Of course, we are also dealing with a civil
case here. On the basis of this and other evidence the court admitted the evidence.
18
A well-known business man, Mr Shakes, is arrested and accused of committing massive fraud and
corruption relating to government tenders. It is alleged that he inter alia bribed a high ranking
government official to obtain many of these tenders. While he is detained, the police search his
house and place of business and also the offices of his attorney. Amongst other incriminating
documentation, they seize a fax that is important proof of the generally corrupt relationship
between Mr Shakes and the high ranking government official. During his bail application, Mr
Shakes is faced with a hard choice: if he testifies in order to ensure his release on bail, he will also
give evidence that will incriminate him on the main charge.
(b) The main bone of contention, however, is the fax that was seized from Mr Shakes’ place of
business. The author of this fax is a foreign national and fears that he will be arrested if he ever
sets foot in South Africa. Fully discuss whether you would allow this fax to be handed in as
evidence. (10)
Hearsay is evidence, whether orally or in writing, the probative value or which depends upon the
credibility of any person other than the person giving such evidence. The fax would qualify as
hearsay evidence. Hearsay is generally inadmissible because it is not reliable, but certain exceptions
are admissible in terms of Section 3(1) of the Law of Evidence Amendment Act, 45 of 1988:
i) Each party against whom the evidence is to be adduced agrees to its admission.
ii) The person upon whose credibility the probative value of the hearsay evidence depends
testifies during the proceedings.
iii) The court, having regard to various factors, is of the opinion that such evidence should be
admitted in the interests of justice.
If such evidence is permitted in terms of the above exceptions, it becomes admissible hearsay. In
exercising its discretion in terms of Section 3(1)(c), the Court should have regard to the following
factors:
1. The nature of the proceedings
As held in Metedad v National Employers’ General Insurance Co Ltd 1992 1 SA 494 (W) 499,
because of the presumption of innocence, our courts will be more inclined to admit hearsay
in civil cases than in criminal cases.
2. The nature of the evidence
Our case law provides no clear guidance, but it can be inferred from Hewan v Kourie NO
1993 3 SA 233 (T) that the reliability of the hearsay evidence is an important when
considering the nature of the evidence. The fact that the non-witness, for example, has or
had no interest in the matter before the court may impact on the reliability aspect.
3. The purpose for which the evidence is tendered
As held in Hlongwane v Rector, St Francis College 1989 3 SA 318 (D) and confirmed in
Metedad v National Employers’ General Insurance Co Ltd 1992 1 SA 494 (W) 499, evidence
pertaining to a fundamental issue in the case will be more readily accepted than a evidence
tendered for a doubtful purpose.
4. The probative value of the evidence
To determine if evidence is sufficiently relevant, the probative value is weighed against the
prejudice that a person against whom such evidence is adduced may suffer. Proof and
reliability are fundamental factors. In S v Ndhlovu the court explained: ‘‘ ‘Probative value’
means value for purposes of proof. This means not only, ‘what will the hearsay evidence
prove if admitted?’, but ‘will it do so reliably?’ ’’
5. The reason why the evidence is not given by the person upon whose credibility its
probative value depends
19
Necessity was a basis for the admission of hearsay at common law and it is still relevant in
terms of Section 3. Necessity could arise out of a number of situations, such as: death,
illness, absence from the Republic, frail health, inability to trace a witness and fear of
retribution. S v Nzama it was held that if a witness had to testify in disguise for fear of his
life, it would defeat the purpose if the witness were required to testify at the application.
6. Prejudice to opponents
In S v Ndhlovu 2002 2 SACR 325 (SCA) it was stated that our courts are generally reluctant to
admit hearsay evidence which leads to the conviction of an accused unless compelling
reasons exist for such admission. Where the interests of justice require the admission of
hearsay evidence, the right to challenge evidence doesn’t include the right to cross-examine
the original declarant as it is not an essential component of the right to challenge.
7. Any other factor which should, in the opinion of the court, be taken into account
Hearsay evidence that would have been admissible under common law will probably still be
admissible. In Mnyama v Gxalaba 1990 (1) SA 650 (C)), for example, the deceased's dying
declaration was accepted as an exception to the general rule and hearsay evidence was
admissible.
In McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd 1997 (1) SA 1 (A) it was held
that such discretion to admit evidence in terms of Section 3(1)(c) 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.
Furthermore, the scenario at hand is very similar to that in S v Shaik 2007 (1) SACR 247 (SCA), where
it was held that it would be in the interest of justice to allow such a fax as provided for in terms of
Section 3 of Act 45 of 1988.
In view of all the above mentioned factors, I am of the opinion that the fax would be admissible
hearsay evidence as it is in the interest of justice to allow same as evidence as provided for in terms
of the Law of Evidence Amendment Act.
If the prosecutor never called the complainant to testify, this changes the nature of the evidence
which the flatmate can give. Fully explain whether you would still allow the flatmate to come and
testify under such circumstances. Give a definition of this type of evidence in your answer, and
explain the exceptions with reference to decided cases. (10)
If the complainant does not testify, the flatmate’s evidence will be hearsay – see study unit 8. It is therefore important to
give a definition and a full discussion of the exceptions with reference to applicable cases. The factors mentioned in section
3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 must be discussed and applied to the set of facts. As Above
Note: (do not study) Many students have difficulty, at some time or another, to distinguish between
hearsay, previous consistent statements and admissions (or confessions). We suggest the following
approach:
(1) First determine whether the witness is solely testifying about her own experiences. If the witness
is not relating what another person showed or told her, or what she read or saw of another’s
observations or experiences, the only possible concept that can be involved is that of previous
consistent statements —but this is only the case if the witness is testifying about the fact that she
made a consistent statement prior to testifying in court (see study unit 7).
(2) If the witness in a criminal case tells the court that something was admitted or confessed by
another person (see study unit 10 for the exact meaning of these terms), the admissibility of that
evidence should only be determined with reference to the law on admissions (or confessions
depending on the nature of the other person’s statement). Although evidence about such
statements is strictly speaking hearsay evidence, their admissibility is only determined in terms of
the law on admissions and confessions. This is because the Law of Evidence Amendment Act 45
of 1988 gives section 217 and section 219 of the Criminal Procedure Act preference when the
20
admissibility of such statements is determined in criminal proceedings.

If the witness in a civil case tells the court that something was admitted by another person, such
evidence will constitute hearsay and the court will therefore have to decide whether if should admit
the hearsay in the interest of justice after exercising its judicial discretion in this regard.
(3) Generally, in all other situations that comply with the definition of hearsay, the law of hearsay
will determine the admissibility (or otherwise) of the evidence. Only in rare instances, when the
witness testifies about a previous consistent statement made by another person (see study unit 7
part 1) will the admissibility of that evidence be governed by the law relating to both hearsay and
previous consistent statements.
Study unit 9 Opinion evidence
Definition: a Factual inference based on other facts
(1) Cite six examples of instances where a court may allow for the evidence of a layperson.
(a) the approximate age of a person.
(b) the state of sobriety of a person.
(c) the general condition of something.
(d) the approximate speed at which a vehicle was travelling.
(e) a summary of factual data as perceived by him, for example, a witness may be
permitted to say that the complainant was “angry”.
(f) the identity of handwriting.
(2) Should a court allow for unchallenged opinion evidence given by a layperson?
The court may allow the unchallenged opinion of a lay person, subject to the following provisos:
(a) The admissible opinion of a lay person is regarded as prima facie evidence.
(b) If the evidence is unchallenged the court has a discretion whether or not to accept it.
(c) This decision by the court will depend upon the issues and reasons that the witness can
advance to support his conclusion, that is, his opinion. There is also authority which supports an
enquiry into the ability of the witness to express an informed and sound opinion.
(3) Fill in the missing words:

The inability to provide reasons for the opinion of a layperson shall, in principle, affect
the.........weight............and not the.......admissibility......... of the opinion evidence.
(1) Give five examples of instances where expert evidence will play a role.
1. Ballistics
2. Engineering
3. Chemistry
4. Medicine
5. Accounting
(1) Despite the fact that this rule has been abolished in England for quite a while, theoretically it
still applies in South Africa. Why is this so?
(1) First of all, you should remember that this question deals with the admissibility of evidence in a
civil case. The rule in Hollington v Hewthorne still applies in our law, because of a residuary clause:
section 42 of the Civil Proceedings Evidence Act 25 of 1965. This section states that the law of
evidence, including the law relating to the competency, compellability, examination and cross-
21
examination of witnesses which was in force in respect of civil proceedings on 30 May 1961 shall
apply in any case not provided for by that Act or any other law. Hollington v Hewthorne was
decided in 1943 and still has binding authority over the South African courts. In England, the effect of
the decision was undone by the Civil Evidence Act of 1968, but this came too late for South Africa,
which still adheres to the 1961 position.
(2) W gives evidence on behalf of the state and as a consequence someone is convicted of
negligent driving. In a subsequent civil case, W is not there to give evidence since she has passed
away. The plaintiff now tries to tender the record of W’s evidence (not the criminal court’s finding)
given at the criminal trial in order to prove negligence. Will she succeed?
(2) The facts of this question are similar to those in Hollington v Hewthorne, in which it was decided
that the finding on an issue in a criminal trial cannot serve as proof of that issue in an ensuing civil
trial, since the finding of the criminal court is mere opinion. In the stated question, the situation is
different, since what the plaintiff wants to introduce into evidence is not the finding of the criminal
court, but the record of W’s evidence given at the criminal trial. This changes things, because the
record of W’s evidence amounts to hearsay evidence.
X manages to commit the perfect murder by drowning his girlfriend while taking a swim at a beach
known for its strong currents and dangerous rocks. A life guard that was on duty at the time later
testifies on behalf of X that X came running from the sea stating that he became separated from
his girlfriend while swimming and that she is missing. The next day her body washes up on the
beach and the coroner (Dr Quincy) later finds that her death was caused by drowning. Most
probably this happened after she had hit her head against a rock, because she had some head
injuries. He also notes some injuries to her neck. X receives a large amount of money because of a
life insurance policy that was taken out not long before his girlfriend’s death. Shortly before
spending nearly all the money, X gets a conscience attack and decides to confide in a priest. He
tells the priest that he caused the death of his girlfriend and that he wants to give himself up to
the police. The priest phones the police and X is arrested. While in custody, X changes his story
and decides to plead not guilty. The state also calls Dr Quincy to come and testify about his
findings. Fully note and explain the requirements for the admissibility of this type of evidence. (10)
The admissibility of expert evidence:

There are 3 requirements, which have to be met when opinion evidence is at issue:
1. The court must be satisfied the expert is capable of giving evidence about a specific relevant issue.
It’s important to test her expertise by asking searching questions on her qualifications, practical
experience in the field and previous track record as an expert witness. In S v Shaik it was held that
a general medical practitioner who had 4 years’ experience was not qualified to speak
authoritatively on the significance of findings in a pathologists report in this instance.
2. The court must be informed of reasons and grounds on which the opinion is based and may
compare findings of expert witnesses with other findings of facts in a case to see if they
corroborate.
In S v September, the court a quo’s finding on the very point on which the expert witnesses were
testifying, was set aside as three expert witnesses presented 3 different views, and as a result the
court used its own common sense in its decision.
3. The court need not rely on the opinion of the expert – but if the evidence is of such a technical
nature that the court can’t make a reliable inference, the court must fully rely on the evidence
given by the expert who must not merely convey the textbooks opinion since that will constitute
hearsay evidence. The expert should have personal knowledge of the subject in question and
should only use a textbook to refresh her memory or to explain or support her opinion. In Menday
v Protea Assurance Co Ltd it was stated that where an expert relies on a textbook it must be
shown that he can affirm the correctness of text by reason of his own training and that the author
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of the text is reliable.
The state calls a pathologist, Dr No, to come and testify about tests that he did on the body of the deceased. Fully
discuss the requirements that must be met before the court will accept Dr No’s evidence.(8) as above
A well-known public figure is arrested early one morning for allegedly raping his assistant after a party in a hotel the
night before. At the police station DNA samples are taken from him. At the same time, tissue samples are taken from
underneath the complainant’s finger nails. During the trial the complainant testifies that the rape took place in a
unoccupied hotel room shortly after the party ended. She explains that she fought tooth and nail against her attacker,
and identifies the accused as the assailant. During cross-examination it is put to the complainant that she is lying
because she couldn’t have observed the assailant’s identity properly, since the lights in the room were not functioning
properly and because she was intoxicated. The accused also cross-examines her about her sexual relations with various
other men and indicates that he intends calling witnesses in this regard. The prosecutor responds by calling the doorman
of the hotel where the rape allegedly took place. He testifies that the complainant gave him, that very same night, a
similar version of the facts in question. He also testifies as to what the complainant said about the identity of her
assailant and about the complainant’s state of sobriety. DNA tests later confirm that the tissue samples found
underneath the complainant’s nails, belong to that of the accused. What type of witness must be used to present this
evidence and what requirements must be met when this type of evidence is at issue? (8) As above
Study unit 10 Admissions and confessions: definition and types
Definition: An admission is a statement or conduct adverse to the person from whom it emanates.
One or more of the facts in issue will be admitted by an admission (but not all the facts in issue).
‘‘A STATEMENT’’ made verbally or in writing

“CONDUCT” Conduct can only be an admission if it involves a communication and if it confirms an
unfavourable fact. If not a communication, it is only circumstantial evidence, such as evidence of an
attempt by an accused to commit suicide.
A person’s silence may amount to admission, such as in Jacobs v Henning where one person is
accused of fatherhood and simply lowers his head. The surrounding circumstances determine
whether it amounts to a communication and whether a logical inference could be drawn from it.
Courts in criminal cases are less willing to draw a negative inference against an accused’s
conduct, than in civil cases. In criminal cases the suspect has a constitutional right to remain silent
and the right to be presumed innocent.
“ADVERSE TO THE PERSON MAKIING IT” it often happens that part of the statement is
incriminating, and part of it is exculpatory. This may influence the admissibility of this statement,
and may affect the evidential value of the statement.
VARIOUS FORMS OF ADMISSIONS
A. Unintentional admissions: an admission need not be made in the knowledge that it’s
adverse to the maker. Even a statement, which is intended to be exculpatory, will be an
admission if it’s ultimately to the disadvantage to the maker.
Therefore:
‘‘the criterion employed is objective rather than subjective’’
‘‘Objective’’ refers to an impersonal, general measure. One could say it represents the
way a reasonable person would view the matter. . If an objective approach is followed,
the result is that a statement will be an admission if, regardless of what the declarant
thinks, an element of the crime is admitted in the statement.
‘‘Subjective’’ is something more personal, namely what the person involved thinks of the
matter. According to a subjective approach, the statement will be an admission only if the
declarant intends to admit something, or is at least aware that something is admitted in
the statement.
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B. Formal and informal admissions

The distinction:
(1) they are proven in different ways, and
(2) The evidential value of formal admissions differs from that of informal
admissions.
A formal admission made in the pleadings, or during the trial places the fact admitted beyond
dispute thus no evidence need to be adduced about it. Facts of which evidence is unnecessary are in
the same category as presumptions and judicial notice.
An informal admission made in or out of court and does not place the admitted fact beyond dispute.
Such an admission has to be proven by adducing evidence, the evidential value of which will be
considered together with all the other evidence at the end of the trial.
Indicate whether the following situations relate to a formal or an informal admission, or

neither:
(1) X’s mother confronts him: ‘‘Martha tells me that you are the father of her baby girl!’’ X wishes
the earth would swallow him up, but eventually answers: ‘‘Well, I suppose I did sleep with her.’’
(formal/informal/neither)
(1) Informal
(2) X’s mother confronts him: ‘‘Martha tells me that you are the father of her baby
girl!’’ X who wishes the earth would swallow him up, hangs his head in shame,
but can find no answer. (formal/informal/neither)
(2) Informal (by conduct)
(3) Immediately after a car accident, Mr Wagen admits to Mr Benz: ‘‘Yes, the robot
was red for me, but I noticed it too late and could not stop in time.’’ (formal/
informal/neither)
(3) Informal
(4) Makgolelo pleads not guilty to a charge of rape. During the plea proceedings in
terms of section 115 of the Criminal Procedure Act 51 of 1977, he claims that
although he did have sexual intercourse with the complainant, she had consented
to it. The magistrate asks Makgolelo whether the statement that he had
intercourse with the complainant may be recorded in terms of section 220 of the
Criminal Procedure Act. Makgolelo agrees. (See S v Makgolelo 1995 (1) SACR
386 (T).) (formal/informal/neither)
(4) Formal
(5) Makgolelo pleads not guilty to a charge of rape. During the plea proceedings in terms of section
115 of the Criminal Procedure Act 51 of 1977, he claims that although he did have sexual
intercourse with the complainant, she had consented to it. The magistrate asks Makgolelo
whether the statement that he had intercourse with the complainant may be recorded in terms of
section 220 of the Criminal Procedure Act. Makgolelo is concerned that it will be to his
disadvantage to agree, and refuses the magistrate’s request. (formal/informal/ neither)
(5) Informal
(6) The suspect in a murder case takes the investigating officer to a spot in the bush
where he points out a pistol. ‘‘That is the pistol’’, he says. Ballistic testing proves
that the particular pistol was used to kill the deceased. (Note: both the conduct of
the suspect and his statement may or may not amount to an admission.) (formal/
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informal/neither)
(6) Informal (both statement and conduct)
(7) Cocky is arrested for stabbing his wife with a knife. As the arresting police official
is explaining the reasons for the arrest to Cocky, he exclaims: ‘‘But I was
defending myself!’’ (formal/informal/neither)
(7) Informal
(8) Cocky receives a summons in which his wife institutes a civil action against him.
She is claiming damages for the stab wound inflicted by Cocky. Cocky consults
his lawyer, who draws up the plea, which includes the following statement:
‘‘Cocky stabbed the plaintiff in self-defence.’’ (formal/informal/neither)
(8) Formal
1. Proving a formal admission in Civil proceedings
(1) How is a formal admission proved in a civil matter?

(1) In terms of section 15 of the Civil Proceedings Evidence Act, a formal admission need not be
proved in a civil matter - such admission is already on record, and forms part of the evidential
material.
(2) What is the evidential value of such a formal admission?
(2) A formal admission places the fact(s) which is (are) admitted beyond dispute, and since that fact
is no longer in dispute, no evidence needs to be adduced about it.
(3) Can a formal admission be disproved by other evidence?
(3) Section 15 disallows the rebuttal (proving false) by either of the parties of a fact which was
admitted in a formal admission. However, admissions have been disregarded if disproved by other
evidence.
(4) Can a formal admission be withdrawn or amended?
(4) Yes, the aim and function of the court is to do justice between the parties, and as such it would
be reluctant to deny a party an opportunity to amend its pleadings.
In S v Daniels it was held that the court has a discretion to relieve a party from the consequences of
a formal admission made in error. A civil litigant must establish that a bona fide mistake was made,
and that the amendment will not cause prejudice to the other side which cannot be cured by an
order as to costs. An error in judgment, such as a failure to appreciate the crucial nature of the fact
formally admitted, could be seen as a bona fide mistake. The mere fact that the withdrawal may
defeat the opponent’s claim or defence is not a matter amounting to prejudice in the legal sense.
2. Proving a formal admission in Criminal Proceedings
S220: an A or his legal advisor may in criminal proceedings admit any fact placed in issue at such
proceedings and any such admission shall be sufficient proof of such fact.
S112 CPA allows an A to plead guilty to the charge. After the plea of guilty the court will normally
question the A to ensure that the A is legally guilty. If he is the court may convict and sentence the A.
If the court isn’t satisfied that the A is legally guilty, it will enter a plea of not guilty on his behalf.
S113: an admission made by the A during questioning in terms of S112 stands as proof of the
allegation.
Unisa = says it’s a formal admission because its stands as proof of the allegation and the fact is
placed beyond dispute.
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Not guilty to the charge, S115 allow the A to explain why he’s pleading not guilty – normally this
explanation will be exculpatory, but it may show the A doesn’t dispute every allegation in the charge
sheet and thus admits them. The court must then ascertain from the A whether he’s prepared to
consent to such admission being recorded – if the A consents, such a recorded admission is deemed
to be an admission under S220 (formal) = the admission is sufficient proof of the particular fact in
issue and is a formal admission.
An important question which has long been disputed concerns the evidential value of an admission
made by the accused during the explanation of the plea of not guilty, where the accused does not
consent to it being recorded as an admission.
In S V Cloete - The evidential value of informal admissions in statements made in terms of s115
derives from the common law of evidence. That being so, there is no reason of principal why the rule
enunciated in R v Valachia (to the effect that when proof of an admission made by a party is
admitted, such a party is entitled to have the whole statement put before the court and the judicial
officer has to take into consideration everything contained in the statement relating to the matter in
issue), should not be applicable to such statements. The prohibition in s196(3) of the CPA on
unsworn statements in lieu of evidence has no bearing on the matter. There is no other reason why
a court should be entitled to have regard to the incriminating parts of such a statement while
ignoring the exculpatory ones
C. Vicarious admissions:
This is an admission made by someone other than the person whom it prejudices or disadvantages.
Since admissions may normally only be admissible against its maker, someone’s vicarious admission
wont be admissible in evidence against the person whom it prejudices
Exceptions:
1. Admission made by a person who had express or implied authorization to make such an admission
2. a situation where 2 persons have a relationship which is of such a nature that what is done by the
one person can be held against the other. (privy of interest or obligation)
Statements made without prejudice

(1) Why is an admission by a person involved in a dispute protected from disclosure if the
admission is made in order to achieve a compromise?
(1) The rationale of the “without prejudice” rule is based on public policy which encourages the
private settlement of disputes by the parties themselves. Parties would be reluctant to be frank if
what they said may be held against them in the event of negotiations failing.
(2) What is the effect of the words ‘‘without prejudice’’ in such a statement?
(2) The statement is made without prejudice to the rights of the person making the offer in the
event of the offer being refused. The words “without prejudice” do not by themselves protect the
statement from disclosure. The statement may still be disclosed, even if the words are invoked, if it
was not made during the course of genuine negotiations. It is not necessary to preface a statement
with the words “without prejudice”, because as long as the statement constitutes a bona fide
attempt to settle the dispute it will be “privileged”. Settlement of disputes is the main reason for the
existence of this rule. However, before the “privilege” will come into effect, there must be some
relevance to, or connection with, the settlement negotiations.
(3) What is the most important prerequisite for a statement made without prejudice to be
protected from disclosure?
(3) The prerequisite for a statement made without prejudice to be protected from disclosure is that
it has to be made in good faith. However, even if a statement is made in good faith, it will be
disclosed, that is, it is admissible, if the statement constitutes an act of insolvency or an offence or
26
an incitement to commit an offence, provided that the statement is tendered to prove the
commission of the act.
(4) State whether the following statements are true or false:

(a) Statements made without prejudice occur only in civil matters.
(4) (a) True.
(b) If such a statement is accompanied by a threat of litigation, the statement will no longer be
privileged.
(b) False. It will remain privileged, since such a threat is implicit in every offer of compromise.
However, where an offer contains a threat relevant to establishing that the offer was not bona fide,
evidence of both the offer and the threat will be admitted in court.
Write a short note on the privilege that applies in the case of “statements made without
prejudice”. (5)
The rationale of the “without prejudice” rule is based on public policy which encourages the private
settlement of disputes by the parties themselves. Parties would be reluctant to be frank if what they
said may be held against them in the event of negotiations failing.
The statement is made without prejudice to the rights of the person making the offer in the event of
the offer being refused. The words “without prejudice” do not by themselves protect the statement
from disclosure. The statement may still be disclosed, even if the words are invoked, if it was not
made during the course of genuine negotiations. It is not necessary to preface a statement with the
words “without prejudice”, because as long as the statement constitutes a bona fide attempt to
settle the dispute it will be “privileged”. Settlement of disputes is the main reason for the existence
of this rule. However, before the “privilege” will come into effect, there must be some relevance to,
or connection with, the settlement negotiations.
The prerequisite for a statement made without prejudice to be protected from disclosure is that it
has to be made in good faith. However, even if a statement is made in good faith, it will be disclosed,
that is, it is admissible, if the statement constitutes an act of insolvency or an offence or an
incitement to commit an offence, provided that the statement is tendered to prove the commission
of the act.
The accused (A) is charged with the rape of a niece (C). C testified at the trial as to what had
happened to her during the rape, and the prosecution led supporting evidence in the form of an
agreement reached between A and the family of C. This agreement was mediated by S, an
upstanding member of the local community. A did not admit verbally to having raped C, but he did
sign the agreement, in terms of which he had to pay a fine of 17 cattle to C. The agreement’s
heading read: “On the matter of the rape of [C] by [A].” At the trial, S testified about the signing of
the agreement and the facts occurring at the time. Answer the following questions, with reference
to authority, where applicable:
1.1 Fully discuss, with reference to authority, the requirements for the admissibility of S’s
evidence. (8) Check does this belong to next chapter?
S’s evidence is evidence about an admission. An admission is a “statement or conduct adverse to the
person from whom it emanates”. In this case “conduct”.
‘‘A STATEMENT’’ is made verbally or in writing.
“CONDUCT”- Conduct can only be an admission if it involves a communication and if it confirms an
unfavourable fact. If not a communication, it is only circumstantial evidence, such as evidence of an
attempt by an accused to commit suicide.
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A person’s silence may amount to admission, such as in Jacobs v Henning where one person is
accused of fatherhood and simply lowers his head.
The surrounding circumstances determine whether it amounts to a communication and whether a
logical inference could be drawn from it.
Courts in criminal cases are less willing to draw a negative inference against an accused’s
conduct, than in civil cases. In criminal cases the suspect has a constitutional right to remain silent
and the right to be presumed innocent.
“ADVERSE TO THE PERSON MAKIING IT” it often happens that part of the statement is
incriminating, and part of it is exculpatory. This may influence the admissibility of this statement,
and may affect the evidential value of the statement.
1.2 What is the nature of S’s evidence that A signed the agreement mentioned above? Explain the
answer and explain the effect of the fact that A did not say anything when signing the agreement.
(10) Check
Fully discuss formal admissions in civil proceedings. Explain in your answer how such admissions
are proved (and whether they can be disproved), the evidential value of such admissions and
whether they can be withdrawn or amended. (10)
In terms of section 15 of the Civil Proceedings Evidence Act, a formal admission need not be proved
in a civil matter - such admission is already on record, and forms part of the evidential material.
A formal admission places the fact(s) which is (are) admitted beyond dispute, and since that fact is
no longer in dispute, no evidence needs to be adduced about it.
Section 15 disallows the rebuttal (proving false) by either of the parties of a fact which was admitted
in a formal admission. However, admissions have been disregarded if disproved by other evidence.
A formal admission can be withdrawn or amended as the aim and function of the court is to do
justice between the parties, and as such it would be reluctant to deny a party an opportunity to
amend its pleadings. In S v Daniels it was held that the court has a discretion to relieve a party from
the consequences of a formal admission made in error. A civil litigant must establish that a bona fide
mistake was made, and that the amendment will not cause prejudice to the other side which cannot
be cured by an order as to costs. An error in judgment, such as a failure to appreciate the crucial
nature of the fact formally admitted, could be seen as a bona fide mistake. The mere fact that the
withdrawal may defeat the opponent’s claim or defence is not a matter amounting to prejudice in
the legal sense.
4.1 An important piece of evidence against X is the statement he made to the priest(see Q
below) . Is this statement an admission or a confession? Fully discuss with reference to authority.
(Do not include any reference to the requirements for the admissibility of these statements in
your answer). (5)
A confession is an admission of all the facts in issue (or all the elements of a specific crime). A
confession can be described as a plea of guilty and does not therefore contain any exculpatory part.
In R v Becker it was stated that a confession is an unequivocal acknowledgement of guilt. It is the
equivalent of a plea of guilty in a court of law. The court also stated that it is a statement which is
consistent only with the accused’s guilt, which cannot be explained in any other way. The court in S v
Yende held that in order to decide whether a statement amounts to a confession, the statement
must be considered as a whole.
An admission is an admittance of one or more of the facts in issue, but not all the facts. The
statement by X is an admission, because he merely said that he caused her death. This is not the
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same as saying that you killed someone. A person’s silence may amount to admission, such as in
Jacobs v Henning where one person is accused of fatherhood and simply lowers his head
Include authority Check!
Answer the following questions after reading the Becker case:

(1) What is a confession, according to R v Becker?
(1) A confession is an unequivocal acknowledgement of guilt. It is the equivalent of a
plea of guilty in a court of law. The court also stated that it is a statement which is
consistent only with the accused’s guilt, which cannot be explained in any other
way.
(2) What is the nature of a statement if the court may infer guilt on the part of the
accused only if that statement is ‘‘carefully scrutinised and laboriously put together’’?
It would be dangerous to regard such a statement as a confession as it is not a confession within the
meaning of the Act
(3) What is meant by the term ‘‘extra-judicial’’ as far as extra-judicial confessions are concerned?
(3) "Extra-judiciaI” means that which is done out of court, in other words, not during the court
proceedings or as part of the plea proceedings.
(4) What test has the legislature devised to be applied to confessions?

(4) The test used by the legislature is that a confession is an acknowledgment of guilt on the part of
the accused which, if made in a court of law, would amount to a plea of guilty.
Draw up some guidelines to facilitate determining whether a statement amounts to a

confession. Take note of the following aspects: the definition of a confession and the
guidelines in S v Yende. Make sure that you read the prescribed cases and apply the
guidelines you devised to them.
Note that a confession is an admission of all the facts in issue. All the elements of a
specific crime are therefore admitted. A confession can be described as a guilty plea and
does not therefore contain any exculpatory part.
The court in S v Yende held that in order to decide whether a statement amounts to a
confession, the statement must be considered as a whole. One should take cognizance of
what actually appears in the statement and what is necessarily implied from it. Note that, if
the content of the statement does not expressly admit all the elements of the offence, or
excludes all the grounds of defence, but does so by necessary implication, then the
statement amounts to a confession. If there is doubt in respect of the above, then the
statement is not a confession, as it does not contain a clear admission of guilt. The court
also held that an objective, rather than a subjective approach was suitable, since one is
concerned with the facts which the accused states rather than the intention behind it. If the
facts which the accused admits amount to a clear admission of guilt, then it is a
confession, and it does not matter that in making the statement he acted in an exculpatory
manner, that is, he did not intend it as a confession. The application of an objective
standard does not mean, however, that all subjective factors are left out. The state of mind
or intention of the declarant will sometimes be taken into account as one of the
surrounding circumstances from which the objective meaning of his statement can be
ascertained. The true meaning of a statement can often be decided only by taking the
surrounding circumstances into account.
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and decides to plead not guilty.
Briefly explain the meaning of a “vicarious admission”. (5)

This is an admission made by someone other than the person whom it prejudices or disadvantages.
Since admissions may normally only be admissible against its maker, someone’s vicarious admission
wont be admissible in evidence against the person whom it prejudices
Exceptions:
1. Admission made by a person who had express or implied authorization to make such an admission
2. a situation where 2 persons have a relationship which is of such a nature that what is done by the
one person can be held against the other. (privy of interest or obligation)
Study unit 11 The admissibility of admissions and confessions
Admissibility of an admission in civil matters:

2 requirements: voluntariness and relevance
Admissibility of an admission in criminal matters:
Requirements for the Admissibility of an admission - section 219A

(1) The section refers to admissions made extra-judicially; ie outside the judicial process. This means
that it refers to informal admissions that relate only to admissions, if they do not amount to a
confession. Such an admission will be admissible if it is proved that it was made voluntarily
What does ‘‘freely and voluntarily’’ mean in terms of the common law, according to R v Barlin?
According to this case, "freely and voluntarily" means that the accused should not have
been induced by any promise or threat from a person in authority.
(1) When will a court find that a promise or threat has been made?
A promise or threat will be found to have been made if a person, by means of words
or conduct, indicates to an accused that she will be treated more favourably if she
speaks, or less favourably if she does not speak. Whether such promise or threat
was made will depend on the facts of each case. The mere existence of a promise
or threat does not necessarily establish a lack of voluntariness. A subjective test is
used to assess the voluntariness of the accused’s statement in terms of which the
threat or promise must have been operative on the mind of the accused at the time
when the statement was made. The subjectivity of the test makes it impossible to
specify what would constitute a threat or promise.
Who is a ‘‘person in authority’’?

In terms of the common law, according to Zeffertt et al 467, a person in authority is
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“anyone whom the prisoner might reasonably supposed to be capable of influencing

the course of the prosecution”. Persons such as a magistrate, police officer and the
complainant clearly fall into this category. However, Schwikkard & Van der Merwe
are of the opinion that “it would make more sense to define a person in authority as
someone the accused believes to be capable of carrying out what he says, rather
than someone able to influence the course of the prosecution”.
THE ADMISSIBILITY OF A CONFESSION
S v Khan - the requirements for admissibility in terms of section 217 are aimed at ensuring fairness.
They are there to ensure reliable confessions, to protect the privilege against self-incrimination and
to prevent improper behaviour by the police towards those in custody.
3 requirements in terms of S217(1): for the admissibility of all confessions:
They have to be made:
1. Freely and voluntarily
2. By a person in her sound and sober senses
3. Without being unduly influenced thereto
4. If the confession is made to a peace officer that isn’t a justice of the peace or magistrate, it has
to be confirmed and reduced to writing in the presence of the magistrate or justice of the peace.
(1) What is the meaning of ‘‘freely and voluntarily’’ as used in section 217?
(1) The common law definition is that the statement must not be induced by a threat or
a promise emanating from a person in authority.
(2) What is the meaning of the requirement that the person must have been ‘‘in his sound and
sober senses’’?
(2) The accused must have been sufficiently compos mentis to understand what he
was saying. The fact that the accused was intoxicated, extremely angry, or in great
pain will not in itself lead to the conclusion that the accused was not in his sound
and sober senses, unless it was established that he could not have appreciated
what he was saying.
(3) What does ‘‘without having been unduly influenced thereto’’ basically mean?
(3) “Undue influence” occurs where some external factor nullifies the accused’s
freedom of will. Examples include the promise of some benefit, or an implied threat
or promise. The undue influence need not emanate from a person in authority. Note
that even a voluntary statement may be excluded if it was induced as a result of
undue influence.
(4) “Justice of the peace” refers to an officer in the SA Police Service (SAPS), including someone with
the rank of lieutenant, captain, major, lieutenant colonel, colonel and higher. Those in the lower
ranks of constable, sergeant and warrant officer are not officers, and therefore not justices of the
peace. Peace officer includes ‘‘any magistrate, justice, police official, member of the prisons
service ... and ... any person who is a peace officer under [section 334(1)
(4) Read S v Mpetha (2) 1983 (1) SA 576 (C) Explain the test which is used to determine whether
there was undue influence in a specific instance.
(4) The concept of “undue influence” is wider than the concept of “free and voluntary”.
The circumstances of each individual case will have to be taken into consideration,
in determining whether the confessor’s will was swayed by external impulses,
improperly brought to bear upon it, which are calculated to negative the apparent
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freedom of volition. The court held that the term “negative” was not intended to
connote a degree of impairment of will so high that in reality there was no act of free
will at all. The criterion was held to refer to the improper bending, influencing or
swaying of the will, and not to its total elimination as a freely operating entity.
THE ADMITTANCE OF AN OTHERWISE INADMISSIBLE CONFESSION
Answer the following questions after reading S v Nieuwoudt:

(1) What are the requirements for the admissibility of an otherwise inadmissible confession?
s217(3)
(1) The requirements for the admission of an otherwise inadmissible confession are:
(a) Evidence is adduced by the accused,
(b) which, in the opinion of the judicial officer, is favourable to the accused,
(c) of a statement made by him,
(d) as part of, or
(e) in connection with, such an inadmissible confession.
S v Nieuwoudt: s217(3) normally applies in a situation where the defence presents part of the
statement, which is favourable to the A, and the state reacts by presenting the unfavourable part of
the statement
(2) According to the court, what meaning should be given to the words ‘‘in connection with’’ in
section 217(3)?
(2) The court says that although this is a wide concept, it should be interpreted restrictively. In
accordance with the decision in R v Mzimsha 1942 WLD 82, the favourable part of the statement
must be a natural part of the confession, or else the favourable statement and the confession must
be parts of substantially the same transaction. However, the court remarks that not everything said
during the same conversation will necessarily be connected. Whether there is a sufficient connection
will be decided on the facts of each case.
DETERMINING THE ADMISSIBILITY OF ADMISSIONS AND CONFESSIONS
Whenever a dispute arises over the admissibility of an admission or confession, this dispute is
determined by way of a trial within a trial. This involves a separate trial, during which the main trial
is suspended and the admissibility of the particular statement becomes the main fact in issue.
(1) Why is a trial within a trial normally held?

(1) A “trial within a trial” is held to determine the admissibility of an admission or
confession. At this stage both prosecution and defence will adduce evidence as to
the circumstances in which the statement was made. The presiding officer, sitting
with or without assessors, will decide whether the requirements for admissibility
have been met.
(2) May evidence heard at a trial within a trial be taken into account when evaluating
the evidence at the end of the main trial?
(2) The principle applicable here is that the issue of admissibility must be kept separate
from the issue of guilt. Therefore, the presiding officer in deciding the issue of guilt,
that is when she is evaluating the evidence at the end of the main trial, may not
have regard to the evidence given at the trial within a trial.
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(3) If, at the end of a trial within a trial, the court is satisfied that the requirements for
the admissibility of admissions or confessions have been met, the relevant
statement will be admitted as evidence. Can a court amend such a decision at a
later stage?
(3) Yes, the Appellate Division has ruled that if during the course of the main trial
evidence comes to light which causes the court to question its earlier ruling, it is
entitled to overrule its own decision.
Explain the meaning and main functions of a “trial-within-a-trial.” (5)

Briefly explain what happens during a “trial within a trial”. (5)
A trial-within-a-trial is held to determine the admissibility of an admission or confession. It is a
separate trial, during which the main trial is suspended, and the admissibility of the particular
statement becomes the main fact in issue. At this stage both the prosecution and the defence will
adduce evidence as to the circumstances in which the statement was made. Therefore, the presiding
officer in deciding the issue of guilt, that is when he is evaluating the evidence at the end of the main
trial, may not have regard to the evidence given at the trial-within-a-trial.
2011
The accused (A) is charged with the rape of a niece (C). C testified at the trial as to what had
happened to her during the rape, and the prosecution led supporting evidence in the form of an
agreement reached between A and the family of C. This agreement was mediated by S, an
upstanding member of the local community. A did not admit verbally to having raped C, but he did
sign the agreement, in terms of which he had to pay a fine of 17 cattle to C. The agreement’s
heading read: “On the matter of the rape of [C] by [A].” At the trial, S testified about the signing of
the agreement and the facts occurring at the time. Answer the following questions, with reference
to authority, where applicable: Assume that A, instead of keeping quiet, stated during the signing
of the agreement that: “Yes, I should not have done this to C.”
1. Fully discuss, with reference to S v Yende 1987 (3) SA 367 (A), how it should be determined what
the nature of A’s statement is in such an instance. Give full definitions to explain your answer and
briefly refer to requirements for admissibility. (12)
In order to determine the nature of the statement you must specifically take note of the
guidelines mentioned from page 72 of the study guide. The statement is an extra-judicial
admission and in terms of s 219A an admission (made extra-judicially and not amounting to a
confession) is admissible if made voluntarily –
R v Barlin 1926 AD 459 states that “freely and voluntarily” means that the accused should not have
been induced by any promise or threat from a person in authority. This would be the case if S
indicated to A that he would be treated more favourably by signing the document or less favourably
if he did not sign. Whether such a threat of promise was made depends upon the facts of each case.
The mere existence of a threat or promise does not necessarily indicate an absence of voluntariness.
A subjective test is used to assess the voluntariness of the accused’s statement in terms of which the
threat or promise must have been operative on the mind of the accused at the time when the
statement was made. The subjectivity of the test makes it impossible to specify what would
constitute a threat or promise. In terms of the common law a person in authority is “anyone
whom the prisoner might reasonably suppose to be capable of influencing the course of the
prosecution”. Persons such as a magistrate, a police officer and the complainant, clearly fall
into this category. However, Schwikkard & Van der Merwe are of the opinion that “it would
make more sense to define a person in authority as someone the accused believes to be
capable of carrying out what he says, rather than someone able to influence the course of the
prosecution”. Because S is not a person in authority and there is no indication of a promise or
threat, the admission will be admissible.
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and decides to plead not guilty. Mention and explain the requirements for the admissibility of a
confession made to a priest. Are these requirements different from those applying to a confession
made to a peace officer? (10)
Section 217(1) of the Criminal Procedure Act 51 of 1977 contains the three basic requirements for
the admissibility of all confessions. They have to be made:
Freely and voluntarily. This means that the accused should not have been induced by any promise
or threat from a person in authority.
By a person in his sound and sober senses. The accused must have been sufficiently compos mentis
to understand what he was saying.
Without being unduly influenced thereto. “Undue influence” occurs where some external factor
nullifies the accused’s freedom of will. According to S v Mpetha (2) 1983 (1) SA 576 (C) the
circumstances of each individual case will have to be taken into consideration, in determining
whether the confessor’s will was swayed by external impulses. The court held that the term
“negative” was not intended to connote a degree of impairment of will so high that in reality there
was no act of free will at all. The criterion was held to refer to the improper bending, influencing or
swaying of the will, and not to its total elimination as a freely operating entity.
If a confession is made to a peace officer who is not a justice of the peace or a magistrate, it has to
be confirmed and reduced to writing in the presence of a magistrate or justice of the peace. “Justice
of the peace” refers to an officer in the SA Police Service (SAPS), including someone with the rank of
lieutenant, captain, major, lieutenant colonel, colonel and higher. Those in the lower ranks of
constable, sergeant and warrant officer are not officers, and therefore not justices of the peace.
Peace officer includes ‘‘any magistrate, justice, police official, member of the prisons service ...
and ... any person who is a peace officer under [section 334(1)
Because the priest is not a peace officer, only the three basic requirements will apply to this
situation.
X is arrested and charged with the murder of a woman whom he had recently married. The victim was found dead in her bath. The
investigating officer, a captain in the SAPS, tells X that the police are also investigating other murder cases against him and that he
would possibly not be charged with the other murders if he confesses to the current charge against him. X goes ahead and confesses to
the murder and also proceeds to point out a pair of gloves hidden away in his garage. This pair of gloves was allegedly used in the
process of drowning the victim and has some of her hair attached to them. During the trial, however, the accused, who stands to
benefit financially from the woman’s death, alleges that the confession was not voluntarily done and also that the woman’s death
resulted from an epileptic fit.
4.1 Fully discuss the admissibility of X’s confession to the investigating officer. (10) As above
When will an admission be admissible in a criminal case? Fully discuss with reference to decided
cases. (5)
Admissibility of an admission in a criminal case in terms of section 219A refers to admissions made
extra-judicially. Such an admission will be admissible if it is proved that it was made freely and
voluntarily which according to R v Barlin means that the accused should not have been induced by
any promise or threat from a person in authority. A promise or threat will be found to have been
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made if a person, by means of words or conduct, indicates to an accused that she will be treated
more favourably if she speaks or less favourably if she does not speak. A person in authority is
“anyone whom the prisoner might reasonably supposed to be capable of influencing the course of
the prosecution.” However, Schwikkard & Van der Merwe are of the opinion that “it would make
more sense to define a person in authority as someone the accused believes to be capable of
carrying out what he says, rather than someone able to influence the course of the prosecution
During a trial, a dispute arises over the admissibility of a confession. Explain the procedure that
will be used to resolve this dispute. Also explain whether an otherwise inadmissible confession
can later become admissible. (10)
Whenever a dispute arises over the admissibility of an admission or confession, this dispute is
determined by way of a trial within a trial. This involves a separate trial, during which the main trial
is suspended and the admissibility of the particular statement becomes the main fact in issue.
In S v Thwala Both prosecution and defence will adduce evidence as to the circumstances in which
the statement was made. The presiding officer will decide whether the requirements for
admissibility have been met. A trial-within-a-trial is also held to determine whether a statement is an
admission or confession. The principle applicable here is that the issue of admissibility must be kept
separate from the issue of guilt. Therefore, the presiding officer in deciding the issue of guilt, that is
when she is evaluating the evidence at the end of the main trial, may not have regard to the
evidence given at the trial within a trial. If, at the end of a trial within a trial, the court is satisfied
that the requirements for the admissibility of admissions or confessions have been met, the relevant
statement will be admitted as evidence and if during the course of the main trial evidence comes to
light which causes the court to question its earlier ruling, it is entitled to overrule its own decision.
In terms of section 217(3), the prosecution may prove an otherwise inadmissible confession if the
following requirements for the admission of an otherwise inadmissible confession are met:
(a) Evidence is adduced by the accused,
(b) which, in the opinion of the judicial officer, is favourable to the accused,
(c) of a statement made by him,
(d) as part of, or
(e) in connection with, such an inadmissible confession.
In S v Nieuwoudt it was stated that s217(3) normally applies in a situation where the defence
presents part of the statement, which is favourable to the accused, and the state reacts by
presenting the unfavourable part of the statement. The court added that although meaning of the
words ‘‘in connection with’’ in the section is a wide concept, it should be interpreted restrictively. In
accordance with the decision in R v Mzimsha the favourable part of the statement must be a natural
part of the confession, or else the favourable statement and the confession must be parts of
substantially the same transaction. However, the court remarks that not everything said during the
same conversation will necessarily be connected. Whether there is a sufficient connection will be
decided on the facts of each case.
Will evidence that is obtained in violation of a person’s fundamental rights necessarily be

inadmissible? Briefly explain your answer. (5)
No, such evidence will not necessarily be inadmissible. The court first has to apply the test for the
exclusion of unconstitutionally obtained evidence. This test is contained in section 35(5) of the
Constitution. In terms of the test the court has to exclude unconstitutionally obtained evidence if
admission of such evidence will render the trial unfair or would otherwise be detrimental to the
administration of justice.
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charges against his client. The State also calls state witness C, who testifies that she accompanied
the deceased on the evening in question and later identified A as the perpetrator from
photographs that had been shown to her by the police. The third state witness is D, a police
constable, who testifies that immediately upon A’s arrest and after having been warned of his
rights by D, A admitted that a knife found in the bushes near the crime scence had been in A’s
possession on the night of the 18th of April 2005. What would be your ruling with regard to the
admissibility of D’s evidence and why? (10)
This question deals with two possible issues: the admissibility of unconstitutionally obtained
evidence and the admissibility of an informal admission. The first issue is not relevant, since D
warned A about his rights. A’s statement is an informal admission and not a confession. The
statement is an extra-judicial admission and in terms of s 219A an admission (made extra-judicially
and not amounting to a confession) is admissible if made voluntarily –
R v Barlin 1926 AD 459 states that “freely and voluntarily” means that the accused should not have
been induced by any promise or threat from a person in authority. This would be the case if D
indicated to A that he would be treated more favourably by admitting that the knife had been in his
possession or less favourably if he did not. Whether such a threat or promise was made depends
upon the facts of each case. The mere existence of a threat or promise does not necessarily indicate
an absence of voluntariness. A subjective test is used to assess the voluntariness of the accused’s
statement in terms of which the threat or promise must have been operative on the mind of the
accused at the time when the statement was made. The subjectivity of the test makes it impossible
to specify what would constitute a threat or promise.
In terms of the common law a person in authority is “anyone whom the prisoner might reasonably
suppose to be capable of influencing the course of the prosecution”. Persons such as a magistrate, a
police officer, clearly fall into this category. However, Schwikkard & Van der Merwe are of the
opinion that “it would make more sense to define a person in authority as someone the accused
believes to be capable of carrying out what he says, rather than someone able to influence the
course of the prosecution”. Because D is a person in authority it has to be determined whether a
promise or threat was made, and if so D’s evidence will be inadmissible.
The fact that the technical requirements for admissibility have been met, does not therefore mean
that an admission or confession will automatically be admissible. However, any violation of the
Constitution does not mean that an admission or confession will automatically be inadmissible.
The answer is found in section 35(5) of the Constitution which states that any evidence obtained in
a manner that violates any right in the Bill of Rights must be excluded if admission of that evidence
would render the trial unfair or would otherwise be detrimental to the administration of justice.
This provision is discussed in study unit 16. When you study it, keep in mind that the principles
discussed can be just as well applied to admissions and confessions.
Study unit 12 Admissions and confessions: remaining matters
. explain the difference between evidence as to the existence of facts and evidence that the
accused pointed out certain facts
. inidicate when these types of evidence will be admissible, and when they form part of an
inadmissible admission or confession
. explain the relationship between the technical requirements for admissibility of evidence of
pointing out and the Constitution
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. substantiate, in your opinion, whether a statement which is an inadmissible confession on a

lesser charge may still be accepted as an admission on the main charge
Pointing out of facts in consequence of an inadmissible admission or confession:
S218 (1): evidence of any fact may be admitted at criminal proceedings notwithstanding that the
witness discovered such a fact only in consequence of information given by the A in any confession,
admission or statement which isn’t admissible
S218 (2): evidence may be admitted at criminal proceedings of any thing that was pointed out by an
A notwithstanding that such pointing out forms part of an admission or confession which isn’t
admissible.
The admissibility of evidence of pointing out:
Before our courts have refused to accept that a pointing out is an admission – The current position
is as decided in Sheehama and confirmed in January that a pointing out is essentially a
communication by conduct and therefore a declaration by the person performing the pointing out
that he knows something about the facts in issue. If this statement is to the disadvantage of the
person pointing out = extra judicial admission by conduct.
Current position governing admissibility of evidence about pointing out by the A, which is relevant
to the fact in issue:
Currently the rule for the admissibility of pointing out made by the A is the same as that which
applies to any admission, namely that it will be admissible only if the pointing out was done freely
and voluntarily.
(1) As far as pointing out is concerned, what did the exception that was accepted in R v Samhando
1943 AD 608 involve?
(1) The exception turns on a rule, accepted by English courts, that an otherwise inadmissible
statement could still be admitted if confirmed in material respects by subsequently discovered facts.
(2) Why does the exception that was accepted in R v Samhando 1943 AD 608 no longer apply?
(2) According to the January case, the exception by reason of the doctrine of confirmation by
subsequently discovered facts, was contrary to the clear and unambiguous language of section 219A
of the Criminal Procedure Act 51 of 1977, which allows no exception to the requirement of
voluntariness.
A suspect is arrested for her involvement in an alleged cash in transit heist. During her
arrest, she is warned in terms of section 35(1)(b) of the Constitution, and decides to
keep quiet. After spending some time in the cells, she decides to point out the stolen
money. She takes the investigating officer to a hiding place and points out containers
filled with money. During her trial, the accused alleges that evidence of the fact that she
pointed out the containers (a s 218(2) situation) is inadmissible since at no stage
during her detention was she informed of her right to a legal representative. How will
the court establish whether to allow the evidence to be admitted?
On the face of it, all the statutory requirements for the admissibility of evidence about the
pointing out and the evidence discovered as a result of the pointing out have been met.
However, this does not mean that the evidence will automatically be admissible. The
accused had the right, as a detained person, to have chosen, and to have consulted with,
a legal practitioner, and to have been informed of this right promptly. But the fact that the
Constitution was infringed does not necessarily mean that the evidence will be
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inadmissible. Section 35(5) of the Constitution, which states that any evidence obtained in a manner
which violates any right in the Bill of Rights must be excluded if the admission of that evidence will
render the trial unfair or otherwise be detrimental to the administration of justice.
This activity only required of you to mention the basic principles that are involved when one deals with unconstitutionally obtained evidence. Study unit 16
explains how section 35(5) functions in practice.
An accused is forced to point out a murder weapon and consequently, her fingerprints
are found on the weapon. Evidence of the fact that the accused pointed out the weapon
will be inadmissible in terms of section 218(2) (the pointing out was not done
voluntarily), whereas evidence that the accused’s fingerprints were found on the
weapon will be admissible in terms of section 218(1). Nevertheless, at her trial, the
accused argues that the fingerprints should be excluded in terms of section 35(5) of
the Constitution because this evidence was obtained as a consequence of a breach of
the accused’s constitutional right not to be compelled to make an admission or
confession. Such evidence should therefore be seen as derivative real evidence which
connects her to the crime independently of an inadmissible communication. Reflect on
this argument. (You will find the answer to this activity in study unit 16.)
You will find a full discussion of this issue under “3.2.3 Fairness of a trial and derivative evidence” on page 121 of the study guide. In S v M 2002 (2) SACR 411
(SCA) the Supreme Court of Appeal notes that real evidence which is procured by illegal or improper means is generally more readily admitted than evidence so
obtained which depends on the say-so of a witness, the reason being that it usually possesses an objective reliability.
CONFESSIONS TO ANOTHER OFFENCE

In terms statute convictions of lesser crimes possible on charges regarding the more serious crimes.
The question is whether these statements should be treated as admissions or as confessions in order
to determine their admissibility.
Schmidt and Rademeyer are of the opinion that for purposes of determining its admissibility, a
confession of another offence should be regarded as a confession to the main charge as well.
However, this will be the case only if, objectively speaking, the accused’s statement amounts to an
unequivocal admission of guilt on the lesser charge.
It presently, uncertain whether a statement which is an inadmissible confession on a lesser charge
may be accepted as an admission on the main charge.
X is arrested and charged with the murder of a woman whom he had recently married. The
victim was found dead in her bath. The investigating officer, a captain in the SAPS, tells X
that the police are also investigating other murder cases against him and that he would
possibly not be charged with the other murders if he confesses to the current charge
against him. X goes ahead and confesses to the murder and also proceeds to point out a
pair of gloves hidden away in his garage. This pair of gloves was allegedly used in the
process of drowning the victim and has some of her hair attached to them. During the trial,
however, the accused, who stands to benefit financially from the woman’s death, alleges
that the confession was not voluntarily done and also that the woman’s death resulted from
an epileptic fit.
1. Discuss the admissibility of X’s pointing out of the gloves as evidence in terms of
section 218(2) of the Criminal Procedure Act 51 of 1977. (5)
S218 (2): evidence may be admitted at criminal proceedings of any thing that was pointed out by an
accused notwithstanding that such pointing out forms part of an admission or confession which isn’t
admissible.
Pointing out amounts to an admission by conduct. Admissibility of an admission in a criminal case in
terms of section 219A refers to admissions made extra-judicially. Such an admission will be
admissible if it is proved that it was made freely and voluntarily which according to R v Barlin means
that the accused should not have been induced by any promise or threat from a person in authority.
A promise or threat will be found to have been made if a person, by means of words or conduct,
indicates to an accused that she will be treated more favourably if she speaks or less favourably if
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she does not speak. A person in authority is “anyone whom the prisoner might reasonably suppose
to be capable of influencing the course of the prosecution.” However, Schwikkard & Van der Merwe
are of the opinion that “it would make more sense to define a person in authority as someone the
accused believes to be capable of carrying out what he says, rather than someone able to influence
the course of the prosecution. Since the captain is person in authority who by words had made a
promise the evidence will not be admissible.
2. Discuss the admissibility of the gloves as evidence in terms of section 218(1) of the Criminal
Procedure Act 51 of 1977. (3)
S218 (1): evidence of any fact may be admitted at criminal proceedings notwithstanding that the
witness discovered such a fact only in consequence of information given by the accused in any
confession, admission or statement which isn’t admissible. However, the Constitution must be taken
into account when determining the admissibility of such evidence. The constitution states in s35(5)
that any evidence obtained in a manner which violates any right in the Bill of Rights must be
excluded if the admission of that evidence will render the trial unfair or otherwise be detrimental to
the administration of justice.
Study unit 13 Privilege
PRIVATE PRIVILEGE
Important points related to private privilege:

(1) Normally the persons whose interests are protected by privilege should raise it themselves (or
their legal representatives should do so).
(2) It is always possible for such a person to waive the privilege. This means that he chooses to
testify on this privileged information. Once the witness has waived a privilege, it falls away and
cannot be raised again.
(3) Private privilege exists not only during the trial, but also during all pre-trial procedures.
(4) Privilege does not affect the witness’s competence or compellability to testify. The witness
cannot refuse to testify, but has to take the stand and only then may he claim the privilege.
Write a note in which you discuss the following statement, based on the judgment in
S v Dlamini 1999 (2) SACR 51 (CC): ‘‘The privilege against self-incrimination is
closely related to various rights of an accused, and these rights can only be exercised if
the accused is properly advised of them. Self-incriminating evidence will generally be
inadmissible if it was gathered without the accused having full knowledge of her
rights.’’
The privilege against self-incrimination is manifested in various rights which are contained
in the Bill of Rights, including the rights of an arrested person to remain silent (s 35(1)(a)),
or not to be compelled to make any confession or admission that could be used in
evidence against that person (section 35(1)(c)), and the right of an accused person to be
presumed innocent, and not to testify at trial (section 35(3)(h)).
The court stated that not only did the record of the bail proceedings form part of the
subsequent trial record, but any evidence which the accused elected to give at the bail
hearing was admissible against him or her at the trial, provided that the court which heard
the bail application had warned the accused of the risk of making such statements. The
court accepted that the testimony at the bail application may cause prejudice to the
accused later on, if it were incriminating for the purposes of the trial. That it may be a hard
choice does not affect the question, as long as the choice remained that of the accused,
and that it was made with a proper appreciation of what it entailed. An uninformed choice
39
is no choice.
While the statement in the question is stated in the negative, the court in Dlamini came to
the same conclusion, but stated the decision in positive terms, namely that (self-incriminating)
evidence will be admissible if the accused was “properly advised” or warned by the judicial officer of
the consequences of testifying (namely that such testimony could be used against the witness).
S200 of CPA: a witness in any criminal proceedings may not refuse to answer any question relevant
to the issue by reason that the answer establishes civil liability on his part
S203 of CPA: the witness can’t be compelled to answer questions, if the answers may expose her to
a criminal charge.
THE WIITNESS IN CRIIMIINAL PROCEEDIINGS
(1) In terms of residuary clause in section 203 of the Criminal Procedure Act, which questions can
no witness be compelled to answer?
(1) The witness cannot be compelled to answer questions if the answer may expose her to a criminal
charge.
(2) At present, what is the purpose of this privilege?

(2) The modern rationale is that a person should not be compelled to give evidence that will expose
her to the risk of criminal charges. The other reason is that people should be encouraged to testify,
and they will not do so if they are fearful that they may be forced to incriminate themselves.
(3) Summarise the legal principles relating to the privilege against self-incrimination, as they
appear from Magmoed v Janse van Rensburg (ie from those sections that you had to study).
(1) The privilege belongs to the witness and must be claimed by her.
(2) Before allowing the claim of privilege the court must be satisfied from the circumstances of the
case and the nature of the evidence that reasonable grounds exist for the witness to appreciate the
danger of being compelled to answer.
(3) The witness should be given considerable scope in deciding what is likely to be an incriminating
reply.
(4) The privilege is also available to persons who testify in inquest proceedings.
(5) In South Africa, it is the duty of the presiding officer to inform the witness of her right not to
answer an incriminating question.
(6) When a witness objects to answering a question based on the privilege against self-incrimination
and the judicial officer overrules her objection by mistake and compels her to answer, then the
reply, if incriminating, will not be admissible in subsequent proceedings against her.
In Magmoed, the court referred to S v Lwane 1966 (2) 433 (A) where the Appellate Division decided
that it is a well-established rule in our law that it is the duty of a presiding officer to inform witnesses
about their right not to answer an incriminating question. The Constitution confirms this rule in
section 35(3). The reason for this rule is that most people in our country, and especially illiterate
people, are ignorant of this right. If the court fails to warn the witness accordingly, the incriminating
statements will generally be inadmissible. However, the issue will be determined by the facts of the
matter and if the witness is shown to be aware of the right (eg, if the witness is an attorney or a high
ranking police official), it will not be inadmissible.
A and W (a former advocate) rob a bank. During the robbery, W shoots and kills a
security guard, and A injures a bank official. Later an argument over the loot ensues
between A and W, and A shoots W in the stomach. A is charged with attempted
murder, and W is the state witness in this case. Obviously, the bank robbery comes up
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in this case, and during cross-examination, W makes a number of statements in which

he implicates himself in the murder of the security guard. At no time does the
presiding magistrate warn W of his right in terms of section 203 of the Criminal
Procedure Act 51 of 1977. Some months later W is charged with the murder of the
security guard. Can the state in this murder case use the statements that were made by
W during his testimony in the other case, as evidential material against W? Explain
your answer fully.
W has a privilege not to answer any questions which may expose him to a criminal charge
(s 203). If he is aware of this privilege, and answers a question that does expose him to a
criminal charge, then that answer can be used against him. Based on the judgment in
Magmoed v Janse van Rensburg. W, as a former advocate, can be presumed to be aware
of this privilege, and the court will probably allow this evidence.
Indemnity against prosecution

S204: provides the court may indemnify a witness against prosecution, if the witness frankly and
honestly answers any questions, which may incriminate her.
THE WIITNESS IN CIVIL PROCEEDIINGS

Theoretically, the privilege is wider in civil matters. Not only does it cover a witness against criminal
charges but, under the common law, also against penalties and forfeitures. However, the latter two
figures are obsolete and of little, if any, practical significance.
MARITAL PRIVILEGE
(1) What right does marital privilege give a spouse?

(1) A spouse is entitled to refuse to disclose communications from the other spouse made during the
marriage.
(2) By whom may this privilege be claimed?

(2) Marital privilege may be claimed only by the spouse to whom the communication is made.
(3) What is the probable reason for the existence of this privilege?
(3) The probable reason for the existence of this privilege is that public opinion finds it unacceptable
if one spouse is forced to testify about statements made by the other spouse.
(4) What are the requirements for the existence of this privilege?
(4) The communication must have been made whilst the spouses were married. If the spouses are
divorced, the privilege remains in force as far as communications made during the marriage are
concerned (s 198(2) of the Criminal Procedure Act).
(5) What is the position regarding this privilege when a conversation between two spouses is
overheard by a third party?
(5) A third party overhearing the conversation between two spouses is not bound by the privilege
and cannot be prevented from disclosing this conversation. It can be argued that this common-law
principle infringes the constitutional right to privacy.
Write a short note on “marital privilege”. (5)

A spouse is entitled to refuse to disclose communications from the other spouse made during the
marriage. Marital privilege may be claimed only by the spouse to whom the communication is made.
The probable reason for the existence of this privilege is that public opinion finds it unacceptable if
one spouse is forced to testify about statements made by the other spouse.
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The requirements for the existence of this privilege are the communication must have been made
whilst the spouses were married. If the spouses are divorced, the privilege remains in force as far as
communications made during the marriage are concerned (s 198(2) of the Criminal Procedure Act). A
third party overhearing the conversation between two spouses is not bound by the privilege and
cannot be prevented from disclosing this conversation. It can be argued that this common-law
principle infringes the constitutional right to privacy.
Is evidence given by an accused during his bail application admissible against him in the trial?
Discuss with reference to S v Dlamini 1999 (2) SACR 51 (CC). (10)
The privilege against self-incrimination is manifested in various rights which are contained in the Bill
of Rights, including the rights of an arrested person to remain silent (s 35(1)(a)), or not to be
compelled to make any confession or admission that could be used in evidence against that person
(section 35(1)(c)), and the right of an accused person to be presumed innocent, and not to testify at
trial (section 35(3)(h)).
The court in stated that not only did the record of the bail proceedings form part of the subsequent
trial record, but any evidence which the accused elected to give at the bail hearing was admissible
against him or her at the trial, provided that the court which heard the bail application had warned
the accused of the risk of making such statements. The court accepted that the testimony at the bail
application may cause prejudice to the accused later on, if it were incriminating for the purposes of
the trial. That it may be a hard choice does not affect the question, as long as the choice remained
that of the accused, and that it was made with a proper appreciation of what it entailed. An
uninformed choice is no choice.
While the statement in the question is stated in the negative, the court in Dlamini came to the same
conclusion, but stated the decision in positive terms, namely that (self-incriminating) evidence will
be admissible if the accused was “properly advised” or warned by the judicial officer of the
consequences of testifying (namely that such testimony could be used against the witness).
If Mr Shakes was properly advised of the consequences of testifying, such evidence will be
admissible in the main trial.
A well-known public figure is arrested early one morning for allegedly raping his assistant after a
party in a hotel the night before. At the police station DNA samples are taken from him. At the
same time, tissue samples are taken from underneath the complainant’s finger nails. During the
trial the complainant testifies that the rape took place in a unoccupied hotel room shortly after the
party ended. She explains that she fought tooth and nail against her attacker, and identifies the
accused as the assailant. During cross-examination it is put to the complainant that she is lying
because she couldn’t have observed the assailant’s identity properly, since the lights in the room
were not functioning properly and because she was intoxicated. The accused also cross-examines
her about her sexual relations with various other men and indicates that he intends calling
witnesses in this regard. The prosecutor responds by calling the doorman of the hotel where the
rape allegedly took place. He testifies that the complainant gave him, that very same night, a
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similar version of the facts in question. He also testifies as to what the complainant said about the
identity of her assailant and about the complainant’s state of sobriety.
The prosecutor also calls the complainant’s spouse at the time of the incident to testify about
what she told him about the incident. However, he refuses to testify and claims that he cannot
be forced to testify about any communication made to him by the complainant. Do you agree?
Fully discuss. (5)
Yes. A spouse is entitled to refuse to disclose communications from the other spouse made during
their marriage. However, only the spouse to whom the communication was made may claim the
privilege. The communication must have been made whilst the spouses were married. If the spouses
divorced, the privilege remains in force as far as communications made during the marriage are
concerned (s 198(2) of the Criminal Procedure Act). A third party overhearing the conversation
between two spouses is not bound by the privilege and cannot be prevented from disclosing this
conversation. It can be argued that this common-law principle infringes the constitutional right to
privacy.
Z is jointly charged with murder and fraud. The deceased, S, was a young woman who worked as an accountant at Z’s business. The
medical evidence reveals that she died of poison. She was one of two persons who were aware of Z’s fraudulent conduct with his
business’ money matters. The other person, V, is Z’s divorced wife to who he was married at the time of the illegal conduct. The state
calls the deceased’s mother, who says “Shortly before she died my daughter complained of pain and cramps in the stomach. She told
me that the accused had made her pregnant and had given her medicine to induce a miscarriage – but it was obviously poison and not
medicine”.
The prosecutor calls V as a witness and asks her what Z told her on a certain day (when they were sill married) about some of the
transactions on which the fraud charge is based. Z is aware of the fact that he had made certain admissions to her and now, through his
advocate, objects to the presentation of her evidence. Will he be successful with his objection? Fully discuss.(7) AS ABOVE
Study unit 14 Privilege (continued)
. identify situations in which legal professional privilege can affect the course of a case, and
explain how and why it may be affected
. discuss the extent to which police docket privilege is still applicable today
Legal Professional privilege

At common law all communications between legal advisor and his client are protected from
disclosure by this privilege, subject to certain requirements. The privilege applies to both criminal
and civil matters. The privilege belongs to the client and involves 2 things:
1. The client can refuse to answer any question which requires him to disclose any of the
information he has shared with his legal advisor and
2. The client can prevent the legal advisor from disclosing any such information.
Statutory provision
S201: restricts the scope of privilege to a greater extent than common law does, but doesn’t replace
the common law. The act repeats that without consent of the accused, a legal advisor can’t give
evidence on what is discussed between them in connection with the case.
Purpose of professional privilege

It’s to improve the effectiveness of legal representation. Legal advisors can only properly fulfill their
function if their clients can discuss every aspect of their case in confidence and without fear that
their advisors may be compelled to disclose what was said in evidence against them.
Requirements for the operation of this privilege

(1) The legal adviser must act in a professional capacity
Whether the legal adviser has acted in a professional capacity is a question of fact.
Payment of a fee is a strong indication that this may be the case, but it is not
43
necessarily conclusive. It is not known whether the South African courts will follow
the English example of recognising that salaried legal advisers (such as those
employed by corporations and statutory bodies) are acting in a professional
capacity for the purposes of this privilege.
(2) The communication must be made in confidence
Whether or not the communication was made in confidence will always be a
question of fact. Confidentiality will be inferred if the legal adviser was consulted in
a professional capacity, for the purpose of obtaining legal advice. However, where
the nature of the communication makes it clear that it was intended to be
communicated to the opposing party, it will not be accepted that the communication
was made in confidence.
(3) The communication must be aimed at obtaining legal advice
The communications between legal adviser and client must be made with the
intention of obtaining legal advice. Statements made simply to serve as a witness
statement, for example, are not made with the intention of obtaining legal advice
and will not be protected by the professional privilege.
(4) The communication must not be made with the intention of furthering a crime
Legal professional privilege will not be upheld if legal advice is obtained for the
purposes of furthering criminal activities.
Legal position of Agent: (eg auditor, private investigator, mechanic)

An agent of a client or legal advisor is someone whose appointed by the client or advisor to perform
a specific function If the agent communicates certain information to the client or legal advisor:
1. With the purpose of enabling the legal advisor to advise his client and
2. After litigation has been contemplated,
Such communication would be privileged – the privilege belongs to the client, who is the only one
able to waive it.
Independent 3rd parties:

If an independent 3rd party communicates certain information to a client or legal advisor:
1. With the purpose of enabling the legal advisor to advise the client and
2. After litigation has been contemplated
Such communication would be privileged BUT the independent 3rd party can’t be prevented from
disclosing this communication should he prefer to do so i.e the 3rd party may refuse to disclose
the information, but he can’t be prevented from doing so.
INVOLVEMENT OF THIRD PARTIES

(1) How does an agent differ from an ‘‘independent’’ third party?
(1) An agent is employed for the specific purpose of getting hold of information, whereas an
independent third party will usually be an expert from whom information can be obtained without
having to do special research.
(2) What is the difference in legal effect between information supplied by an agent, and
information supplied by an independent third party?
(2) If all the requirements are complied with, communication by an agent will be fully privileged. In
the case of an independent third party, this information will be privileged only to the extent that the
third party wishes it to be so.
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POLICE DOCKET PRIVILEGE
Main principles Shabalala: The main limitation to police docket privilege is the constitutional right of
an accused to a fair trial, as framed in section 25(3) of the interim Constitution – section 35(3) of the
final Constitution. The police docket privilege which applied in terms of R v Steyn 1954 (1) SA
324 (A) cannot be reconciled with this. Normally, this right would ensure access by the
accused to exculpatory documents (documents which tend to show that the accused is not
guilty) in the docket, as well as to witness’s statements which he may need in order to
exercise his right to a fair trial. The State may oppose such requests on the ground that
such access is unnecessary in order to exercise that right; that it may lead to the
identification of a police informant; that it may lead to intimidation of witnesses or in some
other fashion subvert the ends of justice. The court has to exercise a judicial discretion in
determining whether access should be allowed.
 Access to the police docket for purposes of a fair trial differs from access to the police
Docket for purposes of a bail hearing. Different considerations come into play when access
is considered during a bail application and when access is needed to ensure a fair trial.
2010 Second Semester – Assignment 2

(a) During the trial, Mr Shakes’ legal advisor objects to the admissibility of some of the
documents seized at his legal offices on the ground that they constitute privileged information. Do
you agree? Fully discuss.(10) or Write a note on the requirements for the operation of legal professional
privilege between a client and his legal advisor.(10)
Before legal professional privilege will apply, the following requirements must be met:
1. The legal adviser must act in a professional capacity
This is a question of fact and a strong indication would be the payment of a fee, although the
absence of such would not necessarily be conclusive evidence of the opposite. The grounds for
following the approach of the English courts were set out in Mohamed v President of the Republic of
South Africa 2001 2 SA 1145 (C) in that salaried legal advisers (e.g. those employed by corporations
and statutory bodies) are recognised as acting in a professional capacity for the purposes of this
privilege.
2. The communication must be made in confidence
This is a question of fact and such confidentiality will be assumed if the legal adviser was consulted
in a professional capacity for the purpose of obtaining legal advice. Where the nature of the
communication makes it clear that it was intended to be communicated to the opposing party, it will
not be accepted that the communication was made in confidence.
3. The communication must be aimed at obtaining legal advice
This is a question of fact and communications made in privilege, but not with the intent of obtaining
legal advice, will not be protected by professional privilege. In S v Kearney 1964 2 SA 494 (A) for
example it was held that statements made simply to serve as a witness statement weren’t made to
obtain legal advice and professional privilege doesn’t apply.
4. The communication mustn’t be made intending to further a crime
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Legal professional privilege will not be upheld if legal advice is obtained for the purposes of
furthering criminal activities.
5. The client must claim the privilege
Such privilege attaches to the client and, if he doesn’t claim it, the court will not uphold it. A legal
representative will be bound by a client’s waiver of such privilege.
The documents seized at the offices of Mr Shakes’ legal advisor would be protected by legal
professional privilege if it fulfils the requirements set out above. However, if it does not, it would be
admissible evidence.
Study unit 15 State privilege
In terms of section 32 of the Constitution, every individual has a right to access to any information held by the state. Fully discuss this
statement with reference to Shabalala v Attorney-General of the Transvaal 1996 (1) SA 725 (CC). In your answer, focus upon the general
approach to be followed by a court regarding public policy, under a system of fundamental rights. (10)
Based upon what you have read in Shabalala v Attorney-General of the Transvaal, make
a summary of the general approach to be followed by a court regarding public policy,
under the system of fundamental rights.
In terms of section 32 of the Constitution, every individual has a right of access to any
information which is held by the state. However, this right may be limited if the
requirements of the limitation clause are met. Generally speaking, it can be said that an
individual is entitled to information held by the state if such information is necessary for the
proper exercise of her right to a fair trial. The requirements of a fair trial will depend upon
the circumstances of each case. A court must exercise discretion after weighing up the
interests of the accused’s right to a fair trial and the lawful interests of the state (which are
directed at promoting and protecting the administration of justice). In the exercise of this
discretion, the following factors are relevant:
(a) It would be difficult to justify withholding information from the accused which favours the
accused or is exculpatory.
(b) The fact that specific information has to do with state secrets, methods of police investigation,
the identity of informers, or that disclosure may lead to the intimidation of witnesses or otherwise
impede the proper ends of justice, does not in itself justify the withholding of information.
(c) Sufficient evidence or circumstances ought to be placed before the judicial officer to enable the
court to exercise its own judgment in assessing the legitimacy of the claim.
(d) The prosecution must therefore in each case show that it has reasonable grounds for its belief
that the disclosure of the information wanted carries with it a reasonable risk that it may lead to the
disclosure of the identity of informers or the intimidation of witnesses or the impediment of the
proper ends of justice.
(e) If the state cannot justify denying access upon the above-mentioned grounds, the information
must be revealed.
(f) If, in the special circumstances of a particular case, the court needs access to disputed documents
which are relevant in order to make a proper assessment of the legitimacy of the prosecution’s claim
and any access to that document may reasonably defeat the object of the protection which the
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prosecution is anxious to assert, the court would be entitled to examine such a document for this
purpose without allowing the accused any knowledge of its content, but would make proper
allowance for that factor in its final decision.
(g) Even where the state has proved that a reasonable risk exists that the desired disclosure of the
statements or documents may impede the proper ends of justice, it does not mean that access to
such statements in such circumstances must necessarily be denied. The court still retains a
discretion, since there may be circumstances where the non-disclosure of such statements may carry
a reasonable risk that the accused may not receive a fair trial and may even be wrongfully convicted.
PRIVILEGES BELONGING TO THE EXECUTIVE
Imagine that you are a legal officer, having to decide between the applicant (in terms of
Promotion of Access to Information Act 2 of 2000) on the one hand and the government on the
other, in a matter concerning access to government information. Briefly stipulate what rights and
duties you should consider in coming to a reasoned conclusion. Which cases and statutes
might be relevant?
The applicant, of course, has a constitutional right of access to information in terms of section 32 of
the Constitution. The Promotion of Access to Information Act 2 of 2000 has been promulgated to
regulate this access. On the other hand, the state does possess a privilege in favour of secrecy in
terms of the law which was in force on the 30th of May 1961, namely the English common law. This
privilege has been thoroughly explored in the decision of Van der Linde v Calitz 1967 (2) SA 239 (A).
In this case it was decided that the court has a discretion in this regard and if the safety of the state,
international relationships or high-level documents of the Executive Power come into the question,
the discretion will be exercised in favour of secrecy. This position may be reconciled with the
Constitution in that a restriction to constitutional rights is contained in section 36. In terms of
section 7 of Act 2 of 2000 the operation of this Act may be curtailed in cases where other Acts
regulate the procedure in civil and criminal trials and a start has already been made with such trials.
Evidence which has been obtained in contravention of this curtailment will not be admissible in the
case concerned.
Privileges belonging to the judiciary
Write a short note to explain the content of informer’s privilege. (5)

Police informers:
1. The informer must give evidence which is to the detriment of someone else
2. This information must be given to legal officers
3. The information must be of such a nature that a criminal prosecution will follow.
Reasons for the existence of this privilege:
1. To protect the informer and her family against persons she informs about
2. To ensure that the informer can be used again in the future
3. To encourage the public to give evidence regarding crimes.
R v Pillay: a court shouldn’t uphold informers privilege when its material to the ends of justice, if the
evidence can show the A innocence and when the reason for secrecy no longer exists=the identity of
the informer is known.
When considering whether to uphold the privilege there’s a continuing weighing up of interests – it
has to be determined, i.t.o. the legal convictions of society, what will be fair in that instance.
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Unisa – these principles confirm the constitutional approach to the revelation of evidence to the
state. The informer privilege is therefore not in itself unconstitutional, but an A’s constitutional
rights must be considered when deciding to uphold the privilege or not.
R v Van Schalkwyk and R v Harris:
It was accepted by the AD: The rule protecting an informer is based on the theory that public policy
requires his protection, because otherwise persons would be discouraged from giving information,
but its difficult to see how public policy is served by prohibiting him from himself disclosing the fact
=- he can waive the privilege. BUT If public policy requires the identity of the informer to be kept
secret and the state proves this, such evidence shouldn’t be admitted, notwithstanding the
informer’s willingness to disclose her identity.
When should a court not uphold an informer’s privilege? Briefly discuss with reference to relevant
case law.(5)
According to Ex parte Minister of Justice: Re R v Pillay 1945 AD 653, a court should not
uphold informer's privilege where:
i) it is material to the ends of justice;

ii) if the evidence can show the accused's innocence; and
iii) where the reason for secrecy no longer exists such as where the identity of the informer
is known.
In Els v Minister of Safety and Security 1998 (2) SACR 93 (NC) it was held that the informer's
privilege is not in itself unconstitutional, but an accused's constitutional rights must be
considered when deciding to uphold the privilege or not
Judicial officers:
judges can be compelled to give evidence in court on matters unrelated to their judicial functions;
they don’t have a privilege not to testify.
However – due to the rule of practice, they can’t be compelled to give evidence about matters,
which happened in proceedings before them.
Magistrates – have no privilege not to testify- nor is there a rule of practice which states that they
shouldn’t be compelled to testify about proceedings before them, and it happens that they testify in
higher courts for e.g. if the A denies the plea proceedings or if oral evidence is required on an
admission or confession which was taken down by the magistrate.
Advocates and attorneys – would be competent and compellable to testify on matters, which have
come to their notice as a result of their professional activities, it’s desirable that someone else
should provide that testimony. Legal professional privilege may prevent them from testifying on
statements, which their clients have made to them.
Study unit 16 The exclusion of unconstitutionally obtained evidence
A 19-year-old student is arrested on suspicion of raping and murdering a fellow

student. During the incident, the victim was seriously assaulted and it was quite
evident that she fought bravely against her assailant. Clear evidence of someone else’s
blood and flesh is found under her nails. The police fail to inform the suspect of his
right to a legal representative or the right to remain silent, and start questioning him.
The suspect voluntarily gives a statement implicating himself. This eventually leads the
police to a place where the murder weapon (a knife) is discovered. The police also
force the suspect to submit himself to the taking of blood samples for the purpose of
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DNA testing. During the trial, the accused objects to the admission of his statement,
the knife and the outcome of the blood tests as evidence and asks the court to exclude
it in terms of section 35(5) of the Constitution. Explain fully whether you would exclude
the evidence concerned.
In terms of S35 (5) of the Constitution, any evidence obtained in a way that violates any rights in the
Bill of rights must be excluded, if its inclusion would render the trial unfair or otherwise be
detrimental to the administration of justice
In applying the test for exclusion of evidence which is contained in the second part of the
exclusionary rule mentioned in s 35(5) It must be determined whether admission of the evidence
gathered by the police would render the accused’s trial unfair or otherwise be detrimental to the
administration of justice. The police failed to inform the suspect of his right to a legal representative
or the right to remain silent and the forceful DNA testing of the suspect was obtained in a manner
that violated the accused’s right to a fair trial, his right to human dignity and his right to privacy.
A causal relationship between the Bill of Rights violation and the obtaining of evidence must
therefore be established.
In considering the second leg of the test in s 35(5): “if ... Admission Would otherwise be detrimental
to the administration of justice” it is noted that the failure to inform an accused of his
constitutionally guaranteed rights does not necessarily lead to the exclusion of evidence obtained as
a result thereof. The fact that the accused voluntarily provided the evidence is also not conclusive.
The court must exercise a discretion in view of the facts and by taking into account factors such as
personal characteristics of the suspect, such as his age, intelligence, education, background,
nationality, his level of sophistication etc. As well as the fact that the suspect is still young which
stresses the fact that the police should have taken care to inform him of his rights. There is a good
chance that he would not have made any statement or pointing out had he consulted with a legal
representative. Had the accused, for example, been a first year law student, he would have been
aware of his rights. This will point to the admission and not exclusion of the evidence.
The reasonableness of police conduct is also an important factor and in terms of the facts it is
evident that the police deliberately violated the accused’s rights nor did they have to act
expeditiously to recover evidence that might be lost. The accused could have been requested to
submit to DNA testing by the court since clear evidence of blood and flesh samples of the suspect
could be taken from under the victims nails.
Section 35(5) specifically refers to the fairness of a trial as a criterion in the test for the exclusion of
unconstitutionally obtained evidence. In this regard the court must consider factors such as
1. Privilege against self-incrimination: in S35 (3) – includes right to remain silent, be presumed
innocent and not testify. In the given facts the suspect was not informed of these rights.
2. Real evidence emanating from the suspect: unconstitutionally obtained bodily samples, does not
affect the privilege against self-incrimination since it not only pre-existed the Bill of Rights
violation but also existed irrespective of the violation but the blood sample taken from the
suspect in violation of his constitutional right could be excluded as evidence based on the right to
a fair trial.
3. Fairness of a trial and derivative evidence:
Although unconstitutionally obtained testimonial communication would be inadmissible, it is
submitted that this should not lead to the automatic exclusion of the derivative real evidence such
as the knife which, quite independently of the inadmissible communication, connects the accused to
the crime. Such evidence should not therefore be treated as self-incriminatory. The court must view
this evidence separately and exercise its discretion in terms of section 35(5). Considerations which
may assist the court in exercising its discretion:
49
1. The fact that the derivative real evidence existed prior to the violation and was not created
as a result of the violation is a factor favouring admissibility.
2. The fact that the evidence did, however, become available as a result of the violation of a
constitutional right means that the court must still consider the other factors that constitute
the right to a fair trial (such as the nature and extent of the breach which led to the
discovery of the real evidence) or the factors that make up the second leg of the test in
section 35(5). In terms of the facts the suspect voluntarily gives a statement.
3. Police violence cannot be sanctioned and, in considering the exclusion of derivative evidence
in such circumstances, a court should rely heavily on its disciplinary function as well as the
need to protect judicial integrity and the integrity of the system as a whole.
4. Where there is no police violence and the real evidence is discovered as a result of a non-
coerced but nevertheless inadmissible testimonial communication, our courts must ask
themselves whether the evidence would have been discovered by alternative means in the
absence of the Bill of Rights violation.
Although the court in S v Mphala 1998 (1) SACR 388 (W) mentions that the admission of
the evidence would render the trial unfair, the evidence is actually excluded because its
admission would have been detrimental to the administration of justice (the second leg of the test
for exclusion). The court states that “I cannot accept that the conduct of the investigating officer was
anything but intentional. In such a case the emphasis falls on the ‘detrimental to the
administration of justice’ portion of s 35(5) ... ”
The police conduct in the case was therefore objectively speaking unreasonable in view of
the specific circumstances of the case. The investigating officer deliberately disobeyed
investigative rules which seek to protect constitutional rights and that fact led to the
exclusion of the evidence.
Based on these considerations the evidence will be excluded.
Why did the court in S v Mphala 1998 (1) SASV 388 (W) exclude the evidence about
the confessions which the two accused made? Discuss fully with reference to section
35(5) of the Constitution.
Please note the remarks that are made in the feedback to activity 1 of this study unit on
the general approach that you should follow when answering any problem type question
on the exclusion of unconstitutionally obtained evidence.
Although the court in S v Mphala 1998 (1) SACR 388 (W) mentions that the admission of
the evidence would render the trial unfair, the evidence is actually excluded because its
admission would have been detrimental to the administration of justice (the second leg of the test
for exclusion). The court states that “I cannot accept that the conduct of the investigating officer was
anything but intentional. In such a case the emphasis falls on the ‘detrimental to the
administration of justice’ portion of s 35(5) ... ”
The police conduct in the case was therefore objectively speaking unreasonable in view of
the specific circumstances of the case. The investigating officer deliberately disobeyed
investigative rules which seek to protect constitutional rights and that fact led to the
exclusion of the evidence.
Section 35(5) of the Constitution specifically refers to the fairness of a trial as a criterion in the test
for the exclusion of unconstitutionally obtained evidence. Fully discuss the fairness of a trial
in this regard with reference to:
• The fairness of a trial and the privilege against self-incrimination.
• The fairness of a trial and real evidence emanating from the accused.
• The fairness of a trial and derivative evidence.(10)
The fairness of a trial in terms of section 35(5) of the Constitution is fully discussed on pages 120-122
of the study guide.
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Is the privilege against self-incrimination confined to testimonial utterances or communications or

does it also extend to real evidence emanating from an accused? Explain with reference to section
35(5) of the Constitution. (5)
See page 121 of the study guide.
Briefly explain the content of the second leg of the test for the exclusion of unconstitutionally
obtained evidence. (5)
See the discussion that starts on page 124 of the study guide.
Discuss the admissibility of the gloves as derivative real evidence in terms of section 35(5) of the
Constitution of the Republic of South Africa, 1996. (6)
Fairness of a trial and derivative evidence:
Although unconstitutionally obtained testimonial communication would be inadmissible, it is
submitted that this should not lead to the automatic exclusion of the derivative real evidence such
as the gloves which, quite independently of the inadmissible communication, connects the accused
to the crime. Such evidence should not therefore be treated as self-incriminatory. The court must
view this evidence separately and exercise its discretion in terms of section 35(5). Considerations
which may assist the court in exercising its discretion:
5. The fact that the derivative real evidence existed prior to the violation and was not created
as a result of the violation is a factor favouring admissibility.
6. The fact that the evidence did, however, become available as a result of the violation of a
constitutional right means that the court must still consider the other factors that constitute
the right to a fair trial (such as the nature and extent of the breach which led to the
discovery of the real evidence) or the factors that make up the second leg of the test in
section 35(5).
7. Police violence cannot be sanctioned and, in considering the exclusion of derivative evidence
in such circumstances, a court should rely heavily on its disciplinary function as well as the
need to protect judicial integrity and the integrity of the system as a whole.
8. Where there is no police violence and the real evidence is discovered as a result of a non-
coerced but nevertheless inadmissible testimonial communication, our courts must ask
themselves whether the evidence would have been discovered by alternative means in the
absence of the Bill of Rights violation.
Although the court in S v Mphala mentions that the admission of the evidence would render the trial
unfair, the evidence is actually excluded because its admission would have been detrimental to the
administration of justice (the second leg of the test for exclusion). The court states that “I cannot
accept that the conduct of the investigating officer was anything but intentional. In such a case the
emphasis falls on the ‘detrimental to the administration of justice’ portion of s 35(5) ... ”
The police conduct in the case was therefore objectively speaking unreasonable in view of the
specific circumstances of the case. The investigating officer deliberately disobeyed investigative rules
which seek to protect constitutional rights and that fact led to the exclusion of the evidence.
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MULTI CHOICE QUESTIONS

EVI370-1
Question 1
(a) If the current South African law does not provide a solution to an evidentiary problem, our
courts will first of all search for the answer in the early Roman-Dutch law.
(b) Evidence obtained in a manner that violates the Constitution will always be inadmissible.
(c) Substantive law indicates which procedure must be followed to prove a case.
(d) The “facts in dispute” in a particular case are heavily influenced by the applicable substantive
law.
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(1) Only statements (a) and (b) are correct.

(2) Only statements (a), (b) and (d) are correct.
(3) Only statement (c) is correct.
(4) Only statement (d) is correct.
(5) All the statements are correct.
Question 2
(a) In the case of a residuary clause, our courts have to determine what the English law was
immediately before South Africa became a Republic in 1961.
(b) Roman-Dutch law is the common law of South Africa and therefore constitutes the historical
source of our substantive and formal law.
(c) In terms of section 35(1) of the Constitution, every arrested person has the right to adduce and
challenge evidence.
(d) A finding by a court that a particular piece of evidence is inadmissible due to irrelevance is final
and cannot be reconsidered during the course of the same trial.
(1) Only statement (a) is correct.

(2) Only statements (a), (b) and (c) are correct.
(3) Only statements (c) and (d) are correct.
(4) Only statements (a) and (d) are correct.
Question 3
(a) A person is charged with fraud in that he made a false statement to a financial institution.
Evidence that this person has, on previous occasions, made similar false statements to other
financial institutions, is hearsay evidence.
(b) A person is charged with fraud in that he made a false statement to a financial institution.
financial institutions, is evidence about previous consistent statements.
(c) The accused, in trying to dispute the admissibility of a confession made while he was in
detention, wants to tender evidence that, on other occasions, the police have used improper
means to get statements from him. This evidence is evidence of previous consistent
statements.
(d) The accused is charged with dealing in dagga. The fact that the accused has previously been
convicted of dealing in dagga is hearsay evidence.

(2) Only statement (b) is correct.
(5) None of the statements is correct.
Question 4
(a) A similar fact may be distinguished from a previous consistent statement in that a similar fact
will seldom, if ever, take the form of a statement.
(b) Similar fact evidence can only be used by the state, since the law prohibits the accused from
using similar fact evidence to his advantage.
(c) Section 197 of the Criminal Procedure Act 51 of 1977 protects an accused against answering
certain questions during cross-examination, but this protection falls away where the accused
gives evidence against any other person charged with the same offence or an offence in
respect of the same facts.
(d) When evidence about someone’s character is important for purposes of the law of evidence,
the common law states that only evidence of the general reputation of such a person may be
presented.

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(3) Only statements (a), (c) and (d) are correct.

Question 5
Section 35(5) of the Constitution reads as follows:
(a) “Evidence obtained in a manner that violates any right in the Bill of Rights can be excluded if
the admission of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.”
(b) “Evidence obtained in a manner that violates any right in the Bill of Rights should be excluded if
the admission of that evidence would be detrimental to the administration of justice or otherwise
render the trial unfair.”
(c) “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
(d) “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 and also be detrimental to the

Question 6
(a) In the case of an alleged offence of a sexual nature, evidence of a previous consistent
statement will inter alia be admissible if the complaint was made at the first reasonable
opportunity, but not later than 48 hours after the offence was committed.
(b) A number of principles have over time developed to ensure the fairness of an identification
parade. One principle is that it is important that the people in the line-up do not wear similar
clothes.
(c) There is question of a previous consistent statement when, during testimony in court, a witness
repeats a statement consistent with one made on a previous occasion, in order to corroborate
his evidence.
(d) There is question of a previous consistent statement when a witness repeats a consistent
statement made by another witness on a previous occasion, which serves as self-corroboration
for the other witness.
(1) Only statements (a) and (c) are correct.

(2) Only statements (b), (c) and (d) are correct.
Question 7
In the course of a civil matter the plaintiff wants to present the record of a witness’ testimony in a
criminal trial based on the same facts, as evidence against the defendant. Consider the following
statements:
(a) The evidence will be hearsay evidence.

(b) The evidence will be opinion evidence.
Later in the same civil matter the plaintiff wants to furnish the record of the court’s finding in the
previous criminal matter as evidence in the civil matter.
(c) The evidence is admissible hearsay evidence.

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(d) The evidence is admissible opinion evidence.

(2) Only statements (b) and (d) are correct.
(5) Only statements (b) and (c) are correct.
Question 8
(a) If a witness in a criminal case tells the court that something was admitted or confessed by a
non-testifying accused, such evidence strictly speaking amounts to hearsay evidence.
(b) Hearsay evidence consists of oral evidence about that which a witness previously heard and
wants to testify about in court. Hearsay can therefore never be in a written form.
(c) The court's approach in McDonald’s Corp v Joburgers Drive-Inn Restaurant 1997 (1) SA 1 (A)
provides a good example of how the common law hearsay-exceptions should today be
handled.
(d) Although a court has a discretion to allow hearsay evidence, this discretion will more readily be
exercised in criminal than in civil matters.

Question 9
(a) A statement that contains a defence can never be a confession.

(b) A confession can only be used as evidence in court if it was also reduced to writing at the time
it was made.
(c) If an accused gives evidence about a statement which is to his advantage and which forms part
of an inadmissible confession, the otherwise inadmissible confession might become admissible.
(d) If you make a confession to a friend (who is not also a peace officer), evidence about that
confession will be inadmissible, unless your friend is also a justice of the peace.

Question 10
The investigating officer takes A, the accused in a murder case, to a place in the bush where A points
out a pistol. “This is the pistol”, he declares. Ballistic tests confirm that the pistol was used to kill the
deceased. A’s behaviour (not his statement) is:
(a) a formal admission.

(b) an informal admission.
(c) an informal admission by conduct.
(d) a confession by conduct.

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2011 First Semester – Assignment 1
Question 1
(a) Criminal law and criminal procedural law forms part of the substantive law, whereas the law of
evidence forms part of the formal law.
(b) Substantive law states which facts have to be proved in a particular case.
(c) Roman-Dutch law is the common law of South Africa and therefore constitutes the historical
source of our formal law.
(d) In the case of a residuary clause, our courts have to determine what the English law was
immediately before South Africa became a republic in 1961.

Question 2
(a) During a trial, the court first has to consider the competency of a witness, then the admissibility
of evidence, and finally the weight or persuasive value of evidence. The “weight” of evidence
therefore plays no part when the court considers the admissibility of that evidence.
(b) A finding by a court that a particular piece of evidence is inadmissible due to irrelevance is final
(c) The accused is charged with dealing in dagga. The fact that the accused has previously been
convicted of dealing in dagga is hearsay evidence.
(d) Section 197 of the Criminal Procedure Act 51 of 1977 protects an accused against answering
certain questions during cross-examination, but this protection falls away where the accused
gives evidence against any other person charged with the same offence or an offence in
respect of the same facts.

Question 3
(a) When evidence about someone’s character is important for purposes of the law of evidence,
the common law states that only evidence of the true nature of such a person may be
presented.
(b) The accused may be cross-examined about his previous convictions if the purpose thereof is to
show that he is guilty of the offence with which he is being charged.
(c) An accused may always present evidence of his good character and the court will normally
allow it, even if the evidence has a low probative value.
(d) If a person does not testify, evidence that he identified someone will in principle be inadmissible
hearsay evidence.

Question 4
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Mr C testifies in court about the theft of his car. During cross-examination the defence alleges that he
is lying. The prosecutor accordingly calls Mr W to come and testify that Mr C had earlier told him the
same thing. Mr W’s evidence is:
(a) hearsay evidence.

(b) evidence about a previous consistent statement.
(c) admissible if it is presented to corroborate Mr C’s evidence.
(d) admissible if it is presented to strengthen Mr C’s credibility.


Question 5
(a) A previous consistent statement is normally made by an accused during police custody.
(b) There is question of a previous consistent statement when a witness repeats a consistent
for the other witness.
(c) In S v Bergh 1976 (4) SA 857 (A) it was decided to admit testimony about a previous consistent
statement, because it increased the accuracy of the testimony by a witness.
(d) Evidence of a complaint in a sexual case is exceptionally admitted as a matter going towards
the complainant’s credibility and is therefore corroborative evidence.

Question 6
(a) When an expert refers to textbooks while testifying in court, he must not merely convey the
author’s opinion to the court, since that will constitute evidence of previous consistent
statements.
(b) Because of the nature of civil proceedings, parties must give notice of their intention to rely on
expert evidence.
(c) A lay person may express an opinion on whether the driver of a motor vehicle was under the
influence of alcohol.
(d) If the court classifies certain evidence as hearsay, such evidence will no longer be hearsay if
the person upon who’s credibility the probative value of the evidence depends testifies in the
course of the proceedings.

Question 7
(a) Hearsay evidence consists of oral evidence about that which a witness previously heard and
wants to testify about in court. Hearsay can therefore never be in a written form.
(b) The court's approach in McDonald’s Corp v Joburgers Drive-Inn Restaurant 1997 (1) SA 1 (A)
provides a good example of how the common law hearsay-exceptions should today be
handled.
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(c) Formal admissions are so called because a magistrate has to formally confirm and reduce them
to writing before the trial commences.
(d) A statement that was made without prejudice and in good faith can be disclosed if it constitutes
an act of insolvency.

Question 8
(a) A subjective test is used to determine whether a statement is an admission and an objective
test is used in order to determine whether such a statement was voluntarily done.
(b) A confession can only be used as evidence in court if it was also reduced to writing at the time
it was made.
(c) Since an admission amounts to a statement adverse to the person making it, no person can
ever make an “admission” which will be held against another person.
(d) If an accused gives evidence about a statement which is to his disadvantage and which forms
part of an inadmissible confession, the otherwise inadmissible confession might become
admissible.

Question 9
(a) If you make a confession to a friend (who is not also a peace officer), evidence about that
confession will be inadmissible, unless your friend is also a justice of the peace.
(b) In order to be admissible, a confession made to a traffic officer must be confirmed and reduced
to writing in the presence of a magistrate or justice of the peace.
(c) The accused points out the weapon that he used to kill his wife with. His act of pointing out can
be described as a confession.
(d) The accused in a murder trial is forced to point out the whereabouts of the murder weapon. The
murder weapon can be described as “derivative evidence”.

Question 10
Sipho and his wife Eunice had been having a difficult time with their marriage for some time. One
evening, while Sipho was allegedly working late, Eunice was stabbed to death. After a long
investigation, the police arrested and charged Sipho with the murder of Eunice. At the trial, Sipho’s
attorney attempts to have Innocent, Sipho’s neighbour, testify that his wife, Joyce, had told him
(Innocent), that she was having an affair with Sipho, and that she had murdered Eunice out of
jealousy and a “passionate desire” to be with Sipho. Innocent is ready and willing to testify. Although
aware of the trail, Joyce decides to stay at home. The prosecution objects to the admissibility of
Innocent’s evidence. Consider the following statements:
(a) The prosecution will be successful with their objection, since Joyce’s statement is privileged
information.
(b) Innocent’s testimony about Joyce’s statement will be inadmissible hearsay evidence.
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(c) Joyce’s statement is inadmissible, because it was not confirmed and reduced to writing in the
presence of a magistrate or a justice of the peace.
(d) Joyce’s statement, which was done freely and voluntarily and while she was in her sound and
sober senses and without undue influence, is admissible evidence of a confession.

In its entirety the same as 2011 Second Semester – Assignment 1
2010 May / June Examination
Question 1
(a) An admission of a fact in issue has, in appropriate circumstances, the same effect as a
presumption. 2009 2nd – A1 q1(c)
(b) Criminal law and criminal procedural law forms part of the substantive law, whereas the law of
evidence forms part of the formal or adjective law. 2011 1st – A1 q1(a)
(c) The “facts in dispute” in a particular case are heavily influenced by the applicable substantive
law. 2011 2nd – A1 q1(d)
(d) Substantive law indicates which procedure must be followed to prove a case. 2011 2nd – A1 q1(c)

Question 2
(a) During a trial, the court first has to consider the competency of a witness, then the admissibility
of evidence, and finally the weight or persuasive value of evidence. The “weight” of evidence
therefore plays no part when the court considers the admissibility of that evidence. 2011 1st – A1
q2(a)
(b) Irrelevant evidence will never be admissible, but relevant evidence will always be admissible.
2008 1st – A1 q2(c)
(c) A finding by a court that a particular piece of evidence is inadmissible due to irrelevance is final
and cannot be reconsidered during the course of the same trial. 2011 2nd – A1 q2(d)
(c) A person is charged with fraud in that he made a false statement to a financial institution.
financial institutions, is similar fact evidence. 2009 2nd – A1 q2(c)

Question 3
2009 Second Semester – Assignment 1, Question 3
Question 4
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Question 5 2010 1st – A1 q4
Jack is accused of raping a fellow student. During cross-examination of the victim it is put to her that
she is lying about the identity of the accused. In an attempt to establish the victim’s credibility, the
prosecutor calls her roommate to testify that the complainant told her a similar story. The roommate’s
evidence will be
(a) hearsay
(b) evidence about a previous consistent statement
(c) similar fact evidence
(d) character evidence

Question 6
(a) If the measures that our courts have developed to ensure the accuracy of identification parades
have not been complied with, evidence of an identification during such a parade will necessarily
be inadmissible. 2008 1st – A1 q4(b)
(b) A previous consistent statement is normally made by an accused during police custody. 2011 1st – A1
q5(a)
(c) A previous consistent statement is normally made by an accused during his or her testimony in
court. SG pg40
(d) There is question of a previous consistent statement when, during testimony in court, a witness
repeats a statement consistent with one made on a previous occasion, in order to corroborate
his evidence. 2011 2nd – A1 q6(c)

Question 7
Question 8
(a) A third party’s statement which is presented as an admission in a civil case, must be treated as
hearsay evidence. 2009 2nd – A1 q5(d)
(b) Hearsay evidence consists of oral evidence about that which a witness previously heard and
wants to testify about in court. Hearsay can therefore never be in a written form. 2011 1st – A1
q7(a)
(c) If all the parties to an issue agree to the admission of hearsay evidence, that evidence will no
longer be hearsay and consequently becomes admissible. 2009 2nd – A1 q5(a)
exercised in criminal than in civil matters. 2009 1st – A1 q3(d)

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Question 9
2011 First Semester – Assignment 1, Question 8
Question 10
(a) A statement made to a friend (who is not also a peace officer), will in principle be a confession if
the statement was freely and voluntarily made, while the declarant was in his sound and sober
senses and without being unduly influenced thereto. 2009 2nd – A1 q8(a)
(b) The accused points out the weapon that he used to kill his wife with. His act of pointing out can
be described as a formal admission. 2009 2nd – A1 q7(a)
(c) Legal professional privilege falls away if a statement can prove the innocence of an accused. 2008 1st – A1
q9(c)
(d) Marital privilege belongs to the party who made a specific communication. SG pg100

(5) None of the statements are correct.
In its entirety the same as 2011 First Semester – Assignment 1
2009 October / November Examination
Question 1
Question 2
(a) A confession made to a nature conservation officer must be confirmed and reduced to writing in
the presence of a magistrate or a justice of the peace in order to be admissible.
be described as an informal admission.
(c) The accused is forced to point out the weapon that he used to kill his wife with. The gun, which
has the accused’s fingerprints on it, will be admissible in terms of section 218(1) of the Criminal
Procedure Act.
(d) An objective test is used to determine whether a statement is a confession and a subjective test
is used in order to determine whether such statement was voluntarily made.

Question 3
Formal and informal admissions are different in that
(a) formal admissions place the fact admitted beyond dispute, but informal admissions do not.
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(b) formal admissions have to be made during some formal proceeding, but informal admissions
can only be made during the trial.
(c) someone needs to testify about an informal admission, but no oral evidence is needed for a
formal admission to become part of the evidence.
(d) formal admissions can only be made by the legal representative of the accused, whereas an
informal admission can be made by anyone.

Question 4
A home-owner shoots and kills a burglar in his house and is subsequently charged with murder.
During the trial, an inspector in the South African Police Service testifies that the accused stated to
him: “Yes, I did kill him, but it appeared as if he had a firearm in his hand.”
(a) The inspector is testifying about an admission made by the accused.

(b) The inspector is testifying about a confession made by the accused.
(c) The inspector is testifying about a previous consistent statement.
(d) The inspector cannot testify about the statement because it was not confirmed and reduced to
writing in front of a magistrate or justice of the peace.

Question 5
(a) The fact that alternative and lawful means or methods of securing evidence were available at
the time unconstitutionally obtained evidence was secured, will necessarily result in the
exclusion of such evidence.
(b) The accused in a murder trial is forced to point out the whereabouts of the murder weapon. The
murder weapon can be described as “derivative evidence”.
(c) In S v Mphala 1998 (1) SACR 388 (W) the court excluded the unconstitutionally obtained
evidence because its admission would have been detrimental to the administration of justice.
(d) In S v Pillay 2004 (2) SACR 419 (SCA) the Supreme Court of Appeal was not prepared to allow
a statement by the accused which lead to the discovery of stolen money, but allowed evidence
of the whereabouts of the stolen money.

Question 1
(a) Substantive law states which facts have to be proved in a particular case.
(b) Collateral facts are facts which are not relevant to the facts in issue, but to side issues only – its
relevance will often be doubtful.
(c) An admission of a fact in issue has, in appropriate circumstances, the same effect as a
presumption.
62
(d) A court might allow the opinion of a lay person on the approximate speed at which a vehicle
was travelling.

Question 2
(a) The accused, in trying to dispute the admissibility of a confession made while he was in
means to get statements from him. Such evidence will be similar fact evidence.
(b) Similar fact evidence can only be used by the prosecution. The law prohibits the accused from
doing that.
(c) A person is charged with fraud in that he made a false statement to a financial institution.
financial institutions, is similar fact evidence.
(d) When an expert refers to textbooks while testifying in court, he must not merely convey the
textbook’s opinion to the court, since that will constitute hearsay evidence.

Question 3
The evidential or probative value of a particular piece of evidence is important
(a) only with regard to the admissibility of that evidence.

(b) only during the evaluation of that evidence.
(c) both during the evaluation of that evidence and when determining its admissibility.
(d) when that evidence is similar fact evidence.
(e) when that evidence is evidence about a previous consistent statement.

(5) Only statements (c), (d) and (e) are correct.
Question 4
(a) Section 197(d) of the Criminal Procedure Act 51 of 1977 allows the presentation of evidence of
an accused’s previous conviction for possession of dagga if this evidence goes to counter a
defence by the accused that he does not know dagga.
(b) Evidence about the character of the plaintiff and the defendant in a civil matter is never relevant
and therefore inadmissible.
(c) A previous consistent statement is usually made by an accused during police custody.
(d) Because of the complicated nature of civil proceedings, parties must give notice of any intention
to rely on expert evidence. This rule does not apply to criminal proceedings.

63
Question 5
(a) If all the parties to an issue agree to the admission of hearsay evidence, that evidence will no
longer be hearsay and consequently becomes admissible.
(b) If a witness in a civil case tells the court that something was admitted by another person, such
evidence will constitute hearsay.
(c) If a witness in a criminal case tells the court that something was admitted or confessed by
another person, evidence about such statements is strictly speaking hearsay evidence.
(d) A third party’s statement which is presented as an admission in a civil case, is hearsay.

Question 6
(a) Formal admissions in criminal matters are so called because they have to be formally
confirmed and put to writing by a magistrate before the accused appears in court.
(b) A confession which was voluntarily made, but which is inadmissible because some other
requirement for admissibility was not complied with, may still be admissible if it is relevant and
contains an admission.
(c) Since an admission amounts to a statement adverse to the person making it, no person can
(d) A confession made to a messenger of the court must be confirmed and reduced to writing in the
presence of a magistrate or a justice of the peace in order to be admissible.

Question 7
(a) The accused points out the weapon that he used to kill his wife with. His act of pointing out can
be described as a formal admission.
(b) A statement made without prejudice and in good faith, will be disclosed if it constitutes an act of
insolvency.
(c) Evidence furnished during a trial-within-a-trial will only be admissible in the main trial if it directly
relates to the facts in issue in the main trial.
(d) If an accused gives evidence about a statement which is to his disadvantage and which forms
part of an inadmissible confession, the otherwise inadmissible confession might become
admissible.

Question 8
(a) A statement made to a friend will in principle be a confession if the statement was freely and
voluntarily made, while the declarant was in his sound and sober senses and without being
unduly influenced thereto.
(b) Magistrates have a privilege not to have to testify about any proceedings which took place
before them.
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(c) A third party who overhears a communication between an attorney and his client can be
prevented from testifying about it.
(d) Informer’s privilege protects the name of the informer and the content of his communication.

Question 9
(a) The fact that alternative and lawful means or method of securing specific evidence were
available at the time unconstitutionally obtained evidence was secured, will necessarily lead to
the exclusion of such evidence.
(b) If the admission of unconstitutionally obtained evidence will lead to an unfair trial or otherwise
be detrimental to the administration of justice, the court has no discretion to allow such
evidence to be used.
(c) Although a court has a discretion to allow hearsay evidence, this discretion will more readily be
exercised in civil than in criminal matters.
(d) Evidence of a complaint in a sexual case is exceptionally admitted as a matter going to the
complainant’s credibility and is therefore corroborative evidence.

Question 10
In the course of presenting the state’s case on a charge of escaping from prison, the prosecution
wants to present evidence about the accused’s previous convictions.
(a) The evidence is admissible in terms of section 211 of the Criminal Procedure Act 51 of 1977.
(b) The evidence is expert evidence and inadmissible.
During the same case the prosecution also wants to present evidence regarding a previous conviction
for escaping from prison, during which the accused followed the same modus operandi in the case
currently before the court.
(c) This evidence may possibly be allowed as similar fact evidence.

(d) This evidence is related to collateral facts and therefore inadmissible.

In its entirety the same as 2011 First Semester – Assignment 1
2009 First semester – Assignment 2
Question 1
65
(a) When an expert refers to textbooks while testifying in court, he must not merely convey the
textbook’s opinion to the court, since that will constitute evidence of previous consistent
statements.
(b) When the admissibility of opinion evidence is considered, the same basic principles apply to
both expert and lay witnesses.
(c) A lay person can express an opinion on whether the driver of a motor vehicle was under the
(d) Evidence heard during a-trial-within-a-trial may be taken into account by a court when judging
the evidence at the end of the main trial.

Question 2
Lucky is on trial for the murder of his wife. The prosecution claims that Lucky committed the murder
by poisoning his wife with arsenic. Lucky’s defence is that his wife committed suicide. Innocent, an
attorney, is called by the prosecution to testify that the accused approached him in his professional
capacity for legal advice and, during their discussions, admitted to having killed his wife. Innocent
subsequently declined to represent Lucky. Innocent’s testimony
(a) will be admissible because he decided not to represent Lucky.

(b) will be admissible, because Lucky had told him of a crime that had already been completed.
(c) will be inadmissible because the communication was privileged.
(d) will be inadmissible because it is hearsay evidence.

Question 3
(a) If someone is not advised of his right against self-incrimination during bail proceedings, and
evidence was obtained because of this violation of the Constitution, such evidence will
generally be excluded in terms of section 35(5) of the Constitution.
(b) A confession that was voluntarily made, but which is inadmissible because some other
requirement for admissibility was not complied with, may still be admissible if it is relevant and
contains an admission.
(c) A confession can only be used as evidence if it was also done in writing.
(d) If the content of a statement does not expressly admit all the elements of an offence, but does
so by necessary implication, the statement will amount to a confession.

Question 4
(a) A statement that contains the words “made without prejudice” can never be disclosed.
(b) According to Magmoed v Janse van Rensburg 1993 (1) SACR 67 (A), a witness must be
informed about his privilege against self-incrimination unless, based on the facts of the case, he
could be expected to be aware of this privilege.
66
(c) A third party who, by chance, overhears a communication between an attorney and his client
may testify about it.
(d) If the admission of evidence obtained in violation of the Constitution would render a trial unfair,
such evidence could still be admitted in terms of the second leg of the test for the exclusion of
unconstitutionally obtained evidence.

Question 5
2009 First semester – Assignment 1
Question 1
(a) Roman-Dutch law is the common law of South Africa and thus constitutes the historical source
of our formal law.
(b) The law of evidence is that part of substantive law which regulates the proof of facts in a court
of law.
(c) In terms of section 35(1) of the Constitution every arrested person has the right to adduce and
challenge evidence.
(d) Facts relevant to the facts in issue may become in issue themselves. An example would be the
reliability of a witness.

Question 2
means to get statements from him. This is evidence of previous consistent statements.
(b) A person is charged with fraud in that he made a false statement to a financial institution.
(c) A similar fact may be distinguished from a previous consistent statement in that a similar fact
will seldom, if ever, take the form of a statement.
(d) There is question of a previous consistent statement when a witness repeats a consistent
for that other witness.

Question 3
(a) The admissibility of evidence about the character of an accused is determined by a residuary
section.
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(b) If the accused presents evidence of his good character, the prosecution may present evidence
of his bad character, but this evidence is limited to evidence of his general reputation.
(c) If a witness testifies that a person (who is not a witness before the court) made a statement to
him, and this evidence is aimed at proving the truth of the statement, the evidence will be
hearsay evidence.
exercised in criminal than in civil matters.

Question 4
(a) Because of the complicated nature of civil proceedings, parties must give notice of any intention
to rely on expert evidence. This rule also applies to criminal proceedings.
(b) A court might allow the opinion of a lay person on the approximate speed at which a vehicle
was travelling.
(c) A statement may be a confession, even though the declarant never meant this to be the case.
(d) If the content of a statement does not expressly admit all the elements of an offence, but does
so by necessary implication, then the statement amounts to a confession.

Question 5
(a) Confessions do not occur in civil matters.

(b) An informal admission may be made during the course of a trial in the court itself.
(c) The accused points out the weapon that he used to kill his wife with. His act of pointing out can
(d) In S v Bergh 1976 (4) SA 857 (A) it was decided that testimony concerning a previous
consistent statement is admissible, because it increased the accuracy of the testimony of the
witness.

Question 6
(a) According to Magmoed v Janse van Rensburg 1993 (1) SACR 67 (A) a witness has to be
informed about his privilege against self-incrimination unless, based upon the facts of that
particular case, it might be expected of him to be aware of this privilege.
(b) A third party who, by chance, overhears a communication between an attorney and his client
cannot be prevented from testifying about it.
(c) If an accused gives evidence about a statement which is to his advantage and which forms part
of an inadmissible confession, the otherwise inadmissible confession might become admissible.
(d) Even if the admission of unconstitutionally obtained evidence will lead to an unfair trial or
otherwise be detrimental to the administration of justice, the court still has a discretion to allow
such evidence to be used.

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Question 7
Question 8
(a) Conduct from which a negative inference can be drawn will constitute an admission, even if no
communication has taken place.
(b) If public policy requires that the identify of an informer be kept secret, this should be done, even
where the informer himself wants to disclose his identity.
(c) Informer’s privilege protects the name of the informer, but not the content of his communication.
(d) In a criminal case, evidence by a witness about an admission which was made by somebody
else, is included under the statutory definition of hearsay evidence.

Question 9
Question 10
The owner of a motor vehicle (E) shoots and kills D while he is trying to hi-jack E’s car. E is hereafter
charged with the murder of D. During the trial a newspaper salesperson testifies that E stated the
following to him: “Yes, I did shoot him, but he tried to hi-jack my car!”
(a) The newspaper salesperson is testifying about an admission made to him by E.

(b) The newspaper salesperson is testifying about a confession made to him by E.
(c) Evidence by the newspaper salesperson is inadmissible hearsay evidence.
(d) The newspaper salesperson cannot testify about the statement, because it was not confirmed
and reduced to writing in front of a magistrate.

2008 October / November Examination
Question 1
(a) The law of evidence is part of substantive law because the substantive law determines which
elements should be proved in court before someone will be guilty of a crime.
69
(b) Roman-Dutch law is the common law of South Africa and thus constitutes the historical source
of our formal law.
(c) A residuary section is a section in foreign legislation that applies in our law.
(d) Section 35(5) of the Constitution allows a court to admit evidence which was obtained in a
manner that violates the Constitution.

Question 2
(a) The limitations clause in section 36 of the Constitution applies to situations where the exclusion
of unconstitutionally obtained evidence is considered.
(b) Facts relevant to the facts in issue may become in issue themselves. An example would be the
reliability of a witness.
(c) It is possible to allow evidence of an accused’s previous convictions by way of the rules
governing the admissibility of similar fact evidence.
(d) An accused may always present evidence of his good character, and the court will normally
allow it, even if the evidence has a low evidential value.

Question 3
means to get statements from him. This is evidence of previous consistent statements.
(b) In the case of similar fact evidence there are two separate sets of facts. Firstly, the facts in
issue before the court, and secondly, a separate set of facts which is similar to the facts in issue
before the court, but which is in dispute in another court.
(c) A person is charged with fraud because he made a false statement to a financial institution.
(d) Section 197 of the Criminal Procedure Act 51 of 1977 protects an accused against answering
certain questions, but this protection falls away when the accused is charged with the crime of
receiving stolen property.

Question 4
(a) A previous consistent statement is a statement which is similar to a statement made by

someone on a previous occasion in court.
(b) There is the possibility of a previous consistent statement when a witness repeats a consistent
statement made by another witness on a previous occasion which serves as self-corroboration
(c) In the case of an alleged offence of a sexual nature, evidence of a previous consistent
70
(d) A number of principles have over time evolved to ensure the fairness of an identification
parade. One principle is that it is important that the people in the line-up do not wear similar
clothes.

Question 5
(a) It is possible for a court to allow the opinion of a lay person about the writer of a specific
handwriting.
(b) Because of the complicated nature of civil proceedings, parties must give notice of their
intention to rely on expert evidence. However, this rule does not apply to criminal proceedings.
(c) Hearsay evidence can never be in a written form.
(d) If the court classifies certain evidence as hearsay, the mere fact that the person upon whose
credibility the probative value of the evidence depends later testifies in the proceedings, will
cause the evidence to be admissible.

Question 6
(a) A subjective test is used to determine whether a statement is an admission and an objective
test is used in order to determine whether such statement was made voluntarily.
(b) A statement can only be a confession if it was made in writing.
(c) If the content of a statement does not expressly admit all the elements of an offence but does
so by necessary implication, then the statement amounts to a confession.
(d) A formal admission makes further evidence on the fact or facts admitted unnecessary, because
it places such fact or facts beyond dispute.

Question 7
(a) If you make a confession to a friend, evidence about that confession will be inadmissible,
unless your friend is also a justice of the peace.
(b) In terms of section 217(1) of the Criminal Procedure Act 51 of 1977 a confession to a member
of the public is admissible if it was made freely and voluntarily by a person in his sound and
sober senses and without having been unduly influenced thereto.
(c) In order to be admissible, a confession made to a traffic officer must be confirmed and reduced
to writing in the presence of a magistrate or justice of the peace.
(d) Evidence about an involuntary pointing out will be inadmissible, even if a relevant fact is
discovered as a result of such a pointing out.

71
Question 8
(a) A witness may refuse to enter the witness box and testify on strength of the fact that what he is
about to say will be protected by privilege.
(b) A witness in criminal proceedings may refuse to answer any question because the answer may
bring about civil liability on his part.
(c) According to S v Dlamini 1999 (2) SACR 51 (CC) any evidence given by an accused during a
bail hearing can never be used against him in the main trial.
(d) Because of the constitutional right to privacy, a third party that overhears a conversation
between two spouses may not testify about it in a subsequent court case.

Question 9
(a) During a domestic violence dispute, a husband pointed a gun at his wife and spoke of his
intention to kill her and the children. The wife can be compelled to testify about the pointing of
the gun, but could refuse to testify about what the husband said to her during the dispute.
(b) If a suspect makes an admission to the investigating officer before the investigating officer has
the opportunity to warn the suspect of his constitutional rights, that admission will simply be
inadmissible.
(c) Even if the admission of unconstitutionally obtained evidence will lead to an unfair trial or
otherwise be detrimental to the administration of justice, the court still has a discretion to allow
such evidence to be used.
(d) Incriminating non-communicative real evidence unconstitutionally obtained from the body of a
suspect in principle does not affect the privilege against self-incrimination.

Question 10
The investigating officer takes A, the accused in a murder case, to a place in the wood where A points
out a pistol. “This is the pistol”, he declares. Ballistic tests prove that this pistol was used to kill the
deceased. A’s behaviour (not his statement) is
(a) a formal admission.

(b) an informal admission.
(c) an informal admission by conduct.
(d) a confession.

Question 1
72
(a) The “facts in dispute” in a particular case are strongly influenced by the applicable substantive
law.
(b) Criminal law and criminal procedural law form part of the substantive law, whereas the law of
evidence forms part of the adjective law.
(c) The procedural law of South Africa is mostly drawn from principles of the Roman-Dutch law.
(d) A residuary section is a section in a piece of South African legislation.

Question 2
(a) Section 206 of the Criminal Procedure Act 51 of 1977 is a residuary section because it provides
that the law governing the competency, compellability, or privilege of witnesses, which was in
force in respect of criminal proceedings on the 30th day of May 1961, shall apply in any case
not expressly provided for.
(b) During a trial the court first has to consider the competence of a witness, then the admissibility
of evidence, and finally the weight or persuasive value of the evidence. The “weight” of
evidence therefore plays no role when the court considers the admissibility of such evidence.
(c) Irrelevant evidence will never be admissible, but relevant evidence will always be admissible.
(d) A finding by a court that a particular piece of evidence is inadmissible due to irrelevance is final

Question 3
(a) Similar fact evidence can only be used by the state, since the law prohibits the accused from
doing that.
(b) In R v Davies 1925 AD 30 it was found that evidence of the fact that the accused had indecent
photographs in his possession was admissible on a charge that he had committed indecent
acts with another man, since it established that the accused had a sexually deviant character.
(c) Section 197 of the Criminal Procedure Act 51 of 1977 protects an accused against answering
certain questions, but this protection falls away where the accused gives evidence against any
other person charged with the same offence or an offence in respect of the same facts.
(d) When evidence about someone’s character is important for purposes of the law of evidence,
the common law states that only evidence of the true nature of such a person may be led.

Question 4
(a) In S v Moti 1998 (2) SACR 245 (SCA) the court found evidence of a photo-identification to be
admissible as an exception to the rule against the admissibility of similar fact evidence.
(b) If the measures which our courts have developed to ensure the accuracy of identification
parades have not been complied with, evidence of an identification during such a parade will
necessarily be inadmissible.
73
(c) In the case of an alleged offence of a sexual nature, evidence of a previous consistent
(d) There is the possibility of a previous consistent statement when, during testimony in court, a
witness repeats a statement consistent with one made on a previous occasion, in order to
corroborate his evidence.

Question 5
(a) The court in Hollington v Hewthorn [1943] 2 All ER 35 decided that the finding on an issue in a
civil trial cannot serve as proof of that issue in an ensuing criminal trial, since the onus of proof
in criminal matters is higher than in civil matters.
(b) When an expert conveys the opinion of the author of a specific textbook to the court, such
evidence is in actual fact hearsay evidence.
(c) A lay person may express an opinion on whether the driver of a motor vehicle was under the
(d) If all the parties to an issue agree to the admission of hearsay evidence, that evidence will no
longer be hearsay, and consequently becomes admissible.

Question 6
(a) Although the court has a discretion to allow hearsay evidence, this discretion will more readily
be exercised in criminal than in civil matters.
(b) Since an admission amounts to a statement adverse to the person making it, no person can
(c) A confession that is inadmissible because some requirement for admissibility was not complied
with, may still be admissible if it is relevant and contains an admission.
(d) According to S v Grove-Mitchell 1975 (3) SA 417 (A) the following statement is a confession: “I
shot her full of holes, I emptied the gun on her”.

Question 7
(a) A statement may be a confession, even though the declarant did not intend it to be.
(b) For a confession to be admissible, it needs to be in writing.
(c) If a confession is made to a justice of the peace, it has to be confirmed and reduced to writing
in the presence of a magistrate.
(d) A confession made to a messenger of the court must be confirmed and reduced to writing in the
presence of a magistrate or justice of the peace in order to be admissible.

74

Question 8
(a) A constable is a peace officer, or a justice of the peace, depending on his years of
commendable service in the South African Police Service.
(b) A confession which is inadmissible in terms of section 217(1) of the Criminal Procedure Act 51
of 1977 may, according to S v Nieuwoudt 1990 (4) SA 217 (A), become admissible against the
accused if the accused presents evidence concerning that confession which is, in the opinion of
the presiding officer, favourable to the accused.
(c) In terms of section 1 of the Criminal Procedure Act 51 of 1977 the term “justice” refers to “a
person who is a justice of the peace under the provisions of the Justices of the Peace and
Commissioners of Oaths Act, 1963". An inspector in the South African Police Service is
included in this definition.
(d) The accused points out the weapon that he used to kill his wife. His act of pointing out can be
described as a confession.

Question 9
(a) The privilege against self-incrimination is available to a witness who testifies at an inquest.
(b) If an agent or independent third party provides information to a legal advisor, that
communication will be privileged, in other words, the client can prevent such a person from
revealing the information.
(c) Legal professional privilege falls away if a statement can prove the innocence of an accused.
(d) A spouse can claim marital privilege with regard to communications made during the course of
a marriage, even if the spouses are divorced at the time when the privilege is claimed.

Question 10
(a) Magistrates have a privilege not to have to testify about any proceedings that took place before
them.
(b) A third party that overhears a conversation between two spouses can testify about such
conversation in a subsequent court case.
(c) The fact that an arrested person voluntarily provided evidence in the absence of constitutional
warnings means that such evidence will automatically be admissible.
(d) Relevant evidence that was obtained in violation of the Constitution will always be inadmissible.

Question 1
75
(a) If you make a confession to a friend, evidence about that confession will be inadmissible,
unless your friend is also a justice of the peace.
(b) For a confession to be admissible, it needs to be in writing.
(c) In terms of section 217(1) of the Criminal Procedure Act 51 of 1977 a confession to a member
of the public is admissible if it was made voluntarily by a person in his sound and sober senses
and without having been unduly influenced thereto.
(d) A Confession which is inadmissible in terms of section 217(1) of the Criminal Procedure Act 51
of 1977 may, according to S v Nieuwoudt 1990 (4) SA 217 (A), become admissible against the
accused if the accused presents evidence concerning that confession which is, in the opinion of
the presiding officer, favourable to the accused.

Question 2
(a) Evidence about an involuntary pointing out will be admissible if a relevant fact is discovered as
a result of such a pointing out.
(c) A witness may refuse to enter the witness box and testify on the basis that what he is about to
say will be protected by privilege.
(d) According to Magmoed v Janse van Rensburg 1993 (1) SACR 67 (A) a witness must be
informed about his privilege against self-incrimination unless, based on the facts of the case, he
could be expected to be aware of this privilege.

Question 3
(a) A third party who, by chance, overhears a communication between an attorney and his client
may testify about it.
(b) A spouse can claim marital privilege with regard to communications made during the course of
a marriage, even if the spouses are divorced at the time of claiming the privilege.
(c) If access to a statement made by a witness may lead to the intimidation of such a witness, the
state may object to that statement being made available to the accused.
(d) Judges have a privilege not to testify about any proceedings that took place before them.

(5) All of the statements are correct.
Question 4
a) Relevant evidence that was obtained in violation of the Constitution will always be inadmissible.
b) The court has a discretion to exclude unconstitutionally obtained evidence if the admission of
that evidence would have the effect described in section 35(5) of the Constitution.
c) The fact that an arrested person voluntarily provided evidence in the absence of constitutional
warnings, means that such evidence will automatically be admissible.
76
d) Incriminating non-communicative real evidence unconstitutionally obtained from the body of a

suspect does not effect the privilege against self-incrimination and will therefore never be
excluded.
1) Only statements (a) and (b) are correct.

2) Only statements (b) and (c) are correct.
3) Only statement (c) is correct.
4) Only statement (d) is correct.
5) None of the statements are correct.
Question 5
Question 1
(a) If the current South African law does not provide a solution to an evidentiary problem, our
courts will first of all search for the answer in the early Roman-Dutch law.
(b) Evidence is not only logically relevant when it proves something positively, but also when it
proves the opposite.
(c) In terms of section 35(3) of the Constitution, every arrested person has the right to a fair trial.
(d) Relevance or irrelevance is a matter of degree.

Question 2
(a) Collateral facts are facts which are not relevant to the facts in issue, but to side issues only its
relevance will often be doubtful.
(b) In R v Davis 1925 AD 30 it was found that evidence of the fact that the accused had indecent
photographs in his possession was admissible on a charge that he had committed indecent
acts with another man, since it established that the accused had a sexually deviant character.
(c) The accused may be cross-examined about previous convictions if the purpose is to show that
he is guilty of the offence with which he is charged.
(d) Evidence about the character of the plaintiff and the defendant in a civil matter is never relevant
and therefore inadmissible.
(1) Only statements (a) is correct.

Question 3
(a) A person is charged with fraud in that he made a false statement to a financial institution.
77
(b) There is question of a previous consistent statement when a witness repeats a consistent
(c) Evidence of a previous consistent statement may be offered in order to rebut an allegation of
recent fabrication.
(d) When the admissibility of opinion evidence is considered, the same basic principle applies to
both expert and lay witnesses.

Question 4
(a) Because section 3 of the Law of Evidence Amendment Act 45 of 1988 now determines when
hearsay evidence will be admissible, hearsay that would have been admissible under the
common law is no longer admissible.
(b) Hearsay evidence always consists of oral evidence that a witness in court previously heard and
want to testify about in court.
(c) When a court exercises its discretion and allows hearsay evidence, that evidence is no longer
hearsay and becomes admissible for this reason.
(d) Formal admissions in civil matters can only be withdrawn with permission from the court.

(5) Only statements (c) and (d) are correct
Question 5
(a) A statement that contains a defence can never be a confession.

(b) An informal admission places the fact admitted beyond dispute.
(c) According to S v Grove-Mitchell 1975 (3) SA 417 (A) the following statement is a confession: “I
shot her full of holes, I emptied the gun on her.”
(d) A statement may be a confession, even though the declarant did not intend it to be.

(5) Only statements (c) and (d) are correct
Insert in correct chapters
Z is jointly charged with murder and fraud. The deceased, S, was a young woman who worked as
an accountant at Z’s business. The medical evidence reveals that she died of poison. She was one
of two persons who were aware of Z’s fraudulent conduct with his business’ money matters. The
other person, V, is Z’s divorced wife to who he was married at the time of the illegal conduct. The
state calls the deceased’s mother, who says “Shortly before she died my daughter complained of
pain and cramps in the stomach. She told me that the accused had made her pregnant and had
given her medicine to induce a miscarriage – but it was obviously poison and not medicine”.
Fully discuss, with reference to decided case and applicable legislation, the admissibility of the
mother’s evidence. (10)

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1

Study Unit 1 – Overview

Study Unit 2 Concepts in the law of evidence

Study unit 3 Sources of the law of evidence

(2) Explain what is meant by a ‘‘residuary clause’’ in South African law.

Study unit 4 Relevance and admissibility of evidence

In the case of S v Shabalala 1986 (4) SA 734 (A);

Study unit 5 Similar fact evidence

Study unit 6 Character evidence

Cross-examining the accused:

The accused’s previous convictions: s211

(2) What are the two exceptions to the general rule?

Character of the complainant: GR: prohibited

(3) What does section 227(3) provide for?

Study unit 7 Previous consistent statements

(5) The rule against self-corroboration limits its probative value.

Requirements before this exception can apply:

Exception 1 : TO REBUT AN ALLEGATIION OF FABRIICATIION

Exception 2: Prior identification:

Prior identification carries more weight

Exception 3: Identification parade

The dangers of the identification parade include:

As above but discuss to 2 exceptions

Study unit 8 Hearsay

General Rule: it is relevant but inadmissible because it’s unreliable

admissibility of such statements is determined in criminal proceedings.

Study unit 9 Opinion evidence

Definition: a Factual inference based on other facts

(3) Fill in the missing words:

The admissibility of expert evidence:

of the text is reliable.

Study unit 10 Admissions and confessions: definition and types

‘‘A STATEMENT’’ made verbally or in writing

VARIOUS FORMS OF ADMISSIONS

B. Formal and informal admissions

Indicate whether the following situations relate to a formal or an informal admission, or

1. Proving a formal admission in Civil proceedings

(1) How is a formal admission proved in a civil matter?

2. Proving a formal admission in Criminal Proceedings

Statements made without prejudice

(4) State whether the following statements are true or false:

Answer the following questions after reading the Becker case:

(4) What test has the legislature devised to be applied to confessions?

Draw up some guidelines to facilitate determining whether a statement amounts to a

Briefly explain the meaning of a “vicarious admission”. (5)

Study unit 11 The admissibility of admissions and confessions

Admissibility of an admission in civil matters:

Admissibility of an admission in criminal matters:

Requirements for the Admissibility of an admission - section 219A

Who is a ‘‘person in authority’’?

“anyone whom the prisoner might reasonably supposed to be capable of influencing

THE ADMISSIBILITY OF A CONFESSION

THE ADMITTANCE OF AN OTHERWISE INADMISSIBLE CONFESSION

Answer the following questions after reading S v Nieuwoudt:

DETERMINING THE ADMISSIBILITY OF ADMISSIONS AND CONFESSIONS

(1) Why is a trial within a trial normally held?

Explain the meaning and main functions of a “trial-within-a-trial.” (5)

Will evidence that is obtained in violation of a person’s fundamental rights necessarily be

Study unit 12 Admissions and confessions: remaining matters

. substantiate, in your opinion, whether a statement which is an inadmissible confession on a

Pointing out of facts in consequence of an inadmissible admission or confession:

The admissibility of evidence of pointing out:

CONFESSIONS TO ANOTHER OFFENCE