Principles of Evidence - 4th Edition

Page v
Preface
This edition, like the previous three, is an attempt to strike a balance between the theory of
the law of evidence and its practical application in a constitutional setting. We hope that this
fourth edition will be of assistance to both students and practitioners and that it will alert
them to the growing impact of the Bill of Rights on the traditional Anglo-South African law of
evidence.
We would like to thank the following people for their contributions: Wouter de Vos (author
of chapter 22 and co-author of chapter 23), Eugene van der Berg (co-author of chapters 4
and 8), Justin de Jager (author of chapter 21) and Avinash Govindjee (co-author of
chapter 4).
We thank our publishers, Juta, for their encouragement and support. Marlinee Chetty
oversaw production of this fourth edition. Her patience and professional approach are greatly
appreciated.
An attempt was made to state the law as at the end of May 2015.
PJ Schwikkard
Cape Town
Steph van der Merwe
Durbanville
22 September 2015
Page vii
Contents
Preface
Mode of citation of principal works and sources
Section A
An Introduction to the Law of Evidence
1 An Introduction to the History and Theory of the Law of Evidence –S E van der
Merwe
11 Introduction
12 Scope and Functions of the Law of Evidence
13 Early History and Development of the English Law of Evidence
131 The religious (primitive) stage
132 The formal stage
133 The rational stage (and development of the jury)
14 Procedural and Evidential Systems and Some Universal Principles of Fact-Finding
15 Ordinary Courts and Small Claims Courts: An Examination of Procedural and
Evidential Differences
151 Small claims courts and the inquisitorial procedure and free system of
evidence
152 Accusatorial versus inquisitorial procedure
153 Strict versus free system of evidence
16 Jurors and Assessors: Some Brief Comparative Remarks
17 Rules of Evidence in Criminal and Civil Proceedings
2 Basic Concepts and Distinctions –S E van der Merwe
21 Introduction
22 Facts in Issue and Facts Relevant to the Facts in Issue
23 Evidence and Argument
24 Evidence and Probative Material
25 Evidence and Proof
26 Conclusive Proof and Prima Facie Proof
27 Admissibility and Weight of Evidence
28 Conditional Admissibility
29 Circumstantial and Direct Evidence
2 10 Primary and Secondary Evidence
2 11 Hearsay
2 12 Relevance
2 13 Privilege
2 14 Formal and Informal Admissions
2 15 Confessions
2 16 Judicial Notice
2 17 Presumptions
2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the Burden of Rebuttal
(Evidential Burden, “Weerleggingslas”)
Page viii
3 Sources of the South African Law of Evidence and the Impact of Constitutional
Provisions –S E van der Merwe
31 Introduction
32 Original and Regional Incorporation of English Law: The Pre-Union Period
33 Criminal Proceedings: The Post-Union Period
34 Civil Proceedings: The Post-Union Period
35 Interpretation of the 30 May 1961 Provision
351 English decisions considered to be incorrect
352 South African rules of practice incompatible with English law
353 Rules inconsistent with constitutional provisions
36 Value of English Cases Decided after 30 May 1961
37 Value of Privy Council Decisions
38 Further Sources
39 Constitutional Provisions
4 The Law of Evidence and Substantive Law –E van der Berg and A Govindjee
41 Introduction
42 The Significance of the Distinction
43 The Burden of Proof
44 Irrebuttable Presumptions
45 Estoppel
46 Parol Evidence
461 The integration rule
462 Some exceptions
463 Rectification
464 The interpretation rule
Section B
The Admissibility of Relevant Evidence
5 Relevance and Admissibility –S E van der Merwe
51 Introduction
52 Rationale for the Exclusion of Irrelevant Evidence
53 The Meaning of Relevance and the Determination of Relevance
531 The issues (as the essential point of departure)
532 Reasonable or proper inference: assessing the potential weight of the
evidence
533 Avoiding a proliferation or multiplicity of collateral issues
534 The risk of manufactured evidence
535 Prejudicial effect
536 The doctrine of precedent
537 The principle of completeness
538 Constitutional imperatives and the position of the accused
54 Proposals of the South African Law Reform Commission
6 Character Evidence –P J Schwikkard
61 Introduction
Page ix
62 Character in Criminal Cases

621 The character of the accused
622 Evidence of the accused’s bad character
623 Section 197 of the CPA
6231 Section 197(a)
6232 Section 197(b)
6233 Section 197(c)
6234 Section 197(d)
625 Witnesses other than the accused
626 Character of the complainant
6261 Rape or indecent assault
6262 Crimen iniuria
63 Character in Civil Cases
7 Similar Fact Evidence –P J Schwikkard
71 Introduction
72 The Rationale for the Exclusion of Similar Fact Evidence
73 Formulating the Rule for Determining the Admissibility of Similar Fact Evidence
731 The formulation in Makin v Attorney-General for New South Wales
732 The inadequacies of the Makin formulation
733 A necessary proviso
7331 The nexus requirement
734 The dangers of categorisation
735 The formulation in DPP v Boardman
74 The Requirement of Similarity
741 The test of coincidence
742 Coincidence and a nexus
743 The degree of similarity
75 The Facts in Issue
76 Other Evidence
77 Examples of the Exclusion of Similar Fact Evidence
78 An Alternative Approach
8 Opinion Evidence –E van der Berg and S E van der Merwe
81 Introduction
82 Fact and Opinion: Some Comments
83 The Basis of the Opinion Rule
84 Lay Persons and Experts
85 The Opinion of a Lay Person
851 The compendious mode
852 Handwriting
853 Probative value of lay opinion
86 The Expert Witness
861 The expert witness: the need to lay a foundation
862 Reasons for opinion and probative value of the opinion
863 Hearsay and expert opinion
864 The expert referring to textbooks
Page x
87 Procedural Aspects
88 The Rule in Hollington
9 Previous Consistent Statements –S E van der Merwe
91 Introduction
92 Rationale for the Exclusion of Previous Consistent Statements
93 An Example from Case Law
94 Exceptions to the General Rule
95 To Rebut a Suggestion of Recent Fabrication
96 Complaints in Sexual Cases
961 Voluntary complaint
9611 The common law
9612 The provisions of Act 32 of 2007
962 The victim must testify
9621 The common law
963 First reasonable opportunity
9631 The common law
964 Victim of sexual offence
9641 The common law
965 Limited evidential value
9651 The common law
966 Complaints in sexual cases: inferences and the provisions of ss 58 and 59
of Act 32 of 2007
9661 General background
9662 Inferences and ss 58 and 59
97 Identification
98 Part VI of the CPEA
99 Res Gestae
9 10 Refreshing Memory
9 11 Statements Made at Arrest or on Discovery of Incriminating Articles
9 12 Section 213 of the CPA
Section C
Exclusion of Relevant Evidence: Privilege
10 Private Privilege –P J Schwikkard
10 1 Introduction
10 2 The Privilege Against Self-incrimination and the Right to Remain Silent
10 2 1 The rationale
10 2 2 The witness in criminal proceedings
10 2 2 1 The scope of the privilege
10 2 3 The accused
10 2 3 1 Pre-trial proceedings
Page xi
10 2 3 1 1 Ascertainment of bodily features

10 2 3 1 2 Bail proceedings
10 2 3 2 Trial and plea proceedings
10 2 4 Other investigative inquiries
10 2 5 The witness in civil proceedings
10 3 Legal Professional Privilege
10 3 2 The requirements for the existence of the privilege
10 3 2 1 Acting in a professional capacity
10 3 2 2 The communication must be made in confidence
10 3 2 3 For the purpose of obtaining legal advice
10 3 2 4 The client must claim the privilege
10 3 3 The scope of the rule
10 3 4 Waiver
10 3 5 Refreshing memory in the witness-box
10 3 6 Section 19 of the Legal Aid South Africa Act 39 of 2014
10 4 Other Professional Privileges?
10 5 Marital Privilege
10 6 Parent–Child Privilege
11 State Privilege (Public Interest Immunity) –S E van der Merwe
11 1 Introduction
11 1 1 Terminology
11 1 2 The differences between public and private privilege
11 1 3 Development of the English common law
11 2 State Privilege Prior to Constitutionalisation
11 2 1 The decision in Van der Linde v Calitz
11 2 2 Legislative interference (1969 to 1996)
11 3 State Privilege after Constitutionalisation
11 3 1 Impact of constitutional provisions
11 3 2 The balancing exercise
11 4 The Detection of Crime
11 4 1 Communications tending to expose the methods used to investigate crimes
11 4 2 Communications tending to reveal the identity of an informer
11 4 3 Extension of the informer’s privilege
11 4 4 The constitutionality of the informer’s privilege
11 4 5 Examples of statutes that exclude evidence of the identity of persons who
have a statutory duty to report
11 4 5 1 Section 38(3) of the Financial Intelligence Centre Act 38 of 2001
(FICA)
11 4 5 2 Section 17(9) of the Protection of Constitutional Democracy
against Terrorist and Related Activities Act 33 of 2004
11 5 The Police Docket and Constitutional Provisions
11 5 1 Access for purposes of trial
11 5 1 1 Disclosure of contents not the equivalent of further particulars
to the charge
Page xii
11 5 1 2 Information which only becomes available after commencement

of the trial
11 5 1The position of the undefended accused
3
11 5 1Position of suspects
4
11 5 1Further procedural and evidential matters
5
11 5 1Cross-examination on the basis of the state witness’ statement
6
11 5 1Abolition of the blanket docket privilege: defence interviews
7
with (potential) state witnesses
11 5 2 Access for purposes of a bail application
11 5 2 1 Constitutional validity of s 60(14) of the CPA
11 5 2 2 Duty and power of court to order state to disclose
11 5 2 3 Sections 60(14) and 335 of the CPA
11 5 2 4 Ethical duty of prosecutor
11 6 The Promotion of Access to Information Act 2 of 2000
11 6 1 The PAIA and mandatory protection of records privileged from production in
legal proceedings
11 6 2 Non-applicability of the PAIA to records required for criminal or civil
proceedings after commencement of such proceedings
Section D
Exclusion of Relevant Evidence: Unconstitutionally Obtained Evidence
12 Unconstitutionally Obtained Evidence –S E van der Merwe
12 1 Introduction
12 2 The Competing Interests
12 3 Rationale of the Inclusionary Approach
12 4 The Theoretical Basis and Practical Purpose of the Exclusionary Approach
12 4 1 The “preventive effect” argument
12 4 2 Due process in the context of a bill of rights
12 4 3 The doctrine of legal guilt
12 4 4 Judicial integrity
12 4 5 The principle of self-correction
12 4 6 Primary rules and the secondary rule (the exclusionary rule)
12 5 The Exclusionary Rule in the USA: A Brief Survey
12 5 1 The rule in Mapp
12 5 1 1 General principles limiting the ambit of the rule in Mapp
12 5 1 2 The “good faith” exception
12 5 1 3 The “independent source” exception
12 5 1 4 The “stop and frisk” exception
12 5 2 The Miranda-warnings
12 5 2 1 The ambit of the exclusionary rule in Miranda
12 5 2 2 The “public safety” exception
12 5 2 3 The “impeachment” exception
12 5 2 4 The “inevitable discovery” exception
12 6 Section 24(2) of the Canadian Charter: A Brief Survey
12 6 1 Seriousness of the state conduct infringing the Charter
12 6 2 Impact on the accused’s interests as protected by the Charter
Page xiii
12 6 3 The interest of society in an adjudication on the merits

12 6 4 Applying the three lines of inquiry to specific types of evidence
12 7 Position in South Africa Prior to s 35(5) of the Constitution
12 7 1 The Anglo-South African common-law inclusionary approach (and its
development since constitutionalisation)
12 7 2 The interim Constitution
12 7 2 1 Protection of the constitutional right to a fair trial
12 7 2 2 The discretion to exclude unconstitutionally obtained real
evidence
12 7 2 3 Public opinion and the repute of the system
12 8 Section 35(5) of the Constitution
12 8 1 Section 35(5): The threshold test
12 8 2 Section 35(5): The causal link between violation and procurement
12 8 3 Section 35(5) and “standing”
12 8 4 Section 35(5) and the admissibility of evidence unconstitutionally procured
by private individuals
12 8 5 Section 35(5) and the limitations clause in s 36
12 8 6 Section 35(5) and a co-accused’s constitutional right to a fair trial
12 8 7 Section 35(5) and impeachment of the accused
12 8 8 Sections 35(5) and 37: Derogation in states of emergency
12 9 The First Leg of the Test in s 35(5): “must be excluded if . . . admission . . . would
render the trial unfair”
12 9 1 Trial fairness
12 9 2 The content of the accused’s constitutional right to a fair trial
12 9 3 Trial fairness and the court’s discretion
12 9 4 The privilege against compelled self-incrimination: trial fairness and the
court’s discretion
12 9 5 Waiver, trial fairness and the court’s discretion
12 9 6 Trial fairness and the court’s discretion: Self-incrimination, real evidence
and evidence “emanating from the accused”
12 9 7 Trial fairness and the admissibility of derivative evidence
12 9 8 Trial fairness and the admissibility of identification evidence obtained at an
identification parade held in the absence of the accused’s legal
representative
12 10 The Second Leg of the Test in s 35(5): “if . . . admission . . . would otherwise be
detrimental to the administration of justice”
12 10 1 The presence or absence of good faith (and reasonable) police conduct
12 10 2 Public safety and urgency
12 10 3 Nature and seriousness of the violation
12 10 4 The availability of lawful means or methods of securing the evidence
12 10 5 Real evidence
12 10 6 Inevitable discovery or discovery on the basis of an independent source
12 11 Section 35(5) and Procedural Matters
12 11 1 The trial within a trial
Page xiv
12 11 2 The burden of proof: incidence and standard

12 12 Evidence Procured by Means of Entrapment (s 252A of the CPA and s 35(5) of the
Constitution)
12 13 Civil Cases
Section E
Hearsay
13 Hearsay –P J Schwikkard
13 1 Introduction
13 2 The Rationale for the Exclusion of Hearsay Evidence
13 2 1 Procedural context
13 2 2 Cost effectiveness
13 2 3 Best evidence
13 2 4 Complexity
13 2 5 Socially necessary
13 2 6 Safeguard against the abuse of power
13 2 7 A constitutional requirement
13 3 Section 3 of the Law of Evidence Amendment Act 45 of 1988
13 4 The Definition of Hearsay
13 5 Admission by Consent
13 6 The Provisional Admission of Hearsay
13 7 Discretion in Terms of Act 45 of 1988
13 7 1 The nature of the proceedings: s 3(1)(c)(i)
13 7 2 The nature of the evidence: s 3(1)(c)(ii)
13 7 3 The purpose for which the evidence is tendered: s 3(1)(c)(iii)
13 7 4 The probative value of the evidence: s 3(1)(c)(iv)
13 7 5 The reason why the evidence is not given by the person upon whose
credibility the probative value depends: s 3(1)(c)(v)
13 7 6 Prejudice to opponents: s 3(1)(c)(vi)
13 7 7 Any other factor which in the opinion of the court should be taken into
account: s 3(1)(c)(vii)
13 8 Procedural Issues
13 9 Conclusion
14 A Selection of Common-Law Exceptions to the Hearsay Rule: A Brief
Perspective –P J Schwikkard
14 1 Common-Law Definition of Hearsay
14 2 Exceptions to the Hearsay Rule
14 2 1 Res gestae statements
14 2 1 1 Spontaneous statements
14 2 1 2 Composite acts
14 2 1 3 Declarations of state of mind
14 2 1 4 Declarations of physical sensations
14 2 2 Dying declarations
14 3 Remarks in Conclusion
Page xv
15 Selected Statutory Exceptions to the Hearsay Rule –P J Schwikkard

15 1 Introduction
15 2 Civil Proceedings Evidence Act 25 of 1965 (CPEA)
15 2 1 Proof of trial and conviction or acquittal of any person
15 2 2 Proof of certain facts by affidavit
15 2 3 Evidence of times of sunrise and sunset
15 2 4 Bankers’ books
15 2 5 General admissibility of documentary evidence as to facts in issue
15 2 5 1 Weight of admissible evidence
15 3 Criminal Procedure Act 51 of 1977 (CPA)
15 3 1 1 State departments, provincial administrations, courts of law,
and banks
15 3 1 2 Denial of information furnished
15 3 1 3 Official acts
15 3 1 4 Facts requiring specialised skills
15 3 1 5 Precious metal and stones
15 3 1 6 Fingerprints, body-prints, bodily samples and crime scene
samples
15 3 1 7 Dead bodies
15 3 1 8 Chain of custody
15 3 1 9 Discretion to call for oral evidence
15 3 1 10 The scope of s 212
15 3 1 11 The constitutionality of s 212
15 3 1 12 Affidavits by persons in a foreign country
15 3 2 Admission of written statements by consent
15 3 3 Evidence recorded at a preparatory examination or former trial
15 3 4 Admissibility of certain trade or business records
15 3 5 Part VI of the CPEA applied in criminal proceedings
15 3 6 Accounting records and documentation of banks
15 3 7 Presumptions pertaining to documents
Section F
The Admissibility and Proof of the Contents of Relevant Detrimental Statements
16 Informal Admissions –P J Schwikkard
16 1 Introduction
16 2 Requirements for Admissibility
16 3 Admissions by Conduct
16 3 1 Admissions by silence
16 3 2 Failure to answer letters
16 3 3 Statements in the presence of a party
16 3 4 Failure to cross-examine
16 4 Vicarious Admissions
16 4 1 Criminal trials
16 5 Examples of Exceptions to the Vicarious Admissions Rule
Page xvi
16 5 1 Express or implied authority

16 5 1 1 Agents and employees
16 5 1 2 Partners
16 5 1 3 Legal representatives
16 5 1 4 Spouses
16 5 1 5 Referees
16 5 2 Acts and declarations in furtherance of a common purpose
16 5 3 Privity or identity of interest or obligation
16 5 3 1 Predecessors in title
16 5 3 2 Employer and employee
16 5 3 3 Nominal and real parties
16 6 Statements Made Without Prejudice
16 7 Admissions by the Accused
16 7 1 The requirements for admissibility
16 7 1 1 Section 35(1)(c) of the Constitution
16 7 2 Plea proceedings
16 7 3 The burden of proof
16 7 4 Trial within a trial
17 Confessions in Criminal Trials –P J Schwikkard
17 1 Introduction
17 1 1 The rationale for excluding involuntary admissions and confessions
17 2 The Importance of Distinguishing Between Admissions and Confessions
17 3 The Meaning of a Confession
17 3 1 Offences which place a burden of proof on the accused
17 3 2 Incriminating statements intended to be exculpatory
17 3 3 Exculpatory statements incriminating as to a lesser offence
17 4 1 Generally
17 4 2 Freely and voluntarily
17 4 3 Sound and sober senses
17 4 4 Without being unduly influenced thereto
17 4 4 1 The test of undue influence
17 4 4 2 Statements made under statutory compulsion
17 4 5 Confessions made to peace officers
17 4 5 1 “Peace officer”
17 4 5 2 Confessions made to peace officers who are also magistrates
and justices of the peace
17 4 5 3 Confessions confirmed and reduced to writing in the presence of
a magistrate or justice of the peace and undue influence
17 5 The Burden of Proof
17 6 Procedure: Trial-Within-a-Trial
17 7 Inadmissible Confessions which Subsequently Become Admissible
17 8 Facts Discovered as a Consequence of an Inadmissible Admission or Confession
17 8 1 Section 218(2)
17 8 2 Evidence discovered as a consequence of a pointing out
Page xvii
17 8 3 Factors affecting admissibility

17 8 4 Facts discovered in consequence of information given by the accused
17 9 Confession (and Admission) Admissible Only Against Maker
17 10 An Argument for Law Reform
Section G
Kinds of Evidence and Presentation Thereof
18 Oral Evidence –S E van der Merwe
18 1 Introduction
18 2 Evidence Must Generally be Given on Oath or Affirmation
18 2 1 Unsworn evidence exceptionally allowed
18 2 2 Witness with no religious belief
18 3 Examination in Chief
18 3 1 Leading questions generally prohibited
18 3 2 Situations where leading questions are permitted
18 4 Impeachment of One’s Own Witness during Examination in Chief
18 5 Examination in Chief: Limited Use of Witness’s Previous Consistent Statement
18 6 Cross-Examination
18 6 1 The purpose and general scope of cross-examination
18 6 2 Leading questions
18 6 3 Who may be cross-examined
18 6 4 The duty to cross-examine
18 6 5 The limits of cross-examination
18 6 5 1 Curial courtesy
18 6 5 2 Misleading statements put by cross-examiner
18 6 5 3 Inadmissible evidence
18 6 5 4 Sections 197 and 211 of the CPA
18 6 5 5 Cross-examination as to credit
18 6 5 6 Section 166(3) of the CPA
18 6 5 7 Legal professional ethics
18 7 Procedural Matters Pertaining to Cross-examination
18 8 Re-examination
18 9 Examination by the Court
18 10 Examination of Witnesses Called by the Court
18 11 The Intermediary and Related Procedures
18 11 1 A general assessment of the use of an intermediary in the context of an
adversarial trial
18 11 2 The essential content of the right to confront
18 11 3 The constitutionality of s 170A of the CPA
18 11 3 1 Section 170A as a constitutionally permissible limitation (s 36 of
the Constitution)
18 11 3 2 Section 170A and the constitutional injunction “best interests of
the child” (the paramountcy principle in s 28(2) of the
Constitution)
18 11 3 3 The constitutionality of s 170A(7)
18 11 4 Principles and considerations in the application of s 170A
Page xviii
18 11 5 Law reform proposals

18 12 Evidence by Means of Closed Circuit Television or Similar Electronic Media
18 13 Evidence on Commission in Criminal Cases
18 14 Evidence on Commission in Civil Cases
18 15 Interrogatories
18 16 Evidence by Way of Affidavit
18 17 Evidence in Former Proceedings
18 18 Preserved Evidence
19 Real Evidence –S E van der Merwe
19 1 Introduction
19 1 1 The court’s function and the limits of its observations
19 1 2 The situation where relevant real evidence is not produced
19 2 Appearance of Persons
19 2 1 Resemblance of child to reputed parent
19 2 2 Physical appearance as real evidence of approximate age
19 2 3 Court’s observation of witness for purpose of determining competency to
testify
19 3 Tape Recordings
19 4 Fingerprints
19 5 Photographs, Films and Video Recordings
19 6 Inspections In Loco
19 7 Handwriting
19 8 Blood Tests, Tissue Typing and DNA Identification
19 9 Computer-generated and Computer-assisted Data
20 Documentary Evidence –P J Schwikkard
20 1 Introduction
20 2 “Document”
20 3 Admissibility requirements
20 3 1 The original document
20 3 2 Authenticity
20 3 3 Stamp duty
20 4 Civil Discovery
21 Electronic Evidence –J de Jager
21 1 Introduction
21 2 The Position Prior to the ECT Act
21 2 1 Civil proceedings
21 2 1 1 The Computer Evidence Act 57 of 1983 (now repealed)
21 2 2 Criminal proceedings
21 3 The Electronic Communications and Transactions Act 25 of 2002 (ECT Act)
21 3 1 The admissibility of electronic evidence
21 3 2 Assessing the evidential weight of data messages
21 3 3 The admissibility of business records in terms of s 15(4)
21 4 Data Messages as Real Evidence
21 5 Conclusion
Page xix
Section H
Witnesses
22 The Competence and Compellability of Witnesses –W L de Vos
22 1 Introduction
22 2 The General Rule
22 3 General Procedural Matters
22 4 Children
22 5 Mentally Disordered and Intoxicated Persons
22 6 Deaf and Speechless Persons
22 7 Judicial Officers
22 8 Officers of the Court
22 9 The Accused
22 10 The Accused and Co-Accused in the Same Proceedings
22 11 Spouses
22 11 1 Civil cases
22 11 2 Criminal cases
22 12 Husband and Wife as Co-Accused
22 13 Members of the National Assembly and National Council of Provinces
22 14 Heads of State and Diplomats
23 The Calling of Witnesses –W L de Vos and S E van der Merwe
23 1 Introduction
23 2 Witnesses: General Procedural Matters
23 2 1 Witnesses to wait outside
23 2 2 The oath, affirmation or admonition
23 3 Examination of Witnesses
23 4 Criminal Proceedings
23 4 1 Witnesses called by the state
23 4 2 Witnesses called by the defence
23 4 3 Witnesses called by the court
23 4 4 Witnesses recalled by the court
23 5 Civil Proceedings
23 5 1 The right or duty to begin
23 5 2 Witnesses called by the parties
23 5 3 Expert witnesses called by the parties
23 6 Reopening a Case and Evidence in Rebuttal
23 7 Witnesses Called on Appeal or Remittal for Further Evidence
24 Refreshing the Memory of a Witness –S E van der Merwe
24 1 Introduction
24 2 “Refreshing of Memory” Versus the Distinction Between “Present Recollection
Revived” and “Past Recollection Recorded”
24 3 Refreshing of Memory Before the Witness Gives Evidence
24 4 Refreshing of Memory During an Adjournment
24 5 Refreshing of Memory While the Witness Is in the Witness-Box: The Common-Law
Foundation Requirements
Page xx
24 5 1 Personal knowledge of the event
24 5 2 Inability to recollect
24 5 3 Verification of the document used to refresh memory
24 5 4 Fresh in the memory
24 5 5 Use of the original document
24 5 6 Production of the document
24 6 The Probative Value of a Document Used to Refresh Memory
24 6 1 Present recollection revived
24 6 2 Past recollection recorded
24 6 3 Conduct of the cross-examiner
25 Impeaching the Credibility of a Witness –S E van der Merwe
25 1 Introduction
25 2 Impeaching the Credibility of an Opponent’s Witness
25 2 1 Cross-examination as to credit on some collateral issue: the finality of the
response
25 2 2 Cross-examination as to credit and the right to contradict a denial:
previous convictions
25 2 3 Cross-examination as to credit and the right to contradict a denial: bias
25 2 4 Cross-examination on and proof of a previous inconsistent statement made
by an opponent’s witness
25 2 5 Calling a witness to testify on veracity
25 3 Impeaching the Credibility of Your Own Witness
25 3 1 Calling another witness
25 3 2 Proving a previous inconsistent statement against your own witness
25 3 3 Cross-examination of your own witness: the hostile witness
25 3 4 The rule that a party may not cross-examine its own witness unless
declared hostile: a constitutional perspective
25 4 Rules and Principles Which Govern the Proof and Probative Value of Previous
Inconsistent Statements
25 4 1 Rules and principles governing proof
25 4 2 Substantive use of a previous inconsistent statement: proving the truth of
its contents
25 5 Attacking the Credibility of an Accused on the Basis of an Unconstitutionally Obtained
Prior Inconsistent Statement
Section I
Proof Without Evidence
26 Formal Admissions –P J Schwikkard and S E van der Merwe
26 1 Introduction
26 2 The Nature and Rationale of Formal Admissions
26 2 1 The distinction between formal and informal admissions
26 3 The Intention of the Maker
26 4 1 Amendment of pleadings and withdrawal of a formal admission
Page xxi
26 4 2 Procedure for withdrawal

26 5 Criminal Proceedings: The Common Law and Section 220 of the CPA
26 5 1 The effect and withdrawal of a formal admission in criminal proceedings
26 5 2 The plea of guilty: s 112(1)(b) and s 113 of the CPA
26 5 3 The explanation of plea: s 115 of the CPA
26 5 4 The rules of practice and s 220
26 5 5 Formal admissions of facts outside the maker’s personal knowledge
26 5 6 Proof of undisputed facts: s 212B of the CPA
26 6 Formal and Informal Admissions by Cross-Examiner
27 Judicial Notice –P J Schwikkard and S E van der Merwe
27 1 The Nature of and Rationale for Judicial Notice
27 2 Judicial Notice and the Reception of Evidence
27 3 Procedure
27 4 The Limits of Judicial Notice: Basic Principles
27 4 1 Notorious facts (general knowledge)
27 4 2 Facts of local notoriety
27 4 3 Facts easily ascertainable
27 5 Assorted Examples
27 5 1 Animals
27 5 2 Racial characteristics
27 5 3 Political and constitutional matters
27 5 4 Matters of science and scientific instruments
27 5 5 Financial matters and commercial practices
27 5 6 Functioning of traffic lights
27 5 7 Historical facts, words and phrases
27 5 8 Crime
27 5 9 Social conditions
27 6 Law
27 6 1 Statute and common law
27 6 2 Public international law
27 6 3 Indigenous and foreign law
27 6 3 1 Foreign law
27 6 3 2 Indigenous law
27 7 Rule 31 of the Constitutional Court Rules
28 Rebuttable Presumptions of Law –P J Schwikkard
28 1 What Are Presumptions?
28 2 Some Reasons for Presumptions
28 3 The Classification of Presumptions
28 3 1 Irrebuttable presumptions of law
28 3 2 Rebuttable presumptions of law
28 3 3 Presumptions of fact
28 4 The Effect of Presumptions on the Burden of Proof
28 5 Some Examples of Presumptions
28 5 1 Marriage
Page xxii
28 5 2 Bigamy
28 5 3 Legitimacy
28 5 4 Paternity of children born out of wedlock
28 5 5 Death
28 5 5 1 Presumption of death and dissolution of marriage
28 5 5 2 The date of death
28 5 6 Regularity
28 5 6 1 Letters
28 5 6 2 Validity of official acts
28 5 7 Res ipsa loquitur
29 A Constitutional Perspective on Statutory Presumptions –P J Schwikkard
29 1 Introduction
29 2 The Presumption of Innocence
29 2 1 Infringements of the presumption of innocence
29 2 2 Justifiable limitations
Section J
Weight of Evidence and Standards and Burdens of Proof
30 The Evaluation of Evidence –S E van der Merwe
30 1 Introduction
30 2 Basic Principles
30 2 1 Avoidance of piecemeal processes of adjudication
30 2 2 Inferences and probabilities to be distinguished from conjecture
30 3 Corroboration
30 3 1 The rule against self-corroboration
30 3 2 Ambit of the rule against self-corroboration
30 3 3 Corroboration of confessions
30 3 3 1 Scope of s 209 of the CPA
30 3 3 2 Plea procedures and s 209 of the CPA
30 3 3 3 Confirmation in a material respect
30 3 3 4 Confirmation in a material respect: other extra-curial
confessions or admissions of the accused
30 3 3 5 Evidence aliunde the confession
30 4 Credibility: The Impact of Demeanour and Mendacity
30 5 Circumstantial Evidence
30 5 1 Cumulative effect
30 5 2 Inferences in criminal proceedings
30 5 3 Inferences in civil proceedings
30 5 4 The so-called presumptions of fact
30 6 Credibility of a Witness: Previous Experience of the Court
30 7 Presence in Court Before Testifying
30 8 Failure to Cross-Examine
30 9 Failure of a Party to Testify (and the Constitutional Right of an Accused to Refuse to
Testify)
30 10 Failure to Call Available Witnesses
30 11 The Cautionary Rule: Function and Scope
Page xxiii
30 11 1 Instances of suspected deliberate false evidence

30 11 2 Evidence of identification
30 11 2 1 Dock identification
30 11 2 2 Evidence of identification at a formal identification parade
30 11 2 3 Identification evidence based on a photographic identification
parade
30 11 2 4 Assessing an alibi
30 11 2 5 Voice identification
30 11 3 Children
30 11 4 The single witness
30 11 5 Abolition of the cautionary rule in sexual offences
30 11 6 Handwriting
30 12 The Rule in Valachia
30 13 Court required to give reasons
31 The Standard and Burden of Proof and Evidential Duties in Criminal Trials –P
J Schwikkard and S E van der Merwe
31 1 Introduction
31 2 The Onus (“Bewyslas”) and Evidentiary Burden (“Weerleggingslas”)
31 3 The Ambit of the State’s Onus of Proof
31 3 1 Identity and every element of the crime
31 3 2 Statutory exceptions
31 3 3 Issues concerning the mental illness or mental defect of the accused
31 3 3 1 Criminal non-responsibility (incapacity) on account of mental
illness or mental defect (s 78(1) of the CPA)
31 3 3 2 Non-triability on account of mental illness or mental defect (s 77
of the CPA)
31 4 Further Procedural Matters
31 4 1 Criminal defamation and the provisions of s 107 of the CPA
31 4 2 Procedural duty to introduce a defence
31 5 Application for Discharge
31 6 The Criminal Standard of Proof
32 The Standard and Burden of Proof and Evidential Duties in Civil Trials –P
J Schwikkard
32 1 Introduction
32 2 The Nature and Incidence of the Burden of Proof
32 2 1 Impact of the Constitution
32 3 The Evidential Burden Distinguished
32 4 The Duty to Begin
32 4 1 Rule 39 of the Uniform Rules of Court
32 4 2 Magistrates’ Court Rule 29
32 5 The Term “Prima Facie Case”
32 6 Absolution from the Instance
32 7 Civil Standard of Proof
Page xxiv
Appendices
Appendix A Constitution of the Republic of South Africa, 1996: Chapter 2 Bill of Rights (ss
7–39)
Appendix B Judges’ Rules
Appendix C Section 252A of the Criminal Procedure Act
Table of Cases
Table of Statutes
Table of Rules
Index
Page xxv
Mode of citation of principal works and sources
ASSAL Annual Survey of South African Law

CPA Criminal Procedure Act 51 of 1977
CPEA Civil Proceedings Evidence Act 25 of 1965
Du Toit et al Commentary E du Toit, F J de Jager, A P Paizes, A St Q Skeen, S E van der
Merwe Commentary on the Criminal Procedure Act (1987, as
revised biannually)
Hoffmann & Zeffertt L H Hoffmann & D T Zeffertt The South African Law of Evidence
4 ed (1988)
Lansdown & Campbell A V Lansdown & J Campbell South African Criminal Law and
Procedure vol V Criminal Procedure and Evidence (1982)
LAWSA W A Joubert (ed), C W H Schmidt, D T Zeffertt, and revised by
D P van der Merwe The Law of South Africa vol 9 Evidence
First Reissue (1996)
Schmidt & Rademeyer C W H Schmidt & H Rademeyer Bewysreg 4 ed (2000)
Schmidt & Rademeyer Schmidt & Rademeyer Law of Evidence (2014)
Wigmore H J Wigmore A Treatise on the Anglo-American System of
Evidence in Trials at Common Law (1940) and revised
editions (1961)
Zeffertt, Paizes & Skeen The South African Law of Evidence (2003)
Zeffertt & Paizes The South African Law of Evidence 2 ed (2009)
Page 1
Section A
An Introduction to |
the Law of Evidence
1 An Introduction to the History and Theory of the Law of Evidence –S E van der Merwe
2 Basic Concepts and Distinctions –S E van der Merwe
3 Sources of the South African Law of Evidence and the Impact of Constitutional
Provisions –S E van der Merwe
4 The Law of Evidence and Substantive Law –E van der Berg and A Govindjee
Page 3
Chapter 1
An Introduction to the History and Theory of the Law
of Evidence
S E van der Merwe
11 Introduction
12 Scope and Functions of the Law of Evidence
13 Early History and Development of the English Law of Evidence
131 The religious (primitive) stage
132 The formal stage
133 The rational stage (and development of the jury)
14 Procedural and Evidential Systems and Some Universal Principles of Fact-Finding
15 Ordinary Courts and Small Claims Courts: An Examination of Procedural and
Evidential Differences
151 Small claims courts and the inquisitorial procedure and free system of
evidence
152 Accusatorial versus inquisitorial procedure
153 Strict versus free system of evidence
16 Jurors and Assessors: Some Brief Comparative Remarks
17 Rules of Evidence in Criminal and Civil Proceedings
1 1 Introduction
Courts normally have to make a finding concerning the existence or non-existence of certain
facts before pronouncing on the rights, duties and liabilities of the parties engaged in a
dispute. [1] In this process of litigation and adjudication the proof of facts is regulated by the
law of evidence, which is a branch of the law of procedure. A factual basis is necessary to
determine the rights, duties and liabilities which exist in terms of substantive law, [2] for
example the law of contract.
Page 4
It should be borne in mind, however, that there are also certain procedural rights and
duties which stem from the law of evidence, for example the right to cross-examine and the
duty to adduce evidence. These rights and duties are of a procedural nature in the sense
that they form part of or emanate from the body of rules governing the proof of facts in a
court of law. The right to cross-examine and the duty to adduce evidence relate to the law of
evidence, which in turn forms part of the law of procedure in its widest sense.
| The law of evidence is closely linked to criminal and civil procedure and forms part of that
branch of the law commonly referred to as “adjective law” or “adjectival law”.
It will later become evident that in some instances it is not always easy to draw the line of
demarcation between substantive law and the law of evidence as a branch of the law of
procedure. [3] However, this demarcation cannot be ignored: [4] the substantive-law rights
and duties of the parties to an action are determined by rules and principles which largely
stem from Roman-Dutch law, whereas the English law of evidence serves as the common
law of the South African law of evidence. [5]
1 2 Scope and Functions of the Law of Evidence

Procedural law gives practical meaning and effect to the rules of substantive law. It has
often been said that substantive law might just as well not exist if there were no procedural
machinery which could constantly transform the rules of substantive law into court orders
and actual enforcements.
The law of evidence governs the proof of facts in a court of law and therefore forms part
of the procedural machinery that makes substantive law effective.
The general scope of the law of evidence can be determined with reference to its specific
functions. The main function of the law of evidence is to determine what facts are legally
receivable (ie admissible) to prove the facts in issue. The law of evidence, however, also
determines in what manner evidence should or may be adduced; what evidence may lawfully
be withheld from a court of law; what rules should be taken into account in assessing the
weight or cogency of evidence; and, further, what standard of proof should, in a given
situation, be satisfied before a party bearing the burden of proof can be successful.
1 3 Early History and Development of the English Law of

Evidence
The early history and evolution of the English law of evidence can be divided into three
basic, successive stages: [6] the religious (primitive) stage, during which it was thought that
one man should not sit in judgment upon another; the formal
Page 5
stage, during which the oath was the primary mode of proof and mistakes in form were
fatal; and, finally, the rational stage, during which the tribunal no longer merely verified
procedural formalities but was required to employ its reasoning powers in the fact-finding
process.
1 3 1 The religious (primitive) stage

During this stage “trial by ordeal” was considered an almost perfect aid in truth-finding. The
ordeal was popular in England [7] and on the Continent. [8] It was really an appeal to God [9]
(or the gods or the supernatural) to “decide” the factual dispute. [10] The Anglo-Saxons
employed several different kinds of ordeals. In the “ordeal of the accursed morsel” (also
known as the corsnaed) the accused was required to swallow a dry morsel of bread,
accompanied by a prayer that he should choke if he were guilty. [11] In 1053 Godwin, the
powerful Earl of Kent — whom Edward the Confessor had accused of murder — attempted to
swallow his piece of bread, but choked and died (probably to the astonishment of all those
who had attended the “trial”). This ordeal — and probably all other ordeals — might appear
irrational [12] and even absurd to the modern mind. [13] But Paton and Derham maintain that
there is a possible logical explanation in respect of the corsnaed: fear, brought about by
feelings of guilt, dries the mouth and renders it more difficult to swallow a dry piece of
bread! [14] Would it be too far-fetched to suggest that the corsnaed was perhaps the early
source of the modern rule that the demeanour of a witness may be taken into account as a
factor affecting credibility? [15] Trial by battle — a Norman novelty introduced after William
the Conqueror’s invasion in 1066 — was a further ordeal in terms of which a dispute could
be settled by a duel. Holdsworth says that trial by battle was not merely an appeal to
physical force: [16] “[I]t was accompanied by a belief that Providence will give victory to the
right. The trial by battle is the judicium Dei
Page 6
par excellence.” It has been suggested that the early roots of the present accusatorial
(adversarial) trial system can be traced to trial by battle: [17] physical confrontation gradually
developed into verbal confrontation. [18] And it will later be shown that the right to confront
witnesses by cross-examining them is not only a marked characteristic of the accusatorial
trial system but also gave rise to, inter alia, the hearsay rule. [19]
1 3 2 The formal stage

The twelfth century witnessed an increase in human reason and “in the field of evidence . . .
people were turning their backs on age old irrational methods”. [20] In 1215 Pope Innocent
III in the Fourth Lateran Council forbade priests to administer ordeals, [21] thereby destroying
the validity of an entire system of proof. Langbein explains that the attempt “to make God
the fact finder for human disputes was being abandoned. Henceforth, humans were going to
replace God in deciding guilt or innocence . . .”. [22]
In England the use of oath-helpers (later called “compurgators”) became very popular.
The compurgators were not eye-witnesses but merely people who were prepared to state
under oath that the oath of one of the parties should be believed. [23] The party who was
able to summon the largest number of compurgators “won” the case. Trial by compurgation
was a formal procedure in the sense that the tribunal was still not required to weigh
evidence. The oath and number of oaths were decisive.
In virtually every age the oath has been thought to provide the strongest hold on the
consciences of men. [24] And even today the oath — however abused — plays an important
role in the law of evidence. [25]
1 3 3 The rational stage (and development of the jury) [26]
It was soon realised that the compurgators could make a more meaningful contribution.
Page 7
The compurgators were no longer called upon to express a mere belief in the veracity of a
party’s oath but were also expected to act as adjudicators, largely because of their
knowledge of the events. A crude form of trial by jury developed, despite the personal
knowledge that the “jurors” had. White describes the next development as follows: [27] “As
population increased and everyday activities grew more complex, it developed that
neighbours knew little or nothing of the facts in dispute. It was then that witnesses who did
know some facts were called in to supply the requisite information. . . [T]he jury laid aside
its old character . . . The very thing . . . [ie personal knowledge] . . . that qualified a man for
jury service in the olden times, at a much later date disqualified him.” In the seventeenth
century it was finally decided that a witness “swears but to what he hath heard or seen to
what hath fallen under his senses. But a jury-man swears to what he can infer and conclude
from the testimony of such witnesses . . .” [28]
This distinction between a witness’s function (to testify) and a juror’s function (to
determine facts on the basis of testimony presented by witnesses) had the important result
that “jurors now were assumed to enter the box with a cognitive tabula rasa so that facts
could be writ upon their minds through, for example, the medium of witnesses giving oral
testimony . . .” [29] The general receipt of oral testimony established the principle of orality,
and personal knowledge of the event in dispute led to disqualification of a juror. The central
notion of an impartial adjudicator was accepted.
During the formative period of trial by jury the relative functions of judge and jury were
also settled: the jurors determined the facts and the judges determined the law. [30] This
procedural distinction between the functions of judge and jury had important results: the
judges (who had to decide matters of law) thought that the jury (who had to decide matters
of fact) might be misled or distracted by, or might be inclined to attach undue weight to,
certain categories or types of evidence which, according to the judges, were notoriously
untrustworthy. The judges therefore considered the admissibility of evidence a matter of
law. They then ruled, as a matter of law, that certain evidence was inadmissible, most
notably character and hearsay evidence. These decisions to exclude certain evidence were
decisions of law and fell within the ambit of the doctrine of precedent: stare decisis.
The nineteenth and twentieth centuries witnessed a large number of statutory reforms in
England as well as South Africa. The South African legislature has in the past been inclined
to base its own legislation on principles contained in English legislation. Statutory reform has
to a large extent been aimed at relaxing the strict evidential rules which owe their existence
to trial by jury.
Page 8
The exact extent of the jury’s influence on the historical development and modern rules of
the Anglo-South African law of evidence is debatable. At the same time, however, it is
equally true that a proper appreciation of some of the rules of evidence is only possible if
these rules are constantly seen and evaluated within the context of trial by jury — despite
the fact that trial by jury no longer exists. Trial by jury in civil and criminal cases was
respectively (and finally) abolished in South Africa in 1927 [31] and 1969. [32] But we have
retained an evidentiary system designed for jury trials. Most of our exclusionary rules — and
even some of our rules pertaining to the evaluation of evidence — can be attributed directly
to trial by jury. It may be said that the jury was perhaps the single most significant factor in
shaping the law of evidence. But the adversarial method of trial, the principle of orality, [33]
the oath, the doctrine of precedent and the so-called best evidence rule [34] collectively
contributed to our present intricate system in terms of which facts should be proved in a
court of law.
The steady decline and gentle disappearance of the jury in South Africa theoretically
opened the door for a more liberal and robust approach with regard to the admission of
evidence normally excluded in a jury trial. But our courts are for various reasons [35] obliged
to follow the so-called strict system of evidence which emphasises the admissibility of
evidence. Developments in our law of evidence have been and are largely brought about by
legislative action, one example being the Law of Evidence Amendment Act 45 of 1988, which
came into operation on 3 October 1988. This Act mainly changed rules relating to hearsay
(see § 13 3 below), judicial notice (see § 27 6 3 below) and the competence and
compellability of spouses (see § 22 11 2 below).
1 4 Procedural and Evidential Systems and Some Universal

Principles of Fact-Finding
There are basically two systems of evidence: the Anglo-American (or so-called strict or
common-law) system and the Continental (or so-called free or civil-law system). The South
African law of evidence belongs to the Anglo-American “family”. Most of the principles of the
Anglo-American law of evidence stem from the English system of adversarial (accusatorial)
trials before a lay jury as opposed to the Continental inquisitorial trials by professional
judges adjudicating without the assistance of a true jury. [36] It can be said that the Anglo-
American procedural method of proving or ascertaining facts in a court of law is based upon
adversarial principles and a strict system of evidence, whereas the Continental method is
based upon inquisitorial principles and a free system of evidence. These procedural and
evidential differences — which should be
Page 9
understood in a broad historical and evolutionary context — really emphasise the simple
truth that there is more than one solution to the problem of fact-finding. [37]
It is probably correct to say that all enlightened and refined procedural and evidential
systems are honest attempts to discover and protect the truth. And in this respect there is
much common ground despite the peculiar historical origins and ideological preferences that
each system might have. Consider the following. First, it is a universal principle that
protection of the truth cannot be sacrificed for the sake of mere simplicity, speed and
convenience. [38] Secondly, presentation of facts and adjudication of disputes must of
necessity proceed in an orderly fashion: a lawsuit is “essentially a proceeding for the orderly
settlement of a dispute between litigants”. [39] Thirdly, resolution of legal disputes must be
done in such a way that reasonable litigants leave court with the feeling that they were
given a proper opportunity to state their respective cases, that their cases were presented in
the best possible light and manner, and, further, that the issues were decided by an
impartial trier. Fourthly, the law of procedure and evidence must at all times maintain a
certain level of efficiency and effectiveness in order to ensure that the rules of substantive
law — however impressive and all-embracing they may be — are not for all practical
purposes relegated to the ranks of unenforceable norms.
The procedural and evidential innovations which the South African legislature has
introduced in respect of small claims courts [40] should be assessed in the light of the above
remarks — as well as the fact that small claims courts are seen as a proper and acceptable
solution to the problem of legal costs which a litigant may encounter in enforcing a modest
civil claim.
1 5 Ordinary Courts and Small Claims Courts: An Examination of

Procedural and Evidential Differences
The fundamental differences which exist between the Anglo-American and Continental
systems can — from a theoretical and practical point of view and within the context of South
African courts — perhaps be best explained by comparing the procedural and evidential
system of our ordinary courts with that which exists in our small claims courts.
South African small claims courts function along inquisitorial lines. Section 26(3) of the
Small Claims Courts Act 61 of 1984 (hereafter “the Act”) provides that a party shall neither
question nor cross-examine any other party to the proceedings (or a witness called by the
latter party). The same section provides that the presiding commissioner “shall proceed
inquisitorially to ascertain the relevant facts, and to that end he may question any party or
witness at any stage
Page 10
of the proceedings”. But there is a proviso in terms of which the presiding commissioner may
in his discretion permit any party to put a question to any other party or any witness. [41]
The procedure in our ordinary courts is totally different. [42]
South African small claims courts are not bound by the ordinary Anglo-South African rules
of evidence. They are not required to follow the strict system of evidence which is applied in
the ordinary South African courts and which can also be referred to as the Anglo-American
or common-law system. Section 26(1) of the Act provides that — subject to the provisions of
chapter 5 of the Act — the rules of the law of evidence shall not apply in respect of the
proceedings in a small claims court and that such a court “may ascertain any relevant fact in
such manner as it may deem fit”.
The adoption of an inquisitorial procedure and a free system of evidence in small claims
courts might appear to be far-reaching and even somewhat radical — especially to the South
African lawyer who is, in a procedural context, steeped in Anglo-American tradition, practice,
rules and principles. But the procedural measures taken by the legislature in respect of small
claims courts should be seen in the light of the peculiar characteristics and unique nature
and purpose of small claims courts, namely accessibility and the promotion of procedural
simplicity.
Legal representation is not permitted in small claims courts. [43] There are various valid
reasons for such exclusion. [44] For purposes of the present discussion, it is necessary only to
refer to the following remarks and conclusions of the Hoexter Commission: [45]
(a) Legal representation “must inevitably tend to infuse into the proceedings that air of
formality and technicality which is fundamentally alien to the real spirit of small claims
procedures”. [46]
(b) One of the most obvious objections to legal representation “is the increased cost to
the litigants . . . This is the very problem which small claims courts were designed to
solve”. [47]
(c) If “the adjudicator maintains an actively inquisitorial role in the proceedings, the
absence of legal representation results in an easier and speedier fact-finding
process”. [48]
It is fairly evident from the above that procedural innovations were necessary in order to
attain and maintain the advantages of small claims courts. And in principle there is certainly
nothing wrong with or sinister in procedural innovations which are brought about to meet
new and valid demands. After all,
Page 11
small claims courts were created for the benefit of the public and the procedure in small
claims courts had to be structured accordingly: “Die prosesreg dien die gemeenskap — nie
die omgekeerde nie.” [49] Other countries have taken similar steps in order to establish the
viability and accessibility of small claims courts. For example, the New York small claims
courts — which were established in 1918 — dispensed with traditional rules of practice,
procedure, pleading and evidence and accepted the principle that decisions could be made
with the aid of an informal fact-finding process. [50]
1 5 1 Small claims courts and the inquisitorial procedure and free

system of evidence
In the Anglo-American world small claims courts have forced the adjudicator into a new
procedural role. As early as 1913 Pound concluded that the adjudicator in a small claims
court should not be a mere umpire, but should represent “both parties and the law” while
actively seeking the truth largely if not wholly unaided. [51] The Hoexter Commission took a
similar view. The success or failure of the small claims courts largely depends on whether
the commissioners, who are all trained in the tradition of the adversary system, are able to
handle the inquisitorial characteristics of the small claims courts satisfactorily. And in this
context it should also be borne in mind that the strict system of evidence is — historically
and practically speaking — a concomitant of the adversarial model of fact-finding. The free
system of evidence is to a large extent also a necessary novelty to the commissioner in a
small claims court. A free system of evidence promotes procedural simplicity and avoids that
air of procedural formality and sophistication which can create psychological barriers for
litigants. Involved rules of evidence — and these are the true features of the strict system of
evidence — make a trial “more complicated than is necessary, and . . . might well cause a
gap between the courts and the people, and this will not increase faith in the administration
of justice”. [52] The principles of a free system of evidence are dealt with in greater detail in
§ 1 5 3 below.
1 5 2 Accusatorial versus inquisitorial procedure [53]

The accusatorial (adversarial) trial procedure — which finds its symbolic roots in the early
ritual of trial by battle — has three leading features: the parties are in principle responsible
for the presentation of evidence in support of their respective cases; the adjudicator is
required to play a passive role; and much emphasis is placed upon oral presentation of
evidence and cross-examination of witnesses. The adversarial model proceeds from the
premises that greater approximation of the truth is possible if litigants are allowed to present
their own evidence in a process which guarantees not only cross-examination of an opponent
who
Page 12
testifies but also all witnesses called by such opponent. This explains the emphasis upon
“orality”. And cross-examination — which has been referred to as “the greatest legal engine
ever invented for the discovery of truth” [54] — is a vital procedural right in a system which
makes it technically possible for a party to present only evidence which is favourable to his
case. The right of parties to cross-examine explains why the adversarial trial model can to
some extent afford and maintain the relative inactivity of the adjudicator.
But the adversarial trial system certainly is not beyond criticism. First, it “presupposes for
success some equality between the parties; when this is lacking the ‘truth’ becomes too
often simply the view of the powerful”. [55] Secondly, its very essence — the notion of
opponents engaged in a forensic duel — can generate unnecessary conflict which is not
necessarily conducive to the resolution or settlement of a dispute. Thirdly, much of the
outcome of a case depends upon the ability, wit, energy, ruthlessness and even permissible
rudeness which the cross-examiner might display. Fourthly, the “selfish” and partial [56]
manner in which parties are allowed to present evidence and the fact that the adjudicator
may only in limited circumstances call witnesses may inevitably lead to a situation where the
“procedural” or “formal truth” can be promoted at the expense of the “material truth”. Brett
makes the following remarks in respect of the adversarial method of fact-finding: [57]
“. . . [O]bserve the practice of scientists and historians in carrying out their investigations . . .
[A] lengthy search will fail to reveal one competent practitioner in either discipline who will willingly
and in advance confine himself, in deciding any question involving factual data, to a choice between
two sets of existing data proffered to him by rival claimants. In short, the inquisitorial method is the
one used by every genuine seeker of the truth in every walk of life (not merely scientific and historical
investigations) with only one exception the trial system in the common-law world.”
In contradistinction to the adversarial model, the inquisitorial model is judge-centred. It
proceeds from the premises that a trial is not a contest between two opposing parties but
essentially an inquiry to establish the material truth. Judicial examination is accepted as the
pivotal mechanism in the process of fact-finding. The emphasis is upon an inquiry conducted
with the aid of such evidence as the inquirer deems fit. The absence of a right to cross-
examine also explains why the inquisitorial procedure puts the written word — as a means of
receiving evidence — to greater use than the adversarial system. The commissioner in the
small claims court may in his discretion receive written or oral evidence, [58] and may
actively call for such evidence.
Devlin remarks as follows: [59]
“The essential difference between the [adversarial and inquisitorial] systems . . . is apparent from
their names: the one is a trial of strength and the other is an inquiry. The
Page 13
question in the first is: are the shoulders of the party upon whom is laid the burden of proof . . .
strong enough to carry and discharge it? In the second the question is: what is the truth of the
matter? In the first the judge or jury are arbiters; they do not pose questions and seek answers; they
weigh such material as is put before them, but they have no responsibility for seeing that it is
complete. In the second the judge is in charge of the inquiry from the start; he will of course permit
the parties to make out their cases and may rely on them to do so, but it is for him to say what it is
that he wants to know.”
And Devlin continues: [60]
“The English say that the best way of getting at the truth is to have each party dig for the facts that
help it; between them they will bring all to light. The inquisitor works on his own but has in the end to
say who wins and who loses. Lord Denning denies that the English judge is ‘a mere umpire’ and says
that ‘his object’ above all, is to find out the truth’. The real difference is, I think, that in the adversary
system the judge in his quest for the truth is restricted to the material presented by the parties while
in the inquisitorial system the judge can find out what he wants to know. Put in a nutshell, the arbiter
is confined and the inquisitor is not.”
It may be said — at the risk of over-simplification — that the inquisitorial procedure is a
natural system of fact-finding in the sense that it dispenses with technical rules and is
applied in our everyday activities. For example, a father inquiring into a dispute between his
children acts inquisitorially in the sense that he will not merely rely upon information which
the “parties” are prepared to submit; nor, for that matter, will he follow or adopt evidential
rules which tell him in advance that he may not even receive certain “evidence”.
Bentham (1748-1832) considered this “domestic or natural system” an acceptable “mode
of searching out the truth”; [61] and he accepted the “domestic forum” as the most nearly
perfect tribunal, [62] providing some basic scale model in terms of which English procedural
law could be recast. Were it not for the fact that Bentham has been trapped for more than a
century and a half in a state of mummification in a glass case at the University College of
London, [63] he probably would have taken great delight in observing a commissioner at work
in a modern small claims court. “Hear” said Bentham “everybody who is likely to know
anything about the matter, hear everybody but most attentively of all, and first of all those
who are most likely to know most about it — that is the parties”. [64] His approach to the law
of evidence was also founded upon the hypothesis that the tribunal possesses the ability to
weigh the various kinds of evidence even where the tribunal consists of judge and jury. [65] It
has rightly been said that the changes which he had advocated would have brought English
procedure and evidence closer to the Continental practice. [66]
Page 14
1 5 3 Strict versus free system of evidence [67]
The strict system of evidence is to a large extent a concomitant of the adversarial system,
whereas the inquisitorial trial is generally accompanied by a free system of evidence. This
almost universal phenomenon can be explained on the basis that those countries which
never experienced an extensive period of lay participation in the adjudication of disputes
developed and accepted the idea of adjudication by a professional or “career” adjudicator
who should not — and need not — be hampered by artificial rules relating to the exclusion of
evidence. [68] The central idea was and still is that in the adjudication of facts a professional
judge need not be guided by rules of admissibility: the true issue in the process of
adjudication is not one of admissibility, but weight; and the determination of weight is
something which can and must be left to the professional judge. Sanders explains as
follows: [69]
“Related to the inquisitorial method of procedure and the concomitant emphasis on utility is the
principle of the free evaluation of evidence. Except for matters of privilege and personal incompetence
to testify on grounds such as kinship, tender age or prior felony convictions, the civil law
acknowledges no exclusionary rules of evidence, particularly no hearsay or opinion rule. In the eyes of
civil lawyers most of the grounds which under the common law serve to preclude the admission of
evidence merely affect the weight to be attached to a particular item of evidence, which, according to
them, should be a matter for the judge’s free evaluation.”
To the Anglo-American lawyer admissibility is largely a matter of law, whilst weight is a
question of fact. But even in this context the Anglo-American approach is to make
admissibility dependent upon the potential weight of the evidence. [70]
Seen from this angle, it is but a small step for an Anglo-American lawyer or any other
lawyer to disregard the first question (admissibility) and answer only the second and final
one (weight). It may be argued that in small claims courts the general absence of formal
preliminary findings as regards the admissibility of evidence might lead to a proliferation of
evidence and a multiplicity of collateral issues. But it should be borne in mind that a
commissioner in a small claims court “shall proceed inquisitorially to ascertain the relevant
facts”. [71] It is upon this basis that he controls the volume of evidence and not upon the
basis
Page 15
of artificial rules originally designed for jury trials, where it was feared that the evidence in
dispute might distract or mislead the jury. Obviously, in both free and strict systems the
adjudicators should always bear in mind that it “is one thing to say that a factor is relevant
and an entirely different thing to say that it is cogent or persuasive”. [72]
The discretionary admission of hearsay in small claims courts apparently does not present
any problems. In a paper delivered at the South African Law Conference in 1970 Mr Justice
H C Nicholas remarked as follows with reference to the hearsay rule as it was then applied in
our ordinary courts: [73]
“In South Africa, jury trials in civil cases were finally abolished many years ago. With the
disappearance of the occasion for the hearsay rule, what necessity remains for its retention? The
strongest reason which can be advanced is that hearsay evidence may be unreliable. That, however,
is an objection which goes only to the weight of the evidence, which is a matter which can and should
be determined by the Court. What advantage has a rule of exclusion, subject to certain arbitrary
exceptions none of which have as their basis any real guarantee of the truth, over a rule of inclusion,
which would admit all relevant evidence, and leave the assessment of its value to the Court? The
answer is plainly that there is no advantage discernible.”
The area of acute conflict between strict and free systems of evidence relates to hearsay.
Continental countries, which never experienced an extensive period of lay participation in
the form of a jury in the adjudication of disputes, see no reason for the general exclusion of
hearsay.
Anglo-American lawyers generally take great pride in their procedural and evidential
system, and rightly so. But at the same time it would certainly be arrogant to look upon the
combination of an inquisitorial procedure and a free system of evidence as an inferior fact-
finding mechanism, especially in the context of small claims courts and in view of the fact
that the “functional test to which all procedural rules should be subjected is their practical
efficiency in providing machinery for the prompt and reasonably cheap settlement of
disputes on lines that do justice to both parties”. [74]
1 6 Jurors and Assessors: Some Brief Comparative Remarks

In § 1 3 3 above it was pointed out that trial by jury has been abolished in South Africa. We
have, nevertheless, retained the essential structure of a system designed for trial by jury.
This can perhaps be justified in view of the increased use of lay assessors in lower courts. [75]
Assessors [76] in lower courts [77] and in the
Page 16
High Court [78] can to some extent be compared with jurors [79] as they are all finders of fact
and do not decide legal issues. [80] But our system of adjudication differs materially from trial
by jury. The role of jurors can briefly be summarised as follows: jurors are lay people and
sole finders of fact. They listen to the evidence and hear arguments, and they receive a
summing-up and instructions from the presiding judicial officer. They are then called upon in
their capacity as sole finders of fact to consider and reach their verdict in the absence of the
presiding judicial officer. And they are not required to advance reasons in support of their
verdict. But in our system the judge or magistrate is at all times either a sole finder of fact
or, where assessors are involved, a co-finder of fact. [81] A judge must give reasons for his
verdict. [82] Magistrates almost invariably do give reasons for their verdict [83] and are at any
rate legally required to do so. [84] It is true that the function of assessors can be compared
with the function of jurors, because the function of assessors is — with one exception [85] —
also limited to fact-finding. But assessors — unlike a jury — must give reasons for their
verdict. [86] They either agree or disagree with the presiding judicial officer’s reasons and
finding, and in the event of a disagreement must furnish their own reasons in a separate
judgment which is read out in court by the presiding judicial officer. And assessors — unlike
jurors — are under constant and immediate judicial guidance in the sense that a judge (or
magistrate) and the assessors involved in the trial have joint deliberations in reaching their
respective verdicts. During these deliberations the presiding judicial officer can and must
draw the attention of lay assessors to certain rules which govern the evaluation of evidence.
It has been suggested [87] that our law of evidence can with ease accommodate lay
persons as finders of fact because the basic infrastructure exists, namely, the concentrated
trial, [88] the principle of orality [89] and the use of exclusionary
Page 17
rules, like rules which exclude evidence of the bad character of the accused. [90] However, a
presiding judicial officer should ensure that his lay assessors grasp “the fundamentals of
analysis of evidence”, [91] for example, the cautionary rule in respect of a single witness [92]
and the fact that proof beyond reasonable doubt — and not proof on a balance of probability
— is the standard of proof which the prosecution must satisfy for purposes of a
conviction. [93] In S v Gambushe Hurt J, having noted that lay assessors may be of
considerable assistance in the sentencing enquiry, said the following: “[I]t is by no means
clear that, in the average situation, [lay assessors] will be able to give the presiding officer
any real assistance in reaching a decision as to the guilt or innocence of an accused
person”. [94] In S v Maphanga Labe J was less pessimistic. [95] According to Seekings &
Murray there is “no reason to think that lay assessors do not enrich the administration of
justice”. [96] The Constitutional Court has stressed the importance of ensuring that there is
no reasonable apprehension of bias on the part of assessors. [97]
1 7 Rules of Evidence in Criminal and Civil Proceedings

This work is confined to the law of evidence as applied in criminal and civil proceedings. It
will be noted that the “law of criminal evidence is much more extensive than the law of civil
evidence”. [98] There are numerous common-law, statutory and constitutional provisions
which seek to protect accused persons from wrongful convictions and which seek to maintain
a balance between the state (the prosecution) and the individual. The result is that there are
also certain key areas where there are major differences between rules of evidence in
criminal as opposed to civil proceedings. The most obvious difference is the standard of
proof: the requirement in criminal cases “that guilt be proved beyond a reasonable doubt
signals the seriousness of criminal convictions”. [99]
Page 18
In civil cases the party bearing the burden of proof need only prove his case on a balance of
probability (see § 32 7 below). A court will also more readily, in terms of its discretion
embodied in s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, admit hearsay for
purposes of civil proceedings as opposed to criminal proceedings (see § 13 7 1 below). A
further major difference between criminal and civil proceedings, relates to the rules which
govern the competence and compellability of witnesses, including the parties (see
§§ 22 9, 22 11 1 and 22 11 2 below).
The strict rules of evidence may also be relaxed according to the nature and purpose of
the specific proceedings and issues. [100] All the strict rules of evidence which apply in a
criminal trial for purposes of determining the merits (ie, the question whether the accused
must be acquitted or convicted), do not necessarily apply once the accused has been
convicted and the stage is reached where evidence (information) is required for purposes of
determining an appropriate sentence. Circumstances will dictate the extent to which the
formal rules of evidence should be adhered to or relaxed, [101] but the accused may in no
circumstances be deprived of his constitutional right to a fair trial. [102] The same approach
applies to a bail application: a free system of evidence may be followed [103] provided the bail
applicant is not deprived of a fair bail hearing. Hearsay evidence, [104] opinion evidence [105]
and character evidence [106] are generally freely admitted in bail proceedings. In bail
proceedings guilt or innocence is normally not the central issue. Liberty pending the final
outcome of the trial or appeal, is the issue. [107]
[1] Tapper Cross & Tapper on Evidence 12 ed (2010) 1.

[2] S v Thomo and Others 1969 (1) SA 385 (A) 394C-D (emphasis added): “It is of importance first to determine
what conduct was established . . . Having thus determined the proper factual basis, the court can then proceed to
consider what crime (if any) has [been] committed. The former enquiry is one of fact, the latter essentially one of
law.” The student of the law of evidence will soon notice that the “factual basis” required for purposes of applying the
relevant rules of substantive law, is not the equivalent of the absolute (or material) truth. The “factual basis” really
refers to the procedural (or formal) truth, namely the truth that can be established to the extent permitted by
principles, rules and fair trial norms which are not always aimed at promoting reliable factual outcomes. Pursuit of
the truth remains subject to other values. See, eg, chs 10, 11 and 12 below. Furthermore, the applicable standards
of proof (beyond reasonable doubt in a criminal case and on a balance of probability in a civil case) also indicate that
proof of the absolute truth is not required to attain success. See chs 31 and 32. It should also be appreciated that
insistence on proof of the absolute truth, would be wholly impractical given the realities of life. In conducting a case,
lawyers and litigants have to cope with a variety of possible problems, ranging from dishonest or biased or honest
but mistaken witnesses to lost or destroyed or fabricated evidence.
[3] See ch 4 below.
[4] See generally Botes v Van Deventer 1966 (3) SA 182 (A) 197. This case is discussed in § 16 4 below.
[5] See ch 3 below.
[6] See generally Esmein (transl by Simpson) A History of Continental Criminal Procedure with Special Reference
to France: Continental Legal History Series vol V (1968) 617-9; Joubert 1982 TSAR 261.
[7] See generally Nokes An Introduction to Evidence 4 ed (1967) 18; Thayer A Preliminary Treatise on Evidence at
the Common Law (1898) 24-34, 67 and 81; Elton (ed) The Law Courts of Medieval England (1972) 25; Plucknett A
Concise History of the Common Law (1956) 113-18; Kempin Historical Introduction to Anglo-American Law (1973)
54-7; Devlin Trial by Jury (1978) 6-7; Wakeling Corroboration in Canadian Law (1977) 8-9; Levy Origins of the Fifth
Amendment: The Right against Self-incrimination (1968) 5-7.
[8] Diamond Primitive Law Past and Present (1971) 47, 297-312, 318, 386-7 and 390-1; Langbein Torture and the
Law of Proof (1977) 6; Esmein (transl by Simpson) A History of Continental Criminal Procedure with Special
Reference to France: Continental Legal History Series vol V (1968) 618; Hartland Primitive Law (1924) 191.
[9] Stein Legal Institutions: The Development of Dispute Settlement (1984) 25: “[I]n an age of faith, when there
is a general belief in the direct intervention of divine providence in human affairs, it is not irrational to think that God
knows what happened better than any human and that He will indicate which party was in the right.”
[10] Nokes An Introduction to Evidence 4 ed (1967) 18. However, cf Schwikkard Presumption of Innocence (1999)
2.
[11] Forsyth (transl by Morgan) History of Trial by Jury (1878) 68. See also § 30 2 below.
[12] Damaska “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure” 1973 121
U Pennsylvania LR 556 n110: “By irrational I mean procedural devices such as trial by ordeal, which rests on
religious imaginings, especially the belief that the deity can be summoned to intervene in the screening of the guilty
from the innocent.”
[13] Wigmore para 8.
[14] Paton & Derham A Text-book of Jurisprudence (1972) 597.
[15] See also § 30 4 below.
[16] Holdsworth in Goodhart & Hanbury (eds) A History of English Law vol 1 (1956) 308.
[17] Re “Oral v Written Evidence: The Myth of the Impressive Witness” 1983 57 Australian LR 679; Van der Merwe
1997 Stell LR 348 349.
[18] Van der Merwe 1991 Stell LR 281 290.
[19] See ch 13 below.
[20] Van Caenegem in Kuttner & Ryan (eds) Proceedings of the Second International Congress of Medieval Canon
Law: Boston College 12-16 August 1963: Monumenta Juris Canonic Series C vol 1 (1965) 304.
[21] Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 37; Kempin Historical Introduction to
Anglo-American Law (1973) 55.
[22] Langbein Torture and the Law of Proof (1977) 6.
[23] Forsyth (transl by Morgan) History of Trial by Jury (1878) 63 gives an example of the use of compurgators.
Accused A had to take the following oath: “By the Lord, I am guiltless, both in deed and counsel of the charge which
B accuses me.” The compurgators then had to reply: “By the Lord, the oath is clear and unperjured which A has
sworn.” See further § 25 3 below.
[24] Best A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law (1849) para
55.
[25] S v Munn 1973 (3) SA 734 (NC) 736H. See also generally S v Bothma 1971 (1) SA 332 (C) and S v Ndlela
1984 (1) SA 223 (N). See further s 162 of the CPA (as read with s 163) and s 39 of the CPEA (as read with ss 40 and
41).
[26] See Kahn 1991 SALJ 672 and 1992 SALJ 87, 307 and 666 and 1993 SALJ 322 for a general discussion and
evaluation of the jury system, as well as the history of the jury in South Africa. See also generally De Vos 2008 TSAR
196. Eggleston Evidence, Proof and Probability (1978) 5 has pointed out that much of the “pecularity of the English
law of evidence is due to the existence of the jury system and to the adversary nature of English legal proceedings”.
This forms the essential backdrop to our system in South Africa. See § 1 6 below.
[27] White “Origin and Development of Trial by Jury” 1961 29 Tennessee LR 8 15.
[28] Bushell’s Case 124 ER 1006 1009.
[29] Forkosch “The Nature of Legal Evidence” 1971 59 California LR 1356 1373.
[30] Nokes An Introduction to the Law of Evidence 4 ed (1967) 35. See further § 1 6 below as regards the function
of assessors in our system of adjudication.
[31] Section 3 of the Administration of Justice (Further Amendment) Act 11 of 1927.
[32] Abolition of Juries Act 34 of 1969.
[33] Van der Merwe 1991 Stell LR 281. See also § 24 1 below.
[34] The so-called best evidence rule is currently only of importance as regards documentary evidence. See § 20 3
below.
[36] Heydon Evidence: Cases and Materials 3 ed (1991) 3. Most of the rest of this chapter is based on an article
previously published by Van der Merwe 1985 De Rebus 445-51.
[37] Van der Merwe “Accusatorial and Inquisitorial Procedures and Restricted and Free Systems of Evidence” in
Sanders (ed) Southern Africa in Need of Law Reform (1981) 141.
[38] Mueller & Le Poole-Griffiths Comparative Criminal Procedure (1969) 50.
[39] Morgan “Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence” 1943 10 Univ of
Chicago LR 285.
[40] See the Small Claims Courts Act 61 of 1984 (especially ss 26, 27 and 28).
[41] See the proviso to s 26(3) of Act 61 of 1984.
[43] Section 7(2) of Act 61 of 1984.
[44] See generally Ervine “Small Claims: The Central Research Unit Report and Beyond” 1984 Journal of the Law
Society of Scotland 66 68.
[45] Hoexter JA was the chairman of the Commission of Inquiry into the Structure and Functioning of the Courts
(hereinafter referred to as the “Hoexter Commission”).
[46] Paragraph 13 11 of the 4th interim report (RP 52/1982) of the Hoexter Commission.
[49] Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 8.
[50] Purdum “The Early History of Small Claims Courts” 1981 65 Judicature: The Journal of the American
Judicature Society 31 32.
[51] Pound “The Administration of Justice in the Modern City” 1913 26 Harvard LR 302 319.
[52] Den Hollander 1975 Acta Juridica 332 349.
[53] See McEwan Evidence and the Adversarial Process The Modern Law 2 ed (1998) 1-30 and the sources
referred to by Van der Merwe in 1991 Stell LR 281 284 n 18.
[55] Delisle Evidence: Principles and Problems (1984) 2.
[56] Frank Courts on Trial (1949) 85.
[57] Brett “Legal Decision Making and Bias: A Critique of an Experiment” 1973 45 Univ of Colorado LR 1 23.
[58] Section 26(2) of Act 61 of 1984.
[59] Devlin The Judge (1979) 54.
[60] Devlin The Judge (1979) 54.
[61] Hart Essays on Bentham: Jurisprudence and Political Theory (1982) 31-2.
[62] Keeton & Marshall “Bentham’s Influence on the Law of Evidence” in Keeton & Shwarzenberger (eds) Jeremy
Bentham and the Law: A Symposium (1948, reprint 1970) 86-7.
[63] Van der Westhuizen 1982 DR 477 478.
[64] Quoted by Hart Essays on Bentham: Jurisprudence and Political Theory 32.
[65] Further theories of Bentham are discussed by Twining Theories of Evidence: Bentham and Wigmore (1985)
19-100.
[66] Keeton & Marshall “Bentham’s Influence on the Law of Evidence” in Keeton & Schwarzenberger (eds) Jeremy
Bentham and the Law: A Symposium 86.
[67] See generally Van der Merwe “Accusatorial and Inquisitorial Procedures and Restricted and Free Systems of
Evidence” in Sanders (ed) Southern Africa in Need of Law Reform (1981) 141 144-6.
[68] See generally Capelletti & Perillo Civil Procedure in Italy (1965) 189. Many continental courts were originally
bound by strict rules which regulated the evaluation of evidence. See generally Millar Civil Procedure of the Trial
Court in Historical Perspective (1964) 22-3. These rules largely consisted of presumptions which were supposed to
furnish “half proof” (semi probatio) or “full proof” (plena probatio). According to Kralik Introduction to the
Continental Judicial Organization and Civil Procedure (1963) 8, the acceptance of a free system of evidence was a
reaction to these strict rules. At 6-7 it is stated: “The principle of free . . . evaluation of evidence means that the
court is not fettered by any formal rules of evidence . . . Behind this principle is a familiar history of dissatisfaction
with a system of weighing evidence by artificial scales and tables . . . So the principle of free appreciation of
evidence is now one of the most characteristic aspects of modern continental procedure. As compared with English
and American law, continental law is less strict in regard to the admissibility of evidence and the procedure of
prooftaking . . .” See further Van der Merwe 1991 Stell LR 281 294.
[69] Sanders 1981 CILSA 196 206-7.
[70] See § 5 3 2 below.
[71] Section 26(3) of Act 61 of 1984.
[72] S v Fourie 1973 (1) SA 100 (D) 102H-103A.
[73] See the addendum to the report (RP 78/1971) of the Commission of Inquiry into Criminal Procedure and
Evidence 46.
[74] Paton & Derham A Text-book of Jurisprudence (1972) 593.
[75] See generally Van der Merwe 1991 Stell LR 281 306.
[76] On assessors, see generally Richings “Assessors in South African Criminal Trials” 1976 Crim LR 107; Van Zyl
Smit & Isakow 1985 SAJHR 218; Van Zyl Smit 1979 SALJ 173 and 1984 SALJ 212; Swanepoel 1990 SACJ 174;
Watney 1992 THHR 465.
[77] See s 93ter of the Magistrates’ Courts Act 32 of 1944 and Watney 1992 THRHR 465. See also generally
Seekings & Murray Lay Assessors in South African Magistrates’ Courts (1998) 50.
[78] See s 145 of the CPA and Bekker “Assessore in Suid-Afrikaanse Strafsake” in Strauss (ed) Huldigings-bundel
vir W A Joubert (1988) 32.
[79] R v Solomons 1959 (2) SA 352 (A) 363-4. In S v Gambushe 1997 (1) SACR 638 (N) 643b lay assessors in
Magistrates’ Courts were referred to as “a sort of ‘mini-jury’.” See also S v Maphanga 2001 (2) SACR 371 (W) 374b.
[80] Two assessors can overrule a judge or magistrate on the facts.
[81] See generally s 145(4)(a) of the CPA and s 93ter(3)(e) of the Magistrates’ Courts Act 32 of 1944.
[82] See s 146(b) of the CPA; S v Maake 2011 (1) SACR 263 (SCA) at [24]. The requirement that courts should
furnish reasons, seeks to ensure that decisions are based on rational grounds. See S v Mokela 2012 (1) SACR 431
(SCA) at [12] and Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC) at [15].
[83] See generally Ferreira Strafproses in die Laer Howe 2 ed (1979) 500.
[84] See generally S v Adams 2001 (1) SACR 59 (C). See also s 93ter(3)(c) to (e) of the Magistrates’ Courts Act
32 of 1944; S v Molawa; S v Mpengesi 2011 (1) SACR 350 (GSJ) at [12]-[14]. The furnishing of reasons in support
of a verdict, is dealt with in greater detail in § 30 13 below.
[85] See s 93ter(1)(b) of the Magistrates’ Courts Act 32 of 1944.
[86] See s 146(d) of the CPA and s 93ter(3)(e) of the Magistrates’ Courts Act 32 of 1944.
[87] Van der Merwe 1991 Stell LR 281 306-7.
[88] See generally Erasmus 1990 Stell LR 348 355; Kötz 1987 TSAR 35 40.
[89] Dennis The Law of Evidence 3 ed (2007) 16 describes this principle as follows: “The principle of orality is the
principle that evidence on disputed questions of fact should be given by witnesses called before the court to give oral
testimony of matters within their own knowledge. Historically the principle is intimately connected with the
importance attached by the common law to the oath, to the demeanour of the witness, and to cross-examination as
guarantees of reliability. Oral testimony from witnesses physically present before the court also helps to legitimize
the adjudication in other ways. It reinforces the drama and solemnity of the occasion, and it allows for maximum
participation in decision-making in the sense that parties can confront their accusers and challenge the evidence
against them in the most direct way possible by cross-examination. In the United States parties have constitutional
rights, guaranteed by the Sixth Amendment, to confrontation and cross-examination of witnesses.” See also s 35(3)
(i) of the Constitution of the Republic of South Africa. See further the discussion of S v Ndhlovu and Others 2002 (2)
SACR 325 (SCA) in § 13 7 6 below, as well as the discussion in § 18 1 below where reference is made to S v
Adendorff 2004 (2) SACR 185 (SCA).
[90] See § 1 3 3 above.
[91] S v Gambushe supra 645b-c.
[92] S v Gambushe supra 644a. See further § 30 11 4 below.
[93] See generally S v Gambushe supra 642c. See further §§ 31 6 and 32 7 below.
[94] S v Gambushe supra 643h.
[95] 2001 (2) SACR 371 (W) 373d.
[96] Lay Assessors in South Africa’s Magistrates’ Court: Issues in Law, Race and Gender vol 6 (1998) 192.
[97] S v Jaipal 2005 (1) SACR 215 (CC).
[98] Dennis The Law of Evidence 17.
[99] Schwikkard Presumption of Innocence 15. In S v Baloyi 2000 (1) SACR 81 (CC) Sachs J also said at [15]:
“The requirement that the State must prove guilt beyond a reasonable doubt has been called the golden thread
running through the criminal law, and a prime instrument for reducing the risk of convictions based on factual error.”
See also generally Magmoed v Janse Van Rensburg and Others 1993 (1) SACR 67 (A), where Corbett CJ referred to
the “general policy of concern for an accused person in a criminal trial” (at 100j) and the rule that there can be no
conviction in the absence of proof beyond reasonable doubt furnished by the prosecution (at 101a).
[100] The small claims courts are a statutory example. See § 1 5 above. Application of the rules of evidence in
arbitration proceedings, is discussed by Butler & Smith in LAWSA vol 1 at para 586. See also Whitear-Nel 2012 Stell
LR 241.
[101] For an extensive and critical discussion of rules of evidence in the presentation of evidence or other
information for purposes of sentencing, see Terblanche The Guide to Sentencing in South Africa 2 ed (2007) 96-103.
[102] It should be noted, eg, that the accused’s right under s 35(3)(h) of the Constitution to remain silent and not
to testify during the proceedings, applies to the sentencing stage as well. See S v Dzukuda and Others; S v Tshilo
2000 (2) SACR 443 (CC) at [40].
[103] S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) at [11]. See also
generally Van der Merwe in Du Toit et al Commentary 9-60 as well as Hendriks Die Aard van Borgverrigtinge met
Spesifieke Verwysing na die Toepassing van die Reëls van die Bewysreg op Sodanige Verrigtinge (unpubl LLM thesis,
Univ of Stellenbosch, 2004) 31-62.
[104] S v De Kock 1995 (1) SACR 299 (T) 310e. Although hearsay is admissible in bail applications, it will often
carry less weight than the testimony of persons who had personal knowledge of the events. See S v Tshabalala 1998
(2) SACR 259 (C) 265g. The difference between admissibility and weight is explained in § 2 7 below.
[105] S v Hlongwa 1979 (4) SA 112 (D) 113H-114A. For valid qualifications and criticisms of this rule, see S v
Lukas 1991 (2) SACR 429 (E) 437b-c and Van der Berg Bail A Practitioner’s Guide 2 ed (2001) 83.
[106] S v Patel 1970 (3) SA 565 (W) 566B-C.
[107] S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra at [11].
Page 19
Chapter 2
Basic Concepts and Distinctions
S E van der Merwe
2 1 Introduction
2 2 Facts in Issue and Facts Relevant to the Facts in Issue
2 3 Evidence and Argument
2 4 Evidence and Probative Material
2 5 Evidence and Proof
2 6 Conclusive Proof and Prima Facie Proof
2 7 Admissibility and Weight of Evidence
2 8 Conditional Admissibility
2 9 Circumstantial and Direct Evidence
2 11 Hearsay
2 12 Relevance
2 13 Privilege
2 15 Confessions
2 17 Presumptions
2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the Burden of Rebuttal
(Evidential Burden, “Weerleggingslas”)
2 1 Introduction
This chapter is of a preliminary nature. Most of the concepts identified or explained here, will
be encountered again in the rest of this work.
2 2 Facts in Issue and Facts Relevant to the Facts in Issue

The facts in issue (facta probanda) are those facts which a party must prove in order to
succeed; the facts relevant [1] to the facts in issue (facta probantia) are those facts which
tend to prove or disprove the facts in issue. For example, in a paternity case the identity of
the father will be a factum probandum [2] (ie, a fact in issue); sexual intercourse with the
alleged father will be a factum probans [3] (ie, a fact relevant to the fact in issue). Schmidt &
Rademeyer make a further distinction between primary and secondary facta probanda. [4]
According to them, primary facta probanda would refer to those facts placed in issue by the
pleadings (in civil proceedings) and the plea (in criminal proceedings). Secondary facta
probanda would refer to facta probantia which are in issue; for
| Page 20
example, in a paternity suit it may be disputed that sexual intercourse took place at the
material time. This is then a factum probans which is in dispute.
The facts in issue are, generally speaking, determined by substantive law, whereas the
rules of procedure — and in particular the law of evidence — determine the facts relevant to
the facts in issue.
In both criminal and civil matters the number of facts in issue at the initial stage of the
case may be reduced by means of formal admissions. [5] For example, where an accused is
charged with murder it is necessary for the state to prove that the accused unlawfully and
intentionally killed another person. Substantive law requires that these elements must be
proved. During his explanation of plea in terms of s 115 of the CPA the accused may,
however, admit that he killed a human being. At the same time he may dispute that the
killing was unlawful. He may, for example, claim that the killing was justified by reason of
self-defence. The fact that the accused killed the deceased may (with the consent of the
accused) be recorded as a formal admission. [6] The state need then prove only
unlawfulness. In this way the rules of procedure and substantive law determine the facts in
issue.
2 3 Evidence and Argument

The meaning of evidence is discussed in §§ 2 4 and 2 5 below. Argument (“betoog”) is not
presented through evidence, but is merely persuasive comment made by the parties or their
legal representatives with regard to questions of fact or law. Before judgment is delivered
the parties or their legal representatives have, for example, a right to address the court on
the cogency (or otherwise) of the evidence received during the course of the trial. Their
comment, however, does not amount to evidence. During the course of a trial parties also
have the right to object to and deliver argument with regard to the admissibility of certain
evidence. The court is then required to make a ruling on the issue of admissibility. But here,
too, the comments of the parties do not constitute evidence.
2 4 Evidence and Probative Material

There is a distinction between evidence (“getuienis”) and probative material
(“bewysmateriaal”). Our courts are not entirely consistent in distinguishing between the
two. [7] What follows is a simplified overview. “Evidence” essentially consists of oral
statements made in court under oath or affirmation or warning (oral evidence). [8] But it also
includes documents (documentary evidence) [9] and objects (real evidence) [10] produced and
received in court.
Page 21
Evidence, however, is not the only means of furnishing proof. In S v Mjoli and Another [11]
it was pointed out that even though an accused’s admission made during the explanation of
plea in terms of s 115 of the CPA is not evidence by the accused, it still is “probative
material” and there is therefore no impediment in the way of a trial court to use against the
accused material furnished during such procedure. An explanation of plea is not given under
oath or affirmation or warning and therefore cannot be classified as evidence. [12]
In S v Mokgeledi [13] it was held that formal admissions do not constitute evidence. Formal
admissions dispense with the need to adduce evidence to prove facts in issue, and must be
classified as probative material. Judicial notice, [14] similarly, cannot be classified as evidence
(see also § 2 16 below).
In S v A R Wholesalers (Pty) Ltd and Another [15] it was confirmed that presumptions [16]
also do not constitute evidence (see further § 2 17 below).

It is submitted that the term “probative material” is a convenient term to include not only
oral, documentary and real evidence but also formal admissions, judicial notice,
presumptions and — in terms of Mjoli (supra) — also those statements made in terms of
s 115 of the CPA and which do not amount to formal admissions. Probative material
therefore refers to more than oral, documentary and real evidence.
2 5 Evidence and Proof [17]
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 of a
fact is not yet proof of such fact: the court must still decide whether or not such fact has
been proved. This involves a process of evaluation. [18] The court will only act upon facts
found proved in accordance with certain standards. In a criminal case the standard of proof
is proof beyond a reasonable doubt. [19] In a civil case the standard of proof is proof upon a
balance of probability [20] — a lower standard than proof beyond reasonable doubt.
Page 22
2 6 Conclusive Proof and Prima Facie Proof

Conclusive proof means that rebuttal is no longer possible. [21] It is proof which is taken as
decisive and final.
Prima facie proof implies that proof to the contrary is (still) possible. In the absence of
proof to the contrary, prima facie proof will, generally speaking, become conclusive proof.
Prima facie proof is sometimes used as a synonym for prima facie evidence (especially by
the legislature). This approach is, strictly speaking, incorrect. [22]
2 7 Admissibility and Weight of Evidence

The admissibility of evidence and weight of evidence should not be confused. [23] Lansdown &
Campbell state that: [24]
“If what is adduced can in law properly be put before the court, it is admissible. It is only once it has
been or could be admitted that its persuasiveness, alone or in conjunction with other evidence, in
satisfying the court as to the facta probanda has to be considered.”
There are no degrees of admissibility. Evidence is either admissible or inadmissible. Evidence
cannot be more or less admissible. Once admissible, however, it may carry more or less
weight according to the particular circumstances of the case. The court weighs or evaluates
evidence to determine whether the required standard of proof has been attained. It is only
after the evidence has been admitted and at the end of the trial that the court will have to
assess the final weight of the evidence. The evaluation of evidence is dealt with in
chapter 30 below.
It should be borne in mind, however, that the admissibility of evidence is in principle
determined with reference to its relevance. In determining relevance reference must of
necessity also be made to the potential weight of the evidence. [25] This, however, is a
preliminary investigation in order to determine whether such evidence, once admitted, would
be of assistance when it must finally be decided whether the facts in issue have been
proved.
2 8 Conditional Admissibility [26]
Evidence may be admitted on condition that some basic defect which renders it inadmissible
is cured during the course of the trial. [27] This procedure is rare
Page 23
and is merely one of convenience. [28] A good example of conditional admissibility is found in
S v Swanepoel en ’n Ander, [29] where it was held that a document can be used in cross-
examination in spite of its authenticity being denied by the opposing party: it is only after
the state has closed its cases that the accused have the opportunity to place their cases
before the court and tender their evidence on the authenticity of documents. If authenticity
is not proved later, the evidence initially elicited in cross-examination with regard to the
content of the document in question will be inadmissible despite the fact that it was received
at an earlier stage, because the rule remains that cross-examination on an inadmissible
document is not allowed. [30]
2 9 Circumstantial and Direct Evidence [31]
Circumstantial evidence often forms an important component of the information furnished to

the court. In these instances the court is required to draw inferences, because the witnesses
have made no direct assertions with regard to the fact in issue. These inferences must
comply with certain rules of logic. [32]
Circumstantial evidence furnishes indirect proof. [33] In a murder trial, for example,
evidence may be given that A had a motive to kill B and was seen running from B’s home
with a bloodstained knife. Evidence, however, is direct when a fact in issue is proved directly
by such evidence; for example, where witness C testifies that he saw A stabbing B in the
latter’s home.
The distinction between direct and circumstantial evidence is of special importance in
those instances where an accused decides not to testify in his own defence. [34]

The distinction between primary and secondary evidence is of importance with regard to
documentary evidence. [35] In the fifth edition of Cross on Evidence it was said: [36]
“Primary evidence is that which does not, by its very nature, suggest that better evidence may be
available: ‘Secondary evidence’ is that which, by its very nature, does suggest that better evidence
may be available. The original of a document is primary evidence, a copy secondary evidence, of its
contents. The distinction is now mainly of importance in connection with documents, because their
contents must, as a general rule, be proved by production of the original, but it used to be of much
greater significance on account of
Page 24
the ‘best evidence’ rule which occupied a prominent place in books on the law of evidence in the
eighteenth and early nineteenth centuries.”
2 11 Hearsay [37]
In terms of s 3(4) of the Law of Evidence Amendment Act 45 of 1988 hearsay evidence
“means evidence, whether oral or in writing, the probative value of which depends upon the
credibility of any person other than the person giving such evidence”.
2 12 Relevance
Four possible definitions of relevance are quoted in § 5 3 below.
2 13 Privilege
Privilege, briefly stated, refers to the right or duty of a witness, including a party, to lawfully
withhold evidence from a court of law. A distinction is drawn between private privilege (see
chapter 10) and state privilege (see chapter 11). State privilege is also sometimes referred
to as “public privilege” or “public interest immunity” (see § 11 1 1 below).
The differences between private and state privilege, are discussed in §§ 10 1 and 11 1 2
below.
Privilege must be distinguished from the competence and compellability of witnesses (see
§ 22 1 below).

The distinction between formal and informal admissions is discussed in § 26 2 1 below.
2 15 Confessions
A confession is a comprehensive out of court informal admission by the accused of all the
elements of the alleged crime. It can be described as an unequivocal acknowledgement of
guilt, which — if it were made in a court of law — would be accepted as a plea of guilty (see
§ 17 3 below).
A court may accept certain facts as proved even though no evidence was led to prove such
facts. This process is known as “judicial notice” (see chapter 27). Examples of facts which
may be judicially noticed are facts of general knowledge (see § 27 4 1 below) and facts
which are of local knowledge (see § 27 4 2).
Page 25
2 17 Presumptions
A distinction must be drawn between three different kinds of “presumption”. There is a so-
called “presumption of fact” which is merely an inference drawn from evidence (see
§§ 28 3 3 and 30 5 4 below). There are also so-called “irrebuttable presumptions of law”
which are really rules of substantive law (see §§ 4 4 and 28 3 1 below). The only true
presumption is the rebuttable presumption of law in terms of which an assumption which is
demanded by law, must be accepted in the absence of evidence or proof to the contrary (see
§§ 4 4 and 28 3 3 below). Several rebuttable presumptions of law which placed a burden of
proof upon the accused, have been declared unconstitutional (see chapter 29).
2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the

Burden of Rebuttal (Evidential Burden, “Weerleggingslas”)
The distinction between the burden of proof and the evidential burden (“weerleggingslas”) is
discussed in §§ 31 2, 32 2 and 32 3 below).
[1] Four definitions of the concept “relevance” are furnished in § 5 3 below.

[2] “Factum probandum” is the singular of “facta probanda”.
[3] “Factum probans” is the singular of “facta probantia”.
[4] See also Schmidt & Rademeyer (2014) 1-6.
[6] Section 115(2)(b) as read with s 220 of the CPA.
[7] See Van Wyk 1986 21:1 The Magistrate 26 for an accurate and critical analysis of the confusion in this regard.
[11] 1981 (3) SA 1233 (A) 1247-8.
[12] S v Slabbert en Andere 1985 (4) SA 248 (C) 250A. See also S v Xaba en ’n Ander 1978 (1) SA 646 (O) 647
and S v Mogoregi 1978 (3) SA 13 (O) 14.
[13] 1968 (4) SA 335 (A) 337.
[15] 1975 (1) SA 551 (NC) 556.
[17] Van Wyk 1976 TSAR 255. Evidence (“getuienis”) and proof (“bewys”) are not synonymous: R v V 1958 (3) SA
474 (GW).
[19] See § 31 6 below.
[20] See § 32 7 below.
[21] S v Moroney 1978 (4) SA 389 (A) 406. See also Schmidt & Rademeyer (2007) 1-4.
[22] Van Wyk in Ferreira Strafproses in die Laer Howe 2 ed (1979) 418-23. See further Bilchitz 1999 ASSAL 662
687-9.
[23] In S v Fourie 1973 (1) SA 100 (D) 102H-103A it was said that it “is one thing to say that evidence is relevant
and an entirely different thing to say that it is cogent or persuasive”. See also the quotation from Rex v C 1949 (2)
SA 438 (SR) 439 in § 5 3 6 n 50 below.
[24] At 720.
[25] See § 5 3 2 below.
[26] See generally Van Tonder v Kilian NO en ’n Ander 1992 (1) SA 67 (T) and cf S v Ntuli 1993 (2) SACR 599
(W).
[27] Cowsill & Glegg Evidence: Law and Practice. 3ed (1990, reprinted 1991) 181.
[28] See also s 3(1)(b) and 3(3) of the Law of Evidence Amendment Act 45 of 1988 as discussed by De Vos & Van
der Merwe 1993 Stell LR 7 20. See further § 13 6 below.
[29] 1980 (1) SA 144 (NC).
[30] See Rex v Black 1923 AD 388 and § 18 6 5 3 below. See also § 11 5 1 6 below.
[31] See generally S v Mtsweni 1985 (1) SA 590 (A) 593D-594A.
[32] See §§ 30 5 2 and 30 5 3 below. See also S v Burger and Others 2010 (2) SACR 1 (SCA) at [26].
[33] Schmidt & Rademeyer Bewysreg 4.
[34] S v Mthetwa 1972 (3) SA 766 (A) 769. See further § 30 9 below.
[35] See generally Hoffmann & Zeffertt 390. See further §§ 20 3 to 20 3 1 below.
[36] Cross Cross on Evidence 5 ed (1979) 15.
Page 26
Chapter 3
Sources of the South African Law of Evidence and the
Impact of Constitutional Provisions
S E van der Merwe
3 1 Introduction
3 2 Original and Regional Incorporation of English Law: The Pre-Union Period
3 3 Criminal Proceedings: The Post-Union Period
3 4 Civil Proceedings: The Post-Union Period
3 5 Interpretation of the 30 May 1961 Provision
351 English decisions considered to be incorrect
352 South African rules of practice incompatible with English law
353 Rules inconsistent with constitutional provisions
3 6 Value of English Cases Decided after 30 May 1961
3 7 Value of Privy Council Decisions
3 8 Further Sources
3 9 Constitutional Provisions
3 1 Introduction
The following fundamental principles and broad guidelines are important in identifying the
sources of the South African law of evidence:
(a) Our law of evidence is not based on Roman-Dutch authority.
(b) Our rules of evidence are found in local statutes and, where these are silent on a
specific topic or issue, the English law of evidence which was in force in South Africa on
30 May 1961 serves as our common law. [1] The CPA [2] and CPEA [3] contain provisions
to this effect.
(c) South Africa has a considerable body of local case law on evidence. These cases — if
decided in accordance with the applicable English common-law rules and principles as
at 30 May 1961 — are binding in terms of our law of precedent. The practical result is
that a South African court need not in each and every instance try to find applicable
English cases. In most instances local precedents will suffice on the basis that they
accurately reflect the common-law position.
(d) If a total lacuna is encountered, a South African court may for comparative purposes
look for guidance in English cases decided after 30 May
|
Page 27
1961. Such cases would normally have considerable persuasive value, but can never
be binding. [4] In the event of a lacuna, support for a decision can also be gleaned from
the law of evidence of other Anglo-American jurisdictions, for example, Australia,
Canada and the United States. In § 1 4 above it was pointed out that the South African
law of evidence belongs to the Anglo-American “family”. We share a common heritage,
that is, the English common-law system, which is based upon rules essentially and
originally designed for trial by jury.
(e)
The South African Constitution is the supreme law: all rules of evidence must comply
with our constitutional provisions. This matter is dealt with more fully in § 3 9 below.
At this stage it is sufficient to note that the Constitution not only governs the validity of
rules of evidence but is also an important source of the law of evidence.
3 2 Original and Regional Incorporation of English Law: The

Pre-Union Period
In the period before South Africa became a Union (that is, before 1910) the English law of
evidence was directly and indirectly incorporated into the different colonies which later
became the Union. [5] Legislation which set out English common-law rules and principles was
passed. This process can be referred to as direct incorporation. However, indirect
incorporation also took place: it was also provided that the English law of evidence had to be
followed in respect of issues or topics for which no express local statutory provision had been
made. There were several colonial statutes which had directly and indirectly incorporated
English law (for example, Ordinance 72 of 1830 (Cape); Law 17 of 1859 (Natal); Ordinance
11 of 1902 (Orange Free State) and Proclamation 16 of 1902 (Transvaal)). At the original
dates of incorporation both English statutory and common law were adopted. [6] It was
generally accepted that local courts were required to follow the English statutes as these had
stood on the original date of incorporation, [7] and that local courts were therefore not bound
by subsequent English legislation. [8] Law 17 of 1859 (Natal), for example, provided
expressly that only those English statutes in force in England in 1859 were to be applied in
Natal. But amendments to the English common law brought about by English judicial
precedents (or of course subsequent local legislation) had to be applied.
In some of these early statutes the English law was indirectly incorporated by referring to
the law “in the Supreme Court of Judicature in England” (see, for
Page 28
example, s 45 of Evidence Proclamation 16 of 1902). Residuary sections (see § 3 5 below)

were also employed, for example, in the Transvaal Proclamation of 1902 and the Orange
Free State Ordinance of 1902. The latter proclamation incorporated the law of the Cape of
Good Hope, which, in turn, had incorporated English law.
3 3 Criminal Proceedings: The Post-Union Period

In criminal proceedings the early colonial legislation was superseded by and consolidated in
the Criminal Procedure and Evidence Act 31 of 1917. But this Act was later replaced by the
Criminal Procedure Act 56 of 1955. In terms of the latter Act, English law was excluded
where any matter or topic relating to evidence was expressly dealt with in South African
legislation. But English law had to be followed where a matter was specifically covered by a
reference to the law as applied “in the Supreme Court of Judicature in England”. There were
also residuary clauses which invoked the English law with regard to issues not expressly
covered by South African legislation.
When the Union became a Republic it was thought that further direct references to
another country’s laws were inappropriate. [9] The Criminal Procedure Amendment Act 92 of
1963 removed all references to “the Supreme Court of Judicature in England” from the then
Criminal Procedure Act 56 of 1955: these references were replaced by references to the law
as it stood on the “thirtieth May 1961” (the day before South Africa became a Republic). In
Savoi and Others v National Director of Public Prosecutions and Another Madlanga J, writing
for a unanimous Constitutional Court, stated that the reference to the law as it stood on 30
May 1961 “was a circuitous way of referring to the law of England; circuitous because of the
perceived inappropriateness of the direct reference — in parliamentary Acts of the then new
Republic — to the laws of another country”. [10]
In 1977 the Criminal Procedure Act 56 of 1955 was (except for ss 319(3) and 384)
superseded by the CPA. The CPA generally retained the references to the law as it stood on
30 May 1961.
The following are examples of specific topics — or aspects of specific topics — which, in
our law of evidence in criminal proceedings, are still covered by references to the law as it
stood on 30 May 1961: the impeachment or support of the credibility of a witness —s 190(1)
of the CPA; [11] legal professional privilege — s 201 of the CPA; [12] state privilege — s 202 of
the CPA; [13] the privilege against self-incrimination — s 203 of the CPA; [14] the character of
an accused — s 227(1) of the CPA; [15] the character of any female or male against or in
connection with whom any offence of an indecent nature is alleged to
Page 29
have been committed — s 227(1) as read with s 227(4) of the CPA; [16] evidence and
sufficiency of evidence of appointment to public office — s 230 of the CPA. [17] Aspects
relating to hearsay also used to be covered by references to the law as it stood on 30 May
1961. But these provisions — which were contained in s 216 and s 223 of the CPA — have
been repealed by s 9 of the Law of Evidence Amendment Act 45 of 1988. [18] The latter Act
regulates hearsay without any reference to the law as it stood on 30 May 1961. [19]
Sections 206 and 252 of the CPA contain wide residuary sections and are referred to in
§ 3 5 below.
3 4 Civil Proceedings: The Post-Union Period

In civil proceedings the various colonial provisions which had introduced the English law of
evidence were “consolidated” only when the CPEA came into operation in 1965. Section 42
of the CPEA provides that the law of evidence, including the law relating to the competency,
compellability, examination and cross-examination of witnesses, which was in force in
respect of civil proceedings on 30 May 1961, shall apply in any case not provided for in the
CPEA or any other South African legislation. This is only an indirect way of referring the
reader to the English law of evidence: on 30 May 1961 the various provisions applicable to
civil proceedings in the provinces of the Union contained residuary provisions incorporating
the English law for matters not specifically covered by South African statutes.
3 5 Interpretation of the 30 May 1961 Provision

In Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd Coetzee J posed the following
question [20] “Is the result then that the South African law of evidence is English law,
petrified as at 30 May 1961, with no room for judicial development by South African
judges?” It is generally accepted that the South African law of evidence “remains to a certain
extent frozen” [21] as at 30 May 1961. The common law that must be followed consists of
English legislation that existed on the various dates of original indirect incorporation, as well
as English case law prior to 30 May 1961. [22] The two accepted instances where our courts
have
Page 30
moved away from the binding effect of the “30 May 1961” provision are discussed in
§§ 3 5 1 and 3 5 2 below; and the value of Privy Council decisions are referred to in § 3 7
below. It must be pointed out, once again, that all rules of evidence incompatible with
constitutional provisions are not binding (see §§ 3 5 2 and 3 9 below).
A good example of a residuary provision is also found in s 206 of the CPA. [23] This section
provides as follows: “The law as to the competency, compellability or privilege of witnesses
which was in force in criminal proceedings on the thirtieth day of May, 1961, shall apply in
this Act or any other law.” In S v Taylor Selikowitz J pointed out that the effect of this
section is that “we rely heavily on the law of England as applied at that date”. [24] The
practical effect of a 30 May 1961 provision is that “. . . the Legislature has . . . in its wisdom
referred us to another system of law”, that is, the English law. [25] Section 252 of the CPA
also determines that 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 the CPA [26] or any other law.
Section 42 of the CPEA is the residuary section for civil matters. [27]
3 5 1 English decisions considered to be incorrect

The implication of Van der Linde v Calitz [28] is that our Supreme Court of Appeal, as
successor to the Privy Council, may deviate from an English decision if it concludes that the
English decision does not correctly apply the English law. [29] In this case — which was
decided in 1967 — the Appellate Division preferred an older Privy Council decision to a more
recent decision of the House of Lords. A further reason for this decision, namely that the
Privy Council was at the time of its decision (that is, 1931) the highest court of appeal in the
South African
Page 31
hierarchy, has been criticised. [30] It should be borne in mind that South African appeals to
the Privy Council were abolished in 1950. [31]
3 5 2 South African rules of practice incompatible with English law [32]
Where an English evidentiary principle is obviously incompatible with South African law or a
rule of practice (usus fori), such principle may be rejected. [33] In Van der Linde v Calitz [34]
the Appellate Division also created a binding rule of practice which has no counterpart in
English law or practice.
3 5 3 Rules inconsistent with constitutional provisions

English decisions prior to 30 May 1961, and which would have been binding in the absence
of local statutory provisions, must be ignored if found incompatible and inconsistent with
constitutional provisions, for example, the constitutional right to a fair trial (see § 11 5 1
below). And, where possible, the applicable English common-law rule must — on account of
s 39(2) of the Constitution — be developed in order to promote the spirit, purport and
objects of the Bill of Rights (see § 12 13 below).
3 6 Value of English Cases Decided after 30 May 1961

English decisions after 30 May 1961 are not binding upon South African courts, but do have
considerable persuasive force. [35] English decisions also have strong persuasive force in the
interpretation of those South African statutory provisions which make no reference to English
law but which do in effect enact rules similar to those which apply in English law. [36]
3 7 Value of Privy Council Decisions [37]
The Privy Council Appeals Act 16 of 1950 abolished appeals from the Appellate Division to
the judicial committee of the Privy Council. Post-1950 decisions of the Privy Council
therefore merely have persuasive force. Paizes concludes as follows: [38] “Lower courts in
South Africa are bound by the decision of the Appellate Division, followed by pre-1950
decisions of the Privy Council, followed by pre-30 May 1961 decisions of the English appeal
courts and House of Lords.” The Supreme Court of Appeal may disregard a pre-1950 Privy
Council decision if convinced that it was wrongly decided. [39]
Page 32
3 8 Further Sources
Obviously the CPA, CPEA and the Law of Evidence Amendment Act 45 of 1988 cannot be
regarded as comprehensive codes governing the law of evidence. But they certainly are the
main sources. Some examples of other statutes can be found in chapters 15 and 20 below.
3 9 Constitutional Provisions
The South African legal system was constitutionalized on 27 April 1994, when the
Constitution of the Republic of South Africa, 1993 (hereafter the “interim Constitution”)
came into operation. It was followed by the Constitution of the Republic of South Africa,
1996 (hereafter the “Constitution”) which came into operation on 4 February 1997.
Parliamentary sovereignty was replaced by a Constitution which is the supreme law. There is
a justiciable Bill of Rights. Any statutory or common-law rule which conflicts with the rights
and freedoms contained in the Bill of Rights must be declared unconstitutional unless it can
in terms of s 36(1) of the Constitution be saved as a constitutionally permissible limitation of
a constitutionally guaranteed fundamental right or freedom.
Some common-law (and also some statutory) procedural and evidentiary rights of the
criminally accused have hardened into constitutional rights. These include the following: the
right to be informed of certain rights; [40] the right to exercise a “passive defence right”, [41]
which incorporates the right to remain silent upon arrest, [42] to be presumed innocent, [43]
not to incriminate oneself and not to testify during trial. [44] The “active defence right” [45] of
an accused has also been elevated to a constitutional guarantee: there is a right to adduce
and challenge evidence. [46] There is, furthermore, a right to a fair trial [47] — which includes
the rights as set out in s 35(3) of the Constitution. This right to a fair trial (“due process”)
inevitably also has an important impact on the application of rules of evidence. [48] This right
has had an impact on police docket privilege (see § 11 5 below). The constitutional pre-trial
right to be informed not only of the right to legal representation [49] but also the right to
silence [50] affects the admissibility of confessions and admissions (including so-called
“pointings out”). The impact of constitutional provisions on the admissibility of admissions
and confessions is discussed in chapters 16 and 17 below.
Page 33
Constitutional provisions have been invoked to declare certain statutory presumptions and
reverse onus clauses unconstitutional. The constitutionality of presumptions is discussed in
chapter 29 below.
Constitutional provisions like ss 32 and 34 have an impact on state privilege (see § 11 3
below).
However, one of the most far-reaching effects of the Constitution on our law of evidence
concerns the admissibility of unconstitutionally obtained evidence. Section 35(5) of the
Constitution provides that evidence “obtained in a manner that violates any right in the Bill
of Rights must be excluded if the admission of that evidence would render the trial unfair or
otherwise be detrimental to the administration of justice”. The exclusion of unconstitutionally
obtained evidence is discussed in chapter 12 below.
In the final analysis it can be said that there is “an inseparability between rules of
evidence and constitutional entitlements”. [51] Our law of evidence must constantly be
scrutinised in the light of constitutional provisions. Canadian and American cases can be
useful in interpreting the impact of our Constitution on the law of evidence, because both
these countries have also had constitutional provisions superimposed on their English
common-law rules of evidence. In Canada it happened more than two decades ago; and in
the United States it happened more than two centuries ago. We can be guided by these
decisions, especially since s 39(1)(c) of our Constitution provides that “a court . . . may
consider foreign law”. However, our courts should be careful not to rely on foreign case law
too easily: a court “must evaluate [foreign decisions] in the light of the conditions and
circumstances existing in its own jurisdiction from time to time, and the facts of the case
before it”. [52]
[1] See § 3 5 below. In S v Desai 1997 (1) SACR 38 (W) 43g Flemming DJP stated that our law of evidence “is
essentially a part of the law which is tied to the law of England . . . That, of course, does not exclude different
developments at a date subsequent to the end of the statutory tying of our law of evidence to that of the law of
England.” See also Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC)
at [37] n 52.
[2] See § 3 3 below as well as S v Taylor 1991 (2) SACR 69 (C), which is discussed in § 3 5 below.
[3] See § 3 4 below.
[5] Paizes in Du Toit et al Commentary 23-56 explains as follows: “Before Union each of the four colonies had its
own statutory provisions relating to the law of evidence. Certain sections of these colonial statutes attempted to
codify aspects of English law while other sections sought to incorporate, in undiluted form, the English law as it
governed various evidentiary topics. The effect of these provisions was that our law of evidence was governed in
large measure by the English law in both civil and criminal proceedings. The date of incorporation of that law,
however, varied from one colony to another.”
[6] Zeffertt & Paizes 8-9.
[7] O’Dowd The Law of Evidence in South Africa (1963) 3.
[8] Zeffertt & Paizes 8.
[10] 2014 (1) SACR 545 (CC) at [37] n 52.
[11] See §§ 25 2 and 25 2 2 below.
[12] See § 10 3 1 below.
[13] See § 11 1 below.
[14] See § 10 2 2 below.
[15] See § 6 2 1 below.
[16] See § 6 2 6 1 below.
[17] See also Van Wyk 1981 SACC 277-9.
[18] See also De Vos & Van der Merwe 1993 Stell LR 7 n 2.
[20] 1975 (4) SA 626 (W).
[21] Ex Parte Minister van Justisie: In Re S v Wagner 1965 (4) SA 507 (A) 513G. But cf §§ 3 5 1 to 3 5 3 below.
[22] See generally Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) 617; Naidoo v Marine & Trade
Insurance Co Ltd 1978 (3) SA 666 (A); Smit v Van Niekerk, NO en ’n Ander 1976 (4) SA 293 (A); A Sweidan and
King (Pty) Ltd and Others v Zim Israel Navigation Co Ltd 1986 (1) SA 515 (D). In the latter case counsel for the
applicants submitted that where the matter had never arisen before 30 May 1961 in the House of Lords, but was
after this date decided by it, this post 30 May 1961 decision was indeed binding upon South African courts because
the House of Lords would in so deciding have determined what the law has always been. For purpose of his judgment
Booysen J did not have to decide on the merits of this argument. But in 1986 ASSAL 485 Zeffertt responded as
follows to the aforementioned argument. “It is submitted that the argument advanced on behalf of the applicants
has, at best, a seductive and meretricious charm. It manipulates a fiction and, by so doing, achieves a result that
could never have been the intention of the legislature — it is unlikely that our staunchly republican Parliament
wished to leave our law of evidence in perpetual colonial servitude. The whole tenor of Van der Linde v Calitz is
against such an intention. The language of s 42 of the Civil Proceedings Evidence Act 1965 points to an intention to
‘freeze’ the law as it was on 30 May 1961. To maintain that that intention is defeated by an artificial jurisprudential
nicety, by a mere legal fiction, is specious when it most persuades, and spurious in its intended result . . . In my
submission, the primary question is: Were there relevant English decisions prior to 30 May 1961? If there were, they
are binding to the extent to which the Appellate Division (or the Privy Council before appeals to it were abolished)
considers them to be correct reflections of the English law (Van der Linde v Calitz). Since we do not have to apply
the English law of procedure in its entirety, but only that part which is evidentiary, a South African ‘practice’ which is
‘procedural’ rather than exclusively ‘evidentiary’ would also have to be followed.”
[23] See further § 22 2 below.
[24] 1991 (2) SACR 69 (C) 70h. See further § 22 11 2 below.
[25] See Ex Parte Minister of Justice: In Re Rex v Demingo and Others 1951 (1) SA 36 (A). In this case the AD
interpreted one of the forerunners of s 206 of the CPA.
[26] See s 240(1) of the CPA for an example where express provision is made for the admissibility of certain
evidence.
[27] See § 3 4 above.
[28] 1967 (2) SA 239 (A). See § 11 2 1 below for a discussion of this case.
[30] Davids 1967 SALJ 245; Kahn 1967 SALJ 327; Kerr 1965 SALJ 169.
[31] See § 3 7 below.
[32] See Schmidt & Rademeyer 18 as well as Schmidt & Rademeyer (2007) 1-21.
[33] Ex Parte Minister of Justice: In Re Rex v Pillay and Others 1945 AD 653.
[34] 1967 (2) SA 239 (A). See also Magmoed v Janse Van Rensburg and Others 1993 (1) SACR 67 (A) 105j-105h.
[35] Papenfus v Transvaal Board for the Development of Peri-Urban Areas 1969 (2) SA 66 (T) 69.
[36] R v Hendrickz 1933 TPD 451.
[37] See generally Hahlo & Kahn The South African Legal System and Its Background (1968) 259-60.
[38] Paizes in Du Toit et al Commentary 23-55.
[39] See generally Hahlo & Kahn The South African Legal System and Its Background (1968) 244.
[40] See, eg, s 35(1) of the Constitution.
[41] See generally Van der Merwe 1994 Obiter 22 23.
[42] Section 35(1)(a) of the Constitution.
[43] Section 35(3)(h) of the Constitution.
[44] Section 35(3)(j) of the Constitution.
[45] Section 35(3)(h) of the Constitution. See also § 30 9 below.
[47] Section 35(3)(i) of the Constitution.
[48] See § 12 9 3 below for the Constitutional Court’s broad analysis of the right to a fair trial.
[49] Section 35(2)(b) of the Constitution.
[51] Paizes 1989 SALJ 472 478.
[52] S v Minnies and Another 1991 (1) SACR 355 (Nm) 370g-h. See also generally De Villiers 1998 TSAR 20 21.
Page 34
Chapter 4
The Law of Evidence and Substantive Law
E van der Berg and A Govindjee
4 1 Introduction
4 2 The Significance of the Distinction
4 4 Irrebuttable Presumptions
4 5 Estoppel
4 6 Parol Evidence
461 The integration rule
462 Some exceptions
463 Rectification
464 The interpretation rule
4 1 Introduction
Substantive law is usually distinguished from adjective law (of which the law of evidence
forms a part) [1] on the basis that substantive law provides for rights and duties, whereas
adjective law provides the procedural mechanisms whereby those rights and duties are
enforced. [2]
The distinction is not as clear as it seems. [3] It is not only substantive law that creates
rights and duties. Adjective law also provides for rights and duties. One merely has to think
of the right of a party in a trial to cross-examine an opponent’s witnesses, [4] and the
numerous rights and duties provided for by the rules of court in civil matters, for example
the rules relating to the discovery of documents, [5] and the calling of expert witnesses. [6]
The question arises whether the distinction between substantive and adjective law has any
|practical relevance, or whether it is merely of academic interest. The answer is that
important consequences hinge upon this distinction.
Page 35
4 2 The Significance of the Distinction

In our law the distinction between substantive and adjective law is a necessary one. [7] The
historical development of our law resulted in our having Roman-Dutch law as our common
law, except, however, in the law of evidence, [8] wherein we follow English law. [9] The results
of following either Roman-Dutch law or following English law may be diametrically opposed.
No better illustration exists than that found in Tregea and Another v Godart and Another. [10]
This case concerned the burden of proof and is discussed in §§ 4 3 and 32 1 below.
Sonnekus points out another practical consequence of the characterisation of a principle or
rule as being either substantive or evidential. [11] In this instance characterisation has a
curious effect on the application of estoppel. [12] If estoppel is a rule of substantive law, [13]
viewed as a measure of preventing prejudice, and not an instrument of gain, the relief
afforded by estoppel should not extend beyond the actual damage suffered by the party
entitled to assert estoppel. If, however, the rule is one of evidence, [14] then, notwithstanding
the fact that the actual prejudice suffered by the representee does not extend to the full
amount in question, the representor, precluded from relying on the true facts, would be
unable to recover anything at all.
The dividing line between substantive law and the law of evidence is blurred by the fact
that some rules of substantive law result in the exclusion of evidence by the court, thus
causing the rule to appear to be one of evidence (the mistaken reasoning being that since it
results in the exclusion of evidence, the rule must be one of evidence). In this context the
so-called irrebuttable presumptions of law (see § 4 4 below) as well as estoppel (see § 4 5
below) and parol evidence (see §§ 4 6 to 4 6 4 below) will be discussed briefly in this
chapter.
4 3 The Burden of Proof [15]
Views on the classification of the burden of proof vary from one extreme to the other. Some
hold that it is purely adjectival. Others maintain that it is substantive law. Even the view that
it falls in a grey area somewhere between substantive and adjective law has found support.
Page 36
As far as case law is concerned, Tregea and Another v Godart and Another [16] remains the
leading but doubtful authority. In this case the Appellate Division held that substantive law
lays down what has to be proved and by whom, and the rules of evidence relate to the
manner of its proof. It was also held that the burden of proof and rebuttable presumptions of
law are matters of substantive law.
The issue in this case was the validity of a will. The plaintiffs sought the rejection of the
will on the grounds that the testator did not have the mental capacity to execute a will. Much
depended upon who carried the burden of proof. If this question was regarded as one of
substantive law, Roman-Dutch law would apply, and the defendants would benefit by a
presumption that a will, regular on the face of it, is valid. If, on the other hand, the matter
was regulated by the law of evidence, and English law applied, the plaintiffs would have
been assisted by a rule that cast the burden of proof on the defendants to prove
testamentary capacity on the part of the testator. The question was held to be one of
substantive law, and Roman-Dutch law was followed. The burden of proof accordingly was
on the plaintiffs.
Schmidt & Rademeyer [17] are of the opinion that Tregea and Another v Godart and
Another was incorrectly decided. They point out that substantive law defines the rights and
duties of persons and thus determines the facta probanda. The burden of proof and the
rebuttable presumptions do nothing of the kind; they relate to the manner in which facts are
proved and therefore belong to the law of evidence.
Certainly the various elements that constitute a cause of action, or a crime, or a defence,
and thus the facta probanda, are requirements of substantive law; certainly, also, it is very
difficult to mention the burden of proof without reference to what has to be proved. That,
however, simply means that the burden pertains to the particular probanda. But it is for this
very reason that the law of evidence is called adjectival. It would be more accurate to say
that the incidence of the burden of proof is dependent upon, or varies according to,
substantive law, rather than that it is determined by substantive law. The existence of the
burden of proof, and its various consequences and qualifications, [18] must, however, be
ascribed to the law of evidence.
4 4 Irrebuttable Presumptions [19]
Irrebuttable presumptions are not really presumptions in the true sense of the word; nor are
they rules of evidence. Irrebuttable presumptions are rules of
Page 37
substantive law, [20] directing a court to accept a situation as conclusively proved once
certain (other) basic facts have been proved. There was, for example, the common law rule
that a girl below the age of 12 is irrebuttably presumed to be incapable of consenting to
sexual intercourse. [21] This was just another way of saying that sexual intercourse with a girl
below the age of 12 amounts to rape, even if the girl had consented. [22] Once intercourse
with a girl below the age of 12 was proved (and these are the basic facts which the
prosecution had to prove) the court was obliged to conclude that there was no consent. [23]
On 16 December 2007 the above common-law approach was superseded by s 57(1) of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Section 57
(1) provides as follows: “Notwithstanding anything to the contrary in any law contained, a
male or female person under the age of 12 years is incapable of consenting to a sexual act.”
The matter is now correctly stated as a rule of substantive law. [24] It should be noted that
s 57(1) is gender-neutral and that “a sexual act” means an act of “sexual penetration” or an
act of “sexual violation” as defined in s 1(1) of Act 32 of 2007. Section 57(1) is therefore
much wider than the common-law rule which was confined to per vaginam penetration by a
male of a girl below the age of 12. [25]
There is also a so-called irrebuttable presumption of common law that an infans (a child
who has not yet completed his seventh year) is criminally and delictually non-responsible
(doli and culpae incapax). [26] The truth of the matter is that it is a rule of substantive law
that an infans can never be held liable in crime or delict. [27] Evidence to the contrary will not
be received because the court is required to accept — irrefutably — that an infans does not
possess sufficient mental ability to render him legally accountable. There are no exceptions
to the rule. If an infans is charged with fraud, the prosecution will not be permitted to lead
evidence that he or she is a genius and therefore had the necessary mental ability to
distinguish between right and wrong. Section 7 of the Child Justice Act 75 of 2008 amended
the common law pertaining to the criminal capacity of children under the age of 14 years so
that a child who commits an offence while under the age of 10 years does not have criminal
capacity and cannot be prosecuted for that offence. [28] A child who is 10 years or
Page 38
older but under the age of 14 years and who commits an offence is presumed to lack
criminal capacity, unless the State proves the contrary. [29] Proof beyond reasonable doubt is
required, and rebuttal may take place by way of direct or circumstantial evidence. [30]
The above rules are rules of substantive law [31] and stem from Roman-Dutch (and not
English) law. These rules — even though they clearly have some fictive content — are based
on policy and clearly aimed at protecting very young persons. But such protection can go too
far. The irrebuttable presumption of Roman-Dutch law that a male impubes [32] is presumed
to be incapable of sexual intercourse [33] was abolished in South Africa by s 1 of the Law of
Evidence and The Criminal Procedure Act Amendment Act 103 of 1987. [34]
4 5 Estoppel
Estoppel is a term of English law, derived from the same origin as the word “stop”. [35] It
denotes that a party is precluded (or estopped) from denying or asserting a particular
fact. [36] The doctrine of estoppel was introduced into South African law from English law on
the basis that it was analogous to, or accorded with, principles of Roman and Roman-Dutch
law. [37]
One comes across various expressions coupled with the term “estoppel”. Amongst these
are estoppel by record, by deed, by conduct, issue estoppel, estoppel in pais, equitable
estoppel, estoppel by silence, and estoppel by
Page 39
negligence. [38] Only the two forms of estoppel most common in South African law, namely
estoppel by representation (which covers most of the various aforementioned forms of
estoppel [39] ) and estoppel by judgment [40] will be considered below.
The term “estoppel” is generally used in South Africa to denote estoppel by
representation. [41] The doctrine applies where a person makes a representation to another,
who, believing in the truth thereof, acts thereon to his prejudice. The representor is then
precluded or estopped from denying the truth of the representation. [42]
Estoppel by judgment is more commonly known in South Africa as estoppel per rem
judicatam, exceptio rei judicatae or a plea of res judicata. [43] The expression signifies that a
matter has been finally adjudicated on by a competent court. It may then not be raised
again, if the action is between the same parties, for the same relief, upon the same
cause, [44] and provided further that the judgment was a final one on the merits of the
matter. [45]
The equivalent of the aforegoing in a criminal case would be a plea of autrefois convict or
acquit — that the accused has already been convicted or acquitted of the offence with which
he is now charged. [46] Again the charge must relate to the same or a substantially identical
offence and the verdict must have been pronounced by a competent court on (in the case of
autrefois acquit) the merits of the matter and not merely on an irregularity in the procedure.
Some authorities in both England and South Africa have described estoppel as a rule of
the law of evidence. [47] It is possible to express estoppel in the form of a rule that excludes
evidence: the representor may not adduce evidence at
Page 40
variance with his or her representation; [48] evidence may not be led in contradiction of a
judgment. [49] Estoppel has been expressed in the form of an irrebuttable presumption: a
judgment is presumed to be correct. [50]
Nowadays it is fairly generally accepted, at least in South Africa, that estoppel is more
correctly viewed as a rule of substantive law. [51] Proper analysis shows that estoppel by
representation is a doctrine which involves the making of a representation, action on the
faith thereof, resultant prejudice, and possibly fault; furthermore, it operates as a defence
which has to be pleaded. Such a doctrine cannot be looked upon as a rule of the law of
evidence. [52] Similarly the correct formulation of estoppel by judgment is by way of a rule
that the judgment of a court is final. Even if it is expressed as an irrebuttable presumption
as above, it must be borne in mind that such presumptions are merely rules of substantive
law couched in the form of presumptions. [53]
These rules of substantive law cause the particular evidence in contradiction of the
representation or judgment to become irrelevant and therefore, according to the law of
evidence, inadmissible. The evidence is not inadmissible because estoppel as a rule of
evidence prohibits such evidence; it is inadmissible because estoppel as a rule of substantive
law causes the evidence to be irrelevant. [54]
4 6 Parol Evidence
4 6 1 The integration rule
The parol [55] evidence rule provides that “where a jural act is incorporated in a document, it
is not generally permissible to adduce extrinsic evidence of its terms”. [56] “Extrinsic” refers
to evidence other than, or extraneous of, the document itself. [57] Closely connected with the
parol evidence rule is the “extrinsic evidence rule” that no evidence may be given to alter
the clear and unambiguous meaning of a contract, whether written or oral. [58] In an oft-
quoted [59] passage Wigmore [60] describes the rule as follows:
Page 41
“[The] process of embodying the terms of a jural act in a single memorial may be termed the
integration of the act, ie its formation from scattered parts into an integral documentary unity. The
practical consequence of this is that its scattered parts, in their former and inchoate shape, do not
have any jural effect; they are replaced by a single embodiment of the act. In other words: when a
jural act is embodied in a single memorial, all other utterances of the parties on that topic are legally
immaterial for the purposes of determining what are the terms of their act.”
From this derives a further name by which the rule is known: the integration rule. [61]
It has been pointed out that extrinsic evidence can be applied to a document for two
different purposes: first, to show terms different to those contained in the document — in
other words, the inquiry is aimed at determining what the terms of a particular transaction
are; secondly, to show the meaning of the terms contained in the document — in issue is not
the content of the document, but the meaning thereof, as it stands. Accordingly, the
extrinsic evidence rule is said to comprise two distinct rules: the integration rule, which
applies to the former situation, and the interpretation rule, which applies to the latter. [62]
The parol evidence rule [63] is often couched in evidential terms, disguising it as a rule of
evidence: [64]
“[W]hen a contract has been reduced to writing, the writing is, in general, regarded as the exclusive
memorial of the transaction and in a suit between the parties no evidence to prove its terms may be
given save the document or secondary evidence of its contents, nor may the contents of such
document be contradicted, altered, added to or varied by parol evidence.”
The rule has accordingly been viewed as one of evidence [65] and was received into South
African law on the assumption that it forms part of the English law of evidence, so that
English precedents are followed. [66]
On proper analysis it becomes clear that the rule is one of substantive law. The rule
relates to the nature and scope of a jural act, and not merely the admissibility of evidence.
Certainly the distinction is a fine one and not as apparent as for instance in the case of
estoppel. This is so especially since even the leading authors who hold the view that the
parol evidence rule is one of substantive law explain that view with reference to the source
from which the
Page 42
terms of the act are determined. [67] Considering the document merely as a source of
information concerning the terms of a contract makes it very difficult not to regard that
document as being merely the only admissible evidence, all other evidence being
inadmissible (and the whole matter thus being a matter of evidence and admissibility).
If one were rather to think in terms of the document constituting the jural act, [68] then it
would follow that whatever other actions [69] of the parties may have accompanied the jural
act, as a matter of substantive law, simply form no part thereof. That being so, any such
actions are irrelevant to the act, and consequently inadmissible as a matter of evidence. This
approach is reflected in De Klerk v Old Mutual Insurance Co Ltd: [70]
“[W]here a contract has been reduced to writing, the written document is regarded as the sole
memorial of the transaction and deprives all previous inconsistent statements of their legal effect. The
document becomes conclusive of the terms of the transaction which it was intended to record. The
result is that previous statements by the parties on the subject can have no legal consequences and
are accordingly irrelevant and evidence to prove them is inadmissible.”
The view that the matter is one of substantive law has found some acceptance in South
African case law. [71] As a matter of practicality, however, it must be accepted that English
precedent has become so entrenched in South African law that it must now be regarded as
an ineradicable part thereof. A return to Roman-Dutch sources is unlikely. [72]
Although contracts are generally the kind of written instrument which most frequently
form the subject of debate concerning parol evidence, the rule is applicable also to other
written jural acts such as wills, [73] negotiable instruments, [74] and court orders. [75]
4 6 2 Some exceptions
There are several qualifications and exceptions to the general rule excluding parol
evidence. [76] Some of these are not truly exceptions, but rather instances which fall outside
the scope of the rule. [77]
Page 43
Where, for instance, a written contract is not intended to cover the terms of the
transaction all-inclusively, evidence of further oral terms is not precluded. [78] The rule does
not apply to a document which contains a mere narration of an event, and which does not
constitute a jural act; [79] nor does the rule exclude evidence which throws light on the true
nature of a transaction referred to in a written document, [80] or to identify an illegible
signature or to determine the capacity of a signatory, even where the law requires the
agreement to be in writing. [81]
Extrinsic evidence is admissible to determine the validity of a transaction: it may be
shown by oral evidence that a contract is void for fraud, mistake, illegality, impossibility or
lack of consensus. [82] However, where writing is required by law, evidence cannot be
produced of oral terms not included in the written document in order to invalidate the
transaction through non-compliance with the requirement of writing; the correct avenue is to
apply for rectification of the written agreement. [83]
The parol evidence rule applies to transactions reduced to writing, whether it be done at
the instance of the parties, or because the law requires it. [84] The distinction may, however,
have an effect on the admissibility of parol evidence. Parol evidence may, for instance, be
admissible of a collateral agreement and additional terms [85] and subsequent oral
variations, [86] but not where writing is a requirement of law, and such evidence seeks to
contradict the written instrument. [87] A similar result arises where the contract contains a
clause to the effect that no variation or rescission of the contract shall be valid unless it is
reduced to writing. [88] But that, of course, is not due to the operation of the parol evidence
rule. Curiously, even contracts that are required by law to be in writing can be cancelled
orally. [89]
Page 44
Suspensive conditions (or conditions precedent) which suspend the operation of a contract
may be proved by parol evidence, but not if the condition forms an integral part of the
agreement. [90]
4 6 3 Rectification
The parol evidence rule notwithstanding, and in order to effect the rectification of the written
document, extrinsic evidence is admissible to show that the document does not correctly
reflect the consensus between the parties. [91] The document is made to conform with the
jural act that underlies it: “[A]ll the Court does is to allow to be put in writing what both
parties intended to put in writing and erroneously thought they had.” [92] It is only logical
that the law should not hold parties to a document which purports to reflect an agreement,
when the document does not in fact do so. [93]
In Standard Bank of SA Ltd v Cohen (1) [94] the plaintiff sued the defendant on two written
suretyship agreements. In terms of these agreements the defendant bound himself as surety
and co-principal debtor for the indebtedness of a certain company. The defendant wished to
adduce evidence of two terms orally agreed upon prior to the execution of the written
agreements. The oral terms provided that the plaintiff would not extend credit to the
company beyond a certain limit and that no money would be advanced until the defendant
had arranged a cession of the book debts of the company to himself. The object hereof was
to protect the defendant. The deeds of suretyship were by law required to be in writing. [95]
The agreements further contained a clause which provided that the deeds set out the entire
agreement between the parties and that the plaintiff would not be bound by any term not
recorded therein.
The court held that the defendant could not rely on the oral terms, since evidence thereof
would be contrary to the parol evidence rule; in any event, they were not in writing as
required by the statute. Nor could evidence thereof be adduced as a basis for the argument
that the deeds were invalid for failure to include material clauses therein. The two written
documents contained all the essential terms to constitute valid suretyships. Ex facie the
documents
Page 45
complied with the statutory requirements for validity. Evidence of the oral terms was thus
irrelevant and inadmissible, unless it was presented for the purposes of rectification.
In a second judgment, [96] upon a plea of rectification by the defendant, the court found
on the evidence that the two oral terms alleged by the defendant had in fact been agreed
upon. The clause recording that the written deed set out the whole agreement between the
parties did not constitute a bar to rectification — that right could only be excluded in explicit
terms. [97] The plea of rectification therefore succeeded, and the matter had to be
adjudicated on the basis of the written agreements as they stood to be corrected.
In Philmatt (Pty) Ltd v Mosselbank Developments CC [98] an oral suspensive condition was
the subject of dispute. Rectification was not possible as the appellant was an innocent third
party. The court did not find it necessary to decide whether evidence of the condition was
admissible by way of exception to the parol evidence rule. Instead, it held that evidence
thereof was admissible to establish the existence of a material term not incorporated in the
deed of sale in order to show that the deed of sale did not constitute a valid deed in terms of
s 2(1) of the Alienation of Land Act 68 of 1981. [99]
The parol evidence rule does not exclude evidence of a prior oral agreement or a common
continuing intention where a party claims rectification. [100]
4 6 4 The interpretation rule

If the first aspect of parol evidence, the integration rule, does not truly form part of the law
of evidence, then the second aspect, the interpretation rule, does even less so. [101]
[1] See § 1 1 above.

[2] Schmidt & Rademeyer (2014) 1-6.
[3] Schmidt & Rademeyer (2014) 1-7; Zeffertt 1990 SALJ 579; Universal City Studios Inc and Others v Network
Video (Pty) Ltd 1986 (2) SA 734 (A) at 754I; Sheriff of Cape Town v Mt Argun, her owners and all persons interested
in her and Others [2001] 4 All SA 302 (A) at [17].
[4] See § 18 6 below.
[5] Rule 35 of the Uniform Rules of Court; rule 23 of the Magistrates’ Courts Rules.
[6] Rule 36(9) of the Uniform Rules of Court; rule 24(9) of the Magistrates’ Courts Rules; see also § 8 7 below.
[7] In Botes v Van Deventer 1966 (3) SA 182 (A) it was held, eg, that the law of evidence determines that a
vicarious admission is admissible if an identity of interest (see § 16 5 3 below) exists between a declarant and a
party, but that the issue whether such identity exists is determined by substantive law (ie Roman-Dutch law). See
generally Schmidt & Rademeyer (2014) 1-7.
[8] This is not to say that it is the only exception.
[9] See chs 1 and 3 above.
[10] 1939 AD 16.
[11] Sonnekus The Law of Estoppel in South Africa 3 ed (2012) 24, 215-217.
[12] See § 4 5 below.
[13] What Sonnekus Estoppel 214 et seq refers to as the American approach.
[14] The English approach; Sonnekus Estoppel 214 et seq.
[15] The rules and principles which govern the incidence of the burden of proof are discussed in chs 31 and 32
below.
[16] 1939 AD 16. See also §§ 28 4 and 32 2 below. See further S v Baloyi 2000 (1) SACR 81 (CC) at [29].
[17] At 1-12. It seems increasingly unlikely, however, that the courts will abandon their current approach. See for
instance During NO v Boesak and Another 1990 (3) SA 661 (A) 672H; Eskom v First National Bank of SA Ltd 1995
(2) SA 386 (A) 390G and Woerman and Schutte NNO v Masondo and Others 2002 (1) SA 811 (SCA).
[18] See chs 31 and 32 below.
[19] The traditional classification of presumptions is discussed in §§ 28 3 to 28 3 3 below.
[20] Scagell and Others v Attorney-General of the Western Cape and Others 1997 (2) SA 368 (CC); 1996 (2)
SACR 579 (CC). Also see Zeffertt & Paizes The South African Law of Evidence 2 ed (2009) 182.
[21] Socout Ally v R 1907 TS 336 339.
[22] See generally Rex v M and Another 1950 (4) SA 101 (T) 102.
[23] This rule operated only if the girl’s actual age was below 12 (Mostert v S 1973 2 PH H67 (C)).
[24] Similarly, s 57(2) of this Act states that a person who is mentally disabled is incapable of consenting to a
sexual act.
[25] See in general in this regard Teddy Bear Clinic for Abused Children and Another v Minister of Justice and
Constitutional Development and Another 2014 (2) SA 168 (CC).
[26] R v Lourie (1892) 9 SC 432 at 434. Also see S v Gk 2013 (2) SACR 505 (WCC) at [58].
[27] Attorney-General Transvaal v Additional Magistrate for Johannesburg 1924 AD 421.
[28] S v TS 2015 (1) SACR 489 (WCC). See also generally Karels & Pienaar 2015 Obiter 57; Skelton (2013) 26
SACJ 257; Walker (2011) 24 SACJ 33. In terms of s 8 of the Child Justice Act 75 of 2008, and in order to determine
whether or not this minimum age of criminal capacity should be raised, the Cabinet member responsible for the
administration of justice must submit a report to Parliament not later than five years after the commencement of this
section. See in general in this regard A Skelton “Proposals for the review of the minimum age of criminal
responsibility”, available at
http://repository.up.ac.za/xmlui/bitstream/handle/2263/40378/Skelton_Proposals_2013.pdf?
sequence=1&isAllowed=y accessed on 13 April 2015. As an aside, the authors find it odd that “children” between the
age of 18 and 21 now appear to reach intellectual maturity earlier than before, since the age of majority has been
lowered from 21 to 18: see s 28 of the Constitution, which confirms that “child” means a person under the age of 18
years for purposes of s 28 and see ss 1 and 17 of the Children’s Act 38 of 2005, defining a child to mean a person
under the age of 18 years and confirming that a child, whether male or female, becomes a major upon reaching the
age of 18 years. Yet, in regard to children between the ages of 7 and 10, the new rule appears to suppose that the
development of children between the ages of 7 and 10 has slowed down.
[29] On the requirement that the prosecution is still required, for example, to rebut this presumption of criminal
incapacity, see S v M and Another 1979 (4) SA 564 (B). Also see S v Gk 2013 (2) SACR 505 (WCC) at [58-59].
[30] See R v K 1956 (3) SA 353 (A) 359E and R v Ndenxa 1919 EDL 199 200. It was generally accepted that it
would be difficult to rebut this presumption where the impubes had barely progressed beyond the age of the infans
and that rebuttal would be easier where the impubes was nearly 14 at the time of the incident: see R v Nhamo 1956
1 PH H28 (SR) and R v K 1956 (3) SA 353 (A) 358D-E. Also see s 11 of the Child Justice Act 75 of 2008.
[31] Formulated as rules of substantive law, the absurdity of terminology and contents is removed: a person under
the age of 10 years lacks criminal and delictual capacity; the consent of a child below the age of 12 does not
constitute lawful consent for the purposes of a defence to a charge of rape. See also Zeffertt & Paizes 182 and
Schmidt & Rademeyer (2014) 5-4. See further § 28 3 1 below.
[32] An impubes is a child who is no longer an infans but who has not attained the age of 14.
[33] See generally The State v A 1962 (4) SA 679 (E) as discussed by Schmidt 1963 THRHR 139 for the absurd
results caused by this presumption.
[34] This section is quoted in § 28 3 1 below.
[37] Schmidt & Rademeyer (2014) 1-8. Sonnekus Estoppel 51-52.
[38] See generally Sonnekus Estoppel 10-15.
[39] Sonnekus Estoppel 10.
[40] Also called estoppel by record — see Sonnekus Estoppel 26.
[43] Sonnekus Estoppel 25; Schmidt & Rademeyer (2014) 1-8.
[44] In Kommissaris Van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) it was decided that the
strict requirements for a plea of res judicata (relating to the same cause of action and that the same thing be
claimed) must not be understood in a literal sense and as immutable rules; there is room for their adaptation and
extension based on the underlying requirement that the same thing is in issue as well as the reason for the existence
of the plea. Also see Smith v Porritt and Others 2008 (6) SA 303 (SCA). This was recently confirmed in Caesarstone
Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA).
[45] See generally Man Truck & Bus (SA) (Pty) Ltd v Dusbus Leasing CC and Others 2004 (1) SA 454 (W); Consol
Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another (2) 2005 (6) SA 23 (C); Janse Van Rensburg and
Others NNO v Steenkamp and Another; Janse Van Rensburg and Others NNO v Myburgh and Others 2010 (1) SA 649
(SCA).
[46] Section 106(1)(c) and (d) of the CPA; see generally Van der Merwe in Du Toit et al Commentary 15-28 et
seq. See also s 35(3)(m) of the Constitution.
[47] Sonnekus Estoppel 21-23.
[50] Schmidt & Rademeyer (2014) 1-8. It seems to have been the fashion in earlier days to turn to fictions and
presumptions for lack of a more scientific construction.
[51] Sonnekus Estoppel 23; Schmidt & Rademeyer (2014) 1-9.
[52] Sonnekus Estoppel 23; Schmidt & Rademeyer (2014) 1-8; 1-9.
[53] See § 4 4 above; Schmidt & Rademeyer (2014) 1-10; 1-11; 5-3 – 5-4.
[54] “Relevance” is discussed in ch 5 below. See especially § 5 3 below.
[55] Cf “parol. . .given orally; (of a document) not given under seal; oral declaration”; cf “parole. . .the release of
a prisoner. . .on the promise of good behaviour; a word of honour”: The Concise Oxford Dictionary 9 ed (1995).
[56] Van Rensburg, Lotz and van Rhijn “Contract” in Joubert LAWSA 3 ed (2015) para 345; Purchase v De
Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates 1994 (1) SA 281 (W) 283I-J. See in general KPMG Chartered
Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) [39] cited with approval in KPMG Chartered
Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA).
[57] Howard et al Phipson on Evidence 1020.
[58] See KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA).
[59] National Board (Pretoria) (Pty) Ltd and Another v Estate Swanepoel 1975 (3) SA 16 (A) 26C; Standard Bank
of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE) 849E.
[61] See also Johnston v Leal 1980 (3) SA 927 (A); Venter v Birchholtz 1972 (1) SA 276 (A); Standard Bank of SA
Ltd v Cohen (1) 1993 (3) SA 846 (SE) 849B-C; De Klerk v Old Mutual Insurance Co Ltd 1990 (3) SA 34 (E); Philmatt
(Pty) Ltd v Mosselbank Developments CC 1996 (2) SA 15 (A) [10]; also see Fedbond Participation Mortgage Bond
Managers (Pty) Ltd v Investec Employee Benefits Ltd and Others [2010] 4 All SA 467 (SCA) [14].
[62] Johnston v Leal 1980 (3) SA 927 (A); see generally Christie & Bradfield The Law of Contract in South Africa 6
ed (2011) 212-213. We shall return to the matter of interpretation below.
[63] The name of the rule does not make things any easier either — calling it the integration rule has the merit of
placing the emphasis where it should be, on the substantive aspect of the matter.
[64] Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43 47; Purchase v De Huizemark
Alberton (Pty) Ltd t/a Bob Percival Estates 1994 (1) SA 281 (W) 283I-J.
[65] See for instance Avis v Verseput 1943 AD 331; Cassiem v Standard Bank of South Africa Ltd 1930 AD 366.
[66] See for instance Cassiem v Standard Bank of South Africa Ltd 1930 AD 366; Christie & Bradfield The Law of
Contract in South Africa 200-201.
[67] See Zeffertt & Paizes 346: “[T]he document is conclusive as to the terms of the transaction. . .”; Schmidt &
Rademeyer (2014) 1-9; 11-21.
[68] Whether because it is so required by the law, or because the parties have so agreed or intended it.
[69] Whether it be oral or documentary communications, or other conduct.
[70] 1990 (3) SA 34 (E) 39D-E (our emphasis).
[71] See for instance Slabbert, Verster & Malherbe (Bloemfontein) Bpk v De Wet 1963 (1) SA 835 (O); Schroeder
v Vakansieburo (Edms) Bpk 1970 (3) SA 240 (T); Venter v Birchholtz 1972 (1) SA 276 (A).
[73] Moskowitz and Another v the Master and Others 1976 (1) SA 22 (C).
[74] Cassiem v Standard Bank of South Africa Ltd 1930 AD 366; also see Barclays National Bank Ltd v Serfontein
1981 (3) SA 244 (W).
[75] Postmasburg Motors (Edms) Bpk v Peens en Andere 1970 (2) SA 35 (NC). For application of the parol
evidence rule in respect of a document recording an arbitrator’s award, see Pretoria City Council v Buchanan and
Another 1952 (1) SA 236 (T). For application of the rule in the context of unlawful road transportation without a
permit, see S v Ngesi 1986 (2) SA 244 (E).
[76] See generally Zeffertt & Paizes 346 et seq; Christie & Bradfield The Law of Contract in South Africa 200 et
seq.
[77] See, for example, Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA).
[78] Johnston v Leal 1980 (3) SA 927 (A) at 944B-C.
[79] Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates 1994 (1) SA 281 (W).
[80] Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates 1994 (1) SA 281 (W); Moodley v
Moodley and Another 1991 (1) SA 358 (D).
[81] S A I Investments v Van der Schyff NO and Others 1999 (3) SA 340 (N).
[82] Kok v Osborne and Another 1993 (4) SA 788 (SE); see also AXZS Industries v A F Dreyer (Pty) Ltd and
Others 2004 (4) SA 186 (W). Regarding third parties, see Swart v Janse van Rensburg and Another (688/06) [2008]
ZASCA 2 (29 February 2008).
[83] Standard Bank of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE); Standard Bank of SA Ltd v Cohen (2) 1993 (3)
SA 854 (SE). See, however, Philmatt (Pty) Ltd v Mosselbank Developments CC 1996 (2) SA 15 (A), as discussed in
§ 4 6 3 below.
[84] As for instance in the case of the Alienation of Land Act 68 of 1981.
[85] Avis v Verseput 1943 AD 331; Veenstra v Collins 1938 TPD 458; Du Plessis v Nel 1952 (1) SA 513 (A).
[86] Venter v Birchholtz 1972 (1) SA 276 (A); Johnston v Leal 1980 (3) SA 927 (A); De Klerk v Old Mutual
Insurance Co Ltd 1990 (3) SA 34 (E).
[87] Du Plessis v Nel 1952 (1) SA 513 (A); Venter v Birchholtz 1972 (1) SA 276 (A); Johnston v Leal 1980 (3) SA
927 (A); but also see Industrial Development Corporation of SA (Pty) Ltd v Silver 2003 (1) SA 365 (SCA).
[88] Pelser v Smith 1979 (3) SA 687 (T).
[89] Le Grange v Pretorius 1943 TPD 223; but evidence of a prior or contemporaneous oral agreement of a term
whereby the written agreement which had been implemented would fall away, is excluded (Sealed Africa (Pty) Ltd v
Kelly and Another 2006 (3) SA 65 (W)).
[90] Stiglingh v Theron 1907 TS 998; Thiart v Kraukamp 1967 (3) SA 219 (T); see, however, Zeffertt & Paizes
360-363 for an analysis of the difficulties in respect of such conditions.
[91] See Weinerlein v Goch Buildings Ltd 1925 AD 282; Benjamin v Gurewitz 1973 (1) SA 418 (A) and Meyer v
Merchants’ Trust Ltd 1942 AD 244.
[92] Weinerlein v Goch Buildings Ltd 1925 AD 282. Also see Ebrahim v Georgoulas 1992 (2) SA 151 (B) 153D-H.
For a contrary view on whether rectification is possible in circumstances where a document fails to comply with
statutory requirements, see Dowdle’s Estate v Dowdle and Others 1947 (3) SA 340 (T) and Kourie v Bean 1949 (2)
SA 567 (T). See generally Christie & Bradfield The Law of Contract in South Africa 343-349.
[93] “What is rectified is not the contract itself as a juristic act, but the document . . .”: Van der Merwe et al
Contract: General Principles 4 ed (2012) 153; “All that is to be done is, upon proper proof, to correct the mistake, so
as to reproduce in writing the real agreement between the parties”: Weinerlein v Goch Buildings Ltd 1925 AD 282
290. See Tesven CC and Another v South African Bank of Athens 2000 (1) SA 268 (SCA); [1999] 4 All SA 396 (A)
[16] and Martin Johnson Properties CC v Mutual and Federal Insurance Co Ltd [2010] 1 All SA 495 (KZP) [169]. See
also Christie & Bradfield The Law of Contract in South Africa 119.
[94] 1993 (3) SA 846 (SE).
[95] Section 6 of the General Law Amendment Act 50 of 1956.
[96] Standard Bank of SA Ltd v Cohen (2) 1993 (3) SA 854 (SE).
[97] Rectification, in other words, cannot be excluded by a clause in a contract except in clear and explicit terms. A
clause prohibiting variation or amendment or insertion is insufficient: Leyland (SA) (Pty) Ltd v Rex Evans Motors
(Pty) Ltd 1980 (4) SA 271 (W); Jarrosson Estates (Edms) Bpk v Oosthuizen 1985 (3) SA 550 (NC).
[98] 1996 (2) SA 15 (A).
[99] Also see Johnston v Leal 1980 (3) SA 927 (A) and Fraser and Another v Viljoen 2008 (4) SA 106 (SCA).
[100] Tesven CC and Another v South African Bank of Athens 2000 (1) SA 268 (SCA); [1999] 4 All SA 396 (A);
AXZS Industries v A F Dreyer (Pty) Ltd and Others 2004 (4) SA 186 (W).
[101] Zeffertt & Paizes 369 “The construction of documents is a subject so remote from the law of evidence. . .”
See further Christie & Bradfield The Law of Contract in South Africa 199 et seq for a discussion of contractual
interpretation.
Page 47
Section B
The Admissibility of Relevant Evidence
5 Relevance and Admissibility –S E van der Merwe

6 Character Evidence –P J Schwikkard
7 Similar Fact Evidence –P J Schwikkard
8 Opinion Evidence –E van der Berg and S E van der Merwe
9 Previous Consistent Statements –S E van der Merwe
Page 49
Chapter 5
Relevance and Admissibility
S E van der Merwe
51 Introduction
52 Rationale for the Exclusion of Irrelevant Evidence
53 The Meaning of Relevance and the Determination of Relevance
531 The issues (as the essential point of departure)
532 Reasonable or proper inference: assessing the potential weight of the
evidence
533 Avoiding a proliferation or multiplicity of collateral issues
534 The risk of manufactured evidence
535 Prejudicial effect
536 The doctrine of precedent
537 The principle of completeness
538 Constitutional imperatives and the position of the accused
54 Proposals of the South African Law Reform Commission
5 1 Introduction
Section 210 of the CPA provides that no evidence as to any fact, matter or thing shall be
admissible if irrelevant or immaterial and if it cannot conduce to prove or disprove any point
or fact at issue in criminal proceedings. Section 2 of the CPEA contains a substantially similar
provision. These sections serve as statutory confirmation of our common law and state the
rule in its negative form: irrelevant evidence is inadmissible. Courts, however, are inclined to
state the rule in its positive form: “[A]ll facts relevant to the issue in legal proceedings may
be proved.” [1]
The present chapter serves as an introduction to chapters 6–9, which respectively deal
with character evidence, similar fact evidence, opinion evidence, and evidence of previous
consistent statements. These four chapters are all directly concerned with the application of
the rule that irrelevant evidence is inadmissible (or, to put it differently, that relevant
|“The . . . isrule
evidence admissible). However, not all relevant evidence is necessarily admissible:
. . . is that any evidence which is relevant is admissible unless there is some
other rule of evidence which excludes it.” [2] Evidence — even if highly relevant and even if it
happens to be the only available evidence — must be excluded where, for example, it is
privileged. [3] Relevant evidence obtained in breach of constitutional rights may also be
excluded. [4] Relevance is therefore not the sole test for admissibility. Certain rules of
exclusion (which are largely discussed in
Page 50
chapters 10–17) also come into play. The law of evidence does not allow untrammelled
access to all relevant evidence. [5]
5 2 Rationale for the Exclusion of Irrelevant Evidence

Murphy states: [6]
“Because the purpose of evidence is [to] establish the probability of the facts upon which the success
of a party’s case depends in law, evidence must be confined to the proof of facts which are required
for that purpose. The proof of supernumerary or unrelated facts will not assist the court, and may in
certain cases prejudice the court against a party, while having no probative value on the issues
actually before it.”
To this can be added considerations of time, costs and inconvenience; the limitations of the
human mind; [7] the undesirability of a court being called upon to adjudicate matters which
are not related to the litigation at hand; the risk that the real issues might become clouded;
and, further, the obvious consideration that a party against whom irrelevant evidence is
adduced may find himself in a position where it could be difficult to defend himself. This last
consideration is of special importance to the criminally accused, who enjoy a constitutionally
guaranteed right to a fair trial.
The presiding judicial officer and the parties involved should ensure that irrelevancies are
not introduced. [8]
5 3 The Meaning of Relevance and the Determination of

Relevance
Relevance is a matter of degree [9] and is certainly easier to identify in practice than to
describe in the abstract. But the following may be useful:
(a) Stephen provides the following classical formulation: [10]
“The word ‘relevant’ means that any two facts to which it is applied are so related to each other
that according to the common course of events one either taken by itself or in connection with
other facts proves or renders probable the past, present, or future existence or non-existence of
the other.”
(b) Rule 401 of the Federal Rules of Evidence of the United States of America defines
relevant evidence as follows:
“Evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.”
Page 51
(c) Van Wyk has put forward the following: [11]
“[G]etuienis [is] relevant . . . wanneer dit oor die vermoë beskik, hetsy alleenstaande of tesame
met ander bewysmateriaal, om die bestaan van ’n feit in geskil, direk of indirek, meer of minder
waarskynlik te maak.”
(d) In DPP v Kilbourne Lord Simon said: [12]
“Evidence is relevant if it is logically probative or disprobative of some matter which requires

proof. I do not propose to analyse what is involved in ‘logical probativeness’ except to note that
the term does not of itself express the element of experience which is so significant of its
operation in law, and possibly elsewhere. It is sufficient to say . . . that relevant evidence, ie
logically probative or disprobative evidence, is evidence which makes the matter which requires
proof more or less probable.”
It would be wrong to accept or assume that evidence is admissible simply because of its
logical relevance. “Logical relevance”, states McEwan (correctly, it is submitted), “is a sine
qua non of admissibility; but it cannot guarantee that the evidence will be admitted; in fact,
on its own it is far from sufficient.” [13] What, then, are the precise factors and considerations
which place a check on the admissibility of all evidence which is logically probative or
disprobative?
5 3 1 The issues (as the essential point of departure)

Relevance (and therefore admissibility) cannot be decided in a vacuum. In S v Zuma Van der
Merwe J said: “[T]he question of relevancy can never be divorced from the facts of a
particular case before court.” [14] The nature and extent of the factual and legal dispute must
be considered. In Lloyd v Powell Duffryn Steam Coal Co Ltd it was said that the very first
question that must be asked in deciding admissibility is: “What are the issues?” [15] The term
“relevance” finds concrete application not only in the light of the primary facta probanda but
also the secondary facta probanda (the facta probantia which are in dispute). In S v Mayo
and Another Jones J held as follows: [16]
“It is not in the interests of justice that relevant material should be excluded from the Court, whether
it is relevant to the issue or to issues which are themselves relevant to the issue but strictly speaking
not in issue themselves, and this includes the credibility of witnesses, provided that the question of
their credibility is in some way related to the issues or matter relevant to the issues . . . There
remains the question of relevance. I am not satisfied on the information which is presently before me
that the pocket book in question is relevant to any of the issues in this case. It is certainly not
relevant to the main issues. Their contents do not appear to me to be relevant to issues which are
relevant to those issues and they are not presently at any rate even relevant to credibility because it
has not anywhere been suggested that the witness has said anything which will be contradicted by
accused No 1, in so far as the content of his pocket book is concerned. It is not in the interest of
justice that irrelevant information should be made available to the defence and used for the purposes
of cross-examination, because justice requires that there be an end to cross-examination and that
only relevant matter should in fact be canvassed. It seems to me therefore, that, in so far as the issue
of relevance is concerned, the application should fail and I should rule against the applicant at this
stage.”
Page 52
In R v Solomons [17] it was held that, subject to considerations of prejudice, a ruling on the
admissibility of evidence could at a later stage be reversed in the light of new factual issues
which might come to light during the course of the trial. Decisions on the admissibility of
evidence are interlocutory and may therefore be re-assessed in the light of new facts.
5 3 2 Reasonable or proper inference: assessing the potential weight of

the evidence
“[F]acts”, it was said in Rex v Mpanza, [18] “are . . . relevant if from their existence
inferences may properly be drawn as to the existence of a fact in dispute.” In Rex v
Trupedo [19] it was held that no proper inference could be drawn from the behaviour of a
police dog in its identification of a suspect. The evidence was rightly excluded as being
irrelevant. [20]
Almost seven decades after the decision in Trupedo the Appellate Division again came to a
similar conclusion in S v Shabalala, [21] where Nestadt JA also pointed out that if the weight
of the evidence “is so inconsequential and the
Page 53
relevance accordingly so problematical, there can be little point in receiving the

evidence . . .” [22] of identification by a police dog trained for purposes of identifying suspects
by scenting.
There was also no proof “that an individual has, as far as dogs are concerned, a scent
peculiar to himself”. [23] The evidence was excluded.
In order to determine whether a reasonable or proper inference might eventually be
possible the court must make a provisional or tentative assessment of the potential weight
of the evidence sought to be adduced. There must at least be some advance indication that
the evidence, if received, would be of reasonable assistance to the court in the exercise of its
ultimate fact-finding duty. Zuckerman explains that where the relevance or irrelevance of
evidence is the issue and potential probative weight must be assessed, [24]
“[t]he judge is not concerned to estimate the final weight of any piece of evidence. At the
admissibility stage he is only concerned to make a rough and ready estimate of the potential
contribution that the evidence in question might make and whether it is substantial enough to justify
admission. The admissibility test is therefore a composite test made of a mesh of considerations of
logical probabilities and of practical utility . . . On some occasions the potential contribution of the
evidence adduced will be immediately apparent; for example, the testimony of an eyewitness to the
disputed event. At other times its potential will only emerge from a juxtaposition of the evidence in
question and other pieces of known facts. If upon the presentation of an individual piece of evidence
the judge is in doubt about its relevance, he will ask the party offering it how it relates to the rest of
the evidence he plans to adduce. If a publican claims that the brewer supplied him with bad beer,
then the fact that the same brewer supplied another pub with bad beer might not be of sufficient
weight to be admissible. But it would become sufficiently weighty if it is also shown that it is one of
five incidents of supply of bad beer by the same brewer in the same neighbourhood within the space
of a day.”
Obviously, the court’s initial assessment of the potential weight of the evidence is done for
purposes of determining admissibility; and such evidence as may be admitted must
ultimately at the end of the trial be re-assessed in the light of all the other evidence for
purposes of determining sufficiency, that is, whether the required and applicable standard of
proof has been attained.
5 3 3 Avoiding a proliferation or multiplicity of collateral issues

There is a “desire to avoid waste of time in probative exertions more or less off the bull’s eye
of litigation”. [25]
In determining the relevance of evidence the court should of necessity also consider the
following question: would the admission of the evidence lead to a
Page 54
protracted investigation into many collateral or side-issues which — once determined —

would be of little probative value as regards the true issues? A proliferation of side-issues
can, for example, arise where a court decides to admit evidence of the results of a polygraph
test (a lie-detector test). [26] Was the polygraphist competent? Was he an expert in this fairly
novel “technique” of determining credibility? Were appropriate questions asked during the
session? Did the machine function properly? How reliable is the final result? Once all these
subsidiary issues — and a host of other related but collateral issues — have been determined
the court may merely end up with the following fairly useless result: the opinion of someone
else that the witness concerned is truthful or untruthful according to a test which has as yet
not received universal or broad acceptance in the scientific world. There is a real risk that
the drawn-out and time-consuming investigation of collateral issues would not justify the
final result. The game is not worth the candle. At any rate, it is the duty of the court to make
findings of credibility wherever necessary. [27]
In S v Nel [28] Marais J agreed with the trial court’s refusal to allow an accused to lead
psychiatric evidence. The purpose of this proposed evidence was to show that a defence
witness who in her testimony had contradicted aspects of the accused’s testimony was
“mildly to moderately retarded” and therefore likely to “clamp up” under the strain of
testifying in court. Marais J — following R v Turner [29] and distinguishing S v Thurston en ’n
Ander, [30] Lowery v The Queen [31] and Toohey v Metropolitan Police Commissioner [32] —
remarked as follows: [33]
Page 55
“Differences in intelligence, ability to recall, ability to articulate, and the like are commonplace and
courts are well aware that they exist. The ad hoc assessments of such matters which courts make as
part of the daily round of hearing witnesses testify are an integral and prominent part of the judicial
function. Deficiencies in any of these abilities are not likely to remain hidden or obscured if the
questioning of the witness is thorough, as it should be. Once the door is opened to evidence of this
kind when is it to be shut? If a witness happens to have undergone an intelligence test and it shows
the witness to be of high or low intelligence, is it to be received? Are school teachers or university
dons to be called to say whether or not a witness was stupid or clever when at school or university?
Or that he had a particularly good or poor memory. Is a distinction to be drawn between such
witnesses and a professional psychiatrist or psychologist because of the latter’s expertise in matters of
the mind? The questions are rhetorical but they show, I think, that this is an evidential Pandora’s box
which we are being invited to open . . . All of this has of course nothing to do with the entirely
different question of whether psychiatric evidence may be led to show that a witness is insane and
therefore incompetent to testify. Different considerations apply there. I do not think there is any real
analogy between cases of physical affliction which adversely affect the capacity of a witness to testify
accurately and reliably and intellectual and psychological disabilities of a relatively normal kind. A
court cannot tell merely by looking at and listening to a witness that he is so shortsighted that he
could not possibly have identified correctly a person who was 100 metres away at the time. Evidence
to establish that he is shortsighted should obviously be admissible. But intellectual and psychological
disabilities affecting personality, powers of exposition and articulation, ability to recall, and the like
are capable of being assessed reasonably adequately while the witness is engaged in giving evidence.
No doubt it will be said by some that a more accurate and reliable assessment is likely to be made if
evidence, and particularly expert evidence, specifically directed towards such matters is heard?
Perhaps so. But then, as against that, one must weigh the cost of this additional and inessential
assistance in terms of the prolongation of trials, its availability in relatively few centres and not in
others, and its lack of affordability for many in both criminal and civil trials. The cost is likely to
exceed by far the marginal benefit which would be gained in the administration of justice by the
admission of such evidence.”
Obviously, the court’s initial assessment of the potential weight of the evidence is done for
purposes of determining admissibility; and such evidence as may be admitted must
ultimately at the end of the trial be re-assessed in the light of all the other evidence for
purposes of determining sufficiency, that is, whether the required and applicable standard of
proof has been attained.
The reasoning of Marais J in S v Nel, was crisply formulated by Zeffertt in the following
terms: [34]
“The question is not solely one of logical relevance, but one of legal relevance. As Marais J observed,
the question is not confined to whether the opinion is ‘relevant’ in the sense that it could lead,
possibly, to a more reliable assessment by the court of a witness’s credibility. If the practical
disadvantages of receiving logically relevant evidence do not
Page 56
warrant its reception it will be legally irrelevant and inadmissible, but if its probative value outweighs
those disadvantages it will be of material assistance to the court, legally relevant, and admissible.”
5 3 4 The risk of manufactured evidence

The previous consistent statements of a witness are as a rule excluded (see §§ 9 1 and 9 2
below). One of the reasons for the exclusion of such a statement is that the admission
thereof “would make it a very straightforward matter for the unscrupulous to manufacture
evidence”. [35] Accordingly, there is a general rule, in the words of the Supreme Court of
Appeal in S v Scott-Crossley, that the previous consistent statement of the witness “has no
probative value”. [36] And it is on account of this normal lack of probative value, that it is
then said a previous consistent is irrelevant (see §§ 9 1 and 9 2 below). There are certain
established exceptions to the rule (see §§ 9 4 to 9 7 below). It can be argued that where
these exceptions apply, the risk of manufactured evidence is outweighed by the probative
value of the previous consistent statement — thus rendering the otherwise irrelevant
statement relevant and admissible (see, for example, § 9 5 below, where the rebuttal of a
suggestion of recent fabrication is discussed).
5 3 5 Prejudicial effect [37]
Evidence which is logically probative or disprobative can be excluded because of its

prejudicial effect on the party concerned. “Prejudice” in this context does not mean that the
evidence must be excluded simply because the party against whom the evidence stands to
be adduced will be incriminated or implicated. It means that incrimination or implication will
take place in circumstances where the party concerned may be procedurally disadvantaged
or otherwise exposed to a lengthy trial involving issues which, though logically relevant, are
legally too remote to assist the court in its ultimate decision on the merits. Evidence is
relevant if its probative value outweighs its prejudical effect. Proof of motive provides a good
example.
Evidence of an accused’s motive to commit a particular crime is generally relevant for
purposes of proving intention or identity. [38] In R v Kumalo & Nkosi Innes CJ gave the
following example: [39]
“The ordinary man does not perpetrate a grave criminal offence without a motive; and although it is
not essential, nor always possible, to ascertain what it was, the matter is often of considerable
importance. A crime for which no motive likely to affect the person charged can be assigned is difficult
to bring home. So that the presence of such a motive is an element in favour of the [prosecution],
and its absence an element in favour of the accused. Now it is seldom that direct evidence on the
point, such as would be afforded by the accused’s own statement, can be produced. In the majority of
cases the probable
Page 57
existence or non-existence of motive must be deduced from external circumstances. And such
circumstances may as a general rule be proved if they are relevant — that is to say if they are
circumstances from which the presence or absence of the particular motive may be reasonably
inferred. Thus, if a husband were charged with the murder of his wife, evidence that he had formed
an adulterous connection with another woman would be admissible as showing a possible motive for
the crime. On the other hand proof might be properly given of affectionate marital relations in order
to negative motive.”
The presence or absence of motive would be worth pursuing even if it results in further
issues such as: Was there an adulterous affair? Was the marriage a happy one? These issues
are not really collateral issues but issues which, once determined, can assist the court in
making a finding as regards the facta probanda. [40] And the prejudicial effect of the evidence
is outweighed by its potential probative value.
The above is an example of the relevance of a personal motive. However, in Rex v Kumalo
and Nkosi [41] the Appellate Division actually went a great deal further and held that evidence
of a motive for a crime is admissible against an individual even though its tendency is to
show that all members of a certain category, or even persons of a certain tribe generally,
would have had an inducement to commit the crime in question. Two accused had been
charged with and convicted of the murder of a child. The body was found in the veld. The
child’s throat was cut and the front part of the body was also cut open from the throat to the
fork of the legs. According to medical opinion the cutting open of the body had been done by
a skilled hand. The heart had been taken out and the left ventricle containing the fatty
portion had been removed. In order to furnish proof of a motive for the crime the
prosecution called an expert witness, one Hoffman, who testified that it was (at that stage)
the practice amongst Zulu tribes and especially on the part of Zulu witch-doctors to kill and
mutilate young persons and use portions of the body and particularly fat — as a charm
against ill-luck. It was found that Kumalo and his accomplice were not witch-doctors but
“native doctors”. The evidence concerning the practice of witch-doctors could therefore not
be admitted against the two accused. However, Innes CJ held that the expert evidence on
the custom of Zulu people generally was relevant and admissible against Kumalo: [42]
“[I]n deciding whether inferences as to motive could reasonably be drawn from Hoffman’s evidence,
we must have regard to those portions which dealt with the custom of Zulu tribes generally. And
according to his statements the members of those tribes believed firmly in the potency of human fat
not only as a charm against misfortune already sustained, but as ensuring good luck in the future,
and for love philters. They generally followed the advice of a witch-doctor, but they also used the
charm themselves. And in my opinion the existence of a motive for a crime like the present might be
reasonably deduced from the general custom or belief described if the accused were members of the
tribe or tribes referred to. Human fat taken from certain internal organs would possess a definite
value for them, and would be used for important purposes, and that fact might be fairly considered as
pointing to the existence of a motive for acquiring a substance which to other persons would be both
useless and repulsive. Generally the circumstance relied upon as showing motive stands in direct
connection with the person
Page 58
charged, and is clearly within his personal knowledge. Here it is merely a tribal custom. But the
customs of native tribes upon vital matters are universal and binding in a very high degree. And I see
nothing unreasonable or unfair in inferring from a well-established tribal custom such as has been
deposed to, the existence of motive for a crime, the leading feature of which was the removal of the
very substance to which the custom related. This conclusion, however, as already pointed out, is
based upon the assumption that the accused are members of the tribe in question. Hoffman spoke
about the customs among the Zulu tribes, and he stated that the first accused (Kumalo) was a Bacwa,
a tribe which was a Zulu off-shoot. But he could not say to what tribe the second accused belonged.
The evidence before us does not show him to have been a Zulu, and no inference could in his case be
reasonably drawn from Hoffman’s statement. That statement was therefore relevant as against the
first accused only. But being relevant against him it was rightly admitted . . .”
Solomon JA and C G Maasdorp JA came to a similar conclusion in their separate judgments,
albeit for slightly different reasons. It is submitted that the evidence which was held
admissible in Rex v Kumalo and Nkosi supra was far too tenuous to have warranted
admission. There was no link between Kumalo and the practice referred to by the expert
witness, except that Kumalo was a Zulu. There was no evidence that Kumalo had
experienced ill-luck or was expecting imminent ill-luck. There was no personal motive.
Solomon JA sought to circumvent this argument: [43]
“For Hoffman’s evidence would, in my opinion, supply a motive for the commission of the crime in the
case not only of Zulus falling under the class of witch-doctors, but also of members of that tribe in
general. For if it is a common belief amongst them that portions of the insides of young children have
a special value as medicine to be taken in case of ill-luck, it would follow that the possession of such
objects of value would be considered highly desirable by anyone sharing in that belief. There would be
a motive, therefore, on the part of every such person to kill a young child for the purpose of procuring
those portions of its inside which have a special value. It is impossible to conceive of any ordinary
civilized person killing a child simply for the purpose of extracting portions of its inside, for he would
have no possible object in doing so; but in the case of a Zulu such conduct is quite intelligible, for he
would have the motive of acquiring objects which in his opinion are of special value. The inducement
in such a case would be on the same footing as that of a man who commits murder for the purpose of
rifling the body of his victim of money or other valuables . . . It was argued indeed that evidence of
motive is admissible only when it is directed to something peculiar to the individual who is charged
with the commission of the offence, but not when it applies to a whole class or to persons in general.
But I can see no reason for insisting upon any such limitation. One man who commits a murder may
be actuated by a motive peculiar to himself, such as ill-will towards the deceased; another by a
motive which is common to people in general, such as the love of gain. And evidence of motive is in
my opinion admissible, even though its tendency is to show that all members of a class or even
persons generally would have an inducement to commit the crime in question. It is true that in the
present case the motive would naturally be a much stronger one if it had been proved that the
prisoners were witch-doctors, but we are not concerned with the adequacy of the motive, which was a
matter entirely for the jury.”
It is submitted that this kind of reasoning is unacceptable because it is gravely prejudicial to
the individual concerned. The evidence admitted by the Appellate Division was not really
evidence of motive (at any rate, not personal motive)
Page 59
but simply circumstantial evidence which, we submit, was irrelevant on account of its
extremely limited potential probative value and its likely prejudice to the accused. There was
no evidence that the gruesome practices referred to by the expert witness did not also exist
in other tribes.
In Rex v Kumalo and Nkosi the Appellate Division seems to have admitted irrelevant
generalisations. The situation is entirely different where there is a personal connection
between the impugned circumstantial evidence and the party concerned. In R v Masebe [44]
the accused was charged with murder. The deceased had been strangled. Identity was in
issue. In admitting evidence that the accused had on a prior occasion attempted to assault
the deceased with an axe, Maisels JA held: “[The evidence] is plainly admissible to show
desire on the part of the appellant to harm the deceased and is clearly relevant to the main
issue in this case, namely, whether the appellant was the person responsible for the murder
of the deceased.” [45] The fact that the accused had the means of committing the offence
with which she was charged, was found admissible in R v Christiaans. [46] In Rex v Kumalo
and Nkosi there were no personal threats as in Masebe and no evidence that the accused
had the personal means as in Christiaans, except for the fact that Kumalo was a “native
doctor” and a member of the Bacwa, an off-shoot of the Zulu.
R v Dhlamini [47] is a case where the potential probative value of the evidence clearly
outweighed the possible prejudice to the accused. In this case the prosecution alleged that
the accused had stabbed the deceased to death in a cul-de-sac at approximately 22:00, or
shortly thereafter. The defence of the accused was an alibi: he alleged that at the time and
date of the murder (which was the sole charge against him) he was at a dance
approximately sixteen kilometres from the cul-de-sac where the deceased was killed. The
defence objected to the evidence of N, a witness who was in a position to testify that at
approximately 21:50 on the evening in question and some 140 metres from the cul-de-sac
in question, the accused had stabbed her with a sharp instrument after she had rejected
some advances made by the accused. The essence of the defence’s objection was that the
admission of N’s evidence would have been highly prejudicial to the accused in that it related
to criminal conduct which did not form the subject of the charge against the accused.
However, the court admitted N’s evidence: “[A] very material issue . . . [is] . . . the alibi of
the accused . . . [N]’s evidence is vitally relevant to the question of the alibi . . . [H]er
evidence is admissible to rebut the accused’s alibi.” [48] N’s evidence was not admitted simply
in order to prove prior misconduct (in which event it would have been inadmissible for lack
of relevance). Having regard to the issue of identity as raised by the defence, the potential
value of N’s evidence clearly outweighed the measure of prejudice, if any, that the accused
would have experienced in countering this evidence. [49]
Page 60
5 3 6 The doctrine of precedent

Judicial precedent can determine the relevance (admissibility) — but not the final weight [50]
— of certain types of evidence. In S v Shabalala [51] Nestadt JA came to the conclusion that
the judgment of Innes CJ in Rex v Trupedo [52] did not rest solely on a factual finding
concerning the reliability or otherwise of the particular dog whose activities and abilities
were in issue, but was essentially rooted in the principle that evidence of the conduct of dogs
in identifying an accused by scenting is inadmissible. [53] However, Nestadt JA did point out
that if the untrustworthiness of such evidence could be sufficiently reduced — even though
not totally removed — then “actions of the dog would become relevant and evidence thereof
admissible”. [54] It would seem that a cautious approach is necessary before boldly invoking
judicial precedent to decide on admissibility where relevance is the issue. Facts differ from
case to case and precedent can therefore at most provide useful guidelines.
5 3 7 The principle of completeness [55]
A court should not exclude harmless irrelevant evidence. A witness should as a rule and
within limits be permitted to tell a coherent story, and in so doing provide the court with the
general background to the disputed event. [56]
Page 61
5 3 8 Constitutional imperatives and the position of the accused

It has been argued that “the defence should have more liberal rights than the prosecution to
adduce evidence which may not be of especially high probative value”. [57]
This argument has some weight in a constitutionalized system, such as ours, where an
accused has a constitutionally guaranteed right to a fair trial, which includes the right to
adduce and challenge evidence. [58] However, the rule that irrelevant evidence is
inadmissible (as provided in s 210 of the CPA and referred to in § 5 1 above) is in terms of
s 36 of the Constitution most certainly a constitutionally permissible limitation of the right to
adduce and challenge evidence. There cannot be an unqualified right to adduce irrelevant
evidence or to “challenge” admissible evidence with irrelevant evidence. Such a right would
make no sense.
But there is room for an argument that where the extremely limited probative value of the
evidence would normally have justified a finding of inadmissibility on account of irrelevance,
the court should — in order to protect an accused’s constitutional right to a fair trial — lean
in favour of admissibility. The decision of the Supreme Court of the USA in Rock v
Arkansas [59] might be a case in point. In this case the accused, charged with “manslaughter”
for the death of her husband, could not recall all the details of the fatal event. At the
suggestion of her lawyer, she agreed to undergo pre-trial hypnosis to refresh her memory.
Her memory as it stood prior to hypnosis was recorded. She was thereafter hypnotised by a
neuropsychologist specially trained in hypnosis. After the hypnosis session, the accused was
able to recall the details of the events that led to her husband’s death. The trial court ruled
that she could only testify to matters she remembered prior to the hypnosis. She was
convicted.
The Supreme Court of Arkansas confirmed the conviction. [60] It was held that whilst the
accused had the fundamental right to testify in her own defence, such right was not
limitless [61] and could validly be restricted by the standard rules of evidence. [62] The
Supreme Court of Arkansas also held that the dangers of admitting evidence based on what
emerged as a result of the pre-trial hypnosis, “outweigh whatever probative value it may
have.” [63] It was concluded that “nothing was excluded that would have been of much
assistance” [64] to the accused.
The approach of the Supreme Court of Arkansas was rejected by a five to four majority in
the Supreme Court of the USA. [65] Blackmun J, writing for the
Page 62
majority, held that the court a quo had “failed to perform the constitutional analysis that is
necessary” [66] when an accused’s constitutional right to testify is at stake. Blackmun J noted
that there were serious risks attached to the admission of hypnotically refreshed
testimony. [67] But he nevertheless held that constitutional due process demanded admission
and that a per se rule of exclusion in respect of hypnotically enhanced testimony was
arbitrary, especially since it could not — in the absence of acceptable evidence to the
contrary — be accepted that such testimony “is always so untrustworthy” that an accused
should be prohibited from presenting it. [68]
The decision in Rock v Arkansas, based as it is on constitutional due process, does not
extend to the situation of prosecution witnesses. [69]
5 4 Proposals of the South African Law Reform Commission

The South African Law Reform Commission (“SALRC”) has recommended that s 210 of the
CPA and s 2 of the CPEA (see § 5 1 above) should be repealed and the following enacted: [70]
“A. (1) Relevant evidence, is evidence that, if it were accepted, could rationally affect (directly or
indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) Evidence is not irrelevant because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence: or
(c) a failure to adduce evidence.
B. (1) Subject to the provisions of any other law, evidence that is relevant is admissible.
(2) Evidence that is not relevant is not admissible.
Page 63
C. (1) A court may refuse to admit evidence if its probative value is substantially outweighed by the
danger that the evidence might:
(a) be unfairly prejudicial to a party: or
(b) cause or result in undue waste of time.
(2) When determining whether the probative value of evidence is outweighed by the risk that
evidence will have an unfairly prejudicial effect, a presiding officer may not adopt assumptions or
make generalizations that are in conflict with the constitutional values embodied in the Constitution of
the Republic of South Africa 108 of 1996.
D. A court may provisionally admit evidence subject to evidence being later offered which
establishes its admissibility.”
The SALRC itself has noted that “[t]he absence of a legal definition of relevance does not
seem to have given rise to any difficulties in practice.” [71] It nevertheless felt that there
were no apparent disadvantages in defining relevance. The SALRC based many of its
proposals on the existing position in South Africa and developments in New Zealand and
Australia. The wisdom of “codifying” principles governing relevance, is highly debatable. “The
question whether evidence is relevant”, it was said in R v Guney, “depends not on abstract
legal theory but on the individual circumstances of each case.” [72]
[1] Rex v Trupedo 1920 AD 58 62; S v Gokool 1965 (3) SA 461 (N) 475G: “The law of evidence is foundationally
based on the principle that evidence is admissible if it is relevant to an issue in the case.”
[2] R v Schaube-Kuffler 1969 (2) SA 40 (RA) 50B.
[3] But see also § 10 3 3 below, where S v Safatsa and Others 1988 (1) SA 868 (A) is discussed.
[4] See ch 12 below, where the provisions of s 35(5) of the Constitution are discussed.
[5] Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 4.
[6] Murphy A Practical Approach to Evidence 10 ed (2008) 25.
[7] Zuckerman The Principles of Criminal Evidence (1989, reprinted 1992) 49.
[8] See generally Nomandela v S [2007] 1 All SA 506 (E) at 507i.
[9] Hoffmann 1974 SALJ 237 238. In R v Randall [2004] 1 WLR 56 at [20] Lord Steyn said: “A judge ruling on a
point of admissibility involving an issue of relevance has to decide whether the evidence is capable of increasing or
diminishing the probability of the existence of a fact in issue. The question of relevance is typically a matter of
degree to be determined, for the most part, by common sense and experience.” Paizes in Du Toit et al Commentary
24-22B points out that “questions relating to relevance may not be resolved by resorting to juridical formulae but
rather to reason and common sense”.
[10] Stephen Digest of the Law of Evidence 12 ed (1914) art 1. See Holtzhauzen v Roodt 1997 (4) SA 766 (W)
776D-E where, it seems, Satchwell J found this definition too restrictive. This case is discussed in § 8 6 below.
[11] Van Wyk 1978 THRHR 175.
[12] DPP v Kilbourne 1973 AC 729 756.
[13] McEwan Evidence and the Adversarial Process: The Modern Law 2 ed (1998) 33-4.
[14] 2006 (2) SACR 191 (W) 199f-g.
[15] 1914 AC 733 738. See also the discussion of R v Dhlamini 1960 (1) SA 880 (N) in § 5 3 5 below.
[16] 1990 (1) SACR 659 (E) 661f-662e.
[17] 1959 (2) SA 352 (A) 362E-F.
[18] 1915 AD 348 352 (and cited with approval in S v Mavuso 1987 (3) SA 499 (A) 505B). The “drawing of
reasonable inferences” as a factor determining admissibility, was also emphasised in S v Sewnarain 2013 (1) SACR
543 (KZP) at [20] where reference was also made to S v Yengeni and Others (1) 1991 (1) SACR 322 (C) at 324f.
See also generally R v Sole 2004 (2) SACR 599 (Les) at 660j-661b, where Cullinan J noted that the drawing of
proper inferences ought to be a matter of common sense. At 661b he found himself in agreement with the following
statement made by Schreiner JA in R v Matthews and Others 1960 (1) SA 752 (A) at 758, namely that relevance is
“based upon a blend of logic and experience lying outside the law”.
[19] 1920 AD 58.
[20] In Trupedo supra evidence concerning the behaviour of a trained police dog towards an accused was admitted
in the court a quo to prove that he had committed the crime. On appeal it was submitted that evidence of this kind
was inadmissible because no inferences could properly be drawn from the behaviour of police dogs towards an
accused. At 62 Innes CJ remarked as follows (our emphasis): “The general rule is that all facts relevant to the issue
in legal proceedings may be proved. Much of the law of evidence is concerned with exceptions to the operation of
this general principle, as for example the exclusion of testimony on grounds of hearsay and remoteness. But where
its operation is not so excluded it must remain as the fundamental test of admissibility. And a fact is relevant when
inferences can be properly drawn from it as to the existence of a fact in issue.” Innes CJ also pointed out that the
admission of evidence relating to the behaviour of the dog towards the accused would amount to entering “. . . a
region of conjecture and uncertainty”. At 64 it was concluded that there was too great an element of uncertainty to
justify the court in drawing inferences from this kind of evidence in the course of legal proceedings. The evidence of
the behaviour of the police dog was therefore found to be inadmissible because of its irrelevance. In R v Kotcho 1918
EDL evidence of identification by a police dog was also excluded as irrelevant and inadmissible. At 104 Graham JP
said: “It does not appear to me that, without legislation, such class of testimony can be admitted. And I think it
would need very careful consideration before any such legislation should be introduced.” In 1971 the police made
representations to the Commission of Inquiry into Criminal Procedure and Evidence (the Botha Commission) for the
recommendation of legislation which would make such evidence admissible. The Botha Commission refused to do so
on the following grounds: “Because the fundamental test of admissibility of evidence in our law is the relevancy
thereof, legislation which seeks to admit evidence which is irrelevant, would be undesirable. In Kotcho’s case
Graham JP at page 103 et seq, moreover draws attention to the dangers to which the admissibility of such evidence
would unquestionably lead, because the possibility that a police dog could make a mistake, cannot be excluded, and
there is no way of establishing whether such a mistake was made, or not, or could possibly have been made. In view
of all these circumstances the proposal of the police cannot be supported and no recommendation is made.” See
para 11 06 6 of the Report of the Commission of Inquiry into Criminal Procedure and Evidence (RP 78/1971).
[21] 1986 (4) SA 734 (A).
[22] At 743F.
[23] At 743F. Shabalala supra is discussed by Van Oosten 1987 SALJ 531. It must be noted that circumstances
might be such that in appropriate cases reasonable inferences can be drawn from the behaviour of police dogs. See
generally S v Moya 1968 1 PH H148 (GW); Barrie 1967 (2) Codicillus 44 and Hoffmann 1974 SALJ 237. In Trupedo
supra it was also specifically pointed out that evidence of an animal’s instinctive behaviour — as opposed to acquired
behaviour — may be admissible. See also Poswa v Christie 1934 NPD 178.
[24] Zuckerman The Principles of Criminal Evidence 51.
[25] Maguire Evidence: Common Sense and Common Law (1947) 205. See also Poswa v Christie 1934 NPD 178
128h, where Hoffmann J concluded that the evidence in dispute had “in itself insufficient weight to justify the
exploration of otherwise irrelevant issues which its admissibility would require”.
[26] See generally Van der Merwe 1981 De Rebus 576.
[27] In Holtzhauzen v Roodt 1997 (4) SA 766 (W) the defendant wanted to lead the evidence of W, an expert
hypnotherapist, to testify that in his opinion the defendant was telling the truth about a rape incident that happened
on the plaintiff’s farm, and that in his opinion the defendant was penetrated by the plaintiff as described to him (W)
by the defendant during hypnotherapy sessions that he had with the defendant. Satchwell J excluded the evidence as
irrelevant on several valid grounds (see §§ 8 6 and 9 2 below) and also held that the proposed evidence of W would
shift the fact-finding responsibility of the court to the witness. Another way of looking at it would be to say that
admission of W’s evidence would have led to a proliferation of issues. Are statements made under hypnosis reliable?
Could the defendant have tricked W? Was the procedure followed by W scientifically acceptable? Should the plaintiff
then also have been given an opportunity to call an expert hypnotherapist to testify on his credibility and the
truthfulness of his allegations that there was no rape as alleged?
[28] 1990 (2) SACR 136 (C).
[29] 1975 1 All ER 70. In this case it was held that expert evidence is inadmissible where the issue can be decided
by the court (or jury, as the case may be) on the basis of its own experience and knowledge. Expert psychiatric
evidence is not needed to inform a court or jury how a person — not suffering from any mental abnormality or illness
— is likely to react to the stresses and strains of life. See also R v Gilfoyle 2001 2 Cr App R 57.
[30] 1968 (3) SA 284 (A).
[31] 1973 3 All ER 662. In Lowery L and K were charged with the murder of a girl, committed without apparent
motive and in circumstances which indicated that one of them, or the two of them acting in concert, had killed the
girl. L and K had so-called “cut-throat defences”, that is, each blamed the other. The Privy Council concluded that the
trial court had correctly admitted the evidence of a psychologist who was called by K and who testified that, having
examined both K and L, the latter was on account of his aggressive nature and lack of self-control more likely to
have committed the murder than K, who had an immature personality and was likely to have been dominated by the
more aggressive L. The evidence of the psychologist was relevant in support of K’s case, that is, to show that his
version was more probable than the version of L, who claimed that he was not the sort of person who would have
committed the murder. Lowery is an example of a case where the introduction of further issues — the psychologist’s
comparative analysis of the personalities involved — was considered acceptable because the ultimate determination
of these issues could assist the trier of fact. Lowery was relied upon by the House of Lords in R v Randall [2004] 1
WLR 56 at [29] and [30] for the proposition that evidence (but not necessarily expert evidence) of the propensity of
an accused to violence is relevant to the issue of which of two accused was more likely to have resorted to violence.
[32] 1965 1 All ER 506. See also generally Pattendon “Conflicting Approaches to Psychiatric Evidence in Criminal
Trials: England, Canada and Australia” 1986 Crim LR 92.
[33] Nel supra 142j-143f.
[34] 1990 ASSAL 502. Emphasis in the original.
[35] Cowsill & Clegg Evidence: Law and Practice 3 ed (1990) 207-8.
[36] 2008 (1) SACR 223 (SCA) at [17].
[37] In S v Papiyana 1986 2 PH H115 (A) the appellant at his trial appeared in prison clothes and with his feet
shackled in leg-irons. The court (at 206) compared this “information” with “evidence which . . . [should be] . . .
excluded on the ground that its relevance is too tenuous to compensate for its prejudicial nature”. The question
whether evidence has sufficient probative value to outweigh its prejudicial effect, “is a matter of degree in each
case”. See Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC) at [55].
[38] S v Sithole 1980 (4) SA 148 (D) 150.
[39] 1918 AD 500 504.
[40] See § 5 3 3 above.
[41] 1918 AD 500.
[42] Kumalo & Nkosi supra 505-6.
[43] Kumalo & Nkosi supra 508-9.
[44] 1972 2 PH H127 (BAC).
[45] At 217.
[46] 1925 TPD 868 875.
[47] 1960 (1) SA 880 (N).
[48] At 881A-C.
[49] See also generally R v P 1991 3 All ER 337 (HL).
[50] In Rex v C 1949 (2) SA 438 (SR) the accused was charged with sodomy. The prosecution sought to adduce
evidence that six days after the alleged commission of the offence the accused had attempted to commit suicide.
This evidence was held admissible. At 439 Tredgold J held as follows (emphasis added): “In this matter the Crown
tenders in evidence certain documents relating to the fact that the accused, subsequent to the charge being laid
against him, attempted to commit suicide. The main principle involved is the question as to whether attempted
suicide is admissible evidence, the letters being purely subsidiary to that attempt, but necessary to explain it, not
only from the Crown’s point of view, but from the accused’s point of view. Now, I must remember at this juncture
that I am not concerned with the weight which may be attached to this evidence. I am simply concerned with its
admissibility, and I have no doubt whatsoever that it is legally admissible and that there is nothing improper in the
Crown’s leading this evidence. It is quite clear on the authorities which have been quoted that the behaviour of the
accused subsequent to the allegations being made against him is relevant and is admissible in evidence. The weight
to be attached to that behaviour must vary greatly according to the particular circumstances of each case. But that is
a matter to be decided by the jury, and not by myself. Amongst the matters which are expressly mentioned as being
relevant is flight to avoid facing the charge laid against him, by the accused. Now, it seems to me that that covers in
principle the case in which an accused person attempts to avoid facing the charge by committing suicide. The exact
weight to be attached to any such attempts need not be dealt with now, and I think it is best reserved for the
summing-up. But I may say in conclusion that, although I am unable to recollect any specific case, I am quite
satisfied that evidence of such attempts has been led before this Court on more than one occasion, and that the
evidence is admissible, and that it is for the jury to decide in all the circumstances of this particular case how far
they should regard it as favourable or unfavourable to the accused.”
[51] 1986 (4) SA 734 (A).
[52] 1920 AD 58.
[53] Shabalala supra 741G-H.
[54] Shabalala supra 741-742A.
[55] In Palmer v Minister of Safety and Security 2002 (1) SA 110 (W) it was said that the need for having a
complete picture may require reception of facts neither in issue nor relevant because they are inextricably bound up
by factors of time, place and circumstances with facts in issue or relevant facts.
[56] Dennis The Law of Evidence 3 ed (2007) 10.
[57] Choo 1993 Crim LR 114 at 125. See also generally Mahoney The Right to Present a Defense (2011) 85-89.
[58] See s 35(3)(i) of the Constitution.
[59] 107 S Ct 2704 (1987).
[60] Rock v State 708 SW 2d 78 (1986).
[61] Rock v State supra at 84.
[65] For a detailed analysis of Rock v Arkansas supra, see Kuplicki “Fifth, Sixth and Fourteenth Amendments — A
Constitutional Paradigm for Determining the Admissibility of Hypnotically Refreshed Testimony” 1987 7 Supreme
Court Review 853.
[66] Rock v Arkansas supra at 2712.
[67] Rock v Arkansas supra at 2713-4. See also generally Diamond “Inherent Problems in the Use of Pretrial
Hypnosis on a Prospective Witness” 1980 68 California LR 313.
[68] Rock v Arkansas supra 2714.
[69] Relying on Rock v Arkansas supra and the article by Kuplicki referred to in n 65 above, Van der Merwe 1996
Obiter 1-2 has suggested the following: “The constitutional trial rights of the accused, it would seem, give rise to a
bifurcated rule of admissibility. Hypnotically refreshed testimony by state witnesses should as a general rule be
excluded because such evidence seriously impairs the constitutional right of the accused to challenge evidence by
way of cross-examination. Due process is denied. However, hypnotically refreshed testimony by the accused (or any
other defence witness) should as a rule be admitted. The accused has a constitutional right to adduce evidence. . . It
is submitted that the bifurcated rule of admissibility — despite its constitutional basis — remains subject to the
fundamental evidentiary rule that irrelevant evidence must be excluded. Where it is patently clear to the court that
the technique (hypnosis) and its product (a hypnotically induced memory) cannot yield reasonably accurate results
(potentially reliable evidence), the evidence must be excluded regardless of the fact whether a prosecution or
defence witness (including an accused) is involved. However, where the court is merely in doubt as regards the
potential reliability of the hypnotically induced testimony, the bifurcated rule of admissibility must come into play:
Such testimony must be admitted when offered by the defence. This is necessary in order to comply with
constitutional provisions. But the ultimate rule — which over-rides the constitutional trial rights of the accused — is
the rule that only relevant evidence may be received.” Emphasis in the original. However, the position as regards
state witnesses is that the hypnotically refreshed testimony is inadmissible. See R v Trochym [2007] 1 SCR 239
where the Supreme Court of Canada held that such evidence is presumptively inadmissible for evidentiary purposes.
[70] See para 3 31 of the SALRC’s Review of the Law of Evidence (Hearsay and Relevance): Discussion Paper 113,
Project 126.
[71] Para 3 30 of Discussion Paper 113.
[72] 1998 2 Cr App Rep 242 246.
Page 64
Chapter 6
Character Evidence
P J Schwikkard
61 Introduction
62 Character in Criminal Cases
621 The character of the accused
622 Evidence of the accused’s bad character
6231 Section 197(a)
6232 Section 197(b)
6233 Section 197(c)
6234 Section 197(d)
625 Witnesses other than the accused
626 Character of the complainant
6261 Rape or indecent assault
6262 Crimen iniuria
63 Character in Civil Cases
6 1 Introduction
This chapter and chapter 7 deal with the subject of what evidence, pertaining to character
and disposition, may be adduced. Whilst chapter 7 deals specifically with similar fact
evidence, this chapter deals with the admissibility of evidence relating to the character of
witnesses or the accused or parties in civil proceedings, as the case may be.
Historically a distinction was drawn between different forms of character evidence. The
two primary categories were (a) general reputation [1] and (b) a person’s disposition to think
or act in a particular way. It would appear that, in the nineteenth century, the English
common law preferred evidence of general
Page 65
reputation as a means of establishing character rather than “disposition evidence”. [2]
However the modern law of evidence does not reflect this preference. [3]
|
The rules pertaining to character evidence applicable in criminal and civil cases are dealt
with separately below.
6 2 Character in Criminal Cases

6 2 1 The character of the accused
In terms of s 227(1) of the CPA the admissibility of character evidence of the accused is
determined by the rules in force on 30 May 1961, these being the rules of English law. The
common-law rules need to be read together with the relevant statutory provisions. [4]
The general rule is that the accused may adduce evidence of his own good character, [5]
but the prosecution is prohibited from adducing evidence of his bad character, subject to
specified exceptions.
The reason for permitting evidence of the accused’s good character is to be found in the
dictum of Willes J in R v Rowton, [6] in which the court held that “such evidence is admissible
because it renders it less probable that what the prosecution has averred is true. It is strictly
relevant to the issue.” [7] Evidence of the accused’s bad character is excluded in English law
because it might “have a disproportionately prejudicial effect upon the jury” and because it
is generally considered to be irrelevant. [8] The latter reason presumably forms the basis for
the rule in South African law. While the irrelevance of general reputation is fairly self-evident
the same is not necessarily true for disposition evidence. It is frequently posited that past
behaviour is a good indicator of likely future conduct. Consequently, disposition evidence
may well be logically relevant in
Page 66
establishing the likelihood of a particular behaviour occurring. [9] Perhaps the irrelevance of
disposition evidence lies in the prejudice of a generalised application of claims of social
psychology as well as a residual scepticism as to the accuracy of past behaviour as a
predictor of future behaviour.
There are a number of ways in which an accused may try and establish her good
character: by the accused giving evidence herself, by calling witnesses to testify on her
behalf, [10] or by cross-examining prosecution witnesses. [11] However, once the accused
herself, or through calling witnesses, adduces evidence as to her good character the
prosecution can respond by introducing evidence of bad character. [12] The accused may also
render herself liable to cross-examination as to bad character in terms of s 197 of the CPA
(see §§ 6 2 3 to 6 2 3 4 below).
6 2 2 Evidence of the accused’s bad character

Once the accused has adduced evidence as to her own good character the prosecution may
respond in three different ways: (i) adducing evidence of bad reputation; (ii) cross-
examining character witnesses; and (iii) cross-examining the accused. [13]
If the accused attacks the character of prosecution witnesses but does not adduce
evidence as to her own good character, the prosecution may not adduce evidence of the
accused’s bad character. [14] In these circumstances the prosecution will be limited to cross-
examining the accused as to character in terms of s 197(a) of the CPA (see § 6 2 3 1 below).
In R v Butterwasser [15] the court of criminal appeal held that the defence’s cross-
examination of the prosecution witnesses as to their previous convictions did not permit the
prosecution to call a police officer to testify as to the accused’s previous convictions. The
reason given by the court was that the attack on the prosecution witnesses was directed at
putting their character in issue and not the character of the accused. [16]
Where the prosecution does call witnesses to testify as to the accused’s bad character
they may in theory only state what they know about the accused’s general reputation. [17]
However, as discussed above at § 6 1 this doctrine appears to not be enforced by
contemporary courts where the similar fact rule applies. The prosecution is restricted by the
similar fact rule, which prohibits evidence of past misconduct on the part of the accused
where the sole relevance of the evidence is the accused’s disposition. Similar fact evidence is
discussed in chapter 7.
Page 67
6 2 3 Section 197 of the CPA

Section 197 of the CPA reads as follows:
“An accused who gives evidence at criminal proceedings shall not be asked or required to answer any
question tending to show that he has committed or has been convicted of or has been charged with
any offence other than the offence with which he is charged, or that he is of bad character, unless —
(a) he or his legal representative asks any question of any witness with a view to establishing his
own good character or he himself gives evidence of his own good character, or the nature or
conduct of the defence is such as to involve imputation of the character of the complainant or
any other witness for the prosecution;
(b) he gives evidence against any other person charged with the same offence or an offence in
respect of the same facts;
(c) the proceedings against him are such as are described in section 240 or 241 and the notice
under those sections has been given to him; or
(d) the proof that he has committed or has been convicted of such other offence is admissible
evidence to show that he is guilty of the offence with which he is charged.”
It is important to note that s 197 does not permit evidence of bad character to be adduced
by the prosecution. It simply makes provision for cross-examination of the accused.
6 2 3 1 Section 197(a)
Section 197 protects the accused against cross-examination that is directed at showing bad
character or his previous criminal record. However, the accused will lose this protection (or
“shield”) by: adducing evidence as to his own good character; [18] attacking the character of
a prosecution witness; [19] or by testifying “against any other person charged with the same
offence or an offence in respect of the same facts”. [20]
Section 197(a), in so far as it permits cross-examination of the accused as to character if
the accused introduces evidence as to his own good character, complements the common-
law rule which permits the prosecution to adduce evidence of bad character in such
circumstances.
An accused gives evidence of his own good character when [21]
“. . . he asserts, or elicits, that he is of good character independently of his giving an account of what
had happened: he must endeavour (by means of questions or his evidence) to refer to his good
character in order to have it taken into account as something in his favour: a mere canvassing of the
relevant facts is insufficient to penalize the accused if the facts may incidentally show his character in
a good light.”
Once an accused has put his character in issue his whole character will be subject to cross-
examination. In Stirland v DPP the court held that [22]
“[a]n accused who puts his character in issue must be regarded as putting the whole of his past
record in issue. He cannot assert his good conduct in certain respects without exposing himself to
inquiry about the rest of his record so far as this tends to disprove a claim of good character.”
Page 68
In terms of s 197(a) the accused will also expose himself to cross-examination as to

character if “the nature or conduct of the defence is such as to involve imputation of the
character of the complainant or any other witness for the prosecution”. There are two ways
in which the nature and conduct of the defence may be revealed: (1) by the accused’s
testimony; and (2) through cross-examination of the prosecution witnesses by the accused’s
legal representative or, in the case of the unrepresented accused, by himself. [23] However, if
the accused is led by the prosecution into making assertions as to his good character, this
will not put the accused’s character into issue. [24]
The wording of s 197(a) is similar to that found in s 1(f)(ii) of the English Criminal
Evidence Act 1898. In a post-30 May 1961 decision the House of Lords held that s 1(f)(ii)
should be interpreted literally. [25] Consequently, in English law cross-examination as to
character will be allowed even where imputations as to the character of prosecution
witnesses are a necessary part of the accused’s defence. [26] “The fact that an imputation is
not made to discredit the witness but for another purpose is immaterial.” [27] The South
African courts have been reluctant to take such a literal interpretation and there is authority
for the view that where the evidence sought to be elicited forms an essential portion of the
accused’s defence s 197(a) should not be invoked, even if that evidence involves an
imputation as to the character of a prosecution witness. [28]
6 2 3 2 Section 197(b)
Section 197(b) makes the accused liable to cross-examination as to character if she gives
evidence “against any other person charged with the same offence or an offence in respect
of the same facts”. However, a person who has been charged with the same offence and
convicted
Page 69
and sentenced prior to testifying will not be considered an accused. [29] In Murdoch v
Taylor [30] the House of Lords held that “evidence against” a co-accused means evidence
which supports the prosecution case in a material respect, or which undermines the defence
of the co-accused. [31] The accused’s intention in giving such evidence, whether in
examination in chief or cross-examination, is not relevant. [32] However, “if one accused
merely denies that he took part in a joint venture, that does not constitute giving evidence
against a co-accused unless it implies that his co-accused did participate in it”. [33] In S v
Mazibuko and Others [34] the court in an obiter dictum found that the wording of s 197(b)
conferred no discretion and that when cross-examination is allowed in terms of s 197(b) the
court has no general or residual discretion to restrict such cross-examination on grounds of
irrelevancy. However, in S v Pietersen [35] Erasmus J took the view that a court
“has a discretion to restrict and control the ambit of the cross-examination under s 197(b). The
discretion must be exercised in the light of the principles governing relevance. The cross-examination
must be relevant to the issue of credibility, and it must not prejudice the accused being cross-
examined in the conduct of his defence to the extent that his right to a fair trial is undermined.” [36]
6 2 3 3 Section 197(c)
Section 197(c) provides that if the charge is one of receiving stolen property, the accused
may be questioned in respect of her previous convictions and bad character. Zeffertt, Paizes
& Skeen note that although the drafter’s intention was presumably “to allow the prosecution
in a receiving charge to cross-examine on matters which they would be entitled to prove
under ss 240 and 241” [37] of the CPA, this is not supported by a literal interpretation of
s 197(c).
6 2 3 4 Section 197(d)
Section 197(d) provides that 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”. The courts have held that s 197 does not prohibit the accused being asked
questions relevant to an issue before the court even if such questions tend to show bad
character or to reveal the accused’s previous convictions. [38] Thus it can be said that s 197
(d) merely confirms the similar fact rule. [39]
Page 70
6 2 4 Section 211 of the CPA

Section 211 of the CPA provides:
“Except where otherwise expressly provided by this Act or except where the fact of a previous
conviction is an element of any offence with which an accused is charged, evidence shall not be
admissible at criminal proceedings in respect of any offence to prove that an accused at such
proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and
no accused, if called as a witness shall be asked whether he has been so convicted.”
As a consequence of the words “[e]xcept where otherwise expressly provided by this Act”
s 211 is subject to the similar fact rule [40] by virtue of s 252 of the CPA, which applies the
law that was in force on 30 May 1961. [41]
Section 211 does not prevent an accused from testifying as to her own previous
convictions. This might be done, for example, to support a defence based on an alibi. [42]
When an accused chooses this course she runs the risk of having her character attacked by
the prosecution in cross-examination. [43] However, in S v Mthembu and Others [44] the
Appellate Division held that if such cross-examination is permitted, it must be limited to the
extent that any further details sought are relevant to an issue in the trial. [45]
It should be noted that evidence of previous convictions are admitted during the course of
bail proceedings as they are not considered criminal proceedings. [46] However, in S v
Hlati [47] the court noted that an anomaly will arise when bail is applied for during the course
of a trial and the accused’s previous convictions are brought to the attention of the presiding
officer. [48] Previous convictions are also admissible after conviction in order to assist the
court in determining an appropriate sentence. [49]
6 2 5 Witnesses other than the accused

Except where a witness’s credit has been impeached by evidence that she has a bad
reputation, the party calling that witness is prohibited from adducing evidence as to the
witness’s good character. [50] Where a witness disputes an allegation that she has a
reputation for untruthfulness the opposition may call a witness to testify from her knowledge
of the impugned witness’s reputation that she would not believe the
Page 71
latter on her oath. [51] In S v Damalis [52] the court held that another court’s assessment of a
witness’s credibility may be put to a witness in cross-examination. This aspect is more fully
discussed in §§ 18 6 5 5 and 25 2 1 below.
6 2 6 Character of the complainant

In all criminal cases where the complainant testifies he or she may be cross-examined, and
the cross-examiner may ask questions that are pertinent to exposing the witness’s credibility
or lack thereof. [53] However, the point of departure is that the character or disposition of the
complainant is not relevant to credibility. Consequently, evidence which is solely directed at
establishing that the complainant has a bad character is prohibited, as is evidence of good
character. [54] Nevertheless, in a few exceptional categories of cases the complainant’s
character is viewed as relevant. These are discussed in §§ 6 2 6 1 and 6 2 6 2 below.
6 2 6 1 Rape or indecent assault
There is a common-law rule that in a case involving a charge of rape or indecent assault the
accused may adduce evidence as to the complainant’s bad reputation for lack of chastity. [55]
Prior to 1989 [56] s 227 of the CPA provided that, in sexual offence cases, the admissibility of
evidence as to “the character of any woman” would be determined by the application of the
common law. In terms of the common law the defence may question the complainant as to
her previous sexual relations with the accused. [57] The accused is prohibited from leading
evidence of the complainant’s sexual relations with other men. [58] However, the complainant
may be questioned on this aspect of her private life in cross-examination as it is considered
relevant to credibility. Evidence to contradict any denials may be led only if such evidence is
relevant to consent. [59]
The common-law provisions have been criticised on a number of grounds: (a) whilst
cross-examination concerning prior sexual history traumatises and humiliates the victim, the
evidence it elicits is irrelevant [60] and at most establishes a general propensity to have
sexual intercourse; (b) evidence of this nature is held to be inadmissible in other cases and
there are no grounds for
Page 72
admitting it where the case is of a sexual nature; [61] (c) the possibility of such cross-
examination deters victims from reporting the offence. [62]
The South African Law Commission in 1985 [63] noted that in practice the application of
s 227 resulted in few (if any) restrictions being placed on the admissibility of sexual history
evidence. [64] In accordance with the recommendation of the Law Commission, s 227 was
amended [65] so as to require application to be made to court for leave to adduce evidence of
prior sexual history or to question the complainant on her prior sexual history. Such leave
would only be granted if the relevance of the evidence or questioning was established to the
satisfaction of the court. These amendments were criticised on the basis that the very
purpose for which they were enacted was undermined by the very wide discretion conferred
on judicial officers. [66] The same judicial officers who in the past failed to exercise their
discretion to exclude irrelevant previous sexual history evidence were now being asked to
exercise the very same discretion, albeit preceded by an application held in camera. [67] In S
v M [68] the Supreme Court of Appeal noted that “the members of this Court are not aware of
any instance where s 227(2) has been applied in this country. It seems likely that it is more
honoured in the breach than in the observance”. [69]
The Legislature finally responded to these criticisms by once again amending s 227 in
2007. [70] The new s 227 reads as follows:
“227. (1) Evidence as to the character of an accused or as to the character of any person against or in
connection with whom a sexual offence as contemplated in the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007, is alleged to
Page 73
have been committed , shall, subject to the provisions of subsection (2), be admissible or inadmissible
if such evidence would have been admissible or inadmissible on the 30th day of May, 1961.
(2) No evidence as to any previous sexual experience or conduct of any person against or in
connection with whom a sexual offence is alleged to have been committed, other than evidence
relating to sexual experience or conduct in respect of the offence which is being tried, shall be
adduced, and no evidence or question in cross examination regarding such sexual experience or
conduct, shall be put to such person, the accused or any other witness at the proceedings pending
before the court unless —
(a) the court has, on application by a party to the proceedings, granted leave to adduce such
evidence or to put such question; or
(b) such evidence has been introduced by the prosecution.
(3) Before an application for leave contemplated in subsection (2)(a) is heard, the court may direct
that any person, including the complainant, whose presence is not necessary may not be present at
the proceedings.
(4) The court shall, subject to subsection (6), grant the application referred to in subsection (2)(a)
only if satisfied that such evidence or questioning is relevant to the proceedings pending before the
court.
(5) In determining whether evidence or questioning as contemplated in this section is relevant to
the proceedings pending before the court, the court shall take into account whether such evidence or
questioning —
(a) is in the interests of justice, with due regard to the accused’s right to a fair trial;
(b) is in the interests of society in encouraging the reporting of sexual offences;
(c) relates to a specific instance of sexual activity relevant to a fact in issue;
(d) is likely to rebut evidence previously adduced by the prosecution;
(e) is fundamental to the accused’s defence;
(f) is not substantially outweighed by its potential prejudice to the complainant’s personal
dignity and right to privacy; or
(g) is likely to explain the presence of semen or the source of pregnancy or disease or any
injury to the complainant, where it is relevant to a fact in issue.
(6) The court shall not grant an application referred to in subsection (2)(a) if, in its opinion, such
evidence or questioning is sought to be adduced to support an inference that by reason of the sexual
nature of the complainant’s experience or conduct, the complainant —
(a) is more likely to have consented to the offence being tried; or
(b) is less worthy of belief.
(7) The court shall provide reasons for granting or refusing an application in terms of subsection (2)
(a), which reasons shall be entered in the record of the proceedings.”
Section 227(1) of the Criminal Procedure Act retains the common law but is now overtly
gender neutral and subject to sub-s (2). In terms of s 227(2) prior sexual history evidence
“other than evidence relating to sexual experience or conduct in respect of the offence which
is being tried” may not be led or raised in cross-examination except with the leave of the
court or unless prior sexual history evidence has been introduced by the prosecution. The
exception that is created by the introduction of prior sexual history by the prosecution is
consistent with the approach taken by the court in S v Zuma [71] and if
Page 74
unrestricted once again opens the door to the admission of irrelevant but damaging
evidence. Given the unfortunate application of s 227 in the past it may well have been
prudent for the legislature to specify that this exception only applied to prior sexual history
adduced by the accused in so far as it was relevant to contradicting the evidence introduced
by the prosecution.
The wording of s 227(2) makes it clear that as far as “the offence which is being tried” is
concerned, no application is necessary. But the fact that no prior application is required does
not relieve the court of its common-law [72] and statutory duty [73] to ensure that evidence
and questioning do not go beyond what is relevant. Exclusion of irrelevancies cannot
jeopardise the right to a fair trial; [74] and the court has a duty to protect the dignity of the
complainant. [75]
The most radical change brought about by the amendments to s 227 are to be found in
sub-s (5), which specifies the factors that the court must take into account when deciding
whether to grant leave to lead evidence of prior sexual history. [76] In terms of sub-s (4)
leave to lead prior sexual history evidence will only be granted if the court is satisfied that
such evidence is relevant.
The amended section leaves the court with a significant degree of discretion in
determining relative prejudice and whether or not the evidence “is fundamental to the
accused’s defence”. This is no doubt in deference to the constitutional right to a fair trial and
the Canadian experience which saw legislation that placed significant constraints on the
courts discretion being struck down as it allowed the possibility of evidence that was relevant
to the accused’s defence being excluded. [77] This may mean that there is the danger of old
practices continuing. However, subsections (6) and (7) should provide an effective barrier to
the assumption of old habits. Sub-ss (6) directs the court to refuse leave if the purpose of
adducing the evidence or questioning the complainant is to support an inference that the
complainant is more likely to have consented or is untruthful. Subsection (7) requires a
court to provide reasons for refusing or allowing an application to lead prior sexual history
evidence.
Page 75
6 2 6 2 Crimen iniuria
In order to obtain a conviction on a charge of crimen iniuria the prosecution must prove
insult to the complainant’s dignity. [78] Evidence that goes to establishing that the
complainant was not the type of person who would have been insulted in the circumstances,
will be regarded as relevant. [79]
6 3 Character in Civil Cases

In civil cases the characters of the parties are generally considered irrelevant. [80] However,
in certain specific cases evidence pertaining to the character of a party will be regarded as
relevant either in respect of an issue or in quantifying damages. [81] For example, an
essential element in an action of seduction is the plaintiff’s virginity and evidence which
shows that the plaintiff has a permissive disposition will be regarded as relevant. [82] In a
defamation action a party who fails in her defence may adduce evidence of the plaintiff’s
general bad reputation in mitigation of damages. [83] However, the defendant may not refer
to specific acts of misconduct and is restricted to leading evidence of general reputation. [84]
Clearly parties as witnesses may be cross-examined as to credit and in certain
circumstances character evidence may be considered relevant to credibility. [85] Evidence of
character may also be admitted in terms of the similar fact rule. [86]
[1] R v Rowton 1865 Le & CA 520; 169 All ER 1497. General reputation refers to a person’s reputation in the
community in which he lives.
[2] Roberts & Zuckerman Criminal Evidence (2004) at 503 give the following explanation for the preference given
to evidence of general reputation in Rowton supra: “[A]t the time when Rowton was decided the accused was
generally disqualified from testifying in his own defence and the modern sciences of personality were yet to be born.
Moreover, many people lived in relatively small, static communities where everybody more or less knew everybody
else’s business. Perhaps in these circumstances and in the absence of anything better, reputation could be taken as a
reliable guide to character and conduct. In the modern period, and particularly after the accused was made generally
competent in his own defence by the Criminal Evidence Act 1898, alternative sources of information revealing the
accused’s character have become available. Conversely, the reliability of reputation as a proxy for information about
a person’s behaviour has correspondingly declined as a function of the relative anonymity of modern urban
existence.” The authors go on to note that Rowton has never been formally overruled but that equation of character
with reputation is not a doctrine invoked by contemporary courts.
[3] Tapper Cross & Tapper on Evidence 12 ed (2010) 324: Roberts & Zuckerman op cit 503.
[4] See generally Paizes in Du Toit Commentary 24-100.
[5] R v Gimingham 1946 EDL 156; R v Bellis [1966] 1 All ER 552 (CCA).
[6] R v Rowton 1506.
[7] Cf R v Bellis [1966] 1 All ER 552 (CCA) 552, where the court described the accused’s good character as
“primarily a matter that goes to credibility”.
[8] May Criminal Evidence 3 ed (1995) 118. At 121 May lists five reasons for limiting evidence as to character: (a)
it is easy to fabricate; (b) it is often irrelevant; (c) it may lead to an investigation of collateral issues; (d) it
frequently is nothing more than opinion evidence; (e) it may usurp the function of the jury. See also Choo Evidence
(2006) 195-6.
[9] Roberts & Zuckerman Criminal Evidence 504.
[10] If a witness is called to testify as to the accused’s character, she may be cross-examined so as to test the
accuracy of her testimony. Zeffertt, Paizes & Skeen (2003) 230 express the view that such witness may be asked
whether she is aware of the accused’s previous convictions. However, this view is yet to be tested by the South
African courts and remains an open question.
[11] See generally Zeffertt & Paizes 258; May Criminal Evidence 3 ed (1995) 119.
[12] R v Rowton supra.
[13] See generally Zeffertt & Paizes 247-249.
[14] R v Paluszak 1938 TPD 427; R v Butterwasser 1948 1 KB 4; 1947 2 All ER 415.
[15] Supra.
[16] At 7.
[17] R v Rowton supra. See § 6 1 above.
[18] Section 197(a).
[19] Section 197(a).
[20] Section 197(b).
[21] LAWSA para 491. See May Criminal Evidence 3 ed (1995) 134, where it is noted that “[i]t is a question of
judgment and ultimately of discretion for the judge to say what evidence amounts to the establishment of good
character”. See also R v Malindi 1966 (4) SA 123 (PC).
[22] 1944 AC 315 326-7.
[23] See May Criminal Evidence 3 ed (1995) 139. Where an accused is unrepresented the presiding officer should
warn the accused of the dangers of exposing himself to cross-examination as to character. Where a legal
representative appears on behalf of more than one accused and attacks the character of a prosecution witness, he
should indicate in advance on behalf of which accused he is making the attack. Failure to do so may result in the
shield being lifted in respect of all the accused defended by the legal representative. See R v Heyne en Andere (2)
1958 (1) SA 612 (W).
[24] R v Beecham 1921 3 KB 464; May Criminal Evidence 3 ed (1995) 135; LAWSA para 491. See also Schoultz v
Voorsitter, Personeel-Advieskomitee Van Die Munisipale Raad Van George, en ’n Ander 1983 (4) SA 689 (C).
[25] Selvey v DPP 1970 AC 304.
[26] This rule is subject to an exception in the case of rape. The Law Commission of England and Wales in its
report Evidence of Bad Character in Criminal Proceedings, report no 273, Oct 2001 paras 4 34-4 43, 12 5 and 12 13,
has sought to remove this dilemma which requires an accused to choose “between putting forward his defence at the
expense of exposing his character, or not putting it forward at all” (Mirfield “Bad Character and the Law Commission”
2002 (6) International Journal of Evidence & Proof 141 at 154). See also Redmayne “The Law Commission’s
Character Convictions” 2002 (6) International Journal of Evidence & Proof 71.
[27] May Criminal Evidence 3 ed (1995) 139.
[28] See R v Hendrickz 1933 TPD 451; Spencer v R 1946 NPD 696; R v Persutam 1934 TPD 253; The State v V
1962 (3) SA 365 (E). Section 197 replicates the provisions of s 1(f) of the English Criminal Evidence Act 1898. The
incorporation of these provisions in a South African statute allows the South African courts to depart from English
interpretation. See Paizes in Du Toit et al Commentary 23-32. See also Zeffertt, Paizes & Skeen 241, who argue that
the approach of the South African courts is to be favoured. The Zimbabwean courts follow the South African
approach. See Jesse v Pratt NO 2001 8 BCLR 814 (Z) 814A-B.
[29] S v Dlamini and Another 2008 (1) SACR 501 (N).
[30] [1965] AC 574.
[31] At 592.
[32] Murdoch v Taylor supra 591.
[34] 1988 (3) SA 190 (A) 197.
[35] 2002 (1) SACR 330 (C) 334i. In this case the court endorsed the view expressed by Paizes in Du Toit et al
Commentary at 23-32A.
[36] See also Zeffertt & Paizes 262.
[37] At 262.
[38] S v Pietersen 2002 (1) SACR 330 (C); S v Mavuso 1987 (3) SA 499 (A).
[39] See ch 7 below, where this rule is discussed fully. See also Zeffertt & Paizes 254; S v Mavuso 1987 (3) SA
499 (A) discussed in § 7 7 below; S v Pietersen 2002 (1) SACR 330 (C).
[41] Section 211 is not only subject to s 252 but must also be read together with ss 197, 240, 241, and 271-273
of the CPA.
[42] See Rex v Bosch 1949 (1) SA 548 (A); S v Malinga 1962 (3) SA 174 (D).
[43] S v Malinga supra.
[44] 1988 (1) SA 145 (A).
[45] At 150G.
[46] S v Hlongwa 1979 (4) SA 112 (D). See further s 60(5)(d), (e) and (g) of the CPA. Bail proceedings are only
considered criminal proceedings for purposes of ss 20 and 21 of the Supreme Court Act 59 of 1959. See S v Botha
en ’n Ander 2002 (1) SACR 222 (SCA).
[47] 2000 (2) SACR 325 (N) 329h. See also S v Thusi 2000 4 BCLR 433 (N); S v Nkuna 2013 (2) SACR 541 (GNP);
S v Bruinders 2012 (1) SACR 25 (WCC) and S v Majikazana 2012 (2) SACR 107 (SCA).
[48] This is unavoidable as s 60(11B)(a) provides that: “In bail proceedings the accused, or his or her legal
adviser, is compelled to inform the court whether — (i) the accused has previously been convicted of any offence;
and (ii) there are any charges pending against him or her and whether he or she has been released on bail in respect
of those charges.” For the various problems that can arise in this regard, see the discussion of s 60(11B)(a) by Van
der Merwe in Du Toit et al Commentary 9-67 and 9-71.
[49] Section 271 of the CPA.
[50] Rex v Moore 1948 (2) SA 227 (C). Cf S v Dlamini and Another 2008 (1) SACR 501 (N).
[51] See May Criminal Evidence 3 ed (1995) 155.
[52] 1984 (2) SA 105 (T). See also Skeen 1984 SALJ 432.
[54] R v Wood 1951 2 All ER 112.
[55] See generally Zeffertt & Paizes 263.
[56] See generally Skeen 1990 SACJ 77.
[57] R v Riley 1887 18 QBD 481. As this type of evidence was always considered relevant to the issue, evidence
could be adduced to contradict a denial.
[58] R v Adamstein 1937 CPD 331.
[59] R v Cockcroft 1870 11 Cox CC 410; R v Cargill 1913 2 KB 271.
[60] South African Law Commission Report on Women and Sexual Offences (1985) 42. See Temkin Rape and the
Legal Process (1987) 120; Heilbron Committee (1975) para 89.
[61] South African Law Commission Report on Women and Sexual Offences (1985) 43. It was noted by the
Heilbron Committee para 131 that “[i]n contemporary society sexual relationships outside marriage, both steady and
of a more casual character, are fairly widespread, and it seems now to be agreed that a woman’s sexual experiences
with partners of her own choice are neither indicative of untruthfulness nor of a general willingness to consent”.
[62] South African Law Commission Report on Women and Sexual Offences (1985) 49. Temkin Rape and the Legal
Process (1987) 120.
[63] Project 45 Report on Women and Sexual Offences (1985).
[64] At 48. For a comparative perspective on sexual history evidence, see Illsley 2002 SACJ 225.
[65] By s 2 of the Criminal Law and Criminal Procedure Act Amendment Act 39 of 1989.
[66] For a thorough discussion of the problems arising from the application of s 227 see South African Law
Commission, Discussion Paper 102, Project 107 Sexual Offences: Process and Procedure (2002) 485-503. See
generally Schwikkard “A Critical Overview of the Rules of Evidence Relevant to Rape Trials in South African Law” in
Jagwanth et al (eds) Women and the Law (1994) 198. Cf Skeen 1990 SACJ 77.
[67] Temkin “Sexual History Evidence” 1993 Crim LR 3 identifies one of the major problems underlying the
relevance test, namely that relevance is an insufficiently objective criterion. She refers to the following apt
description by L’Heureux-Dube J in R v Seaboyer; R v Gayme 83 DLR (4th) 193: “Regardless of the definition used,
the content of any relevancy decision will be filled by the particular judge’s experience, common sense and/or
logic . . . There are certain areas of enquiry where experience, common sense and logic are informed by stereotype
and myth . . . This area of the law [sexual history evidence] has been particularly prone to the utilization of
stereotypes in determinations of relevance.”
[68] 2002 (2) SACR 411 (SCA) at [17].
[69] The court in S v M 2002 (2) SACR 411 (SCA) held that prior sexual history evidence admitted in the absence
of a s 227(2) application was wrongly taken and consequently should be regarded as struck from the record.
[70] Schedule to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This Act
followed an extensive report by the South African Law Reform Commission: Sexual Offences Report (Project 107)
2002.
[71] 2006 (2) SACR 191 (W). In Zuma, it was the State that made application to ask the complainant (its own
witness), how long before the incident in question she had last had intercourse. Permission was granted, and the
complainant replied by giving a specific date. Thereafter the defence made application in terms of the then-existing
s 227, to both cross-examine and lead evidence on her prior sexual history. The court granted the application. It
should be noted that in Zuma the permission granted to the defence was also based on relevance in the sense that
what was sought to be introduced was fundamental to the accused’s defence (at 204g-h): “In my judgment the
purpose of the cross-examination and the evidence the defence wanted to lead concerning the complainant’s
behaviour in the past was not to show that she misbehaved with other men. In fact it was aimed at showing
misconduct in the sense of falsely accusing men in the past. The cross-examination and evidence are relevant to the
issue of consent in the present matter, the question of motive and indeed credibility as well. It was not aimed at
showing that the complainant was a woman of questionable morals. It was aimed at the investigation of the real
issues in this matter and was fundamental to the accused’s defence.”
[72] S v M 1999 (1) SACR 664 (C).
[73] Section 166(3) of the CPA.
[74] See generally S v M 2002 (2) SACR 411 (SCA).
[75] S v M 1999 (1) SACR 664 (C).
[76] See, for example, S v Mkhize 2012 (2) SACR 90 (KZD).
[77] R v Seaboyer [1991] 2 SCR 577. Section 276 of the Canadian Code was consequently amended and confers a
more flexible discretion. English law also contains legislation restricting the admission of character evidence of
complainants and other witnesses but this too confers a relatively wide discretion on presiding officers (s 100 of the
Criminal Justice Act 2003).
[78] Milton South African Criminal Law and Procedure vol II 3 ed (1996) 492. The exceptions which apply are not
relevant for present purposes.
[79] See R v Van Tonder 1932 TPD 90.
[80] Schmidt & Rademeyer 443; Schmidt & Rademeyer (2007) 16-5; LAWSA para 495.
[82] See, eg, Gleeson v Durheim 1869 Buch 244; Van Staden v Rudy 1908 EDC 7.
[83] See Senkge v Bredenkamp 1948 (1) SA 1145 (O); Thole and Another v Minister of Justice and Others 1967
(3) SA 531 (D).
[84] Black and Others v Joseph 1931 AD 132.
[85] See ch 25 below for a fuller discussion.
Page 76
Chapter 7
Similar Fact Evidence
P J Schwikkard
71 Introduction
72 The Rationale for the Exclusion of Similar Fact Evidence
73 Formulating the Rule for Determining the Admissibility of Similar Fact Evidence
731 The formulation in Makin v Attorney-General for New South Wales
732 The inadequacies of the Makin formulation
733 A necessary proviso
7331 The nexus requirement
734 The dangers of categorisation
735 The formulation in DPP v Boardman
74 The Requirement of Similarity
741 The test of coincidence
742 Coincidence and a nexus
743 The degree of similarity
7 5 The Facts in Issue
7 6 Other Evidence
7 7 Examples of the Exclusion of Similar Fact Evidence
7 8 An Alternative Approach
7 1 Introduction
In the previous chapter it was noted that similar facts are often relevant and admissible for
purposes of proving character (see, for example, §§ 6 2 3 3 and 6 2 4). The present chapter
deals with similar fact evidence in a wider context, but must be read in conjunction with the
previous chapter.
In S v M and Others Friedman ACJ said: [1]
“Similar fact evidence is evidence which refers to the peculiar or immoral or illegal conduct of a party
on an occasion or occasions other than the incident or occurrence in contention, but which is also of
such a character that it is pertinent to or in essentials similar to the conduct on the occasion which
forms the issue or subject-matter of the dispute.”
Similar facts are therefore facts that are directed at showing that a party to the proceedings
(usually the accused) or a witness in the proceedings (such as a complainant) [2] has
behaved on other occasions in the same way as he is alleged to have behaved in the
circumstances presently being considered by the court. For example, George is charged with
dealing in dagga; the prosecution wants to introduce evidence showing that he has dealt in
dagga on previous occasions. Jennifer, in trying to dispute the admissibility of a confession
made
| Page 77
while she was in detention, tenders evidence that the police have on other occasions used
improper means of interrogation.
Similar fact evidence is generally inadmissible because it is irrelevant. [3] It will be
admissible only when it is both logically and legally relevant. [4] When it is found to be
sufficiently relevant it may be admitted in both civil [5] and criminal proceedings. It is most
frequently used by the state against the accused; however, there is nothing prohibiting the
accused from seeking to have similar fact evidence admitted in his or her defence. [6]
7 2 The Rationale for the Exclusion of Similar Fact Evidence

Similar fact evidence is generally irrelevant because its prejudicial effect outweighs its
probative value (see also § 5 3 5 above). The types of prejudice emanating from similar fact
evidence are numerous and varied. [7] They may pertain to prejudice to the accused. For
example, a jury who is made aware of the accused’s past bad conduct may decide that he
deserves to be punished irrespective of whether he is guilty of the offence charged. Even
worse, the jury may decide that the accused is of such a bad character that he has probably
committed many other crimes without having been detected. A consequence of this type of
reasoning is that the jury may convict even though a reasonable doubt as to the accused’s
guilt exists. In non-jury trials like ours this risk is less pronounced.
The accused may also be prejudiced in that he not only has to defend himself in respect of
the offence charged but he also has to defend past charges of misconduct. However, in S v
M [8] the court, having noted that in criminal trials one of the main reasons for not allowing
the admission of similar fact evidence was its potential for prejudicing the accused, held that
“where . . . the similar fact evidence does not go to show guilt on the part of an accused,
prejudice is a far less sensitive issue. Indeed, the Court should be wary of putting obstacles
in the way of an accused who wishes to adduce evidence in support of his or her legitimate
defence.”
Page 78
Similar fact evidence may also result in procedural inconvenience. The accused is
frequently taken by surprise when this type of evidence is introduced. [9] The investigation
into collateral issues (see § 5 3 3 above) that arises out of the introduction of similar fact
evidence inevitably extends the length of the trial, making the trial more costly and placing
additional demands on judicial resources. [10]
If similar fact evidence is admitted too readily, it also has the potential to undermine the
proper administration of justice. An overworked police force, knowing that a person’s past
record will be considered by the court, may be tempted to focus on past offenders. This
could result in sloppy investigation techniques. It may also discourage persons who are
genuinely trying to rehabilitate themselves. In addition it would make it easier for the police
to bring undue pressure to bear on past offenders and in this way induce involuntary
confessions and admissions.
Trial by jury has clearly influenced the formulation of the similar fact rule. In South Africa
the jury system has been abolished. This has led to the questioning of the applicability of the
existing formulation of the similar fact rule (see § 7 8 below).
But when all is said and done, it is the constitutional right to a fair trial that must control
the admissibility of similar fact evidence; and a fair trial is put in jeopardy if irrelevant
similar fact evidence is admitted. [11]
7 3 Formulating the Rule for Determining the Admissibility of

Similar Fact Evidence
The many prejudicial factors associated with similar fact evidence have made the
formulation of a workable general rule for determining the admissibility of similar fact
evidence extremely difficult.
7 3 1 The formulation in Makin v Attorney-General for New South Wales
Probably the most influential formulation is to be found in Lord Herschell’s dictum in Makin v
Attorney-General for New South Wales: [12]
Page 79
“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the
accused has been guilty of criminal acts other than those covered by the indictment, for the purpose
of leading to the conclusion that the accused is a person likely from his criminal conduct or character
to have committed the offence for which he is being tried. On the other hand, the mere fact that the
evidence adduced tends to show the commission of other crimes does not render it inadmissible if it
be relevant to an issue before the jury, and it may be so relevant if it bears upon the question
whether the acts alleged to constitute the crime charged in the indictment were designed or
accidental, or to rebut a defence which would otherwise be open to the accused.”
In this case a husband and wife were charged with the murder of a young child. They had
“fostered” this child in return for a sum of money that was insufficient for its maintenance.
The child’s body had been found buried in the garden of the house occupied by them. These
facts were consistent both with the allegation that the child was murdered for the purpose of
gaining the maintenance money and the defence that the child had died from natural causes
accompanied by an irregular burial. However, the prosecution also adduced evidence that
skeletal remains of other babies had been found in the gardens of homes previously
occupied by the accused, and that four other women had given their babies over to the
accused, having paid them an inadequate amount for maintenance, and that these babies
had also vanished. The Privy Council found that this evidence had been correctly admitted to
negative the possibility that the child’s death resulted from accident or natural causes. It
was not admitted to show that the accused had a propensity to kill babies and that they
were therefore guilty of the crime charged.
In explanation of Lord Herschell’s dictum it has been held that the admissibility of similar
fact evidence can be determined in accordance with which one of two chains of reasoning is
employed. The evidence will be excluded if the court is asked to conclude that the accused is
guilty because he has a propensity to act in a particular way. It will be admitted “if there is
some relevant, probative purpose for it other than for the prohibited form of reasoning . . .
but when it is received, the trier of fact must eschew the forbidden reasoning”. [13] In terms
of this formulation similar fact evidence may not be admitted if it is used only to establish
propensity.
7 3 2 The inadequacies of the Makin formulation

The Makin formulation is inadequate in that it fails to explain several cases. [14] It is apparent
that in a significant number of cases “propensity itself is so highly relevant to the issue in a
particular case, that evidence of propensity itself is admitted”. [15] An example of this is to be
found in the case of R v Straffen. [16] The accused was charged with murdering a young girl
(L). The prosecution tendered evidence relating to two other young girls. All three girls had
been strangled, without having been sexually interfered with. In all three cases there was no
apparent motive for the
Page 80
crime and no evidence of a struggle. Furthermore, there was no attempt to hide the bodies,
although concealment was relatively easy. Straffen had at an earlier date been charged with
the murder of the other two girls, but was found unfit to plead on the ground of insanity and
committed to an institution. He escaped from the institution and he was seen near the place
where L’s body was found. During the very brief period of his escape L was murdered. There
was further evidence that he had admitted to killing the two other girls. The evidence was
admitted on the ground that it was relevant to identity. However, it is difficult to argue that
the probative value of the evidence was not based on propensity, “since it established that
the accused possessed a propensity of the most unusual kind: he was a strangler of small
girls, in peculiar circumstances, and for no apparent motive”. [17] It was this peculiar
propensity that was highly relevant to an issue, namely the identity of the killer, which made
the evidence admissible. [18]
7 3 3 A necessary proviso
It is because of the difficulties outlined above that Zeffertt, Paizes & Skeen assert that the
Makin formulation can only be used as a basis for explaining the case law if the following
proviso is added to it: “[I]n some cases, evidence which proves disposition will be admissible
if, on the facts of the case, it is a disposition which is highly relevant to an issue in it.” [19]
They contend that, as a consequence of the inadequacies of the Makin formulation, the
courts have tended to prefer to cite the proposition of Lawrence J in R v Bond: [20] “In
proximity of time, in method or in circumstances there must be a nexus between the two
sets of facts, otherwise no inference can be safely induced therefrom.”
7 3 3 1 The nexus requirement
In terms of the “nexus requirement” there must be a link between the fact in issue (the
probandum) and the similar fact (the probans). This is explained by Stephen as follows:
“You are not to draw inferences from one transaction to another which is not specifically
connected with it merely because the two resemble each other. They must be linked
together by the chain of cause and effect in some assignable way before you can draw your
inference.” [21]
It has been suggested that the “nexus requirement” is merely another way of stating that
the evidence must be relevant. [22] In this context the requirement of
Page 81
relevance demands that the evidence “must have probative value in the sense that it can
give rise to reasonable inferences in deciding the facts in issue”. [23]
7 3 4 The dangers of categorisation

An unfortunate consequence of the Makin formulation is that it has been interpreted by
many lawyers as establishing rigid categories in which similar fact evidence will be regarded
as relevant. An example of this approach is to be seen in the statement in Green that “[t]he
usual ambit of the admission of ’similar fact’ evidence is to prove identity, intent, guilty
knowledge, or, as often in sexual cases, to rebut a defence of innocent association and the
like”. [24]
Zeffertt, Paizes & Skeen highlight the dangers of such an approach: [25]
“The danger of categorizing instances of admissibility is that it may lead to casuistry, to insoluble
metaphysical problems as to the confines of the categories, and to the error of thinking that, because
evidence slots into a category, it will be admissible.”
The “categorisation approach” was rejected in Harris v DPP. [26]
7 3 5 The formulation in DPP v Boardman

In DPP v Boardman [27] the court stressed that it was the application of principle that was of
prime importance, [28] the principle being that similar fact evidence is admissible only where
its probative value exceeds it prejudicial effect. [29] This formulation was accepted by the
Appellate Division in S v D. [30] The Makin rule was not rejected in Boardman — rather it was
applauded. [31] Therefore Boardman must simply be read as revealing the underlying
principle in Makin. [32] Any doubt as to the endorsement of principle in Boardman was swept
away by the House of Lord in DPP v P [33] in which the court held:
Page 82
“[T]he essential feature of evidence which is to be admitted is that its probative force in support of
the allegation that an accused person committed a crime is sufficiently great to make it just to admit
the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was
guilty of another crime . . . Once the principle is recognized, that what has to be assessed is the
probative force of the evidence in question, the infinite variety of circumstances in which the question
arises, demonstrates that there is no single manner in which this can be achieved. Whether the
evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a
question of degree.”
7 4 The Requirement of Similarity

The probative value of similar fact evidence will to a large extent be determined by the
degree of similarity between a person’s conduct on other occasions and on the occasion
which is the subject of the court’s inquiry. [34]
Lord Wilberforce [35] expressed the requirement of similarity in the following terms: [36]
“The basic principle must be that the admission of similar fact evidence (of the kind now in question)
is exceptional and requires a strong degree of probative force. This probative force is derived, if at all,
from the circumstances that the facts testified to by the several witnesses bear to each other such a
striking similarity that they must, when judged by experience and common sense, either all be true,
or have arisen from a cause common to the witnesses or from pure coincidence. The jury may
therefore properly be asked to judge whether the right conclusion is that all are true, so that each
story is supported by the other(s).”
Zeffertt, Paizes & Skeen assert that “[t]he relevance of similar fact evidence depends upon
the argument that the same conditions are likely to produce the same results”. [37] In
Laubscher v National Foods Ltd [38] Reynolds J held that “before similar fact evidence [can]
be admitted, the similarity of conditions applicable in each case has to be satisfactorily
established”. However, the requirement of similarity should not be unduly emphasised.
7 4 1 The test of coincidence

McEwan maintains that a mistake commonly made since Boardman is to assume that
evidence of previous misconduct by the accused will have the requisite probative value only
when the other incidents are “uniquely strikingly similar”. [39] She says it is preferable to see
the test in terms of “whether the evidence can be explained away as coincidence”. [40]
Several examples from case law support this argument. In R v Bond [41] the accused, a
medical practitioner, was convicted of unlawfully using instruments upon a woman (J) with
the intent to procure an abortion. The trial judge
Page 83
admitted the evidence of another woman (T) to the effect that the accused had performed a
similar operation on her with similar intent some nine months previously. In the course of
her examination in chief, T further testified that the accused had subsequently told her that
he had “put dozens of girls right”. Both women had at the material times been living at the
accused’s house and were pregnant by him. The defence was that instruments had been
used on J in the course of a lawful medical examination, that the abortion was accidental,
and there had been no intent. Why was this evidence admissible? There was no striking
similarity between the other unlawful abortions performed by the accused. However, the
evidence was significant in that it made the defence of accident implausible when raised by a
man with apparent expertise in abortion.
In Boardman the appellant, the headmaster of a boarding school for boys, was charged
with, inter alia, committing certain homosexual offences on S, a pupil aged 16, and with
inciting H, a pupil aged 17, to commit such offences. There was no application for a
separation of trials. The jury therefore heard the evidence of both S and H, who each
testified only to incidents in which they themselves were concerned. The judge ruled and
directed the jury that the evidence of S on the count concerning him was admissible as
corroborative evidence and vice versa. In doing so, the judge drew attention to certain
common features in the evidence of the two boys that justified cross-admissibility under the
Makin rule. In particular, both boys said that Boardman had tried to instigate sexual acts in
which Boardman would play the passive role. The judge apparently took judicial notice (see
generally § 27 1 below) of the fact that this was a very unusual form of homosexual
behaviour.
Despite the questionable judicial notice of what constituted unusual homosexual
behaviour, there was no striking similarity between the two incidents. But the fact that both
boys alleged that D wished to take the passive role, and the unlikelihood of them both
constructing exactly the same lie, was sufficient to suggest that the resemblance between
the two incidents went beyond coincidence. [42]
7 4 2 Coincidence and a nexus

Another way of approaching the coincidence test is to say that the nexus referred to in Bond
can be found in the extreme unlikelihood of coincidence. [43] Take, for example, the case of R
v Smith. [44] In this case the appellant was charged with the murder of a woman with whom
he had recently gone through a bigamous marriage ceremony. She had been found dead in
her bath. The accused, who stood to benefit financially from her
Page 84
death, had sought to show that it resulted from an epileptic fit. At the trial evidence was
given that two other women had died on subsequent dates, that the appellant had gone
through a form of marriage with each of these women, and that both had died in their baths
in circumstances very similar to those surrounding the death of the victim in the instance
case. In each case the accused again stood to benefit financially by the woman’s death. On
appeal the court held that the evidence had been correctly admitted in that it was sufficiently
relevant to rebut the accused’s defence. The court found that the occurrence of so many
accidents which benefited the accused could not reasonable be explained on the basis of
coincidence.
The similar fact argument in Smith can be summarised as follows: “[E]ither all three
deaths were accidental, or else the accused was responsible for each of them. The
improbability of coincidence may therefore often establish the required link.” [45]
7 4 3 The degree of similarity

If we apply the coincidence test, it is necessary to consider disputed evidence in its context.
McEwan contends that “this opens the way for unusual propensities and/or evidence which is
not, prima facie, strikingly similar”. [46] The circumstances of each case will determine the
necessary degree of similarity. This can be illustrated by comparing Makin [47] and
Boardman. [48] In Makin the similar fact evidence was required to fulfil a large part of the
prosecution’s task. In its absence it was difficult to sustain the contention that the accused
were responsible for the death of their victims. In such cases a high degree of similarity will
be required between the incidents before a sufficient link can be established. On the other
hand, in cases such as Boardman, where there is other evidence supporting the prosecution
case, the degree of similarity required is much lower. [49]
7 5 The Facts in Issue

The relevance of similar fact evidence must be assessed in the light of the issues to be
decided and the other evidence available to the court. [50] It follows that
Page 85
the admissibility of similar fact evidence also depends on what the issues before the court
are. [51] This in turn makes it necessary to identify the issues. This is not difficult in civil
proceedings, where the issues are established in the pleadings. In criminal matters the
issues are far more difficult to ascertain in that the accused is entitled to deny every element
of the charge or raise whatever defence that is open to him. [52] This does not mean,
however, that the prosecution is given a licence to introduce similar fact evidence merely on
the basis that it might conceivably be relevant. [53] In Thompson v R [54] Lord Sumner held
that the issue “must have been raised in substance if not in so many words”. In many
instances the relevant issues are apparent from the nature of the case and the prosecution
need not wait until the issue is specifically raised by the accused. Zeffertt & Paizes give the
following example: [55]
“[I]f the charge against the accused is that he fraudulently obtained goods on credit without intending
to pay for them, it would not be sufficient for the prosecution merely to prove that he bought goods
and did not pay. If this is all that the evidence disclosed, the accused would be discharged at the end
of the prosecution case without having to raise a defence at all. The prosecution have to adduce
positive evidence that the accused intended to defraud, and to do this they would be entitled to lead
evidence that the accused had made a practice of buying goods in similar circumstances and not
paying for them.”
The following example illustrates how the relevance of similar fact evidence can be negated
by an admission made by the accused:
“[I]f someone is charged with committing a crime in Cape Town, the prosecution could prove that he
was there and had an opportunity to commit the offence by showing that on the same day he robbed
a bank there, but if he admitted his presence in Cape Town, this evidence could have no purpose but
prejudice.” [56]
7 6 Other Evidence
“The question must always be whether the similar fact evidence taken together with the other
evidence would do no more than raise or strengthen a suspicion that the accused committed the
offence with which he is charged or would point so strongly to his guilt that only an ultra-cautious jury
would acquit in the face of it.” [57]
The relevance of similar fact evidence will also be determined by the strength of the other
available evidence. [58] This is well illustrated by the case of R v Ball. [59] The accused, a
brother and sister, were convicted of incest committed during certain periods in 1910. The
main prosecution evidence was that the accused, who held themselves out as married, were
seen together at night in a house which had only one furnished bedroom, containing a
double bed showing signs of occupation by two persons. The brother had been seen
Page 86
coming from the bedroom in a half-dressed state while the woman was in a nightdress. The
similar fact evidence admitted by Scrutton J was that three years earlier, before incest was
made criminal, the accused had lived together as man and wife sharing a bed, and that a
baby had been born, the accused being registered as its parents. This similar fact evidence
was highly probative, given the circumstances in which they were presently cohabiting. If
the evidence had been that they lived in the same house but occupied separate bedrooms,
the probative value of the evidence would have been greatly diminished. [60]
In S v D [61] the accused had been convicted in a local division of a multiplicity of crimes,
including six counts of rape and one of robbery. He appealed, inter alia, against one of the
rape convictions and the robbery conviction. These alleged offences had been committed in
respect of the same complainant (X). The complainant had not been able to identify the
accused and the trial court had to rely on circumstantial evidence in reaching its decision to
convict. In a confession the accused had admitted to committing the other crimes with which
he was charged, but not the two forming the subject-matter of the appeal. Evidence was led
that the person who raped X told her to “sleep down”. These were the same words used by
the accused in respect of one of the other rape charges for which he had been convicted.
The trial court held that these words were so distinctive that their probative value was
sufficient to justify their admission in order to establish the accused’s identity. However, the
appeal court held that these words on their own did not have sufficient weight to confirm
identity, but if they were taken together with the other striking similarities, they did indeed
have the required probative value. The other rapes were all committed in a particular area
within a period of four months. The robbery and rape of X occurred in the same area and in
the middle of the series of the other crimes. The conduct of the perpetrator was very similar
to that of the accused in respect of the other crimes for which he had been convicted,
namely, all the crimes were committed during the morning or early afternoon, and the
accused would enter the house surreptitiously and confront the victim. He would first
demand money and then rape the victim. In almost every incident he removed, or asked, for
the victim’s watch. When the similarity of this conduct was viewed together with the
evidence that the accused had been found in possession of X’s keys, it was held that the
accused had been correctly convicted. The appeal court upheld the trial court’s rejection of
the accused’s contention that he had coincidentally picked the keys up in the street: [62]
“If, in truth, and without hearing any evidence to that effect, the accused had picked up those keys,
then we are asked to believe that one man who is a rapist has picked up a bunch of keys abandoned
by another rapist. Apart from the fact that the area is the same area where the accused lives, it is
remarkable that, if the keys recovered by the police were not stolen from the complainant’s house by
the accused, but by a man who had
Page 87
raped there, they should come into the possession of another man who is a proved rapist. We think
such a proposition would be stretching the bounds of coincidence beyond any possible limits.”
Despite the appeal court’s use of the words “striking similarity”, the conduct of the accused
was not of a particular or unique nature. However, the fact that the accused had committed
other crimes in the same area, during the same time period, and, more importantly, that he
was found in possession of the complainant’s keys imbued the similar fact evidence with
high probative value and made the likelihood of coincidence most improbable. [63]
7 7 Examples of the Exclusion of Similar Fact Evidence

Laubscher v National Foods Ltd: [64] In this case the plaintiff was a pig farmer who claimed
that his pigs had died as a result of eating contaminated foodstuff that he had bought from
the defendant. He wished to adduce evidence that other pig farmers had similarly lost pigs
after they had eaten the defendant’s foodstuff. The court held this evidence irrelevant in that
it lacked sufficient similarity. The evidence did not establish that the foodstuff had been
bought during the same time period that the plaintiff purchased it. Nor did it indicate that
the pigs had become ill within the same time of eating it, or that the conditions on the farms
were similar, or that the animal husbandry practices were similar.
S v Mavuso: [65] The appellant was convicted in a magistrate’s court of dealing in dagga.
He appealed on the basis that the magistrate had incorrectly allowed the prosecution to
question him as to a previous conviction on the same charge. The questioning as to the
previous conviction arose in the following circumstances: the accused’s defence was that he
did not know that it was dagga in the bags which he was carrying in a motor vehicle, and
under cross-examination he said that he had never before had anything to do with dagga.
The Appellate Division held that the evidence did not pass the relevance test because the
facts giving rise to the previous conviction were unknown and therefore it could not be
inferred that he knew what dagga smelt like (ie there was insufficient similarity).
Furthermore, the previous conviction was a long time ago and as the definition of dealing in
dagga is so wide, it was not necessary that the accused had handled the dagga himself.
Consequently, the evidence of the previous conviction was held inadmissible. It therefore
could not be established whether the accused knew that the dagga was in the car. The
conviction was set aside. [66]
Page 88
7 8 An Alternative Approach
Paizes [67] argues that the similar fact rule was formulated in accordance with the
characteristics of the jury trial, and that since juries have long been abolished in South
Africa, a consideration of the necessity and desirability of the similar fact rule is long
overdue.
He argues that exclusion is an inappropriate way of dealing with the dangers inherent in
the admission of similar fact evidence. It is absurd to require a judge to exclude evidence
whenever he envisages that its reception might induce him wrongly to convict the accused:
if he is able to perceive this risk, he will be able, too, to guard against it. Paizes argues that
in South Africa the primary concern should be whether the admission of similar fact evidence
will render a trial unfair and that the best way of avoiding trial unfairness is to apply the
same rules applicable to circumstantial evidence to similar fact evidence. [68] This would
enable the courts to apply the relevance rule to similar fact evidence in a more coherent
manner. Despite the merits of Paizes’ arguments, the South African courts have not to date
been called upon to consider this alternate approach and we remain bound by the Makin
formulation. [69] It may well be that the time is ripe for the legislature to revisit the rules of
evidence. This particularly so given the Constitutional Court’s conclusion in Savoi and Others
v National Director of Public Prosecutions and Another [70] that the admission of otherwise
inadmissible similar fact evidence would not necessarily render a trial unfair.
As the present mish-mash of rules governing character evidence and similar fact evidence
are essentially a reflection of the English common law, it is particularly pertinent to consider
recent reforms in England. The Criminal Justice Act 2003 has adopted a principled approach
reflecting the rules of relevance in a comprehensive and detailed piece of legislation. Section
99(1) abolishes, in principle, the “common-law rules governing the admissibility of evidence
of bad character”. Although the same underlying principles are applied to evidence of the
bad character of a witness other than the accused, there are more elaborate rules governing
the admission of evidence of the accused’s bad character in recognition of the particular
vulnerabilities that attach to an accused in criminal proceedings. [71]
[1] 1995 (1) SACR 667 (BA) at 684d-e.

[2] S v Wilmot 2002 (2) SACR 145 (SCA) and S v Zuma 2006 (2) SACR 191 (W).
[4] S v Jones 2004 (1) SACR 420 (C); Rex v Pharenque 1927 AD 57; Rex v Zawels and Another 1937 AD 342;
Delew v Town Council of Springs 1945 TPD 128; Laubscher v National Foods Ltd 1986 (1) SA 553 (ZS). The latter
case is summarised in § 7 7 below.
[5] The same principles of admissibility are applied in both civil and criminal cases. “The courts, however, are less
wary of receiving similar fact evidence in the civil context than they are in the criminal context”: LAWSA para 501.
See also Mood Music Publishing Co Ltd v De Wolfe Ltd 1976 1 All ER 763 (CA).
[6] S v Letsoko and Others 1964 (4) SA 768 (A); S v Yengeni and Others (2) 1991 (1) SACR 329 (C); S v M and
Others 1995 (1) SACR 667 (BA). In these three cases it was alleged that the police habitually induced involuntary
confessions. See further S v Zuma supra and S v Wilmot supra.
[7] For a full discussion of these prejudicial factors, see Paizes in Visser (ed) Essays in Honour of Ellison Kahn
(1989) 238. See also Tapper “Proof and Prejudice” in Campbell & Waller (eds) Well and Truly Tried: Essay in Honour
of Sir Richard Eggleston (1982) 177; Hoffmann “Similar Facts after Boardman” 1975 91 Law Quarterly Review 193;
Roberts & Zuckerman Criminal Evidence (2004) 505.
[8] Supra at 692d-e. In S v Sewnarain 2013 (1) SACR 543 (KZP) Swain J stated as follows (at [20]): “A stricter
test is applied when similar fact evidence is sought to be led against an accused, as against when it is to be used
against the police, because of the concept of the prejudicial effect on the accused . . .”
[9] In S v Fani and Others 1994 (1) SACR 635 (E) 639-40 Jones J remarked, in an obiter dictum, that for there to
be a fair trial as envisaged by the Interim Constitution the State should disclose (amongst many other things) the full
particulars of any similar fact or character evidence which it intends to lead.
[10] Delew v Town Council of Springs supra; S v M supra.
[11] It is therefore not entirely clear what the legislature sought to achieve with the provisions of s 2(2) of the
Prevention of Organised Crime Act 121 of 1998 (“POCA”). The relevant portion of s 2(2) of POCA provides as follows:
“The court may hear evidence, including evidence with regard to . . . similar facts . . . relating to offences
contemplated in subsection (1), notwithstanding that such evidence might otherwise be inadmissible, provided that
such evidence would not render a trial unfair.” Section 2(1) of POCA creates offences relating to racketeering
activities. Given the nature of these offences, similar fact evidence may very well often be relevant and admissible.
But if irrelevant (and therefore “otherwise inadmissible”), it is hard to imagine that it could be admitted without
rendering the trial unfair. However, the Constitutional Court in Savoi and Others v National Director of Public
Prosecutions and Another 2014 (1) SACR 545 (CC) held that the courts’ resistance to departing from the Makin
formulation (see S v Nduna 2011 (1) SACR 115 (SCA)) meant that it was possible that the application of the similar
fact rule could result in the exclusion of relevant evidence.
[12] 1894 AC 57 (PC) 65.
[13] LAWSA para 496. See also S v Moti 1998 (2) SACR 245 (SCA).
[14] See R v Ball 1911 AC 47 (HL); Thompson v R 1918 AC 221 (HL); S v Moti 1998 (2) SACR 245 (SCA). Paizes
Essays in Honour of Ellison Kahn 241. See also Keane The Modern Law of Evidence 4 ed (1996) 417; Roberts &
Zuckerman Criminal Evidence 519 et seq.
[15] Zeffertt, Paizes & Skeen 255.
[16] Supra.
[17] Williams 1979 5 Dalhousie LJ 281. For a case where a peculiar technique (as opposed to a peculiar
propensity) was found relevant in linking the accused to the crime, see R v Frederick JS 56/38 (SWA) as summarised
and quoted by Engelbrecht et al Vonnisbundel vir die Bewysreg (1983) 206.
[18] Similarly in S v Moti 1998 (2) SACR 245 (SCA) the court held that the evidence of a common modus operandi
and the appellant’s direct involvement in similar cases of robbery was relevant in that it corroborated evidence
identifying the appellant. Nienaber JA held that although the similar fact evidence was admissible for identification
purposes it could not be used to sustain an inference that the appellant participated in the robbery.
[19] At 258. See also Uglow Evidence: Text and Materials (1997) 433.
[20] 1906 2 KB 389 at 424. See The State v Green 1962 (3) SA 886 (A) 894; S v Letsoko and Others 1964 (4) SA
768 (A) 775; Jones v S 1970 2 PH H129 (A); S v Naryan 1998 (2) SACR 345 (W); Zeffertt, Paizes & Skeen 258.
[21] Digest of the Law of Evidence (1914) note VI: articles 10, 11 & 12.
[22] Van der Merwe (ed) Evidence (1983) 71.
[23] Van der Merwe (ed) Evidence 71. See S v Green supra; S v Letsoko and Others supra; S v M supra.
[24] Supra 894.
[25] (2007) at 257. See also Uglow Evidence: Text and Materials 437.
[26] 1952 AC 694. Cf Rex v Katz and Another 1946 AD 71; S v M supra. Although condemning the “categorisation
approach”, many evidence texts use them to group and analyse the plethora of similar facts cases. The following list
of categories is most frequently enumerated: acts part of the transaction or res gestae, presence at a place,
possession of a weapon etc, previous course of dealing, motive, sexual passion, acts of preparation, knowledge,
intent, design or system, accident or mistake, identity, innocent association, innocent possession, proving the actus
reus. See also Schmidt & Rademeyer 421-34 as well as Schmidt & Rademeyer (2007) 15-10 to 15-20.
[27] 1975 AC 421.
[28] At 439.
[29] At 442, 451 and 456-7. Zeffertt & Paizes 279 assert that Boardman clearly demonstrates that in similar fact
cases it is the degree of relevance that is important, not the kind of relevance. See also Paizes Essays in Honour of
Ellison Kahn 244. In S v M supra 689c the court held that “the reception of similar fact evidence has to be justified
by it having so strong a probative value that it should be received in the interests in justice”. See also S v Zuma
supra.
[30] 1991 (2) SACR 543 (A) 543, where the court held that “the admission of similar fact evidence is exceptional
and requires a strong degree of probative force”. See also R v Roets and Another 1954 (3) SA 512 (A); Ferreira v
Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); S v Winnaar 1997 (2)
SACR 352 (O); R v Roets and Another 1954 (3) SA 512 (A).
[31] At 438, 450, 461.
[32] Paizes Essays in Honour of Ellison Kahn 244 queries whether the Boardman approach embodies a legal rule or
the exercise of judicial discretion. See Zeffertt & Paizes 303 et seq for a critique of the application of judicial
discretion and similar fact evidence.
[33] [1991] 2 AC 447 HL 460-1.
[34] S v D supra 546; S v M supra.
[35] Boardman supra 444 (AC Reports).
[36] See also Rex v Kalkiwich and Kruger 1942 AD 79 at 86-7; S v M 1985 (1) SA 1 (A) 4.
[37] At 251.
[38] Supra 554. See the discussion of this case in § 7 7 below.
[39] McEwan Evidence and the Adversarial Process: The Modern Law 2 ed (1998) 58.
[40] McEwan Adversarial Process 59. See R v Mansfield 1978 1 All ER 134; Schwikkard 1995 SACJ 389, where the
approach taken by the court in S v M and Others 1995 (1) SACR 667 (BA) is criticised.
[41] 1906 2 KB 389.
[42] See McEwan Adversarial Process 58. See also S v R 1990 (1) SACR 413 (ZS). Zeffertt & Paizes 299 note that
although “[e]vidence which tends to prove guilt on one count is not admissible on another count merely because
they are tried together . . . [I]f evidence on other counts is admissible according to the ordinary rules of similar-fact
evidence, it may also be used to corroborate a witness giving evidence on the particular count under consideration”.
In this regard see: Rex v Viljoen 1947 (2) SA 56 (A); The State v Green 1962 (3) SA 886 (A); S v Nduna 2011 (1)
SACR 115 (SCA).
[43] See generally R v Roets and Another 1954 (3) SA 512 (A) 521; R v Sims 1946 1 All ER 697; Rex v Pharenque
1927 AD 57; R v Smith (1915) 11 Cr App Rep 229; S v M and Others 1995 (1) SACR 667 (BA).
[44] Supra.
[45] Van der Merwe (ed) Evidence (1983) 72. See also Tapper Cross & Tapper on Evidence 9 ed (1999) 360: “[I]n
Smith the evidence of the other deaths tended to rebut a possible defence of accident. It was inherently implausible
that so many accidents would happen.” Emphasis added. On the improbability of coincidence, see also Omega, Louis
Brandt et Frere SA and Another v African Textile Distributors 1982 (1) SA 951 (T).
[46] Adversarial Process 60.
[47] Supra.
[48] Supra.
[49] McEwan Adversarial Process 60. See also S v Banana 2000 (2) SACR 1 (ZS) in which Gubbay J, approving the
approach of Lord Mackay in R v P 1991 3 All ER 337 (HL) held that in determining the admissibility of similar fact
evidence undue emphasis should not be placed on the requirement of striking similarity. See also Savoi and Others v
National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC) at [54] and compare S v Sewnarain
2013 (1) SACR 543 (KZP) at [20] where it was said that “the similar fact evidence must bear a ‘striking similarity’ to
the evidence in relation to the offence.”
[50] McEwan Adversarial Process 45. This approach was given approval by O’Connor J in R v Horwood 1970 1 QB
133.
[51] Zeffertt & Paizes 284; R v Solomons 1959 (2) SA 352 (A); S v Winnaar supra; cf Rex v Zawels and Another
1937 AD 342.
[54] 1918 All ER 521 at 526.
[55] Law of Evidence 284.
[57] Boardman supra 457.
[59] 1911 AC 47 (HL).
[60] The Ball case is frequently cited as an example of a case where the accused’s propensity was highly relevant.
[61] 1991 (2) SACR 543 (A).
[62] At 547.
[63] See also S v Naryan 1998 (2) SACR 345 (W).
[64] Supra. See also Rofdo (Pty) Ltd t/a Castle Crane Hire v B & E Quarries (Pty) Ltd 2002 (1) SA 632 (E) at 639.
[65] 1987 (3) SA 499 (A).
[66] See also S v January 1995 (1) SACR 202 (O).
[67] Essays in Honour of Ellison Kahn 254.
[69] As elucidated by Boardman supra, the approach in Boardman having been adopted by the Appellate Division
in S v D supra.
[70] 2014 (1) SACR 545 (CC) at [59].
[71] For discussions of the relevant provisions of the Criminal Justice Act 2003, see Choo Evidence 3 ed (2012)
244 et seq.
Page 89
Chapter 8
Opinion Evidence
E van der Berg and S E van der Merwe
8 1 Introduction
8 2 Fact and Opinion: Some Comments
8 3 The Basis of the Opinion Rule
8 4 Lay Persons and Experts
8 5 The Opinion of a Lay Person
851 The compendious mode
852 Handwriting
853 Probative value of lay opinion
86 The Expert Witness
861 The expert witness: the need to lay a foundation
862 Reasons for opinion and probative value of the opinion
863 Hearsay and expert opinion
864 The expert referring to textbooks
87 Procedural Aspects
88 The Rule in Hollington
8 1 Introduction
This chapter deals with the following question: is the opinion (inference, conclusion,
impression, belief) [1] of a witness — whether expert [2] or lay person [3] — admissible
evidence? Should an opinion be admitted for purposes of persuading the court to rely on it in
deciding the issue at hand? The Constitutional Court in Helen Suzman Foundation v
President of the Republic of South Africa and Others provided the following answer: [4]
“Any opinion, whether from a lay person or expert, which is expressed on an issue the court can
decide without receiving such opinion is in principle inadmissible because of its irrelevance. Only when
an opinion has probative force can it be considered admissible.”
The essential and very first question must therefore be: what are the issues? [5] Broadly
speaking, it may be said that if the issue is of such a nature that the opinion of an expert or
lay person can assist the court in deciding the issue, the opinion evidence is relevant and
admissible [6] — unless some other rule, such as hearsay, calls for exclusion. By the same
|token, it may be said that if the opinion relates to an issue which the court can decide
without the aid of
Page 90
opinion evidence of an expert or lay person, the opinion is irrelevant and therefore
inadmissible. [7] The reasons for this rule, and some refinements thereof, are discussed in
§ 8 3 below.
Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd [8] provides a good example of the
difficulties that can arise, not only in applying the above rule but also in distinguishing
between fact and opinion. [9] In this case the plaintiff contended that the advertisements of
the defendant’s product were calculated to mislead consumers into believing that the
defendant’s toothpaste possessed certain qualities concerning the removal and reduction of
plaque and tartar on teeth, which it did not. The plaintiff sought to lead the evidence of an
assistant manager of an insurance company (and thus a layman with no expert knowledge of
the matter) as to how he understood the advertisement. Counsel for the defendant objected
on the ground that this testimony was nothing more than the opinion of a lay person on a
question that the court had to decide. It was argued that the witness was no better qualified
than the court to form an opinion, and that the admission of the evidence would have the
effect of usurping the court’s function. However, counsel for the plaintiff submitted that the
evidence was relevant and admissible because the purpose of the evidence was not to
persuade the court to adopt the opinion of the witness. It was argued that the purpose of
the evidence was to prove the deception — and if, during the course of his testimony in
support of the personal deception experienced by the witness, an opinion had of necessity to
be expressed as to the meaning, for the witness, of the advertisement, it should not be
excluded on that basis alone. Van Schalkwyk J agreed with the plaintiff’s counsel and
overruled the objection. His reason was that the fact that an opinion was contained in the
evidence of the lay witness concerned could not “preclude the evidence if its purpose is to
show that as a result of his interpretation of the advertisement he was misled”. [10] It may be
said — at the risk of oversimplification — that the evidence of the witness was a factum
probans which could not be proved without also permitting the witness to state his own
personal conclusion. Van Schalkwyk J made it clear that a court should “refuse to hear
evidence only in circumstances where a witness, unqualified as an expert, seeks to give
evidence which in its essence does no more than that which the Court is itself called upon to
do . . . [T]he witness may not interpret but he may give evidence of a factual nature to act
as an aid to interpretation.” [11]
In Stewarts & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty) Ltd and
Others [12] an issue of a different nature arose. In this case the trial court was requested by
counsel for two of the defendants to examine certain handwriting under a high-power
microscope, and in so doing to be guided by an expert in
Page 91
the field of handwriting, a certain Mr Gilchrist. Counsel claimed that this procedure would
have enabled the court to make observations which would have assisted the court in
determining the order in which two witnesses had affixed their handwriting on a document —
which was an issue which could have reflected on the credibility of these two witnesses. Le
Grange J held that counsel [13]
“seeks through the witness Gilchrist to educate my eye, because he first wishes Mr Gilchrist to explain
to me what he saw when he looked through the microscope. I gather this will be done, and it is
necessary for Mr Gilchrist to do this, in order that I should know what to look for. Well, the Court
declines the opportunity of qualifying itself in this branch of science. It appears to me that it is
undesirable from every point of view that the Court should look through certain sophisticated
instruments and rely upon its own observations when, from its limited knowledge of the subject, it
does not know whether its observations are reliable or not and whether an inference can reliably be
drawn from them or not. The Court therefore declines the invitation to look at the document through
the microscope.”
Of course, the Stewarts & Lloyds case stands on an entirely different footing from the
Colgate case — and is also clearly discernible from cases where the court can make its own
observations and form its own opinion on the basis of ordinary knowledge or skill common to
the average person. In Rex v Makeip [14] the trial judge had examined plaster casts of
footprints with an ordinary magnifying glass. He had also measured several distances
between various marks. The Appellate Division had no quarrel with this procedure as it
involved no more than ordinary everyday knowledge or skill. In fact, in the case of S v
Mkhabela Corbett JA (as he then was) also came to the conclusion that “it will always be
more satisfactory if the Court is able, by means of a photograph or a plaster cast or some
other visual medium . . . to make the necessary comparisons and to assess the cogency of
the footprint evidence”. [15]
Makeip and Mkhabela supra merely illustrate that a court need not be guided by opinion
evidence in respect of matters which can be assessed on the basis of ordinary knowledge or
skill. But it is irregular for a court to attempt to qualify itself as an expert for purposes of the
trial or to rely on its own peculiar specialist knowledge. [16]
8 2 Fact and Opinion: Some Comments [17]
It is sometimes stated that in terms of the opinion rule a witness must give evidence of facts
and may not express an opinion unless he is an expert or, if not an expert, his opinion can
be received as an exception to the general rule which excludes opinion evidence. [18] Apart
from the fact that this formulation
Page 92
amounts to a gross distortion of the true rule, [19] it also fails to accommodate the practical
reality that for purposes of the law of evidence it is not always possible to distinguish clearly
between fact and opinion: “In a sense all testimony to matter of fact is opinion evidence; ie,
it is a conclusion formed from phenomena and mental impressions.” [20] Even a matter such
as identification really constitutes evidence of an inference, drawn from comparison with
prior experience. [21] Where the complainant testifies that it was the accused who had raped
her, her evidence is in truth no more than an opinion that it is the man in the dock who
committed the offence. If the rapist were someone of close acquaintance, it may seem
absurd to say that she is expressing an opinion. But if the perpetrator were a stranger,
never seen before, and the opportunity for observation not great, the identification can
clearly be seen to constitute no more than an inference, drawn from a resemblance between
the offender and the man in the dock. It has been held that the inability of a witness to give
a description of a person identified by him, does not mean that the identification of the
person concerned is fatally flawed. [22] It has also been accepted that the distinction between
“fact” and “opinion” is a difficult one, and that “facts” stated by a witness are really
inferences. [23] Maguire has also observed as follows: [24]
“Our whole conscious life is a process of forming working beliefs or opinions from the evidence of our
senses, few of them exactly accurate, most of them near enough correct for practical use, some of
them seriously erroneous. Every assertion involves the expression of one or more of these opinions. A
rule of evidence which called for the exclusion of opinion in this broad sense would therefore make
trials quite impossible.”
The so-called “compendious mode” of testifying, as discussed in § 8 5 1 below, is also based
on the fact that in the law of evidence opinion carries a special meaning.
Once it is accepted that it is not always possible — and certainly not always desirable — to
attempt to distinguish between fact and opinion it becomes meaningless to formulate the
opinion rule in terms which require, or purport to require, a strict distinction between fact
and opinion. [25]
8 3 The Basis of the Opinion Rule

Any opinion, whether expert or non-expert, which is expressed on an issue which the court
can decide without receiving such opinion is in principle
Page 93
inadmissible because of its irrelevance. [26] Such evidence is unnecessary — and can be
referred to as “superfluous” or “supererogatory evidence”. [27] In this instance the opinion of
the witness is excluded not because of a need to preserve or protect the fact-finding duty of
the court, but because such evidence makes no probative contribution, creates the risk of
confusion of the main issues, can lead to prolongation of trials, and can open an “evidential
Pandora’s box”. [28]
If the issue is of such a nature that the witness is in a better position than the court to
form an opinion, the opinion will be admissible on the basis of its relevance. [29] Such an
opinion has probative force. The opinion is no longer superfluous because it can assist the
court in determining the issue. This explains why the opinions of lay persons [30] and
experts [31] are at times received.
The rule that opinion evidence is excluded where superfluous (because it is irrelevant) and
admitted where it can assist the court (because it is relevant) has to compete with some
other theories, principles and formulations governing the opinion rule. Paizes refers to these
as “empty catch-phrases and misconceptions which have blurred the parameters of the rule
and shifted the focus of attention away from its chief function, viz the exclusion of
supererogatory evidence”. [32] It is, for example, sometimes said that the exclusion of
opinion is intended to preserve or protect the function of the tribunal of fact, [33] and that a
witness should not be permitted to usurp this function. [34] Wigmore rejected this theory on
the basis that the tribunal of fact is not and cannot be obliged to substitute the opinion of
the witness for his own. [35] Support for Wigmore’s reasons for rejecting this theory can be
found in
Page 94
S v Nieuwoudt. [36] In this case various experts (including an electrical engineer and
members of university departments of speech and drama) were called to testify as regards
certain tape recordings. Hefer JA remarked as follows: [37]
“Daarenteen is ek nie bereid om ’n submissie wat mnr De Villiers op een stadium gemaak het
(klaarblyklik sonder dat hy self veel geloof daarin gehad het) te aanvaar nie, nl dat daar slegs gelet
moet word op wat die deskundige getuies se waarnemings was. Om te hoor watter woorde in hierdie
soort opname voorkom, verg geen deskundigheid nie en ’n geregshof kan in elk geval nie sy funksie
aan die getuies delegeer nie. Natuurlik moet ag geslaan word op die getuienis; maar uiteindelik is dit
die Hof se taak om te bepaal wat die woorde is en deur wie hulle gebruik is.”
The theory that the opinion rule preserves or protects the fact-finding function of the court is
sometimes also expressed in terms of the so-called “ultimate issue” doctrine, namely that a
witness may not express an opinion on an ultimate issue which the court must decide: “The
risk of usurpation by the witness of the function of the trier of fact”, says Carter, “is often
greatest if the witness expresses an opinion on the very question, or —ultimate issue’ which
the trier of fact finally has to decide.” [38] However, the ultimate issue doctrine fails to
explain why courts at times permit not only experts but also lay persons to express an
opinion on the very issue the court has to decide. In drunken driving cases the prosecution
must prove that the accused was under the influence of intoxicating liquor at the time when
he was driving. Courts receive both expert and lay opinion in this regard, [39] despite the fact
that this is the very issue that the court must decide. The court is not bound by such an
opinion, but will place much reliance on it if it is satisfied that the reasons which the witness
can advance for having formed the opinion are convincing and do in fact support the opinion
expressed by the witness.
The ultimate issue doctrine is often ignored in practice. In DPP v A & BC Chewing Gum Co
Ltd Lord Parker said: [40]
Page 95
“. . . I cannot help feeling that with the advance of science more and more inroads have been made
into the old common-law principles. Those who practise in the criminal courts see every day cases of
experts being called on the question of diminished responsibility and although technically the final
question ‘Do you think he was suffering from diminished responsibility?’ is strictly inadmissible, it is
allowed time and time again without any objection.”
This case concerned the admissibility of expert opinion evidence on the issue whether certain
publications tended to corrupt or deprave children. It was concluded that expert evidence
would have been inadmissible if the issue had related to adults, but that it was admissible
where the issue related to children. In the latter instance the tribunal would need all the help
it could get.
It is significant that in 1972 the English legislature abolished the “ultimate issue” doctrine
for purposes of civil proceedings. Section 3(1) of the Civil Evidence Act 1972 [41] provides
that where a person is called as a witness in any civil proceedings his opinion on any
relevant matter on which he is qualified to give expert evidence shall be admissible in
evidence. Section 3(2) determines that where a person is called as a witness in any civil
proceedings a statement or opinion by him on any relevant matter on which he is not
qualified to give expert evidence, if made as a way of conveying relevant facts personally
perceived by him, [42] is admissible evidence of what he perceived. Section 3(3) determines
that for the purposes of s 3 “relevant matter” includes an issue in the proceedings in
question. It is important, though, to note that the statute also provides for a discretion to
exclude evidence falling under s 3.
Another approach is to say that a witness should not be permitted to express an opinion
which entails a conclusion of law, [43] or which requires the application of a standard of law to
the facts, [44] or which relates to the meaning of words appearing in a statute. [45] This is just
a variation of the “ultimate issue” doctrine. [46] Although this doctrine should not be
discarded entirely, [47] the answer in all three aforementioned instances should be that the
exclusion of supererogatory evidence remains the governing test. Association of Amusement
and Novelty Machine Operators and Another v Minister of Justice and Another [48] involved
the meaning of certain words in a statute. The opinion of a language expert was held
irrelevant and inadmissible: the words in dispute were often
Page 96
encountered in common parlance, and the witness was therefore in no better position than
the court to form an opinion.
In International Business Machines SA (Pty) Ltd v Commissioner for Customs and Excise it
was said: “Under our system, questions of interpretation of . . . documents are matters of
law, and belong exclusively to the Court. On such questions the opinions of witnesses,
however eminent or highly qualified, are (except in regard to words which have a special or
technical meaning) inadmissible.” [49] The words in brackets are important, and indicate that
this case is not a vindication of the “ultimate issue” doctrine; it really confirms the approach
that supererogatory evidence is inadmissible.
8 4 Lay Persons and Experts

It is customary to approach the admission of opinion evidence on the basis that one has to
distinguish between lay opinion and expert opinion. Once it is realised that admissibility does
not depend on this distinction, but on the question whether the opinion of the particular
witness in the particular circumstances of the case can assist the court in determining the
issues, it becomes clear that the distinction between lay person and expert does not govern
admissibility. The separate discussion of lay persons and experts in the next few paragraphs
is for the sake of convenience, and not an attempt to identify two separate categories for
purposes of admissibility. For procedural purposes, however, a distinction is necessary: [50] in
civil cases parties should give notice of their intention to rely on expert opinion evidence; in
criminal cases the prosecution is required on constitutional grounds to disclose expert
opinion evidence to the accused prior to the commencement of the trial. [51]
8 5 The Opinion of a Lay Person

Application of the rule that opinion evidence must be excluded where it cannot assist the
court, but admitted where it can, yields the following results: a lay witness may express an
opinion on the approximate age of a person, the state of sobriety of a person, the general
condition of a thing, and the approximate speed at which a vehicle was travelling. This is not
an exhaustive list.
An inability to provide reasons for the opinion should in principle affect the weight and not
the admissibility of the opinion. [52]
8 5 1 The compendious mode

There are instances where a witness — and more particularly a lay witness — will not be able
to testify meaningfully if the law of evidence were to persist in drawing a distinction between
fact and
Page 97
opinion for the purposes of admitting the fact and excluding the opinion. It is “never possible
for a witness to eliminate altogether the results of inference from the evidence he gives”. [53]
In Herbst v R it was said: [54]
“When an ordinary witness says ‘I see a Chinaman’, he generally means that from his knowledge,
obtained by experience or study, he is aware of the salient external characteristics of a citizen sprung
from the Celestial Empire; that the person in question appears to possess those characteristics, and
that consequently he infers, deduces or opines that the man whom he sees is a Chinaman. His short
statement is therefore a compendious mode of expressing facts and opinions. Similarly, in the
identification of an accused person, the witness compares in his own mind the person he has
previously seen with the person produced at the trial, forms an opinion as to the resemblance or
otherwise, and states that opinion which is then received as evidence for what it is worth. A similar
process takes place when a witness gives evidence as to mental and physical conditions, age, speed,
value, character and handwriting. Whether, therefore, an ordinary witness simply states ‘The flag was
yellow’, or more comprehensively says ‘The writing is Smith’s’, there is a ratiocination in different
degrees, and consequently an expression of opinion. But such evidence is clearly admissible; if it were
not, the machine for trying disputed facts would come to a standstill. It is accordingly not always
possible to wholly separate statement of opinion from statement of fact, and consequently, on the
grounds of necessity, because this separation is not always possible, and because more direct and
positive evidence is often unobtainable, experience has evolved the subsidiary rule that the opinions
and beliefs of witnesses who are not experts are in certain cases admissible.”
The term “compendious mode” as used in Herbst supra is of English law origin. [55] It is a
convenient term to use in those instances where the witness offers an opinion as a brief
summary of factual data perceived by him. This explains why a witness is permitted to say
that the complainant was “angry”, that the victim tried to “protect” himself or that the
defendant “looked surprised”. The compendious mode is permitted not only because of its
practical convenience but also because the witness is better placed than the court. [56] The
witness may in examination in chief, cross-examination and re-examination be questioned
on the reasons for his conclusion. Admission or exclusion of the evidence tendered in
compendious mode will be in the court’s discretion. Much depends on the circumstances and
issues, as well as the question whether for purposes of the case any meaningful attempt can
be made to separate conclusion from fact.
8 5 2 Handwriting [57]
Section 4 of the CPEA provides that comparison of a disputed writing with any writing proved
to be genuine may be made by witnesses, and such writings and the evidence of any witness
with respect thereto may be submitted as evidence of the genuineness or otherwise of the
writing in dispute. Section 228 of the CPA contains a similar provision. On the basis of these
provisions as well as common-law principles, a lay witness is
Page 98
permitted to identify handwriting. An expert may also express an opinion on handwriting. [58]
The fact that an accused who has furnished samples of his handwriting to the police could
have made some intentional distortions affects the weight and not the admissibility of the
opinion. [59] Opinion evidence of handwriting must be approached with caution (see
§ 30 11 6 below). A court is also entitled to make its own comparison, but should do so with
caution (see §§ 19 7 and 30 11 6 below).
8 5 3 Probative value of lay opinion

It is generally accepted that the admissible opinion of a lay person provides prima facie
evidence and — if not challenged [60] — may, not must, be accepted. Much will depend on
the issues and the reasons that the witness can advance in support of his conclusion. [61] If
challenged, [62] the issue might be of such a nature that only expert opinion can resolve
it. [63] In S v Faltein — where the issue was whether the substance in question was dagga —
Erasmus J noted that “dagga, although unfortunately in wide use, is not so well known that
just anybody can identify it as such. In order to do so special knowledge or expertise is
required.” [64] The value of a policeman’s opinion that a substance is dagga was dealt with
comprehensively by James JP in S v Ndaba. [65]
Page 99
8 6 The Expert Witness [66]
There are issues which simply cannot be decided without expert guidance. Expert opinion
evidence is therefore readily received on issues relating to, for example, ballistics,
engineering, chemistry, medicine, accounting and psychiatry. This is not an exhaustive list.
And there are cases where expert evidence — though not absolutely necessary — would
nevertheless still be of use. Intoxication [67] and handwriting [68] are two examples.
The matter was crisply stated in Gentiruco AG v Firestone SA (Pty) Ltd: “[T]he true and
practical test of the admissibility of the opinion of a skilled witness is whether or not the
Court can receive ‘appreciable help’ from that witness on the particular issue.” [69] In S v
Melrose the court found it necessary to point out that the viva voce evidence of medical
practitioners in cases involving, for example, homicide, rape and serious assaults “is very
relevant indeed”. [70]
Ruto Flour Mills Ltd v Adelson (1) [71] provides a good example not only of the guidance or
assistance that a court can receive from an expert but also the reasons for the exclusion or
admission of expert opinion evidence — a matter already dealt with in general terms in § 8 3
above. In this case an accountant was called to give evidence of the financial affairs of the
bakery concerned. The accountant had experience in the financial management of bakeries
and had inspected and analysed the books of the bakery. He testified that the business was
conducted erratically. The court overruled an objection to this opinion, and made the
following points: (a) Supererogatory evidence is excluded simply because it is not needed:
the court is as able as the witness to draw the conclusion. The evidence is not excluded
because there is something objectionable regarding the reliability of the evidence. (b) The
opinion of an expert
Page 100
is received because and whenever his skill is greater than that of the court. (c) The true
criterion is whether the court can receive appreciable help from the opinion of the witness.
(d) When the issue is one of science or skill the expert can be asked the very question which
the court has to decide.
In Ruto Flour Mills Ltd v Adelson (1) [72] the plaintiff (P) sued the defendant (D) for
defamation, averring that D had told third parties that P had raped her when the two of
them were alone on a farm. D invoked, inter alia, truth and public benefit as a defence. In
support of her allegation that she was indeed raped by P, D wanted to call an expert witness,
W, to testify that in his opinion, based on several interviews and two hypnotherapy sessions
he had with D, she was indeed raped by P. The interviews and sessions took place after
litigation had been initiated. W was a registered clinical psychologist and a member of the
South African Society of Clinical Hypnosis and was also going to testify that “hypnosis is a
way of accessing subconscious memories and thoughts from patients by inducing them in a
state of trance and/or deep relaxation”. [73] Counsel for P objected to the admissibility of W’s
opinion on the credibility of D. Satchwell J held that W’s evidence was irrelevant and
therefore inadmissible. The consistency of D was not in dispute and her prior statements to
W added “no greater weight to that which she . . . [was] . . . telling the court” [74] (see also
§ 9 2 below). But apart from this ground of irrelevance, Satchwell J also concluded that the
proposed evidence of W would “indeed displace the value judgment of the Court.” [75] The
court itself had to, and could, decide matters of credibility without the opinion of W. The
court also concluded that “the evidence to be given by . . . [W] . . . as to the hypnosis and
the conditions under which the statements were made by . . . [D] . . . go a long way towards
usurping the judgment of the Court”. [76]
In Holtzhauzen v Roodt the proposed evidence of a further expert, B, was held admissible.
D wanted to call B to testify that, in her opinion, a victim of acquaintance rape would often
not disclose the incident to third parties immediately after it has occurred. B, like W, was an
expert: B had an undergraduate degree in which she majored in psychology; she had a
master’s degree in social work and, at the time of the trial, she was a clinical supervisor of
POWA, [77] where her duties included the counselling of rape victims. But B’s opinion, unlike
that of W, was held relevant and admissible despite counsel for P’s argument that B’s
evidence was not relevant and would be conjecture. [78] Satchwell J rejected this argument
and found that the criteria whether the
Page 101
expert’s opinion would be “of assistance to the court” and “helpful,” were the criteria for
assessing the relevance or irrelevance of B’s evidence. [79] She reasoned and concluded as
follows: [80]
“Now rape of a woman is unlikely to be a topic or experience within the personal knowledge or
experience of many judicial officers or any at all. Rape has frequently been described as a crime which
seldom sees the light of day, let alone comes before the scrutiny of our courts. Rape victims or rape
survivors have usually endured their experience in silence, and the particular and somewhat unique
character and features of rape have long gone unstudied. They have certainly gone unappreciated by
our courts . . . However, rape is an experience of the utmost intimacy. The victims or survivors
thereof are largely confined to the female sex. I have heard the response of such survivors generically
described as a ‘scream from silence’. The result has been a paucity of South African legal and judicial
understanding and commentary on the full parameters and implications of this phenomenon. Rape is
an experience so devastating in its consequences that it is rightly perceived as striking at the very
fundament of human, particularly female, privacy, dignity and personhood. Yet, I acknowledge that
the ability of a judicial officer such as myself to fully comprehend the kaleidoscope of emotion and
experience, of both rapist and rape survivor, is extremely limited . . . In such circumstances I am of
the view that it would be unwise and it would be irresponsible for myself as a judicial officer, who is
lacking in special knowledge and skill, to attempt to draw inferences from facts which have been
established by evidence, without welcoming the opportunity to learn and to receive guidance from an
expert who is better qualified than myself to draw the inferences which I am required myself to draw.
An obvious example in the present case is the evidence that the defendant did not report the rape at
the very moment that her mother and sisters returned to the plaintiff’s farm. In the normal course
this Court would certainly be entitled to draw an inference that there was nothing for the defendant to
report to her mother or to her sisters. Certainly, if a witness’ purse containing cash and credit cards
and a cheque book had been stolen outside a bank, and the victim failed immediately to go inside and
cancel the cheque book or credit card and to make a report to the policeman standing on the street
corner while the thieves made a getaway, then I would consider myself entirely justified in drawing an
adverse inference from such facts. If indeed there are particular reasons, known only or known
particularly to those who work with rape survivors and who have experience in this field, why rape
survivors frequently do not take the first opportunity to make known such an assault and to seek
help, then it would ill-behove me as a Judge of the High Court to turn my ear against the opportunity
to gain a better understanding from an available expert . . . At the end of the day, however, I must
stress that the value which I will attach to such evidence will fall to be assessed in the light of all the
evidence before the Court; that is the evidence of the defendant, of the plaintiff and his wife, of their
son and nephew, of the defendant’s mother and her sisters. The guidance and opinion of . . . [B] . . .
will merely be one pointer for my assistance. It remains for this Court to determine the probative
value of . . . [B’s] . . . evidence and in what manner and to what extent it is of use in understanding
the facts before the Court.”
It should be noted that B’s opinion was of a general nature and, unlike W’s opinion, did not
involve an opinion on the credibility of D. B also had no personal interviews with D.
Page 102
In S v M [81] the Supreme Court of Appeal assumed, in favour of the state, that the opinion
of a qualified and experienced social worker and the opinion of a clinical psychologist to the
effect that the complainant had all the symptoms of child abuse, were admissible. The court
noted, however, that it was not bound by these opinions. On the facts of the case, the court
concluded that whilst the complainant’s symptoms were consistent with her allegations of
sexual abuse, other possible reasons for these symptoms were not excluded by the
evidence.
8 6 1 The expert witness: the need to lay a foundation [82]
The party seeking to adduce the opinion of a witness as an expert opinion must satisfy the
court that the opinion is not supererogatory — that is, not irrelevant. For this purpose the
court must be satisfied: (a) that the witness not only has specialist knowledge, training, skill
or experience but can furthermore, on account of these attributes or qualities, assist the
court in deciding the issues; [83] (b) that the witness is indeed an expert for the purpose for
which he is called upon to express an opinion; [84] and (c) that the witness does not or will
not express an opinion on hypothetical facts, that is, facts which have no bearing on the
case or which cannot be reconciled with all the other evidence in the case. [85]
In Menday v Protea Assurance Co Ltd Addleson J said: [86]
“In essence the function of an expert is to assist the Court to reach a conclusion on matters on which
the Court itself does not have the necessary knowledge to decide. It is not the mere opinion of the
witness which is decisive but his ability to satisfy the Court that, because of his special skill, training
or experience, the reasons for the opinion which he expresses are acceptable . . . However eminent
an expert may be in a general field, he does not constitute an expert in a particular sphere unless by
special study or experience he is qualified to express an opinion on that topic. The dangers of holding
Page 103
otherwise — of being overawed by a recital of degrees and diplomas — are obvious; the Court has
then no way of being satisfied that it is not being blinded by pure ‘theory’ untested by knowledge or
practice. The expert must either himself have knowledge or experience in the special field on which he
testifies (whatever general knowledge he may also have in pure theory) or he must rely on the
knowledge or experience of others who themselves are shown to be acceptable experts in that field.”
In Mahomed v Shaik [87] it was said that it is the function of the court to decide whether an
“expert” has the necessary qualifications and experience to enable him to express reliable
opinions. In this case it was held that a general medical practitioner — even though he held
the degrees MB ChB and had four years’ experience — was not qualified to speak
authoritatively on the significance of findings in a pathologist’s report concerning the fertility
of semen.
Formal qualifications are not always essential; and in many instances the practical
experience of the witness may be decisive. An experienced stock farmer may, for example,
give expert evidence as to the value of cattle. [88] The fundamental test still is whether the
evidence can assist the court — and the result is that in certain circumstances formal
qualifications without practical experience may not be enough to qualify the witness as an
expert. [89]
8 6 2 Reasons for opinion and probative value of the opinion

Expert witnesses are in principle required to support their opinions with valid reasons. But no
hard-and-fast rule can be laid down. Much will depend on the nature of the issue and the
presence or absence of an attack on the opinion of the expert. [90]
If proper reasons are advanced in support of an opinion, the probative value of such
opinion will of necessity be strengthened. [91] In Coopers (South Africa) (Pty) Ltd v Deutsche
Gesellschaft Für Schädlingsbekämfung MBH it was said: [92]
Page 104
“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are
either common cause, or established by his own evidence or that of some other competent witness.
Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any
real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning
which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed
by the expert.”
There are extreme cases where expert evidence can be so technical that the court may not
be in a position to follow the exact reasoning of the expert or observe the specific points of
identification. In such an instance great emphasis will be placed upon the general repute of
the witness’s profession and the absence or presence of possible bias. In R v Nksatlala it was
said: [93]
“[A] Court should not blindly accept and act upon the evidence of an expert witness, even of a finger-
print expert, but must decide for itself whether it can safely accept the expert’s opinion. But once it is
satisfied that it can so accept it, the Court gives effect to that conclusion even if its own observation
does not positively confirm it.”
In S v Blom [94] the accused was charged with, amongst other crimes, murder. Two police
fingerprint experts testified for the prosecution. At first they had not prepared comparative
charts in respect of the fingerprints found at the scene of the crime, as their department had
a policy not to do so unless there were at least eight points of identification in comparing the
fingerprints of the accused with those found at the scene of the crime. In this case they
could find only seven. Both the witnesses were satisfied that seven points of identification
were more than sufficient to identify a fingerprint beyond any doubt, and that the fingerprint
in question was that of the accused. It transpired that the prosecutor had told the defence
counsel that only five points of identification had been found. This corresponded with the
evidence of the investigating officer. When the two fingerprint experts were asked to indicate
the points of identification in court their evidence was unsatisfactory in a number of
respects. The court accordingly held that there was a reasonable doubt as to whether the
fingerprint was that of the accused, despite the fact that the two fingerprint experts had no
doubt in their minds.
In a number of cases [95] the courts have accepted the results of chemical blood-alcohol
concentration tests despite opinions by medical doctors that the clinical observations of the
accused did not correspond with the blood-alcohol level determined in the tests.
S v Van As [96] contains important observations and findings as regards expert opinion
evidence. In this case Kirk-Cohen J — apart from emphasising that in appropriate cases
expert evidence is adduced to place the court in a better position to decide the issues — also
distinguished between two situations: the first is where the expert’s opinion is based on that
of recognised writers or authority in the science concerned; the second is where the expert
has
Page 105
personally conducted experiments and then in court bases his opinion on the results of his
experiments. It was said that in the latter instance it is easier for the court to follow the
evidence, to accept it and to rely on it in deciding the issue. The expert’s presentation can
obviously also enhance the value of his testimony. [97]
In S v M [98] Kriegler J was most emphatic that a court should not lightly discard an
expert’s opinion where no factual premise of his or her evidence is unsound and where his or
her opinion — and the reasons therefor — have been furnished in a satisfactory manner. But
experts can make mistakes. In S v Venter Nestadt JA approved the trial court’s rejection of
expert testimony: [99]
“[T]he State pathologist who performed the post-mortem examination on the body of the child
supported the appellant’s denial. His opinion was that the child’s head was not submerged in the
water. The trial Court, however, refused to accept that this was so. This was a bold approach. One
does not lightly depart from the uncontroverted views of an impartial, well-qualified and experienced
expert. But I am persuaded that in the present matter it was warranted. The reasons given by
Southwood J for rejecting the doctor’s evidence are weighty. Consider the following. The photographs
clearly show that the child sustained burn injuries to his head and face; the condition of the inner
lining of the windpipe was consistent with the swallowing of hot water; the lungs contained fluid; and
there is the singular, undisputed feature that despite the injuries having been immediately painful
(intensely so, I would have thought), the child did not cry out or scream. The cumulative effect of
what has been referred to supports the trial court’s finding that the appellant ‘plunged [the child] into
the water and that his head was
Page 106
immersed for a number of seconds’ and that there was therefore no chance for the child to cry
out . . . Confirmation that the child’s head was submerged in the water comes from the appellant
himself.”
Support for the above approach can be found in Motor Vehicle Assurance Fund v Kenny, [100]
where Eksteen J observed that direct credible evidence of what happened in a collision must
generally be accorded greater weight than the opinion of an expert who attempts to
reconstruct the actual events on the basis of his experience and scientific training. After all,
there can in principle be no obstacle to accepting direct credible evidence even though such
evidence is in conflict with probabilities which arise from expert opinion evidence. [101]
The opinion of an expert must be ignored — and should strictly speaking be considered
inadmissible — if it is based on some hypothetical situation which has no relation to the facts
in issue or which is entirely inconsistent with the facts found proved. [102] This is a frequent
problem where a psychiatrist relies solely on an accused’s version of the events in assessing
his or her mental condition for purposes of determining criminal responsibility. [103] In S v
Harris Ogilvie Thompson JA said: [104]
“[I]n the ultimate analysis, the crucial issue of appellant’s criminal responsibility for his actions at the
relevant time is a matter to be determined, not by the psychiatrists, but by the Court itself. In
determining that issue the Court — initially, the trial Court; and, on appeal, this Court — must of
necessity have regard not only to the expert medical evidence but also to all the other facts of the
case, including the reliability of appellant as a witness and the nature of his proved actions throughout
the relevant period.”
It is important that an expert witness should remain objective despite the fact that he is —
in terms of our adversarial system — called by a party to testify in support of the latter’s
case: [105] “If he is to be helpful he must be neutral. The [opinion of an expert] is of little
value where he . . . is partisan and consistently asserts the cause of the party who calls
him.” In S v Kotze [106] Lombard J relied
Page 107
heavily on the opinions of experts — not only because they had advanced reasons in support
of their conclusions but also because their opinions had the “stempel van objektiewe
professionalisme”.
No reliance can be placed on an expert’s opinion if counsel puts his own interpretation to
the expert witness. [107] In this way “the expert does not put his evidence across in his own
words viva voce, but hides behind the words of counsel”. [108]
When it comes to assessing the testimony of an expert, an appeal court is in as good a
position as the trial court to test the reasoning of the expert. [109]
8 6 3 Hearsay and expert opinion

Hearsay evidence is defined in § 13 1 below. An expert witness may not as a rule base his
opinions on statements made by a person not called as a witness (but see § 8 6 4 below). In
Southern Transvaal Buildings (Pty) Ltd v Johannesburg City Council [110] it was held that even
though expert witnesses expressing opinions on the value of land may not utilise or rely
upon conclusions arrived at by other valuers not called as witnesses, they may rely on other
hearsay.
An expert witness may be allowed to rely on information which would technically be
hearsay, but which may be admitted if the conditions set out in § 8 6 4 below are satisfied.
The realities of practice demand that impossible standards should not be set. In S v
Kimimbi [111] it was said:
“No one professional man can know from personal observations more than a minute fraction of the
data which he must every day treat as working truths. Hence a reliance on the reported data of fellow
scientists learned by perusing their reports in books and journals. The law must and does accept this
kind of knowledge from scientific men . . . [T]o reject a profession [sic] physician or mathematician
because the fact or some of the
Page 108
facts to which he testifies are known to him only upon the authority of others, would be to ignore the
accepted methods of professional work and to insist on impossible standards.”
8 6 4 The expert referring to textbooks

The expert who relies on information contained in a textbook written by someone who is not
called as a witness, does in fact make use of hearsay. But he is allowed to do so if the
following conditions as set out in Menday v Protea Assurance Co Ltd are satisfied: [112]
“Where . . . an expert relies on passages in a text-book, it must be shown, firstly, that he can, by
reason of his own training, affirm (at least in principle) the correctness of the statements in that book;
and, secondly, that the work to which he refers is reliable in the sense that it has been written by a
person of established repute or proved experience in that field. In other words, an expert with purely
theoretical knowledge cannot in my view support his opinion in a special field (of which he has no
personal experience or knowledge) by referring to passages in a work which has itself not been shown
to be authoritative. . . [T]he dangers of holding the contrary are obvious.”
It is irregular for the court to rely upon publications (or portions thereof) not referred to and
adopted by an expert witness. [113]
8 7 Procedural Aspects
Rule 24(9) of the Magistrates’ Courts Rules and rule 36(9) of the Uniform Rules of Court
provide as follows:
“(9) No person shall, save with the leave of the court or the consent of all parties to the suit, be
entitled to call as a witness any person to give evidence as an expert upon any matter upon which the
evidence of expert witnesses may be received, unless he shall —
(a) not less than fifteen days before the hearing, have delivered notice of his intention so to
do; and
(b)
not less than ten days before the trial, have delivered a summary of such expert’s opinion
and his reasons therefor.”
The above rules are confined to civil cases. [114] In criminal cases prior disclosure may be
demanded — and should generally be granted — on constitutional grounds. [115]
In both civil and criminal cases there are certain statutory provisions which permit expert
evidence by way of affidavit or certificate. These provisions — which are discussed in
chapter 15 — do not, however, preclude the calling of the witness in person. [116]
There is a series of conflicting and confusing South African cases not only on the
procedure to be adopted where an expert testifies from his written report but also on the
question to what extent the written report — as opposed
Page 109
to the viva voce evidence — is received as evidence. [117] It is submitted that the following
principles govern the situation: [118]
(a) “Not infrequently”, said Milne JP in S v Ramgobin and Others, [119] “experts are
permitted to refresh their memories from reports and notes, and the reports and notes
are, not infrequently, put in as exhibits. They are not, however, the evidence. The
evidence is the oral evidence given by the expert, and the notes are merely an aide-
memoire.” [120] It is submitted that this principle applies only to situations which can be
described as “present recollection revived” — a concept which is explained in § 24 2
below. In this instance the expert’s report and notes have no independent probative
value.
(b) Where the expert witness — after consultation of his report and notes — has no
independent recollection of the case and can merely vouch for the accuracy of his
recorded observations the contents of the report must be received as the evidence. [121]
This situation can be referred to as “past recollection recorded” — a concept which is
explained in § 24 2 below.
(c) In both (a) and (b) above the expert should — as a matter of convenience — be
permitted to read out his report. [122] This is a necessary exception [123] to the general
rule that witnesses are not permitted to read from statements prepared for purposes of
the trial. [124] The expert witness should in principle confirm the correctness of his
report and state his adherence to it — and he must do so in the case of “past
recollection recorded”.
8 8 The Rule in Hollington

The earlier criminal convictions of a party are inadmissible for purposes of subsequent civil
proceedings. In Hollington v F Hewthorn & Co Ltd it was held, inter alia, that the opinion of
the previous tribunal was irrelevant. [125] Sections
Page 110
11, 12 and 13 of the English Civil Evidence Act 1968 have made previous judgments
admissible in certain specified instances. In South Africa we are still bound by the English
common-law rule as embodied in Hollington.
In S v Khanyapa [126] Rumpff CJ gave an indication that the rule in Hollington may in
future be overruled by the Appellate Division. It is submitted that in order to do so some
extraordinary judicial footwork would be necessary to circumvent our residuary clause as
found in s 42 of the CPEA. [127] But is the rule in Hollington archaic and irrational? In Land
Securities plc v Westminster City Council [128] Hoffmann J applied the rule in Hollington to
proceedings which fell outside the ambit of the Civil Evidence Act 1968: an arbitrator’s
previous finding was held inadmissible in respect of the facts in dispute because such
previous finding was considered an irrelevant opinion.
In S v Mavuso [129] Hefer J raised, but did not decide, the following question: does the rule
in Hollington prohibit proof of an accused’s previous convictions in a trial in which the
prosecution seeks to prove such convictions for purposes of the merits of the case, and
assuming such previous convictions are indeed relevant? Zeffertt responded as follows: [130]
“[This] question has been asked of me, by students, at least once a year for the last twenty years. My
reply has always been that the strange rule in Hollington v F Hewthorn & Co Ltd (which is to the effect
that the fact of a conviction by a criminal court is not evidence — not even prima facie evidence — in
a subsequent civil case, that the accused had committed the act for which he was convicted since it is
the irrelevant opinion of another court) is generally regarded as wrong. Although it has been held to
bind us in civil cases by virtue of the Civil Proceedings Evidence Act 25 of 1965 (see Yusaf v Bailey
and Others 1964 (4) SA 117 (W)), it has not been applied in proceedings that are not civil
proceedings within the meaning of that Act (for instance, in proceedings to strike an attorney off the
roll: Hassim (Also Known as Essack) v Incorporated Law Society of Natal 1977 (2) SA 757 (A)). It
should not be extended to criminal proceedings either — a submission that is supported by the fact
that s 211 of the Criminal Procedure Act 1977 envisages the proof of a previous conviction and, as we
have seen, s 197(d) allows an accused’s previous conviction to be put to him if relevant . . . The fact
that my students have always seemed totally unconvinced by this reply in no way derogates from my
conviction that it is the true answer.”
Page 111
We are as unpersuaded as Professor Zeffertt’s students, but can find no quarrel with his
argument! At any rate, how must one explain proof of admissible similar fact evidence [131]
by way of previous convictions?
Statutory repeal of the rule in Hollington is probably necessary. [132]

[2] See §§ 8 4 and 8 6 to 8 6 4 below.
[3] See §§ 8 4 and 8 5 to 8 5 3 below.
[4] 2015 (2) SA 1 (CC) at [30] n 30.
[5] See § 5 3 1 above.
[6] See § 8 3 below. See further S v S [2011] ZASCA 214 (unreported, SCA case no 423/11, 29 November 2011)
at [20].
[7] See S v Nel 1990 (2) SACR 136 (C) as discussed in § 5 3 3 above and Holtzhauzen v Roodt 1997 (4) SA 766
(W) as discussed in § 8 6 below. See further S v S [2011] ZASCA 214 (unreported, SCA case no 423/11, 29
November 2011) at [20].
[8] 1989 (3) SA 759 (W).
[10] Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd supra 764E.
[11] At 763H-I.
[12] 1979 (1) SA 1018 (W).
[13] At 1019F-H.
[14] 1948 (1) SA 947 (A).
[15] 1984 (1) SA 556 (A) 563D.
[16] See generally S v Steenberg 1979 (3) SA 513 (B) 515 as discussed in § 27 5 1 below.
[17] See also Zuckermann The Principles of Criminal Evidence (1992) 59-60 and Zeffertt, Paizes & Skeen 290.
Compare generally the approach of the AD in S v Mashile 1993 (2) SACR 67 (A).
[18] See generally May Criminal Evidence 2 ed (1990) 132-3.
[19] See § 8 3 below.
[20] Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 524.
[21] Murphy A Practical Approach to Evidence 10 ed (2008) 386.
[22] S v Pretorius en ’n Ander 1991 (2) SACR 601 (A)
[23] S v Williams en Andere 1985 (1) SA 750 (C) at 752I.
[24] Maguire Evidence: Common Sense and Common Law (1947) at 24.
[25] There is much merit in the forceful approach adopted by the Appellate Division in Reckitt & Colman SA (Pty)
Ltd v S C Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A). This was a passing-off case: the appellant’s “Brasso”
versus the respondent’s “Brillo”. Regarding the question whether the “Brillo” get-up was calculated to deceive, the
court found that the evidence of the psychologists and linguistic experts was singularly unhelpful, if not inadmissible,
because it tended to disguise opinion as a statement of scientific principle — and in so doing subtly sought to
displace the court’s value judgment with that of the witness.
[26] See generally S v H 1981 (2) SA 586 (SWA).
[27] Wigmore para 1918 used this term and explained that the rule “simply endeavours to save time and avoid
confusing testimony by telling the witness: ‘The tribunal is on this subject in possession of the same materials of
information as yourself; thus, as you can add nothing to the materials for judgment, your further testimony is
unnecessary, and merely cumbers the proceedings.’” See further the discussion of Ruto Flour Mills Ltd v Adelson (1)
1958 (4) SA 235 (T) in § 8 6 below. In this case the court relied heavily on Wigmore’s views.
[28] See S v Nel 1990 (2) SACR 136 (C) as discussed in § 5 3 3 above.
[29] Zeffertt 1976 SALJ 275.
[30] In R v Vilbro and Another 1957 (3) SA 223 (A), a unanimous decision of the Appellate Division sitting with five
judges, the question concerned the descent of the appellants. It was argued on behalf of the appellants that
witnesses could not be called to offer their opinions on the point: such evidence would be inadmissible, as it was
merely evidence of opinion, usurping the function of the court on an issue which the court, not any witness, had to
decide. Fagan CJ, delivering the judgment of the court, referred to Wigmore’s concept of supererogatory evidence
and his rejection of the usurpation theory. The court concluded that whereas nothing could be gained by calling
witnesses at random to express an opinion on the question, there would, however, be people who could be of great
assistance to the court, such as a government inspector who claimed to have experience of such affairs, as well as
other persons who were familiar with the appellants. Their opinions, the court held, would be admissible. It is
important to note that the suggestion here is that it is the opinion of laymen that could be received, on the basis that
their opinion could, due to their familiarity with the appellants, assist the court, who was not as familiar with the
appellants. The approach in Vilbro has been followed in Namibia. See Minister of Basic Education, Sport and Culture v
Vivier NO and Another 2012 (2) NR 613 (SC) at [21].
[31] See § 8 6 below.
[32] Paizes in Du Toit et al Commentary 24-16A.
[33] Cowsill & Clegg Evidence: Law and Practice (1990) 149.
[34] See generally R v Louw 1930 CPD 368 and R v Van Tonder 1929 TPD 365.
[35] Wigmore para 1920. See also Cowen & Carter Essays on the Law of Evidence (1956) 169.
[36] 1990 (4) SA 217 (A). See also R v Sole 2004 (2) SACR 599 (Les) 631d-636e; Visagie v Gerryts en ’n Ander
2000 (3) SA 670 (C); ZS-SVN Syndicate v 43 Air School (Pty) Ltd and Another 2007 (6) SA 389 (E) at [18].
[37] At 238C-E.
[38] Carter Cases and Statutes on Evidence (1981) 503.
[39] In S v Edley 1970 (2) SA 223 (N) 226D Miller J noted: “It seems to me that the more gross and manifest the
physical manifestations of intoxication noted by credible and reliable laymen are, the more readily may medical
evidence be dispensed with and that the more equivocal the physical manifestations or indications of intoxication
may be, the greater would be the need for the State to lead medical evidence of the accused’s condition at the
relevant time.” S v Skeal 1990 (1) SACR 162 (ZS) is an example of a case where intoxication was found proved on
the basis of the evidence of two policemen. Both lay person and expert should, however, advance reasons for their
opinion. See S v Mhetoa 1968 (2) SA 773 (O) and Rex v Theunissen 1948 (4) SA 43 (C). The opinion becomes
worthless in the absence of reasons: S v Adams 1983 (2) SA 577 (A). On a charge of drunken driving the
prosecution must also prove that the skill and judgment normally required to drive a vehicle were impaired or
detrimentally affected. In England a lay witness is not permitted to say whether the accused was fit or unfit to drive
(R v Davies 1962 1 WLR 1111). But the Irish courts receive such an opinion (A-G (Rudely) v Kenny 1960 94 ILT 185
as cited by Heydon Evidence: Cases and Materials 4 ed (1996) 386). Expert opinion is required in South Africa, but
the courts have accepted the opinion of experienced policemen. See Rex v Seaward 1950 (2) SA 704 (N). It is
submitted that an experienced policeman’s opinion can be received on the basis that it can assist the court.
[40] 1968 AC 159 164.
[41] See Huxley & O’Connell Blackstone’s Statutes on Evidence (1991) 142-3.
[42] See also § 8 5 1 below.
[43] See the argument advanced by counsel for the appellant in S v Haasbroek 1969 (2) SA 624 (A).
[44] R v Van Tonder 1929 TPD 365 can be explained as a case based on this approach.
[45] See generally Metro Transport (Pty) Ltd v National Transport Commission 1981 (3) SA 114 (W) 120A, where
it was held that “vertolking van ’n statutêre bepaling deur middel van verduidelikende getuienis nie toelaatbaar is
nie’. However, in S v Filani 2012 (1) SACR 508 (ECG) it was held that expert evidence was necessary to determine
whether a weapon fell within the technical definition of a “firearm” as defined in the Firearms Control Act 60 of 2000.
[46] According to May Criminal Evidence 134, this doctrine developed because of jury trials: “It was feared that if
witnesses could be asked for their opinion on the issue the jury had to decide (the ‘ultimate issue’), the jury would
be unduly influenced.”
[47] Schmidt & Rademeyer (2007) Law of Evidence 17-8-17-9 make the valid point that there is a link between
the “ultimate issue” doctrine and the important administrative law principle in terms of which the tribunal of fact
must apply his mind to the issue.
[48] 1980 (2) SA 636 (A). See also § 27 5 below.
[49] 1985 (4) SA 852 (A) 874A-B.
[50] Zeffertt, Paizes & Skeen 301. See further § 8 7 below.
[51] Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SACR 761 (CC) at [72]. See
further § 11 5 below.
[52] See § 8 5 below.
[53] Cowen & Carter Essays on the Law of Evidence 166.
[54] 1925 SWA 77 80. Emphasis added.
[55] Wright v Tatham 1885 Cl & Fin 670 721 as cited by Hodgkinson Expert Evidence: Law and Practice (1990) 18.
[56] Cowsill & Clegg Evidence: Law and Practice 150.
[58] An “expert” on handwriting is not necessarily confined to people who are handwriting experts by profession: R
v Silverlock 1894 2 QB 766.
[59] S v Smith en Andere 1978 (3) SA 749 (A).
[60] In S v Gentle 1983 (3) SA 45 (N) 46F-G Booysen J said: “The evidence as to the identity of the substance can
hardly be said to be challenged by challenging the evidence of possession thereof. It is one thing to say ‘that exhibit
is not dagga’ and quite another to say ‘I deny having possessed it’. In these circumstances the magistrate was quite
entitled to accept that it was dagga.”
[61] S v Januarie and Another 1980 (2) SA 598 (C) 600B-C: “[A]s to the value of an opinion expressed by a
witness, there should be some sufficient enquiry not only into the reasons for the opinion, but also into the ability of
the witness to express an informed and sound opinion.”
[62] A challenge can be explicit or by implication in the course of cross-examination: S v Sinam 1990 (2) SACR
308 (E) 315a-b.
[63] AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A) 614.
[64] 1990 2 PH H105 (E) 291.
[65] 1981 (3) SA 782 (N) 784B-785A: “It has been accepted in a long series of cases that the evidence of
policemen regarding the identity of dagga may be given in court and that in the absence of any challenge it may be
accepted by the presiding officer. A magistrate should satisfy himself that the policeman is sufficiently familiar with
dagga to be able to make a reliable identification but in the absence of any challenge a policeman’s statement that
he knows dagga and that what he found was in fact dagga has in the past been accepted by the Courts as sufficient
identification unless the policeman’s grounds for making this statement are challenged and his experience with and
knowledge of dagga is put in issue. See R v Radebe 1960 (4) SA 131 (T) at 133; R v S 1956 (4) SA 118 (N) at 125D.
This is in conformity with the practice in cases concerned with concoctions under the liquor laws where it has been
held that the unchallenged evidence of a policeman that the liquor in question was a particular type of concoction
may be accepted as prima facie proof that it is such a concoction. See Rex v Modesa 1948 (1) SA 1157 (T) at 1159;
R v De Souza 1955 (1) SA 32 (T). Challenges in regard to the identity of a substance which the police aver is dagga
are usually made on one of two grounds, the first being that the substance found is not dagga but something else. In
such a case the policeman’s evidence should not be accepted unless the policeman’s claim to be able to identify a
substance such as dagga has been thoroughly tested and the court feels able to accept it as so reliable that the
accused’s claim that the substance is something else must be rejected as false. See The State v Ngwanya 1962 (3)
SA 690 (T) and R v Kolisi 1960 (2) SA 374 (E). Secondly, when an accused person claims that he has no knowledge
of what the substance in question is, and challenges the correctness of the identification in cross-examination,
sufficient evidence must be adduced regarding the witness’ experience in or knowledge of the substance in question
to satisfy the court that his conclusion that the substance is undoubtedly what he claims it to be is reliable. See S v
Bertrand 1975 (4) SA 142 (C) at 149B (a case dealing with the drug known as LSD) and the case of S v Malefane
1974 (4) SA 613 (O) in which the accused denied on oath that the substance was dagga and in which the cross-
examination of the State witnesses clearly challenged their claim that the substance found in her possession was
dagga. See also S v Seboko 1975 (3) SA 343 (O). Once the accused challenges the reliability of the identification on
the grounds that the witness does not have the experience to give reliable evidence on the subject of dagga the
State is entitled to examine the witness further on his experience and if thought advisable, call further evidence to
identify the substance as dagga.” See also S v Letimela 1979 (2) SA 332 (B).
[66] See generally S v Gouws 1967 (4) SA 527 (E) 528. PricewaterhouseCoopers Incorporated and Others v
National Potato Co-operative Ltd and Another [2015] 2 All SA 403 (SCA); Jacobs and Another v Transnet Ltd t/a
Metrorail and Another 2015 (1) SA 139 (SCA). See also generally the doctoral thesis of Meintjes-Van der Walt Expert
Evidence in the Criminal Justice Process — A Comparative Perspective (2001) as well as the following articles by the
same author: 2000 CILSA 348; 2000 SACJ 319; 2000 SALJ 771; 2000 SACJ 145; 2001 Stell LR 283; 2006 SACJ 152;
2008 SACJ 22; 2001 THRHR 236.
[67] See n 39 above.
[68] See § 8 5 2 above.
[69] 1972 (1) SA 589 (A) 616H. In S v Vause 1997 (2) SACR 395 (N) such help came from an expert who
specialised in the reconstruction of motor car accidents. See also Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA
589 (A), where a full bench, rejecting the approach adopted in S v Kleynhans 2005 (2) SACR 582 (W), stressed the
valuable contribution that a probation officer can make to the sentencing process. See also generally Price 2006
SACJ 141, who discusses the “appreciable help” standard with special reference to S v Ferreira and Others 2004 (2)
SACR 454 (SCA).
[70] 1985 (1) SA 720 (Z) 724I.
[71] 1958 (4) SA 235 (T).
[72] 1958 (4) SA 235 (T).
[73] At 770H-I.
[74] At 774D.
[75] At 774E-F. See also S v S [2011] ZASCA 214 (unreported, SCA case no 423/11, 29 November 2011) at [20].
[76] At 775A-B. For a critical comment on this portion of Satchwell J’s finding, see Zeffertt 1997 ASSAL 718 737.
[77] POWA stands for “People Opposing Women Abuse”.
[78] At 776I.
[79] At 776G. In this respect she quoted from and relied upon Hoffmann & Zeffertt South African Law of Evidence
3 ed (1981) 85.
[80] At 777J-779D.
[81] 1999 (2) SACR 548 (SCA) 553e-g and 555g-556b.
[82] S v Nangutuuala en ’n Ander 1974 (2) SA 165 (SWA) 167C-E: “[T]ensy die grondslag van ’n getuie se
kundigheid gelê word — en gewoonweg word dit gedoen deur gepaste vrae aan die getuie self — [mag] hy nie as
deskundige . . . getuig nie. In die onderhawige saak was geen grondslag gelê nie . . . Geen enkele vraag in verband
òf met sy akademiese kwalifikasies òf met sy praktiese ervaring is aan [die getuie] gestel nie.” See also S v Shiini
1997 (1) SACR 212 (Nm) 214g-j.
[83] Ruto Flour Mills Ltd v Adelson (1) supra. See also Holtzhauzen v Roodt 1997 (4) SA 766 (W) 772H; Mkhize v
Lourens and Another 2003 (3) SA 292 (T).
[84] Goliath v Fedgen Insurance Company Ltd 1994 2 PH F31 (E): “I am, however, not satisfied that it has been
established that Victor has the necessary qualifications or expertise to give expert evidence regarding the behaviour
of a motor vehicle in cases where a driver is faced with the sudden deflation of a tyre and the steps which should be
taken by the driver to keep the vehicle under control in such circumstances. Victor is a physicist and a motor sport
enthusiast. The fact that he is a motor sport enthusiast, without more, does not qualify him to give expert evidence
of the nature to which I have referred. There is no evidence before me to suggest that Victor has been involved in
any research, or has conducted tests on which he is able to base the views expressed by him . . . An expert must
himself have knowledge or experience in the special field on which he testifies otherwise the danger exists of a court
being blinded by theory untested by knowledge or practical experience.” On the qualifications of experts in road
accident reconstruction, see generally GS Fouche Vervoer BK v Intercape Bus Service [2006] 1 All SA 24 (C) at [25]
and [44]. A physician who is not expert in ballistics cannot be asked about the shape and size of bullets which
caused a wound: Barrie v R 1959 1 PH H22 (O). Care should be taken to ensure that an expert witness does not give
evidence in areas outside his field of expertise. See PricewaterhouseCoopers Incorporated and Others v National
Potato Co-operative Ltd and Another [2015] 2 All SA 403 (SCA).
[85] S v Mkohle 1990 (1) SACR 95 (A) 100d; S v Mponda 2007 (2) SACR 245 (C) at [49].
[86] 1976 (1) SA 565 (E) 569.
[87] 1978 (4) SA 523 (N).
[88] Van Graan v Naudé 1966 1 PH J12 (O); Mahomed v Shaik 1978 (4) SA 523 (N); also see S v Mlimo 2008 (2)
SACR 48 (SCA), where Mthiyane JA said at [14]: “There is every reason to accept Sindane as an expert witness. He
is vastly experienced in his particular field of expertise and stated that he has been involved in no less than 3 085
cases involving ballistics testing over a period of more than six years. A lack of formal qualification may be an
indicator that the witness has not yet received sufficient training in the theoretical aspects in the field in which he or
she gives evidence. But this is not the case here, given the vast experience the witness has accumulated over the
years. Significantly the challenge is not about the content or substance of his evidence but, rather, that he still had
one more year to complete the course. During argument counsel offered no guidance as to what makes an expert an
expert. In my view the vast experience that Sindane had qualified him to be an expert and the trial court was
justified in accepting his evidence. In any event the challenge on appeal is a volte face, which comes late in the day,
as the appellant’s attorney indicated during the trial that Sindane’s qualifications were not disputed. Accordingly it no
longer lies in the appellant’s mouth at this stage to dispute the witness’s qualifications.” See also S v Mdlongwa 2010
(2) SACR 419 (SCA).
[89] Van Heerden v SA Pulp and Paper Industries Ltd 1945 2 PH J14 (W).
[90] S v Ramgobin and Others 1986 (4) SA 117 (N) 146; S v Mthimkulu 1975 (4) SA 759 (A); S v Claassen 1976
(2) SA 281 (O).
[91] S v Kotze 1994 (2) SACR 214 (O). S v Mkhize and Others 1998 (2) SACR 478 (W) is an example of a case
where the bald statement of an expert’s opinion did not carry any weight. The expert had lost the exhibits and was
unable to give reasons for his opinion.
[92] 1976 (3) SA 352 (A) 371F-H. See also S v Mokgiba 1999 (1) SACR 534 (O); and S v Zuma 2006 (2) SACR
191 (W).
[93] 1960 (3) SA 543 (A) 546D.
[94] 1992 (1) SACR 649 (E). In Maritime & General Insurance Co Ltd v Sky Unit Engineering (Pty) Ltd 1989 (1) SA
867 (T) 877 the court rejected an argument to the effect that a court may not — in regard to scientific issues — draw
its own conclusions based on criteria identified by experts.
[95] See, eg, S v Boyce 1990 (1) SACR 13 (T); S v De Leeuw 1990 (2) SACR 165 (NC); S v Abel 1990 (2) SACR
367 (C).
[96] 1991 (2) SACR 74 (W).
[97] See Bartlett “The Preparation of Experts’ Reports” 1994 60 Journal of the Chartered Institute of Arbitrators 94
for a useful discussion of the various considerations that must be taken into account when the report of an expert is
prepared. Where possible, expert evidence should be presented in such a way that the court is in a position to make
the observations on which the expert relied for his opinions. See S v Nthati en ’n Ander 1997 (1) SACR 90 (O); S v
Abader 2010 (2) SACR 558 (WCC) at [10]. On the assessment of an expert’s reconstruction of events (such as
collisions), see MV Banglar Mookh Owners of MV Banglar Mookh v Transnet Ltd 2012 (4) SA 300 (SCA).
[98] 1991 (1) SACR 91 (T). In this case a specialist psychiatrist had testified in mitigation of an accused who was
addicted to pethidine. The psychiatrist strongly advised against sending the accused to prison. In the opinion of the
psychiatrist the accused needed extensive psychotherapy (including chemotherapy) under controlled conditions and
combined with a gradual process of reintegration into society. The trial court refused to rely on this opinion. On
appeal Kriegler J remarked as follows (at 99j-100c, emphasis in the original): “A court’s approach to expert evidence
has been dealt with on many occasions. The court is not bound by expert evidence. It is the presiding officer’s
function ultimately to make up his own mind. He has to evaluate the expertise of the witness. He has to weigh the
cogency of the witness’s evidence in the contextual matrix of the case with which he is seized. He has to gauge the
quality of the expert qua witness. However, the wise judicial officer does not lightly reject expert evidence on
matters falling within the purview of the expert witness’s field. The judicial process is difficult enough. And the
determination of an appropriate sentence is always vexed. It is all the more so in a case such as the one with which
we are now dealing. A wise judicial officer will gather unto himself such aids as he can find. One does not spurn
proffered aid lightly. Here a highly qualified and obviously well informed expert proffered not only expert evidence
but volunteered valuable assistance in the future handling of the prisoner before the court. That witness dealt with
questions beyond the field of ken of laymen. One does not reject such evidence readily where the expert has
furnished his opinions — and the foundational reasons therefore — in a satisfactory manner. Here the diagnosis,
prognosis and prescribed treatment were clearly articulated and carefully, if not painstakingly, explained.” At 100g it
was said that the psychiatrist’s evidence “was uncontroverted by any factual or opinion evidence. It was thoroughly
tested and was in all respects persuasive and weighty. It should have been accepted, not rejected.”
[99] 1996 (1) SACR 664 (A) 666f-j.
[100] 1984 (4) SA 432 (E).
[101] Mapota v Santam Versekeringsmaatskappy Bpk 1977 (4) SA 515 (A). See also § 30 2 2 below.
[102] See generally S v Mkohle 1990 (1) SACR 95 (A) 100c-d; S v Mngomezulu 1972 (1) SA 797 (A); S v Boyce
1990 (1) SACR 13 (T) 19. In S v Malinga 2002 (1) SACR 615 (N) 618g the expert’s opinion was deprived of a factual
basis because the evidence of the complainant was inadmissible. In PricewaterhouseCoopers Incorporated and
Others v National Potato Co-operative Ltd and Another [2015] 2 All SA 403 (SCA) one of the reasons for rejecting
the expert evidence was that the opinions were expressed without any factual basis having been established by way
of admissible evidence. Another reason was the fact that the expert concerned disregarded all facts inconsistent with
his own theories and conclusions.
[103] See generally S v Loubscher 1979 (3) SA 47 (A) 57F-G and 60B-C.
[104] 1965 (2) SA 340 (A) 365B-C (emphasis added).
[105] Stock v Stock 1981 (3) SA 1280 (A) 1296E. See also P v P 2007 (5) SA 94 (SCA) at [18] and [21]. An
expert is required to assist the court and not the party calling him: it follows that objectivity is a fundamental
prerequisite for expert opinion. See Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015 (1) SA 139
(SCA) at [15]; S v Ncube and Others 2011 (2) SACR 471 (GSJ); Schneider NO and Others v AA and Another 2010
(5) SA 203 (WCC) at 211; PricewaterhouseCoopers Incorporated and Others v National Potato Co-operative Ltd and
Another (supra) at [99]; Motswai v Road Accident Fund 2013 (3) SA 8 (GSJ). Motswai is discussed by Slabbert 2013
Obiter 166.
[106] 1994 (2) SACR 214 (O) 225i. However, a court must keep in mind the difference between scientific
standards of proof applied by experts and judicial measure of proof to be applied by the court itself. See Michael and
Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA).
[107] S v Zwane and Others (3) 1989 (3) SA 253 (W) 278H. Zeffertt 1989 ASSAL 421 points out, however, that
“reliance could be placed on it if it were an interpretation that were to be accepted by either the court or the witness
(or both)”.
[108] S v Baleka and Others (3) 1986 (4) SA 1005 (T) 1021D.
[109] Stock v Stock 1981 (3) SA 1280 (A) 1296F and Jackson v Jackson 2002 (2) SA 303 (SCA). As regards the
assessment of conflicting views of experts, see Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188 (SCA); Louwrens v Oldwage 2006 (2) SA 161 (SCA); Medi-Clinic Ltd v Vermeulen 2015 (1) SA 241
(SCA) ([2014] ZASCA 150); Abdo NO v Senator Insurance Co Ltd and Another 1983 (4) SA 721 (E) and GS Fouche
Vervoer BK v Intercape Bus Service [2006] 1 All SA 24 (C). See also § 30 2 2 below. As regards the assessment of
the expert’s opinion where the facts upon which the expert relies are not borne out by the evidence of the accused,
see S v Engelbrecht 2005 (2) SACR 41 (W).
[110] 1979 (1) SA 949 (W) 959. Zeffertt 2000 ASSAL 795 802 observes as follows: “A valuator who gives expert
evidence about the value of an immovable is obliged to consider everything relevant to that assessment. It follows
that he may gather relevant hearsay evidence to that end and relay it to the court. Visagie v Gerryts en ’n Ander
2000 (3) SA 670 (C) at 680E-F. That was certainly true at common law. What nearly everyone seems to forget (or,
at least, to articulate in this context) is that we have had a statute governing hearsay since 1988. That statute, the
Law of Evidence Amendment Act, makes hearsay inadmissible unless it be received in terms of s 3 of the statute or
some other law. This raises the question: Is an exception at common law, which allows hearsay to be admitted as a
basis for an expert’s opinion, a ‘law’ within the meaning of s 3? It had better be — otherwise the reception of this
kind of evidence, which is so frequently admitted by our courts without recourse to the statutory discretion contained
in s 3, is quite inexplicable unless the true answer is that we have no common-law rules of evidence and that our law
of evidence is and always has been imported and included, or codified, by statute. If that be so, it is about time that
we all recognised and expressed it.”
[111] 1963 (3) SA 250 (C) 251H-252A.
[112] 1976 (1) SA 565 (E) 569H.
[113] S v Collop 1981 (1) SA 150 (A); S v Harris 1965 (2) SA 340 (A) 344C-D; S v Jones 2004 (1) SACR 420 (C).
[114] On the purpose and application of these rules, see Doyle v Sentraboer (Co-Operative) Ltd 1993 (3) SA 176
(SE) 180-1.
[115] Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SACR 761 (CC) at [72]. See
§ 11 5 below.
[116] See generally s 212 of the CPA and s 22 of the CPEA.
[117] See and compare generally Rex v Van Schalkwyk 1948 (2) SA 1000 (O); Rex v K 1951 (3) SA 180 (SWA); R
v Birch-Monchrieff 1960 (4) SA 425 (T); S v Joubert 1971 (3) SA 924 (E). See further Meintjes-Van der Walt Expert
Evidence in the Criminal Justice Process — A Comparative Perspective 128-30.
[118] See also generally Van der Merwe Die Geheueverfrissingsprosedure (unpubl LLD thesis, UCT 1988) 269-80.
[119] 1986 (4) SA 117 (N).
[120] 1986 (4) SA 117 (N) 146F-G.
[121] See generally S v Bergh 1976 (4) SA 857 (A) 865C-D.
[122] Wigmore para 787 (emphasis in the original): “Sometimes a prepared statement has advantages. In many
cases, especially where an expert witness upon a subject of scientific knowledge has made an investigation or
analysis and is called to testify, it makes for his own lucidity and accuracy, and for better comprehension and
valuation of his testimony, if he first reads his written report stating in precise terms his observations and inferences.
This practice should be freely permitted.”
[123] S v Heller and Another (1) 1964 (1) SA 520 (W) 522B-523D.
[124] See §§ 18 1 and 24 1 below.
[125] [1943] 2 All ER 35. It was held that a conviction of negligent driving in a criminal case was not admissible in
a subsequent civil action for damages. See further Prophet v National Director of Public Prosecutions 2006 (2) SACR
525 (CC) at [42]; Danielz NO v De Wet and Another 2009 (6) SA 42 (C). See Cowen & Carter Essays on the Law of
Evidence 172-204 for a detailed discussion of this rule. However, see Customs Tariff Consultants CC v Mustek Ltd
2002 (6) SA 403 (W) in respect of consolidated proceedings regarding a sister case before the same tribunal.
[126] 1979 (1) SA 824 (A) 840.
[127] See ch 3 above.
[128] 1993 4 All ER 124 128h; also see Van Zyl and Another v Jonathan Ball Publishers (Pty) Ltd and Others 1999
(4) SA 571 (W); Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (No 1) 2003 (5) SA
518 (C); Msunduzi Municipality v Natal Joint Municipal pension/provident Fund and Others 2007 (1) SA 142 (N);
Graham v Park Mews Body Corporate and Another 2012 (1) SA 355 (WCC).
[129] 1987 (3) SA 499 (A) 505F.
[130] 1987 ASSAL 433. See also Van der Berg 1987 Obiter 128. It should be noted that the Hassim case referred
to by Zeffertt, was not referred to in Nel v Law Society, Cape of Good Hope 2010 (6) SA 263 (ECG) in which the rule
in Hollington was applied to disciplinary proceedings against an attorney.
[132] However, in its report Review of the Law of Evidence: Project 6 (1986) para 18 5, the SA Law Commission
was not prepared to recommend statutory repeal of Hollington, claiming, inter alia, that to attach probative value to
the first court’s decision would in effect mean declaring something that is irrelevant to be relevant.
Page 112
Chapter 9
Previous Consistent Statements
S E van der Merwe
9 1 Introduction
9 2 Rationale for the Exclusion of Previous Consistent Statements
9 3 An Example from Case Law
9 4 Exceptions to the General Rule
9 5 To Rebut a Suggestion of Recent Fabrication
9 6 Complaints in Sexual Cases
961 Voluntary complaint
9611 The common law
962 The victim must testify
9621 The common law
963 First reasonable opportunity
9631 The common law
964 Victim of sexual offence
9641 The common law
965 Limited evidential value
9651 The common law
966 Complaints in sexual cases: inferences and the provisions of ss 58 and 59
of Act 32 of 2007
9661 General background
9662 Inferences and ss 58 and 59
9 7 Identification
9 8 Part VI of the CPEA
9 9 Res Gestae
9 10 Refreshing Memory
9 11 Statements Made at Arrest or on Discovery of Incriminating Articles
9 1 Introduction
A previous consistent statement is a written or oral statement made by a witness on some
occasion prior to testifying and which corresponds with or is substantially similar to his or
her testimony in court. The general rule is that a witness is not allowed to testify that on a
previous occasion he made an oral or written statement consistent with his evidence in
court. [1] A witness may therefore not be asked in evidence in chief or re-examination
whether he had
Page 113
made a previous statement consistent with his evidence in court. [2] A previous consistent
statement of a witness may also not be proved by calling another witness. [3] This kind of
statement is excluded because of its irrelevance. It lacks probative value. [4] In exceptional
circumstances these statements may be sufficiently relevant to be admissible. [5]
The general rule against the admissibility of previous consistent statements is sometimes
described as the “rule against narrative” or the “rule against self-serving statements”. [6]
Proof of previous inconsistent statements is as a rule admissible, because inconsistent
statements are relevant to credibility. [7] Previous consistent statements are, however,
generally excluded.
9 2 Rationale for the Exclusion of Previous Consistent

|Statements
A previous consistent statement is generally insufficiently relevant. Its insufficient relevance
can be attributed to the cumulative effect of several factors:
(a) A previous consistent statement usually has insufficient probative force. [8] A lie can be
repeated as often as the truth. [9]
(b) There is also the danger of easy fabrication. [10] There is a risk of “self-made”
evidence. [11] This is a factor which indirectly affects relevance and admissibility. [12]
(c) Evidence of previous consistent statements would in most cases be
Page 114
completely superfluous as it may be accepted that in the ordinary course of events a

witness’s evidence would be consistent with what he on other occasions had said about
the same topic or incident. [13]
(d) Proof of previous consistent statements in each and every case would be extremely
time-consuming and may pave the way for numerous collateral enquiries. A previous
consistent statement, once proved, would merely duplicate the evidence already given
by the witness. [14] There is no probative contribution.
(e) The rule against self-corroboration [15] limits the probative value of a previous
consistent statement to such an extent that proof of such statement is generally
excluded: it has insufficient probative force (as stated in (a) above).
9 3 An Example from Case Law

In R v Roberts [16] the accused was charged with murder. He testified that the killing of his
girlfriend was an accident. He was, however, not permitted to testify that two days after the
killing he had told his father that the killing was an accident. The narration to his father was
excluded because of its irrelevance. The court remarked: [17]
“The law upon the matter is well-settled. The rule relating to this is sometimes put in this way, that a
party is not permitted to make evidence for himself. That law applies to civil cases as well as to
criminal cases. For instance, if A and B enter into an oral contract, and some time afterwards there is
a difference of opinion as to what were the actual terms agreed upon and there is litigation about it,
one of those persons would not be permitted to call his partner to say: ‘My partner a day or two after
told me what his view of the contract was and that he had agreed to do so and so.’ So, in a criminal
case, an accused person is not permitted to call evidence to show that, after he was charged with a
criminal offence, he told a number of persons what his defence was going to be, and the reason for
the rule appears to us to be that such testimony has no evidential value. It is because it does not
assist in the elucidation of the matters in dispute that the evidence is said to be inadmissible on the
ground that it is irrelevant. It would not help the jury in this case in the least to be told that the
appellant said to a number of persons, whom he saw while he was awaiting his trial, or on bail if he
was on bail, that his defence was this, that or the other. The evidence asked to be admitted was that
the father had been told by his son that it was an accident. We think the evidence was properly
refused.”
Page 115
9 4 Exceptions to the General Rule

At this stage of the development of our law of evidence it seems as if it must be accepted
that the exceptions to the rule form a numerus clausus. [18] These exceptions are discussed
in §§ 9 5 to 9 12 below.
9 5 To Rebut a Suggestion of Recent Fabrication [19]
If it is suggested to a witness that he has fabricated his evidence within some ascertainable
period of time, he may rebut this specific suggestion of fabrication by showing that prior to
the time as alleged he had made a written or oral statement consistent with his evidence in
court. [20] In Menday v Protea Assurance Co Ltd Addleson J remarked as follows: [21]
“The word ‘recent’ in the term ‘recent fabrication’ appears to be inappropriate since in those cases in
which such evidence has been admitted, it appears that the comparative ‘recentness’ of the
fabrication has not been the deciding issue but rather the question whether between the event under
investigation and the trial of the matter, the witness invented a false version of what occurred; and
the statement has been admitted to show that, far from fabricating his evidence, the witness is saying
what he has always said. Much depends upon the form of the challenge of the disputed evidence and
much must depend on the ultimate cogency of the evidence of the previous consistent statement.”
This exception also applies where the allegation of recent fabrication is made by
implication. [22] General cross-examination aimed at showing that a witness is unreliable or
untruthful will not open the door for the admissibility of a previous consistent statement. [23]
The specific allegation or line of cross-examination must be analysed. [24]
The previous consistent statement is admissible not only where a direct or implied
accusation of a recent deliberate false fabrication is made but also
Page 116
where it is alleged that the witness recently imagined [25] or reconstructed the event even
though not with conscious dishonesty. [26]
The previous consistent statement is admitted because of its relevance. It has the
potential to rebut the attack upon the credibility of the witness. The contents of the
statement may not, however, be used as evidence of the truth of what the witness had said.
Nor can it serve as corroboration of the witness’s evidence. [27] The general rule against self-
corroboration prohibits such an approach. [28] The true evidential value of the statement is to
show that the story of the witness was not concocted at a later date. Consistency is proved
to refute recent fabrication. [29]
9 6 Complaints in Sexual Cases

The common-law position is that evidence may be given of a voluntary complaint made by
the victim within a reasonable time after the commission of the alleged sexual offence. [30]
The common-law rule applies by virtue of the 30 May, 1961 provision contained in s 190(1)
of the CPA (see § 9 6 3 2 below), but has to some extent been amended by recent
legislation as indicated below.
The common-law rule has had a peculiar historical development. [31] In the Middle Ages it
was considered essential for a rape victim to have “raised the hue and cry” [32] if a charge of
rape were to succeed. This rule, however, merely serves as a remote historical link with the
present rule. The present rule, for example, applies to female as well as male victims [33] and
is no longer confined to sexual crimes where absence of consent is an essential element. [34]
Furthermore, in terms of the modern common-law rule the absence of a complaint made
within a reasonable time after the event, is not fatal to the prosecution’s case (see § 9 6 3 1
below where S v Cornick and Another [35] is discussed).
The common-law requirements governing the admissibility of the complaint (the previous
consistent statement) are the following: the complaint must have been a voluntary one (see
§ 9 6 1 1 below); the complainant must testify (see
Page 117
§ 9 6 2 1 below); the complaint must have been made at the first reasonable opportunity
(see § 9 6 3 1 below); the complainant must have been a victim of a sexual offence (see
§ 9 6 4 1 below); and the complaint can only be admitted for the limited purpose of proving
consistency (see § 9 6 5 1 below).
The above common-law rule that the complaint of the victim is admissible as an exception
to the general rule excluding previous consistent statements, has for many decades been the
subject of severe criticism. [36] It has been argued that the rule does not have a rational
basis and is potentially prejudicial to the complainant and, indeed, the accused; [37] that it
fails to take into account research which confirms “that silence is part of a series of post-
traumatic responses . . . caused by crimes such as rape”; [38] and that, in the absence of a
complaint made within a reasonable time after the incident, there is the risk that a court
might draw an adverse inference as regards the credibility of the complainant (see § 9 6 6 1
below). In some common-law jurisdictions the rule has been abolished by statute; [39] and in
other common-law jurisdictions the common-law rule has been greatly modified to eliminate
the real or perceived risks attached to the practical application of the rule. [40]
The South African Law Commission also investigated the matter and made
recommendations (see § 9 6 6 1 below) which are now, with some adaptations, embodied in
ss 58 and 59 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007. These two sections came into operation on 16 December 2007. [41]
Section 58 provides as follows:
“Evidence relating to previous consistent statements by a complainant shall be admissible in criminal
proceedings involving the alleged commission of a sexual offence: Provided that the court may not
draw any inference only from the absence of such previous consistent statements.”
Section 59 provides as follows:
“In criminal proceedings involving the alleged commission of a sexual offence, the court may not draw
any inference only from the length of any delay between the alleged commission of such offence and
the reporting thereof.”
The impact of these two sections on the common-law rule and on the common-law
conditions governing the admissibility and probative value of the complaint, is discussed in
§§ 9 6 1 2, 9 6 2 2, 9 6 3 2, 9 6 4 2 and 9 6 5 2 below. From the outset, however, it must
be noted that neither s 58 nor s 59 makes any clear reference to the conditions that attend
the admissibility of the previous
Page 118
consistent statement(s) in sexual cases, except for the fact that s 58 as read with s 1(1) of
Act 32 of 2007 has expanded the meaning of “sexual offence” for purposes of the rule under
discussion (see § 9 6 4 2 below).
9 6 1 Voluntary complaint
9 6 1 1 The common law
In R v C 1955 (4) SA 40 (N) the common-law requirement was stated as follows: “To qualify
for admission, the ‘complaint’ must have been made voluntarily, not as a result of leading or
suggestive questions, nor of intimidation.” [42] In S v T [43] the victim’s mother had
threatened to hit her if she refused to disclose what the accused had done to her. The
complaint obtained in this way was held inadmissible. This case can be criticised on the basis
that the court paid inadequate attention to all the surrounding circumstances. [44]
Leading or intimidating questions should not have been asked. [45] Questions such as “why
are you upset?” or “what happened to your clothes?” will not render the complaint
inadmissible. But a question such as “did X touch your private parts?” may affect
admissibility even if the answer was given voluntarily. In R v Osborne it was said: [46]
“[T]he mere fact that the statement is made in answer to a question in such cases is not of itself
sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will,
indeed, have that effect . . . [B]ut a question such as this, put by the mother or other person, ‘What is
the matter?’ or ‘Why are you crying?’ will not do so. These are natural questions which a person in
charge will be likely to put. On the other hand, if she were asked, ‘Did so-and-so . . . assault you?’
‘Did he do this and that to you?’ then the result would be different . . . In each case the decision on
the character of the question put, as well as other circumstances, such as the relationship of the
questioner to the complainant, must be left to the discretion of the presiding judge. If the
circumstances indicate that but for the questioning there probably would have been no voluntary
complaint, the answer is inadmissible. If the question merely anticipates a statement which the
complainant was about to make, it is not rendered inadmissible by the fact that the questioner
happens to speak first . . .”
9 6 1 2 The provisions of Act 32 of 2007

It is submitted that the words “shall be admissible” in s 58 of Act 32 of 2007 must inevitably
be read subject to the common-law requirement of voluntariness as set out in § 9 6 1 1
above. A complaint obtained as a result of violence, or the threat of violence, would on
account of its inherent unreliability lack the required probative value of proving the
consistency of the complainant and — in the absence of serving
Page 119
any such probative purpose — the complaint becomes irrelevant and inadmissible. At any
rate, a coerced complaint may also be excluded in terms of s 35(5) of the Constitution. In
terms of this section evidence obtained in a manner that violates any right in the Bill of
Rights must be excluded if the admission thereof would render the trial unfair or otherwise
be detrimental to the administration of justice. The fact that the complaint was obtained in
breach of the rights of the complainant (as opposed to those of the accused) is no bar to the
application of s 35(5). [47]
In terms of the common-law rule as set out in § 9 6 1 1 above, non-coerced complaints
must nevertheless be excluded if they were elicited by leading questions. Does s 58 of Act
32 of 2007 demand a different approach? It is submitted that here, too, the words “shall be
admissible” do not demand admission of a complaint that lacks probative value — and a
complaint which consists of words put in the mouth of the complainant should be excluded.
A complaint which essentially consists of suggestions made by a third party, can hardly
serve to show consistency on the part of the complainant who adopted or accepted these
suggestions. It should be noted that the common-law position has been amended in
England, where s 120(8) of the Criminal Justice Act 2003 provides that — for purposes of
determining the admissibility of the prior complaint — “the fact that the complaint was
elicited (for example by a leading question) is irrelevant unless a threat or a promise was
involved”. [48] Our s 58 contains no such clear statutory break with the common law as
regards leading questions. It is accordingly submitted that the court retains a discretion as
regards the admissibility of complaints which were responses to suggestions or leading
questions. The position as set out in cases like R v C supra and R v Osborne supra (see
§ 9 6 1 1 above) prevails. However, it is important that in exercising its discretion the court
should pay careful attention to all the circumstances, especially the age of the
complainant [49] and the question whether the complaint resulted from a blatant suggestion
or a mere neutral inquiry which prompted the complaint. [50]
Page 120
9 6 2 The victim must testify

It is a condition of admissibility that the victim should testify. [51] Consistency cannot be
proved without the victim’s version. Neither the fact that the victim complained nor the
contents of the complaint may be received if the victim fails to or cannot testify. [52]
In S v R [53] it was alleged that the victim (a chronic alcoholic) was raped in an ambulance
whilst on her way to a nursing home for treatment. The accused, who had accompanied her
on the journey during which intercourse took place, alleged that she had consented. Upon
their arrival at the nursing home the victim repeatedly averred that the accused had raped
her. These statements were overheard by a nurse. At the trial — and as a result of the fact
that the victim’s acute alcoholic condition had given rise to amnesia — she was unable to
recall anything from the time she entered the ambulance. But in her evidence she denied
that she could have consented to intercourse. The complaint was held admissible despite the
fact that the victim was unable to repeat it in her testimony. It was also held that the
complaint was admissible to prove state of mind.
Section 58 of Act 32 of 2007 sanctions — in line with the common-law rule — the
admissibility of “previous consistent statements by a complainant” in the context under
discussion. However, it is submitted that the common-law requirement that the complainant
must testify (see § 9 6 2 1 above) remains intact. Admission of prior statements of a
complainant who does not testify, cannot prove consistency; and it is extremely doubtful
that Parliament had in mind that s 58 should be interpreted as a statutory exception to the
hearsay rule. [54]
9 6 3 First reasonable opportunity

The complaint should as a rule have been made at the first reasonable opportunity. [55]
Complaints by young children have been admitted after periods of five days, [56] seven
days, [57] ten days [58] and even six
Page 121
weeks. [59] According to Schmidt & Rademeyer, [60] the determination of what exactly would
amount to a “first reasonable opportunity” does to a large extent depend upon (a) the
presence or absence of a person to whom it can reasonably be expected that the victim
might have complained and (b) the question whether the victim realised the immoral nature
of the act. [61] In Die Staat v V [62] it was also pointed out that an important question is
whether the complainant — because of the lapse of time — could possibly have made a false
complaint.
In S v S [63] the accused was charged with the rape of an 11-year-old girl. Ebrahim JA
adopted a most sensible approach: [64]
“There is one aspect of the complainant’s evidence which on first reading is puzzling and can only be
clarified when it is considered from the viewpoint of a young person. This is the reason she gave for
not reporting the incident to her mother in detail. She told the court she did not report it at school
because she wanted to tell her mother first. This I regard as a natural reaction of one who has been
through a traumatic experience such as that deposed to. But then when she arrived home she merely
told her mother that her teacher had ‘touched’ her private parts. Out of context, this erratic behaviour
might well present the prosecution with an insuperable problem, for it is a generally accepted
evidential requirement that the complainant should report the offence at the earliest opportunity. I
should emphasize that this requirement is not a rule of law and admits of exceptions in appropriate
cases. The explanation proffered by the complainant for her erratic behaviour is not one I would
accept from an adult, or even from an older juvenile, but it emerged so naturally from this 11-year-
old, and in context to the mind of an innocent child must appear so logical that I am prepared to
accept it was given without intention to deceive. The little girl said that at the time she formed the
intention to tell her mother about her ordeal she was bleeding from her vagina and sore, but by the
time she arrived at home the bleeding had stopped. In answer to previous questions she had deposed
that she was unaware that what the appellant had done was unlawful. So, when
Page 122
she arrived home without visible injury, she decided not to trouble her mother with a detailed report
of what, one gathers, she (the complainant) regarded as a form of punishment. I am fortified in my
acceptance of this aspect of the complainant’s evidence by the evidence of her mother, from which it
emerges that the complainant was not infrequently detained at school for punishment. It is unlikely in
these circumstances that she would wish to draw attention to a further detention by going into details
about her ‘punishment’.”
In S v De Villiers en ’n Ander [65] a delay of approximately one year and the rejection of the
three young complainants’ explanation for the delay, [66] contributed to the acquittal of the
two appellants in circumstances where the court of appeal was satisfied that there were also
several other contradictions, improbabilities and unsatisfactory aspects in the testimony of
the complainants, [67] whereas the evidence of the appellants could not on account of
contradictions or improbabilities be rejected as not being reasonably possibly true. [68]
The presence or absence of a report made within a reasonable time after the incident
must be assessed in context; and a delay is not necessarily fatal to the prosecution’s case.
In S v Cornick and Another [69] Lewis JA (Ponnan JA and Theron AJA concurring) confirmed
the rape convictions of the two appellants even though the complainant — who was 14 years
old at the time of the rape — had laid charges only 19 years later. A chance meeting with
one of the appellants at the home of his sister revived memories of her ordeal, prompting
her to lay charges. Lewis JA described the case as “unusual”. [70] The appellants’ argument
was that it was improbable that the complainant, if she had been raped, would not have told
her grandparents or mother about the rapes. In this respect Lewis JA held that the
complainant [71]
“gave plausible explanations for all these apparent anomalies. She had been brought up by elderly
and conservative grandparents. They had never discussed matters of an intimate nature. She had a
distant relationship with her mother who had also not spoken to her ever about sex or physiology.
She had never had a boyfriend. It seems to me quite likely that in these circumstances she did not
realise what was happening to her when three youths took turns forcibly to have sexual intercourse
with her, despite her pleas and protestations. She knew that she was being hurt, but she did not
appreciate that she was being raped. It does not seem to me improbable that a young woman who
has tried to bury memories of a traumatic event for many years would not appreciate until her mid-
twenties, at a time when discussion and publicity about rape had become common, the full extent of
what had happened only later.”

Section 58 sanctions the admissibility of evidence of a prior consistent complaint or
complaints. Admission of a prior
Page 123
consistent complaint or complaints is also possible in terms of the common law, provided
that each complaint satisfies the “first reasonable opportunity” requirement. [72]
However, has s 58, as read with s 59, abolished the common law’s “first reasonable
opportunity” requirement? Paizes argues that the common-law requirement that the
complaint be made at the first reasonable opportunity to the first person to whom the
complainant might reasonably be expected to complain, “will, in all probability, not survive”
the new statutory dispensation. [73] This prediction is supported on the basis that the words
“shall be admissible” in s 58 cannot be interpreted as mere confirmation of the common-law
rule and its “first reasonable opportunity” requirement. The rule and its “first reasonable
opportunity” requirement were part of our law on account of the following provisions in
s 190(1) of the CPA: “Any party may in criminal proceedings . . . support the credibility of
any witness called . . . on behalf of such party in any manner in which and by any evidence
by which the credibility of such witness might on the thirtieth day of May, 1961, have
been . . . supported by such party.” Section 58, it is suggested, is not a mere restatement of
the rule. Such an interpretation would render the peremptory terms “shall be admissible”, as
used in s 58, meaningless. It is accordingly submitted that whilst s 58 confirms that a prior
complaint is admissible as a means of supporting the credibility of a complainant, it does
away with the common-law position as far as the latter’s attended “first reasonable
opportunity” requirement is concerned. This interpretation has the added advantage of
catering for the now generally accepted view that complainants in sexual cases do not
necessarily make immediate or prompt reports. [74] The whole purpose of s 58, it would
seem, was to facilitate proof of a prior consistent statement of a complainant in a sexual
case. Furthermore, s 59 provides that “the court may not draw an inference only from the
length of any delay between the alleged commission of such offence and the reporting
thereof.” This section implies that evidence of the complaint — even if presented by the
prosecution — can be admitted in terms of s 58 without having satisfied the “first reasonable
opportunity” requirement. The emphasis, it can be said, is no longer upon the admissibility
of the complaint but upon the inferential reasoning that should be permitted in assessing the
credibility of the complainant (see § 9 6 6 1 below).
It has already been noted that s 58 permits the admission of evidence of multiple
complaints. If the “first reasonable opportunity” requirement is no longer applicable, the
following questions arise: Is the court now compelled to admit all previous complaints
regarding the incident concerned? Where must the line be drawn? The fact that s 58 permits
evidence of multiple complaints
Page 124
that are not, it seems, subject to the “first reasonable opportunity” requirement,
theoretically opens the door to the admission of a series of complaints made to various
people. However, neither s 58 nor s 59 has abolished the common-law rule that a previous
consistent statement (the complaint) has the limited probative purpose of proving
consistency (see § 9 6 5 2 below). Evidence of a complaint (or complaints) is not
independent evidence of the facts alleged and cannot serve as evidence of the truth of the
contents so as to corroborate the complainant who, after all, is the very source from which
the report emanated (see § 9 6 5 1 below). It follows that no amount of evidence which
consists of complaint upon complaint can overcome the rule against self-corroboration.
Parliament could therefore hardly have had in mind that a court must receive all previous
complaints, regardless of their number and the circumstances in which they were made. The
admission of evidence of complaint upon complaint which can only serve the limited
probative purpose of proving consistency, must on account of considerations pertaining to
relevance reach a point where a court may in its discretion refuse to receive further evidence
of yet another complaint. This much, it is suggested, is demanded by s 210 of the CPA. [75]
Repetition upon repetition of a complaint — which, after all, remains a self-serving
statement — can ultimately become superfluous, making no further probative contribution to
the ultimate assessment of consistency as a factor in determining credibility.
9 6 4 Victim of sexual offence

The common law requires that the offence must be of a sexual nature; there must be a
victim and violence (or some physical element) must have been present [76] (for example, as
in rape or indecent assault). The concept “victim” includes people who voluntarily participate
in a sexual offence, but who cannot in law give proper consent, [77] for example, children
below certain ages and the mentally disabled.
The specific offence charged is not the decisive factor. The complaint may be admissible
on a charge of common assault if the evidence discloses that an indecent act was also
committed. [78]
The words “sexual offence” are used in s 58 of Act 32 of 2007 and are defined in s 1(1) of
the same Act as “any offence in terms of Chapters 2, [79] 3 [80] and 4 [81] and sections 55 [82]
and
Page 125
71(1), (2) and (6) [83] of this Act”. The common-law concept of the (sexual) crimes which
would have triggered the application of rule (see § 9 6 4 1 above), can no longer be applied:
“Whereas the rule used to apply only in prosecutions for rape, indecent assault and similar
offences, as these crimes were defined before 2007 . . . it now extends to a host of very
different offences to which it seems ill-suited, at best, and which were never envisaged by
the common-law rule . . .” [84] Included in the new array of offences calling for the
application of the rule, are, for example, “bestiality” as defined in s 13 and “sexual acts with
a corpse” as defined in s 14. These two crimes — as they stood prior to the statutory regime
established by Act 32 of 2007 — would not, in terms of the common law, have attracted
application of the rule.
9 6 5 Limited evidential value

In terms of the common law the complaint only serves to prove consistency on the part of
the victim. [85] It cannot create a probability in favour of the prosecution’s case [86] and
cannot corroborate the victim. [87] Ashworth states as follows: [88]
“A witness certainly cannot corroborate himself by pointing out that he told the same story before.
The fact that the witness telling a particular story at the trial told exactly the same story to the police
soon after the alleged offence cannot supply corroboration, although it may well strengthen the
evidence and rebut any suggestion of subsequent fabrication. Repetition of a story does not
corroborate it: and this is a corollary of the general proposition that the confirmatory evidence must
come from an independent source. But this general proposition does not apply in one carefully
circumscribed set of circumstances, where self-corroboration is possible — by means of the victim’s
distressed condition after the alleged incident.”
In S v S [89] the extremely shocked condition (“die uiterste geskokte toestand”) of the
complainant when she reported the rape, was considered strong corroboration of her
testimony that she was raped. But the court should of course be satisfied that the distressed
condition was not feigned, and if genuine that it could not be attributed to something other
than the alleged incident. [90]
Section 58 of this Act does not change the common-law rule as set out in § 9 6 5 1 above.
Section 58 governs admissibility and is silent on the purpose for which the evidence is
admitted. Our legislation does not make a clear break with the common law, like s 20(4)
Page 126
of the Criminal Justice Act 2003 in England, which provides that the complaint is admissible
to prove the truth of the matters stated and not merely to to show the consistency of the
complainant.
9 6 6 Complaints in sexual cases: inferences [91] and the provisions of

ss 58 and 59 of Act 32 of 2007
9 6 6 1 General background
In 1985 the South African Law Commission (hereafter “SALC”) concluded that the rules
governing a prior complaint of a complainant in sexual cases, did not require law reform. [92]
According to the SALC the correct application of the rules could not prejudice the
complainant concerned: the SALC argued that a prior consistent complaint could enhance
the prosecution’s case and, in the absence of an admissible earlier complaint, the finders of
fact could — depending on the reasons why no complaint was made at the first reasonable
opportunity — draw correct inferences from all the circumstances. However, just over a
decade and a half later the SALC re-examined the matter and concluded that even though
admission of an earlier complaint may have the effect of supporting the complainant’s
credibility, practical experience had shown that the rule created problems: “Where the
complainant did not make a statement at what is regarded as ‘the first reasonable
opportunity’, the defence usually succeeds with an argument that a negative inference
should be drawn about the credibility of the complainant: if the rape really happened, the
complainant would have complained as soon as possible.” [93]
The SALC argued that there were good grounds for rejecting the approach that the
absence of a complaint made at the first reasonable opportunity, should have an adverse
impact on the credibility of the complainant: [94]
“The fact that a negative inference is accepted at all by the courts, reflects assumptions about the
psychological effects of rape and other sexual offences and the conduct expected of a ‘reasonable’
complainant which are not borne out by recent empirical advances in this area. It is now widely
recognised that there are many psychological and social factors which may inhibit a complainant from
reporting a sexual offence ‘at the first reasonable opportunity’. This militates against the theory that
the absence of an earlier complaint should, of necessity, have a negative bearing on the reliability of
the complainant.”
The SALC considered various law reform options. The first option was to propose legislation
in line with s 275 of the Canadian Criminal Code. This section abolished the rule regarding
previous consistent statements in sexual offences. This approach places a complaint of rape,
for example, on the same footing as any other evidence of prior consistent statements,
rendering it inadmissible unless it can be admitted under other established exceptions to
Page 127
the general of rule of inadmissibility, like the rule relating to rebuttal of a recent
fabrication [95] (as explained in § 9 5 above). The SALC rejected this approach, because there
are many situations where admission of evidence of a complaint made within a reasonable
period after the commission of the alleged offence can indeed enhance credibility and assist
the state in furnishing proof beyond a reasonable doubt. [96]
As a second option, the SALC considered the provisions of s 6 of the Namibian Combating
of Rape Act 8 of 2001. [97] This section provides that evidence relating to all previous
consistent statements by a complainant shall be admissible where an accused is charged
with an offence of a sexual or indecent nature, provided “that no inference may be drawn
only from the fact that no such previous statements have been made.” However, the SALC
criticised s 6 of the Namibian legislation on the basis that it did not eliminate the possibility
that the presiding judicial officer may draw an adverse inference where the complainant did
delay in making the report. [98]
As a third option, the SALC considered certain Australian state legislation and the
provisions of s 7 of the Namibian Combating of Rape Act. Section 7 provides that where an
accused is charged with an offence of a sexual or indecent nature, “the court shall not draw
any inference only from the length of the delay between the commission of the sexual or
indecent act and the laying of a complaint”. The SALC ultimately concluded that by adopting
s 7 of the Namibian legislation — and by adopting an adaptation of s 6 of the same
legislation — it could effectively address the “problem that exists at present, without unduly
curtailing judicial discretion to evaluate evidence.” [99] The SALC’s recommendations were
embodied in clauses 17 and 19 of its proposed Sexual Offences Bill and the contents of these
two clauses are now, with some editorial changes, reflected in ss 58 and 59 of Act 32 of
2007.
9 6 6 2 Inferences and ss 58 and 59
The proviso in s 58 stipulates that a court may not draw any inference only from the
absence of any previous consistent statement made by a complainant, whereas s 59 states
that a court may not draw any inference only from the length of any delay between the
alleged commission of the offence and the reporting thereof. This legislative interference in
the inferential processes conducted by courts, is not desirable and might very well give rise
to constitutional issues.
It can be argued that ss 58 and 59 favour the prosecution: Whilst no inference (which,
obviously, includes a negative inference as regards the credibility of the complainant) can be
drawn solely on account of either the absence of a complaint or the length of the delay in
making the complaint, there is no similar statutory restriction as regards an inference drawn
solely from the fact that the complaint that was made happened to be a reasonably prompt
one. But this conflict is perhaps more apparent than real. In terms of
Page 128
the general principles which govern the evaluation of evidence, a court is precluded from
resorting to a piecemeal process of adjudication (see § 30 2 1 below). And drawing an
inference solely from the length of the delay between the alleged sexual crime and the
report of the complaint, would be inconsistent with the general principle that inferences may
not be drawn from selected facts considered in isolation (see § 30 5 below). Section 59 is
therefore merely statutory confirmation of what the correct approach should be: The length
of the delay is only a factor that must go into the scales. The same argument can be applied
to the proviso in s 58. And by the same token, the fact that a complaint was indeed made
within a reasonable period, is also only a factor that forms part of the totality of the evidence
on which it must be decided whether there is proof beyond reasonable doubt.
Paizes is far less accommodating in his assessment of the manner in which ss 58 and 59
seek to curtail the free evaluation of evidence: [100]
“Inferential processes are things best left to the courts. It is artificial and undesirable to curb . . . such
exercises. No two cases are alike . . . And to allow dogma or preconceived notions . . . to trammel the
reach of the judicial power in such processes is . . . a serious error. All that sections like these serve
to do is to invite intellectual dishonesty in that courts will, if they feel it is necessary to draw an
adverse inference, look for additional facts to support their conclusion even if these facts are flimsy or
unnecessary.”
9 7 Identification
Identification in court (a so-called “dock identification”) is of very little probative value. [101]
Prior identification obviously carries more weight. In R v Rassool it was said: [102]
“Therefore it seems to me that the evidence of previous identification should be regarded as relevant
for the purpose of showing from the very start that the person who is giving evidence in court
identifying the prisoner in the dock is not identifying the prisoner for the first time but has identified
him on some previous occasion in circumstances such as to give real weight to his identification.”
The evidence of identification must go no further than mere identification. But identifying
words accompanying any physical identification may be received. [103]
9 8 Part VI of the CPEA [104]
In terms of Part VI of the CPEA it is in certain circumstances permissible to hand in signed

statements which witnesses, who are also giving oral evidence, made after the incident
under investigation. Part VI of the CPEA also applies in
Page 129
criminal proceedings. [105] The previous written statement cannot serve as corroboration of
evidence given by the person who made the statement. [106]
9 9 Res Gestae
A previous consistent statement may also be received if it forms part of the res gestae. [107]
This was confirmed by the Appellate Division in S v Moolman. [108] But here, too, the previous
consistent statement cannot corroborate the witness.
9 10 Refreshing Memory [109]
A witness’s earlier statement may in certain circumstances be used to refresh his memory
whilst he is in the witness-box. The evidential value of a statement used to refresh memory
depends on one of two possible situations. In the case of “present recollection revived” the
earlier statement has no independent probative value (see § 24 7 below). However, in the
case of “past recollection recorded” the contents of the statement are received (see § 24 7
below). In such an instance there is no independent oral testimony (the memory of the
witness is not refreshed) and the issue concerning the admissibility of a previous consistent
statement does not arise.
9 11 Statements Made at Arrest or on Discovery of

Incriminating Articles
These statements may be used to prove consistency. [110]

In terms of this section, which does not apply to an accused, a witness’s statement may in
certain circumstances be proved by consent, that is, without calling the witness. It is
possible, however, that the witness may also be called upon to testify viva voce after his
statement has been proved by consent. [111] It is submitted that in such an instance the
previous written statement will merely serve to show consistency. It cannot corroborate the
witness.
[1] S v Moolman 1996 (1) SACR 267 (A) 300c; S v Mkohle 1990 (1) SACR 95 (A) 99c-d; Rex v Rose 1937 AD 467;
S v Bergh 1976 (4) SA 857 (A) 865G.
[2] Zeffertt, Paizes & Skeen 403. The cross-examiner may venture into this area should he or she deem it
necessary. In R v M 1959 (1) SA 434 (A) 438H it was accepted that a trial court could “do so mero motu . . . in the
interests of justice (in some cases in favorem innocentiae) . . .”
[3] Corke v Corke and Cook 1958 2 WLR 110.
[4] S v Mkohle supra 99d. In S v Scott-Crossley 2008 (1) SACR 223 (SCA) it was said (at [17]): “The trial court
erred in another important respect. It found Mnisi to be reliable by reason of the fact that his evidence was
consistent with the statement he made to the police. The court’s reliance on Mnisi’s previous statement was clearly
wrong. The general rule is that a witness’s previous consistent statement has no probative value . . .”
[5] These instances are discussed in §§ 9 4 to 9 12 below.
[6] See Tapper Cross & Tapper on Evidence 11 ed (2007) 322; Allen Practical Guide to Evidence (1998) 81.
[8] S v Mkohle 1990 (1) SACR 95 (A) 99d: “[T]he general rule is that a witness’ previous consistent statement has
no probative value.” See also S v Scott-Crossley 2008 (1) SACR 223 (SCA) at [17].
[9] Rex v Rose 1937 AD 467 473.
[10] See § 5 3 4 above.
[11] Cowsill & Clegg Evidence: Law and Practice 3 ed (1990, reprinted 1991) 207. Keane The Modern Law of
Evidence 6 ed (2006) 180 says: “The reason usually given for the rule is the danger of manufactured evidence. A
resourceful witness, minded to deceive the court, could with ease deliberately repeat his version of the facts to a
number of people prior to trial with a view to showing consistency with the story he tells in the witness box, thereby
bolstering his credibility.”
[12] Van Wyk in Ferreira Strafproses in die Laer Howe 2 ed (1979) 442 states: “Die vorige ooreenstemmende
verklaring is irrelevant omdat dit baie geringe bewyskrag het en tweedens omdat die toelating daarvan daartoe kan
lei dat ’n getuie of beskuldigde sy verhaal aan verskeie mense kan herhaal, met die oog daarop dat die aanhoorders
dan as getuies geroep kan word om dit te bevestig. Dit is egter ’n erkende feit dat ’n leuen net so dikwels, indien nie
meer nie, as die waarheid herhaal kan word. Die roep van ’n aantal getuies om dieselfde verhaal te kom vertel, soos
hulle dit aangehoor het, druis in teen die relevantheidsgrondreël en neem onnodig die tyd van die hof in beslag.
Voorts kan dit tot verwarring lei terwyl dit geen of weinig bewyswaarde het nie.”
[13] Tapper Cross & Tapper on Evidence 11 ed (2007) 322; S v Hanekom 2011 (1) SACR 430 (WCC) at [27].
[14] See also Holtzhauzen v Roodt 1997 (4) SA 766 (W) 774D.
[15] See § 30 3 1 below.
[16] 1942 28 Cr App R 102.
[17] At 105 (my emphasis).
[18] However, compare Holtzhauzen v Roodt supra 774A where Satchwell J, relying on S v Bergh supra, took the
view that there is no numerus clausus of instances where evidence of previous consistent statements “may be
relevant and therefore permitted”. Zeffertt 1997 ASSAL 718 738-9 argues that this is not a correct interpretation of
S v Bergh supra.
[19] See generally R v Oyesikuz 1972 56 Cr App R 240; Rex v Vlok 1951 (1) SA 26 (C) 27A-G; Pincus v Solomon
1942 WLD 237 241-2; S v Bergh supra; Rex v Dart (2) 1951 (1) SA 483 (W); S v Mavinini 2009 (1) SACR 523 (SCA)
at [16].
[20] The party calling the witness may prove the previous consistent statement made by the witness at a time
when the latter had no motive or opportunity to fabricate a false version. See generally Rex v Kizi 1950 (4) SA 532
(A) 535G-H.
[21] 1976 (1) SA 565 (E) 566F-H.
[22] Bergh supra 868D; S v Nieuwoudt 1986 1 PH H3 (C) 5-6; S v Moolman 1996 (1) SACR 267 (A).
[23] Nieuwoudt supra 5. Dennis The Law of Evidence 3 ed (2007) 561 says: “Accordingly it is not enough by itself
that the cross-examiner proves that the witness has made a previous inconsistent statement, or that the cross-
examiner attacks the whole of the witness’s testimony. The cross-examiner has to go further, so that the cross-
examination amounts to an allegation that the witness in effect fabricated the testimony after the events in question
for the purposes of the trial.”
[24] Pincus v Solomon supra 241-2; Moolman supra 295i.
[25] In Bergh supra 868D Rumpff CJ said (emphasis added): “Die begrip ‘onlangse versinsel’ is nie ’n omlynde
begrip nie en dit is die plig van die hof, by ’n probleem van hierdie aard, om vas te stel of die aanval op die getuie se
getuienis wesenlik neerkom op ’n suggestie, uitdruklik of implisiet, dat vir doeleindes van die saak hy iets as ’n feit
beweer wat tydens die aflê van sy getuienis ’n versinsel is of in sy verbeelding bestaan.”
[26] See generally the decision of the High Court of Australia in Nominal Defendant v Clement 1961 104 CLR 476.
[27] Bergh supra; Pincus v Solomon supra 242. The sole purpose is to prove consistency and, in so doing, rebut
the allegation of recent fabrication or reconstruction.
[29] S v Winnaar 1997 (2) SACR 352 (O).
[30] See generally Van der Merwe 1980 Obiter 86; Labuschagne 1978 De Jure 18 and 242; Singh 2006 SACJ 37
39. See also Schwikkard “A Critical Overview of the Rules of Evidence Relevant to Rape Trials in South Africa” in
Jagwanth et al (eds) Women and the Law (1994) 198-202.
[31] See generally Nokes An Introduction to Evidence 4 ed (1967) 104; Harms 1965 THRHR 257 268-9; R v Ellis
1936 SWA 10; R v Guttenberg 1907 TS 207 211.
[33] R v Camelleri 1922 2 KB 122; R v Burgess 1927 TPD 14.
[34] R v Osborne 1905 1 KB 551.
[35] 2007 (2) SACR 115 (SCA)
[36] For one of the latest articles in a local law journal, see Singh 2006 SACJ 37.
[37] Schwikkard “A Critical Overview of the Rules of Evidence Relevant to Rape Trials in South Africa” in Jagwanth
et al (eds) Women and the Law (1994) 198-202. It is unfair to the accused in trials of this nature because his or her
prior consistent statement is, unlike that of the complainant, not admissible (unless, of course, it can be admitted in
the event of an allegation of recent fabrication, as explained in § 9 5 above).
[38] Steyn Witnesses in South Africa, The Stepchildren of the Criminal Justice System (unpub LLM thesis, Univ of
Cape Town, 1999) 98. See also generally Müller The Child Witness in the Accusatorial System (unpub PhD thesis,
Rhodes Univ, 1997) 307-13.
[39] See s 275 of the Canadian Criminal Code. See further § 9 6 6 below.
[40] See ss 6 and 7 of the Namibian Combating of Rape Act 8 of 2001, discussed in § 9 6 6 1 below.
[41] See s 72 of Act 32 of 2007 as read with GG 30599 of 14 Dec 2007.
[42] 1955 (4) SA 40 (N) 40G-H. See also S v MG 2010 (2) SACR 66 (ECG) at [10].
[43] 1963 (1) SA 484 (A).
[44] In S v T supra the victim also testified that the accused had threatened to kill her and the rest of her family if
she were to report the incident. This allegation should have been considered and — if accepted — could have played
a role in assessing the true voluntariness of the complaint. The threat to kill, if it were present, could have served to
cancel out, or could have explained why, the coersive measure of persuasion led to the complainant’s report. There
was also medical evidence of sexual interference.
[45] R v Norcott 1917 1 KB 347.
[46] 1905 1 KB 551 556.
[47] See § 12 8 3 below.
[48] The words in brackets appear in the section. It should also be noted that the provisions of the Criminal Justice
Act 2003 are not confined to complaints in sexual cases, but to all offences where there is a complainant (“a person
against whom an offence has been committed” — s 120(7)(a)). See further Tapper Cross & Tapper on Evidence 11
ed (2007) 323, where it is explained that one of the purposes of the relevant provisions of the Criminal Justice Act
2003 was to ensure that “sexual cases should be tried as far as possible in the same way as others”.
[49] See R v C supra 41A-G.
[50] A complaint is not rendered inadmissible simply because the questioner insisted on being told the truth. See R
v C supra 41C.
[51] Rex v Kgaladi 1943 AD 255. In Smith v Malete 1907 TH 235 236 Bristowe J said: “If a child of three years
cannot give evidence in court, how can she give evidence through her mother? The particulars of the complaint must
be excluded.” If the complainant does not testify, the prosecution may seek to persuade the court to receive the
evidence of the complaint (as hearsay) in terms of s 3(1)(c) of Act 45 of 1988, on the grounds that such admission
would be in the interest of justice. It is extremely doubtful whether such an attempt would succeed — especially
where the complainant happens to be an incompetent witness. Hearsay is discussed in ch 13 below.
[52] R v Wallwork 1958 42 Cr App Rep 153.
[53] 1965 (2) SA 463 (W).
[54] See Paizes in Du Toit et al Commentary 23-20 and 24-8B.
[55] In R v C 1955 (4) SA 40 (N) Caney J said: “To qualify for admission, the ‘complaint’ . . . must have been
made . . . at the earliest opportunity which, under all the circumstances, could reasonably be expected, to the first
person to whom the complainant could reasonably be expected to make it.” See also Rex v S 1948 (4) SA 419 (GW)
423 and S v De Villiers en ’n Ander 1999 (1) SACR 297 (O). In R v Kautumundu 1936 2 PH F154 (SWA) two
complaints (relating to the same incident) were made on the same day. Both were received as having been made at
the “first” reasonable opportunity. This seems to be acceptable, provided that the court must bear in mind that the
complaint(s) can merely prove consistency. A witness, it was said in R v Whitehead 1929 1 KB 99 102, cannot
corroborate himself, otherwise it would only be necessary for him to repeat his story some 25 times in order to get
25 corroborations of it. Schwikkard in Jagwanth et al (eds) Women and the Law 201 states that the requirement of
“first reasonable opportunity” and its application by the courts fail to take into account the many psychological and
social factors which may inhibit a rape survivor from making a complaint. An instructive case in this regard, is R v
Valentine 1996 2 Cr App R 213. At 224 it was said: “We now have greater understanding that those who are the
victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what
has been done to them; that some victims will find it impossible to complain to anyone other than a parent or
member of their family whereas others may feel it quite impossible to tell their parents or members of their family.”
See also generally S v M 1999 (1) SACR 664 (C) 669f-h. In S v MG 2010 (2) SACR 66 (ECG) at [10] Jones J
concluded that it was not unreasonable for a 12-year-old to make her first report to her mother as opposed to a
report at an earlier opportunity “to a more remote relative”. See also generally S v GS 2010 (2) SACR 467 (SCA) at
[23].
[56] R v C 1955 (4) SA 40 (N).
[57] R v Hedges 1909 3 Cr App Rep 262.
[58] R v Gannon 1906 TS 114.
[59] R v T 1937 TPD 398.
[60] At 383.
[61] R v Gannon supra 117: “I think . . . the complaint was made at the earliest opportunity which could
reasonably have been expected. If the girl had been older, if it had been the case of a grown woman, or even a child
more precocious, who knew something about the nature of the offence, the decision might be different.” In Gannon
supra the complainant was 8 years old.
[62] 1961 (4) SA 201 (O).
[63] 1995 (1) SACR 50 (ZS).
[64] At 56d-h. However, see also Schwikkard 1995 SACJ 100 for some criticism of this rule.
[65] 1999 (1) SACR 297 (O).
[66] At 306a-e.
[67] At 304e-305f and 308g-i.
[68] At 309b.
[69] 2007 (2) SACR 115 (SCA).
[70] At [2].
[71] At [32].
[72] R v Kautumundu 1936 2 PH F154 (SWA). See also R v Valentine 1996 2 Cr App R 213. See also n 55 above.
[73] Paizes in Du Toit et al Commentary 23-20. Emphasis in the original.
[74] Munday Evidence 4 ed (2007) 228: “It is now widely accepted that prompt complaint by sexual complainants
is far from the norm.” See Holtzhauzen v Roodt 1997 (4) SA 766 (W) where Satchwell J admitted evidence of an
expert to the effect that a victim of acquaintance rape will often not reveal the incident immediately after its
occurrence. See further n 55 above where reference is made to Schwikkard in Jagwanth et al Women and the Law
201.
[75] See generally ch 5 above.
[76] See generally S v Thys 1974 2 PH H82 (C); R v Gloose 1936 2 PH F155 (SWA); R v Westermeyer 1911 32
NLR 197; R v Komsame 1928 EDL 423.
[78] Rex v Dray 1925 AD 553.
[79] Chapter 2 creates statutory sexual offences such as rape (s 3); compelled rape (s 4); sexual assault (s 5);
compelled self-sexual assault (s 7); certain offences against persons 18 years or older (ss 8 to 11); incest (s 12);
bestiality (s 13) and sexual acts with a corpse (s 14).
[80] Chapter 3 deals with sexual offences against children.
[81] Chapter 4 deals with sexual offences against persons who are mentally disabled.
[82] This section creates the offence of attempting, conspiring, inciting or inducing another person to commit a
sexual offence.
[83] Section 71 deals with trafficking in persons for sexual purposes.
[84] Paizes in Du Toit et al Commentary 23-19 — 23-20.
[85] R v M 1959 (1) SA 352 (A). Cf, however, S v M 1980 (1) SA 586 (B) as discussed by Labuschagne 1980
THRHR 322 and Van der Merwe 1980 Obiter 86.
[86] S v Hammond 2004 (2) SACR 303 (SCA) at [17].
[87] S v Gentle 2005 (1) SACR 420 (SCA); S v MG 2010 (2) SACR 66 (ECG) at [10]. See also generally Fletcher
and Another v S [2010] 2 All SA 205 (SCA).
[88] Ashworth “Corroboration and Self-corroboration” 1978 Justice of the Peace 266 267.
[89] 1990 (1) SACR 5 (A) 11c.
[90] S v Hammond supra at [21]-[23].
[91] See generally Steyn Witnesses in South Africa, The Stepchildren of the Criminal Justice System (unpub LLM
thesis, Univ of Cape Town, 1999) 96-102; Müller The Child Witness in the Accusatorial System (unpub PhD thesis,
Rhodes Univ, 1997) 307-13; Singh 2006 SACJ 37.
[92] South African Law Commission Report on Women and Sexual Offences (1985) para 3 50.
[93] SALC, Discussion Paper 102, Project 107, Sexual Offences: Process and Procedure (2002) para 34 4 1 1
(hereafter referred to as Discussion Paper 102).
[94] Discussion Paper 102, para 34 4 2 1.
[95] See also Schwikkard in Jagwanth et al (eds) Women and the Law 202.
[96] See generally S v S 1990 (1) SACR 5 (A).
[97] For a discussion of this Act, see Bohler-Muller 2001 SACJ 71.
[100] Paizes in Du Toit et al Commentary 24-8B. The facts of a case like S v GS 2010 (2) SACR 467 (SCA) support
the critical approach adopted by Paizes.
[101] Rex v Velekaze 1947 (1) SA 162 (W). See further § 30 11 2 1 below and the authorities cited by Van der
Merwe in Du Toit et al Commentary 3-7 to 3-9.
[102] 1932 NPD 112 118 (emphasis added).
[103] Zeffertt, Paizes & Skeen 408-9.
[106] Section 35(2) of the CPEA.
[107] Tapper Cross & Tapper on Evidence 11 ed (2007) 411 states that the term “res gestae” is a blanket phrase
when applied to the admissibility of statements, and may roughly be said to denote relevance through
contemporaneity — part of the story.
[108] 1996 (1) SACR 267 (A). In this case entries in a policeman’s pocket book were held admissible as being part
of the res gestae.
[109] Refreshing of memory and the distinction between present recollection revived and past recollection
recorded are discussed in ch 24 below. See especially § 24 2 below.
[110] See generally Gooderson “Previous Consistent Statements” 1968 26 Cambridge LJ 64 66-74.
Page 131
Section C
Exclusion of Relevant Evidence: Privilege
10 Private Privilege –P J Schwikkard

11 State Privilege (Public Interest Immunity) –S E van der Merwe
Page 133
Chapter 10
Private Privilege
P J Schwikkard
10 1 Introduction
10 2 The Privilege Against Self-incrimination and the Right to Remain Silent
10 2 3 The accused
10 3 4 Waiver
10 1 Introduction
Privilege exists when a witness is not obliged to answer a question or supply information that
is relevant to an issue before the court. [1] A claim of privilege must be distinguished from
the non-competence or non-compellability of a witness (see § 22 1 below). An incompetent
witness does not have the capacity to testify; a non-compellable witness has the right to
refuse to testify at all, whilst a witness who wishes to claim privilege is still required to enter
the witness-box and then raise the privilege as the reason for not answering the questions
put. A claim of privilege may as a rule be waived. However, if persons are unaware of their
right to claim the privilege, the courts will be reluctant to
Page 134
uphold a claim of waiver. [2] A distinction must also be drawn between private privilege and
state privilege. Where evidence is excluded because to disclose or admit it would be
detrimental to state interests, state privilege is claimed (see § 11 1 below). Private privilege
is directed at protecting the interests of individuals. When private privilege is claimed
secondary or circumstantial evidence may as a rule be admitted to prove the matters
protected by that privilege. [3] This may not be done when state privilege is invoked. The
differences between private and state privilege are also discussed in § 11 1 2 below.
The effect of private privilege is to deprive the court of relevant evidence; consequently
there is a tendency to restrict the instances in which privilege can be claimed. [4] For
|example, the courts will not recognise a privilege between journalists and their informers or
doctors and their patients. This matter is dealt with in § 10 4 below.
In this chapter the following heads of privilege will be discussed: the privilege against self-
incrimination; professional privilege; marital privilege; and parent-child privilege. [5]
10 2 The Privilege Against Self-incrimination and the Right to

Remain Silent
The privilege against self-incrimination prohibits a person being compelled to give evidence
that incriminates him- or herself. [6] This rule is part of our common law; it is also reflected
in certain statutory provisions [7] and enjoys constitutional protection. [8] The right to remain
silent, which can be described as the absence of a legal obligation to speak, is necessary to
give effect to the privilege against self-incrimination. [9]
The privilege against self-incrimination and the right to remain silent are a natural
consequence of the presumption of innocence which places the burden on the prosecution to
prove the accused’s guilt beyond a reasonable doubt. [10] It is generally accepted that
historically these rules “originated in the unpopularity of the procedure in the Star Chamber
Page 135
under which those who were charged with an offence were interrogated on oath” [11] and the
use of torture was an accepted legal procedure. [12]
In modern law the rationale for retaining the privilege against self-incrimination probably
remains founded in public revulsion to the idea that a person should be compelled to give
evidence that will expose her to the risk of criminal punishment. [13] This reflects a belief that
individuals have a right to privacy and dignity which, whilst not absolute, may not be easily
eroded. A further justification for the privilege is that it is necessary to encourage people to
testify freely; [14] people may be reluctant to come forward as witnesses and may decline to
testify if they are fearful that they might be forced to incriminate themselves. [15]
In Miranda v Arizona Warren CJ held: [16]
“The constitutional foundation underlying the privilege is the respect a government . . . must accord
to the dignity and integrity of its citizens . . . [T]o respect the inviolability of the human personality,
our accusatory system of criminal justice demands that the government seeking to punish an
individual produce the evidence against him by its own independent labors, rather than by the cruel
simple expedient of compelling it from his own mouth.”
It can also be argued that both the right not to incriminate oneself and the right to silence
are necessary to deter improper investigation which may negatively impact on the reliability
of evidence and in this respect the rights should be viewed as enhancing the truth-seeking
function of the court.
There are distinctions in the application of the privilege against self-incrimination and the
right to remain silent to the accused, witnesses in criminal proceedings, and witnesses in
civil proceedings; these will be considered below.
In terms of s 203 of the CPA a witness may refuse to answer a question if it would expose
her to a criminal charge; [17] however, the refusal will not be justified if it is based on a fear
that it may give rise to a civil claim. [18] Presiding officers are required to warn witnesses in
criminal proceedings of their rights under s 203. A failure to do so will ordinarily render “the
incriminating evidence inadmissible in a prosecution
Page 136
against the witness”. [19] In S v Lwane [20] the appellant had been a complainant at an earlier
hearing at which he gave evidence against a fellow thief and murderer who had shot him. In
the course of his testimony he confessed to having participated in a murder himself. He was
subsequently charged and convicted of the murder on the basis of his confession made at
the earlier hearing. On appeal it was held that his testimony at the earlier hearing was
inadmissible in that he had been ignorant of his right to decline to incriminate himself and
had not been warned of the existence of this right. [21]
Before the privilege against self-incrimination will be upheld the court must be satisfied
from the circumstances of the case and the nature of the evidence that there are reasonable
grounds to believe that the witness will incriminate herself. [22] However, the witness is
“given considerable latitude in deciding what is likely to prove an incriminating reply”. [23]
A witness at inquest proceedings can also claim the privilege against self-incrimination. [24]
From the decision in Masokanye v Additional Magistrate, Stellenbosch and Others [25] it would
appear that the privilege is restricted at such proceedings. [26] The court held that a presiding
officer at an inquest, in exercising his discretion to uphold the privilege against self-
incrimination, must ensure that the salutary protection afforded by the rule against self-
incrimination was not converted into a means of abuse. In exercising such discretion it is
necessary to balance the scales between the interests of the witness who demands the
protection and the interests of the public, which demand full disclosure. Despite adopting
this approach, the court held that a policeman at inquest proceedings is entitled to claim the
privilege against self-incrimination concerning questions relating to his own activities as well
as the actions of his colleagues, as inferences could be drawn from his colleagues’ actions
which could incriminate him. The conclusion of the court has the
Page 137
potential of compromising the principle of open government. [27] “The propriety of police
conduct is a matter of public concern, and public policy requires that such conduct should, as
far as possible, be open to scrutiny by the courts.” [28]
It is not clear whether juristic persons can claim the privilege against self-incrimination.
The English law has recognised the claim by juristic persons [29] but this is not the case in
America, [30] Canada [31] or Australia. [32] Section 8(4) of the Constitution extends the
application of the Bill of Rights to juristic persons “to the extent required by the nature of the
rights and the nature of that juristic person”. The common-law rationale for the privilege is
firmly embedded in the right to dignity, a right more easily imagined in relation to an
individual than a legal entity. Although the Constitution does not appear to be an
impediment to extending the right to corporations it also does not provide a basis for
claiming it. Whether the common-law privilege should be seen as extending to juristic
persons should then be one determined by public interests; in the dissenting words of Lord
Denning: “The privilege is not available to a corporation. It has no body to be kicked or soul
to be damned . . . the public interest lies more in making corporations disclose their
misdeeds than in giving them this shield of privilege.” [33]
The extent of the privilege set out in s 203 is modified by s 204 of the CPA, which is
designed to encourage accomplices to testify as state witnesses against their co-offenders by
providing an avenue for indemnity. [34] This section provides that whenever the prosecutor
informs the court that a witness will be required to answer self-incriminating questions with
regard to the offence specified, the court, provided the witness is competent, shall inform
the witness that she is obliged to give evidence and answer incriminating questions (in
respect of the offence charged). [35] If a witness answers the questions put to her frankly and
honestly, she will be discharged from prosecution. [36] If such a discharge is given at
preparatory examination proceedings and a witness does not testify frankly and honestly at
the ensuing trial, the discharge shall be of no legal force or effect. [37] If discharge is refused,
the witness still enjoys a measure of protection in that her evidence will be inadmissible at
any trial in respect of
Page 138
the specified offence. However, the evidence will not be excluded where the charge is one of
perjury or statutory perjury. [38]
The privilege against self-incrimination may also be claimed when an inquiry is held in
terms of s 205 of the CPA. [39] However, the privilege falls away if the s 204 procedures are
invoked during such an inquiry. [40]
In S v Maunye and Others [41] the court noted obiter that s 204 appeared to be a
justifiable limitation on the constitutional right not to give self-incriminating evidence.
Stegmann J noted that “[t]his is no doubt because it affords a person who is under suspicion
of having committed an offence a very fair and reasonable bargain”. [42]
A claim of privilege will succeed only if the court is satisfied that the witness’s apprehension
of being exposed to a criminal charge, if she is compelled to answer, is based on reasonable
grounds. [43] Clearly if a witness has been indemnified from prosecution she will not be able
to claim the privilege.
The privilege extends beyond answers that would directly incriminate the witness to those
“which tend to disclose facts which are innocent in themselves but might form ‘links in the
chain of proof’ in a possible charge against the witness”. [44]
10 2 3 The accused
At common law it is well recognised that a person should not be compelled to incriminate
him- or herself. [45] In addition the Judges’ Rules [46] also require the police to caution
persons suspected of committing a crime before questioning them. Unfortunately, these
rules have been accorded little weight by the judges themselves, who have frequently
dismissed them on the ground that they are merely administrative directives. [47] In the past
the courts have held that a failure to advise an arrested person of
Page 139
her right to remain silent and her right to legal representation does not necessarily render
any incriminating statements inadmissible, the absence of a warning merely being a factor to
be taken into consideration in deciding whether the state has discharged its onus of proving
that the requirements of admissibility have been met. [48] For example, in Rex v Barlin [49]
the accused made an incriminating statement to a police officer. At the time this statement
was made the police officer suspected but had not yet arrested the accused and did not
caution him. The court held that as the accused’s statement had been made freely and
voluntarily, the fact that the police officer had not warned the accused of his right to remain
silent did not render the statement inadmissible. A change has been brought about by the
new constitutional dispensation. Section 35(5) of the Constitution which is discussed more
fully in chapter 12 below provides: “Evidence obtained in a manner that violates any right in
the Bill of Rights must be excluded if the admission of that evidence would render the trial
unfair or otherwise be detrimental to the administration of justice.” It follows that if evidence
is obtained in breach of the privilege against self-incrimination, it will generally be
inadmissible. [50]
In the United States the Fifth Amendment, which gives constitutional protection to the
privilege against self-incrimination, was interpreted in Miranda v Arizona [51] as extending to
incriminating statements made by persons in police custody. [52] In the Miranda judgment
the court, referring with approval to an earlier case Escobedo v Illinois, [53] found that the
right to counsel was essential in order to protect the right against self-incrimination. The
holding of the court in Miranda can be summarised as follows: statements obtained during
custodial interrogation of the accused may not be admitted into evidence unless the
prosecution can show that appropriate procedural safeguards were used to secure the
privilege against self-incrimination. A similar approach has been taken by the South African
courts. The appropriate procedural safeguards are that a person must be warned that she
has the right to remain silent, and of the consequences of not remaining silent, and that she
has a right to
Page 140
consult with a legal practitioner. [54] The fact that an accused may be aware of her rights
without having been warned, should not affect the inadmissibility of the evidence. [55]
There are a number of provisions in s 35 of the Constitution which are directed at securing
the privilege against self-incrimination prior to trial proceedings. [56] However, the distinction
made between arrested, detained and accused persons in s 35 gives rise to some anomalies
regarding the application of these provisions. [57] (It would, though, seem that these
anomalies are more apparent than real.)
In terms of s 35 a detained person [58] has the right to consult with a legal practitioner of
her choice, to be informed of this right promptly and, where substantial injustice would
otherwise result, to be provided with the service of a legal practitioner at state expense. [59]
However, it is not specified that detained persons must be informed of the right to remain
silent. On the other hand, arrested persons must be advised of the right to remain silent as
well as the consequences of not remaining silent. [60] It is not specified that arrested persons
must be advised of their right to consult with a legal practitioner. However, little significance
can be attached to this omission. Although a detained person need not necessarily have
been arrested, an arrested person will always also be a detained person: “the effect of an
arrest is that the person arrested is in lawful custody and must be detained until lawfully
discharged”. [61] Both logic and policy dictate that s 35 confers the right to consult with a
legal representative and the right to be advised of this right, on both accused and detained
persons. This is reflected in s 73 of the CPA which provides that an arrested person must “be
informed of his or her right to be represented at his or her own expense by a legal adviser of
his or her own choice and if he or she cannot afford legal representation, that he or she may
apply for legal aid and of the institutions which he or she may approach for legal
assistance”. [62]
The ambit of the duty to advise a person of the right to consult with a legal practitioner is
also dependent on the meaning of the word “detention”.
Page 141
“Detention” obviously includes the physical incarceration of a person in prison. A person in
lawful police custody will also be detained. [63] However, “detention” also has a broader
meaning, and in this respect it is useful to draw on Canadian jurisprudence. Section 10 of
the Canadian Charter provides that everyone has the right on arrest or detention to retain
and instruct counsel without delay and to be informed of that right. The Supreme Court of
Canada has held [64] that detention occurs not only when persons are deprived of their liberty
by physical constraint, but also “when a police officer or other agent of the state assumes
control over the movement of a person by demand or direction which may have significant
legal consequence and which prevents or impedes access to counsel”. [65] The Canadian
Supreme Court has held that “the necessary element of compulsion or coercion to constitute
a detention may arise from criminal liability for refusal to comply with a demand or direction,
or from a reasonable belief that one does not have a choice as to whether or not to
comply”. [66] In applying the Canadian interpretation of detention it would appear that
suspects who are questioned by the police in their homes will not be “detained” and will not
be entitled to be advised of their right to legal representation, as the police have no power to
compel suspects to answer questions. [67] However, if a suspect reasonably believes that she
must answer the question then she will be “detained” and must be advised of her right to
legal representation. Presumably, if we imported this interpretation of detention into South
African jurisprudence, the test for reasonable belief would be subjective, as is the test for
undue influence. [68] Consequently, a person who is questioned by the police, and who does
not know that he or she is not obliged to answer the questions, and feels compelled to
speak, will be detained for the purposes of the Constitution.
The distinction made between arrested, detained and accused persons in s 35 also gives
rise to some uncertainty regarding the application of the privilege against self-incrimination.
The privilege against self-incrimination is only specified in relation to the accused’s right to a
fair trial. [69] However, this distinction in wording has little significance as there is sufficient
authority of the view that the right to a fair trial does not begin in the court but at the
inception of the criminal process. [70] Froneman J in S v Melani and Others [71] observed:
Page 142
“The purpose of the right to counsel and its corollary to be informed of that right . . . is thus to protect
the right to remain silent, the right not to incriminate oneself and the right to be presumed innocence
until proven guilty. Section 25(2) and 25(3) of the Interim Constitution make it abundantly clear that
this protection exists from the inception of the criminal process that is on arrest, until its culmination
up to and during the trial itself. This protection has nothing to do with the need to ensure the
reliability of evidence adduced at the trial. It has everything to do with the need to ensure that an
accused is treated fairly in the entire criminal process: in the ‘gatehouse’ of the criminal justice
system (that is the interrogation process), as well as in its ‘mansions’ (the trial court). . .”
And Claassen J in S v Mathebula and Another [72] noted:
“The rationale for the requirement that an accused should be entitled to legal representation at every
important pre-trial stage is as follows: an accused is presumed innocent until proven guilty. There is
no duty on the accused to assist the state in its task. An accused has the right to remain silent and
need not contribute in any way to the process of supplying or obtaining evidence which tends to prove
his guilt in the form of self-incriminatory oral or written communications. Pre-trial, he is entitled to
increased protection against any such self-incrimination induced by force (Rex v Camane and Others
1925 AD 570; S v Khumalo 1992 (2) SACR 411 (N); Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others 1996 (1) SA 984 (CC)) . . . Whenever the state wishes to embark
upon any pre-trial procedure wherein it seeks the co-operation of the accused and which would result
in an erosion of or encroachment into the accused’s constitutional rights, such procedure will have to
be preceded by a repetition of a due warning regarding all of his relevant s 25 constitutional rights. (It
may be noted in passing that even in cases of pre-trial procedures where an accused’s co-operation is
required for purposes of obtaining ‘real’ as opposed to self-incriminating oral or testimonial evidence,
the accused has in the past had the right to legal representation during such procedure . . . see
United States v Wade 388 US 218 (1967); S v Huma and Another (2) 1995 (2) SACR 411 (W); S v
Mhlakaza 1996 (6) BCLR 814 (C)). The presence of an accused’s legal representative at such pre-trial
procedures constitutes a ‘checking mechanism’. An accused may not know under what circumstances
the oral or testimonial evidence at a pre-trial procedure would constitute admissions or confessions.
He is therefore entitled to legal assistance in order to be advised as to what the consequences might
be of his responses to the State’s request for his co-operation and assistance in any pre-trial
investigatory procedures. It will also be the task of the legal representative to check and see that all
other constitutional rights are safeguarded during such procedures.”
There are conflicting views as to whether it is necessary to advise a person of her s 35 rights
at every pre-trial stage. [73] The most pragmatic approach is that in
Page 143
each case the crucial inquiry should be whether the accused, after having been apprised of
her rights on arrest, was in a position to decide voluntarily how to exercise her rights at each
subsequent pre-trial procedure.
Must detained persons also be warned of their right to remain silent? It is submitted that
if a police officer questions a detained person who is not legally represented, she runs the
risk of eliciting inadmissible evidence if the detainee is also not advised of the right to
remain silent. As argued above, the right to a fair trial demands that the privilege against
self-incrimination be upheld from the inception of the criminal process. Whilst the presence
of a legal representative might be sufficient to protect this privilege, there can be little doubt
that in the absence of a legal representative, the warning of the right to remain silent would
be a minimum for ensuring the protection of the privilege against self-incrimination. [74]
In S v Sebejan and Others [75] the court considered the appropriate warning to be given to
a suspect [76] who was not an arrested or detained person and consequently, ostensibly, fell
outside the protection afforded by s 25 of the Interim Constitution. [77] Satchwell J, endorsing
the approach that the right to a fair trial operates at the investigative stage of the criminal
process, [78] held that a suspect was entitled to the same warning as an arrested person. [79]
However, the High Courts have diverged on this point. In S v Langa, the court held that s 25
Page 144
of the Interim Constitution [80] did not apply to suspects. [81] Pickering J in S v Mthethwa
similarly held that the rights of arrested, detained and accused persons set out in s 35(1),
(2) and (3) of the 1996 Constitution were irrelevant in respect of a suspect. [82] However, the
Mthethwa court found that as the statement had been obtained in breach of the Judges’
Rules [83] and that the admission of the evidence would render the trial unfair and bring the
administration of justice into disrepute, the evidence fell to be excluded in terms of the
court’s common-law discretion. [84]
Clearly the privilege against self-incrimination requires that a detained and accused
person be afforded a substantive right to legal representation. [85] The common law did not
recognise a right to legal representation for those unable to afford a lawyer. [86] The
Constitution only affords detained and accused persons [87] the right to be provided with
counsel at state expense “if substantial injustice would otherwise result”. [88] It can be
forcefully argued that legal representation is necessary to uphold the privilege against self-
incrimination and that the protection of this privilege is necessary to ensure a fair trial; [89]
therefore a person’s access to legal representation should not be dependent on her income.
This is also so if full recognition were to be given to the constitutional guarantee of equality.
Principle demands that if the state finds itself unable to provide legal representation to an
arrested, detained or accused person, the police must refrain from interrogating persons
who desire legal representation but who are not in a position to obtain it. [90] However, there
can be little doubt that the reason for imposing a restriction on the substantive right to legal
representation is the concern that the South African state simply does not have the
resources to provide legal representation for every indigent accused. As an absolute right,
the substantive right to legal representation may paralyse an already overburdened criminal
justice system. The solution is to be found in
Page 145
the limitations clause, [91] which must be applied before the constitutional exclusionary rule
comes into play. [92] Consequently, a person arguing for the exclusion of evidence on the
basis that she was not advised of her right to legal representation, would not succeed if the
prosecution persuaded the court that a rule condoning the violation was saved by the
limitations clause. However, as a right may be “limited only in terms of law of general
application” [93] it is difficult to think of an example other than waiver where the state could
successfully invoke the limitation clause in relation to a failure to advise a person of her right
to legal representation or her right to remain silent. [94]
Clearly the position is very different in regard to the substantive right to legal
representation that is internally qualified. The purpose of the qualification of the substantive
right to legal representation is not to restrict any fundamental right but to ensure that the
criminal justice system does not cease to function due to the state’s fiscal inability to supply
all accused with legal representation. Here factors [95] such as the complexity of the case,
severity of the potential sentence, [96] and the ignorance of the accused [97] will clearly come
into play in weighing the nature and extent of the limitation against the purpose that it seeks
to serve. Depending on the circumstances of the case a court might find that the failure to
provide legal representation at state expense constitutes a justifiable limitation. As a result
the exclusionary provision contained in s 35(5) would not come into consideration.
The right to substantive representation clearly includes the right to competent legal
representation. [98] Whether the incompetence of a legal representative renders a trial unfair
is a factual question [99] and the court should be highly deferential in assessing the strategic
choices made by counsel. [100]
Sections 36A, 36B, 36C and 37 of the CPA [101] authorise police officials to take the
fingerprints and body prints of any person who is suspected of committing a crime or who
has been arrested, charged or convicted. The police are also
Page 146
authorised to take such steps as are necessary to ascertain whether the body of any
arrested person has any mark, characteristic or distinguishing feature or shows any
condition or appearance. [102] Distinguishing features have been held to include voice and
handwriting samples. [103] Although police officials are prohibited from taking blood samples,
any medical officer of any prison or a district surgeon may do this. And if requested to by
the police, a registered medical practitioner or nurse can take steps, including taking a blood
sample, to ascertain whether the body of an arrested person has any mark, characteristic or
distinguishing feature or shows any condition or appearance. [104] Obviously evidence
obtained as a consequence of any of the above steps may incriminate the accused. The
question then arises whether s 37 is in conflict with s 35(1)(c) of the Constitution, which
provides that no one shall be compelled to make an admission which can be used in
evidence against him or her. Prior to legislative authorisation [105] there was some
uncertainty as to whether the ascertainment of bodily features, without the consent of an
accused, infringed the common-law privilege against self-incrimination. In Goorpurshad v
R [106] the court set aside a conviction where the accused during the course of a trial had
been compelled by the presiding officer to have his fingerprints taken. The Transvaal
Provincial Division adopted a similar approach in R v Maleke, [107] in which the court refused
to admit evidence of a footprint compelled by force. Krause J expressed his objection to the
admission of such evidence as follows: [108] “[I]t compels an accused person to convict
himself out of his own mouth; that it might open the door to oppression and persecution of
the worst kind; that it is a negation of the liberty of the subject and offends against our
sense of natural justice and fair play . . .”
However, the judicial debate as to whether such evidence should be excluded because it
infringed the principle against self-incrimination was brought to a close by the Appellate
Division in Ex Parte Minister of Justice: In Re Rex v Matemba, [109] in which the court
considered the admissibility of evidence of a palm-print taken by compulsion. The court
found that the privilege against self-incrimination applied only to testimonial utterances.
Watermeyer JA held: [110]
“Now, where a palm-print is being taken from an accused person, he is, as pointed out by Innes CJ in
(Rex v Camane and Others 1925 AD 570 at 575), entirely passive. He is not
Page 147
being compelled to give evidence or to confess, any more than he is being compelled to give evidence
or confess when his photograph is being taken or when he is put upon an identification parade or
when is made to show a scar in court. In my judgment, therefore, neither the maxim nemo tenetur se
ipsum prodere nor the confession rule make inadmissible palm-prints compulsorily taken.”
This reasoning was also invoked to justify the admission of evidence of a thing or place
pointed out by the accused, even in circumstances where the pointing out was coerced. In S
v Sheehama [111] the Appellate Division found this reasoning to be untenable and held that “a
pointing out is essentially a communication by conduct and, as such, is a statement by the
person pointing out”. Consequently, a pointing out, like any other extra-judicial admission,
has to be made voluntarily before it will be admitted into evidence. [112] However, although a
pointing out, like the ascertainment of bodily features, usually results in the production of
“real” evidence, it can be distinguished from the latter in that it involves some degree of
active or communicative conduct. [113]
In S v Huma and Another (2), Claassen J held that the taking of fingerprints did not
constitute testimonial evidence by the accused and was therefore not in conflict with the
privilege against self-incrimination. [114] The court relied heavily on the reasoning of the US
Supreme Court in Schmerber v California. [115] In Schmerber, a majority of the Supreme
Court held that the Fifth Amendment privilege against self-incrimination relates only to the
testimonial or communicative acts of the accused and does not apply to non-communicative
acts such as submission to a blood test. [116]
This approach was adopted by the Supreme Court of Appeal in Levack and Others v
Regional Magistrate, Wynberg, and Another. [117] In Levack, the Supreme Court of Appeal
held that compelling an accused to submit a voice sample
Page 148
infringed neither the right to remain silent nor the right not to give self-incriminating
evidence. [118] In S v Orrie and Another, the High Court found that the involuntary taking of a
blood sample for the purposes of DNA profiling infringed both the right to privacy and the
right to bodily security and integrity but that the infringement was justifiable. [119] Desai J, in
Minister of Safety and Security and Another v Gaqa, [120] confirmed an order compelling the
respondent to submit himself to an operation for the removal of a bullet from his leg. In so
doing, the High Court rejected the respondent’s argument that to do so would infringe his
constitutional right not to incriminate himself. The court held that ss 27 and 37 of the CPA
sanctioned the violence necessary to remove the bullet, and that although these procedures
constituted a serious infringement of dignity and bodily integrity, they met the requirements
of the limitation clause. A similar application was made to the High Court in Minister of
Safety and Security and Another v Xaba. [121] The respondents arguments were, it appears,
limited to the right to be free from all forms of violence (s 12(1)(c)) and the right to have
security and control over ones body (s 12(2)(b)). Southwood AJ held that the conclusion of
the court in Gaqa was clearly wrong. In the absence of a law of general application
authorising the specific constitutional infringements, Southwood AJ reasoned, the
requirements of the limitation clause could not be met.
Section 225(2) of the CPA reads:
“[S]uch evidence shall not be inadmissible by reason only thereof that the finger-print or body print in
question was not taken or that the mark, characteristic, feature, condition or appearance in question
was not ascertained in accordance with the provisions of sections 36A, 36B, 36C, 36D, 36E or 37, or
that it was taken or ascertained against the wish or the will of the accused.” [122]
The words “by reason only thereof” make it clear that evidence can be excluded on grounds
other than non-compliance with s 37; at any rate, s 35(5) of the Constitution will apply in
cases where s 37 evidence is obtained in breach of the Bill of Rights (see § 12 9 6 below).
Can a clear distinction be made between the ascertainment of bodily features and
testimonial or communicative statements? Black and Douglas JJ, dissenting in
Schmerber, [123] thought not:
“[T]he compulsory extraction of a petitioner’s blood for analysis so that the person who analysed it
could give evidence to convict him had both a ‘testimonial’ and a ‘communicative nature’. The sole
purpose of this project which proved to be successful was to obtain ‘testimony’ from some person to
prove that the petitioner had alcohol in his blood at the time he was arrested. And the purpose of the
project was certainly
Page 149
‘communicative’ in that the analysis of the blood was to supply information to enable a witness to
communicate to the court and jury that the petitioner was more or less drunk.” [124]
In his dissenting judgment Black J criticised the majority’s heavy reliance on the words
“testimonial” and “communicative”, which he found to have little clarity, and the court’s
narrow and technical interpretation of the Bill of Rights safeguard against compulsory self-
incrimination.
It is submitted that even if in the future the South African courts take the more broad and
liberal construction advocated by Black J, the compulsory ascertainment of bodily features
authorised by s 37 of the CPA may still survive a constitutional challenge on the following
basis: although the ascertainment of bodily features against the will of the accused limits the
privilege against self-incrimination, such limitation may well meet the requirements of s 36
of the Constitution. [125]
Another question that arises in relation to the ascertainment of bodily features is whether
an accused must be advised of his or her right to legal representation prior to an
identification parade being held (see also § 12 9 8 below). At present it appears to be an
open question. Leveson J, in S v Ngwenya and Others, held that the right to a fair trial did
not require the accused to be advised of his right to legal representation at every stage of
the pre-trial process and that the passive role played by the accused at the identification
parade did not involve any process of self-incrimination. [126] In S v Mokoena en Ander, the
court held that the failure to advise the accused of his right to legal representation at an
identity parade merely affected the weight of the evidence and not its admissibility. [127]
However, in S v Mhlakaza en Andere, the court found the failure to advise the accused of
their right to representation coupled with the accused’s express objection to the absence of
any legal representation, rendered the evidence of the identification parade inadmissible;
this approach has received little support in subsequent cases. [128]
Where an accused gives evidence in a bail application he retains the privilege against self-
incrimination. [129] This means that even where the accused elects to
Page 150
testify he can decline to answer incriminating questions. However, if the accused chooses
not to testify or refuses to answer incriminating questions, he runs the risk of bail being
refused. One of the issues before the Constitutional Court in S v Dlamini; S v Dladla and
Others; S v Joubert; S v Schietekat [130] was the constitutionality of s 60(11B)(c) of the CPA.
Section 60(11B)(c) provides:
“The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the
record of the trial of the accused following upon such bail proceedings: Provided that if the accused
elects to testify during the course of the bail proceedings the court must inform him or her of the fact
that anything he or she says, may be used against him or her at his or her trial and such evidence
becomes admissible in any subsequent proceedings.”
As noted by the Constitutional Court [131] this section is not inconsistent with the common
law in terms of which admissible evidence given by the accused at a bail application may be
admitted against the accused at the subsequent trial. This is reinforced by s 235 of the CPA,
which provides for proof of the record by the mere production of a certified copy thereof at
trial. [132] The common law also permits an accused to be cross-examined at trial on previous
inconsistent statements including those made during bail proceedings.
The constitutional challenge to s 60(11B)(c) was based on the alleged infringement of
those rights directed at upholding the privilege against self-incrimination. Counsel for
Schietekat focused on the effects of s 60(11B)(c) when applied in conjunction with s 60(11)
(a) and s 60(14). [133] The argument can be summarised as follows: the effect of s 60(11) is
that the accused has no choice but to adduce evidence if he wants to be released on bail.
Because s 60(14) effectively denies the accused access to information in the police docket,
the accused will in many instances have to testify himself in order to satisfy the
requirements of s 60(11). The combined effect of these provisions is to burden the accused
with a compulsion to testify. Counsel for Dlamini and Dladla advanced a broader argument
relying on the argument in S v Botha and Others (2) [134] in which the court held that “[i]n
the interests of a fair trial, the accused should not have to choose” between the right to bail
and the privilege
Page 151
against self-incrimination. Both arguments were dismissed. The court rejected the remedy
advanced in Botha, namely to treat evidence given at bail proceedings in the same way as
evidence given at a trial within a trial. It held that s 60(11B)(c) did not compel the accused
to do anything. At most it required the accused to make a difficult choice. Kriegler J held
that the fact that an accused may be forced to make a difficult choice was a common feature
in democratic societies and an important component of freedom, and that it was “an
inevitable consequence of the high degree of autonomy afforded the prosecution and the
defence in our largely adversary system of criminal justice”. [135] The Constitutional Court
concluded that there was no inevitable conflict between s 60(11B)(c) and any provision of
the Constitution as in each instance evidence contained in the bail record fell to be excluded
if its admission would render the trial unfair. [136]
The admissibility of the bail record was one of the issues that came before the court in S v
Basson, [137] in which the Constitutional Court dealt with an appeal against the acquittal of Dr
Wouter Basson. At the bail proceedings in question the state had made use of the record of
prior proceedings conducted under the Investigation of Serious Economic Offences Act 117
of 1991 (ISEO). In terms of the Act a witness who is examined under s 5(6) may not claim
the privilege against self-incrimination. [138] However, the section also provides that the
record of the examination may not be used in subsequent criminal proceedings against the
witness. The Constitutional Court noted that Dr Basson had been questioned for 39 days
under the ISEO, without legal representation, by Adv Fouche who also represented the state
in the bail proceedings.
The court held that although s 60(11B)(c) stipulated that the record of the bail
proceedings should form part of the trial record, a court still retained a discretion to exclude
the bail record if its admission would render the trial unfair. Given the clear and repeated
view of the Constitutional Court that a trial court “is best placed to determine what will
constitute a fair trial or not” [139] the Constitutional Court then turned its collective mind as to
what approach it should adopt in evaluating the exercise of such a discretion by a trial court.
It held: [140]
“. . .[T]he test on appeal is not whether the trial Court was correct in the exercise of its discretion to
exclude evidence on the grounds that it may render the trial unfair. The question is whether, as this
court formulated it in National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others, the lower Court has not exercised its discretion judicially, or been influenced by
wrong principles of law or a misdirection
Page 152
on the facts, or reached a decision which could not reasonably have been made by a court properly
directing itself to all the relevant facts and legal principles.”
Applying this test the court concluded that there were no grounds to interfere with the
exercise of the trial court’s discretion. [141]
It is important to bear in mind that s 35(3) rights can not be claimed at the bail hearing.
The application of s 35(3) is not only dependent on the claimant of the relevant rights being
an accused; the claimant must also be an accused in criminal trial proceedings.
Consequently, an accused in bail proceedings is entitled to claim the rights of an arrested
and detained person but not fair trial rights. [142] In S v Dlamini, S v Dladla, S v Joubert, S v
Schietekat, Kriegler J drew the following distinction between bail and trial proceedings:
“[T]here is a fundamental difference between the objective of bail proceedings and that of the trial. In
a bail application the enquiry is not really concerned with the question of guilt. That is the task of the
trial court. The court hearing the bail application is concerned with the question of possible guilt only
to the extent that it may bear on where the interests of justice lie in regard to bail. The focus at the
bail stage is to decide whether the interests of justice permit the release of the accused pending trial,
and that entails in the main protecting the investigation and prosecution of the case against
hindrance.” [143]

Section 35(3)(j) of the Constitution provides that the accused has the right “not to be
compelled to give self-incriminating evidence”. This is reinforced by s 35(3)(f) and (g), which
provides for the right to be informed promptly of the right to be legally represented at trial
and the right to have a legal practitioner assigned at state expense if substantial justice
would otherwise result. In addition s 35(3)(h) provides that the right to a fair trial includes
the right to be presumed innocent, to remain silent and not to testify during proceedings.
The constitutional protection of the right to remain silent reinforces the notion that a
person should not be penalised for exercising her right to remain silent at trial.
Consequently, it can be argued that a court should not draw an adverse inference from an
accused’s decision not to testify at trial. The constitutional right not to testify is dealt with in
§ 30 9 below. [144]
The failure of a presiding officer to advise an unrepresented accused of the rights to legal
representation and state assistance will lead to the infringement of the right to a fair trial
and the exclusion of evidence. [145] For example, in
Page 153
S v Aimes and Another [146] the court held that the magistrate’s failure to advise an
unrepresented accused of his rights to remain silent, not to testify against himself and not
answer incriminating questions meant that the subsequent evidence of the accused was
obtained in violation of his constitutional right to remain silent as well as his common-law
and statutory rights against self-incrimination. [147] Consequently, the admission of the
accused’s bail evidence would render the trial unfair and could not be admitted against the
accused. [148] The failure to advise an accused of his rights may also result in the judgment
being set aside in terms of s 52(3) of the Criminal Law Amendment Act 105 of 1997 where
the High Court is of the view that the proceedings are not in accordance with justice. [149] In
summary contempt proceedings the failure to give an accused an opportunity to acquire
legal representation will not automatically be deemed unconstitutional; it will depend on the
circumstances of the case and the ability of the accused to defend himself. [150]
As far as plea proceedings are concerned, it is arguable that existing legislative provisions
encroach on the right to remain silent during plea proceedings. In terms of s 112 of the CPA
the accused may be questioned by the presiding officer after entering a plea of guilty. This
can be justified in numerous ways. The accused, by entering a plea of guilty, is clearly
abdicating her right to be presumed innocent; there is no longer a contest between the state
and the accused. Furthermore, questioning in terms of s 112 is aimed at
Page 154
protecting the accused; [151] the accused cannot compromise herself further as she has
already admitted guilt. A presiding officer may, through questioning the accused, discover
that she does have a valid defence. For example, it may become apparent on a charge of
culpable homicide that the accused acted in self-defence. In Director of Public Prosecutions,
Natal v Magidela and Another [152] the Supreme Court of Appeal, applying the interim
Constitution, held that the failure to advise an accused of the right to remain silent, after he
has entered a plea of guilty and before questioning him in terms of s 112(1)(b) of the CPA,
did not necessarily infringe the accused’s right to a fair trial. Although the Interim
Constitution placed a general duty on judicial officers to advise the accused of his right to
remain silent during plea proceedings, in each case it had to be established whether the
admission of the evidence would violate the accused’s right to a fair trial. [153] For example,
in Director of Public Prosecutions, Transvaal v Viljoen [154] the court held that it was
necessary to advise an accused of his right to remain silent in order to enable him to make
an informed decision whether to waive the right. Failure to do so may render the trial unfair.
However, the absence of a warning would not render the trial unfair if the accused was in
any event aware of his right to remain silent. [155]
Equally contentious is questioning in terms of s 115 after the accused has entered a plea
of not guilty. In terms of s 115(1), where an accused pleads not guilty, the magistrate may
ask her whether she wishes to make a statement indicating the basis of her defence.
Section 115(2)(a) provides that where the accused does not make a statement indicating
the basis of her defence, or does so and it is not clear from the statement to what extent
she denies or admits the issues raised by the plea, the court may question the accused in
order to establish which allegations in the charge are in dispute.
In terms of s 115(2)(b) the court may question the accused in order to clarify any matter
with regard to the statement indicating the basis of the accused’s defence, or her replies to
questions directed at ascertaining which allegations are in dispute. It is clear that an accused
is not obliged to answer any questions put to her under s 115, and she must be advised of
this right. [156] An unrepresented accused may find it extremely difficult to exercise this right
in
Page 155
an alien and intimidating court environment. [157] Consequently, it is possible that s 115 may
yet be challenged as effectively contravening the constitutionally protected right to remain
silent. [158]
Section 20 of the Criminal Law Second Amendment Act 126 of 1992 provides a more
clear-cut example of legislation that falls foul of the constitutional right to remain silent. [159]
Section 20(4)(b)(i) provides that where an accused stands trial on a special offence, [160]
pleads not guilty and declines to indicate what the basis of his defence is, “the court may at
will, in respect of his credibility or conduct, draw an unfavourable inference regarding such
failure if it is of the opinion that such an inference is justified in the light of all the evidence
that was adduced at the trial”. Chapter V of Act 126 of 1992 is currently not in
operation. [161]
The rights to remain silent, not to testify during proceedings and not to be compelled to
give self-incriminating evidence also fall to be considered when dealing with discharge at the
close of the state case. This is discussed at § 31 5 below. [162]

There are several statutory enactments that provide for interrogation procedures outside of
the criminal process. [163] Many of these authorise designated officials to compel persons to
appear before them and to answer questions, whether incriminating or not. Section 35(1)
and 35(3) of the Constitution limits the right to remain silent and not to answer incriminating
questions, to arrested and accused persons during plea proceedings and trial. [164] However,
if an examinee is subsequently charged, and the prosecution seeks to use evidence obtained
at such an interrogation in a subsequent trial, then the protections afforded by s 35(3) will
apply. Even where an examinee has been arrested and charged prior to an examination
Page 156
which occurs independently of the criminal trial, they can only claim s 35(3) rights if
evidence from the examination is sought to be introduced at the trial. [165] However, where
the purpose of the examination relates specifically to the offence charged, the accused may
not be summoned for interrogation. [166] If the evidence elicited at an examination is found
to have been obtained in contravention of the privilege against self-incrimination, then it
may be excluded in terms of s 35(5) of the Constitution at a subsequent trial. [167] Thus, the
right to a fair trial is protected by use immunity in respect of evidence arising out of the
“non-trial” interrogation. However, the subsequent use of derivative evidence is less clear
cut and its admissibility falls to be determined in terms of a competent court’s s 35(5)
discretion or specific statutory offences regulating the admissibility of such derivative
evidence. [168] This discretion does not mean that an examinee is deprived of the right to
procedural fairness prior to becoming an accused. [169] An examinee will still be subject to
the residual procedural safeguards to be found in the s 12(1) right to freedom and security
of person. [170] In addition, a person detained for non-trial purposes — say, for deportation —
may nevertheless rely on the s 35(2) rights of detainees. [171]
Page 157
The Constitutional Court in Nel v Le Roux [172] considered the extent to which the right to a
fair trial applies only to accused persons when it engaged the constitutionality of s 205 of the
CPA. [173] In terms of this section a judge or magistrate, upon receiving a request from a
Director of Public Prosecutions (DPP) or public prosecutor, may request a person who is
likely to give material or relevant information as to any alleged offence, to appear before
them for examination by the DPP or public prosecutor. Such an examination may be
conducted in private. [174] The applicants challenged s 205 of the CPA in terms of the
following provisions of the Interim Constitution: s 8(1) (equality); s 11(1) (freedom and
security of person); s 11(2) (cruel, inhuman or degrading treatment or punishment); s 13
(privacy); s 15(1) (freedom of speech and expression); s 23 (access to information); s 24
(administrative justice); s 25(3) (fair trial); s 25(3)(a) (public trial); s 25(3)(c) (the right to
be presumed innocent and to remain silent) and s 25(3)(d) (the privilege against self-
incrimination).
The court in Nel found that s 205 of the CPA was not inconsistent with any of the above
provisions. In relation to the privilege against self-incrimination the court held that “[i]n view
of the transactional indemnity and use of immunity provisions in s 204(2) and (4)
respectively of the Criminal Procedure Act, the applicant could not validly object to
answering self-incrimination questions”. [175] As to the general strength of the applicant’s Bill
of Rights challenge, the court wrote:
“If the answer to any question put to an examinee at an examination under s 205 of the Criminal
Procedure Act would infringe or threaten to infringe any of the examinee’s Chapter 3 rights, this would
constitute a ‘just excuse’ for purposes of s 189(1) for refusing to answer the question unless the s 189
(1) compulsion to answer the particular question, would in the circumstances, constitute a limitation
on such right which is justified under s 33(1) of the Constitution. In determining the applicability of
s 33(1), regard must be had not only to the right asserted but also the State’s interest in securing
information necessary for the prosecution of crimes . . . There is nothing in the provisions of s 205
read with s 189 of the Criminal Procedure Act which compels or requires the examinee to answer a
question (or for that matter to produce a document) which would unjustifiably infringe or threaten to
infringe any of the examinee’s Chapter 3 rights.” [176]
The court held that the s 25(3) right to a fair trial applied only to accused persons and, as a
reluctant s 205 examinee could not be said to be an “accused”, it was not necessary to
consider s 25(3) in determining the constitutionality of s 205. [177]
The admission of statements made under statutory compulsion is further discussed in
§ 17 4 4 2 below.
Page 158

Section 14 of the CPEA provides:
“A witness may not refuse to answer a question relevant to the issue, the answering of which has no
tendency to incriminate himself, or to expose him to penalty or forfeiture of any nature whatsoever,
by reason only or on the sole ground that the answering of such question may establish or tend to
establish that he owes a debt or is otherwise subject to a civil suit.”
Section 14 must be read together with s 42, which provides:
“The law of evidence including the law relating to the competence, compellability and examination and
cross-examination of witnesses which was in force in respect of civil proceedings on the thirtieth day
of May 1961, shall apply in any case not provided for by this Act or any other law.”
The effect of these two provisions is to give a wider ambit to the privilege against self-
incrimination in civil cases than in criminal cases. In criminal cases the privilege applies only
to answers that would expose the witness to a criminal charge, whilst in civil cases it also
applies where it would expose the witness to penalties or forfeiture.

In civil and criminal proceedings communications made between a lawyer and her client may
not be disclosed without the client’s consent. [178] Heydon sets out the rationale for the rule
as follows:
“The privilege is usually said to exist for the following reasons. Human affairs and the legal rules
governing them are complex. Men are unequal in wealth, power, intelligence and capacity to handle
their problems. To remove this inequality and to permit disputes to be resolved in accordance with the
strength of the parties’ cases, lawyers are necessary, and privilege is required to encourage resort to
them, and to ensure that all the relevant facts will be put before them, not merely those the client
thinks favour him. If lawyers are only told some of the facts, clients will be advised that their cases
are better than they actually are, and will litigate instead of compromising and settling. Lawyer-client
relations would be full of ‘reserve and dissimulation, uneasiness, and suspicion and fear’ without the
privilege; the confidant might at any time have to betray confidences.” [179]
Page 159
In S v Safatsa and Others [180] Botha JA expressed his agreement with the views of Dawson J
in Baker v Campbell: [181]
“The conflict between the principle that all relevant evidence should be disclosed and the principle that
communications between lawyer and clients should be confidential has been resolved in favour of the
confidentiality of those communications. It has been determined that in this way the public interest is
better served because the operation of the adversary system, upon which we depend for the
attainment of justice in our society, would otherwise be impaired . . . The privilege extends beyond
communications made for the purpose of litigation to all communications made for the purpose of
giving or receiving advice and this extension of the principle makes it inappropriate to regard the
doctrine as a mere rule of evidence. It is a doctrine which is based upon the view that confidentiality
is necessary for the proper functioning of the legal system and not merely the proper conduct of
particular litigation . . .”
In Safatsa the Appellate Division for the first time recognised that legal professional privilege
is a fundamental right derived from the requirements of procedural justice, and not merely
an evidentiary rule. [182] However, a breach of the privilege will not automatically render a
trial unfair. The applicants in Bennett and Others v Minister of Safety and Security and
Others [183] sought the return of documents seized in a number of extensive search and
seizure operations conducted by the police. The documents included some 18 000
documents falling under the umbrella of attorney-client privilege. The full remedy sought by
the applicants was: the setting aside of the search warrants, the return of all documents and
any copies that may have been made (including extracts) as well as an order prohibiting the
use of any of the documentation seized in future proceedings.
Bertelsmann J, reiterating that attorney-client privilege is a substantive rule of law which
demands compliance in order to fulfil the requirements of a fair trial, found that in the
circumstances legal professional privilege had been breached. [184] At the time of seizing the
documents the police were aware that the documents were privileged, the warrants did not
authorise the seizure of privileged documents and in any event a warrant expressly
authorising the seizure of privileged documents “would indubitably be unlawful”. [185]
However, the court, taking into account that there was “no evidence that the privileged
papers were ever read by any police officer or State official” [186] found that it could not come
to the conclusion that at this stage the fairness of the trial had been irrevocably comprised.
It was ordered that all documents should be
Page 160
returned to the applicants, that the respondents be allowed to make copies of the non-
privileged documents and that the admissibility of these copies was to be determined by the
trial court.
In an obiter dictum, Bertelsmann J noted that a stay of proceedings would only be
appropriate where the breach of legal professional privilege was intentional or “the
authorities ignored the protection the privilege affords a suspect”. [187]

Before legal professional privilege can be claimed the communication in question must have
been made to a legal adviser acting in a professional capacity, in confidence, for the purpose
of pending litigation or for the purpose of obtaining professional advice. [188] The client must
claim the privilege. And the lawyer can claim the privilege on behalf of his client once the
latter has made an informed decision.
Whether an adviser is acting in her professional capacity will be a question of fact in each
case. Although a strong inference can be drawn that this requirement has been fulfilled
where a fee has been paid, the absence of such payment does not mean that an adviser was
not acting in a professional capacity. [189] Swart J, in Van der Heever v Die Meester en
Andere, [190] held that a legal adviser must also be considered as acting in a professional
capacity for the purposes of legal professional privilege. The court approved the approach
taken by the English courts in Alfred Compton Amusement Machines Ltd v Customs and
Excise Commissioners (No 2) [191] in which Lord Denning held that no distinction could be
drawn between the salaried legal adviser and an attorney or advocate in private practice for
the purposes of legal professional privilege. The rationale for adopting such an approach was
set out in Mohamed v President of the Republic of South Africa and Others [192] by Hoffman
AJ as follows:
“To limit the scope of legal professional privilege to clients and lawyers in private practice is not
justified in law. This would considerably dislocate the established practice and would force
governments, statutory bodies and even private corporations with in-house legal advisers to
reorganise — at great expense — their modus operandi so that all advice required is received from
independent legal advisers rather than engaging salaried staff to give legal advice. There is no
warrant for doing this, provided that ‘in-house’ legal advisers remain mindful of Lord Denning’s
exhortation to be scrupulously aware of the distinction between communications made in their
capacity as legal adviser and other communications which would not be of a privileged nature.”
Page 161
The court in Mohamed concluded that in the circumstances, legal professional privilege
attached to confidential communications between the Government and its salaried legal
advisers when they could be equated to an independent adviser’s confidential advice. [193]
Whether a communication was made in confidence will always be a question of fact. [194]
Confidentiality will usually be inferred where it is proved that a legal adviser was consulted in
a professional capacity for the purpose of obtaining legal advice. [195] The inference of
confidentiality will always be rebuttable, for example, where it is clear from the nature of the
communication that it was intended to be communicated to the other party. In Giovagnoli v
Di Meo [196] the court held that an instruction to an attorney to negotiate and effect a
settlement was not privileged as it was clearly not confidential in that it was intended to be
communicated to the other party.
If a communication is made in confidence, but not for the purpose of obtaining legal advice,
it will not be privileged. For example, in A Company and Others v Commissioner, South
African Revenue Service [197] Binns-Ward J held that as “fee notes were not created for the
purpose of the giving of advice” [198] they would not ordinarily be regarded as privileged.
However, if a fee note contains more than mere references to advice sought and includes
material from which the substance of the advice can [199] be inferred, privilege may be
claimed in respect of such material.
Whether a particular communication is privileged will always be a question of fact. [200] The
Supreme Court of Appeal held that:
“The purpose of the document is not to be ascertained by reference to its author, either at the time at
which the document was prepared or at the time it is handed over to the litigant or the litigant’s legal
representative. Instead, the purpose of the document is to be determined by reference to ‘the person
or authority under whose direction, whether particular or general, it was produced or brought into
existence’. In that case it is the intention of the person who procured the document, and not the
author’s intention, that is relevant for ascertaining the document’s purpose. The author need not even
have known of possible litigation when the document was prepared.” [201]
Page 162
Communications made between a legal adviser and her client, provided they are made for
the purpose of obtaining legal advice, need not be connected to actual or pending litigation
for privilege to attach to them. [202] However, before statements taken from agents or
independent third parties will be treated as privileged, they must have been made in
connection with contemplated litigation. [203]
Legal professional privilege will not be upheld if legal advice is sought so as to further a
criminal purpose. [204]
The privilege attaches to the client and it must be claimed by the client. [205] The court will
not uphold the privilege in the absence of a claim of privilege. A legal representative is
obliged to claim privilege on behalf of her client. [206] If the client waives the privilege the
legal representative will be bound by the waiver. [207]

Where a client gives evidence in respect of facts that have not been put to the opposing
witnesses she may be asked whether she told her legal advisers about those facts, but she
may not be asked what she told them. [208]
In S v Mushimba en Andere [209] the court held that legal professional privilege extended
to interpreters, articled clerks, secretaries and other employees in a law firm. Where
communications are made between the adviser/client and a third party privilege can only be
claimed if: (i) the communication was made for the purpose of being submitted to a legal
adviser and (ii) the communication was made after litigation was contemplated. [210] In
General Accident, Fire & Life Assurance Corporation Ltd v Goldberg [211] an insured made a
claim upon a policy of fire insurance and an assessor was appointed by the insurance
company to investigate and advise whether the claimant should be paid out. The company,
in claiming privilege in respect of the assessor’s report, alleged that it was required for the
purpose of submitting it “if necessary” to the company’s attorneys. The court refused to
uphold the privilege on the basis
Page 163
that neither of the above-mentioned requirements had been fulfilled. Mason J stated the
following with reference to the requirement that litigation must be contemplated: [212]
“With reference to the first point, whether the report was made in contemplation of litigation, I do not
think that the circumstances in this case, as alleged by the affidavit on behalf of the company, show
that litigation was contemplated. It is not a question whether a man is very nervous or suspicious that
there may be litigation, and that if he is so nervous and suspicious he is to be protected in respect of
a document, whereas if he is not nervous and suspicious he is not to be protected. There must be
really some contemplated litigation, some fact to indicate that litigation is likely or probable. It must
not be a mere possibility which there is nothing to lead one to believe would be converted into reality
according to the facts of the case.”
A distinction is made between statements from agents and from independent third parties in
that an agent can be prevented from disclosing the contents of a statement whilst an
independent third party wishing to disclose what he said cannot be prevented from doing
so. [213] Where another person gains knowledge of a privileged communication, or possession
of a privileged document, its disclosure cannot be prevented. However, if such knowledge or
possession came about as a result of some unlawful act, it is possible that a court may
refuse admission of such evidence on the basis of its discretion to exclude unfairly obtained
evidence.
In the past some South African courts have held that legal professional privilege does not
prevent documents falling under this privilege from being seized by the police under a valid
search warrant. [214] However, the correctness of these past decisions has fallen to be
contested in view of the Appellate Division’s recognition in S v Safatsa and Others [215] that
legal professional privilege is a fundamental right that is essential for the proper functioning
of the legal system. In Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v
Director, Office for Serious Economic Offences, and Others [216] the Appellate Division,
accepting that legal professional privilege is a fundamental right, held that ordinarily the
privilege can be claimed to prevent seizure by warrant of a privileged document. [217]
The court has an inherent power to examine any document in respect of which privilege is
claimed. [218] However in South African Rugby Football Union and Others v President of the
Republic of South Africa and Others [219] the court held that a
Page 164
court should not inspect privileged documents as a matter of course, as such an inspection is
only called for in special circumstances, for example, “where it is necessary and desirable for
a just decision or where there is some reason to cast doubt on the claim of privilege”. [220]
Nugent JA in President of the Republic of South Africa and Others v M & G Media Ltd [221]
warned that courts should be cautious in exercising their right to “peek” because courts
“earn the trust of the public by conducting their business openly and with reasons for their
decisions” and consequently “a court should be hesitant to become a party to secrecy with
its potential to dissipate that accumulated store of trust”. [222] In order to avoid the necessity
of a judicial peek a party claiming privilege should provide sufficient contextual justification
for their claim to legal privilege. [223] It is possible for a court “to excise from an otherwise
privilege document portions which are not covered by privilege”. [224]
Whether the breach of an accused’s legal professional privilege constitutes an unjustifiable
infringement of the constitutional right to a fair trial will depend on the nature of the breach
and the circumstances in which it occurred. [225] Section 32(1) of the Constitution provides:
“Everyone has the right of access to —
(a) any information held by the state; and
(b) any information that is held by another person that is required for the exercise or protection of
any rights.”
In Jeeva and Others v Receiver of Revenue, Port Elizabeth, and Others [226] an application
was brought in terms of a similar provision in the interim Constitution [227] for an order that
the receiver of revenue give the applicant access to certain information in its possession. The
court ordered that all the requested information be disclosed except that information which
was covered by legal professional privilege. The court held that legal professional privilege
was a reasonable and justifiable limitation [228] on the applicant’s constitutional right of
access to information. [229] However, it appears that a claim of privilege in respect of a legal
adviser and a public authority may in certain circumstances be trumped by the constitutional
right to access to information. [230]
In S v Safatsa and Others [231] the court considered the following scenario: counsel for the
accused wished to cross-examine a state witness on an earlier
Page 165
statement made by that state witness to an attorney in the course of obtaining professional
legal advice. It was common cause that the statement was covered by legal professional
privilege. The state witness in question refused to waive the privilege. The accused argued
that such cross-examination would assist their defence. Botha JA held that if it were possible
for the court to relax the rule of privilege, the following information, as a minimum
requirement, would have to be put before the court:
“information as to how the statement came to be in the possession of the legal representatives of the
accused; whether the legal advice sought related to the trial itself, and if so, in what way; what the
contents of the statement were (the statement could be handed up to the trial Judge for his perusal);
and, perhaps most importantly, in what manner and with what prospects of success the cross-
examination could avail the accused in countering the charges against them.” [232]
10 3 4 Waiver
Legal professional privilege may be waived by a client. This may be done expressly, [233]
impliedly or imputedly. For example, waiver may be implied when a client discloses
privileged information. In Ex Parte Minister van Justisie: In Re S v Wagner [234] Rumpff CJ
held that an implied waiver involves “an element of publication of the document or part of it
which can serve as a ground for the inference that the litigant or prosecutor no longer
wishes to keep the contents of the document a secret”.
In S v Tandwa and Others [235] the Supreme Court of Appeal drew a distinction between
implied and imputed waiver in the context of an allegation of poor legal representation. The
issue that arose was whether admitting an affidavit by the impugned accused constituted a
breach of professional legal privilege. The court held: [236]
“Implied waiver occurs . . . when the holder of the privilege with the full knowledge of it so behaves
that it can objectively be concluded that the privilege was intentionally abandoned. Imputed waiver
occurs where — regardless of the holder’s intention — fairness requires that the court conclude that
the privilege was abandoned. Implied waiver entails an objective inference that the privilege was
actually abandoned; imputed waiver proceeds from fairness, regardless of actual abandonment.” [237]
Page 166
Adopting the approach of Wigmore [238] the court held that waiver must be imputed where a
client alleges incompetence on the part of his or her legal representative. [239]

In both civil and criminal trials the privilege attaching to a witness’s statements is treated as
separate from legal professional privilege (see § 24 5 6 below). The rationale is that the
distinction is necessary to protect the person who is unrepresented. However, as these two
privileges overlap and are in many aspects very similar, they are for reasons of convenience
dealt with under legal professional privilege.
The privilege pertaining to a witness’s statement falls away when a witness uses this
statement to refresh her memory in the witness box (see § 24 5 6 below). The privilege is
not disturbed if witnesses refresh their memory whilst out of the witness box; [240] and the
privilege will not be lost where witnesses refresh their memory during an adjournment. [241]
However, if the court is of the view that the witness in the witness box has no independent
recollection and has merely memorised the contents of the document, then the document
must be produced. [242]
One basis for distinguishing between refreshing memory in and out of the witness box is
that waiver of privilege cannot be implied unless there is some element of publication. This
occurs when the document is used whilst the witness is testifying in court, but not when it is
used out of court. [243] The consequences of refreshing of memory from a privileged
document are dealt with in chapter 24 below.

Legal Aid South Africa (hereafter “LASA”) is a national public entity, created by the above
Act (the “LASA Act”), to provide and manage legal representation to persons at state
expense. Section 19(1) of the LASA Act states that a private practitioner instructed by LASA
to represent a person who qualifies for legal aid under the LASA Act must, when required by
LASA to do so, “grant access to the information and documents contained in the file relating
to the person in question for the sole purpose of conducting a quality assessment of the
work done by the legal practitioner”. It should be noted that the client — as holder of the
privilege — cannot prevent access in these circumstances. It is the lawyer’s duty to grant
access, and this duty only arises where LASA requests access for quality assessment
purposes. Section 19(2) determines, furthermore, that the documents and information
referred to in s 19(1) remain privileged
Page 167
against any other party as information falling within legal professional privilege, despite
having been made available to LASA. It is submitted that LASA can, in turn, also be
prevented from using the information for any other purpose than quality assessment.

The legal recognition of a privilege attaching to communications between categories of
people inevitably involves two conflicting interests: (1) society’s interest in preserving and
promoting certain relationships; and (2) the interest of the administration of justice in
ensuring that all relevant evidence is before the court. Historically, preference has been
given to the latter interest. Consequently, professional privilege pertains only to the lawyer-
client relationship and is not enjoyed by other professional relationships, [244] although
bankers do have a limited privilege in that they need not produce their books unless ordered
to do so by the court. [245] Privilege is not accorded to the doctor-patient relationship; [246]
however, where an accused has been referred for mental observation, any statement made
by her at such an inquiry will be inadmissible in criminal proceedings, “except to the extent
to which it may be relevant to the determination” of her “mental condition”. [247]
Priests, [248] insurers [249] and accountants [250] do not enjoy this privilege. Journalists can
be compelled to disclose the sources of their information. [251] However, it would appear that
some relief is available to these professionals if they can establish that they have a “just
excuse” for not testifying. [252] In Bosasa Operations (Pty) Ltd v Basson and Another [253] the
court emphasising the important role of the freedom of the press held that there was no
duty to disclose the names of sources where their identity was not relevant to the plaintiff’s
case.
Page 168
It is also arguable that certain professional communications may be protected from

disclosure by the constitutional right to privacy. Section 14(d) of the Constitution provides
that everyone has the right not to have the privacy of their communications infringed. A
communication between doctor and patient may well be regarded as a personal and private
communication, and where the state seeks to compel disclosure of such a communication,
privilege may be claimed on the basis of s 14. However, that privilege may be denied if the
state is able to establish that the requirements of the limitations clause have been met. [254]
Such an approach would not constitute such a radical departure from the common law as
such constitutional scrutiny would inevitably incorporate Wigmore’s [255] preconditions for the
recognition of a privilege and which are reflected in the pre-requisites of legal professional
privilege, namely:
“(1) the communicate must originate in a confidence that they will not be disclosed;
(2) the element of confidentiality must be essential to the full and satisfactory maintenance of the
relationship between the parties;
(3) the relationship must be one that in the opinion of the community ought to be sedulously
fostered;
(4)
the injury that would inure to the relationship by the disclosure of the communication must be
greater than the benefit gained through the correct disposal of the litigation.” [256]
Spouses are entitled to refuse to disclose communications from the other spouse made
during the marriage. [257] This privilege is founded on the notion that public opinion would
find it unacceptable if spouses could be forced to disclose communications received from
each other. [258]
The only requirements for the existence of the privilege is that the communication must
have been made whilst the spouses were married. The privilege persists after divorce with
regard to communications made whilst the couple were still married. [259]
In terms of s 199 of the CPA each spouse may refuse to answer a question that the other
spouse could not have been compelled to answer. [260] However, should the spouse who
received the communication wish to disclose it, there is nothing the other spouse can do to
prevent such disclosure, since marital privilege can only be claimed by the spouse to whom
the communication is made. The traditionally accepted view is that a third person who hears
or
Page 169
intercepts the communication cannot be prevented from disclosing it. [261] This common-law
approach may well be challenged on the basis that it infringes the constitutional right to
privacy. [262]
Section 192 of the CPA [263] makes it clear that parents/guardians can be compelled to testify
against their children/wards and vice versa. Our courts do not recognise a privilege
pertaining to communications between parent and child. The absence of privilege prevails
even where the parent attends criminal proceedings in order to provide assistance to a child
in terms of s 73(3) of the CPA.
There can be no doubt that an argument can be made that where parents attend criminal
proceedings in order to assist their children, public policy militates against those very same
parents being compelled to testify against their children. In S v M [264] the Appellate Division
held that s 73(1) and 73(2) of the CPA, read together, conferred a right upon a child to be
assisted by a parent or guardian as from the time of the child’s arrest, in the same way as
an adult would be entitled to the assistance of a legal adviser. From this equation of parental
assistance with the assistance of a legal adviser follows the logical inference that parent-
child communications in this context should be afforded the same privilege as
communications made between legal adviser and client.
However, even where a parent does not appear to assist the child there may well be
constitutional grounds for holding that communications between parent and child are
privileged. In the United States the courts have recognised that confidential communications
between children and their parents, guardians or other caretakers are privileged from
disclosure on the basis of the constitutional right to privacy. [265] It is submitted that s 14 of
the Constitution, which guarantees the right to privacy, is susceptible to a similar
interpretation. [266]
[1] Generally speaking, no adverse inference may be drawn from the fact that a person claims privilege; see
International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1) 1955 (2) SA 1 (W).
[2] See Van Lill v S 1969 2 PH H219 (T); S v Evans 1981 (4) SA 52 (C). A presiding officer has a duty to advise
the unrepresented accused of any claim to privilege; see S v Lwane 1966 (2) SA 433 (A), which is also discussed in
§ 3 5 2 above and § 10 2 2 below.
[3] Van der Merwe et al Evidence (1983) 133.
[4] See generally Tapper Cross & Tapper on Evidence 12 ed (2010) 447.
[5] Although not discussed in this chapter, it should be noted that a litigant may refuse to disclose a document in
discovery proceedings if he would be able to claim privilege for its contents on any ground. See generally Van
Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 221 for the grounds on which witness
statement privilege exists in civil cases. See § 11 5 below as far as “docket privilege” of the state is concerned.
[6] Rex v Camane and Others 1925 AD 570 575.
[7] See s 14 of the CPEA and ss 203, 217 and 219A of the CPA.
[8] Section 35(1)(a), (b) & (c) and 35(3)(h) and (j) of the Constitution.
[9] S v Thebus and Another 2003 (6) SA 505 (CC) at [55]. See also S v Manamela and Another (Director-General
of Justice Intervening) 2000 (3) SA 1 (CC); Osman and Another v Attorney-General, Transvaal 1998 (4) SA 1224
(CC).
[10] See § 29 2 below.
[11] Tapper Cross & Tapper on Evidence 417. See also Wigmore paras 2250-1. It has also been suggested that the
privilege originated in Jewish law; see Mazabow 1987 SALJ 710, where this claim is refuted.
[12] Wigmore paras 2250-1 describes the history of the rule in the following words “. . . [a] long story . . . woven
across a tangled warp composed in part of the inventions of the early canonists, of the momentous contest between
the courts of the common law and of the church, and of the political and religious issues of the convulsive period in
English history, the days of the dictatorial Stuarts.”
[13] Tapper Cross & Tapper on Evidence 417 cites Pyneboard Pty Ltd v Trade Practices Commission 1983 152 CLR
328 346, where the privilege was referred to as “part of the common law of human rights”.
[14] See S v Lwane supra 438.
[15] The privilege against self-incrimination has been criticised in that it obstructs the course of justice and
militates against the discovery of crimes. See Kurzon 1992 TRW 1; Nugent 1999 SALJ 501; Hiemstra 1990 Stell LR
400. For a response to the criticism of Hiemstra, see Van der Merwe 1991 Stell LR 102.
[16] 384 US 436 (1966). For further discussion of this case, see § 10 2 3 1 below as well as §§ 12 5 2 to 12 5 2 4
below.
[17] The privilege is that of the witness and generally must be claimed by her.
[19] S v Lwane supra. The presence of a legal representative will not necessarily excuse a presiding officer from
this duty. See S v Botha and Others (2) 1995 (2) SACR 605 (W).
[20] Supra. See also § 12 4 3 below for a discussion of S v Lwane supra.
[21] Cf Magmoed v Janse Van Rensburg and Others 1993 (1) SA 777 (A).
[22] Magmoed v Janse Van Rensburg and Others supra 819. See further Van der Merwe 1991 Stell LR 102 105-
106.
[23] Magmoed v Janse Van Rensburg and Others supra 820. In S v Heyman and Another 1966 (4) SA 598 (A) 608
Steyn CJ stated: “The avoidance of incriminating replies may not be a simple matter by any means. As observed in Q
v Boyes 1861 LJR 301 (referred to in The State v Carneson 1962 (3) SA 437 (T) at 439) a question which might at
first sight appear a very innocent one, might, by affording a link in a chain of evidence, become the means of
bringing home an offence to the party answering.” If a claim of privilege is wrongly denied, an incriminating reply
may not be admitted in subsequent criminal proceedings. See Magmoed’s case supra 821.
[24] Magmoed v Janse Van Rensburg and Others supra; S v Ramaligela en ’n Ander 1983 (2) SA 424 (V).
[25] 1994 (1) SACR 21 (C).
[26] See also S v Van Schoor 1993 (1) SACR 202 (E). The accused prior to his criminal trial had made a written
statement to the police for the purposes of inquest proceedings. He was not warned before making the statement.
The court found the written statement to be admissible into evidence and held that, although a witness in judicial
proceedings was required to be warned, the requirement applied only to viva voce evidence before a judicial tribunal.
In reaching this conclusion Melunsky J did not refer to any authority and no mention was made of the Judges’ Rules.
The Judges’ Rules are contained in Appendix B to this work.
[27] See s 1(d) of the Constitution.
[28] Magmoed v Janse Van Rensburg and Others supra 827.
[29] Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 All ER 613; Rio Tinto Zinc Corp v
Westinghouse Electric Corp [1978] 1 All ER 434. See Tapper Cross & Tapper on Evidence 11 ed (2007) 456.
[30] United States v White 322 US 694 (1944); Braswell v United States 108 S Ct 2284 (1988).
[31] R v NM Paterson & Sons Ltd [1980] 2 SCR 679; R v Amway Corp [1989] 1 SCR 21.
[32] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477.
[33] British Steel Corporation v Granada Television Ltd [1981] AC 1096. Cf Theophilopoulos (2004) 16 SA Merc LJ
17 who argues that the common law should be extended to corporations when it is in the public interest to do so.
[34] See Paizes in Du Toit et al Commentary 23-50B, who warns that this procedure should be used cautiously.
See further § 22 10 below.
[35] Section 204(1).
[36] Section 204(2). Such discharge (immunity from prosecution) would also cover competent verdicts in respect
of the specified charge. See s 204(2)(a).
[37] Section 204(3).
[38] Section 204(4).
[39] Section 205(1) is used for the purpose of obtaining statements from witnesses who refuse to make
statements to the police in the course of the latter’s investigation of a crime.
[40] See generally Paizes in Du Toit et al Commentary 23-50B. Section 205 is not unconstitutional: Nel v Le Roux
NO and Others 1996 (1) SACR 572 (CC). See also § 10 2 4 below.
[41] 2002 (1) SACR 266 (T) at [21].
[42] For a further discussion of Maunye, see Schwikkard 2002 SACJ 272.
[44] Zeffertt, Paizes and Skeen (2003) 530; see also Wigmore para 2260; Tapper Cross & Tapper on Evidence
451-2; S v Heyman and Another supra 608; Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 143.
[45] S v Sheehama 1991 (2) SA 860 (A).
[46] At the South African Judges Conference held at Cape Town in 1931 the Judges’ Rules were formulated. These
rules are virtually identical to the Judges’ Rules drawn by the English judges in 1913. The purpose of these rules is to
protect an accused from unfair practices by the police. See further Appendix B to this work.
[47] Hiemstra 1968 SALJ 187. Cf S v Mpetha and Others (2) 1983 (1) SA 576 (C); S v Sampson and Another 1989
(3) SA 239 (A); S v Colt and Others 1992 (2) SACR 120 (E). In S v Van der Merwe 1998 (1) SACR 194 (O) Gihwala
AJ held that as the Judges’ Rules gave expression to the rights protected in the Constitution, the failure to warn the
accused of his rights in terms of the Constitution was irrelevant. The correctness of Gihwala J’s views is questionable
as there are a number of distinctions that can be made between the Judges’ Rules and s 35 of the Constitution (s 25
of the Interim Constitution).
[48] See S v Mabaso and Another 1990 (3) SA 185 (A).
[49] 1926 AD 459. See also Rex v Holtzhausen 1947 (1) SA 567 (A); Rex v Kuzwayo 1949 (3) SA 761 (A). In S v
Mpetha supra 598 Williamson J noted: “Once the person being interviewed is cautioned and then indicates that he
does not want to say anything it is in my opinion improper to direct further questions to him. If he answers these
further questions the irresistible inference is that his earlier expressed decision to say nothing has been made to
crumble by the pressures of the situation in which he then finds himself.” See also § 12 9 5 below and S v Sabisa
1993 (2) SACR 525 (TKA). See chs 16 and 17 below for a discussion of the requirements that have to be met before
an admission or confession may be admitted into evidence.
[50] Cf S v Orrie and Another 2005 (1) SACR 63 (C), S v Lottering 1999 12 BCLR 1478 (N) and see S v Seseane
2000 (2) SACR 225 (O). See further §§ 12 9 3 to 12 9 4 below.
[51] 384 US 436 (1966). For a further discussion of this case, see §§ 12 5 2 to 12 5 2 4 below.
[52] See further Ghent (annotation) 31 ALR 3d 565; Smith “The Threshold Question in Applying Miranda: What
Constitutes Custodial Interrogation?” 1974 25 South Carolina LR 699 735; Harris v New York 401 US 222 (1971);
Rhode Island v Innis 446 US 291 (1980); New York v Quarles 467 US 649 (1984).
[53] 378 US 478 (1964).
[54] See S v Ramulifho 2013 (1) SACR 388 (SCA). Cf S v Mngeni 2013 (1) SACR 583 (WCC); S v Vumase 2000
(2) SACR 579 (W).
[55] See generally S v Mckenna 1998 (1) SACR 106 (C), in which the court held that the fact that the appellant
was legally qualified did not deprive her of the right to legal representation at her trial. However, cf the approach
adopted in § 12 9 4 below. For a general discussion see Schwikkard in De Waal & Currie Bill of Rights Handbook 5 ed
(2005) 760-3.
[56] Sections 35(1)(a), (b) & (c), s 35(2)(b) & (c) and s 35(3)(f), (g), (h) & (j). Jones J in S v Nombewu 1996 (2)
SACR 396 (E) at 403c held that the overriding objective of the equivalent provisions in the interim Constitution was
“to protect persons against unfairly made self-incriminating statements”.
[57] See Schwikkard 1997 SAJHR 446.
[58] This includes sentenced prisoners. See Ehrlich v Ceo, Legal Aid Board, and Another 2006 (1) SACR 346 (E);
Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee, and Others 2002 (5) SA
449 (SCA).
[59] Section 35(2)(b) & (c). See Schwikkard Constitutional Law of South Africa 52-25–52-26.
[60] Section 35(1)(a) & (b).
[61] LAWSA (1994) para 196. Section 39 of the CPA. Nhlabathi v Adjunk Prokureur-Generaal, Transvaal, en
Andere 1978 (3) SA 620 (W); Minister of Law and Order v Kader 1991 (1) SA 41 (A).
[62] Section 73(2A)(a), inserted in terms of s 2 of the Criminal Procedure Amendment Act 86 of 1996, which came
into operation on 28 June 2002.
[63] This is implicit in the wording of s 39(3) of the CPA which provides: “The effect of an arrest shall be that the
person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or
released from custody.”
[64] R v Therens [1985] 1 SCR 613; R v Rahn [1985] 1 SCR 659; R v Trask [1985] 1 SCR 655; R v Thomsen
[1988] 1 SCR 640. Cf, however, the approach of the New Zealand Court of Appeal in R v Goodwin [1993] 2 NZLR
153 (CA).
[65] R v Therens supra 642-645.
[66] R v Thomsen [1988] 1 SCR 640.
[67] R v Esposito (1985) 53 OR (2d) 356.
[69] Section 35(3)(j).
[70] See also S v Mpetha and Others (2) 1983 (1) SA 576 (C); S v Lwane 1966 (2) SA 433 (A); Rex v Kuzwayo
1949 (3) SA 761 (A); S v Dlamini 1973 (1) SA 144 (A); S v Agnew and Another 1996 (2) SACR 535 (C); S v
Mathebula and Another 1997 (1) SACR 10 (W); S v Sebejan and Others 1997 (1) SACR 626 (W). Cf S v Ngwenya
and Others 1998 (2) SACR 503 (W) in which Leveson J held that the s 25(3) right to a fair trial did not include pre-
trial procedures. See also S v Khan 1997 (2) SACR 611 (SCA) where the court applying the Interim Constitution
found that the failure to inform the accused of his right to legal representation before his confession was recorded by
a magistrate was unfair. However, the court held that in the circumstances the privilege against self-incrimination
had not been negated as he had been advised of the right to remain silent. For further discussion of Khan see
Schwikkard 1998 SACJ 139.
[71] 1996 (1) SACR 335 (E) 348i-349a.
[72] 1997 (1) SACR 10 (W) 19f-20a.
[73] In S v Marx and Another 1996 (2) SACR 140 (W) Cameron J held that where suspects have waived their right
to legal representation police officers are required before taking a formal statement to again inform them of their
right to legal representation or assistance. S v Marx supra was followed in S v Seseane 2000 (2) SACR 225 (O). The
importance of affording the accused the opportunity to obtain legal representation at every important pre-trial stage
was reiterated in S v Mathebula supra. See also S v Gasa and Others 1998 (1) SACR 446 (D). Cf S v Shaba en ’n
Ander 1998 (1) SACR 16 (T), in which the court referring to s 25 of the Interim Constitution held that constitutional
rights could not be waived and although it might be desirable for the accused to be warned at each pre-trial
procedure, the failure to do so would not automatically lead to the exclusion of evidence as the question of
admissibility always has to be determined in the light of all the evidence. The crucial inquiry in each is whether the
accused after having been apprised of his rights on arrest was in a position to decide voluntarily how to exercise his
rights. See also S v Shongwe en Andere 1998 (2) SACR 321 (T); S v Malefo en Andere 1998 (1) SACR 127 (W);
Shabalala v S 1999 4 All SA 583 (N); S v Soci 1998 (2) SACR 275 (E); S v Ngcobo 1998 10 BCLR 1248 (N); S v
Mfene 1998 9 BCLR 115 (N); S v Gumede 1998 5 BCLR 530 (D); S v Tsotetsi and Others (1) 2003 (2) SACR 623 (W)
and S v Nombewu 1996 (2) SACR 396 (E). For a further discussion of Nombewu see Schwikkard 1997 SACJ 223.
[74] See S v Mcasa and Another 2005 (1) SACR 388 (SCA) at [15].
[75] 1997 (1) SACR 626 (W). See also § 12 9 4 below.
[76] At 632d the court defined “a suspect” as “one about whom there is some apprehension that she may be
implicated in the offence under investigation and, it may further be, whose version of events is mistrusted or
disbelieved”. Cf S v Ndlovu 1997 (12) BCLR 1785 (N) in which Magid J, whilst accepting that suspects were entitled
to be appropriately warned in terms of s 25 of the Interim Constitution, expressed the view that Satchwell J’s
definition of a suspect in Sebejan “set the standard too low” (at 1792A). Magid J did not provide an alternate
definition but held (at 1792B) “that there must be some offence under investigation before anybody can be a suspect
in relation thereto”. See further S v Khan 2010 (2) SACR 476 (KZP) at [23]-[25].
[77] Such a person would similarly fail to be protected by s 35 of the Constitution.
[78] At 635d.
[79] At 636b. See also S v Van der Merwe 1998 (1) SACR 194 (O) and S v Orrie and Another 2005 (1) SACR 63
(C) in which the court held that a suspect must be made aware of their status as a suspect. It should be noted that
the court in Sebejan, noting that the accused at the time of making the statement was not a “suspect”, held that no
warning had been required. Unfortunately the court did not canvass the broad Canadian definition of detention. The
facts of the case illustrate that there may well be circumstances where a person who is not technically a suspect
feels compelled to answer questions put to her and consequently incriminate herself. In the judgment itself it is
noted that the “non-suspect” thought “she had to give the police a statement” (at 628j). See also Mtyhida v S
[2013] 2 All SA 335 (ECG).
[80] Section 25 of the Interim Constitution contained substantially similar provisions to those found in s 35 of the
1996 Constitution and similarly made a distinction between arrested, detained and accused persons.
[81] S v Langa and Others 1998 (1) SACR 21 (T). See also S v Mthethwa 2004 (1) SACR 449 (E); S v Ndlovu 1997
(12) BCLR 1785 (N).
[82] S v Mthethwa 2004 (1) SACR 449 (E) 453e-f.
[83] Judges’ Rule 2 provides: ‘‘Questions may be put to a person whom the police have decided to arrest or who is
under suspicion where it is possible that the person by his answers may afford information which may tend to
establish his innocence . . . In such a case a caution should first be administered. Questions, the sole purpose of
which is that the answers may afford evidence against the person suspected, should not be put.”
[84] At 456b-c.
[85] S v Khan 2010 (2) SACR 476 (KZP). See further §§ 12 7 1 and 12 8 1 below.
[86] S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A).
[87] As argued above, detained persons must also include arrested persons.
[88] Sections 35(2)(c) and 35(3)(g). See generally Steytler Constitutional Criminal Procedure (1998) 299-315.
[89] But cf the approach taken by Visser AJ in S v Tsotetsi and Others (3) 2003 (2) SACR 648 (W).
[90] Cf Mgcina v Regional Magistrate, Lenasia and Another 1997 (2) SACR 711 (W) in which Borchers J rejected
counsel’s argument that substantial injustice would result where any indigent person was tried without legal
representation. The court noted that if the framers of the Constitution intended that to be the case they could have
formulated such a simple rule in the Constitution.
[91] Section 36 of the Constitution.
[92] See § 12 8 5 below.
[93] Section 36(1).
[94] Chaskalson et al Constitutional Law of South Africa (1996) 12-20. Cf S v Mathebula supra.
[95] See Pennington v Minister of Justice and Others 1995 (3) BCLR 270 (C); Msila v Government of the RSA 1996
3 BCLR 362 (C); S v Khanyile and Another 1988 (3) SA 795 (N).
[96] In S v Moos 1998 (1) SACR 372 (C) the court held that substantive injustice would occur if the charge was
one which would attract a sentence of imprisonment and the accused did not have legal representation.
[97] S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC); S v Ambros 2005 (2) SACR 211 (C). In S v Cornelius and
Another 2008 (1) SACR 96 (C) paras 10 & 11 the court held that an accused’s financial position was irrelevant in
determining whether he had been afforded his constitutional right to legal representation at state expense, the sole
test being whether substantial injustice would occur if the accused did not have legal representation.
[98] S v Tandwa and Others 2008 (1) SACR 613 (SCA).
[99] S v Halgryn 2002 (2) SACR 211 (SCA).
[100] S v Halgryn supra [14]. Cf S v Saloman and Others 2014 (1) SACR 93 (WCC).
[101] As amended by the Criminal Law (Forensic Procedures) Amendment Act 6 of 2010 and the Criminal Law
(Forensic Procedures) Amendment Act 37 of 2013.
[102] Section 37(1)(c). See S v Mbambeli and Others 1993 (2) SACR 388 (E), where the court held that evidence
emanating from a medical examination, authorised in terms of s 37, could also be used to refute an allegation of
assault.
[103] Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA); S v Moyo and
Others 2014 (1) SACR 82 (GNP). Cf S v Fraser and Others [2005] 2 All SA 209 (N).
[104] Section 37(1)(c) and Section 37(2)(a)
[105] Sections 2 and 3 of the Criminal and Magistrates’ Courts Procedure (Amendment Act) 39 of 1926, replaced
by ss 289 and 291 of the Criminal Procedure Act 56 of 1955, in turn replaced by ss 37 and 225 of the Criminal
Procedure Act 51 of 1977.
[106] 1914 35 NLR 87.
[107] 1925 TPD 491.
[108] At 534. See also R v B 1933 OPD 139.
[109] 1941 AD 75.
[110] At 82-3. See also Nkosi v Barlow NO en Andere 1984 (3) SA 148 (T); S v Duna and Others 1984 (2) SA 591
(CkS). See generally Labuschagne 1980 TSAR 58; Wigmore para 2265.
[111] 1991 (2) SA 860 (A).
[112] See further ch 17 below.
[113] See S v Binta 1993 (2) SACR 553 (C).
[114] S v Huma and Another (2) 1995 (2) SACR 411 (W) 419. See also S v Maphumulo 1996 (2) SACR 84 (N);
Msomi v Attorney-General of Natal 1996 8 BCLR 1109 (W).
[115] Schmerber v California 384 US 757 (1966).
[116] However, some of the American states have legislated against the admission of such evidence. For example,
a South Dakota statute permits a person suspected of driving while intoxicated, to refuse to submit to a blood-
alcohol test, but authorises revocation of the driver’s licence of a person who refuses to submit to the test and allows
evidence of the refusal to be admitted into evidence. In South Dakota v Neville 459 US 553 (1983) it was argued
that the admission into evidence of such a refusal infringed the privilege against self-incrimination. The court, in
rejecting this argument, held that a refusal to take such a test after a police officer has lawfully requested it, is not
an act coerced by the officer and is therefore not protected by the privilege against self-incrimination. In Canada, in
terms of the common law a person may refuse to provide a sample of bodily substances; however, this has been
modified by statute and in terms of s 223 of the Criminal Code a person may be required to take a “breath test”.
Refusal to take such a test will constitute an offence. However, this has been held not to violate s 11(c) of the
Canadian Charter which confers the right not to be compelled “to be a witness against oneself”, as it is a privilege
against testimonial compulsion, not against compulsion generally. See Stuart Charter Justice in Canadian Criminal
Law 3 ed (2001) 334. The position of the RSA is that refusal of taking a specimen of blood or breath has for road
traffic law purposes been criminalised. See s 65(9) of the National Road Traffic Act 93 of 1996. The privilege against
self-incrimination would be no valid ground for refusing to provide a blood or breath sample. See further Van der
Merwe in Du Toit et al Commentary 3-28A to 3-29.
[117] Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA).
[118] This reasoning was applied to a handwriting sample in S v Moyo and Others 2014 (1) SACR 82 (GNP).
[119] S v Orrie and Another 2004 (1) SACR 162 (C) at [20].
[120] Minister of Safety and Security and Another v Gaqa 2002 (1) SACR 654 (C).
[121] Minister of Safety and Security and Another v Xaba 2004 (1) SACR 149 (D).
[122] See, eg, S v Britz 1994 (2) SACR 687 (W), where the court held that the fact that the nurse taking the blood
sample had not taken the appropriate sanitary precautions in drawing the blood specimen, was irrelevant to
admissibility.
[123] Supra.
[124] Black J at 774. See Theophilopoulos 2010 SALJ 107.
[125] See S v R and Others 2000 (1) SACR 33 (W), in which Willis J held that any blood test was an invasion of
the right to privacy and the right to bodily security and integrity but that s 35(5) permitted the admission of the
evidence. For further discussion of this case see Schwikkard 2000 SACJ 747-8.
[126] S v Ngwenya and Others 1998 (2) SACR 503 (W) 509. See also S v Zwayi 1997 (2) SACR 772 (Ck); S v
Monyane and Others 2001 (1) SACR 115 (T); S v Thapedi 2002 (1) SACR 598 (T). See also S v Hlalikaya and Others
1997 (1) SACR 613 (SE), where the court held that there was no right to legal representation at a “photo
identification” parade. However, the court in S v Thapedi 2002 (1) SACR 598 (T) referring to US v Wade 228 US 214,
acknowledged that there may well be circumstances in which the right to a fair trial would require that the accused
be represented at an identity parade. See further § 12 9 8 below.
[127] 1998 (2) SACR 642 (W). Cf S v Mphala and Another 1998 (1) SACR 654 (W). See further Van der Merwe
1998 Stellenbosch Law Review 129, where he discusses and compares case law in South Africa, the United States
and Canada.
[128] S v Mhlakaza en Andere 1996 (2) SACR 187 (C). See also S v Mathebula and Another 1997 (1) SACR 10
(W).
[129] S v Botha and Others (2) 1995 (2) SACR 605 (W).
[130] 1999 (2) SACR 51 (CC).
[131] At [17].
[132] S v Nomzaza 1996 (2) SACR 14 (A).
[133] The relevant provisions read as follows: “60(11) Notwithstanding any provision of this Act, where an accused
is charged with an offence referred to — (a) in Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable
opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the
interests of justice permit his or her release; (b) in Schedule 5, but not in Schedule 6, the court shall order that the
accused be detained in custody until he of she is dealt with in accordance with the law, unless the accused, having
been given a reasonable opportunity to do so, adduces evidence which satisfied the court that the interests of justice
permit his or her release . . . (14) Notwithstanding anything to the contrary contained in any law, no accused shall,
for the purposes of bail proceedings, have access to any information, record or document relating to the offence in
question, which is contained in, or forms part of, a police docket, including any information, record or document
which is held by any police official charged with the investigation in question, unless the prosecutor otherwise
directs: Provided that this subsection shall not be construed as denying an accused access to any information, record
or document to which he or she may be entitled for purposes of his or her trial.”
[134] 1995 (2) SACR 605 (W) at 611j.
[135] At [94].
[136] See, eg, S v Hoho 1999 (2) SACR 159 (C); S v Snyman 1999 8 BCLR 931 (C). In S v Sejaphale 2000 (1)
SACR 603 (T), Jordaan J held that the failure to advise an accused at bail proceedings in terms of s 60(11B)(c) that
anything he said, might be used against him at his or her trial, rendered the record of the proceedings inadmissible
at subsequent proceedings notwithstanding that the accused was legally represented.
[137] 2007 (1) SACR 566 (CC)
[138] Section 5(8).
[139] At [109].
[140] At [117].
[141] At [119]-[121]. One of the striking themes running through the court’s deliberations is the acceptance that
in determining the admissibility of evidence considerations of trial fairness apply both to the accused and the
prosecution (see for example, [113]).
[142] See S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (“Dlamini”) at
[78] (Kriegler J held that the imposition of an onus on an applicant for bail was not constitutionally objectionable as
the question of erroneous conviction did not arise). Bail is discussed more fully below at § 32 4.
[143] Dlamini (supra) at [11]. See also Geuking v President of the Republic of South Africa and Others 2003 (1)
SACR 404 (CC) at [47] (the court held that ‘‘[a] person facing extradition is not an accused person for the purposes
of the protection afforded by s 35(3) of the Constitution”).
[144] See also Schwikkard Constitutional Law of South Africa 52.16.
[145] See S v Moos 1998 (1) SACR 372 (C); S v Malatji and Another 1998 (2) SACR 622 (W); Mgcina v Regional
Magistrate, Lenasia and Another 1997 (2) SACR 711 (W).
[146] 1998 (1) SACR 343 (C). See also S v Moos 1998 (1) SACR 372 (C); S v Malatji and Another 1998 (2) SACR
622 (W); Mgcina v Regional Magistrate, Lenasia and Another 1997 (2) SACR 711 (W); S v Ramuongiwa 1997 2 BCLR
268 (V).
[147] Where an accused is unrepresented it is well established that presiding officers have a duty to ensure that
the accused is informed of her rights including the right to legal representation and this should be done prior to the
commencement of the trial. This includes a proper explanation of the proceedings and concepts such as cross-
examination. (See S v Lekhetho 2002 (2) SACR 13 (O); S v Matladi 2002 (2) SACR 447 (T); S v Njikaza 2002 (2)
SACR 481 (C); S v Mathole and Another 2002 (2) SACR 484 (T); S v Shiburi 2004 (2) SACR 314 (W); S v Ndou 2006
(2) SACR 497 (T); S v Sikhipha 2006 (2) SACR 439 (SCA); S v Radebe; S v Mbonani 1988 (1) SA 191 (T); S v Van
Heerden en Ander Sake 2002 (1) SACR 409 (T); S v Thusi 2002 12 BCLR 1274 (N). This duty is equally applicable in
bail proceedings. See S v Nzima and Another 2001 (2) SACR 354 (C).) Depending on the seriousness and complexity
of the charge, or of the applicable legal rules, an accused should not only be told of his right to legal representation;
he should also be encouraged to exercise it. (See S v Radebe; S v Mbonani supra; S v Manale 2000 (2) SACR 666
(NC); S v Nkondo 2000 (1) SACR 358 (W); S v Makhandela 2007 (2) SACR 620 (W); S v Ndlovu 2001 (1) SACR 204
(W); S v Mbambo 1999 (2) SACR 421 (W); S v Dyani 2004 (2) SACR 365 (E), S v Tshidiso 2002 (1) SACR 207 (W);
S v Thobakgale 2007 (1) SACR 395 (T).) A presiding officer must also ensure that the accused is aware of and
understands his right to legal representation at state expense (see S v Visser 2001 (1) SACR 401 (C); S v Monyane
and Others 2001 (1) SACR 115 (T)) and that his choice not to be represented is an informed one (see S v Solomons
2004 (1) SACR 137 (C)). If an accused who initially declines legal representation subsequently changes his mind he
must be given the opportunity to obtain legal representation (see S v Pitso 2002 (2) SACR 586 (O), S v Balatseng
2005 (2) SACR 28 (B)).
[148] The court held that the evidence could nevertheless be admitted for the purposes of assisting a co-accused
in his cross-examination, but not to prove the truth of the contents thereof.
[149] S v Mbambo 1999 (2) SACR 421 (W). At common law presiding officers are required to advise
unrepresented accused of the right to remain silent and the substantive right to legal representation. In Hlantlalala
and Others v Dyantyi NO and Another 1999 (2) SACR 541 (SCA), the court chose to decide the matter on the basis
of the common law, and held that the failure to advise the accused of their right to legal representation and their
entitlement to legal representation may in certain circumstances constitute an irregularity resulting in a failure of
justice.
[150] S v Lavhengwa 1996 (2) SACR 453 (W). Cf S v Solomons supra.
[151] S v Williams 2008 (1) SACR 65 (C) at [6].
[152] 2000 (1) SACR 458 (SCA). Cf S v Tshabalala 2011 (1) SACR 497 (GNP).
[153] Lukoto J in S v Nelushi 2006 (1) SACR 462 (V) in considering the judgment of the court a quo on automatic
review, held that the failure to ask the accused whether his plea of guilty in terms of s 112 of the Criminal Procedure
Act had been made freely, voluntarily and without undue influence constituted an irregularity but that in the
circumstances it did not warrant the setting aside of the proceedings. See also S v Seabi and Another 2003 (1) SACR
620 (T); S v Damons and Others 1997 (2) SACR 218 (W). Cf S v Maseko 1996 (2) SACR 91 (W). See also Steytler
Constitutional Criminal Procedure (1998) 341; Schwikkard 1996 SACJ 389 and 1998 SACJ 141.
[154] 2005 (1) SACR 505 (SCA) at [43].
[155] In this case the court was specifically referring to proceedings in terms of s 119 and s 121(1) of the Criminal
Procedure Act 51 of 1977.
[156] S v Evans 1981 (4) SA 52 (C); S v Daniels en ’n Ander 1983 (3) SA 275 (A); S v Mabaso and Another 1990
(3) SA 185 (A); S v Hill 1981 2 PH H152 (C).
[157] See generally Steytler The Undefended Accused (1988) 128.
[158] The South African Law Commission in its Report Simplification of Criminal Procedure (a more inquisitorial
approach to criminal procedure-police questioning, defence disclosure the role of judicial officers and judicial
management of trials) Project 73, August 2002, has recommended that s 115 of the CPA be amended to make
advisement of the accused as to the right to remain silent peremptory. It also recommends removing the court’s
discretion whether to ask the accused whether she wishes to disclose the basis of her defence, making such
questioning compulsory.
[159] See Van der Merwe 1994 Obiter 22. See also generally Grant & Jagwanth 1993 SACJ 329.
[160] The definition of a special offence is to be found in s 18(1), which provides: “If the attorney-general is of the
opinion that an offence with which any person is charged or is to be charged, is an offence in which murder, robbery
with aggravating circumstances, violence or intimidation is involved, that attorney-general may, irrespective of what
the actual charge is, at any time before such person pleads to the charge issue a certificate to the effect that such an
offence is a special offence.”
[161] In terms of s 24(1) of Act 126 of 1992, the President may extend ch V of the Act with the concurrence of
Parliament, for a period of one year at a time.
[162] See also Schwikkard in Chaskelson et al Constitutional Law of South Africa 52-22.
[163] For example, s 65 of the Insolvency Act 24 of 1936; ss 415 and 417 of the Companies Act 61 of 1973; s 66
(1) of the Close Corporations Act 69 of 1984, ss 3, 4, 6, 8 and 9 of the Inspection of Financial Institutions Act 38 of
1984; ss 7, 9 and 17 of the Maintenance and Promotion of Competition Act 96 of 1979; ss 5, 7 and 14 of the
Consumer Affairs (Unfair Business Practices) Act 71 of 1988; s 6 of the Banks Act 94 of 1990; s 51 of the National
Ports Act 12 of 2005.
[164] Park-Ross and Another v Director: Office for Serious Economic Offences 1995 (1) SACR 530 (C); Nel v Le
Roux NO and Others 1996 (1) SACR 572 (CC); Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others 1996 (1) SA 984 (CC).
[165] Mitchell and Another v Hodes and Others NNO 2003 (1) SACR 524 (C). See also Equisec (Pty) Ltd v
Rodriques and Another 1999 (3) SA 113 (W).
[166] In Shaik v Minister of Justice and Constitutional Development and Others 2004 (1) SACR 105 (CC) at [19]
the Constitutional Court held that the reference to ‘‘any person’ in s 28(b) of the National Prosecuting Authority Act
32 of 1998, which permits the Investigating Director to summons any person who is believed to be able to furnish
any information in respect of the commission of a specified offence, did not include an accused who is being tried on
charges covered by the s 28 summons. Cf Thatcher v Minister of Justice and Constitutional Development and Others
2005 (4) SA 543 (C).
[167] See Mohamed NO and Others v National Director of Public Prosecutions and Another 2003 (1) SACR 286
(W). For a fuller discussion of investigative inquiries see Zeffertt, Paizes & Skeen 527 and Schwikkard Presumption of
Innocence (1999) 65-75.
[168] See Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC); 1996 (2) SACR
113 (CC); Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC); Ferreira v Levin (supra); National
Director of Public Prosecutions v Mohamed and Others 2003 (2) SACR 258 (C). See, eg, s 176(4) & (5) of the
Companies Act 71 of 2008 which provides:
“(4) A person questioned by the Commission, the Panel, or an inspector or independent investigator
conducting an investigation must answer each question truthfully and to the best of that person’s ability, but —
(a) a person is not obliged to answer any question if the answer is self-incriminating; and
(b) the person asking the questions must inform that person of the right set out in paragraph (a).
(5) No self-incriminating answer given or statement made by any person to the Commission Panel, or an
inspector or independent investigator exercising powers in terms of this Act will be admissible as evidence
against that person in criminal proceedings against that person instituted in any court, except in criminal
proceedings for perjury or in which that person is tried for an offence contemplated in section 215(2)(e), and
then only to the extent that the answer or statement is relevant to prove the offence charged.”
See also s 179(5) and (6). For a further discussion of derivative evidence see Theophilopoulos “Defining the limits of
the common-law, South African and European privilege against self-incrimination” (2014) 25 Stell LR 160.
[169] Nel v Le Roux NO and Others 1996 (3) SA 562 (CC) at [11]. See also Bernstein (supra); Geuking v President
of the Republic of South Africa and Others 2003 (3) SA 34 (CC).
[170] See, generally, Bishop & Woolman “Freedom and Security of the Person” Constitutional Law of South Africa
Chapter 40. See also Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding
Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) at [43].
[171] Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2003 8 BCLR 891 (T).
[172] Nel (supra).
[173] See also Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC) dealing with ss 417 and
418 of the Companies Act 61 of 1973.
[174] Sections 162–165, 179–181, 187–189, 191 and 204 are applicable to proceedings held in terms of s 205.
Section 205(4) provides that a person who refuses or fails to give information shall not be sentenced to
imprisonment as contemplated in s 189 unless the presiding officer is of the opinion that the furnishing of such
information is necessary for the administration of justice or the maintenance of law and order.
[175] Nel supra at [4].
[176] Ibid at [20].
[177] Ibid at [11]. See also S v Mahlangu 2000 (1) SACR 565 (W).
[178] This common-law rule is reflected in s 201 of the CPA. Although there is no express provision in the CPEA,
by virtue of s 42 the common law applies as it was on 30 May 1961. It should be noted that a restriction is placed on
the privilege by s 201, in terms of which a legal adviser is required to reveal any communications from his client
made “before he was professionally employed or consulted with reference to the defence” of his client.
[179] Heydon & Ockleton Evidence: Cases & Materials 4 ed (1996) 417. The basis and justification for attorney-
client privilege has been the subject of much debate. See Paizes 1989 SALJ 109. At 120 Paizes comments favourably
on the non-utilitarian foundation for professional privilege put forward by Fried, who argues that the identity between
lawyer and client provides the moral foundation for an absolute privilege: “It is not only the client’s lack of legal
knowledge that compels him to make confidential communications to his lawyer. If we regard them as constituting
one conceptual unit then, ex hypothesis, no ‘communication’, as such, has been made. To compel either the lawyer
or the client to disclose what has passed between them would be tantamount to involuntary self-incrimination”. See
generally Unterhalter 1988 SALJ 291; Haysom 1987 De Rebus 697; Kriegler 1991 SALJ 613. The history and
theoretical framework of legal professional privilege are discussed by Van Niekerk, Van der Merwe and Van Wyk
Privilegies in die Bewysreg (1984) 27-44.
[180] 1988 (1) SA 868 (A) 886.
[181] 1983 49 ALR 385 at 442-445. See also Blue Chip Consultants (Pty) Ltd v Shamrock 2002 (3) SA 231 (W).
[182] See also Sasol III (Edms) Bpk v Minister van Wet en Orde en ’n Ander 1991 (3) SA 766 (T); Waymark
Waymark NO v Commercial Union Assurance Co Ltd 1992 (3) SA 779 (Tk). See also generally Allan “Legal Privilege
and the Principle of Fairness in the Criminal Trial” 1987 Crim LR 449.
[183] 2006 (1) SACR 523 (T)
[184] It should be noted that on appeal it was found that there had been no unconstitutional search. Minister of
Safety and Security v Bennett [2007] SCA 139 (RSA). On appeal it was also held that there was no reason why non-
privileged documents seized in terms of a valid search warrant should be regarded as having been seized unlawfully
merely because privileged documents (not covered by the warrant) had also been seized.
[185] At 534h-i.
[186] At 536e-f.
[187] At 535g. See also Klein v Attorney-General, Witwatersrand Local Division, and Another 1995 (2) SACR 210
(W); S v Du Toit en Andere 2004 (1) SACR 341 (T).
[188] Competition Commission v Arcelormittal South Africa Ltd and Others 2013 (5) SA 538 (SCA).
[189] See R v Fouche 1953 (1) SA 440 (W). The requirement of “professional capacity” is fully discussed by Van
Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 53-60.
[190] 1997 (3) SA 93 (T). See also Mohamed v President of the Republic of South Africa and Others 2001 (2) SA
1145 (C) 1151.
[191] [1972] 2 QB All ER 353. See De Villiers 2011 SACJ 42.
[192] 2001 (2) SA 1145 (C) at 1154F-H.
[193] At 1156J.
[194] Danzfuss v Additional Magistrate, Bloemfontein, and Another 1981 (1) SA 115 (O).
[195] R v Fouche 1953 (1) SA 440 (W). However, in Smit & Maritz Attorneys and Another v Lourens NO and
Others 2002 (1) SACR 152 (W) 160g Van Oosten J held that “[t]he mere fact that a file is in an attorney’s possession
does not create legal professional privilege”. A document not compiled for purposes of legal advice, but handed over
to a lawyer, is not privileged. See R v Davies and Another 1956 (3) SA 52 (A).
[196] 1960 (3) SA 393 (D). See also Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1962 (2) SA 408
(C); Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and Marketing and Others 1979 (1)
SA 637 (C); Kelly v Pickering and Another (1) 1980 (2) SA 753 (R).
[197] 2014 (4) SA 549 (WCC).
[198] At [30].
[199] At [31].
[200] Lane and Another NNO v Magistrate, Wynberg 1997 (2) SA 869 (C) 885C.
[201] Competition Commission v Arcelormittal South Africa Ltd and Others 2013 (5) SA 538 (SCA). See for
example, in S v Kearney 1964 (2) SA 495 (A) the director of a company was charged with numerous counts of theft.
The admissibility of a statement that he had made to an attorney acting on behalf of somebody else in a separate
matter was disputed. The court found that this statement was a witness statement and had not been made for the
purpose of seeking legal advice. As the client on whose behalf the attorney was acting had waived attorney-client
privilege, the privilege could not be claimed by the accused.
[202] Paizes in Du Toit et al Commentary at 23-38A.
[203] General Accident, Fire & Life Assurance Corporation Ltd v Goldberg 1912 TPD 494.
[204] R v Smith 1914-1915 All ER 262; Harksen v Attorney-General, Cape, and Others 1999 (1) SA 718 (C). Cf S
v M 2000 (2) SACR 474 (N).
[205] S v Nkata and Others 1990 (4) SA 250 (A); Craig Smith and Associates v Minister of Home Affairs and
Others 2015 1 BCLR 81 (WCC).
[206] Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v Director, Office for Serious Economic Offences,
and Others 1996 (1) SA 785 (A); Kommissaris Van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051
(SCA).
[207] See Zeffertt & Paizes 682.
[208] See, eg, S v Nkata and Others 1990 (4) SA 250 (A).
[209] 1977 (2) SA 829 (A).
[210] General Accident, Fire and Life Assurance Corporation Ltd supra. See also Potter v South British Insurance
Co Ltd and Another 1963 (3) SA 5 (W); Bagwandeen and Others v City of Pietermaritzburg 1977 (3) SA 727 (N);
Tshikomba v Mutual & Federal Insurance Co Ltd 1995 (2) SA 124 (T).
[211] Supra.
[212] At 504.
[213] See S v Mnyaka and Others 1990 (4) SA 299 (SE).
[214] Andresen v Minister of Justice 1954 (2) SA 473 (W); Mandela v Minister of Prisons 1983 (1) SA 938 (A). See
also generally Haysom 1981 SACC 176; Cameron & Van Zyl Smit 1983 ASSAL 521; Unterhalter 1986 SAJHR 312
328.
[215] Supra.
[216] 1996 (1) SA 785 (A). See also Sasol III (Edms) Bpk v Minister van Wet en Orde en ’n Ander 1991 (3) SA
766 (T).
[217] However, the claim of privilege failed as it had not been claimed in the interests of the client but in the
appellants’ (who were attorneys) own interest. See also Momoniat v Minister of Law and Order and Others; Naidoo
and Others v Minister of Law and Order and Others 1986 (2) SA 264 (W).
[218] Lenz Township Co (Pty) Ltd v Munnick and Others 1959 (4) SA 567 (T) 574G-H. See also Van der Linde v
Calitz 1967 (2) SA 239 (A) 257F-G; Mohamed v President of the Republic of South Africa and Others 2001 (2) SA
1145 (C).
[219] 1998 (4) SA 296 (T).
[220] At 302F. See also n 39 in § 11 1 3 below.
[221] 2011 (2) SA 1 (SCA).
[222] At [52].
[223] A Company and Others v Commissioner, South African Revenue Service 2014 (4) SA 549 (WCC) at [38] and
[39].
[224] Mohamed supra 1159H-I. See also § 11 3 2 below.
[225] Klein v Attorney-General, Witwatersrand Local Division, and Another 1995 (2) SACR 210 (W). See also S v
Nkata and Others 1990 (4) SA 250 (A); S v Mushimba en Andere 1977 (2) SA 829 (A).
[226] 1995 (2) SA 433 (SE).
[227] Section 23 of the Interim Constitution.
[228] In terms of s 33(1) of the Interim Constitution.
[229] At 453C-457B.
[230] See Van Niekerk v Pretoria City Council 1997 (3) SA 839 (A). Cf Qozeleni v Minister of Law and Order and
Another 1994 (3) SA 625 (E); Mohamed v President of the Republic of South Africa and Others 2001 (2) SA 1145
(C).
[231] 1988 (1) SA 868 (A).
[232] At 887A-B.
[233] See, eg, Brits v Van Heerden 2001 (3) SA 257 (C) at 265.
[234] 1965 (4) SA 507 (A) 514. See also generally S v Fourie en ’n Ander 1972 (1) SA 341 (T); Msimang v Durban
City Council and Others 1972 (4) SA 333 (D) 338F; Kommissaris Van Binnelandse Inkomste v Van der Heever 1999
(3) SA 1051 (SCA).
[235] 2008 (1) SACR 613 (SCA).
[236] At [18]. Avontuur & Associates Inc and Another v Chief Magistrate, Oudtshoorn, and Others 2013 (1) SACR
615 (WCC) at [31]-[34].
[237] See also S v Boesman and Others 1990 (2) SACR 389 (E); Peacock v SA Eagle Insurance Co Ltd 1991 (1) SA
589 (C). See also S v Nhlapo and Others 1988 (3) SA 481 (T), in which, following the defence’s express waiver in
respect of one page of a statement, the court held that there had been an implied waiver of the document. See
Unterhalter 1988 ASSAL 449 for a criticism of this decision; Harksen v Attorney-General, Cape, and Others 1999 (1)
SA 718 (C) at 732H; Laws v Rutherfurd 1924 AD 261 and Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A).
[239] At paras 19 & 20.
[240] See Ex Parte Minister van Justisie: In Re S v Wagner supra.
[241] Van den Berg en ’n Ander v Streeklanddros, Vanderbijlpark en Andere 1985 (3) SA 960 (T); S v Tshomi and
Another 1983 (1) SA 1159 (C).
[242] Van den Berg v Streeklanddros, Vanderbijlpark supra. See further § 24 3 below.
[243] See S v Tshomi en ’n Ander supra; S v Toka en Andere 1990 (2) SACR 225 (T).
[244] See, eg, Trust Sentrum (Kaapstad) (Edms) Bpk and Another v Zevenberg and Another 1989 (1) SA 145 (C).
[245] Section 236(4) of the CPA; s 31 of the CPEA.
[246] Botha v Botha 1972 (2) SA 559 (N); Davis v Additional Magistrate, Johannesburg, and Others 1989 (4) SA
299 (W).
[247] See ss 77, 78 and 79 of the CPA, and especially s 79(7).
[248] Smit v Van Niekerk, NO en ’n Ander 1976 (4) SA 293 (A); S v B and Another 1980 (2) SA 946 (A). See Van
der Vyver 1977 THRHR 217. See Freedman 1997 SACJ 74 who argues that the Constitution requires a broader
recognition of the categories of privileged communications. See also Van Dokkum 1996 SACJ 14. See also S v
Bierman 2002 (2) SACR 219 (CC) in which the Constitutional Court left the question open; and S v Mshumpa and
Another 2008 (1) SACR 126 (E) at 136a-e.
[249] Howe v Mabuya 1961 (2) SA 635 (N).
[250] Chantrey Martin v Martin 1953 2 All ER 691.
[251] The State v Pogrund 1961 (3) SA 868 (T); S v Cornelissen; Cornelissen v Zeelie NO en Andere 1994 (2)
SACR 41 (W), in which the court, whilst holding that there was no legally recognised privilege giving journalists
immunity from testifying, held that in the circumstances of the case the journalist had a just excuse for not
testifying. In Munusamy v Hefer NO and Others (Freedom of Expression Institute and Others as Amici Curiae) 2004
(5) SA 112 (O) the court held that Cornelissen’s case should not be interpreted as authority for the view that
journalists have the right only to be called as witnesses of the last resort.
[252] See Cornelissen supra.
[253] 2013 (2) SA 570 (GSJ). See also South African Broadcasting Corporation v Avusa Ltd and Another 2010 (1)
SA 280 (GSJ) at [30]-[31]; Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007
(5) SA 540 (SCA) [6]; Government of the Republic of South Africa v “Sunday Times” Newspaper and Another 1995
(2) SA 221 (T) at 227I-228A.
[254] Section 36 of the Constitution.
[256] Tapper Cross & Tapper on Evidence (2007) 499.
[257] See s 198 of the CPA and s 10 of the CPEA. A marriage includes an indigenous law marriage as well as a
marriage concluded under any system of religious law. See s 195(2) of the CPA and s 10A of the CPEA. See also
§ 22 11 2 below.
[259] See s 198(2) of the CPA and s 10(2) of the CPEA. However, widows or widowers cannot claim the privilege.
[260] Zeffertt & Paizes 707 state: “It has been suggested that the privilege not to answer questions which tend to
incriminate the other spouse must be regarded as excluded by implication in those cases in which one spouse is a
compellable witness in a prosecution against the other.”
[261] See Rumping v DPP 1962 3 All ER 256 (HL).
[262] Section 14 of the Interim Constitution. See generally S v Hammer and Others 1994 (2) SACR 496 (C).
[263] Read together with s 206 of the CPA.
[264] 1993 (2) SACR 487 (A). See also S v Manuel en Andere 1997 (2) SACR 505 (C) in which the court stressed
the importance of parental assistance; S v N 1997 (1) SACR 84 (Tk).
[265] In re A & M 61 AD 2d 426; 403 NYS 2d 375 (1978); People v Fitzgerald 101 Misc 2d 712; 422 NYS 2d 309.
[266] See Fourie 2008 SACJ 259; Van Dokkum 1994 SACJ 213. Article 2(21) of the African National Congress’
draft Bill of Rights gave recognition to parent-child privilege. See also S v Hammer and Others 1994 (2) SACR 496
(C), in which an 18-year-old accused, whilst in police custody, after receiving permission to write a letter to his
mother, asked a member of the South African Police Service to deliver the letter to his mother. The policeman,
instead of delivering the letter, read it and handed it over to the prosecution. Although the court did not base its
decision on the constitutional right to privacy, it found the evidence to be inadmissible in that it had been improperly
obtained. The court found that the policeman had in all probability committed an injuria against the accused, that he
had acted unlawfully and immorally in reading and handing the letter over to the Attorney-General, and that this was
a serious and deliberate breach of the accused’s common-law right to privacy. The court concluded that the evidence
was to be excluded as it had been unfairly obtained and to admit it would bring the administration of justice into
disrepute. This case should also be read in the context of ch 12 below. More specifically, see § 12 7 below.
Page 170
Chapter 11
State Privilege (Public Interest Immunity)
S E van der Merwe [*]
11 1 Introduction
11 1 1 Terminology
11 2 1 The decision in Van der Linde v Calitz
11 4 1 Communications tending to expose the methods used to investigate crimes
11 4 2 Communications tending to reveal the identity of an informer
11 4 4 The constitutionality of the informer’s privilege
11 4 5 Examples of statutes that exclude evidence of the identity of persons who
have a statutory duty to report
11 4 5 1 Section 38(3) of the Financial Intelligence Centre Act 38 of 2001
(FICA)
11 4 5 2 Section 17(9) of the Protection of Constitutional Democracy
against Terrorist and Related Activities Act 33 of 2004
11 5 1 1 Disclosure of contents not the equivalent of further particulars
to the charge
11 5 1 2 Information which only becomes available after commencement
of the trial
11 5 1 3 The position of the undefended accused
11 5 1 4 Position of suspects
11 5 1 5 Further procedural and evidential matters
11 5 1 6 Cross-examination on the basis of the state witness’ statement
11 5 1 7 Abolition of the blanket docket privilege: defence interviews
with (potential) state witnesses
Page 171

11 6 The Promotion of Access to Information Act 2 of 2000
11 6 1 The PAIA and mandatory protection of records privileged from production in
legal proceedings
11 6 2 Non-applicability of the PAIA to records required for criminal or civil
proceedings after commencement of such proceedings
11 1 Introduction
Relevant and otherwise admissible evidence may be withheld or excluded on the ground that
its production or admission would be against public policy [1] or harmful to the public
interest. [2] This rule — which is usually applied to documents but which can also cover real
and oral evidence — is an English common-law rule. It has found its way into the Anglo-
South African law of evidence on account of early local statutory references to the law as
applied in the “Supreme Court of Judicature in England”. [3] These references were replaced
by “thirtieth day of May 1961” provisions currently contained in s 202 of the CPA [4] and s 42
of the CPEA. [5]
A good example of the application of the common-law rule is found in Duncan v Cammell
Laird & Co Ltd [6] which was decided in 1942. This case involved an action for personal
damages after a submarine, Thetis, had sunk during trials. Negligence was alleged. The
plaintiff sought discovery of certain documents which would have disclosed the design of a
new submarine and which related to contracts between the defendants and the admiralty.
The admiralty resisted, claiming that disclosure would be harmful to the public interest in
that national security was at stake. The House of Lords held that disclosure would be
harmful to the public interest. Although the procedure approved by the House of Lords in
deciding the issue has been criticised, [7] it is generally accepted that a finding in favour of
non-disclosure would at any rate
Page 172
have been correct. [8] Disclosure could have resulted in assisting the nation’s enemies in
understanding the design of a new submarine — and the United Kingdom was at that time
engaged in a perilous war. Cases like Duncan illustrate the need for the existence of the rule
under discussion. [9] In the extreme circumstances which existed in Duncan, the public
interest that a court should uphold — and a litigant should be entitled to rely upon — “the
principle of unimpeded access to information”, [10] is obviously outweighed by the public
interest that national security should not be endangered in times of war.
Public interest is the controlling factor, [11] and much would depend on the factual
circumstances. It has been said — with reference to the facts in the Duncan case — that “the
public interest in the security even of such pieces of information is ephemeral and could
hardly prevail once the campaign had been fought, or the design of the submarine become
common knowledge”. [12]
At first glance it might seem as if there could be an extremely wide variety of situations
where public interest might demand exclusion. However, over the past 50 years courts have
for obvious reasons succeeded in restricting the application of this privilege. For purposes of
this chapter, only the following areas of application will be emphasised: matters concerning
|state affairs (see §§ 11 2 to 11 3 2 below); protection of police methods of investigation
(see § 11 4 1 below); the informer’s privilege (see §§ 11 4 2 to 11 4 4 below); and access to
information in police dockets (see §§ 11 5 to 11 5 1 7 below).
11 1 1 Terminology
Exclusion on account of public interest was for many years referred to as “crown privilege”
and became known as “state privilege” when South Africa became a Republic. The use of the
word “crown” (or “state” as the case may be) calls to mind that “much of the law relating to
public
Page 173
interest immunity was developed by the courts in cases concerned with the highest affairs of
state, such as national security, state secrets in times of war and matters of great diplomatic
importance; [13] and in these instances “most claims to the immunity were made on behalf of
central government by ministers of the Crown”. [14] However, over the past three decades
the English courts [15] and authors [16] have for various reasons preferred to refer to “public
interest immunity” rather than “crown privilege”: the public interest to be protected is not
confined to the crown “in the sense of the executive or local government [and] may be an
interest in the work of local authorities or non-governmental bodies”; [17] the crown need not
be a party to the case; and the rule, it has often been claimed, is not a privilege in the true
sense of the word. In Makanjuola v Commissioner of Police of the Metropolis Bingham LJ
said: [18]
“Where a litigant asserts that documents are immune from production or disclosure on public interest
grounds he is not (if the claim is well founded) claiming a right but observing a duty. Public interest
immunity is not a trump card vouchsafed to certain players to play when and as they wish. It is an
exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage
in the litigation.”
The above approach explains why it is generally accepted that waiver is not possible where
the public interest demands exclusion. It also explains why the court must — in the absence
of any claim — raise the matter of its own accord. [19]
In South Africa it remains customary to refer to the rule of exclusion on account of public
interest, as a “privilege”. However, it is possible that this term would, for purposes of the
constitutionally required balancing exercise as set out in § 11 3 2 below, simply disappear.
Schmidt and Rademeyer also use the term “openbare privilegie” (‘public privilege’) but
acknowledge that this privilege requires, on questions concerning waiver and the use of
secondary evidence, an approach fundamentally different from that which prevails in respect
of private privilege. [20] The real and perceived differences between public and private
privilege are dealt with in § 11 1 2 below. If these distinctions are borne in mind, the use of
the concept “public privilege” is acceptable.

These differences were also briefly referred to in § 10 1 above. As a general principle, it may
be said that public privilege exists where the public interest in non-disclosure outweighs the
public interest that the administration of justice
Page 174
should not be hampered. This general principle also applies to those categories of private
privilege which were identified in the previous chapter: there are certain private interests
which should in the public interest prevail over the principle that there should in the public
interest be disclosure of and access to all relevant information for purposes of litigation. It
has been said, for example, that “public interest is . . . served” by legal professional
privilege [21] and that the protection of public interest forms the basis of public as well as
private privileges. [22] However, this common basis should not blur the following fundamental
differences which exist between public and private privileges:
(a) Secondary or circumstantial evidence is admissible to prove a matter protected in
terms of private privilege. [23] But such evidence is generally inadmissible in respect of
public privilege. [24] This means, for example, that where documents are in the public
interest protected from disclosure in order to protect the safety of the state, a party
would not be permitted to adduce copies of such documents or oral evidence pertaining
to the contents of such documents. [25] Nor would it be permissible to use such a
document for purposes of cross-examination.
(b) A party to whom a private privilege attaches, may waive the privilege provided he or
she does so voluntarily, knowingly and intelligently. [26] However, in respect of a public
privilege like state privilege which involves, for example, documents relating to
national defence or diplomatic relations, it would seem as if a valid waiver is possible
only on the clear authority of the ministerial head of the government department
concerned. [27]
(c) Private privilege must be claimed by the holder thereof. The court may not claim the
privilege on behalf of the holder. [28] The court must, however, ensure that the holder is
aware of his or her private privilege, for example, the privilege against self-
incrimination [29] or marital privilege. In respect of public privilege the court may in
appropriate circumstances uphold the privilege mero motu, [30] for example, on issues
concerning national security [31] or where the informer’s privilege comes into play. [32]
Page 175

Much of the historical development of exclusion on grounds of public interest immunity
concerned the following issue: is the executive’s claim that information attracts non-
disclosure on account of public interest final in the sense that, if it is made in proper form,
the court has no discretion to order disclosure?
As early as 1860 the English courts were inclined to accept that the executive had the
final say not only in all matters affecting the security of the state, but also in non-security
matters like cabinet minutes and even documents which merely related to the proper
functioning of the public service. [33] This approach culminated in 1942 in Duncan v Cammell
Laird & Co Ltd (as discussed in § 11 1 above) where the House of Lords unanimously held
that a court could never question the crown’s claim to (what was then known as) crown
privilege if such claim was made in proper form. This rule, it was held, applied to the
contents of individual documents (so-called “contents claims”) as well as classes of
documents (so called “class claims”). [34] Despite severe criticism of and judicial
dissatisfaction with this rule which effectively ousted the court’s jurisdiction, it was only in
1968 in the decision in Conway v Rimmer that the House of Lords reasserted judicial control
over the exclusion of evidence on the ground of state privilege. [35] Conway v Rimmer did not
concern national safety or defence secrets or other high-level affairs of state, but certainly
established the principle that absolute judicial submission or deference to the view of the
executive on matters relating to public interest immunity was unacceptable.
The present position in England is that there are no classes of documents, relating to
high-level affairs of state, which are absolutely immune from production. [36] The court may
inspect a document in private. [37] However, in Balfour v Foreign Office it was said that once
an actual or potential risk to national safety is demonstrated by a certificate in proper form,
the court should not exercise its right to inspect. [38] Dennis takes a critical view of this
approach:
Page 176
“This goes too far; where the applicant can show convincingly that the document would
materially assist his case the court should be prepared to consider inspection, since it might
be possible to order partial disclosure, or restricted disclosure to the applicant’s legal
advisers.” [39]

11 2 1 The decision in Van der Linde v Calitz [40]
In this case (decided in 1967) the South African Appellate Division broke away from the
1942 decision Duncan v Cammell Laird & Co Ltd (see § 11 1 3 above) in which the House of
Lords had decided that ministerial objection, if taken in proper form, was final and binding.
Despite the fact the Appellate Division was technically required, by the 30 May 1961
provision, to have followed Duncan, [41] it gave preference to the 1931 Privy Council decision
Robinson v State of South Australia (No 2) [42] in which it was held that courts had a residual
power to determine — at least in class claims — whether executive objection had to be
upheld. The Appellate Division decision in Van der Linde was vindicated by the House of
Lords in Conway v Rimmer (as discussed in § 11 1 3 above) in which judicial control over
executive objection concerning non-security matters was reasserted. According to Mathews
“the common law in England and South Africa was in the process of freeing itself from the
deadening grip of . . . Duncan . . .” [43] But in South Africa this healthy development was
brought to an abrupt end by legislation.

Van der Linde’s case theoretically opened the door for a future finding that courts should
also have the final say in matters affecting national security. However, s 29 of the General
Law Amendment Act 101 of 1969 effectively reversed Van der Linde by bestowing on the
executive “an absolute and unquestionable power” [44] to withhold evidence from a court of
law if in the opinion of the executive the disclosure of such evidence was “prejudicial to the
interests of the State or public security”. [45] No reasons were required and the executive’s
certificate, if presented in proper form by the appropriate minister or official, was conclusive.
Academic and judicial protest followed. [46] And after the decision in Geldenhuys v
Pretorius [47]
Page 177
and the appointment of a commission of enquiry, [48] s 29 of Act 101 of 1969 was amended
by s 25 of the General Law Amendment Act 102 of 1972. This amendment ousted the
jurisdiction of the courts only where prejudice to national security formed the basis of an
assertion of state privilege by the executive. In 1982 the 1972 amendment was replaced by
s 66 of the Internal Security Act 74 of 1982. [49] This section re-affirmed that the executive
had the final say on matters affecting the security of the state, [50] whereas in non-security
cases the courts retained their jurisdiction. [51] Section 66 of Act 74 of 1982 was repealed on
15 November 1996. [52]

The repeal of s 66 of the Internal Security Act 74 of 1982 came in the wake of the Interim
Constitution and some six months before the final Constitution came into operation. Section
66(1) which ousted the courts’ jurisdiction on matters affecting state security, would in the
light of the following constitutional provisions not have withstood constitutional scrutiny: [53]
s 165 which vests the judicial authority in the courts and which confirms, in principle, that a
separation of powers [54] cannot tolerate a situation where the executive can have the final
say in matters concerning the admissibility of evidence in courts of law; s 32 which provides
for the right of access to information held by the state; [55] s 34 which provides for access to
courts and a fair hearing; and s 35(3)(i) which provides that “[e]very accused person has a
right to a fair trial . . . which includes the right to adduce . . . evidence.”

On the basis of the Constitutional rights and principles identified in § 11 3 1 above and some
cases decided since 1994, it
Page 178
would appear that the traditional state privilege [56] claims must now be dealt with in terms
of a broad balancing exercise which demands a consideration of [57]
“. . . all germane factors which include the nature of the proceedings; the extent and character of the
materials sought to be kept confidential; the connection of the information to national security; the
grounds advanced for claiming disclosure or for refusing it; whether the information is already in the
public domain and if so, in what circumstances it reached the public domain; for how long and to what
extent it has been in the public domain; and finally, the impact of the disclosure or non-disclosure on
the ultimate fairness of the proceedings before a court”.
The test is whether disclosure, or non-disclosure, would be in the interests of justice when
two or more competing claims are assessed. In a matter dealt with by the Constitutional
Court, the competing claims identified were the right to open justice (disclosure) and the
constitutionally based “power and duty of the executive to make and implement national
security” for the well-being of the people (non-disclosure). [58] The court is entitled to
examine the evidence to establish the extent to which the interests of justice are affected.
This means that the jurisdiction of the court is not ousted and that the court is not bound by
the ipse dixit of the cabinet minister concerned or any bureaucrat like the director-general of
a state department. The Constitutional Court seems to accept that there should be no onus.
The court is entitled to a “judicial peek,” [59] that is, to examine the documents concerned
and to do so regardless of any possible classification such as “national security”, “diplomatic
relations” or “cabinet minutes” (see § 11 1 3 above).
It is submitted that a further principle of procedure should be added to the ones identified
above: a court which has inspected a document in private (the so-called “judicial peek”),
should, where appropriate, consider partial disclosure of the contents thereof [60] —
especially where such partial disclosure creates no distortion and can still effectively protect
that which in the opinion of the court cannot on account of public interest be disclosed. [61]
Of ultimate and crucial importance, is the fact that courts of law should have the final
say. [62] In his critical analysis of the repealed legislation referred to in § 11 2 2 above,
Mathews stated: [63]
Page 179
“The vital interests that are at issue in state privilege cases make it important that the resolution of
the conflict between the state, when it asserts privilege, and a litigant who seeks access to the
officially withheld information, should be under the control of independent courts . . . [T]hese
interests transcend those of the nominal parties to the dispute and their importance demands a
judicious weighing-up of the respective claims of each in the context of relevant facts. The courts are
best equipped to balance the conflicting interests in a dispassionate and fair-minded way and to
decide in particular which interest should prevail.”

In order to promote efficient detection of crime a privilege has arisen to protect
communications which would reveal the identity of an informer or otherwise expose the
channels of communication in the investigation of a crime, such as communications between
officials in the course of an investigation. This privilege, being an aspect of state privilege, is
governed by s 202 of the CPA, and accordingly rests for its authority on English law. The
rationale underlying this principle is reflected by the remarks of Solomon J: “The whole
business of crime is conducted in secret and devious ways against the interests of the state,
and the work of defeating the operations of criminals must also be conducted, obviously, by
similar methods.” [64]
11 4 1 Communications tending to expose the methods used to

investigate crimes [65]
In R v Abelson [66] the accused was charged with contravening a Liquor Act. He called as a
witness the divisional criminal investigation officer for the Witwatersrand, who, when asked
to produce certain reports made to him by two detectives concerning the charges, refused
on the ground that such reports were confidential. The court upheld the claim of privilege,
holding that the disclosure of the evidence would be contrary to public policy as it would lay
bare to the public the methods used by the police to control the liquor traffic. And in The
State v Peake, [67] where the police had used a tape recorder to record a conversation, the
court disallowed cross-examination relating to the manner in which the recording had been
obtained, even though the recording itself was admissible evidence. Of course, in our
present constitutionalized system courts will have to be careful to ensure that any claim to
privilege concerning methods of investigation is not merely an attempt to cover up the fact
that evidence was unconstitutionally obtained. Evidence of conversations which
Page 180
were unlawfully recorded (and thus in breach of the right to privacy) might have to be
excluded in terms of s 35(5) of the Constitution. [68]
11 4 2 Communications tending to reveal the identity of an informer [69]
There are at least three reasons for the so-called “informer’s privilege”: (a) to protect the
informer and his family from those against whom he informs; (b) to ensure that the informer
can be used in future; and (c) to encourage the public to come forward with information
about crimes. The rule, accordingly, is that no question may be asked and no document may
be received in evidence that would tend to reveal the identity of an informer or the content
of the information supplied by him, and there is a duty on the court to ensure that this
privilege is upheld regardless of whether or not the parties to the litigation claim it. [70]
After a period in our law when, owing to different procedures regarding prosecutions in
South Africa and England, our courts adopted a more stringent practice of exclusion, it was
settled in Ex Parte Minister of Justice: In Re Rex v Pillay and Others that the privilege should
only operate [71]
“. . . when public policy requires the name of the informer or his information to be kept secret,
because of some confidential relationship between the state and the informer, or because the state
desires its sources of information to be kept secret for the reason that the informer’s information
relates to matters in respect of which he might not inform if he were not protected, or for the reason
that the candour and completeness of his communications might be prejudiced if he were not
protected, or for some other good reason. To give a comprehensive definition which will include all
such cases would be impossible.”
Page 181
The Chief Justice then gave examples of instances where the rule could appropriately be
relaxed: (a) when it is material to the ends of justice; (b) if it is necessary or right to do so
to show the accused’s innocence; and (c) when the reason for secrecy no longer exists, for
example, when the identity of the informer is known. [72]
It seems to have been a subject of controversy in our law whether this privilege may be
waived, and, if it can, in what circumstances. It has been held that the protection afforded
an informer is a matter of public policy and cannot be waived. [73] This view was also taken
by the court in Natal Fertilizers Ltd v Van Dam, [74] where Dove-Wilson JP held that the
privilege would be upheld even if the informer were willing to divulge his identity in the
witness-box; he would “be protected in spite of himself”. And again, in Robinson v Benson &
Simpson [75] the court emphasised that as the privilege did not pertain to the witness who
was called, but rested on public policy, the court was “absolutely prohibited” from allowing
such information to be disclosed. These views were, however, rejected by the Appellate
Division in Rex v Van Schalkwyk, [76] where Stratford CJ approved the following approach laid
down by Tatham J in R v Harris: [77]
“The rule protecting an informer is based upon the theory that public policy requires his protection,
because otherwise persons would be discouraged from giving information, but it is difficult to see how
public policy is served by prohibiting him from himself disclosing the fact, indeed public interests
would be ill-served in many cases if there were any such rule.”
An important qualification to this principle was added, however, by Tatham J and endorsed
in Rex v Van Schalkwyk: [78] if the dictates of public policy would require that the identity of
the informer be kept secret, then, provided this is shown by the state, such evidence should
be excluded notwithstanding the informer’s willingness to disclose his identity. [79]
The informer’s privilege should as a rule also apply for purposes of any civil action which
might stem from the police investigation. In
Page 182
Els v Minister of Safety and Security — where the applicant sought disclosure of an
informer’s identity for purposes of instituting a civil action — Kriek JP, in refusing the
application on several grounds, said: [80]
“The effect of obliging the police to reveal the identity of the informer in this case will probably have
far-reaching effects. I accept that there will be cases in which it will be in the public interest or in the
interests of justice to order the disclosure of the identity of an informer, but I consider that such
orders should not be made lightly. The informer system is one of the corner-stones of the battle
against organized crime, and when the identity of one informer is made known, other informers, or
would be informers . . . will desist from informing or reconsider their positions as informers, not only
to avoid retaliatory action, but also to avoid civil actions being instituted against them.”
The constitutionality of the informer’s privilege in civil and criminal cases is discussed in
§ 11 4 4 below.

In the English case Blake and Austin v Director of Public Prosecutions [81] the accused were
convicted of indecent behaviour in a church yard in contravention of s 2 of Ecclesiastical
Courts Jurisdiction Act of 1860. Two police officers had observed the activities of the accused
from an observation post in neighbouring domestic premises. The court held that there was
no reason why the precise location from which the observation had been made had to be
disclosed: there is no essential difference between informers and the providers of
observations posts, who both in different ways provide the police with indispensable
assistance in the prevention of crime. There does not seem to be any South African decision
on this very point. There is, however, ample English authority to support the decision in
Blake and Austin v Director of Public Prosecutions. [82]
It is submitted that these decisions should be followed in South Africa. After all, it is
nothing else but the practical combination of the informer’s privilege and the privilege which
relates to police methods of investigation (see § 11 4 1 above).
11 4 4 The constitutionality of the informer’s privilege [83]
In McCray v Illinois [84] an informer gave three police officers information that someone (M)
was dealing in drugs. The informer accompanied the police in their vehicle to a street where
M was talking to people. The informer pointed
Page 183
out M and then left on foot. When M spotted the police vehicle he hurriedly disappeared
between two buildings. Two of the officers promptly arrested M on the basis that they had
probable cause for an arrest and search without a warrant. The informer concerned was
known to them as someone who had always furnished them with accurate information on
drug dealers. Heroin was found on M. At a preliminary hearing defence counsel asked each
of the officers to disclose the identity of the informer. In both instances the prosecution
objected successfully. M eventually took the matter to the Supreme Court of the United
States, claiming that his constitutional right to due process had been violated and that he
was given no opportunity to confront and cross-examine the informer. The Supreme Court
rejected M’s argument and pointed out that there was no due process violation if the police
had made the arrest and search in reliance upon facts furnished by an informer whom they
had reason to trust: nothing in due process requires that a court must assume that the
police were committing perjury. The informer was not a material witness. The Supreme
Court distinguished M’s case from Roviaro v United States, [85] which was decided a decade
earlier. In the latter case the Supreme Court had confirmed that there could be no fixed rule
as regards disclosure of the identity of an informer. A balance must be struck between the
public interest and the right of the individual to prepare and present his defence. In Roviaro
v United States Burton J held that where the disclosure of the informer’s identity or
disclosure of the contents of his communications is relevant and helpful to the accused, the
privilege must be lifted. On the facts in Roviaro v United States it was held that the trial
court had erred in refusing disclosure of the identity of the informer concerned. The informer
was with the accused when the alleged crime was committed and could have been a material
witness on the issue whether the accused had knowingly transported the drugs as charged.
The above two cases make it clear that the informer’s privilege per se is not
unconstitutional, [86] but that the constitutional right to a fair trial must be considered in
deciding whether the privilege must give way. It is submitted that this approach not merely
confirms but also expands the common-law principles which govern the relaxation of the
informer’s privilege and which were set out in § 11 4 2 above. It is also submitted that the
broader impact of the Constitution on the informer’s privilege was correctly put by Kriek JP
in Els v Minister of Safety and Security where he said that [87]
“the advent of the new Constitution should not, in the public interest, have the effect of watering
down the informer privilege to any significant extent, even though it does vest in the courts a wider
discretion to enforce disclosure of the identity of informers than they previously had . . . [E]ven
though appellant denies . . . ever having possessed counterfeit money there is nothing in the papers
to suggest that the informer was ‘mendacious and malicious’, or that the police had any reason to
suspect that he was . . . In any event, the opportunity which the applicant will have of exercising and
protecting his rights, and of being awarded damages (which he may or may not recover) if the
identity of the informer is
Page 184
disclosed, cannot in my view be of greater public importance than the protection, insofar as is legally
permissible, of the privilege attaching to informers, and this, in my view, is a case in which it ought to
be protected.”
11 4 5 Examples of statutes that exclude evidence of the identity of

persons who have a statutory duty to report
11 4 5 1 Section 38(3) of the Financial Intelligence Centre Act 38 of 2001 (FICA)
This subsection provides as follows:
“No evidence concerning the identity of a person who has made, initiated or contributed to a report in
terms of sections 28, 29 or 31 or who has furnished additional information concerning such a report or
the grounds for such a report in terms of a provision of this Part, or the contents or nature of such
additional information or grounds, is admissible as evidence in criminal proceedings unless that
person testifies at those proceedings.”
The sections referred to in 38(3) of FICA cover the following financial activities: cash
transactions above prescribed limit (s 28); suspicious and unusual transactions (s 29) and
conveyance of cash to or from South Africa (s 31). It should be noted that protection of
identity is in terms of s 38(3) confined to criminal proceedings and also ceases to exist
should the person concerned testify at these proceedings. However, s 38(2) of FICA also
provides that the person concerned “is competent, but not compellable, to give evidence in
criminal proceedings arising from the report” (see also n 7 to § 22 2 below).
11 4 5 2 Section 17(9) of the Protection of Constitutional Democracy against
Terrorist and Related Activities Act 33 of 2004
This subsection provides as follows:
“No evidence concerning the identity of a person who has made, initiated or contributed to a report in
terms of section 12(1) concerning a suspicion that any other person intends to commit or has
committed an offence referred to in section 4, is admissible as evidence in criminal proceedings unless
that person testifies at those proceedings.”
Section 4 of Act 33 of 2004 creates offences connected with financing of certain offences.
And s 12(1) requires an individual to report certain criminal conduct as identified in the Act.
In terms of s 17(9) the protection of identity only applies for purposes of criminal
proceedings and falls away should the individual be a witness at such proceedings. However,
the individual concerned is in terms of s 17(8) a competent but not compellable witness (see
n 7 to § 22 2 below).

Prior to constitutionalization it was generally accepted that the state had some kind of
“blanket docket privilege” in terms of which statements obtained for purposes of a criminal
trial were as a
Page 185
rule privileged from disclosure [88] in much the same way as parties in a civil dispute can
claim privilege in respect of statements obtained from their respective witnesses. [89]
The prosecution’s so-called docket privilege which, as will be shown, has now shrunk
drastically on account of constitutional provisions was and is not really part of “state
privilege” in the true sense of the word. In this work, however, it is dealt with in the context
of state privilege because matters which fall under state privilege (the informer’s privilege,
state secrets, police methods of investigation) are now for all practical purposes the main
(but most certainly not sole) grounds upon which the state can seek to withhold statements
in the police docket. In the past all statements — other than a statement obtained from the
accused [90] and certain documents such as an identification parade form [91] — could have
been withheld simply because these statements were obtained for purposes of the criminal
trial. [92] The “blanket docket privilege” — sometimes also referred to as “witness statement
privilege” — did not survive chapter 3 of the Interim Constitution: it conflicted with the
provisions of ss 23 [93] and 25(3) [94] of the Interim Constitution. After a spate of conflicting
Supreme Court decisions and several academic opinions, [95] the Constitutional Court finally
resolved the matter in Shabalala and Others v Attorney-General of Transvaal and Another
and made an order declaring that: [96]
“1. The ‘blanket docket privilege’ expressed by the rule in R v Steyn 1954 (1) SA 324 (A) is
inconsistent with the Constitution to the extent to which it protects from disclosure all the
documents in a police docket, in all circumstances, regardless as to whether or not such
disclosure is justified for the purposes of enabling the accused properly to exercise his or her
right to a fair trial in terms of s 25(3).
2. The claim of the accused for access to documents in the police docket cannot be defeated
merely on the grounds that such contents are protected by a blanket privilege in terms of the
decision in Steyn’s case.
3. Ordinarily an accused person should be entitled to have access to documents in the police
docket which are exculpatory (or which are prima facie likely to be helpful to
Page 186
the defence) unless, in very rare cases, the State is able to justify the refusal of such access on
the grounds that it is not justified for the purposes of a fair trial.
4. Ordinarily the right to a fair trial would include access to the statements of witnesses (whether
or not the State intends to call such witnesses) and such of the contents of a police docket as
are relevant in order to enable an accused person properly to exercise that right, but the
prosecution may, in a particular case, be able to justify the denial of such access on the grounds
that it is not justified for the purposes of a fair trial. This would depend on the circumstances of
each case.
5. The State is entitled to resist a claim by the accused for access to any particular document in the
police docket on the grounds that such access is not justified for the purposes of enabling the
accused properly to exercise his or her right to a fair trial or on the ground that it has reason to
believe that there is a reasonable risk that access to the relevant document would lead to the
disclosure of the identity of an informer or State secrets or on the grounds that there was a
reasonable risk that such disclosure might lead to the intimidation of witnesses or otherwise
prejudice the proper ends of justice.
6. Even where the State has satisfied the court that the denial of access to the relevant documents
is justified on the grounds set out in paragraph 5 hereof, it does not follow that access to such
statements, either then or subsequently, must necessarily be denied to the accused. The court
still retains a discretion. It should balance the degree of risk involved in attracting the potential
prejudicial consequences for the proper ends of justice referred to in paragraph 5 (if such access
is permitted) against the degree of the risk that a fair trial may not ensure for the accused (if
such access is denied). A ruling by the court pursuant to this paragraph shall be an interlocutory
ruling subject to further amendment, review or recall in the light of circumstances disclosed by
the further course of the trial.”
An important point to note in respect of the above Constitutional Court order is that it also
fully accommodated s 22 of the Interim Constitution and s 34 of the Constitution, that is, the
fundamental right to have justiciable disputes settled by a court of law. The court can now in
all cases decide on the issue of disclosure — and it must exercise this discretion in the
context of the constitutional right of the accused to a fair trial and such legitimate claims
that the state may have, for example, state privilege and protection of witnesses from
possible intimidation. The right to have access to information did not form the basis of the
decision.
11 5 1 1 Disclosure of contents not the equivalent of further particulars to the
charge
In terms of s 87 of the CPA the defence may request — and the court may order — that
further particulars of the charge be furnished by the state before any evidence is led. [97] The
state is bound by such further particulars and “the trial shall proceed as if the charge [has]
been amended in conformity with such particulars”. [98] However, it has been held that the
state’s disclosure of the contents of the police docket to the defence, does not amount to the
furnishing of further particulars as envisaged in terms of s 87 [99] — not even where the
defence has incorrectly relied on s 87 in requesting and obtaining
Page 187
access to the police docket [100] (see § 11 5 1 5 below). The contents of the police docket
therefore do not bind the state as far as its allegations in the charge are concerned. [101] This
approach is not inconsistent with the Constitutional Court’s decision in Shabalala (as set out
in § 11 5 1 above). In Shabalala it was neither held nor implied that disclosure of the
contents of the police docket should have the binding effect of further particulars as
envisaged by s 87 of the CPA. The abolition of the blanket docket privilege was necessary to
protect the constitutional right to a fair trial (giving the defence advance notice of the factual
allegations the state would seek to prove, enabling it to take proper instructions from the
accused and to prepare for cross-examination).
11 5 1 2 Information which only becomes available after commencement of the
trial
Late disclosure of information to the defence on account of the fact that a state witness
came forward (or a document was discovered) only after the commencement of the trial,
would normally not preclude the state from calling this witness (or using the document). [102]
It is only if the “late evidence” would result in an unfair trial, that exclusion on that ground
alone would be justified. [103]
11 5 1 3 The position of the undefended accused
Accused persons are entitled to be informed by the court of their right to have access to the
contents of the police docket. [104] But the court’s failure to do so, is not necessarily a fatal
irregularity vitiating the proceedings. [105]
11 5 1 4 Position of suspects
Suspects who are asked by investigating officials to respond to allegations based on
information contained in the police docket,
Page 188
are not entitled to have access to the docket. [106] At this investigative stage they do not
(yet) have the status of an accused that can rely on Shabalala’s abolition of the docket
privilege. [107]
11 5 1 5 Further procedural and evidential matters
A request for further particulars in terms of s 87 of the CPA (see § 11 5 1 1 above) is not the
correct method of obtaining access to information to the police docket. [108] Access to the
docket should be requested by way of a written notice to the prosecution. [109] There is no
legislation that prescribes the procedure. In practice an oral request and a positive response
from the state have become the norm. In the event of a dispute, the court must be asked
for a directive. [110] For this purpose the court may inspect the relevant documents and
statements in the docket (the so-called “judicial peep” as referred to in § 11 3 2 above) and,
if necessary, also hear oral evidence. [111] If appropriate, a trial within a trial (see generally
§ 16 7 4 below) may be held. [112] The state must satisfy the court that its refusal is
justified. [113] But even if it were to do so, the court retains a discretion. [114] The court should
balance the degree of the risks of disclosure against “the degree of the risk that a fair trial
may not ensue for the accused . . . if . . . access is denied . . .” [115] The court’s decision to
refuse access is interlocutory, and may therefore be reversed by the court itself should
further circumstances come to light in the course of the trial. [116]
11 5 1 6 Cross-examination on the basis of the state witness’ statement
The defence may, of course, use a state witness’ statement, obtained in terms of Shabalala
(see § 11 5 above), for purposes of cross-examination, for example, to point out
discrepancies. However, cross-examination of this nature remains subject to the rules of
evidence and the admissibility of statements. It must, for example, be proved (in compliance
with the rule as set out in § 25 4 below)
Page 189
that the statement concerned was indeed properly deposed to by the witness. [117]
Furthermore, whilst statements of persons who have not yet testified may be provisionally
used in cross-examining a witness, such a course may not be followed unless it appears that
those other persons will indeed be called as either state or defence witnesses. [118] It follows
that statements obtained in terms of Shabalala do not have any special status as regards
admissibility.
11 5 1 7 Abolition of the blanket docket privilege: defence interviews with
(potential) state witnesses
Closely linked to — and almost a natural or inevitable extension of — the former “blanket
docket privilege” was the ethical rule of practice that the defence could not without the
consent of the prosecution have had interviews with (potential) state witnesses. [119] In
Shabalala and Others v Attorney-General of Transvaal and Another the Constitutional Court
also addressed this matter by making the following order: [120]
“1. Insofar and to the extent that the rule of practice pertaining to the right of an accused or his
legal representative to consult with witnesses for the State prohibits such consultation without
the permission of the prosecuting authority, in all cases and regardless of the circumstances, it
is not consistent with the Constitution.
2. An accused person has a right to consult a State witness without prior permission of the
prosecuting authority in circumstances where his or her right to a fair trial would be impaired, if,
on the special facts of a particular case, the accused cannot properly obtain a fair trial without
such consultation.
3. The accused or his or her legal representative should in such circumstances approach the
Attorney-General or an official authorised by the Attorney-General for consent to hold such
consultation. If such consent is granted the Attorney-General or such official shall be entitled to
be present at such consultation and to record what transpires during the consultation. If the
consent of the Attorney-General is refused the accused shall be entitled to approach the court
for such permission to consult the relevant witness.
4. The right referred to in paragraph 2 does not entitle an accused person to compel such
consultation with a State witness:
(a) if such State witness declines to be so consulted; or
(b) if it is established on behalf of the State that it has reasonable grounds to believe such
consultation might lead to the intimidation of the witness or a tampering with his or her
evidence or that it might lead to the disclosure of State secrets or the identity of informers
or that it might otherwise prejudice the proper ends of justice.
5. Even in the circumstances referred to in paragraph 4(b), the court may, in the circumstances of
a particular case, exercise a discretion to permit such consultation in the interest of justice
subject to suitable safeguards.”
Once again, it should be noted that the ultimate power to regulate the matter is in the hands
of the court. The constitutional right to a fair trial governs the issue; and the constitutional
right to have access to information held by the state was not the basis of the Constitutional
Court’s decision.
Page 190

In § 11 5 1 above it was pointed out that in Shabalala and Others v Attorney-General of
Transvaal and Another [121] the Constitutional Court held that an accused’s claim to have
access to material in the police docket, could not be rejected merely on the grounds that
such material is protected by a blanket privilege in terms of the decision in R v Steyn. [122]
Unfortunately, Shabalala gave rise to the erroneous perception that the defence had
extensive rights of access even at the bail stage (as opposed to access for purposes of a fair
trial). Legislation became necessary to ensure that premature disclosure could be prevented.
Section 60(14) of the CPA provides that “[n]otwithstanding anything to the contrary
contained in any law, no accused shall, for the purposes of bail proceedings, have access to
any information, record or document relating to the offence in question, which is contained
in or forms part of a police docket . . . unless the prosecutor otherwise directs . . .” There is
also a proviso to the effect that this subsection “shall not be construed as denying an
accused access to any information, record or document to which he . . . may be entitled for
purposes of his . . . trial.” [123] This proviso was necessary to ensure that s 60(14) would not
be in conflict with the decision in Shabalala.
The constitutional validity of that part of s 60(14) which empowers a prosecutor to deny a
bail applicant access to the contents of the police docket, was confirmed in S v Dlamini; S v
Dladla and Others; S v Joubert; S v Schietekat. [124] The Constitutional Court, however,
noted that s 60(14) should not be read as sanctioning a flat refusal on the part of the
prosecution to divulge any information relating to the pending charge(s) against a bail
applicant. And it was also suggested that a court may very well have to order the
prosecution to lift the veil in order to give a bail applicant a reasonable opportunity as
required by s 60(11) of the CPA, a section which places the burden of proof on a bail
applicant in certain circumstances. It has been held that s 60(14) vests a discretion — but
not an unfettered discretion — in the prosecution to refuse to disclose information in the
docket. [125]
Factual circumstances in a bail application may be such that a court must, on the basis of
s 60(3) [126] and
Page 191
60(10) [127] of the CPA, order the state to grant the bail applicant access to some information
contained in the police docket. In S v Green and Another Farlam JA held: [128]
“It is clear from s 60(10) that the court’s function in a bail application is intended to be more
proactive than in normal criminal proceedings. On a proper consideration of the case on which the
State relied, any reasonable court must have concluded that it lacked reliable and important
information necessary to reach a decision, notwithstanding that such information was apparently
readily available. In such circumstances the court has no discretion but to invoke s 60(3). In my view,
the magistrate should, instead of refusing bail without more, have ordered the State to grant the
defence access to the video tapes and any statements made by the police fingerprint experts, linking
the fingerprints of either of the appellants with the crime, with the decision on whether or not to grant
bail to be made thereafter.”

It can be argued that despite the fact that s 60(14) applies “[n]otwithstanding anything to
the contrary contained in any law”, a prosecutor should as a rule permit a bail applicant to
have access to a copy of a statement falling within the ambit of s 335 of the CPA. Section
335 provides that whenever a person has in relation to any matter made to a peace officer a
statement in writing — or a statement which was reduced to writing — and criminal
proceedings are thereafter instituted against such person in connection with that matter, the
person in possession of such statement shall furnish the person who made the statement, at
his request, with a copy of such statement. It can be said that in terms of s 34 of the
Constitution, a bail applicant has a constitutional right to a fair bail hearing and that access
to his s 335-statement is necessary to secure such a hearing. Access to a s 335-statement
ensures that there is “equality of arms”: the prosecution’s bail witnesses can peruse their
statements in the docket prior to their testifying; a bail applicant should enjoy a similar right
by perusing his s 335-statement. The prosecution’s bail witnesses can in the witness-box
refresh their memories with reference to their earlier statements; a bail applicant should
enjoy a similar opportunity by having access to his s 335-statement. Obviously, at a bail
application the fairness or otherwise of the trial is not the issue. A bail application concerns
the qualified right of an arrestee, under s 35(1) of the Constitution, to be released if the
interests of justice permit. Bail applications also cannot be classified as criminal proceedings.
However, the fact that a bail applicant is not an accused who would be entitled to all
constitutional “fair trial” rights, is no ground for depriving a bail applicant of access to his
s 335-statement. One of the purposes of s 60(14) of the CPA is to ensure that accused
persons are not prematurely put in a position where they can look over the prosecution’s
shoulder as the police investigation runs its course. It is hardly possible to argue that a bail
applicant’s access to his s 335-statement would have this improper effect. Access to a s 335-
statement makes an important contribution to a fair bail hearing.
Page 192

It is, furthermore, submitted that there is at least one special situation where a prosecutor
who has decided to rely on s 60(14) in withholding the contents of the police docket from a
bail applicant, will on the grounds of legal ethics be compelled to reverse his decision. This
situation will arise where there is a material discrepancy between the oral evidence of a
state witness at the bail proceedings and his written statement contained in the police
docket. A bail applicant’s constitutional right to a fair bail hearing will be frustrated where a
prosecutor suppresses the discrepancy by withholding the relevant written statement on
account of the provisions of s 60(14). [129]
11 6 The Promotion of Access to Information Act 2 of 2000 [130]
The above Act (hereafter referred to as “the PAIA”) came into operation on 9 March 2001.
According to its long title, the PAIA seeks to give effect to the constitutional right of access
to any information held by the state [131] and any information held by another person and
that is required for the exercise or protection of any rights. [132] However, in the preamble to
the PAIA reference is also made to s 36 of the Constitution, which allows for constitutionally
permissible limitations of all rights contained in the Bill of Rights. It is therefore no surprise
that the PAIA does not abolish public (and private) privileges which exist in terms of our
common-law or statutory provisions. [133] Several provisions in the PAIA actually indirectly
reinforce existing public privileges. [134]
11 6 1 The PAIA and mandatory protection of records privileged from

production in legal proceedings
Section 40 of the PAIA provides that the information officer of a public body must refuse a
request for access to a record of the body if the record is privileged from production in legal
proceedings, unless the holder of the privilege has waived it. Section 67 contains a similar
provision in respect of a private body.
11 6 2 Non-applicability of the PAIA to records required for criminal or

civil proceedings after commencement of such proceedings
Section 7(1) of the PAIA provides that the PAIA does not apply to a record of a public or
private body if
“(a) that record is requested for the purpose of criminal or civil proceedings;
(b) so requested after the commencement of such criminal or civil proceedings, as the case may be;
and
Page 193
(c) the production of or access to that record for the purpose referred to in paragraph (a) is
provided for in any other law.”
In terms of s 7(2) of the PAIA any record obtained in a manner that contravenes s 7(1) is
inadmissible as evidence in proceedings referred to in s 7(1) unless the exclusion of such a
record by the court concerned would, in the opinion of such a court, be detrimental to the
interests of justice. Section 7 of the PAIA is, it seems, an indirect way of encouraging
litigants not to use or abuse the PAIA as a mechanism for obtaining information for purposes
of litigation when access to information is provided for by some other law, such as the rules
governing disclosure. [135]
[*] Some sections of this chapter were originally written by Prof A P Paizes, School of Law, Univ of the
Witwatersrand, and published as ch 12 in Van der Merwe (ed) Evidence (1983) 147-156 and later in Du Toit et al
Commentary on the Criminal Procedure Act (1987, as revised). Prof Paizes’ kind permission to retain portions of his
original text for purposes of the present book is appreciated. Of course, the present author carries responsibility for
amendments, updating, style and ultimate accuracy of the contents.
[1] It is, eg, against public policy that discussion and deliberations between a presiding judicial officer and his or
her assessors be disclosed. See S v Baleka and Others (4) 1988 (4) SA 688 (T).
[2] See generally Minister Van Justisie v Alexander 1975 (4) SA 530 (A) 544-5; Van Niekerk, Van der Merwe & Van
Wyk Privilegies in die Bewysreg (1984) 240-74.
[3] See generally Barnicott v Minister of Justice 1913 TPD 691 695 where the court had to follow the English law
on account of the provisions of s 47 of Proc 16 of 1902 (Tvl). See also Tranter v Attorney-General and the First
Criminal Magistrate of Johannesburg 1907 TS 415 as well as § 3 2 above.
[4] The effect of this section is that, except where otherwise provided by the CPA or any other law, no witness may
be compelled or permitted to give evidence as to any fact, matter or thing, or as to any communication made to him,
if he would not have been compelled or permitted to do so on 30 May 1961 on the ground of public policy or with
regard to the public interest. There is a proviso, however, to the effect that any person may in criminal proceedings
adduce evidence of any communication alleging the commission of an offence if the making of that communication
prima facie constitutes an offence, that is, if such communication amounted to, for example, criminal iniuria, criminal
defamation, treason or perjury. See generally S v Gcali 1992 (1) SACR 372 (Tk) 378b-c.
[5] See § 3 4 above.
[6] 1942 1 All ER 587.
[7] See § 11 1 3 below.
[9] See also Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd 1916 1 KB 822 where documents relating to
military plans during World War One were held immune from disclosure.
[10] Zuckerman “Privilege and Public Interest” in Tapper (ed) Crime, Proof and Punishment (1981) 248.
[11] In Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274 298 it was said: “Although it is
the practice to talk of conflicting public interests this can be misleading. The conflict is more accurately described as
being between two different aspects of the public interest. If it is decided that the aspect of the public interest which
reflects the requirements of administration of justice outweighs the aspect of the interest which is against disclosure,
then it is the public interest which requires disclosure.” In S v Scholtz 1996 (2) SACR 426 (NmS) Dumbutshena AJA
also provided the following perspective (at 422e-g): “It is necessary under certain circumstances to protect public
interest immunity in order to safeguard the interests of public administration and the protection of the State. I do not
however share the view that public interest immunity should be preferred in order to deny an accused a fair trial and
justice. Open justice requires fairness to be evenly applied between the prosecution and the defence . . . Rather than
make public interest immunity an exception to the general duty to disclose, it should be weighed in the scales of
justice. That weighing in should be done by the Courts. If before any trial the prosecution has in its possession
documents or other evidential material helpful to the defence case but wants to claim public interest immunity the
defence should be informed of that fact and the Court should be asked to give directions of some ruling on the
prosecution’s claim to public interest immunity. The decision must be made by a Judge. It would not be proper to
allow the prosecution to decide which of the relevant materials should be denied to the accused on the grounds of
public interest immunity.”
[12] Tapper Cross & Tapper on Evidence 514 n 36.
[13] Murphy Murphy on Evidence 10 ed (2008) 423.
[14] Dennis The Law of Evidence 3 ed (2007) 361.
[15] See Rogers v Secretary of State for the Home Department 1973 AC 388.
[16] Tapper Cross & Tapper on Evidence 511 refers to the “currently fashionable terminology of ‘public interest
immunity’”.
[17] Dennis The Law of Evidence 361.
[18] 1992 3 All ER 617 623.
[19] Uglow Evidence: Text and Materials (1997) 180. See also generally Swanepoel v Minister van Veiligheid en
Sekuriteit 1999 (2) SACR 284 (T) 287g-h as regards the informer’s privilege — a privilege discussed in §§ 11 4 2 to
11 4 4 below.
[20] Bewysreg 4 ed (2000) 577-578.
[21] S v Safatsa and Others 1988 (1) SA 868 (A) 886 (citing Dawson J in Baker v Campbell 1983 49 ALR 385
442).
[22] Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 10.
[23] Schmidt & Rademeyer Bewysreg 577 n 155 make the valid point that the privilege which covers statements
without prejudice, is an exception. See further § 16 6 below.
[24] Redelinghuys v Geidel 1963 (2) SA 274 (W); Minister of Community Development v Saloojee and Another
1963 (4) SA 65 (T).
[25] Murphy A Practical Approach to Evidence 415.
[26] Implied or imputed waiver is also possible. See § 10 3 4 above.
[27] See generally Nyangeni v Minister of Bantu Administration and Development and Another 1961 (1) SA 547
(E).
[28] S v Van Vreden 1969 (2) SA 524 (N) 529H.
[29] S v Lwane 1966 (2) SA 433 (A).
[30] See generally Conway v Rimmer 1968 1 All ER 874; Van der Linde v Calitz 1967 (2) SA 239 (A).
[31] Obviously, once the executive is aware of the issue and does not claim privilege, courts are unlikely to
disagree. Dennis The Law of Evidence 369 observes: “The courts should not be more executive-minded than the
executive, particularly where access to evidence, one of the ingredients of the right to a fair trial, is concerned.”
[32] See § 11 4 2 below.
[33] See generally Beatson v Skene 2 LT 378 (as cited by Cahn Cockle’s Cases and Statutes on Evidence 6 ed
(1938) 327).
[34] Murphy A Practical Approach to Evidence 429 explains the difference between the two claims: “A class claim is
a claim to withhold all documents falling within a specifically described class, for example minutes of Cabinet
meetings. In this kind of claim, the actual contents of the documents are irrelevant, and the claim is based on an
invariable need for confidentiality of documents of the kind described in the claim. The courts have regarded class
claims relatively unfavourably, because of the possibility of a blanket attempt to protect documents, many of which
may be of a purely routine nature. . . A contents claim is based on the contents of an individual document, and is
more favourably regarded because of the more specific justification provided to the court.”
[35] 1968 1 All ER 874.
[36] See generally Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980] AC 1090; Air Canada v
Secretary of State and Trade 1983 2 AC 394.
[37] Murphy A Practical Approach to Evidence 433.
[38] 1994 2 All ER 588. However, according to Emson Evidence (1999) the government issued the following
statement in the House of Commons on 11 July 1997: “[P]ublic interest immunity will not be asserted by the
Government unless the relevant Minister believes that disclosure of a document or piece of information will cause
real damage to the public interest. The test will be applied rigorously. Where public interest immunity applies,
Ministers will nevertheless make voluntary disclosure if they consider that the interests of justice outweigh the public
interest in withholding the document or information in question. In all cases, a Minister’s claim for public interest
immunity is subject to the Court’s power to order disclosure. The approach will be followed in both criminal and civil
cases.’’
[39] The Law of Evidence 283 n 96. See further § 11 3 2 below. In South Africa a “judicial peep” must be exercised
with caution. See South African Rugby Football Union and Others v President of the Republic of South Africa and
Others 1998 (4) SA 296 (T) 302F.
[40] 1967 (2) SA 239 (A).
[41] See § 3 5 1 above.
[42] 1931 AC 704.
[43] Law, Order and Liberty in South Africa (1971) 259.
[44] Hoffmann The South African Law of Evidence (1970) 445.
[45] Section 29(1) of Act 101 of 1969 (now repealed).
[46] See generally Mathews Law, Order and Liberty in South Africa 258-9.
[47] 1971 (2) SA 277 (O). In this case s 29 of Act 101 of 1969 was interpreted restrictively. It was held that s 29
only ousted the court’s jurisdiction in matters concerning the safety of the state, international relationships or high-
level executive documents.
[48] Report of the Commission of Enquiry into Matters Relating to the Security of the State (RP 102/1971). This
commission was known as the Potgieter Commission. For a discussion of this commissioner’s recommendations
concerning state privilege, see Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 245-47.
[49] This Act was also preceded by a commission of enquiry, known as the Rabie Commission. In § 8 5 3 of its
Report of the Commission of Enquiry into Security Legislation (RP 90/1981), the Rabie Commission — like the
Potgieter Commission — relied heavily on the following statement by lord Parker in The Zamora 1916 2 AC 77:
“Those who are responsible for the national security must be the sole judges of what the national security requires.”
The result was that both Commissions favoured the view that the executive should have the final say on matters
affecting the security of the state. See further Mathews Freedom, State Security and the Rule of Law — Dilemmas of
the Apartheid Society (1986) 177 for criticism of this approach.
[52] By s 1 of the Safety Matters Rationalisation Act 90 of 1996 (as read with schedule 1 to this Act.)
[53] See also generally Van Wyk et al (eds) Rights and Constitutionalism: The New South African Legal Order
(1994) 431.
[54] For a discussion of the extent to which a separation of powers is recognised and entrenched in the
Constitution, see Currie & De Waal The Bill of Rights Handbook 5 ed (2005) 44-48.
[55] See further §§ 11 6 to 11 6 2 below.
[56] Paizes in Du Toit et al Commentary at 23-44F refers to “the growing trend towards viewing all issues arising
out of the traditional privilege as aspects of a broad balancing exercise in which the extent to which it is necessary to
disclose evidence for the purpose of doing justice is balanced against the public interest in its non-disclosure”.
[57] Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In Re Masetlha v President of the
Republic of South Africa and Another 2008 (5) SA 31 (CC) at [55]. For a detailed discussion of this case, see
Schwikkard “State Privilege in a Democratic South Africa” in Carnelley & Hoctor (eds) Law, Order and Liberty —
Essays in Honour of Tony Mathews (2011) 101.
[58] Independent Newspapers (Pty) Ltd supra at [56].
[59] See generally President of the Republic of South Africa and Others v M & G Media Ltd 2011 (2) SA 1 (SCA) at
[52]; Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others
1999 (2) SA 279 (T) 343-4.
[60] See § 11 1 3 (n 39) above.
[61] See generally Tapper Cross & Tapper on Evidence 518.
[62] See generally Khala v Minister of Safety and Security 1994 (4) SA 218 (W); 1994 (2) SACR 361 (W); 1994 2
BCLR 89 (W) 105C-D.
[63] Freedom, State Security and the Rule of Law: Dilemmas of the Apartheid Society 176.
[64] R v Abelson 1933 TPD 227 231. One of the most important English decisions in this regard is Marks v Beyfus
1890 25 QBD 494.
[65] See also generally Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 270-4. At 271 the
authors point out that the purpose of the privilege which arises in this regard is not to protect the police, but to
ensure that their sources of information concerning crime and their methods of investigation are protected: “Die reg
moet enersyds sorg dra dat die polisie nie hul funksies en aktiwiteite verrig op ’n heimlike wyse wat nadelig kan
wees vir die breër belange van die regspleging nie, maar andersyds dat hulle in die uitvoering van hul pligte nie só
gekortwiek word dat die breër belange van die regspleging benadeel word nie.’’
[66] 1933 TPD 227.
[67] 1962 (4) SA 288 (C).
[68] See generally ch 12 below.
[69] Who is an “informer” for purposes of this privilege? In Rex v Van Schalkwyk 1938 AD 543 548 Stratford CJ
observed that while no definition has been authoritatively laid down in the English cases, these cases “seem to lay
down that any person who gives information to the authorities of the commission of a crime, or information which
leads to the detection of a crime, is one who, in the public interest, ought to be protected. In other words, anyone
who gives useful information about the commission of a crime and needs protection against those who may suffer
from his disclosures, should get that protection so as to encourage these disclosures.” Accordingly, not every person
who makes a statement to the police in connection with a prosecution may claim this privilege, but only informers
properly so called, whose identity must be kept secret in the public interest (Scheepers v S 1971 2 PH H101 (NC)). A
person who has laid a charge is normally regarded as an informer (R v Olifant 1937 2 PH H191 (T)), except where he
is the complainant in a charge relating to the person or property of an individual, in which case he would not need
encouragement to lodge his complaint (Naylor v Wheeler 1947 (2) SA 681 (D)). For the same reason, a person
interrogated by the police when the accused has already been arrested is not an informer. A policeman is not
ordinarily an informer, as he requires no encouragement to disclose information (Suliman v Hansa supra); this may
not be true, however, of a policeman who operates secretly or in disguise in order to procure information.
[70] Tranter v Attorney-General and the First Criminal Magistrate of Johannesburg 1907 TS 415; Van Wyk in
Ferreira Strafproses in die Laer Howe 2 ed (1979) 493. In Swanepoel v Minister van Veiligheid en Sekuriteit 1999 (2)
SACR 284 (T) it was held that an informer has a substantive right to non-divulgement of his identity, particularly
where the informer had specifically requested anonymity. Unlawful, malicious and intentional disclosure of the
identity of an informer to suspects, therefore disclosed a cause of action. In this case the court also stated (at
287d-e) that “onderhewig aan die openbare belang, kan die beriggewer die privilegie opeis [en is die]
beriggewer . . . selfs teenoor die Staat geregtig om die privilegie op te eis”. See further S v Rossouw en ’n Ander
1973 (4) SA 608 (SWA) 613G-H and S v Nieuwoudt (4) 1985 (4) SA 519 (C) 522B.
[71] 1945 AD 653 658.
[72] See also Rex v Van Schalkwyk 1938 AD 543. The scope of the privilege was considered further in Suliman v
Hansa 1971 (4) SA 69 (D). Fannin J approved and applied the views of Wigmore para 2285 that the following four
fundamental conditions must be satisfied to establish the privilege: “(1) The communications must originate in a
confidence that they will not be disclosed; (2) This element of confidentiality must be essential to the full and
satisfactory maintenance of the relation between the parties; (3) The relation must be one which in the opinion of
the community ought to be sedulously fostered; and (4) The injury that would inure to the relation by the disclosure
of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.’’
[73] R v Olifant 1937 2 PH H191 (T). Cf generally S v Rossouw en ’n Ander 1973 (4) SA 608 (SWA).
[74] 1922 NPD 157 162.
[75] 1918 WLD 1 14-5.
[76] 1938 AD 543 553-5.
[77] 1927 NPD 330 345.
[78] Supra 554-5.
[80] 1998 (2) SACR 93 (NC) 100j-101c (emphasis added). See also Marais v Lombard 1958 (4) SA 224 (E) 231A
and Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 266-7.
[81] 1993 Crim LR 283.
[82] See generally R v Rankine 1986 Crim LR 464; R v Brown & Daley 1988 Crim LR 426; R v Johnson 1988 Crim
LR 831, where certain guidelines were provided to police in obtaining observation posts; R v Hewitt & Davis 1992
Crim LR 650. In a commentary on the latter case DJB 1992 Crim LR 651 remarked as follows: “Two grounds are
given for the rule about informers: first, the need to secure the informer’s own safety, and secondly the desire to
ensure that the supply of information does not dry up (see eg Hennessey (1978) 68 Cr App R 419). Both apply
equally to the supplier of an observation post: in fact it could be argued that the need for protection on both grounds
is greater, as (a) the supplier of an observation post may be an easier target for retaliation, particularly if it is the
supplier’s own home which has been used, and (b) where the need is to police a particular locality where crime is
rife, the loss of an observation post may be an irreparable blow.”
[83] See generally Van der Merwe 1998 Stell LR 297.
[84] 386 US 300 (1967).
[85] 353 US 53 (1957).
[86] This is also the clear implication of Shabalala and Others v Attorney-General of Transvaal and Another 1995
(2) SACR 761 (CC) at [72] (sub-para 5). See § 11 5 below.
[87] 1998 (2) SACR 93 (NC) 101c-h (emphasis added).
[88] R v Steyn 1954 (1) SA 324 (A); Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg 219-36.
[89] See generally S v J 1990 (1) SACR 639 (C) and International Tobacco Co (SA) Ltd v United Tobacco Cos
(South) Ltd (2) 1953 (3) SA 879 (W).
[90] See s 335 of the CPA. See also S v Mpetha and Others (1) 1982 (2) SA 253 (C) 259F.
[91] S v Jija and Others 1991 (2) SA 52 (E).
[92] S v B 1980 (2) SA 964 (A).
[93] Section 23 of the Interim Constitution provided as follows: “Every person shall have the right of access to all
information held by the state or any of its organs at any level of government in so far as such information is required
for the exercise or protection of any of his or her rights.” This section was relied on in several Supreme Court
decisions in which it was held that statements of state witnesses had to be handed over to the defence. These cases
appear in n 52 of the Constitutional Court judgment in Shabalala and Others v Attorney-General of Transvaal and
Another 1995 (2) SACR 761 (CC) 775. Section 23 was replaced by s 32 of the Constitution (as read with Schedule 6
to the Constitution).
[94] This section provided for the right to a fair trial. See now ss 34 and 35(3) of the Constitution.
[95] See eg Schwikkard 1994 SACJ 323; Du Plessis 1994 SACJ 295; Meintjies-Van der Walt 1995 SACJ 127.
[96] Supra [72] 790c-791b. The Constitutional Court did not rely on s 23, but on the right to a fair trial contained
in s 25(3). See [34] of the judgment. See now s 35(3) of the Constitution. See further S v Smile and Another 1998
(1) SACR 688 (SCA); Rowe and Davis v UK (2000) 30 EHRR 1; R v Stinchcombe 1992 LRC (Crim) 68; S v Scholtz
1996 (2) SACR 426 (NmS) 442f-h; Molapo v Director of Public Prosecutions 1997 (8) BCLR 1154 (Lesotho).
[97] See generally De Jager in Du Toit et al Commentary 14-24 for a discussion of s 87.
[99] S v Tshabalala 1999 (1) SACR 163 (T) 167a-b and 168h.
[100] Du Toit en Andere v Direkteur Van Openbare Vervolging, Transvaal: In Re S v Du Toit en Andere 2004 (2)
SACR 584 (T) 594e-f.
[101] Du Toit en Andere v Direkteur Van Openbare Vervolging, Transvaal: In Re S v Du Toit en Andere supra
595d-e.
[102] Du Toit en Andere v Direkteur Van Openbare Vervolging, Transvaal: In Re S v Du Toit en Andere 2004 (2)
SACR 584 (T) 596a-b and 598f.
[103] See generally S v Smile and Another 1998 (1) SACR 688 (SCA), where the initial unfairness that resulted
from the state’s failure to disclose, was purged when the state, during the course of the state’s case, had made
available statements of witnesses who had already testified and witnesses who still had to testify. This irregularity
was “potentially remediable” (at 692h): the state’s case was not closed when the statements were furnished; the
defence could recall the witnesses concerned; the defence had sufficient time “to consider the contents of all the
statements and to prepare for the further conduct of the trial” (at 693a). However, Melunsky AJA also sounded the
following warning (at 693b-c): “It may be noted that the Full Court of the Cape Provincial Division in Nortje and
Another v Attorney-General, Cape, and Another 1995 (2) SA 460 (C) was not prepared to accept the proposition that
a failure to make pre-trial disclosure of the statements of witnesses ipso facto rendered the trial unfair although later
disclosure of statements during the trial was made (at 483B-D). But it should be emphasised that this does not mean
that it is open to the State, as a matter of course, to postpone disclosure of the statements of prosecution witnesses
provided only that they are disclosed at some time before the closure of its case. Disclosure of statements should
usually be made when the accused is furnished with the indictment or immediately thereafter in accordance with the
practice suggested in Shabalala’s case at 752A-F (para [56]).” See further S v Mvambo 1995 (1) SACR 180 (W),
which is discussed in § 17 7 below.
[104] This was the decision of the majority (Satchwell and Makhanya JJ) in S v Shiburi 2004 (2) SACR 314 (W).
EM du Toit AJ dissented.
[105] S v Shiburi supra (per EM du Toit J with Mkanaya J concurring and Satchwell J dissenting).
[106] Park-Ross v Director: Office for Serious Economic Offences 1997 (2) SACR 401 (C).
[107] Park-Ross v Director: Office for Serious Economic Offences supra at [25].
[108] S v Tshabalala 1999 (1) SACR 163 (T) 169d-e.
[109] S v Tshabalala supra 169e. See also S v Rowand and Another 2009 (2) SACR 450 (W).
[110] See generally S v Scholtz 1996 (2) SACR 426 (NmS) 442f-h. See further the nature of the disputes that
arose in National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA) and Kerkhoff v Minister of Justice
and Constitutional Development and Others 2011 (2) SACR 109 (GNP). These two cases are discussed by Watney
(2012) 2 TSAR 320.
[111] See generally S v Nassar 1995 (1) SACR 212 (Nm) where Muller AJ agreed (at 242c-d) with the Canadian
approach as set out in R v Stinchcombe 1992 LRC (Crim) 68 at 11 (cited in full in Nassar at 240h-242c).
[112] S v Nassar supra (relying on R v Stinchcombe supra).
[113] Shabalala v Attorney-General, Transvaal and Another; Gumede and Others v Attorney-General, Transvaal
supra 790j. In Namibia, it seems, the required standard of proof is on a balance of probabilities. See S v Nassar
supra 240f.
supra 791a.
supra 791b.
supra 791b-c.
[117] S v Tshabalala 1999 (1) SACR 163 (T) 167b-c.
[118] S v Tshabalala supra 167h-168a.
[119] See generally S v Hassim and Others 1972 (1) SA 200 (N).
[120] Supra [72] 791c-h. Paragraph 4 3 2 of the Code of Conduct: Uniform Rules of Professional Ethics of the
General Bar Council of SA, has been adjusted to reflect the decision in Shabalala supra.
[121] 1995 (2) SACR 761 (CC).
[122] 1954 (1) SA 324 (A).
[123] Emphasis added. For a critical appraisal of s 60(14), see De Villiers 2003 THRHR 175 and 2003 THRHR 349.
[124] 1999 (2) SACR 51 (CC).
[125] S v Josephs 2001 (1) SACR 659 (C) 664c-d. See also Van der Merwe 2001 SACJ 297 and S v Mauk 1999 (2)
SACR 479 (W) as well as Watney 2000 (2) TSAR 369 at 373-375.
[126] This subsection provides as follows: “If the court is of the opinion that it does not have reliable information
or sufficient information or evidence at its disposal or that it lacks certain important information to reach a decision
on the bail application, the presiding officer shall order that such information or evidence be placed before the court.”
[127] This subsection provides as follows: “Notwithstanding the fact that the prosecution does not oppose the
granting of bail, the court has the duty, contemplated in subsection (9), to weigh up the personal interests of the
accused against the interests of justice.”
[128] 2006 (1) SACR 603 (SCA) at [23].
[129] Van der Merwe 2001 Stell LR 215 220-1.
[130] See also generally s 32(2) of the Constitution.
[131] See also s 32(1)(a) of the Constitution.
[132] See also s 32(1)(b) of the Constitution.
[133] See § 11 6 1 below.
[134] See, eg, ss 39 and 41 of PAIA. These two sections respectively identify protection of police dockets in bail
proceedings and protection of the security of the RSA, as grounds for refusal of access to records.
[135] See § 20 4 below.
Page 195
Section D
Exclusion of Relevant Evidence:
Unconstitutionally Obtained Evidence
12 Unconstitutionally Obtained Evidence –S E van der Merwe

Page 197
Chapter 12
Unconstitutionally Obtained Evidence
S E van der Merwe
12 1 Introduction
12 4 The Theoretical Basis and Practical Purpose of the Exclusionary Approach
12 5 2 1 The ambit of the exclusionary rule in Miranda
12 6 1 Seriousness of the state conduct infringing the Charter
12 6 2 Impact on the accused’s interests as protected by the Charter
12 6 3 The interest of society in an adjudication on the merits
12 7 1 The Anglo-South African common-law inclusionary approach (and its
development since constitutionalisation)
12 7 2 2 The discretion to exclude unconstitutionally obtained real
evidence
12 8 2 Section 35(5): The causal link between violation and procurement
12 8 4 Section 35(5) and the admissibility of evidence unconstitutionally procured
by private individuals
12 8 6 Section 35(5) and a co-accused’s constitutional right to a fair trial
12 9 The First Leg of the Test in s 35(5): “must be excluded if . . . admission . . . would
render the trial unfair”
Page 198

12 9 4 The privilege against compelled self-incrimination: trial fairness and the
court’s discretion
12 9 6 Trial fairness and the court’s discretion: Self-incrimination, real evidence
and evidence “emanating from the accused”
12 9 8 Trial fairness and the admissibility of identification evidence obtained at an
identification parade held in the absence of the accused’s legal
representative
12 10 The Second Leg of the Test in s 35(5): “if . . . admission . . . would otherwise be
detrimental to the administration of justice”
12 10 1 The presence or absence of good faith (and reasonable) police conduct
12 10 4 The availability of lawful means or methods of securing the evidence
12 10 6 Inevitable discovery or discovery on the basis of an independent source
12 11 1 The trial within a trial
12 12 Evidence Procured by Means of Entrapment (s 252A of the CPA and s 35(5) of the
Constitution)
12 13 Civil Cases
12 1 Introduction [1]
This chapter focuses on the admissibility of unconstitutionally obtained evidence in criminal

proceedings. The position as regards civil proceedings is discussed separately in § 12 13
below.
Section 35(5) of the Constitution provides as follows: “Evidence obtained in a manner that
violates any right in the Bill of Rights must be excluded if the admission of that evidence
would render the trial unfair or otherwise be detrimental to the administration of justice.” [2]
Section 35(5) does not apply to civil proceedings. [3]
The Constitutional Court has as yet not had an opportunity to interpret s 35(5).
Several Supreme Court of Appeal decisions on the interpretation of s 35(5) have become
available, [4] but no clear picture has emerged. The High Court, it
Page 199
seems, has been bold, [5] cautious, [6] critical [7] and ingenious [8] in its interpretation of s 35
(5). None but the naive would have expected a different result, given the background of our
common-law inclusionary approach (see § 12 7 1 below) and the clear break that s 35(5)
makes with the common law (see § 12 8 below).
The core principle embodied in s 35(5) — that is, the exclusion of unconstitutionally
obtained evidence despite its relevance and regardless of the fact that it would otherwise
have been admissible — is not unique to South Africa. The exclusionary rule (in a rigid form)
originated in the jurisprudence of the Supreme Court of the United States of America (see
§ 12 5 below). The central idea was to protect rights guaranteed in the American Bill of
Rights, and to promote substantive and procedural due process (see §§ 12 4 2 and 12 4 3
below). In Weeks v United States — decided in 1914 — Day J, writing for a unanimous
Supreme Court, stated: [9]
“If letters and private documents can thus be seized and held and used in evidence against a citizen
accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against
such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as
well be stricken from the Constitution.”
The American exclusionary rule seeped into the evidential systems of many national
jurisdictions, albeit in a significantly modified form, that is, not as a rigid rule but as a
discretionary one. The essence of the rule has also been accepted in Continental
jurisdictions; [10] and the rule has had an impact on supra-national regional jurisdictions [11]
and the evidential systems of international criminal tribunals. [12]
Page 200
Countries which belong to the Anglo-American “law of evidence family” [13] initially relied
heavily on the English common-law inclusionary approach which in 1861 was formulated as
follows: “It matters not how you get it; if you steal it even, it would be admissible.” [14]
However, in the latter half of the twentieth century there was a growing international
awareness of the need to enforce and protect fundamental human rights, [15] promote
legality (see § 12 4 3 below) and conserve and enhance judicial integrity (see § 12 4 4
below). Courts — and in some instances also legislatures [16] — came to accept that there
had to be at least a judicial discretion to exclude evidence obtained unlawfully or
unconstitutionally. The difficulty is to formulate a rule or guidelines [17] accommodating all
those interests which compete and conflict whenever a decision has to be made concerning
the admission or exclusion of evidence obtained in a manner violating fundamental rights
(see § 12 2 below). There is a need to compromise and adopt a flexible approach which
accommodates various valid demands. [18]
Most countries which abandoned parliamentary sovereignty and adopted a written
Constitution as the supreme law, did not avail themselves of the opportunity to use their Bill
of Rights as a medium for addressing issues concerning the admissibility of
unconstitutionally obtained evidence. But the courts in these countries — for example,
Namibia, [19] New Zealand [20] and
Page 201
Ireland [21] — then distanced themselves from the common-law inclusionary approach,
|developed their own exclusionary rule and managed to steer clear from the American
judicially created exclusionary rule which is a rigid or absolute one save for certain
exceptions which were also judicially created (see § 12 5 below for a brief survey of the
American rule and some of its exceptions).
The South African interim Constitution also did not expressly provide for the exclusion of
unconstitutionally obtained evidence; however, during the brief period that the interim
Constitution was in force, the South African courts fairly rapidly developed an exclusionary
rule even though they were not always in full agreement as to the criteria or tests which had
to be employed (see § 12 7 2 below).
For purposes of the final Constitution, South Africa took its cue from s 24(2) of the
Canadian Charter of Rights and Freedoms (hereafter “the Charter”). The relevant portion of
s 24(2) provides as follows: “Where . . . a court concludes that evidence was obtained in a
manner that infringed or denied any rights guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to all the circumstances, the admission of it
in the proceedings would bring the administration of justice into disrepute.” This section
(which is briefly discussed in §§ 12 6 to 12 6 3 below) is in some respects very similar to
s 35(5) of the Constitution.
In S v Pillay Scott JA said as follows with reference to s 35(5):
“In adopting the approach they did, the drafters of the Constitution appear to have adopted a via
media between the extreme approach adopted in the USA on the one hand and that formerly adopted
in South Africa on the other. In doing so they have largely followed the example of . . . particularly
Canada.” [22]

The exclusionary approach has a sound jurisprudential basis (see §§ 12 4 to 12 4 6 below).
But this does not mean that it is without controversy. [23] Burger CJ, a former chief justice of
the Supreme Court of the USA and an opponent of the exclusionary rule, once bluntly
observed that the function of the
Page 202
exclusionary rule “is simple — the exclusion of truth from the fact-finding process”. [24] The
exclusion of reliable and highly incriminating evidence might result in the acquittal of an
accused who is factually guilty of murder or rape or other serious crimes. Is this unfortunate
outcome in the public interest?
There are clear interests that compete and conflict in determining the parameters of a rule
which excludes unconstitutionally or illegally or even improperly obtained evidence. It is
ultimately a matter of reconciling competing interests. In Lawrie v Muir Lord Cooper said: [25]
“From the standpoint of principle it seems to me that the law must strive to reconcile two highly
important interests which are liable to come into conflict — (a) the interest of the citizen to be
protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of
the State to secure that evidence bearing upon the commission of crime and necessary to enable
justice to be done shall not be withheld from Courts of law on a merely formal or technical ground.
Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is
primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed
interference, and the common sanction is an action in damages. The protection is not intended as a
protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the
other hand the interest of the State cannot be magnified to the point of causing all the safeguards for
the protection of the citizen to vanish, and of offering a positive inducement to the authorities to
proceed by irregular methods.”

The argument in favour of the inclusionary rule is essentially pragmatic and expedient. It
runs along the following lines:
• The end justifies the means. [26]
• Two wrongs do not make a right. [27]
• The probative value of evidence is not impaired by unlawful methods employed in
acquiring such evidence, [28] and the relevance of such evidence cannot be affected by
the mere fact that it was unlawfully procured.
• The exclusionary rule necessarily requires an investigation and adjudication of
collateral issues, shifting the focus of the trial from an enquiry into
Page 203
the guilt or innocence of the accused to an enquiry into the conduct of the police. The
true issues get blurred. [29]
• There are sufficient (other) remedies available to an accused whose constitutional or
common-law rights have been violated. [30]
• Policing is a social service aimed at protecting society and, for purposes of effective law
enforcement, society must of necessity tolerate illegal police conduct. [31]
• The deterrent effect of an exclusionary rule is minimal. [32]
• It is not the function (purpose) of the law of evidence to deter illegal police conduct
and the rules of evidence were never meant to promote “an indirect form of
punishment”. [33]
• The exclusionary rule “protects” only the guilty from conviction. [34]
• Criminals do not impose restrictions upon themselves in their choice of weapons; why
should the police? [35]
• The exclusionary rule frustrates or hampers effective policing in an age of rising crime
rates. [36]
• An exclusionary rule puts it in the power of any police official to frustrate the judicial
process: he can, through his unlawful conduct, control the volume of evidence
available to the prosecution at the trial; and he can in this way also determine, almost
in advance, what evidence a court may or may not receive. [37]
Page 204
• Public policy considerations do not militate against the admission of unlawfully obtained
evidence. [38]
• A court that excludes unlawfully obtained evidence might in effect be condoning the
unlawful acts of the accused. [39] If this is not the actual effect of the exclusionary rule,
then it is at least the citizen’s perception of the rule. [40] And it is undesirable that a
criminal justice system should be held in disrespect by the public at large.
• An exclusionary rule may, according to Schlesinger, have the “perverse and
unintended” result of limiting the ambit of fundamental rights: judges who are required
to apply an exclusionary rule might give an extensive interpretation to probable cause
“in order to admit crucial evidence”. [41]
• A (rigid) exclusionary rule allows no room for “proportionality”, that is, an approach in
terms of which a court should at least have a discretion to determine the question of
evidential admissibility by comparing the gravity and nature of the offence with the
gravity and nature of the unconstitutional conduct of the police. [42]
• A prosecutor who is apprehensive that the exclusionary rule might result in the
acquittal of an accused might accept a plea of guilty to a lesser charge in
circumstances where such acceptance cannot be justified. [43]
Many of the above arguments merit little consideration and several of the counter-
arguments are dealt with in the corresponding footnotes. However, the danger of creating a
situation where society perceives the relevant criminal justice system as one which “frees”
criminals on account of a constable’s blunder, must be taken seriously. [44]
Page 205
12 4 The Theoretical Basis and Practical Purpose of the

Exclusionary Approach
In contradistinction to those pragmatic considerations which underlie the inclusionary rule,
the arguments in favour of an exclusionary rule are less concrete and more subtle.

In Elkins v United States [45] the court held that the purpose of the exclusionary rule is “to
deter — to compel respect for the constitutional guaranty in the only effective way by
removing the incentive to disregard it”. [46] This deterrent purpose or basis of the
exclusionary rule has been subjected to severe criticism. [47] In response it has been argued
that “deterrence” must not be viewed in a narrow traditional sense and that its “educative”
role and ultimate preventive effect [48] are more important than immediate deterrence.
Kamisar notes: [49]
“Deterrence suggests that the exclusionary rule is supposed to influence the police the way the
criminal law is supposed to affect the general public. But the rule does not, and cannot be expected
to, deter the police the way the criminal law is supposed to work. The rule does not inflict a
punishment on police who violate the Fourth Amendment: exclusion of the evidence does not leave
the police in a worse position than if they had never violated the Constitution in the first place.
Because the police are members of a structural governmental entity, however, the rule influences
them, or is supposed to influence them, by systemic deterrence ie through a department’s
institutional compliance with Fourth Amendment standards.”
In S v Mphala and Another Cloete J, in excluding evidence in terms of s 35(5) of the
Constitution, specifically referred to “the disciplinary function of the Court”. [50] This case is
discussed in §§ 12 9 5 and 12 10 1 below. S v Soci [51] — which was also decided under s 35
(5) of the Constitution — is a clear example of a case where the court had to resort to
“systemic deterrence” as a basis for excluding evidence of a pointing out obtained in breach
of constitutional rights. This case is also discussed in § 12 10 1 below.

The exclusionary rule is founded in the concept of due process which rejects the idea that
there must be ascertainment of the truth at any cost. Unconstitutionally obtained evidence
should be excluded because its admission compromises other more important
Page 206
values. [52] It is argued that the primary function or goal of a criminal justice system is not
merely to secure the conviction of an accused but to ensure that a conviction takes place in
terms of a procedure which duly and properly acknowledges the rights of an accused at
every critical stage during pre-trial, trial and post-trial proceedings. This due process
argument gathers momentum when presented in the light of a bill of rights which demands
and guarantees due process, and which places important constitutional limitations upon
official power. For if evidence is obtained in breach of these constitutional rights and allowed
into evidence, the status of these constitutional guarantees will inevitably be
undermined. [53]
Where due process is constitutionally guaranteed the prosecution’s attempt to introduce
unconstitutionally obtained evidence may be viewed as a request that the court act contrary
to the spirit and perhaps express provisions of the Constitution. Evidence, however relevant
and persuasive it might be, should in principle be excluded where the admission of such
evidence would undermine the value system created and guaranteed by a bill of rights. In
terms of this argument the exclusionary rule is not merely an evidential barrier to fact-
finding; it is a constitutional barrier. [54] It can be argued that real meaning and effect are
given to constitutional provisions through the medium of the law of evidence. [55] The reason
for excluding unconstitutionally obtained evidence is not to provide the aggrieved accused
with some form of personal remedy [56] or some distorted form of “compensation”, but to
ensure that a court of law can in accordance with its constitutional duty make a valuable
contribution to the upholding of constitutional principles which govern the criminal justice
system as a whole. [57]
Although the exclusionary rule may sometimes result in the factually guilty being
acquitted, this undesirable result is justified on the basis that the purpose of the
exclusionary rule is not to provide a remedy to that particular accused — but to ensure that
in the long run other citizens are not deprived of their constitutional rights. In this context
the interests of social justice prevail over those of individual justice. [58]

The role that the exclusionary rule plays in ensuring that the notion of legality is retained in
the criminal justice system is supported by the due process doctrine of legal guilt. In terms
of this doctrine of legal guilt [59]
Page 207
“. . . a person is not to be held guilty of a crime merely on a showing that in all probability, based
upon reliable evidence, he did factually what he is said to have done. Instead, he is to be held guilty if
and only if these factual determinations are made in procedurally regular fashion and by authorities
acting within competences duly allocated to them.”
This doctrine can also be detected in the South African criminal justice system as it stood
prior to constitutionalization. [60] For example, in S v Lwane [61] the prosecution had
tendered, and the trial court had received, evidence which had been obtained from the
accused at an earlier preparatory examination where he had testified and inculpated himself
in his capacity as a witness. At the preparatory examination the accused (witness) had not
been warned that he was not obliged to give evidence exposing himself to a criminal charge.
The trial court convicted the accused on the basis of his self-incriminating evidence which he
had, as a witness, given at the preparatory examination. On appeal Holmes JA held: [62]
“The . . . question is whether such evidence given in the absence of judicial warning is admissible on
the prosecution of the witness. As to that, the pragmatists may say that the guilty should be punished
and that if the accused has previously confessed as a witness it is in the interests of society that he be
convicted. The answer is that between the individual and the day of judicial reckoning there are
interposed certain checks and balances in the interests of a fair trial and the due administration of
justice. The rule of practice to which I have referred is one of them, and it is important that it be not
eroded. According to the high judicial tradition of this country it is not in the interests of society that
an accused should be convicted unless he has had a fair trial in accordance with accepted tenets of
adjudication.”
The Supreme Court of the United States has identified “the imperative of judicial integrity”
as an important rationale of the exclusionary rule. [63] It would appear that there are at least
four interrelated facets to this rationale, namely, that by admitting unconstitutionally
obtained evidence (a) courts themselves will violate the Constitution; [64] (b) courts will act
contrary to their oath to uphold the Constitution; [65] (c) courts will indirectly encourage
violations of the Constitution; [66] and (d) courts will somehow create the impression that
they sanction or condone unconstitutional conduct by government officials. [67]
However, it should be noted that the “judicial integrity” argument loses much ground in
those situations where a discretionary rule of exclusion is specifically provided for in the
Constitution — as is the case in respect of s 35(5) of the South African Constitution and s 24
(4) of the Canadian Charter. In these instances the rule itself does not require the exclusion
of all
Page 208
unconstitutionally obtained evidence. But this does not mean that a court, in exercising its
discretion in terms of s 35(5), should ignore “judicial integrity” considerations. This point
was forcefully made by Plasket J in S v Hena and Another:
“On taking office, Judges take an oath of office in which they swear or affirm to ‘uphold and protect
the Constitution and the human rights entrenched in it’ and to administer justice ‘to all persons alike
without fear, favour or prejudice, in accordance with the Constitution and the law’. See item 6(1) of
Schedule 2 to the Constitution . . . The situation must be actively guarded against where the
protection afforded all of us by the Constitution may be eroded through a lack of vigilance or for the
sake of expediency. Central to the role of the Judiciary is the protection of the integrity of the criminal
justice system and the promotion of proper and acceptable police investigation techniques. In this
case, there is evidence of an abdication of responsibility on the part of the police, as a matter of policy
or practice, ‘sub-contracting’ their investigation functions to anti-crime committees. The unlawfulness
of that is patent, and the consequences that flowed from it in this case should not surprise anyone.
Untrained civilians, not subject to the hierarchial discipline of the police service and not subject to
political and administrative oversight, took the law into their own hands. (I have had occasion
previously to warn of the consequences of this. See S v T 2005 (2) SACR 318 (E) at [37]-[40].) It
would undermine both the Constitution and the integrity of the criminal justice system to allow this
systemic abuse to go unchecked. This is clearly a factor that weighs heavily against the admission of
the tainted evidence.” [68]

An effective due process system must have the inherent ability to correct abuses within the
system; [69] and it must be able to do so at the first moment that it is established that there
has been an abuse.
To argue that a separate criminal charge (or a civil action for damage to property, for
assault, or for an illegal arrest, etc) against the perpetrator is the appropriate remedy,
amounts to a tacit admission that the relevant criminal justice system:
• is not truly a due process one, because, for purposes of adjudication, it tolerates
infringements of rights which are otherwise considered essential for due process;
• is for the maintenance or perpetuation of its status as a fair and just system dependent
upon (or in need of being propped up by) whatever civil action the accused may or
may not institute against the perpetrator, or whatever criminal charges the authorities
(or the accused) may follow up;
• cannot operate unless abuses are accommodated on an internal level.
Acceptance of the principle of self-correction leads to a further valid argument. The
exclusionary rule is not primarily aimed at discouraging unconstitutional official conduct: its
true purpose is to serve as an effective internal tool for maintaining
Page 209
and protecting the value system as a whole. But if officials are as a result of the exclusionary
rule deterred from infringing fundamental rights, then so much the better.

It can also be argued that the exclusionary rule merely reinforces existing rules regulating
police powers. Van Rooyen makes this point as follows: [70]
“It is usually said against the exclusionary rule that exclusion of illegally obtained evidence infringes
the principle that all relevant and credible evidence should be admitted at an accused’s trial. However,
upon close analysis it is clear that the policy decision that certain relevant and credible evidence may
not be obtained unless certain prerequisites are met — ie that relevant and credible evidence should
not be gathered at all costs — has already been taken by the rules regulating pre-trial police powers
(which I shall call ‘primary rules’) and is not newly imposed by the exclusionary rule (the “secondary
rule”). The secondary rule merely ‘enforces’ the primary rules: if, for example, the police in a given
case voluntarily obey the primary rules, the result may well be that certain evidence is lost and will
accordingly not be used at the trial — a calculated risk that we must run if we are to have legal limits
on police powers to infringe individual interests; if, on the other hand, the police flout the primary
rules, the secondary rule simply achieves the same result.”
S v Naidoo and Another [71] — decided under s 35(5) of the Constitution — provides a good
example of a case where flouting of the primary rules led to exclusion of the evidence. This
case is discussed in § 12 10 1 below.
In § 12 1 above it was pointed out that the exclusionary rule in the USA is a judicially
created rigid rule save for certain exceptions which were also judicially created. This is not
an ideal situation. [72] It is submitted, however, that the exceptions which the Supreme Court
of the USA has created in respect of its own rule, can assist South African courts in their
interpretation of s 35(5) of the Constitution — especially as regards the second (alternative)
leg of the test in s 35(5), that is, whether admission of the evidence “would otherwise be
detrimental to the administration of justice” (see § 12 10 below). After all, s 39(1) of the
Constitution itself provides that “[w]hen interpreting the Bill of Rights, a court . . . may
consider foreign law.”

The Fourth Amendment to the Constitution of the USA, provides as follows:
Page 210
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
In 1914 it was held that evidence obtained by federal agents in breach of the Fourth
Amendment, had to be excluded in a federal prosecution. [73] Almost five decades later, it
was held in Mapp v Ohio [74] that the rule also applied in state trials and to all evidence
obtained by law enforcement officers in violation of the Fourth Amendment. [75] This
exclusionary rule, which is sometimes referred to as “the rule in Mapp”, extends to “the fruit
of the poisonous tree” [76] — an approach which is subject to the qualification identified in
§ 12 5 1 1 (f) below. The rule in Mapp is also subject to several other general principles (see
§ 12 5 1 1 below) and at least three important exceptions (see §§ 12 5 1 2 to 12 5 1 4
below).
The ambit of the rule in Mapp is — quite apart from issues as to what conduct would or
would not in terms of American jurisprudence amount to unreasonable searches and seizures
for purposes of the Fourth Amendment [77] — limited by six general principles: (a) The
accused must have so-called “standing” — a requirement that is explained and discussed in
§ 12 8 3 below. (b) The rule does not apply to a civil tax action initiated by the federal
government, [78] or to evidence secured by a private individual as opposed to a state
official. [79] (c) Real evidence which the prosecutor could on account of the rule in Mapp not
have produced in the course of presenting the case for the prosecution, can —
Page 211
for the limited purpose of impeaching credibility — be introduced to contradict a statement

made by an accused in evidence in chief [80] or cross-examination. [81] (d) The Fourth
Amendment does not apply to the unlawful search and seizure by USA agents of property
located in a foreign country and owned by an accused who is a non-resident alien; [82] and
the rule in Mapp can, therefore, in these circumstances not be invoked to exclude evidence
obtained in the course of such an extra-territorial operation. [83] (e) Evidence inadmissible
under the rule in Mapp, may be used by a grand jury in deciding whether to indict an
accused. [84] (f) Where the connection between the unconstitutional conduct of the police and
the discovery of the challenged evidence is “so attenuated as to dissipate the taint”, [85]
exclusion is not required. [86] This is probably just another way of saying that on the facts of
the case there was a break in the causal chain between the Fourth Amendment violation and
its evidentiary “fruit” [87] — an issue which has also received judicial attention in South
African and Canadian jurisprudence (see § 12 8 2 below).
The Supreme Court has held that where the police had acted reasonably and in good faith in
relying on a statute [88] or a warrant, [89] there can be no deterrent reason for excluding the
evidence.
Page 212
In Arizona v Evans [90] a police officer, after having lawfully pulled the accused’s car over
on account of a traffic violation, ran a computer check which indicated that there was an
outstanding warrant for the arrest of the accused. The accused was arrested on the basis of
this warrant; and in the course of a “lawful” search of the accused and his car, dagga was
found. It only turned out later that the outstanding warrant on which the accused was
arrested, had been invalidated by a court fourteen days prior to the arrest and that, due to
an oversight by a court clerk, the computer records on which the police officer had relied,
were never corrected. Rehnquist CJ held that the exclusionary rule was originally designed
not to counter mistakes made by court clerks who do not form part of the police. It was
concluded that the police officer concerned had acted objectively reasonably and in good
faith. The real evidence could be received (see also § 12 10 1 below).
If police officers discover real evidence in breach of the Fourth Amendment and, subsequent
to such discovery, other police officials were to obtain the necessary search warrant on the
basis of information constitutionally obtained (for example, from informers and through
permissible police surveillance), the real evidence seized in terms of the warrant will be
admissible on the ground that it was secured through sources independent from — and
wholly unconnected with [91] — the initial unconstitutional discovery. [92] Langenhoven has
suggested that the “independent source” doctrine should also be applied in the application of
s 35(5) of the South African Constitution [93] (see also § 12 10 6 below).
Real evidence obtained during a so-called “stop and frisk” (a police officer’s brief “field
detention” of a person and the patting down of the outer clothing of the person on the basis
of the police officer’s reasonable belief that criminal activity is afoot) is admissible [94] despite
the fact that such conduct does, strictly speaking, fall short of the requirements set by the
Fourth Amendment. It has been said that the “stop and frisk” procedure is “of considerable
importance both in principle and in practice”. [95] In fact, the “stop and frisk” exception (if it
is indeed an exception and not merely a restrictive interpretation of the Fourth Amendment)
high-lights the absurdity of a rigid exclusionary rule and underlines the importance of a
flexible rule which permits a balancing, or comparative assessment, of the
Page 213
needs of the police and the rights of the individual. It has been suggested [96] (correctly, it is
submitted) that South African courts should in their interpretation of s 35(5) of the
Constitution follow the rationale of the rule established in Terry v Ohio. [97]
These warnings were established by a five to four majority in Miranda v Arizona: [98]
“[W]e hold that when an individual is taken into custody or otherwise deprived of his freedom by the
authorities in any significant way and is subjected to questioning, the privilege against self-
incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege . . . [T]
he following measures are required. He must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him in a court of law, that he has the right
to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him
throughout the interrogation. After such warnings have been given, and such opportunity afforded
him, the individual may knowingly and intelligently waive these rights and agree to answer questions
or make a statement. But unless and until such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”
These rules were designed to protect [99] the Fifth Amendment privilege against self-
incrimination: “No person . . . shall be compelled in any criminal case to be a witness against
himself.” The court took the view that the point at which the adversary system of criminal
proceedings commences is “when the accused is first subjected to police interrogation while
in custody . . . or otherwise deprived of freedom of action in any significant way.” [100]
The Sixth Amendment right to counsel was incorporated in the Miranda-warnings in order
to secure effective protection of the privilege against self-incrimination: there is a right to
consult counsel prior to police questioning and to have counsel present during such
questioning. [101] Where an accused has initially waived this right but reasserts it during
questioning, all questioning must stop. All questioning must also cease “[if] the individual
indicates in any manner, at any time . . . during questioning, that he wishes to remain
silent.” [102]
In Miranda v Arizona it was specifically pointed out that the warnings are prerequisites to
the admissibility of any statement made by an accused: inculpatory as well as exculpatory
statements fall within the rule and no
Page 214
distinction can be drawn between confessions and admissions, because the privilege against
self-incrimination “does not distinguish degrees of self-incrimination”. [103]
12 5 2 1 The ambit of the exclusionary rule in Miranda [104]
The exclusionary rule in Miranda does not apply to responses received from individuals in the
course of “[g]eneral on-the-scene [police] questioning as to facts surrounding a crime or
other general questioning of citizens in the fact-finding process”. [105] Miranda is confined to
“custodial interrogation” or interrogation where the individual has been deprived of his
freedom in any significant way. [106] And it has been held that the Miranda safeguards are not
only activated by “express questioning” of the accused, but also its “functional equivalent”,
that is, where the police, after having administered the warnings, use words or take actions
which “the police should know are reasonably likely to elicit an incriminating response from
the suspect”. [107]
A statement obtained after a valid waiver is admissible. [108] A waiver of rights is valid
where the suspect did so voluntarily, knowingly and intelligently. [109] In Oregon v Elstad [110]
the accused made a non-coerced statement in the absence of the Miranda-warnings. Later
that same day he made a second statement which was properly preceded by the
Miranda-warnings. The first statement was excluded. The second statement, the court held,
could be admitted. The court rejected the accused’s argument that for purposes of the
second statement he was unable to give a fully informed waiver since he was unaware that
his first statement could not be used. The court held that it was “neither practicable nor
constitutionally necessary” [111] that the accused should in respect of the second statement
have been informed that the first statement could not be used by the prosecution. The court
also noted that, in the case of the accused,
Page 215
“the causal connection between any psychological disadvantage created by his [first
statement] and his ultimate decision to cooperate is speculative and attenuated at best”. [112]
In Moran v Burbine [113] the Miranda-warnings were properly administered. The police,
however, did not inform the suspect that a lawyer arranged by a family member had
attempted to reach him. They also misinformed counsel that the suspect would not be
questioned. The court — by a six to three majority — nevertheless concluded that the
accused’s waiver was valid because “[e]vents occurring outside of the presence of the
suspect and entirely unknown to him surely can have no bearing on the capacity to
comprehend and knowingly relinquish a constitutional right”. [114] The waiver, according to
the court, was also valid because the accused’s “voluntary decision to speak was made with
full awareness and comprehension of all the information Miranda requires the police to
convey”. [115] This decision must be compared with S v Mphala and Another, [116] which was
decided under s 35(5) of the South African Constitution and which is discussed in § 12 9 5
below.
The evidence of a prosecution witness identified as a result of an accused’s non-coerced
but inadmissible statement obtained in breach of Miranda, is admissible. [117] In such an
instance, the conduct of the police did not violate the accused’s “constitutional privilege
against compelled self-incrimination, but departed only from the prophylactic standards laid
down . . . in Miranda to safeguard the privilege”; [118] and the testimony of the witness can
therefore not be suppressed as a fruit of the poisonous tree. A non-coerced confession
obtained in violation of Miranda is inadmissible, but real evidence discovered as a result of
such an inadmissible statement is admissible (see § 12 9 7 below).
In New York v Quarles [119] it was decided that there is a “public safety” exception to the
requirement that Miranda-warnings be given before a suspect’s answers may be received as
evidence to prove guilt: “[A] situation posing a threat to public safety outweighs the need for
the prophylactic rule protecting the Fifth Amendment’s privilege against self-
incrimination.” [120] New York v Quarles is discussed in more detail in § 12 9 4 below.
In Oregon v Hass [121] and Harris v New York [122] it was decided that an accused’s pre-trial
statement which would have been admissible as part of the prosecution’s case but for the
fact that
Page 216
Miranda-warnings were not given, may in cross-examination be used for the limited purpose
of attacking the credibility of the accused if the accused’s evidence in chief happens to be
inconsistent with such a pre-trial statement. This rule is, in the context of South African and
Canadian jurisprudence and constitutional provisions, discussed in § 25 5 below.
This exception was created in Nix v Williams. [123] Evidence of the accused’s non-coerced
statements to the police and of the fact that he had led the police to the deceased’s body,
was inadmissible because it had been obtained as a result of an improper police
“interrogation” [124] in breach of the accused’s Sixth Amendment right to counsel. However,
the court ruled that evidence of the condition of the body was admissible. The court rejected
the “fruit of the poisonous tree” argument advanced on behalf of the accused. It was held
that the body of the deceased would inevitably have been discovered by “lawful means”. The
lawful means the court relied on was the fact that prior to and at the time of the improper
police interrogation, a massive and systematic search for the body of the deceased was in
progress. The search party consisted of some 200 volunteers and police who were not
involved in the improper interrogation of the accused. A grid system was used. The court
concluded that this search party would ultimately have discovered the body if it had not
been for the fact that the search was called off after the accused had — as a result of the
improper interrogation — led the police to the body. The court did not — and could not —
rely on the “independent source” exception (see § 12 5 1 3 above) in admitting the
evidence. However, Burger CJ reasoned and found as follows: [125]
“[W]hile the independent source exception would not justify admission of the evidence in this case, its
rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery
exception to the Exclusionary Rule . . . If the information ultimately or inevitably would have been
discovered by lawful means — here the volunteers’ search — then the deterrence rationale has so
little basis that the evidence should be received. Anything less would reject logic, experience, and
common sense.”
The clear implication of Nix v Williams is that the evidence of the condition of the body would
have been excluded in the absence of a finding of inevitable discovery. What if the search
party had consisted of six people engaged in a haphazard search? Whilst the result in Nix v
Williams is certainly acceptable, this case also illustrates the rather contrived and somewhat
artificial arguments which are required to side-step a rigid exclusionary rule.

Section 24 of the Charter provides as follows:
“(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied
may apply to a court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.
Page 217
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence
shall be excluded if it is established that, having regard to all the circumstances, the admission
of it in the proceedings would bring the administration of justice into disrepute.”
It has been said that s 24 “reflects its historical background, a compromise between the
strict Anglo-Canadian inclusionary rule [126] and the perceived American absolute
exclusionary rule”. [127] Even in pre-Charter years various Canadian Commissions suggested
exclusion in accordance with the standard criterion that admission would “bring the
administration of justice into disrepute”. [128]
“Standing” is a requirement (see § 12 8 3 below). And s 24(4) can also only be relied
upon where there was a violation of Charter rights, even though a strict causal connection
between the violation and procurement of the evidence is not required (see § 12 8 2 below).
A court — in deciding whether the admission of the challenged evidence would bring the
administration of justice into disrepute — is directed by s 24(2) to consider “all the
circumstances”. It was a reappraisal of this requirement (“all the circumstances”) that
caused the majority of the Supreme Court of Canada in R v Grant [129] to overturn and adjust
its earlier interpretation of s 24(2) in cases such as R v Stillman [130] which, in turn, had
overruled R v Collins. [131] The majority in Grant was not comfortable with the fact that
Stillman [132] was generally understood “as creating an all-but-automatic exclusionary rule
for non-discoverable conscriptive evidence, broadening the category of conscriptive evidence
and increasing its importance to the ultimate decision on admissibility”. [133]
In Grant it was said: [134]
“A review of the authorities suggests that whether the admission of evidence obtained in breach of the
Charter would bring the administration of justice into disrepute engages three avenues of inquiry,
each rooted in the public interests engaged by s 24(2), viewed in a long-term, forward-looking and
societal perspective. When faced with an application
Page 218
for exclusion under s 24(2), a court must assess and balance the effect of admitting the evidence on
society’s confidence in the justice system having regard to: (1) the seriousness of the
Charter-infringing state conduct (admission may send the message the justice system condones
serious state misconduct), (2) the impact of the breach of the Charter-protected interests of the
accused (admission may send the message that individual rights count for little), and (3) society’s
interest in the adjudication of the case on its merits. The court’s role on a s 24(2) application is to
balance the assessments under each of these lines of inquiry to determine whether, considering all
the circumstances, admission of the evidence would bring the administration of justice into disrepute.”
The “three avenues of inquiry” referred to in Grant, are briefly discussed in §§ 12 6 1
to 12 6 3 below.
12 6 1 Seriousness of the state conduct infringing the Charter [135]
In assessing this issue, a Canadian court is required to determine whether the impugned
evidence would bring the administration of justice into disrepute “by sending a message to
the public that the courts, as institutions responsible for the administration of justice,
effectively condone state deviation from the rule of law by failing to dissociate themselves
from the fruit of that unlawful conduct.” [136] This approach confirms that the judicial integrity
rationale (see § 12 4 4 above) is one of the core foundations of s 24(2) of the Charter.
South African cases such as S v Mthembu [137] and S v Hena and Another [138] have also
relied upon judicial integrity as a factor in interpreting s 35(5).
In Grant it was said that the first line of inquiry required a Canadian to make [139]
“an evaluation of the seriousness of the state conduct that led to the breach. The concern of this
inquiry is not to punish the police or to deter Grant breaches, although deterrence of Charter breaches
may be a happy consequence. The main concern is to preserve public confidence in the rule of law
and its processes. In order to determine the effect of admission of the evidence on public confidence
in the justice system, the court on a s 24(2) application must consider the seriousness of the
violation, viewed in terms of the gravity of the offending conduct by the state authorities whom the
rule of law requires to uphold the rights guaranteed by the Charter.”
The court in Grant confirmed that Charter violations can vary in seriousness: minor or
inadvertent violations would “minimally undermine public confidence in the rule of law”, [140]
whereas a wilful or reckless disregard would inevitably have the opposite effect: [141]
“Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the
right in question may require that the court dissociate itself from such conduct. It follows that
deliberate police conduct in violation of established Charter standards tends to support exclusion of
the evidence. It should also be kept in mind that for every Charter breach that comes before the
courts, many others may go unidentified
Page 219
and unredressed because they did not turn up relevant evidence leading to a criminal charge. In
recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that
the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.”
Reference was also made to some earlier decisions where the Supreme Court of Appeal held
that the need to prevent disappearance of the evidence, [142] “may attenuate the seriousness
of police conduct” that breached the Charter. [143] Good faith police conduct minimises the
need for the court to distance itself from such conduct by excluding the evidence; [144]
however, ignorance of Charter standards and requirements “must not be rewarded or
encouraged and negligence or wilful blindness cannot be equated with good faith . . .” [145]
12 6 2 Impact on the accused’s interests as protected by the

Charter [146]
In R v Grant this criterion was referred to as the second line of inquiry, which “calls for an
evaluation of the extent to which the breach actually undermined the interests protected by
the rights infringed”. [147]
12 6 3 The interest of society in an adjudication on the merits [148]
This third line of inquiry in the interpretation of s 24(2), calls upon a Canadian court to ask
“whether the truth-seeking function of the criminal trial process would be better served by
the admission of the evidence, or by its exclusion”. [149] It is submitted that this inquiry is
really nothing else but a reference to the question whether — having regard to all
circumstances — factual guilt should prevail over legal guilt (see § 12 4 3 above). In Grant it
was also confirmed that the importance of the impugned evidence to the case of the
prosecution, is a factor to be considered. [150]

The majority in Grant examined the extent to which each line of inquiry would or could affect
the following types of evidence: statements by the accused; [151] bodily evidence; [152] non-
bodily physical evidence; [153] derivative evidence. [154]
Of pertinent importance is the fact that Grant overruled Stillman in two important
respects: there is no longer an all-but-automatic exclusionary rule for non-discoverable
conscriptive evidence and “all the circumstances” — rather than the conscriptive character of
the evidence — must determine
Page 220
admissibility; [155] and, furthermore, the inappropriate blurring of the distinction between real
and testimonial evidence should not be continued (see generally § 12 9 6 below).
It will probably still take quite a while before South African courts would be in a position to
indicate to what extent Grant, rather than Stillman, can provide guidelines in the
interpretation of our s 35(5). It is predicted that our courts will in future lean in favour of the
guidelines in Grant. However, as matters stand, our courts have been influenced by Stillman
and other Canadian decisions preceding Stillman, most notably R v Collins. [156]

12 7 1 The Anglo-South African common-law inclusionary approach
(and its development since constitutionalisation) [157]
In terms of s 252 of the CPA the law as to the admissibility of evidence which was in force in
respect of criminal proceedings on 30 May 1961, shall apply in any case not expressly
provided for in the CPA or any other law. [158] In matters not expressly provided for, the
English common law was in force on that date (see § 3 5 above) and in terms of this law a
fairly strict inclusionary approach to issues concerning the admissibility of relevant evidence
obtained illegally or improperly, is required. Relevance is the test, and “the court is not
concerned with how the evidence was obtained,” [159] except for the fact that “in a criminal
case a judge always has a discretion to disallow evidence if the strict rules of evidence would
operate unfairly against the accused”. [160]
In S v Forbes and Another [161] Theron J was satisfied that he had a discretion to exclude
evidence on grounds of public policy.
But the general trend was to include rather than exclude. A good example of the
application of the inclusionary rule can be found in S v Nel. [162] In this case the court
admitted evidence of certain private but “tapped” telephone
Page 221
conversations of the accused, despite the fact that the prosecution had failed to prove that
proper authorisation for the monitoring of these conversations had been obtained in terms of
(the then-existing) s 118A of the Post and Telecommunication-Related Matters Act. [163]
Refusing to accept or exercise a discretion to exclude, Van der Walt J held that unlawfully
obtained evidence could only be excluded where, first, the accused had been compelled to
provide evidence against himself and, secondly, the evidence had been obtained by duress
from an accused. [164] However, in S v Hammer and Others [165] Farlam J held — without
reference to S v Naidoo and Another — that there is a general discretion to exclude
improperly or illegally obtained evidence on the grounds of fairness and public policy, and
that there are various factors which should be considered by a court in deciding whether to
exercise this discretion. [166]
It should be noted that the common-law discretion has not been rendered redundant by
the provisions of s 35(5) of the Constitution: the admissibility of evidence obtained
improperly or illegally — but not in violation of a right in the Bill of Rights (see § 12 8 1
below) — must still be determined on the basis of the common-law discretion which must
now, however, be understood and applied in the context of the following observations by
Cameron J in S v Kidson: [167]
“It is correct, and it has been emphasised in a number of reported cases, that the exclusionary
provision contained in s 35(5) alludes expressly only to evidence obtained in a manner that violates
any right ‘in the Bill of Rights’. But it seems to me evident that the evidence obtained in unlawful
breach of any statute must be judged broadly in the same way since its admission may in some
manner imperil the accused’s right to a fair trial. It therefore seems appropriate to me on both legs of
this approach to consider whether ‘the admission of that evidence would render the trial unfair or
(would) otherwise be detrimental to the administration of justice’.”
At any rate, in terms of s 39(2) of the Constitution a court is required “to promote the spirit,
purport or objects of a Bill of Rights . . . when developing the common law”.
In Kidson the court, having ruled that “no constitutionally cognisable breach of privacy
[had] occurred,” [168] noted that the extent and flagrancy of the police’s contravention of a
statutory prohibition remained “an issue to be considered by the court in the exercise of its
discretion whether to admit the
Page 222
evidence or not.” [169] In this case the defence had challenged the admissibility of evidence of
a recording and transcript of a conversation between a state witness (hereafter “R”) and the
accused who was charged with murder. The recording was made covertly by R with the
assistance of the police and prior to the arrest of the accused. R himself was a suspect and
had supplied the police with information of his own involvement in the murder of the
accused’s husband. He co-operated with the police. At his suggestion, he visited the accused
at her home whilst carrying a concealed voice-activated tape recorder furnished to him by
the police for the purpose of recording a conversation with the accused. During the course of
R’s conversation with the accused, R deliberately invited incriminating statements from the
accused without disclosing that he was in effect a police agent. [170] Having made certain
findings as regards the provisions of the Interception and Monitoring Prohibition Act, [171] the
court held that participant monitoring was in the circumstances of this case not prohibited by
the afore-mentioned Act and, furthermore, that information relevant to the crime and
voluntarily conveyed by the accused to R — who had a legitimate interest of his own to
record this two-party conversation — was not confidential information for purposes of the
Act. The court also held that there was no entrapment (see generally § 12 12 below) and
that, although the police may have played a trick on the accused, there was no guile,
untruth or deception which amounted to disreputable or unacceptable police conduct. Even if
the evidence had been gained in contravention of the Interception and Monitoring Prohibition
Act, such contravention was merely formal [172] and minimal. [173] The facts of this case,
found Cameron J, were clearly distinguishable from S v Hammer and Others [174] (where the
police conduct was unlawful and morally reprehensible) and S v Naidoo and Another [175]
(where the police presented patently false and downright misleading information to a judge
in order to obtain authorisation for third party monitoring). The conduct of the police in
Kidson provided no ground for exclusion; and admission of the evidence could not have
rendered the trial unfair. The court accordingly held that the evidence was admissible.

The interim Constitution did not contain any express provision governing the admissibility of
unconstitutionally obtained evidence. At Kempton Park two members of the Technical
Committee
Page 223
on Fundamental Rights were in favour of inserting a qualified exclusionary rule in the

proposed interim Constitution. [176] However, the majority of the Committee thought that no
such rule was required and that even a restricted constitutionalization of the exclusionary
rule could have had a detrimental effect on the prevention and combating of crime during
what they thought could have been “an unstable period of political transition”. [177] The view
of the majority prevailed, even though it must have been clear to all concerned that the
common-law crime control inclusionary approach was incompatible with a constitutional due
process system.
When the interim Constitution came into operation, the courts could no longer rely on
decisions like R v Mabuya. [178] In this case Gardiner JP admitted evidence obtained as a
result of what (he assumed, for purposes of argument) had been an unlawful search of a
private dwelling. He remarked as follows: [179]
“The only authority for . . . exclusion comes from the American courts. There are certain decisions
based on the American Constitution which . . . exclude evidence of this nature, but one must bear in
mind the sanctity which the Americans attach to their Constitution. We have not that Constitution
here, and that authority is not applicable.”
Constitutionalization required an immediate and fundamental reappraisal of the South
African jurisprudence concerning the admissibility of illegally procured evidence: if courts of
law were routinely to have received evidence obtained in breach of constitutional rights, the
constitutional rights concerned would have been stripped of their status as constitutional
guarantees. [180] Most courts responded by excluding evidence which, prior to
constitutionalization, would have been admitted: [181] in some instances reliance was placed
on the “appropriate relief” provision that was contained in s 7(4) of the Interim
Constitution; [182] in other instances the courts merely invoked and adapted
Page 224
their common-law discretion with vigour in order to meet the demands of constitutional due
process; [183] and in some cases the clear impression was created that a rigid rule of
exclusion had to be applied in respect of unconstitutionally obtained evidence. [184]
The fact that s 35(5) of the Constitution now addresses the admissibility of
unconstitutionally obtained evidence, does not necessarily mean that cases which were
decided under the interim Constitution and which dealt with the topic of unconstitutionally
obtained evidence, have become irrelevant. [185] On the contrary, courts which have been
called upon to interpret s 35(5) of the Constitution, have on several occasions referred to
and relied upon cases decided under the interim Constitution (as will be evident from the
discussion of s 35(5) in §§ 12 9 to 12 10 6 below). For present purposes it is sufficient to
note the following broad principles and trends established in some cases decided under the
interim Constitution and which, it is submitted, probably played an important role in the
formulation of s 35(5) of the Constitution:
Even though the courts “did not always [identify] the basis of exclusion, it seems usually to
have been done under the overarching right to a fair trial” [186] which was embodied in s 25
(3) of the Interim Constitution and which was on at least two occasions, in respect of
derivative evidence, [187] suggested by the Constitutional Court [188] as
Page 225
being the true basis. In S v Melani (hereafter “the second Melani case”) it was held that
violations of constitutional rights “resulting in an accused being conscripted against himself
through some form of evidence emanating from himself would strike at one of the
fundamental tenets of a fair trial, the right against self-incrimination”. [189] Compliance with
constitutional pre-trial rights was necessary to protect the constitutional right to a fair
trial; [190] and non-compliance had to have some measurable consequence, namely
exclusion, not only in order to maintain the longer term purposes of the Constitution but also
to ensure that the constitutional right to a fair trial was not a mere pious promise. On the
basis of the second Melani case as well as several other cases decided under the interim
Constitution, the following principle emerged: the failure of the police to inform, [191] or
adequately to inform, [192] an arrestee [193] of his relevant constitutional rights [194] at every
critical stage [195] of the investigative process, would as a general rule [196] require exclusion
of all testimonial communications — for example, confessions, admissions, pointings out —
received from such an arrestee. These unconstitutionally obtained conscriptive testimonial
communications imperiled the constitutional right to a fair trial and could be excluded
regardless of the fact that all the requirements for admissibility as
Page 226
set by s 217 [197] or, where applicable, s 219A [198] of the CPA had been met [199] and
regardless of the fact that the Judges’ Rules [200] had been properly administered and applied
by the police. [201]
The drafters of the interim Constitution had elevated the prophylactic rules in Miranda
(see § 12 5 2 above) to constitutional rights, but stopped short of incorporating the true
essence of Miranda, namely that statements obtained in breach of the warnings must be
excluded. The courts — even though they were not always consistent in their approaches —
were quick to sense that exclusion of testimonial communications was as a general rule
necessary where the arrestee had not been informed of his constitutional rights aimed at
protecting his right to a fair trial. In this respect S v Gasa and Others [202] is probably the
best example. In this case two accused were not fully informed of their rights in terms of
s 25(1)(c) of the Interim Constitution — more specifically, their right to have a legal
representative appointed at state expense in certain circumstances. Howard JP held that
without full knowledge of their rights, the accused could not validly have waived their rights
and that — in the absence of a valid waiver — the pointings out, and any admissions arising
therefrom, were inadmissible. However, in S v Malefo en Andere [203] MJ Strydom J adopted a
different approach. After having set out the various approaches that could be adopted in
respect of the admissibility of testimonial communications obtained in contravention of an
arrestee’s constitutional rights, he decided that he had a discretion. The factual finding was
made that the accused had never suggested — except hypothetically and in passing — that
the failure of the police to advise them of their right to legal representation, had had any
effect on them in making the testimonial communications which they did. On this basis the
court exercised its discretion in favour of admitting the impugned evidence.
12 7 2 2 The discretion to exclude unconstitutionally obtained real evidence
In S v Motloutsi [204] incriminating real evidence was not discovered by the police on account
of a testimonial communication unconstitutionally obtained from the accused, but as a result
of the police’s breach of the accused’s constitutional rights to privacy. The evidence was
excluded. Self-incrimination played no role and therefore trial fairness was not the ground
for exclusion. In fact, the court (correctly, it is submitted) did not even consider this ground.
Relying on the
Page 227
Irish decision in The People (Attorney General) v O’Brien, [205] Farlam J expressly rejected
the rule in Mapp (see § 12 5 1 above) as being too rigid. [206] He concluded that the
discretionary approach in the O’Brien case [207] was in accordance with the law in South
Africa. [208] He excluded the real evidence because “there had been a conscious and
deliberate violation of the accused’s constitutional rights and no extraordinary excusing
circumstances existed”. [209] Motloutsi was followed by Van Reenen J in S v Mayekiso en
Andere. [210] In the latter case there was no evidence that the unconstitutional search and
seizure by the police had taken place with a view to preventing the imminent destruction of
significant evidence. Van Reenen J noted that, in the exercise of its discretion, the court
should weigh up the objects of the interim Constitution (protection of human rights) against
policy considerations (the community’s interest in justice being done). [211] The court
ultimately excluded the unconstitutionally obtained real evidence because its limited
probative value was outweighed by the fact that the constitutional right of the accused had
been breached. [212]
Under the interim Constitution it was held that courts, though accountable to the public,
should not seek “public popularity”. [213] It was generally accepted that exclusion might be
necessary despite public opinion to the contrary; [214] and the interests of society, though
relevant, could not ultimately displace the longer term purposes of a Constitution limiting
governmental power and seeking to establish a democratic order based on, amongst other,
the recognition of human rights. [215] In S v Nombewu [216] Erasmus J, having noted that
“public opinion is at most peripheral” to what constitutes a fair trial, [217] pointed out that
public opinion would no doubt be affected by the nature and seriousness of the violation, the
Page 228
nature of the crime, the seriousness of the crime and the state of lawlessness prevailing in
the country. [218] Erasmus J, however, also said: [219]
“Not that a court will allow public opinion to dictate its decision . . . The court should in fact endeavour
to educate the public to accept that a fair trial means a constitutional trial, and vice versa.
Pronouncements on human rights by the Courts and academics obviously add body to the
jurisprudence which surrounds the Constitution. But abstract statements of law very often mean
different things to different people, and very little to the bereaved and aggrieved who see factually
guilty accused go free in consequence of some infringement of his constitutional rights by officials
enforcing the law. It is therefore the duty of the courts in their everyday activity to carry the message
to the public that the Constitution is not a set of high-minded values designed to protect criminals
from their just deserts; but is in fact a shield which protects all citizens from official abuse. They must
understand that for the courts to tolerate the invasion of the rights of even the most heinous criminal
would diminish their constitutional rights. In other words, the courts should not merely have regard to
public opinion, but should mould people’s thinking to accept constitutional norms using plain language
understandable to the common man.”
Despite their denials to the contrary, the courts were clearly concerned about the effect of
exclusion on the repute of the administration of justice. And this is one of the reasons why
s 24(2) of the Canadian Charter featured so frequently in cases decided under the Interim
Constitution.
In S v Motloutsi [220] Farlam J, in preferring the Irish approach, took the view that the
criterion “would bring the administration of justice into dispute” as embodied in s 24(2) of
the Canadian Charter, was “too narrow”. [221] The impact of admission on the repute of the
system, held Farlam J, was “but one factor, although an important one, to be taken into
account”. [222] However, in several other decisions the courts came very close to adopting the
approach as set out in s 24(2) of the Charter. [223] And in S v Malefo en Andere [224] Strydom
J in fact adopted the Canadian approach in toto.
According to Strydom J the following question taken from R v Collins [225] had to be asked:
would the admission of the challenged evidence discredit the administration of justice in the
eyes of a reasonable person regarding the matter dispassionately, and who was fully aware
of (“ten volle bewus van”) the circumstances of the case? [226] Strydom J also quoted with
approval that part of R v Collins where Lamer J identified the various factors which the
Canadian courts had most frequently considered in answering this question. [227]
Page 229

The principles and trends established by the High Court in respect of the admissibility of
evidence obtained in breach of rights embodied in Chapter 3 of the Interim Constitution (see
§§ 12 7 2 to 12 7 2 3 above), probably played a significant role in the formulation of s 35(5)
of the Constitution: “Evidence obtained in a manner that violates any right in the Bill of
Rights must be excluded if the admission of that evidence would render the trial unfair or
otherwise be detrimental to the administration of justice.” The general preference of the
High Court for the Canadian approach (see § 12 7 2 3 above) must also have played some
role. Section 35(5) is “[i]n structure and wording . . . closely modelled” [228] on s 24(2) of the
Canadian Charter, which was quoted in § 12 6 above. In S v Naidoo and Another McCall J
held: [229]
“Having regard to the similarity between s 35(5) of the new Constitution and s 24(2) of the Canadian
Charter (but bearing in mind the differences between the two enactments), [230] and also the provision
in s 39(1)(c) that when interpreting the Bill of Rights, a court may consider foreign law, I am of the
view that it is more helpful to interpret the provisions of s 35(5) with reference to the Canadian
decisions than to those South African cases dealing with a more general discretion based on the
decision in The People (Attorney General) v O’Brien.” [231]
Langenhoven supports this approach in principle [232] but also warns that South African
courts should be careful in following the Canadian case law on s 24(2) in all respects,
because the Canadian Supreme Court has moved in the direction of a “omvattende
uitsluitingsreël” [233] and has created an “extremely aggressive exclusionary remedy” [234] —
the precise situation which s 24(2) was designed to avoid. [235]
Page 230
Section 35(5), like s 24(2), can be described as a qualified exclusionary rule. Section 35
(5) contains a constitutional directive to the effect that evidence obtained in a manner that
violates any right in the Bill of Rights, must be excluded. This directive, however, becomes
operative only where admission of the unconstitutionally obtained evidence would render the
trial unfair (see § 12 9 below) or would otherwise be detrimental to the administration of
justice (see § 12 10 to 12 10 6 below). On the basis of this analysis, the courts have a duty
as well as a discretion. There is a duty to exclude if admission would have one of the
consequences identified in the section. [236] In this respect there is no discretion but a fixed
constitutional rule of exclusion. [237] However, in determining whether admission would have
one of the two identified consequences, a court is required to make a value judgment [238] —
and in this respect there is a discretion which must, obviously, be exercised having regard to
all the facts of the case, fair trial principles and, where appropriate, considerations of public
policy. It should be noted that what is relevant or decisive for purposes of determining
whether admission would render the trial unfair, is not necessarily also relevant or decisive
for purposes of determining whether admission would be detrimental to the administration of
justice. For example, factors like the seriousness and prevalence of the crime, cannot tip the
scales in favour of admission if admission would indeed render the trial unfair (see § 12 9
below). In S v Naidoo and Another McCall J pointed out that the words “or otherwise” in s 35
(5) mean that an unfair trial is always detrimental to the administration of justice. [239] The
reverse, of course, is not true: if admission would not render the trial unfair, exclusion might
still be necessary on the basis that admission would be detrimental to the administration of
justice. In S v Tandwa and Others Cameron JA, Mlambo JA and Hancke AJA said: [240]
“The notable feature of the Constitution’s specific exclusionary provision is that it does not provide for
automatic exclusion of unconstitutionally obtained evidence. Evidence must be excluded only if it (a)
renders the trial unfair; or (b) is otherwise detrimental to the administration of justice. This entails
that admitting impugned evidence could damage the administration of justice in ways that would
leave the fairness of the trial intact: but where admitting the evidence renders the trial itself unfair,
the administration of justice is always damaged. Differently put, evidence must be excluded in all
cases where its admission is detrimental to the administration of justice, including the subset of
Page 231
cases where it renders the trial unfair. The provision plainly envisages cases where evidence should
be excluded for broad public policy reasons beyond fairness to the individual accused.”
Steytler has made the following valid observations: [241]
“It should be noted that there is principally one test — whether the admission of evidence would be
detrimental to the administration of justice. The test relating to the fairness of the trial is a specific
manifestation of this broader enquiry; to have an unfair trial is demonstrably detrimental to the
administration of justice. Having said this, it should be emphasized that section 35(5) has created two
tests which should be kept separate; rules applicable to one are not necessarily applicable to the
other.”
In the present work the two tests are also kept apart: the test whether “admission
would . . . render the trial unfair”, is discussed in §§ 12 9–12 9 8 below; and the second (or
alternate or over-arching) test whether “admission . . . would otherwise be detrimental to
the administration of justice”, is discussed in §§ 12 10–12 10 6 below. But it will also
become evident that there is considerable over-lapping.

The threshold test for purposes of s 35(5) is the following: is the objection to the admission
of the evidence based upon the violation of a constitutional right (“any right in the Bill of
Rights”) or the violation of a non-constitutional right (for example, where a statute has
conferred “more extensive rights” [242] on the accused than those which are explicitly or
impliedly found in the Bill of Rights)? Section 35(5) will attract application only where
evidence was obtained after a breach of constitutional rights (see § 12 8 2 below) or in
breach of constitutional rights. [243] The admissibility of evidence obtained improperly or
illegally — but not in violation of a right in the Bill of Rights — must be determined on the
basis of the court’s common-law discretion (as set out in § 12 7 1 above). But in the
exercise of its common-law discretion, the court should ensure that the constitutional right
to a fair trial is not jeopardised by the admission of improperly or illegally obtained evidence.
It has rightly been pointed out that s 35(5) “was intended to add to and not to distract from
the constitutional right to a fair trial”. [244] The fact that s 35(5) is confined to evidence
obtained in breach of constitutional rights, provides no ground for an inference that “the
framers of the . . . Constitution intended to restrict the right to a fair trial by allowing
illegally or improperly obtained evidence to be admitted even if it rendered the trial
unfair”. [245] This is also the clear implication of S v Kidson [246] as discussed in § 12 7 1
above.
Page 232
12 8 2 Section 35(5): The causal link between violation and
procurement
The Canadian Supreme Court takes the view that the words “obtained in a manner” in s 24
(2) of the Charter do not demand a strict or direct causal link between the breach of a
Charter right and the securing of the evidence. [247] In R v Strachan [248] it was held that the
problems and pitfalls of causation could be avoided by focusing on the entire chain of events
during which the Charter breach occurred and the evidence was obtained. The court
emphasised the value of a temporal link (for example, where the violation and procurement
of the evidence took place in the course of a single transaction) in assessing the issue
whether the evidence was obtained in a manner that infringed a Charter right, but also
added the following: [249]
“The presence of a temporal requirement is not, however, determinative. Situations will arise where
evidence, though obtained following the breach of a Charter right, will be too remote from the
violation to be ‘obtained in a manner’ that infringed the Charter . . . [T]hese situations should be dealt
with on a case-by-case basis. There can be no hard-and-fast rule for determining when evidence
obtained following the infringement of a Charter right becomes too remote.”
R v Goldhart [250] is an example of a case where the Supreme Court of Canada, in an eight to
one majority, concluded that the causal connection between the Charter breach and the
evidence was too weak to attract the application of s 24(2). In this case the accused, G, was
charged with cultivating dagga. At the trial real evidence obtained during a search in breach
of G’s rights under s 8 of the Charter, was excluded. However, G was convicted on the
evidence of a former co-accused who had earlier pleaded guilty and who was present at the
time of the unconstitutional search. On appeal G was acquitted on the basis that there was a
causal link between the co-accused’s oral testimony and the unconstitutional search: had the
police not conducted the unconstitutional search, the co-accused would not have been
arrested, would have had no reason to come forward and would not have given evidence
against G. On an appeal by the Crown to the Supreme Court, it was held that the testimony
of the co-accused had not been obtained in a manner that infringed a right or freedom under
the Charter. There was an insufficient link or causal connection. The co-accused’s decision to
co-operate with the police, plead guilty and testify against G was a decision which he had
taken of his own free will and which had been brought about largely by his recent conversion
as a born-again Christian. In these circumstances, the decisive factor was not the arrest of
the
Page 233
co-accused, but his subsequent voluntary decision to testify: the discovery of the witness
following upon a Charter breach could not be equated with the evidence of this witness. [251]
In S v Mthembu [252] it was common cause that R, a prosecution witness and accomplice
who had testified after having been warned in terms of s 204 of the CPA, had been tortured
by the police some four years prior to his testifying in court and — as a result of the torture
— had made a statement that led to the discovery of articles incriminating the accused.
Cachalia JA (Cameron JA and Maya JJA concurring) found that the fact that the evidence was
obtained in breach of the constitutional rights of the witness — as opposed to those of the
accused — was no bar to subjecting the impugned evidence (the oral evidence of R and the
real evidence) to the admissibility test as provided for in s 35(5) of the Constitution (see
§ 12 8 3 below). As regards the chain of events or causal link between R’s torture and his
subsequent testimony in court, Cachalia JA found that R had
“made his statement to the police immediately after the metal box was discovered at his home
following his torture. That his subsequent testimony was given apparently voluntarily does not detract
from the fact that the information contained in that statement pertaining to the Hilux and metal box
was extracted through torture. It would have been apparent to him when he testified that, having
been warned in terms of s 204 of the Act, any departure from his statement would have had serious
consequences for him. It is also apparent from his testimony that, even four years after his torture,
its fearsome and traumatic effects were still with him. In my view, therefore, there is an inextricable
link between his torture and the nature of the evidence that was tendered in court. The torture has
stained the evidence irredeemably.” [253]
R’s evidence relating to the Hilux and metal box was accordingly excluded under the second
leg of the test in s 35(5) and irrespective of whether admission thereof would have had an
impact on the right of the accused to a fair trial.
In S v Mark and Another [254] four prosecution witnesses who were prisoners at the time of
the death of the deceased and who were eye-witnesses to the murder of the deceased,
admitted in their evidence in court that shortly after the murder they were assaulted by
prison warders who wanted them to disclose the identity of the murderer(s). Both counsel
for the defence sought exclusion of the oral testimony of the witnesses on the basis of, inter
alia, the provisions of s 35(5). Davis J proceeded from the premise that there had to be “a
sufficient link” [255] between the oral testimony of the four witnesses and the earlier
infringement of their constitutional rights to dignity and bodily integrity. He then held: [256]
“The difficulty in this case is that each of the four witnesses testified in open court some two and a
half years after the events; they all insisted as a result of examination and
Page 234
cross-examination that they had testified voluntarily. They claimed that they wished to testify because
an innocent person had been murdered. Even if they were somewhat apprehensive in their testimony,
that may well have been due to fear of reprisals from prison gangs rather than from the authorities.
In two cases the witnesses were already discharged from prison (and a third was discharged during
the trial). While the statements were unquestionably tainted, it would be a dramatic extension of the
poisoned fruit doctrine to conclude that evidence given by witnesses in the circumstances I have
outlined should be declared inadmissible as opposed to it being subject to careful scrutiny.”
In this case the link was extremely weak — if not entirely missing; and the fact that the
witnesses had testified voluntarily also caused a break in the rather lengthy chain of events
— in so far as it is possible to refer to a chain of events in this case. It should be noted that
Davis J held that the statements obtained by the authorities from the witnesses after the
incident and after the assaults, were “unquestionably tainted”, but not the oral testimony in
court. This was not a situation, said he, where the case for the prosecution was based on
evidence extracted by torture. [257] In such an instance exclusion would have been required.
It should be mentioned, in passing, that issues concerning “standing” (see § 12 8 3 below)
were neither raised nor considered in S v Mark and Another. In Mark both accused sought
exclusion not on the basis that the impugned testimony was obtained in violation of their
constitutional rights, but in violation of the rights of the four prosecution witnesses. It was
argued that admission of the oral evidence of the latter would render the trial of the accused
unfair or otherwise be detrimental to the administration of justice. S v Mark and Another
obviously did not involve the risk of unconstitutionally obtained self-incriminating evidence
which could or would have affected the right to a fair trial.
Where an accused relies on s 35(5) in circumstances where it is alleged that the impugned
evidence was obtained as a result of a breach of his constitutional rights, it seems as if a
fairly liberal interpretation should be given to the words “[e]vidence obtained in a manner
that violates any right in the Bill of Rights.” In S v Soci [258] Erasmus J — having noted that
the Constitution is no ordinary statute and having assumed that a purposeful interpretation
was required — concluded that the evidence referred to in the words “[e]vidence obtained in
a manner that violates any rights in the Bill of Rights” in s 35(5) included all acts performed
by a detainee subsequent to an infringement of his constitutional rights in the course of pre-
trial investigations. [259] He also took the following view: [260]
“Only on such basis can the evidence of the pointing-out and the statement by the accused be said to
have been ‘obtained in violation of a right in the Bill of Rights’ even in the absence of a causal
connection between the violation and the subsequent self-incriminating acts by the accused. On such
basis prejudice would not be a consideration
Page 235
in establishing the presence of the jurisdictional fact that the evidence was ‘obtained’ in a manner that
violates the Bill of Rights . . . However, a prejudice to the accused, in my view, becomes relevant
under the requirement in s (5) that the evidence must be excluded ‘if the admission of that evidence
would render the trial unfair’ . . . This view accords with the explicit terms of s 35(5) that the violation
must ‘render’ the trial unfair. [261] It is further to be noted that s 35(5) provides that the evidence shall
be excluded — in the alternative — if the admission of that evidence would ‘otherwise be detrimental
to the administration of justice’. The court has the power (indeed duty) to exclude evidence if the
admission thereof would bring the administration of justice into dispute, even where there is no causal
connection between the constitutional infringement and the subsequent self-incriminatory acts by the
accused. It seems to me that the question of prejudice lies at the very basis of the distinction between
the two requirements in s (5).”
The court, having made the factual finding that the accused had not been informed by the
police that he was entitled to consult a lawyer prior to and in connection with the proposed
pointing out, concluded that the issue of admissibility had to be decided “on the basis that
there was a . . . link between the infraction of the right and the accused’s pointing-out’. [262]
The evidence of the pointing out was excluded. In respect of a confession made by the
accused to a magistrate less than three hours after the pointing out, the factual finding was
made that the accused, fully informed of his rights by the magistrate, had nevertheless
decided to make a statement without first consulting a legal representative. Erasmus J
held: [263]
“It could, of course, be argued that his decision to make the statement was affected by his earlier
pointing-out. But the fact of the matter here is that the accused was fully informed of his rights and in
fact advised to obtain legal assistance. What he would or would not have done but for the preceding
pointing-out is a matter of speculation. In my view therefore the admissibility of the statement must
be decided on the basis that there was no causal connection between the failure on the part of the
police to advise the accused of his rights properly and the subsequent statement made to the
magistrate.”
Soci, it is submitted, is an example of a case where a valid waiver provided a break in the
chain of events (see also § 12 9 5 below). The accused voluntarily, knowingly and
intelligently decided not to consult a legal practitioner prior to his making a statement to the
magistrate — a decision which was neither directly nor indirectly affected by the prior
unconstitutional conduct of the police in relation to the pointing out. That is why there was
no link. In this respect, however, Soci should be compared with the Canadian Supreme
Court decision R v I (LR). [264] In this case a young person’s first statement to the police was
excluded because he was in breach of the Charter not informed of his right to retain and
instruct counsel. However, for purposes of a second statement he
Page 236
was so informed. The court nevertheless also excluded the second statement under s 24(2)
of the Charter. There was a close temporal relationship between the two statements and the
second was really a continuation of the first. The first statement was, furthermore, a
substantial factor which led to the second statement. [265]
It is submitted that there are good reasons why a strict causation test should not be
followed. A strict test will compromise the judicial integrity rationale (see § 12 4 4 above) of
s 35(5) and would also undermine the principle of self-correction (see § 12 4 5 above) in
terms of which courts should not tolerate or accommodate abuses in the system. A strict
causation test might also have an adverse impact on the deterrent purpose or basis of the
exclusionary rule (see § 12 4 1 above) embodied in s 35(5): state officials and agents of the
state should not be permitted to operate on the basis that violations of constitutional rights
will be tolerated if remotely connected to the procurement of the evidence. At any rate, a
strict causation test diverts attention from the two true tests embodied in s 35(5), namely,
whether admission of the evidence would render the trial unfair or otherwise be detrimental
to the administration of justice.

In the USA the accused must in principle have so-called “standing” before he can rely on the
exclusionary rule. [266] This means that there must have been a violation of the rights of the
accused; for example, if A’s house is searched by the police in breach of the Fourth
Amendment, any evidence obtained that incriminates B may be admitted at B’s trial but not
at A’s trial. [267] Standing is also a requirement in Canada. [268] However, there is no such
restriction as far as s 35(5) of the Constitution is concerned. In S v Mthembu Cachalia JA
held: [269]
“A plain reading of s 35(5) suggests that it requires the exclusion of evidence improperly obtained
from any person, not only from an accused. There is, I think, no reason of principle or policy not to
interpret the provision in this way. It follows that the evidence of a third party, such as an accomplice,
may also be excluded, where the circumstances of the case warrant it. This is so even with real
evidence. As far as I am aware, this is the first case since the advent of our constitutional order where
the issue has pertinently arisen.”
It is submitted that there are indeed no grounds upon which a requirement of “standing” can
be read into s 35(5) of the Constitution. There is nothing in the language of s 35(5) which
calls for a restrictive interpretation. A requirement
Page 237
of “standing” would also be inconsistent with the “preventive effect” rationale (see § 12 4 1
above) of s 35(5) and would, furthermore, ignore the essential form of judicial “remote
control” which courts can through s 35(5) exercise over police officials when they operate in
the field. [270] Judicial integrity (as discussed in § 12 3 above) would also be seriously
compromised by a requirement of “standing”. It is true that s 35(5) forms part of a section
that deals with the rights of arrested, detained and accused persons. At the same time,
however, it is equally true that s 35(5) refers to “any right in the Bill of Rights” and does not
specify who the bearer of such right should be. To argue that s 35(5) can only be activated
in respect of evidence obtained in breach of a constitutional right of an accused, is to lose
sight of the true focus of s 35(5), namely to ensure that the admission of unconstitutionally
obtained evidence would not have the consequences identified in the section.
Langenhoven also rejects the idea that “standing” is a prerequisite. According to him, s 35
(5) is not a personal remedy, but “’n indirekte meganisme om alle individue se grondwetlike
regte te beskerm”. [271] However, he argues that a court may — in its assessment of the
issue whether the admission of the evidence would be detrimental to the administration of
justice — take into account the fact that constitutional rights of a third party and not those
of the accused, were violated. [272]
It is submitted that the provisions of s 39(1)(a) of the Constitution also provide further
support for the argument that a requirement of “standing” should not be read into s 35(5).
There also seems to be no reason why the admissibility of evidence obtained in breach of the
constitutional rights of the accused should be dealt with in terms s 35(5) whereas the
admissibility of the same type of evidence which involved the constitutional rights of third
parties, should fall under a court’s common-law discretion as set out in § 12 7 1 above.
12 8 4 Section 35(5) and the admissibility of evidence

unconstitutionally procured by private individuals
Section 35(5) also applies to the situation where the prosecution wishes to introduce
evidence unconstitutionally obtained by private individuals [273] who, in obtaining this
evidence, had acted quite independently from the state and its law enforcement officers, [274]
officials
Page 238
or agents. [275] The courts should not permit a “silver platter” situation, [276] that is, a
situation where the provisions of s 35(5) can be ignored on account of the fact that the
impugned evidence was not procured by the unconstitutional conduct of the state but only
made available to it by a private individual who had secured it in breach of constitutional
rights. Section 35(5) applies to a situation where vigilantes, having decided to resort to self-
help by not involving the police in the investigation of the crime, obtain evidence in breach
of the constitutional rights of the accused. [277] Section 35(5) also covers the situation where
the police abdicate their constitutional and statutory duty to investigate crime, by
“subcontracting” it to anti-crime committees who gather evidence by seriously and
deliberately violating the constitutional rights of the accused. [278]
The question therefore ought to be whether the admission of the unconstitutionally
obtained evidence which the state seeks to use — and not which the state had necessarily
procured — would have the consequences identified in s 35(5).
It does not follow, however, that the court should, in deciding the question of admissibility
of the impugned evidence, disregard the fact that it was an individual — and not the state —
which had procured the evidence in breach of constitutional rights. Obviously, if the court
concludes that admission would render the trial unfair the evidence must be excluded.
However, where the issue is whether admission would be detrimental to the administration
of justice, a court would be perfectly entitled to take into account that it was an individual —
and not the state — which had procured the evidence. In such an instance the disciplinary
function of the court and the need to ensure that the state makes use of constitutionally
permissible investigative techniques, can hardly play a role. The issue is not the traditional
one of protecting individuals against abuse of power by the state, but protecting individuals
against abuses of their rights by other individuals. Of course, the courts should be careful to
ensure that the individual did act independently from the police and was not part of a sham
or strategy designed to conceal police involvement in unconstitutional conduct. [279]
Page 239

In terms of s 36(1) only a “law of general application” — and this is the minimum
requirement [280] — can validly limit a right in the Bill of Rights. The “law of general
application” could be a statutory or common-law rule. [281] Police conduct which is not
authorised by a law of general application, can never “limit” a right in the Bill of Rights on
the basis that, for example, it was reasonable and justifiable conduct having regard to all the
circumstances of the case and therefore a “permissible” limitation of the constitutional right
in question, rendering s 35(5) inapplicable or without any effect. [282] Section 36(1) does not
permit this line of reasoning. [283] The evidence will remain unconstitutionally obtained
evidence. However, for purposes of determining whether admission of such
unconstitutionally obtained evidence would result in one or both of the consequences
identified in s 35(5), the court may in the exercise of its discretion take into account the
circumstances under which the evidence was obtained (see, for example, § 12 9 4 below).
Section 36(1) applies to the situation where it is alleged that the evidence was obtained
unconstitutionally in that the statutory or common-law rule in terms of which it was
obtained, is a constitutionally impermissible limitation of one or more of the rights in the Bill
of Rights. [284] A court of competent jurisdiction must then determine the constitutional
validity of the impugned rule of law.
12 8 6 Section 35(5) and a co-accused’s constitutional right to a fair

trial
In S v Aimes and Another [285] Desai J held that the admission of accused number one’s bail
evidence — obtained in breach of his right to be advised to remain silent — would violate his
right to a fair trial. But it was also clear that exclusion of the bail evidence of accused
number one would in the circumstances of the case also have infringed accused number
two’s right to adduce evidence, which in turn would have violated the latter’s right to a fair
trial. Desai J ruled (correctly, it is submitted) that accused number one’s bail evidence could
be used by accused number two for purposes of cross-examining accused number one or
any other purpose, provided that accused number one’s bail evidence could not be used to
prove the truth of its contents against accused number one. Desai J held that it was
unnecessary to decide whether the issue had to be
Page 240
dealt with in terms of the interim Constitution or s 35(5) of the Constitution. The result, he
found, would have been the same.

The question whether the “impeachment” exception created by the Supreme Court of the
USA — see § 12 5 2 3 above — should apply to s 35(5), is discussed in § 25 5 below in the
chapter which deals with the impeachment of the credibility of witnesses, including the
accused as a defence witness.

In terms of s 37(1) of the Constitution a state of emergency may be declared only in terms
of an Act of Parliament — and only when the life of the nation is threatened by war,
invasion, general insurrection, disorder, natural disaster or other public emergency and,
furthermore, only when such a declaration is necessary to restore peace and order. During
such an emergency certain rights may not be derogated from, or may only be derogated
from to a certain extent. That part of s 35(5) which deals with the exclusion of evidence if
the admission of such evidence would render the trial unfair, is non-derogable. [286] The
implication is that where a state of emergency has been declared, an Act of Parliament may
suspend that portion of s 35(5) which deals with the question whether admission of the
evidence would be detrimental to the administration of justice. But even here such a
derogation from s 35(5) must be “strictly required by the emergency”. [287]
12 9 The First Leg [288] of the Test in s 35(5): “must be excluded

if . . . admission . . . would render the trial unfair”
In § 12 8 above it was pointed out that the words “or otherwise” in s 35(5) make it clear
that an unfair trial is detrimental to the administration of justice. [289] But when would
admission render the trial unfair? What is an unfair
Page 241
trial? And furthermore: does the reference to an unfair trial in s 35(5) apply to the accused
only or to the accused and the prosecution?
As a point of departure it should be noted that s 35(5) of the Constitution — unlike s 24(2)
of the Canadian Charter — makes specific reference to trial fairness as a criterion. In Canada
trial fairness to the accused had to be read into s 24(2) by the Canadian Supreme Court (see
§ 12 6 1 above). Given the fact that s 35(5) is clearly modelled on s 24(2), [290] it is perhaps
somewhat surprising that s 35(5) does not state explicitly whether unfairness of the trial
relates to the accused only or to the accused and prosecution. Zeffertt has highlighted this
vagueness or omission. [291] However, it is submitted that — having regard to the textual
setting of s 35(5) as a subsection in a section of the Bill of Rights that determines the rights
of arrested, detained and accused persons [292] — the constitutional right of the accused to a
fair trial (see § 12 9 2 below) must inevitably be the decisive standard or yardstick for
determining the admissibility of the impugned evidence. Unfairness to the prosecution if the
evidence is excluded and unfairness to the accused if the evidence is admitted, are therefore
factors which go into the scale [293] for purposes of determining the ultimate question: would
admission infringe the accused’s constitutional right to a fair trial? And whilst unfairness to
the prosecution forms part of the process of determining this question, a court is clearly
precluded from making a finding that exclusion of the evidence will be so unfair to the
prosecution (or the victim, or society) that the evidence must be admitted despite the fact
that such admission would deprive the accused of his constitutional right to a fair trial. [294]
Even under the interim Constitution the Constitutional Court in an oft-quoted passage made
it clear: “What the Constitution demands is that the accused be given a fair trial.” [295]
Having identified this constitutional demand, the court noted that ultimately fairness is an
issue which has to be determined on the basis of the
Page 242
facts of each case and that the trial court is best placed to decide this issue. [296] It was also
said that fairness, at times, might require exclusion of unconstitutionally obtained evidence
and that fairness, at times, might require admission of such evidence. [297] At no stage,
however, was it said or implied that unfairness to the prosecution can justify admission even
if such admission would deprive the accused of his constitutional right to a fair trial. The
bottom-line is that the accused’s constitutional right to a fair trial may not be sacrificed.

Constitutionalization has had a great impact on the traditional meaning of a fair trial. In
1992 the (then) Appellate Division could still declare that a fair trial was “a trial initiated and
conducted in accordance with those formalities, rules and principles of procedure which the
law requires [and that an accused] is not entitled to a trial which is fair when tested against
abstract notions of justice”. [298] But constitutionalization required a different approach [299]
which Ackermann J, writing for a unanimous Constitutional Court, described and
supplemented as follows in S v Dzukuda and Others; S v Tshilo: [300]
“[A]n accused’s right to a fair trial under s 35(3) of the Constitution is a comprehensive right and
‘embraces a concept of substantive fairness which is not to be equated with what might have passed
muster in our criminal courts before the Constitution came into force’. Elements of this comprehensive
right are specified in paras (a) to (o) of sub-s (3). The words ‘which include the right’ preceding this
listing indicate that such specification is not exhaustive of what the right to a fair trial comprises. It
also does not warrant the conclusion that the right to a fair trial consists merely of a number of
discrete sub-rights, some of which have been specified in the subsection and others not. The right to
a fair trial is a comprehensive and integrated right, the content of which will be established, on a case
by case basis, as our constitutional jurisprudence on s 35(3) develops.”
This case did not deal with the admissibility of unconstitutionally obtained evidence. It is
submitted, however, that the above-quoted passage provides the essential background in
terms of which the fair trial requirement in s 35(5) should be interpreted.

It is submitted that the Constitutional Court’s broad formulation of the right to a fair trial and
its caveat that it would be imprudent in a particular case to attempt a comprehensive
exposition of such right, really confirm that the fair trial requirement in s 35(5) is flexible
enough to permit a discretion which has to be exercised on
Page 243
the basis of the facts of the case [301] and factors and considerations like the nature and the
extent of the constitutional breach, [302] the presence or absence of prejudice to the
accused, [303] the need to ensure that exclusion of evidence does not tilt “the balance too far
in favour of due process against crime control”, [304] the interests of society [305] and,
furthermore, public policy. [306] This is not an exhaustive list of factors or considerations
which can or must be taken into account in determining whether admission of the evidence
would deprive the accused of his constitutional right to a fair trial; and nor can there be such
a list, given the Constitutional Court’s broad analysis of a fair trial and the trial court’s
discretion, in terms of s 35(5), to decide whether admission of the impugned evidence would
render the trial unfair.
In S v M the Supreme Court of Appeal — per Heher AJA with Harms and Brand JJA
concurring — noted, with reference to s 35(5) and Key v Attorney-General, Cape Provincial
Division, and Another, [307] that “[t]here is no doubt that . . . a discretion exists . . . under
the Constitution, upon the question of whether admission would or would not offend the
constitutional guarantee of the right to a trial conducted in accordance with notions of basic
fairness and justice inherent in a civilized system of criminal administration.” [308]
In S v Tandwa and Others Cameron JA, Mlambo JA and Hancke AJA said, with reference to
several High Court decisions, that relevant factors for purposes of determining trial fairness
would include
“the severity of the rights violation and the degree of prejudice, weighed against the public policy
interest in bringing criminals to book. Rights violations are severe when
Page 244
they stem from the deliberate conduct of the police or are flagrant in nature. There is a high degree of
prejudice when there is a close causal connection between the rights violation and the subsequent
self-incriminating acts of the accused. Rights violations are not severe, and the resulting trial not
unfair, if the police conduct was objectively reasonable and neither deliberate nor flagrant.” [309]
12 9 4 The privilege against compelled self-incrimination: trial fairness

and the court’s discretion
Apart from such constitutional rights as the right to be presumed innocent, to remain silent
and not to testify during the proceedings, [310] an accused also has a right “not to be
compelled to give self-incriminating evidence” [311] — a right which is “inextricably linked to
the right of an accused to have a fair trial”. [312] These trial rights are also protected at the
pre-trial stage: in terms of s 35(1)(a) and 35(1)(b) of the Constitution an arrested person
has the right not only to remain silent, but also to be informed promptly of the right to
remain silent and of the consequences of not remaining silent. An arrested person also has
the constitutional right not to be compelled to make any confession or admission that could
be used in evidence against him. [313] An arrestee — in his capacity as a detained person —
also has a constitutional right to be informed promptly of his right to choose, and to consult
with, a legal practitioner. [314] He also has the right to be informed promptly of his right to
have a legal practitioner assigned to him “by the state and at state expense, if substantial
injustice would otherwise result . . .” [315]
The above rights and warnings are — like the judicially created prophylactic rules in
Miranda [316] — aimed at protecting the privilege against self-incrimination and, ultimately,
the right to a fair trial. But evidence obtained in the absence of these warnings is not — as is
required by the exclusionary rule in Miranda and as was done under the interim Constitution
in S v Gasa and Others [317] — subject to automatic exclusion: the issue of admissibility must
be dealt with in terms of s 35(5) even though the broad pattern which developed under the
Interim Constitution — and which was set out in § 12 7 2 1 above — can assist in the
interpretation and application of s 35(5). [318]
Page 245
The approach which our courts have adopted for purposes of s 35(5), seems to be that
whilst the absence, or inadequate furnishing, [319] of the constitutionally required warnings
does have an adverse impact on the fairness of the entire process, it does not mean that
admission of the evidence so obtained would inevitably result in the accused being deprived
of his constitutional right to a fair trial. S v Lottering [320] is a case in point. The accused,
having stabbed the deceased in the back, ran into a nightclub. A witness, D, informed a
policeman, M, that the accused was in the nightclub. D accompanied M into the nightclub
where D pointed out the accused to M. M informed the accused of the allegation against him,
arrested the accused and demanded to know “the whereabouts of the weapon that was
used”. [321] The accused pointed out L and the latter handed the knife to M. The defence
attorney, relying on s 35(5), objected to the admission of this evidence on the basis that
after the accused’s arrest and prior to his pointing out L, the accused had not been informed
by M of his constitutional rights to silence and legal representation. The trial court held a
trial within a trial, after which the evidence of the pointing out of L and the production of the
knife by L was admitted. On appeal it was argued that the evidence should have been
excluded on the grounds raised in the court a quo and, furthermore, that if the pointing out
of L and the subsequent discovery of the knife were held inadmissible, L’s evidence which
directly flowed from the inadmissible pointing out should, in turn, then also be ruled
inadmissible. [322]
In dealing with the matter on appeal, Levinsohn J identified factual and legal matters
which were common cause: first, the constitutional rights of the accused were violated;
second, the accused had made an admission incriminating himself in the commission of the
crime; [323] third, the framers of the Constitution had in mind that an accused’s rights should
at all times be respected and that “the police and other persons who have rights of arrest
and detention should not simply pay lip service to these rights but should at all times
meticulously observe them.” [324] Having noted that s 35(5) does not require exclusion of all
evidence obtained in violation of a constitutional right, Levinsohn J — relying on Steytler [325]
— held that the court has the task of making a “value judgment.” [326] According to
Levinsohn J the court exercises its
Page 246
discretion by weighing up the competing interests [327] (see also § 12 2 above). The court
also emphasised the importance of excluding evidence in order to enforce constitutional due
process (see also § 12 4 2 above): “The administration of justice would, in my opinion, not
countenance a flagrant and deliberate violation of an accused’s constitutional rights. Any
evidence discovered in consequence of such a violation ought to be excluded, otherwise the
Constitution would become a dead letter.” [328] Against this background, Levinsohn J
exercised his discretion as follows: [329]
“[T]here are violations which are not deliberate or flagrant. I venture to say that [M]’s failure to warn
the appellant falls into that category. As the magistrate points out, [M] had to act expeditiously to
recover the knife and he did what any reasonable policeman would have done, that is to question his
suspect. There were no threats, no intimidation and indeed no force used by him. The magistrate is
right in saying that the appellant acted voluntarily. The question of prejudice to the appellant is a
factor which can legitimately be weighed in the scales as well. The appellant did not testify in the trial-
within-a-trial. One would have expected him to get into the witness box and say that if he had been
apprised of his rights he would definitely not have made the pointing-out that he did. That he suffered
prejudice was purely speculative . . . To sum up then, circumstances surrounding the pointing-out by
the appellant coupled with considerations of public policy show that it is not detrimental to the
interests of justice to admit the disputed evidence. It follows, therefore, that the regional magistrate
exercised his discretion correctly. I hasten to say that each case must be judged on its own facts and
the decision in this one must not be construed as a licence to police officers to ignore or overlook the
constitutional protection afforded to accused persons.”
The court’s ultimate finding that admission of the impugned evidence was not detrimental to
the administration of justice, clearly implies that the court was also satisfied that admission
would not have rendered the accused’s trial unfair.
It is submitted that for purposes of answering this fair trial issue, the court was fully
entitled to take into account that M had to act expeditiously and did not obtain the evidence
from the accused as a result of a lengthy police interrogation during which the accused was
deliberately not informed of his constitutional rights. In Lottering M — unlike his colleagues
in S v Seseane [330] and S v Mphala and Another [331] — also did not have a modus operandi
or deliberate strategy to trap an unwitting accused. Given the circumstances in Lottering, M
“did what any reasonable policeman would have done, that is to question his suspect” [332]
without first having administered the required warnings. It is submitted that in these
circumstances those notions of basic fairness and justice which form an essential component
of the constitutional right to a fair trial, do not demand exclusion of the evidence of the non-
compelled
Page 247
self-incriminating testimonial communication made by the accused to M in response to the

latter’s question. “[N]otions of basic fairness and justice”, must be applied with reference to
the facts of the case and have an inherent flexibility which links up neatly with the fact that
s 35(5) provides a court with a discretion to determine whether the impugned evidence
would render the trial unfair.
It is submitted that there is a close analogy between Lottering and New York v
Quarles [333] where the Supreme Court of the USA created a “public safety” exception (see
§ 12 5 2 2 above) to the requirement that the Miranda-warnings be given (see § 12 5 2
above). Writing for the majority, Rehnquist J held that the accused’s statement (“the gun is
over there”) and the real evidence (a revolver) — both of which were obtained prior to the
accused having been warned in terms of Miranda v Arizona [334] — were admissible on
account of the following factual and legal grounds: [335]
“The police in this case, in the very act of apprehending the suspect, were confronted with the
immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe
the suspect had just removed from his empty holster and discarded in the supermarket. So long as
the gun was concealed somewhere in the supermarket with its actual whereabouts unknown, it
obviously posed more than one danger to the public safety: an accomplice might make use of it, or a
customer or employee might later come upon it . . . Officer [K] needed an answer to his question not
simply to make his case against [Q] but to insure that further danger to the public did not result from
the concealment of the gun in a public area. We conclude that the need for answers to questions in a
situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting
the Fifth Amendment’s privilege against self-incrimination.”
At no stage was it held that the public safety exception was an exception to the right to a
fair trial. New York v Quarles, it is submitted, merely confirms that the admission of
evidence obtained in breach of those warnings designed to protect the privilege against self-
incrimination, does not offend against the right to a fair trial if the unconstitutional police
conduct was objectively reasonable having regard to the facts of the case. [336] Given the
rigid rule of exclusion in Miranda, the Supreme Court of the USA was not in a position to
address the issue of admissibility on the basis of a discretion. It had to create the “public
safety” exception. But the fact that such an exception exists in the USA and is not
considered to be in conflict with the right to a fair trial, is relevant for purposes of
interpreting the fair trial requirement in s 35(5).
In S v Soci [337] the accused made a pointing out to the police in circumstances where he
was not — prior to and for purposes of the pointing out — properly informed of his right to
legal representation (see also § 12 10 1 below).
Page 248
Erasmus J held that on the facts it had to be accepted that the accused, if he had been
properly informed, would have secured the services of an attorney who would have advised
the accused not to make a pointing out and, furthermore, that the accused would probably
have followed this advice. Erasmus J excluded the evidence of the pointing out. On the
adequacy of the warnings, it was noted that no hard-and-fast rules could be laid down as
“[e]ach case depends on its own facts, in particular the personality and characteristics of the
accused, such as his . . . age, intelligence, education, background, nationality, etc”. [338] This
observation, it is submitted, can be extended to support the following principle: where it is
clear that an accused had full knowledge of his constitutional rights and options at the time
when he responded to police questioning, the fact that the constitutionally required warnings
were not given at all, cannot ipso facto lead to the conclusion that admission of the
accused’s response would render the trial unfair. [339] In such an instance there is ample
room to argue and find that an informed waiver (see § 12 9 5 below) was present.
The right to be given the required constitutional warnings not only accrues to the person
who is a detainee or arrestee in the technical sense. It also extends to the person who — at
the time of making his pre-trial statement to the police at the latter’s request — was neither
detained nor arrested but in a situation where the police on reasonable grounds suspected
him. [340] If the required warnings were not given to an accused in his capacity as a “suspect-
about-to-become-an-arrested-person-and-accused”, [341] any pre-trial statement so obtained
must be treated as evidence obtained in breach of constitutional rights and its admissibility
must be assessed in terms of the requirements and discretion embodied in s 35(5). The fair
trial requirement in s 35(5) might warrant exclusion on the basis that the accused was in
deliberate breach of constitutional rights conscripted as a witness against himself and that,
accordingly, the admission of the evidence would deprive the accused of his constitutional
right to a fair trial. The fact that the suspect had co-operated and had made the pre-trial
statements voluntarily, can hardly remedy the situation. Indeed, circumstances may be such
that the unconstitutional conduct of the
Page 249
police was aimed at securing voluntary co-operation which they knew they would not have
secured had they administered the required warnings.
It follows from the above that where an accused had made incriminating statements prior
to arrest and in the absence of warnings and at a stage when he was not under police
suspicion, there is no reason to exclude the evidence if otherwise admissible. [342] A court is
entitled to take into account whether the statement was made spontaneously and whether
the police officer was bona fide. [343]
It is difficult to fit Shabalala v S [344] into the pattern of cases discussed thus far. The
accused — who had declined legal aid and had elected to conduct his own defence — was
convicted in the court a quo of robbery. The admissibility of evidence of a pointing out made
by the accused to a sergeant, was raised for the first time on appeal when the accused had
counsel. It was common cause that the record of the trial contained no indications that the
accused in his capacity as an arrestee was informed of his right to silence and his right to
legal representation. Relying on s 35(5), counsel for the accused argued that evidence of the
pointing out should have been excluded. Tshabalala AJP held that on the facts of this case, it
could not be said that the trial was unfair. [345] In this case, it would seem, the court —
sitting as a court of appeal — was really confronted with a situation where the admissibility
of the evidence only impugned on appeal, should in the course of the trial have been
disputed by the accused who unfortunately had declined legal aid. Perhaps the prosecutor
should of his own accord — or at the insistence of the trial court — have led evidence on the
question whether the required warnings were given. Be this as it may, the fact of the matter
is that at the trial the accused had denied pointing out anything at all — a factor which
probably explains why the evidence at the trial and the trial court’s findings, were confined
to the question whether a pointing out was made and whether it was voluntarily made. By
the time the appeal was heard, the accused had counsel. On appeal counsel for the accused
had expressly abandoned the earlier denial that a pointing out was made. It was merely
argued that in the absence of evidence that the constitutionally required warnings were
given, the evidence of the pointing out should not have been admitted. Given this change of
tack [346] and the fact that the conviction of the accused was not based solely on the pointing
out, the court of appeal had no grounds to conclude that admission of the evidence of the
pointing out had rendered the trial unfair in the sense that the accused was deprived of his
constitutional right to a fair trial. It is submitted that Tshabalala AJP’s remark that “[h]uman
rights ought not to
Page 250
be regarded merely as a loophole through which criminals [escape] the consequences of

their deeds” [347] should be interpreted strictly in the context of the facts in Shabalala.
S v Naidoo and Another — which is more fully discussed in § 12 10 1 below — concerned
the admissibility of evidence of the contents of telephonic conversations which were obtained
by the police in breach of the constitutional right to privacy and, in particular, the right not
to be subject to the violations of private communications. [348] On the question whether
admission of the evidence would have rendered the trial unfair, McCall J ruled as follows: [349]
“There is obviously a distinction between a confession or admission conscripted against an accused
himself and evidence of the contents of a telephonic conversation, unlawfully monitored, to which the
accused is a party. The element of compulsion or undue influence present in unlawfully obtaining a
confession or admission is not present in the telephone monitoring. However, there is a result which is
common to both kinds of evidence, namely that evidence is obtained the production of which was not
voluntarily consented to by the accused. In this respect both kinds of evidence, it seems to me, offend
against the right against self-incrimination which inevitably ‘strikes at one of the fundamental tenets
of a fair trial’, that is to say at a right which is protected by the Constitution. To admit evidence
provided by an accused person against himself without his knowledge as a result of the unlawful
monitoring of his conversation with someone else would offend against the notion of basic fairness in
no less a measure than the admission of evidence of a confession or admission made by an accused
person without having been informed of his right to legal representation, which has been held to
result in an unfair trial . . . In the circumstances I am satisfied that the admission of the evidence of
the two telephonic conversations would render the trial unfair.”
The court’s further or alternative finding that admission of the impugned evidence would
have been detrimental to the administration of justice, is supported (see § 12 10 1 below).
However, the court’s finding that admission would also have rendered the trial unfair, cannot
be supported. The fact that the accused never voluntarily consented to the interception and
recording of the conversations, was part of the fact that there was a constitutional breach of
the right to privacy. The absence of consent cannot form the basis for an argument that
admission of the evidence of the contents of the voluntary [350] conversations would have
offended the privilege against self-incrimination at trial level. The police never deceived the
two accused to co-operate with them in circumstances amounting to a breach of their
privilege against self-incrimination. There was no custodial interrogation situation. To claim
that admission of the evidence in Naidoo would “offend against the notion of basic fairness in
no less measure” than admission of the evidence of a testimonial communication obtained
from an accused who had not been informed of his right to a legal representative, is to
ignore one vital difference: there was no constitutional requirement in terms of which the
accused in Naidoo should have been informed that they were not required to provide
evidence against themselves, whereas an arrested person who was deprived of the right to
Page 251
counsel before making a confession or admission, was constitutionally entitled to such

counsel in order to protect the privilege against self-incrimination. And whilst there was
certainly gross pre-trial prejudice to the accused in Naidoo, this pre-trial prejudice — which
stemmed from the breach of the constitutional right to privacy — was not the kind of
prejudice that is inherently linked to conscriptive evidence which would render the trial
unfair, if admitted. The accused would have conducted their conversations even if there had
been no unconstitutional monitoring. The conversations took place quite independently of
the unconstitutional conduct. It only became available as evidence for the prosecution as a
result of the breach of the constitutional right to privacy. The focus should be on the nature
and extent of the unconstitutional breach of privacy and not the fact that the accused had
without knowledge of the unconstitutional monitoring provided evidence against themselves.
S v Naidoo and Another had a sequel. Several other persons were later charged in respect
of essentially the same facts that gave rise to the prosecution of the accused in Naidoo. But
this time round the prosecution did not rely on the contents of the unconstitutionally
monitored telephone conversations. Some of the accused were convicted and the sequel
culminated in S v Pillay and Others, [351] where the second appellant contended that evidence
of the discovery of the money in the roof of her house had to be excluded in terms of s 35
(5). The court held that there were infringements of her rights: The violation of her right to
privacy when her telephone was tapped; and, further, the violation of her right to silence
when the police had induced her to speak by giving her the assurance that she would not be
prosecuted. The majority (Mpati DP and Motata AJ) held that admission of the impugned
evidence was detrimental to the administration of justice, whereas the minority (Scott JA)
thought not (see § 12 10 below). But the court was unanimous in its finding that trial
fairness was not affected by the admission of the evidence of the discovery of the money.
Scott JA said: [352]
“The real evidence admitted by the Court a quo in the present case was the discovery of the money
concealed in the roof. That discovery would not have been made but for the monitoring of the
telephone conversation. But the telephone conversation would have taken place whether it was
monitored or not. It was not created by the infringement, nor was there any question of compulsion.
A conversation in such circumstances may result in a form of self-incrimination, but no more so than
any other conduct of an accused subsequent to the commission of the offence which may point to the
latter’s guilt.”

An arrested person can waive his right to exercise his right to silence and his right to consult
a lawyer. [353] However, “[a] right can only validly be waived if the person who
Page 252
abandons the right knows [354] and understands [355] what he or she is abandoning.” [356]
Some courts have been reluctant to introduce the concept of waiver. [357] In S v Shaba en ’n
Ander [358] Spoelstra J — in rejecting the approach of Claassen J in S v Mathebula and
Another [359] — held as follows with reference to Chapter 3 of the Interim Constitution (now
Chapter 2 “Bill of Rights” of the Constitution): [360]
“Verder is ek van oordeel dat Claassen R fouteer deur die privaatregtelike regsfiguur van
afstanddoening van regte hier te gebruik. Die bepalings van Hoofstuk 3 van die Grondwet skep
onvervreembare regte. Niemand kan daarvan afstand doen nie. Op die beste kan ’n persoon kies om
hom nie op die bepalings van die Grondwet te beroep nie en om nie die regte uit te oefen nie. Hy kan
egter op enige stadium van plan verander en die regte weer uitoefen, sonder dat hy met ’n pleit van
afstanddoening ontmoet kan word. Die reg op regsverteenwoordiging of die reg op stilswye is
sprekende voorbeelde hiervan. Die regsfiguur van afstanddoening van regte pas doodeenvoudig nie
by hierdie omstandighede in nie.”
Whatever the position may be as regards the question whether rights in the Bill of Rights are
inalienable rights, it is beyond doubt that “individuals may . . . waive the right to exercise a
fundamental right” [361] like the right to silence and the right to counsel. [362] To hold
otherwise, would amount to improper interference with an individual’s autonomy and
freedom to decide how to conduct his case at the pre-trial stage. The rights under discussion
are inalienable in the sense that an individual, after having waived the right to exercise
these rights, may re-assert them by refusing to respond to further questioning in the
absence of a lawyer. [363] However, “[t]he accused cannot undo the consequences of an
earlier choice to make a statement, by later revoking the statement”. [364]
The decision of the accused to waive the exercise of his rights, must be an informed one.
He need not be aware of all the factual details or all the details of the charge(s); the
emphasis should be on the reality of the total situation
Page 253
having an impact on the accused’s understanding and appreciation. [365] In S v Mphala and
Another [366] both accused were upon their arrest properly informed of their constitutional
rights. An attorney retained by a third party to assist the accused, telephoned the
investigating officer at 10:30. The attorney requested the investigating officer to make no
arrangements for either accused to make statements or to do a pointing out until such time
as he had had an opportunity to consult with both of them. The investigating officer
informed the attorney that both accused wanted to make statements, and that this would be
arranged to take place at 14:00. However, by the time the attorney arrived both accused
had already made statements somewhere between 12:00 and 12:45. Cloete J was satisfied
that the investigating officer “had stolen a march on the accused’s attorney”. [367] Cloete J,
furthermore, held that on account of the following facts there was no informed consent by
the two accused and therefore no valid waiver of their pre-trial constitutional rights: the
investigating officer should have informed both accused that an attorney — who had been
retained to represent them — was on his way and wanted them to refrain from making any
statements prior to his having had an opportunity to consult with them. “I do not suggest”
said Cloete J “that a police officer is obliged to give advice to an accused; but I do find that a
police officer is not entitled to prevent such advice being given.” [368] The court had no
hesitation in finding that admission of the confessions would have rendered the trial unfair
and had to be excluded as provided for in section 35(5). [369] The decision in Mphala should
be compared with the decision of the Supreme Court of the USA in Moran v Burbine [370] as
discussed in § 12 5 2 1 above.
12 9 6 Trial fairness and the court’s discretion: Self-incrimination, real

evidence and evidence “emanating from the accused”
Ever since the decision in Ex Parte Minister of Justice: In Re Rex v Matemba, [371] and even
after constitutionalization, our courts have — in line with the majority decision in Schmerber
v California [372] and the common-law rule as formulated by Wigmore [373] — consistently held
that the privilege against self-incrimination is confined to testimonial utterances or
communications (statements and pointings out) and does not extend to real evidence
emanating from an accused, [374] such as hair samples, blood samples, [375] fingerprints, [376]
voice, [377] handwriting [378] and even a bullet lodged in the body of a suspect [379] (see
§ 10 2 3 1 1 above).
Page 254
Some of our courts [380] have for the purpose of determining the admissibility of
unconstitutionally obtained real evidence, followed the test which the Supreme Court of
Canada had established in R v Collins [381] and confirmed in R v Jacoy. [382] The Collins test —
which was cited in full in § 12 6 1 above — makes good sense: for purposes of the trial
fairness test which must be read into s 24(2) of the Charter, a distinction must be drawn
between the situation where real evidence was obtained as a result of a Charter violation
and the situation where, after a violation of a Charter right, the accused was conscripted
against himself through a confession or other evidence emanating from him. In the latter
situation, according to the Collins test, the admission of the evidence would render the trial
unfair, for it did not pre-exist the Charter breach and its admission would strike at the
fundamental tenets of a fair trial, the right against self-incrimination. But in the case of real
evidence unconstitutionally procured, the accused is not conscripted against himself and the
fact that it was unconstitutionally procured “will rarely operate unfairly for that reason
alone”: [383] the real evidence not only pre-existed the Charter breach but also existed
irrespective of the Charter breach. In S v Mkhize [384] Willis J, writing for a full bench, relied
heavily on the Collins test in interpreting the fair trial requirement in s 35(5) and in coming
to the conclusion that the unconstitutionally obtained real evidence (a pistol) was admissible.
In S v R [385] Willis J also relied, inter alia, on the Collins test in overruling a defence
objection, based on s 35(5), to the admissibility of evidence relating to DNA testing [386] that
was done on samples of blood taken from two accused who were minors. It was held that
admission of the impugned evidence would not have rendered the trial unfair. In
commenting on this decision, Zeffertt said: “The blood, like Everest, was there before the
violation.” [387]
The attention of the court in S v R was never, it seems, drawn to the fact that the Collins
test was significantly readjusted by the Supreme Court of Canada in R v Stillman, [388] which
was decided in 1997 and which in turn was overruled in 2009 in R v Grant (see §§ 12 6
to 12 6 4 above). [389] In R v Stillman the majority held — at least for purposes of s 24(2) of
the Charter — that compelled use of
Page 255
the body or the compelled provision of bodily substances (like hair or blood samples) ’in
breach of a Charter right for purposes of self-incrimination will generally result in an unfair
trial as surely as the compelled or conscripted self-incriminating statement.” [390] However, in
order to reach this conclusion, the majority in Stillman extended the common-law privilege
against self-incrimination to include evidence of bodily substances taken from an
accused. [391] It gave preference to the dissenting minority judgments in Schmerber v
California [392] (see § 10 2 3 1 1 above). The impact of Stillman on the Collins test, [393] is
described as follows by Sopinka, Lederman & Bryant. [394]
“[I]n R v Stillman, the Supreme Court of Canada reformulated the trial fairness branch of the Collins
test by eliminating the distinction between self-incriminatory statements and real evidence. Simply
put, the classification of evidence as real evidence simpliciter is irrelevant for the purposes of the trial
fairness test. Since the Charter recognizes the right to bodily integrity which should only be interfered
with on the consent of the individual or in accordance with constitutional common-law or statutory
authority, the Court reasoned that the compelled production of bodily parts or substances is as great
an invasion of the essence of the person as is a compelled statement.”
The question arises whether South African courts, if confronted with the admissibility of
evidence of unconstitutionally obtained bodily samples, should adopt the “reformulated trial
fairness branch of the Collins test” — hereafter referred to as the “ Stillman modification” —
for purposes of interpreting the fair trial requirement in s 35(5) of the Constitution? Although
our courts have been keen to follow Canadian jurisprudence on issues concerning the
admissibility of unconstitutionally obtained evidence, it is submitted that reliance on the
Stillman modification in the interpretation of the fair trial requirement in s 35(5), would be
totally unnecessary and somewhat artificial. The Stillman modification no longer applies to s
24(2) of the Charter (see §§ 12 6 to 12 6 4 above). However, it is examined and criticised
below in order to alert South African courts to the undesirability of following this
modification.
In Stillman the majority conceded that even without reformulating the trial fairness
branch of the test in Collins, exclusion of the impugned evidence would also have resulted
because it could be said that the unconstitutional bodily searches which occurred in Stillman,
were so unreasonable and serious that to admit the evidence so obtained, would have
brought the administration of justice into disrepute. [395] This finding would have been based
on the second factor identified in Collins (see § 12 6 2 above). But this approach, according
to the majority in Stillman, failed to recognise the innate dignity of the individual, based
upon the integrity and sanctity of the body. [396] The court also referred to the security of the
person, which is recognised in s 7 of the Charter. Now, it is difficult to understand how the
evidence of the bodily samples in Stillman could have been excluded on the basis that
admission thereof would have
Page 256
brought the administration of justice into disrepute (as conceded and indeed also found [397]
by the majority) if the violations of the accused’s dignity and his bodily integrity, sanctity
and security, were not taken into account. Incorporation of the Stillman modification into our
law would serve no purpose, except to disturb the well-settled distinction between self-
incriminating testimonial communications and incriminating non-communicative real
evidence obtained from the body of the accused. Section 35(5) of the Constitution — unlike
s 24(2) of the Charter — specifically sets out a fair trial requirement as well as an over-
arching requirement in terms of which exclusion is mandatory “if . . . admission . . . would
otherwise be detrimental to the administration of justice”. The drafters of the Constitution
clearly had in mind that there would be unconstitutionally obtained evidence which, if
admitted, would not render the trial unfair but which should nevertheless be excluded to
avoid detriment to the administration of justice. Unconstitutionally obtained incriminating
real evidence emanating from the body of the accused, falls into the latter category.
However, Cory J — writing for the majority in Stillman — argued as follows: [398] “The
security of the body should be recognized as being just as worthy of protection from state
intrusion aimed at compelled self-incrimination as are statements. Evidence obtained by a
significant compelled intrusion upon the body without consent or statutory authorization
should be considered, as a general rule, to adversely affect the fairness of the trial.” This
argument is fallacious if applied to s 35(5) in the context of unconstitutionally obtained
bodily samples: the security of the body is not, and does not become, less worthy of
protection simply because unconstitutionally obtained real evidence of bodily samples is
dealt with under the second leg of the test in s 35(5) and not in terms of the fair trial
requirement in s 35(5). The second leg of the test in s 35(5) caters not only for the
exclusion of unconstitutionally obtained real evidence of bodily samples, but can, where
required, be vigorously invoked to protect the constitutional rights to freedom and security
of the person, dignity and privacy which are, respectively, guaranteed in ss 12, 10 and 14 of
the Bill of Rights. [399]

In § 10 2 4 above it was pointed out that there are several statutes that authorise
designated officials to compel a person to appear before them to answer questions which
may or may not be self-incriminating. These statutes are not necessarily unconstitutional,
provided that the compelled self-incriminating answers given by the examinee in the course
of such investigative inquiries, may not be used against such an examinee in his capacity as
an accused in subsequent criminal proceedings against him (see § 17 4 4 2 below). The
investigative inquiry — the
Page 257
procedure as such — remains lawful, but direct use of the compelled self-incriminating
answers at the criminal trial would be in breach of the privilege against self-
incrimination. [400] But what about the admissibility of derivative evidence or so-called “clue
fact” evidence secured indirectly, or obtained directly, as a result of the compelled self-
incriminating answers obtained from the examinee? This type of evidence cannot be equated
with unconstitutionally obtained evidence. Placing a total ban on the admissibility of the
derivative evidence — as opposed to evidence of the examinee’s compelled self-incriminating
answers — is not warranted. The original process was lawful. The following compromise, it
seems, should be followed: as long as the evidence of the compelled self-incriminating
answers of the examinee is not admitted at the criminal trial “and the use of ‘derivative
evidence’ at such trial is made dependent on such use being subject to ‘fair criminal trial’
standards, the rule against self-incrimination is adequately protected”. [401] Ultimately
fairness is an issue that has to be decided on a case-by-case basis by the person best placed
to do so — the presiding judicial officer at the criminal trial. [402]
In the above context, the trial court would “not be dealing with the ‘fruits of a poisoned
tree’ but rather the product of a legitimate and legally controlled enquiry. Nor would it be
concerned with evidence existing solely of words used by the accused, but instead with
objective evidence existing independently of any oral communication”. [403]
However, the question arises whether the trial fairness requirement embodied in s 35(5)
of the Constitution is triggered in respect of the admissibility of real evidence (a pistol, knife)
discovered on the basis of information contained in a testimonial communication
unconstitutionally obtained from the accused? Must the real evidence so obtained be treated
as conscriptive (self-incriminating) derivative evidence which, if admitted, would violate the
privilege against self-incrimination and therefore render the trial unfair?
In R v Stillman [404] the majority of the Supreme Court of Canada, relying on some earlier
Canadian decisions, concluded that for purposes of s 24(2) of the Charter, the issue should
be addressed as follows: [405]
“Conscripted or self-incriminating evidence may lead to what has been termed derivative evidence.
This phrase has been used to describe ‘real’ evidence which has been ‘derived’ from, that is to say
found as a result of, the conscriptive evidence. The evidence discovered should be classified as
conscriptive, since the accused’s compelled statement was a necessary cause of its discovery. In
those cases, the courts must carefully review the events leading up to the finding of the evidence
rather than simply considering whether the ultimate piece of evidence which the Crown is seeking to
introduce is ‘real’ evidence . . . [W]here the conscriptive evidence would not have been discovered in
the absence of the unlawful conscription of the accused, its admission would generally tend to render
the trial unfair. In those circumstances it is not necessary to consider the seriousness of
Page 258
the violation, or the repute of the administration of justice, as a finding that the admission of the
evidence would render the trial unfair means that the administration of justice would necessarily be
brought into disrepute if the evidence were not excluded under s 24(2) . . .”
The above approach can have the following unfortunate result: evidence of a pistol which
can ballistically be linked to the murder concerned and which had the fingerprints of the
accused on it, must be excluded as a result of the fact that an accused’s unconstitutionally
obtained testimonial communication was the sole cause which led, and which could have led,
to the discovery of the real evidence. This approach is an extreme example of the “fruits of
the poisonous tree” doctrine. In R v Burlingham [406] the accused was, in breach of his
Charter right to counsel, subjected to improper and intensive questioning by the police. He
ultimately confessed, and also stated that the murder weapon (a gun) could be found at the
bottom of a frozen river. The confession was held inadmissible. It was also concluded that
the accused would have said nothing if it were not for the fact that he was unconstitutionally
conscripted to provide evidence against himself. Retrieval and seizure of the gun, it was
found, were derived from the inadmissible conscripted statement; and the real evidence had
to be excluded because “[t]he participation of the accused in providing incriminating
evidence involving a breach of Charter rights is the ingredient that tends to render the trial
unfair as he or she is not under any obligation to assist the Crown in securing a
conviction”. [407]
It is submitted that for purposes of s 35(5) of the Constitution, the matter ought to be
approached along the following lines. Exclusion of the testimonial communication cannot
automatically require exclusion of the derivative real evidence which, quite independently of
the inadmissible communication, connects the accused to the crime. The admissibility of
unconstitutionally obtained derivative real evidence is — like the admissibility of all other
unconstitutionally obtained evidence — a matter which must be decided in terms of the
court’s discretion as provided for in s 35(5) of the Constitution (see § 12 9 3 above).
Examples of factors or considerations which can assist the court in exercising its discretion
are the following:
(a) The derivative real evidence, like other real evidence, pre-existed the breach and did
not come into existence (was not created) as a result of the unconstitutional breach.
This is a factor favouring admissibility. However, it cannot on its own provide the full
answer.
(b) The fact remains that the evidence became available to the prosecution as a result of a
violation of a constitutional right. The court must therefore
Page 259
consider the nature and extent of the breach which led to the discovery of the real
evidence. In Ferreira v Levin NO; Vryenhoek v Powell NO Ackermann J observed: [408]
“Where, for example, derivative evidence is obtained as a result of torture there might be
compelling reasons of public policy for holding such evidence to be inadmissible even if it can be
proved independently of the accused. Otherwise, the ends might be allowed to justify the
means. The admission of evidence in such circumstances could easily bring the administration of
justice into disrepute and undermine the sanctity of the constitutional right which has been
trampled upon.”
(c) Police violence as a method of investigating or solving crimes, cannot be sanctioned;
and a court should in considering the exclusion of derivative evidence in such
instances, rely heavily on its disciplinary function (see § 12 4 1 above) as well as the
need to protect judicial integrity (see § 12 4 4 above) and the integrity of the system
as a whole. In S v Tandwa and Others the Supreme Court of Appeal held as
follows: [409]
“Though ‘hard-and-fast rules’ should not be readily propounded, admitting real evidence
procured by torture, assault, beatings and other forms of coercion violates the accused’s fair
trial right at its core, and stains the administration of justice. It renders the accused’s trial unfair
because it introduces into the process of proof against him evidence obtained by means that
violate basic civilised injunctions against assault and compulsion. And it impairs the
administration of justice more widely because its admission brings the entire system into
disrepute, by associating it with barbarous and unacceptable conduct. The cynical tenor of the
lies the police advanced here to explain the injuries the accused sustained in their custody (his
‘suicidal tendencies’) is disturbingly reminiscent of an earlier era. We do well to underscore the
renunciation of that era not merely in principle, but in police practice, and throughout the justice
system.”
(d) In instances involving non-violent conduct, our courts should also be able to rely — like
American courts and Canadian courts — on the independent source doctrine (see
§§ 12 5 1 3 and 12 6 2 above) and the inevitable discovery principle (see §§ 12 5 2 4
and 12 6 2 above) as factors favouring admission of the impugned derivative real
evidence.
(e)
Where the real evidence is discovered on account of a non-coerced but nevertheless
inadmissible testimonial communication, the “fruit of the poisonous tree” doctrine need
not be invoked with vigour. In these instances the admission of the derivative evidence
would — because of the absence of coercion — generally not render the trial unfair.
The fundamental question should be whether the derivative real evidence must be
excluded on the basis that its admission would be detrimental to the administration of
justice. And for this purpose all the normal factors and considerations which have a
bearing on this leg of the test (see §§ 12 10 to 12 10 6 below) should come into play.
If an accused was not prior to custodial police questioning informed by the police of his
Page 260
constitutional right to silence, the court might in the exercise of its discretion conclude
that even though the accused had responded voluntarily, all admissions made by the
accused to the police should be excluded in order to secure a fair trial. It does not
follow, however, that incriminating real evidence discovered as a result of the
inadmissible admissions obtained in breach of the constitutional right to silence, must
necessarily also be excluded on account of the fair trial requirement in s 35(5) of the
Constitution. In the USA exclusion applies to the “fruits” of a coerced testimonial
communication, but “a Miranda-violation by the police does not have ‘fruit of the
poisonous tree’ consequences. Thus a confession obtained in violation of Miranda must
be suppressed, but . . . real evidence obtained by means of the original inadmissible
statement may be used in the government’s case-in-chief”. [410] It is submitted that
South African courts should follow a similar approach in their interpretation of s 35(5).
(f) Exclusion of an unconstitutionally obtained testimonial communication on the basis that
its admission would render the trial unfair, does not answer — in fact, it merely raises
— the question concerning the admissibility of the real evidence obtained as a result of
the inadmissible testimonial communication. The court must exercise its discretion.
And it is submitted that in doing so, the court must bear in mind that real evidence
remains non-confessional or non-testimonial and that its admissibility should as a rule
therefore not attract fair trial considerations. Real evidence may be incriminating but it
is not self-incriminating — unless, of course, the court is prepared to assume, like the
Canadian Supreme Court has found, that real evidence is “conscriptive or self-
incriminating evidence [if] discovered as a result of the accused being conscripted to
provide the evidence following a breach of his Charter rights”. [411] But there are
situations where the admissibility of derivative real evidence will attract fair trial
considerations on account of the manner in which it was obtained, especially where
violence was involved. S v Tandwa and Others is such a case (see para (c) above). In
this case the real evidence was discovered derivatively as a result of coerced
testimonial communications made by the accused whose rights were severely violated
by the deliberate and flagrant conduct of the police. The Supreme Court of Appeal
aligned itself with the Canadian approach, but — it would seem — only in so far
Page 261
as the matter before it involved violence and not a technical violation of a fundamental
right. It was not held that all derivative evidence must at all times attract fair trial
considerations.
(g) Section 35(5) of the Constitution and s 218 of the CPA — the latter section is discussed
in §§ 17 8–17 8 4 below — can co-exist, provided, of course, that real evidence which
can be admitted in terms of s 218 will always remain subject to the court’s duty to
exclude such evidence if its admission would have one of the consequences identified
in s 35(5). Section 218(2), for example, provides for the admission of real evidence
despite the fact such evidence was obtained as a result of an inadmissible confession,
admission or pointing out. The confession, admission or pointing will remain
inadmissible, but evidence of, for example, finger-prints found on a pistol which can
ballistically be connected to the crime, can be received provided that the accused is not
identified as the source of information which led to the discovery of the pistol. It will,
however, always be open to the defence to object to the admissibility of such evidence
on the basis that the pistol was obtained in breach of constitutional rights and that
admission of the evidence would result in one of the consequences envisaged in s 35
(5) of the Constitution. It is submitted that in this instance the court should exercise its
discretion along the lines suggested in (a) to (e) above; and if the impugned evidence
is held admissible, the fact that the accused was the source of information which led to
its discovery, would remain inadmissible. [412]
12 9 8 Trial fairness and the admissibility of identification evidence

obtained at an identification parade held in the absence of the accused’s
legal representative
Exclusion of evidence of this nature cannot be based on the argument that legal
representation at the parade is necessary to protect the privilege against self-
incrimination. [413] Suspects who may lawfully be required to participate in an identification
parade, [414] are not required to make testimonial communications like a “statement or
pointing out where the advice of the legal representative on the advisability of taking such a
step may well be of crucial importance to an uninformed accused”. [415]
In S v Mhlakaza en Andere [416] — which was decided under the interim Constitution — it
was held that an accused had the right to have his legal representative at the parade and
that the evidence of identification obtained in breach of this right, should be excluded unless
the prosecution could satisfy the court that the right to a fair trial “geensins benadeel kon
gewees het deur
Page 262
die afwesigheid van ’n regsverteenwoordiger nie”. [417] However, Mhlakaza has consistently
been rejected or distinguished in other cases decided under the interim Constitution and in
all cases decided in terms of s 35(5) of the Constitution. In some cases it was assumed that
an accused does not have the right to have a legal representative at the parade. [418]
In S v Mphala and Another [419] Cloete J was satisfied that admission of the identification
evidence would not have resulted in one or both of the consequences identified in s 35(5).
Two factors weighed heavily with the court in coming to this conclusion. First, Cloete J was
satisfied that the police conduct in holding the parade in the absence of the accused’s legal
representatives, was not of such a nature that the court’s disciplinary function (see § 12 4 1
above) had to be relied upon in excluding the impugned evidence. [420] Secondly, Cloete J
concluded that the presence of the legal representatives would not have made any difference
to the outcome of the parade: “Evidence was led by the state that the parade had been
properly conducted, and there was no suggestion to the contrary in cross-examination on
behalf of the accused, or in the evidence given by them.” [421] In S v Mphala and Another
Cloete J admitted the evidence even on the assumption that the accused had not expressly
waived their right to the presence of an attorney at the parade and that the evidence was, in
consequence, procured in breach of a constitutional right to have an attorney present. [422] In
S v Thapedi [423] — which was also decided in terms of s 35(5) but without reference to S v
Mphala and Another — Bertelsmann J came to a similar conclusion. He distinguished the so-
called “Wade-Gilbert” rule, created by the Supreme Court of the USA, [424] from the facts in
Thapedi [425] and
Page 263
also declined to follow the Canadian Supreme Court decision in R v Ross. [426] On the facts in
Thapedi, Bertelsmann J concluded that there was no breach of the right to have a legal
representative at the parade [427] and, even if there were such a breach, admission of the
evidence would not have resulted in either of the consequences identified in s 35(5). [428] In
Thapedi the decision of the police to hold a parade in the absence of the legal
representatives, was not considered improper (“onbehoorlik”). [429] The court also took into
account that two attorneys who were at the parade on behalf of other suspects, were not
called by the accused as defence witnesses “om die wyse waarop die parade gehou is, te
kritiseer nie”. [430] However, in the course of his judgment, Bertelsmann J took care to note
that the police may not deliberately ignore the right of an accused to have his legal
representative at the parade, that an accused should be given a reasonable opportunity to
arrange such presence and, where necessary, the police should at the request of the
accused inform the legal representative of the proposed identification parade. [431] It would
seem that the present position in our law is that the admissibility of the evidence under
discussion, would really only be excluded where circumstances are so extreme that it would
be necessary to discipline the police.
Where identification evidence which stems from an identification parade is ruled
inadmissible, the in-court identification of the accused by the witness concerned, will only be
admissible if the court is satisfied that the in-court identification is based upon observations
made by the witness on an occasion or occasions other than the parade identification. [432]
In contradistinction to a formal identification parade held in terms of s 37(1)(b), an
accused has no right to a legal representative at a so-called “photo identification
parade”. [433]
12 10 The Second Leg of the Test in s 35(5): “if . . .

admission . . . would otherwise be detrimental to the
administration of justice”
The relationship and interaction between the above test and the first leg of the test in s 35
(5), were identified and discussed in § 12 8 above. The second leg of the test is the final
filter: if the admission of the unconstitutionally obtained
Page 264
evidence would not render the trial unfair, such evidence must nevertheless still be excluded
if the court is satisfied that admission would be detrimental to the administration of justice.
Cloete J has remarked in passing that the criterion of “bringing the administration of
justice into disrepute” as contained in s 24(2) of the Charter is “perhaps a test with a higher
threshold for exclusion than that contained in s [35(5)] of the Constitution”. [434] In S v
Naidoo and Another counsel for the defence argued that the latter is less stringent than the
former. [435] It seems, however, to be inevitable that if a South African court were to
conclude that admission of the impugned evidence would bring the administration of justice
into disrepute, [436] then it would also have to conclude that such admission would be
detrimental to the administration of justice as envisaged in the second leg of the test in s 35
(5).
In S v Mphala and Another Cloete J observed as follows with reference to the second leg
of the test in s 35(5): [437]
“So far as the administration of justice is concerned, there must be a balance between, on the one
hand, respect (particularly by law enforcement agencies) for the Bill of Rights and, on the other,
respect (particularly by the man in the street) for the judicial process. Overemphasis of the former
would lead to acquittals on what would be perceived by the public as technicalities, whilst
overemphasis of the latter would lead at best to a dilution of the Bill of Rights and at worst to its
provisions being negated.”
The extremely high level of crime (and especially violent crime) in South Africa, makes it an
onerous task to attain, maintain and defend the balance referred to by Cloete J above. Davis
J has also made reference to the burden of the crime wave and its impact on the need to
achieve some balance between crime control and due process. [438]
It is submitted that the courts are — in their interpretation of the second (or over-arching)
test in s 35(5) — fully entitled to lean in favour of crime control. For purposes of the second
leg of the test in s 35(5), a wide variety of factors and considerations must come into play.
The need to protect constitutional rights and due process, is one. But this need — albeit an
ever important one — can never preclude a court in the exercise of its discretion from taking
into account that society has a legitimate interest not only in the outcome of a criminal trial,
but also the reasons which led to the acquittal of the factually guilty. And whilst it is
probably true that public opinion is peripheral to
Page 265
determining whether admission would render the trial unfair, [439] the same cannot be said
for purposes of the second leg of the test: public opinion — including public acceptance of a
verdict and support for the system — must go into the scale as a weighty factor. The
particularly high crime rate currently prevalent in South Africa — and of which Ackermann J
has taken judicial notice [440] — is something which is directly relevant when a court is
required to respond to the second leg of the test in s 35(5). Much can be said in favour of
the approach adopted in S v Ngcobo. [441] In this case Combrinck J, writing for a full bench,
paid particular attention to the current state of endemic crime in the country and the public’s
reaction to the exclusion of unconstitutionally obtained but highly incriminating
evidence. [442] It is submitted that the approach adopted by Langenhoven in his doctoral
thesis, is a sound one: he argues strongly in defence of the Constitutional right to a fair trial
in the interpretation and application of s 35(5), but also argues that where admission of the
impugned evidence would not deprive the accused of this right, the second leg of the test
provides ample room for a court to take into account that — despite the long-term values
which the Constitution seeks to secure — South Africa has reached a point where the level of
serious crime has become unacceptable to law-abiding citizens. [443]
It should be stressed that Langenhoven’s argument is not based on the idea that a court
is in the exercise of its discretion bound by predicted public reaction to the exclusion of
unconstitutionally obtained evidence. The essence of his argument is that the second leg of
the test in s 35(5) of the Constitution creates a discretion which is wide enough to
accommodate prevailing public opinion as an important factor. This approach, it is
submitted, is not in conflict
Page 266
with the Constitutional Court’s pronouncements in S v Makwanyane and Another. [444] In this
case — which dealt with the constitutional validity of the death penalty — it was noted that
whilst public opinion did have some relevance, “it is no substitute for the duty vested in the
Courts to interpret the Constitution and to uphold its provisions without fear or favour”. [445]
It is submitted that there is a vast difference between the role of public opinion in
determining the constitutional validity of a particular sentence and the role of public opinion
in exercising the discretion, established by the Constitution, whether to exclude evidence on
account of the fact that its admission would be detrimental to the administration of justice.
Under the interim Constitution the courts, it seems, were at times extremely cautious in
referring to or relying on public opinion (see § 12 7 2 3 above). This is understandable
because they did not have the constitutional guidance and clear discretion currently
embodied in s 35(5) of the Constitution. Section 35(5) requires that a balance must be
struck. Overemphasis of the longer term constitutional values may result in a fairly rigid
exclusionary rule — a result which the drafters of s 35(5) clearly wished to avoid. At the
same time, however, overemphasis of public opinion would result in a wide inclusionary
approach — an approach which is, for the reasons advanced in §§ 12 4 1–12 4 6 above,
incompatible with a constitutional due process system. And whilst it is certainly true that an
exclusionary rule seeks to promote social rather than individual justice, [446] it is also true
that a discretionary exclusionary rule — like the one in s 35(5) — requires a court to ensure
that the exclusion of unconstitutionally obtained evidence is, on the facts of each individual
case, not detrimental to the administration of justice. It is possible to identify factors or
considerations (see
Page 267
§§ 12 10 1–12 10 6 below) which the court should take into account in deciding whether
evidence should in terms of the second leg of the test in s 35(5), be excluded. There appears
to be a general trend to admit the impugned evidence once the court is satisfied that its
decision to admit will not create a precedent which would encourage the police to procure
evidence unconstitutionally. [447] It should also be borne in mind that because of the
discretion in s 35(5), judicial integrity is not necessarily compromised by the admission of
unconstitutionally obtained evidence (see § 12 4 4 above).
12 10 1 The presence or absence of good faith (and reasonable) police

conduct
The extent to which the good faith of the police can or should play a role in the exclusion of
unconstitutionally obtained evidence, has received attention in foreign jurisdictions like the
United States of America (see § 12 5 1 2 above) and Canada (see § 12 6 1 above). Is the
good faith (or, for that matter, the bad faith) of the police a factor which ought to be taken
into account in responding to the second leg of the test in s 35(5)? One of the purposes of
exclusion is to discourage unconstitutional police conduct. The exclusionary rule has a
deterrent and educative function which, in turn, has an ultimate preventive effect (see
§ 12 4 1 above).
However, of what value is the preventive function (deterrence rationale, educative basis,
disciplinary aim) of the exclusionary rule in a situation where the police had acted in a good
faith (and reasonable) belief that they were not in breach of constitutional rights in procuring
the evidence in the manner in which they did? Can it really be said that the admission of
evidence obtained in such a situation would be “detrimental to the administration of justice”?
It has been said: [448]
“The major argument in favour of [a good faith] exception to exclusionary sanctions is that it would
permit the use of evidence in those situations in which no significant preventive function may be
served by exclusion. Law enforcement officers who have exercised reasonable care in ascertaining the
law and in attempting to apply it to the facts before them have arguably done all that the exclusionary
sanctions can reasonably demand. Exclusion of evidence because the officers, despite their efforts,
were incorrect in their conclusion that they were complying with the law would serve no function.
Adequate incentive for law enforcement officers to exert their best efforts to comply with the law is
created by excluding evidence in those cases where the officers have neither acted properly nor
exercised reasonable care in determining whether the actions were within legal requirements . . . On
the other hand, it can be argued that excluding evidence obtained in what is ultimately determined to
be an impermissible fashion will further the preventive function of the exclusionary sanctions, despite
the officers’ ‘good faith’ belief that their actions were appropriate. Exclusion in such cases may create
an incentive for officers to inform themselves more adequately concerning legal requirements and
their application.”
Page 268
In at least one South African case decided under the interim Constitution, it was pointed out
that an exclusionary rule which allows a “good faith” exception, creates a risk of encouraging
police officials to remain ignorant of their legal duties and the constitutional rights of
suspects, arrested persons and accused. [449] In several cases decided under s 35(5), the
presence or absence of good faith on the part of the police arose directly or indirectly.
In S v Naidoo and Another [450] the prosecution sought to rely on evidence of
conversations intercepted in terms of the Interception and Monitoring Prohibition Act. [451] It
was common cause that a judge properly designated in terms of this Act had — on the basis
of information as required in terms of the Act — given the necessary permission for the
interception of certain telephonic conversations. At the trial, however, the court was satisfied
that the police who had applied for the necessary judicial permission to intercept and
monitor the conversations, had given false or misleading information to obtain such
permission and that, accordingly, there had been an infringement of the accused’s
constitutional right to privacy. McCall J found that admission of the evidence of the
intercepted conversations would render the trial unfair. [452] Having reached this conclusion,
it was — strictly speaking — not necessary for McCall J to have dealt with the question
whether admission of the evidence would “otherwise be detrimental to the interests of
justice”. However, he did decide this issue and remarked and found as follows: [453]
“Both the interim Constitution and the new Constitution affirm the Legislature’s commitment to the
concept of protection of private communications against violation or infringement. To countenance the
violations in this case would leave the general public with the impression that the courts are prepared
to condone serious failures by the police to observe the laid-down standards of investigation so long
as a conviction results . . . The robbery in question has been referred to as the biggest robbery in the
history of South Africa. There may be those members of the public who will regard the exclusion of
the evidence as being evidence of undue leniency towards criminals. The answer to that is that the
crime in this country cannot be brought under control unless we have an efficient, honest, responsible
and respected police force, capable of enforcing the law. One of the mistakes which must be learnt
from the past is that illegal methods of investigation are unacceptable and can only bring the
administration of justice into disrepute, particularly when they impinge upon the basic human rights
which the Constitution seeks to protect . . . Having given this matter anxious consideration I am
satisfied that,
Page 269
taking all of the circumstances to which I have referred into account, to admit the evidence of the
telephonic conversations would be detrimental to the administration of justice.”
Naidoo is the text-book example of the principle that the “bad faith” conduct of the police
should weigh heavily in favour of the exclusion of unconstitutionally obtained evidence: it is
not in the interests of justice to permit the police to deliberately flout those rules which
govern their investigative powers and which seek to protect constitutional rights. Where the
primary rules (in this instance the provisions of the Interception and Monitoring Prohibition
Act) are clear, the secondary rule (in this instance the exclusionary rule contained in section
35(5)) ought to be invoked with vigour (see § 12 4 6 above).
It is clear that the “bad faith” conduct of the police in Naidoo played a major role in the
court’s decision to exclude. This was not a case where the police had made a reasonable
mistake in their interpretation of the Interception and Monitoring Prohibition Act. Nor was it
a case where the police had inadvertently failed to comply with a technical provision of this
Act. Had there been such a reasonable mistake or inadvertent technical error, the result
might very well have been different. In such circumstances exclusion would probably have
been detrimental to the administration of justice.
In S v Hena and Another Plasket J, in excluding the impugned evidence, observed as
follows with reference to the bad faith and unreasonable conduct of the police:
“The conduct complained of — the abduction and assault of accused 1 to force him to incriminate
himself and lead his captors to other incriminating evidence — could not conceivably have been
committed in good faith. It must have been committed in bad faith. Whether the police can be said to
have had actual knowledge of the unlawful methods used has not been established, but their
abdication of responsibility cannot have been in good faith either. Every policeman must be taken to
know that he or she has been clothed with statutory authority to investigate crime, and that this
function cannot be ‘sub-contracted’ to untrained civilians. To do so could not be reasonable and, in my
view, the police cannot distance themselves from the consequence of doing so. These factors also
operate against the admission of the evidence. There is no indication of any public-safety concerns or
urgency that could have served as justification for the violations of rights.” [454]
S v Mphala and Another [455] is also a case where the presence of bad faith left the court no
option but to conclude that admission of the evidence would — quite apart from rendering
the trial unfair — also be detrimental to the administration of justice. The salient facts of this
case were set out in § 12 9 5 above. In considering whether exclusion in terms of the second
leg of the test was required, Cloete J found as follows: [456]
“When regard is had to the manner in which the confessions were obtained and the consequence of
their admission, the decision that has to be made on the facts of the present matter appears to me to
be obvious . . . The State would not have been in possession of confessions which implicate the
accused to the hilt and which, if admitted, would probably be decisive of their guilt, but for the fact
that the Investigating Officer
Page 270
caused the confessions to be taken . . . (a) at a time when he knew that the accused’s attorney did
not wish them to make any statement before consulting with him . . . (b) without informing the
accused of that fact and the fact that their attorney was on his way; and (c) after he had misled their
attorney as to the time when the statements would be taken (obviously with a view to ensuring that
the statements would be made before the attorney arrived) . . . 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) and the disciplinary function of the
Court . . .”
Solid support for the decision in Mphala can be found in several Canadian cases in which it
was held that where the police had deliberately violated a Charter right in order to obtain
incriminating evidence, the admission of such evidence would tend to bring the
administration of justice into disrepute. [457]
In S v Madiba [458] two policemen, D and M, had obtained real evidence (two firearms) in
the course of a search of premises which they had forcibly entered. The court was satisfied
that there had been a breach of the accused’s constitutional right to privacy. This breach,
however, was carefully weighed in the light of the specific circumstances of the case and the
motive that D and M had for acting in the manner in which they did. D and M were the only
witnesses who had testified at the trial within a trial concerning the admissibility of the
evidence. They were found credible witnesses. And in the course of his judgment Hurt J paid
much attention to the explanation that D and M gave for “their decision to make the
aggressive entry . . .” [459] (ie, kicking in the door unannounced and entering the room
armed). Noting that both the concept of fairness and the concept of maintaining the
standards of administration of justice have a reciprocal nature about them, Hurt J held: [460]
“[T]his Court does have a discretion which it must exercise within the precepts set by section 35
(5) . . . As I have already indicated, it seems to me that, but for the nicety of knocking and requesting
a right of entry, which was plainly disregarded, the conduct of [D] and [M] complied with the
provisions of section 41 of Act 75 of 1969, and if that is the case, I do not consider that the act of
forcing entry into his particular room was a sufficiently grave violation to warrant a ruling that the
evidence which they gained in the course of the search was inadmissible . . . Even if I am wrong in
that view, I come to the conclusion that, in the circumstances which prevailed, and given that:
(1) the accused were suspected of a very serious crime involving the use of firearms to kill a
person;
(2) the information that [M] and [D] had at their disposal was that the accused were in possession
of firearms and likely to resist arrest;
(3) the surroundings, where the room in which the accused were, was situated, were such that a
‘shoot-out’ might occur if more prosaic methods of arrest and search were adopted by the
police;
(4)
on the evidence which the two policemen gave (which is the only evidence before this Court in
relation to this ruling), the interests of safety to the police, the community and the accused
themselves, warranted the form of entry and demand which was decided upon;
Page 271
the extent of the infringement of the right to privacy was such as to pale into insignificance compared
with the importance of achievement of the object which the police had in the course of their duties.”
Hurt J accordingly exercised his discretion in favour of admitting the evidence. But he was at
pains to point out that his decision should not in anyway be interpreted as a “blanket
authority” to law enforcement officers to resort to “unorthodox methods” in criminal
investigations. “[E]ach case” said Hurt J “will ultimately have to be decided on its own
facts”. [461]
It should be noted that in Madiba the officers only over-stepped the constitutional line in
so far as it was necessary to eliminate the personal and public safety risks encountered by
them (see § 12 10 2 below). This, no doubt, is a redeeming factor.
And this, no doubt, is a clear indication of good faith and reasonable conduct. It is
submitted that Madiba is authority for the following basic proposition: the exclusion of
unconstitutionally obtained evidence — however necessary it might be for purposes of
promoting legality and enforcing constitutional rights — must always be considered in the
context of the realities that police officers face in the execution of their duties. This
proposition — which even the most ardent supporters of constitutional due process should
be able to swallow without choking — has an inevitable sub-proposition: one of the realities
of criminal investigation is that police officers will — from time to time under pressing
circumstances and through no fault of their own — have to take snap decisions on
“constitutional issues” (without the advantage of having heard learned counsel!). It is
submitted that courts should, in their subsequent judicial assessment of the conduct of the
police officer, constantly bear in mind that the blunder of the bobby on the beat was not
necessarily a deliberate attempt to circumvent or side-step constitutional rights.
There are situations where the court will have to exclude the evidence even though the
individual police officer concerned was bona fide. In S v Soci [462] Erasmus J — in applying
s 35(5) — admitted the accused’s confession to a magistrate, but excluded the evidence of a
pointing out by the accused in the presence of the police: [463]
“The failure of the police, especially Superintendent [G] to inform the accused properly of his right to
consult there and then with a legal practitioner violated a fundamental right of the accused in relation
to the very matter at hand, that is the projected pointing out . . . This violation was not however mala
fide or even conscious. Superintendent [G] in fact did his best to treat the accused fairly by complying
conscientiously with departmental prescriptions, in accordance with a form supplied for such
purposes. The fault lies rather with the form apparently drafted by legal advisors of the South African
Police Service. There can be little excuse for the oversight, as the lacuna in the form was the basis of
the judgment in S v Marx and Another . . . [464] The documents supplied for the use by police
operating in the field should set out the rights of arrested and detained persons fully in clear and
simple language.”
Page 272
At first blush it might seem as if Erasmus J was rather harsh in his assessment of the
matter. But a moment’s reflection on the practical and theoretical issues involved, will show
that he was not. Soci is a good example of a case where there was a need to exclude on the
basis of “systemic deterrence”: [465] the good faith of the individual police officers concerned
becomes irrelevant when “the system” — that is, the South African Police Service (hereafter
“the SAPS”) — has issued directives which do not comply with or fall short of constitutional
demands which are clear or which, as in Soci, have been clarified by the High Court at an
earlier stage in a reported decision. Surely, in a situation where it is clear that an entity like
the SAPS has failed to respect (or has chosen to ignore) constitutional rights, it would be
detrimental to the administration of justice to admit the evidence on account of the “good
faith” and reasonable conduct of the individual officer concerned. It is the SAPS — and not
the individual officer — that must be brought to heel.
It is submitted that all the above cases clearly indicate that the “good faith” conduct of the
police (or their “bad faith” conduct) will play an important role in the interpretation of the
second leg of the test in s 35(5). “Good faith” conduct which is reasonable having regard to
the specific circumstances of the case, should in principle weigh heavily in favour of
admission. This approach will not create a situation where individual police officers or the
SAPS would be encouraged to be as ignorant as possible in order to have evidence admitted.
But “good faith” alone is not enough. “Good faith” must also be reasonable. And an objective
test must be applied. An exclusionary rule which ignores “good faith” reasonable police
conduct, will be out of line with the realities of our constitutionalized criminal justice system.
There are many situations where criminal law practitioners and academics would, even after
careful reflection, find it very difficult to say — let alone predict what a court might find —
what a police officer could or should have done, given specific facts and having regard to
constitutional requirements and statutory rules governing police investigative powers. If the
courts in their interpretation and application of the second leg of the test in s 35(5), were to
ignore good faith and reasonable — even though unconstitutional — conduct of a police
officer, there would probably be very little incentive for police officers in general to comply or
attempt to comply with constitutional requirements.

S v Madiba [466] — which is discussed in § 12 10 1 above — serves as authority that public
safety (including the safety of the police) and urgency are factors which can favour
admission of the unconstitutionally obtained evidence. [467] The presence of these factors is
frequently an indication of good faith on the part of the police (see § 12 10 1 above). The
fact that unconstitutional conduct was resorted to in order to
Page 273
prevent the imminent destruction of valuable evidence, should as a rule also militate against
the exclusion of such evidence. [468]

In S v Mark and Another [469] it was noted that the infringement of a constitutional right can
lie somewhere on a scale ranging from the trivial, technical and inadvertent to the gross,
violent, deliberate and cruel. [470] A court may accordingly consider the “nature and
extent” [471] of the constitutional infringement: [472]
“Getuienis verkry as gevolg van ’n bloot tegniese of onbenullige skending, sal meer geredelik
[toegelaat] word as getuienis verkry as gevolg van ’n growwe of ernstige skending. Indien die
getuienis verkry is as gevolg van ’n flagrante of growwe skending terwyl die misdryf wat die
beskuldigde gepleeg het gering is, sal uitsluiting ’n sterk moontlikheid wees.”
A matter which is closely linked to the nature and seriousness of the violation, is whether the
unconstitutional conduct was the result of an ad hoc decision or whether it was part of a
settled or deliberate policy [473] to act with disregard for constitutional rights. [474] In the
latter instance the evidence should as a rule be excluded. [475] Here, too, it is ultimately a
matter of determining the presence or absence of good faith on the part of the police (see
§ 12 10 1 above) and to discipline the police where necessary.
12 10 4 The availability of lawful means or methods of securing the

evidence
In R v Collins Lamer J said: [476]
“I should add that the availability of other investigatory techniques and the fact that the evidence
could have been obtained without the violation of the Charter tend to render the Charter violation
more serious. We are considering the actual conduct of the authorities and the evidence must not be
admitted on the basis that they could have proceeded otherwise and obtained the evidence properly.
In fact, their failure to proceed properly when that option was open to them tends to indicate a
blatant disregard for the Charter, which is a factor supporting the exclusion of the evidence.”
In R v Feeney the majority of the Supreme Court of Canada confirmed this approach and
added that “[if] other techniques were indeed available, it is demonstrative of bad faith and
is particularly serious that the police chose to violate the appellant’s rights”. [477] In South
Africa the matter seems to turn on the presence or absence of good faith and reasonable
conduct (see § 12 10 1 above).
Page 274
And the fact that alternative lawful means were available, is not necessarily decisive in
excluding the evidence: where the court makes a finding that on the facts the police had
acted in good faith and that their failure to follow prescribed lawful procedures was
“technical and inadvertent in nature . . . the administration of justice would be brought into
disrepute if this evidence were to be excluded”. [478]
In Canada it has been held that the non-availability of lawful methods is neither an excuse
nor a justification for constitutionally impermissible investigative techniques; and in such an
instance the Charter violation would be more serious than it would be otherwise. [479]
In S v Mkhize [480] Willis J, writing for a unanimous full bench, followed the principle
established in R v Collins [481] and confirmed in R v Jacoy: [482] the admission of
unconstitutionally obtained real evidence — as opposed to unconstitutionally obtained
testimonial communications — will rarely render the trial unfair; [483] and the admissibility of
such evidence should therefore in principle be decided with reference to the second leg of
the test. For this purpose the court may take into account “whether the violation was in good
faith, and whether it was inadvertent or of a merely technical nature”. [484] In Mkhize Willis J
also found that even if a search warrant had been applied for in terms of the CPA “nothing
that the appellant could lawfully have done would have prevented the discovery of the
pistol” [485] in the appellant’s locker at his place of employment. The court also found —
perhaps rather generously — that the police officer concerned had acted in good faith. The
evidence was held admissible. [486]
Page 275
The statement in Mkhize to the effect that unconstitutionally obtained real evidence will
rarely render the trial unfair, must now be read subject to what the Supreme Court of
Appeal said in S v Tandwa and Others, namely that the distinction between testimonial
communications and real evidence is misleading because “the question should be whether
the accused was compelled to provide the evidence.” [487] At any rate, in Tandwa the
unconstitutionally obtained real evidence (the accused was assaulted) was not only excluded
on account of fair trial considerations, but also on the basis that admission thereof would
have been detrimental to the administration of justice (see § 12 9 7 (c) above).
12 10 6 Inevitable discovery or discovery on the basis of an

independent source
It is submitted that for purposes of the second leg of the test in s 35(5), our courts may take
into account, where appropriate, that the “inevitable discovery” of real evidence is a factor
favouring admissibility: if the real evidence would — but for the unconstitutional conduct —
have been discovered by lawful means, the exclusion of such evidence would generally be
detrimental to the administration of justice. [488] This approach is in line with the “inevitable
discovery” exception created by the Supreme Court of the USA [489] and the approach of the
Supreme Court of Canada as explained in R v Stillman [490] and R v Feeney. [491]
The rationale of the independent source doctrine as applied in the USA [492] and
Canada [493] should also play a role in determining whether admission of the impugned
evidence would be detrimental to the administration of justice.
Page 276

12 11 1 The trial within a trial [494]
A trial within a trial should as a rule be held where the defence objects to the admissibility of
evidence on the basis of s 35(5). [495] The reason for this procedure is to ensure that an
accused can testify on the issue concerning the admissibility of the impugned evidence
without exposing himself to cross-examination on guilt [496] and an accused is — for purposes
of exercising his right to testify or not at the end of the state’s case in the main trial —
entitled to know what evidence has been admitted as part of the state’s case against
him. [497]
A trial within a trial is unnecessary where the parties agree that the facts are common
cause or almost wholly common cause [498] or where the court is satisfied that the objection
raised by the defence affects the weight and not the admissibility of the evidence. [499] The
court must in each case decide whether the challenge is directed at the weight or the
admissibility of the evidence. [500]

There is a great deal of confusion concerning the burden of proof and the application of s 35
(5). [501] In S v Naidoo and Another [502] McCall J, relying on some cases decided under the
Interim Constitution, [503] expressed the opinion that “the defence bore the burden of
proving, on a preponderance of probabilities, the existence of the constitutional right on
which the accused relied and its infringement”. [504] In S v Gumede Magid J accepted that
“the party seeking to exclude the evidence . . . bears the onus of establishing that the
admission of the disputed evidence
Page 277
‘would render the trial unfair or otherwise be detrimental to the administration of

justice”’. [505] However, in S v Soci [506] Erasmus J referred to S v Nombewu, [507] his own
earlier decision under the interim Constitution, where he had said that “the rules of law
relating to burden of proof do not apply, either for the final decision on the question, or for
proof of the individual facts which bear on that decision.” [508] In Soci he concluded that
“there is no onus on the State to disprove the fact of an alleged violation of an accused’s
rights under the Constitution”. [509]
It is impossible to reconcile the above viewpoints. It is submitted that an alternative
approach is possible. First, the defence must allege — but need not prove [510] — that there
has been an infringement of a constitutional right of the accused and that s 35(5) calls for
exclusion. Second, in the course of the trial within a trial (see § 12 11 1 above) the
distinction between “purely factual matters [as opposed to] matters of judgment and
value” [511] must be borne in mind. The accused must get the benefit of the doubt on factual
matters which the state fails to prove beyond a reasonable doubt. For example, where the
defence alleges that the accused never consented to the warrantless search of his property
(or was not given the required constitutional warnings upon arrest), the prosecution will
have to prove the presence of consent (or the fact that the warnings were given) if that is
part of its case. [512] Third, once the necessary factual findings have been made and it is
concluded that the evidence was indeed obtained in breach of constitutional rights, the court
is required to exercise its discretion and make a value judgment on the question whether
admission of the evidence would result in one of the consequences
Page 278
identified in s 35(5). And there can be no question of an onus in respect of this decision; [513]
nor should there be a presumption in favour of or against the admission of the evidence. [514]
12 12 Evidence Procured by Means of Entrapment (s 252A of

the CPA and s 35(5) of the Constitution)
A trap is neither an accomplice [515] nor an informer, [516] but “a person who, with a view to
securing the conviction of another, proposes certain criminal conduct to him, and himself
ostensibly takes part therein . . . [H]e creates the occasion for someone else to commit the
offence”. [517] Entrapment is a “proactive investigative technique.” [518] There are various
forms of entrapment. [519] It is generally considered a controversial form of procuring
evidence, [520] even though it must be conceded that there are situations where entrapment
or engagement in undercover operations is the only effective means of detecting and
investigating the commission of an offence. [521] There is, however, always the risk that an
otherwise innocent person might have been induced to commit the crime on account of the
persuasive conduct of, or methods employed by, the trap.
Page 279
In terms of common-law principles entrapment is no defence. [522] And rules of exclusion

in respect of entrapment evidence, do not apply. [523] The court, however, must assess the
evidence of a trap with caution (see § 30 11 1 below); and in the event of a conviction,
entrapment may, where appropriate, serve as a mitigating factor in imposing sentence. [524]
Under the interim Constitution it was accepted that entrapment could not be a substantive
defence. [525] The courts also had to receive evidence of entrapment (in the sense that there
was no evidentiary rule of exclusion). [526] But most courts held that in their evaluation of the
evidence, they were required to consider whether the police procedures had been so
fundamentally unfair that the accused was deprived of his constitutional right to a fair trial in
terms of s 25(3) of the Interim Constitution. [527]
Section 252A of the CPA was inserted by s 1 of the Criminal Procedure Second
Amendment Act [528] and came into operation on 29 November 1996. [529] Section 252A [530]
— which is contained in Appendix C to this work — regulates the setting of traps and the
engaging in undercover operations. [531] No substantive defence of entrapment was created
by this section. However, following the general recommendations made by the South African
Law Commission, [532] the legislature opted for a qualified rule of exclusion. Section 252A(3)
(a) — which must be read with s 252A(1) [533] and 252A(2) [534] — provides as follows: [535]
Page 280
“If a court in any criminal proceedings finds that in the setting of a trap or the engaging in an
undercover operation the conduct goes beyond providing an opportunity to commit an offence, the
court may refuse to allow such evidence to be tendered or may refuse to allow such evidence already
tendered, to stand, if the evidence was obtained in an improper or unfair manner and that the
admission of such evidence would render the trial unfair or would otherwise be detrimental to the
administration of justice.”
Section 252A(3)(b) stipulates that the court — when considering the admissibility of the
evidence — “shall weigh up the public interest against the personal interest of the accused”.
The same section also requires the court to have regard to several factors, if applicable.
These factors are set out in s 252A(3)(b)(i) to 252A(3)(b)(vi). Section 252A(3)(b)(iii)
provides that one of the factors the court is required to consider, is “the nature and
seriousness of any infringement of any fundamental right contained in the Constitution.”
Section 252A(6) provides that if the question is raised whether entrapment evidence
should in terms of s 252A(3)(a) be excluded,
“the burden of proof to show, on a balance of probabilities, that the evidence is admissible, shall rest
on the prosecution: Provided that the accused shall furnish the grounds on which the admissibility of
the evidence is challenged: Provided further that if the accused is not represented the court shall raise
the question of the admissibility of the evidence.” [536]
The question whether evidence should be excluded in terms of s 252A(3)(a), may — on
application of the accused or the prosecution, or by order of the court mero motu — be
adjudicated as a separate issue in dispute, [537] that is, by having a trial within a trial.
It should be noted that the discretionary rule of exclusion created by s 252A(3)(a),
remains subject to the provisions of s 35(5) of the Constitution. [538] Section 252A(3)(a)
creates the impression that evidence may be admitted even if “the admission of such
evidence would render the trial unfair or would otherwise be detrimental to the
administration of justice”. However, where the entrapment evidence was unconstitutionally
obtained, the provisions of s 35(5) must prevail: the court must exclude the evidence if it is
satisfied that admission would result in one of the consequences identified in s 35(5). [539]
In Amod v S [540] the conviction and sentence were set aside because the police
procedures and conduct in the course of entrapment, rendered the appellant’s trial unfair.
Section 252A was invoked. The police were extremely persistent in selling gold to the
accused. They offered the accused a reduction in the purchase price after he had indicated
his unwillingness to conclude the transaction at the initial price. They resorted to verbal
persuasion and also
Page 281
offered him a credit facility. A number of attempts were made over a substantial period of
time to entice the accused. [541]
12 13 Civil Cases
Shell SA (Edms) Bpk en Andere v Voorsitter, Dorperaad Van Die Oranje-Vrystaat, en
Andere [542] — decided in 1992 — was the first case in which the common-law inclusionary
approach was, for purposes of civil proceedings, subjected to critical scrutiny. [543]
Distinguishing Botha v Botha [544] and relying on, inter alia, S v Mushimba en Andere [545] and
a post-30 May 1961 English decision, [546] Lombard J ruled certain evidence inadmissible on
the basis that he had a discretion to exclude improperly obtained evidence. [547] Relying on
Lombard J’s decision as well as the decision of Myburgh J in Motor Industry Fund
Administrators (Pty) Ltd and Another v Janit and Another, [548] Hurt J concluded in Lenco
Holdings Ltd and Others v Eckstein and Others that “in civil proceedings, the Court has a
discretion to exclude evidence . . . obtained by a criminal act or otherwise improperly”. [549]
Judicial integrity and the integrity of the judicial system were some of the factors which led
the court to exclude the impugned evidence. [550] On the available evidence, there was also
no indication that the applicant had attempted or contemplated lawful methods of procuring
the evidence “before taking the decision to resort to crime.” [551]
The discretion which developed in the pre-constitutional era, also has a solid constitutional
basis despite the fact that s 35(5) is not — as was pointed out in § 12 1 above — applicable
to civil proceedings. [552] After all, in terms of s 34 of the Constitution there is a right to a fair
civil trial. [553]
Page 282
In Fedics Group (Pty) Ltd and Another v Matus and Others Fedics Group (Pty) Ltd and
Another v Murphy and Others [554] Brand J observed that the denial of a discretion in civil
proceedings to exclude illegally or otherwise improperly obtained evidence would be “a
retrogressive step in the development of our law . . .” [555] In the exercise of this discretion,
he found, a court is directed by s 39(2) of the Constitution to “promote the spirit, purport
and objects” of the Bill of Rights in developing the common law. [556] Having noted the
fundamental differences between criminal and civil proceedings, [557] Brand J observed: [558]
“Without trying to formulate principles of general validity or rules of general application, the
implications of these differences between criminal and civil proceedings in the present context are, in
my view, twofold. On the one hand, the litigant who seeks to introduce evidence which was obtained
through a deliberate violation of constitutional rights will have to explain why he could not achieve
justice by following the ordinary procedure, including the Anton Piller procedure, available to him. On
the other hand, the Court will, in the exercise of its discretion, have regard to the type of evidence
which was in fact obtained. Is it the type of evidence which could never be lawfully obtained and/or
introduced without the opponent’s co-operation, such as privileged communications, or the recording
of a tapped telephone conversation, or is it the type of evidence involved in this case, namely
documents and information which the litigant would or should eventually have obtained through lawful
means? In the latter case, the Court should, I think, be more inclined to exercise its discretion in
favour of the litigant who seeks to introduce the evidence than it would be in the case of the former.
It goes without saying that the Court will, in any event, have regard to all the other circumstances of
the particular case.”
Taking into account various relevant facts, [559] the court ultimately concluded that the
impugned evidence was admissible even though there had been a breach of the
constitutional right to privacy in the procurement of the evidence.
In Protea Technology Ltd & another v Wainer & others [560] Heher J held that the
Interception and Monitoring Prohibition Act 127 of 1992 did not expressly or by necessary
inference render the production of recordings made in violation of its terms, inadmissible in
evidence before a court trying a civil dispute. [561] On the facts of the case it was also held
that the respondent could not rely on
Page 283
the constitutional right to privacy and that the impugned evidence was admissible. [562]
Heher J, however, also ruled that even if the finding that the respondent could not rely on
the constitutional right to privacy were wrong, he would — after having adjusted the test for
admissibility to meet constitutional requirements [563] — nevertheless have admitted the
evidence. [564]
In Lotter v Arlow and Another [565] the applicant, a creditor of the respondents, had
requested her attorneys to instruct a valuator to investigate whether the respondents had
any disposable assets. Having received his instructions, the valuator unlawfully entered the
residential premises of the respondents. He found a Mercedes, worth R125 000. Bertelsmann
J excluded the evidence of the valuator. The main reasons for exclusion were the following:
the valuator knew he was acting unlawfully; [566] the respondents’ constitutional right to
privacy was infringed; [567] the applicant had resorted to self-help whilst lawful means were
available; [568] there was no evidence that the respondents had been acting unlawfully; [569]
admission of the evidence would have brought the administration of justice into disrepute,
encouraging disrespect for the law and the Constitution; [570] neither the applicant nor the
evaluator gave any reasons why it was necessary to proceed in the manner in which they
did. [571]
It has been suggested that the conduct of the party objecting to the admissibility of the
impugned evidence, is “a factor to be taken into account by the court in exercising its
discretion . . .”. [572]
[1] Parts of this chapter are based on the following two articles by Van der Merwe: 1992 Stell LR 175 and 1998
SACJ 462.
[2] The interim Constitution had no such provision. See further § 12 7 2 below.
[3] Protea Technology Ltd & another v Wainer & others 1997 (9) BCLR 1225 (W) 1244B; Schmidt & Rademeyer
382; Steytler Constitutional Criminal Procedure (1998) 34. See further § 12 13 below.
[4] See, eg, S v Mthembu 2008 (2) SACR 407 (SCA); S v Tandwa and Others 2008 (1) SACR 613 (SCA); S v Pillay
and Others 2004 (2) SACR 419 (SCA); S v M 2002 (2) SACR 411 (SCA); Director of Public Prosecutions, Transvaal v
Viljoen 2005 (1) SACR 505 (SCA).
[5] See S v Naidoo and Another 1998 (1) SACR 479 (N), which is discussed in §§ 12 9 4 and 12 10 1 below.
[6] See generally S v Soci 1998 (2) SACR 275 (E), which is discussed in §§ 12 8 2 and 12 10 1 below; S v Gumede
1998 5 BCLR 530 (D) and S v Madiba 1998 1 BCLR 38 (D). The latter case is also discussed in § 12 10 1 below.
[7] See generally S v Shongwe en Andere 1998 (2) SACR 321 (T).
[8] S v Aimes and Another 1998 (1) SACR 343 (C). This case is discussed in § 12 8 6 below. See also S v Saloman
and Others 2014 (1) SACR 93 (WCC) which is discussed by Schwikkard (2014) 27 SACJ 293.
[9] 232 US 383 (1914) at 393. Oaks “Studying the Exclusionary Rule in Search and Seizure” 1970 37 Univ of
Chicago LR 665 756 puts the matter as follows: “If constitutional rights are to be anything more than pious
pronouncements, then some measurable consequence must be attached to their violation. It would be intolerable if
the guarantee against unreasonable search and seizure could be violated without practical consequence. It is likewise
imperative to have a practical procedure by which courts can review alleged violations of constitutional rights and
articulate the meaning of those rights. The advantage of the exclusionary rule — entirely apart from any direct
deterrent effect — is that it provides an occasion for judicial review, and gives credibility to the constitutional
guarantees.”
[10] Van den Wyngaert (ed) Criminal Procedure Systems in the European Community (1993) 20-1, 174, 238;
Bradley “The Emerging International Consensus as to Criminal Procedural Rules” 1993 14 Michigan Journal of
International Law 171 219; Pakter “Exclusionary Rules in France, Germany and Italy” 1985 9 Hastings International
and Comparative LR 1.
[11] See generally Stavros The Guarantees for Accused Persons under Article 6 of the European Convention on
Human Rights (1993) 225-7. In Saunders v United Kingdom 1996 23 EHRR 313 the European Court of Human Rights
held that evidence obtained in violation of internationally recognised procedural safeguards could infringe the right to
a fair trial under art 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms
(1950).
[12] Paragraph 7(b) of art 69 of the Rome Statute of the International Criminal Court (1998) provides that “[e]
vidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be
admissible if . . . [t]he admission of the evidence would be antithetical to and would seriously damage the integrity
of the proceedings”. See also generally rule 95 of the Rules of Procedure and Evidence of the International Criminal
Tribunal for the Former Yugoslavia (1994).
[13] See § 1 4 above.
[14] Crompton J in R v Leatham 1861 Cox CC 498 501 501 as quoted by Langenhoven Die Toelaatbaarheid van
Ongrondwetlik Verkreë Getuienis (unpubl LLD thesis, Univ of Stellenbosch, 1999) 17. See also Ally Constitutional
Exclusion under Section 35(5) of the Constitution of the Republic of South Africa, 1996 (unpubl LLD thesis, University
of Pretoria, 2009) 35.
[16] Even in England, where the inclusionary approach developed, the matter has since 1984 been regulated by
statute. Section 78(1) of the Police and Criminal Evidence Act 1984 provides as follows: “In any proceedings the
court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court
that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the
admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought
not to admit it”. However s 82(3) of the same Act also provides as follows: “Nothing in . . . this Act shall prejudice
any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its
discretion.”
[17] Section 38(1) of the Evidence Act 1995 of Australia provides that evidence obtained improperly or in
contravention of an Australian law — or in consequence of an impropriety or of a contravention of an Australian law
— “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting
evidence that has been obtained in the way in which the evidence was obtained.” Emphasis added. Section 138(3) of
this Act identifies certain other factors that a court must take into account.
[18] Zuckermann The Principles of Criminal Evidence (1989, repr 1992) 345-6.
[19] See generally Kahanovitz “The Namibian Bill of Rights: Implications for the Promotion of Procedural and
Substantive Justice in Criminal Cases” 1991 2 Criminal Law Forum 569 589-90. In S v Minnies and Another 1991 (1)
SACR 355 (Nm) Du Toit AJ observed as follows (at 370g-h, emphasis added): “The American approach has been
formulated by judicial interpretation of the United States Constitution and in particular the Fourth, Fifth and
Fourteenth Amendments of it. A judge sitting in a different environment with different laws should obviously not seek
to draw too many analogies. But what is instructive in this and other American decisions is on the one hand the far-
reaching judicial protection against police abuses, based on constitutional rights, and on the other hand the
accompanying awareness that criminality must not be fostered by too great an inhibition of police investigation.
These competing values obviously transcend national boundaries. A court must evaluate them in the light of the
conditions and circumstances existing in its own jurisdiction from time to time, and the facts of the case before it.”
[20] R v Goodwin [1993] 2 NZLR 153 (CA). Evidence obtained in breach of rights in the New Zealand Bill of Rights
Act 1990, is prima facie inadmissible subject to a broad discretion to admit. At 206 Gault J noted that prima facie
exclusion was not the same thing as automatic exclusion. However, on the facts of the case no constitutional breach
was present.
[21] See generally The People (Attorney General) v O’Brien 1965 IR 142; The People v Walsh 1980 IR 294; The
People v Madden 1977 IR 336.
[22] 2004 (2) SACR 419 (SCA) at [122]. However, in the same paragraph he also cautioned that great care must
be taken when transporting Canadian decisions to the South African context: Canadian decisions can at most provide
a useful guide.
[23] See generally S v Tandwa and Others 2008 (1) SACR 613 (SCA) at [121]; S v Shongwe en Andere 1998 (2)
SACR 321 (T) 340a-d; Van der Merwe 1992 Stell LR 173 176. In S v Gumede 1998 5 BCLR 530 (D) 538C Magid J
even pointed out that there “is some controversy, even since the promulgation of the Constitution, between those
judges who lean towards the exclusion of [unconstitutionally] obtained evidence and those who adopt an inclusionary
approach.”
[24] Stone v Powell 428 US 465 (1976) at 496. But see § 12 4 3 below.
[25] 1950 SC (J) 19 26-7 (as quoted by Stuart Charter Justice in Canadian Criminal Law 2 ed (1996) 469-70). See
also Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC); 1996 (2) SACR 113 (CC)
at [13] as quoted in n 188 below.
[26] The following dissenting judgment of Brandeis J in Olmstead v United States 277 US 438 (1928) at 485
provides clear grounds for rejecting this argument: “Decency, security, and liberty alike demand that government
officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws
the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the
potent, the omnipresent, teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious.
If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto
himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to
declare that the government may commit crimes to secure the conviction of a private criminal — would bring terrible
retribution. Against that pernicious doctrine this court should resolutely set its face.”
[27] Wigmore paras 2183 and 2184.
[28] Schlesinger Exclusionary Injustice: The Problem of Illegally Obtained Evidence (1977) 62.
[29] See generally Peiris “The Admissibility of Evidence Obtained Illegally: A Comparative Analysis” 1981 13
Ottawa LR 309 343.
[30] See People v Defore 150 NE 585 (1926); Wolf v Colorado 338 US 25 (1949); Shanks “Comparative Analysis
of the Exclusionary Rule and its Alternatives” 1983 57 Tulane LR 648. But see § 12 3 below for a counter-argument.
See also Brinegar v United States 338 US 160 (1949) at 173; Mapp v Ohio 367 US 643 (1961); Traynor Mapp v Ohio
at Large in the 50 States 1962 Duke LJ 319
[31] This argument is unacceptable because “the investigative process . . . is . . . part of the administration of
justice” (Zuckerman The Principles of Criminal Evidence 345). See also S v Nkabinde 1998 8 BCLR 996 (N) 1001E.
[32] Schlesinger Exclusionary Injustice 61; Peterson “Restrictions in the Law of Search and Seizure” 1958 52
Northwestern Univ LR 46 55.
[34] This criticism of the exclusionary rule can be rejected on the basis that it views the rule solely from the angle
of the “guilty”. Dworkin “Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering” 1973 48
Indiana LJ 329 330-1 has pointed out that the exclusionary rule protects “the rest of us from unlawful invasions of
our security and [maintains] the integrity of our institutions . . . The innocent and society are the principal
beneficiaries of the exclusionary rule.”
[35] Kamisar “‘Comparative Reprehensibility’ and the Fourth Amendment Exclusionary Rule” 1987 86 Michigan LR
1 43 dismisses this argument (emphasis in the original text): “I wince when I hear a law enforcement official
protest: ‘We . . . are forced to fight by Marquis of Queensberry rules while criminals are permitted to gouge and
bite’. If criminals didn’t gouge and bite they wouldn’t be criminals. And if police officers did gouge and bite they
wouldn’t (or at least shouldn’t) be police officers.”
[36] Stewart “The Road to Mapp v Ohio and Beyond: The Origins, Development and Future of the Exclusionary
Rule in Search and Seizure Cases” 1983 83 Columbia LR 1365 1394 notes that “there is absolutely no evidence that
the exclusionary rule is in any way responsible for the horrible increase in the crime rate in the United States.” See
also LaFave Search and Seizure: A Treatise on the Fourth Amendment 2 ed (1987) 22 n 6; Kamisar 1987 86
Michigan LR 1 131. See further § 12 10 below.
[37] Cardozo J in People v Defore supra. But there is a fundamental flaw in this line of reasoning. If you are going
to deal with a corrupt or ignorant policeman, there will always be loss of reliable evidence irrespective of the fact
whether an exclusionary or inclusionary rule is adopted. See also Heydon Evidence: Cases and Materials 3 ed (1991)
260-4.
[38] R v Mabuya 1927 CPD 181.
[39] Barrett “The Exclusion of Evidence Obtained by Illegal Searches — A Comment on People v Cahan” 1955 43
California LR 565 582.
[40] Waite “Judges and the Crime Burden” 1955 54 Michigan LR 169 192.
[41] Exclusionary Injustice 63.
[42] It is interesting to compare the German approach as set out by Morissette “The Exclusion of Evidence under
the Canadian Charter of Rights and Freedoms: What to do and not to do” 1984 29 McGill LJ 521 530: “The
Rechtsstaatsprinzip (or Rule of Law) requires the exclusion of evidence, regardless of its weight or value, in cases of
police brutality or other aggravated illegality. The Verhültnismüssigkeit (or principle of proportionality) calls for the
exclusion of probative evidence where the means by which it was obtained are excessively intrusive in view of the
triviality of the offence investigated and the particular sphere of privacy thus invaded. According to one fitting
metaphor, the principle of proportionality means that one should not shoot sparrows with a cannon.” Stewart 1983
83 Columbia LR 1365 1396 concludes as follows: “[D]isproportionality is significant only if one conceives the purpose
of the rule as compensation for the victim. Because I view the exclusionary rule as necessary to preserve Fourth
Amendment guarantees, I do not find this criticism persuasive.”
[43] Schlesinger Exclusionary Injustice 63.
[44] See generally Shanks “Comparative Analysis of the Exclusionary Rules and its Alternatives” 1983 57 Tulane
LR 648.
[45] 364 US 206 (1960) at 217.
[46] See also LaFave Search and Seizure 17. In S v Pillay and Others 2004 (2) SACR 419 (SCA) Mpati DP and
Motata AJA said (at [94]) that to admit the impugned real evidence indirectly obtained as a result of a serious breach
of the second appellant’s constitutional right to privacy “might create an incentive for law enforcement agents to
disregard accused persons’ constitutional rights . . . That result — of creating an incentive for the police to disregard
accused persons’ constitutional rights, particularly in cases like the present, where a judicial officer is misled — is
highly undesirable and would . . . do more harm to the administration of justice than enhance it.”
[47] Oaks “Studying the Exclusionary Rule in Search and Seizure” 1970 37 Univ of Chicago LR 665.
[48] See Stone v Powell 428 US 465 (1976) at 492.
[49] Kamisar 1987 86 Michigan LR 1 34 n 147.
[50] 1998 (1) SACR 388 (W) 400b.
[51] 1998 (2) SACR 275 (E). See also generally S v Cwele and Another 2011 (1) SACR 409 (KZP) at [7].
[52] Packer The Limits of the Criminal Sanction (1968) 149-72. See also generally Herrmann 1978 SACC 3 as well
as S v Mthembu 2008 (2) SACR 407 (SCA) at [36].
[53] See Weeks v United States 232 US 383 (1914) at 393; Oaks 1970 37 Univ of Chicago LR 665; Schwikkard
1991 SALJ 318 326.
[54] See Mapp v Ohio 367 US 643 (1961) at 662.
[55] See Paizes 1989 SALJ 472 478.
[56] See Cleary (ed) McCormick on Evidence 3 ed (1984) 463.
[57] See Gard (ed) Jones on Evidence: Civil and Criminal 13. See also generally S v Tandwa and Others 2008 (1)
SACR 613 (SCA) at [120]-[121].
[58] See generally Kamisar 1987 86 Michigan LR 130; Diamond “The State and the Accused: Balance of Advantage
in Criminal Procedure” 1960 69 Yale LJ 1149.
[59] Packer The Limits of the Criminal Sanction 166. See also Van Rooyen 1975 Acta Juridica 70 78.
[60] See, eg, S v Mushimba en Andere 1977 (2) SA 829 (A)
[61] 1966 (2) SA 433 (A).
[62] At 444C-E.
[63] Elkins v United States supra. See also generally Osakwe “The Bill of Rights for the Criminal Defendant in
American Law: A Case Study of Judicial Lawmaking in the United States” in Andrews (ed) Human Rights in Criminal
Procedure: A Comparative Study (1982) 259 280.
[64] Janis v United States 428 US 443 (1966) at 458.
[65] Elkins v United States supra 223.
[66] Janis v United States supra.
[67] See generally Olmstead v United States 277 US 438 (1928) at 485. Cf Kaplan “The Limits of the Exclusionary
Rule” 1974 26 Stanford LR 1027.
[68] 2006 (2) SACR 33 (SE) at 41f-42a. See also S v Mthembu 2008 (2) SACR 407 (SCA) at [33], where Cachalia
J put the emphasis on the integrity of the judicial process. Ally Exclusion under Section 35(5) of the Constitution of
the Republic of South Africa, 1996 (unpubl LLD thesis, Univ of Pretoria, 2009) 43 claims that judicial integrity is “the
principal rationale for exclusion under section 24(2) of the Charter as well as section 35(5) of the South African
Constitution”.
[69] See Packer The Limits of the Criminal Sanction 167-8; Damaska “Evidentiary Barriers to Conviction and Two
Models of Criminal Procedure” 1973 121 Univ of Pennsylvania LR 506 583.
[70] 1975 Acta Juridica 70 79.
[71] 1998 (1) SACR 479 (N). See also the majority decision in S v Pillay and Others 2004 (2) SACR 419 (SCA).
See also generally S v Cwele and Another 2011 (1) SACR 409 (KZP).
[72] In S v Shongwe en Andere 1998 (2) SACR 321 (T) 341d-e Preller AJ observed as follows with reference to the
position in the USA: “Dit lyk vir my ongewens dat die hoogste hof van ’n land ’n reël formuleer, net om agterna deur
realiteite geforseer te word om die een uitsondering na die ander daarop te skep. Vir litigante het dit die ongelukkige
gevolg dat as die tersaaklike optrede nie tuisgebring kan word onder een van die geykte uitsonderings nie, die saak
tot in die hoogste hof gevoer moet word, sodat ’n nuwe uitsondering in ’n gepaste geval geskep kan word.”
[73] Weeks v United States 232 US 383 (1914). This case should be read with Boyd v United States 116 US 616
(1886) and compared with Adams v NY 192 US 585 (1904). In the latter case the common-law inclusionary
approach still held sway.
[74] 367 US 643 (1961). This case overruled Wolf v Colorado 338 US 25 (1949) on this point. Mapp v Ohio supra
was preceded by Rochin v California 342 US 165 (1952), where real evidence was excluded on the basis that it was
obtained by methods that shocked “the conscience” (at 172).
[75] Mapp v Ohio was preceded by Elkins v United States 364 US 206 (1960), where the Supreme Court rejected
the so-called “silver platter” doctrine in terms of which evidence unconstitutionally procured by state officials and
handed over to federal officials, could be received in federal criminal proceedings. This doctrine, concluded the court,
violated the Fourth Amendment prohibition against unreasonable search and seizure. Standards or criteria to
determine whether federal and state searchers complied with the Fourth Amendment, are the same. See Kerr v
California 374 US 23 (1963). Mapp v Ohio must, however, also be read subject to Herring v United States 555 US
135 (2009) where it was held that inadmissibility is not necessarily an absolute result of a Fourth Amendment
breach.
[76] Acker & Brody Criminal Procedure — A Contemporary Perspective (1999) 114 explain as follows with
reference to Katz v United States 389 US 347 (1967): “[T]he exclusionary rule is designed to deter the police from
violating people’s Fourth Amendment rights. Application of the rule normally prohibits evidence directly resulting
from an illegal search or seizure from being used to prove guilt in a criminal trial. The ‘fruit of the poisonous tree’ is
the colourful metaphor describing the relationship between a constitutional violation and the related discovery of
evidence. If the evidence — the ‘fruit’ — is a direct product of the illegality — the ‘poisonous tree’ — then it is tainted
by the constitutional violation and should not be used in a trial. For example, the ‘fruit’ of the unreasonable search
conducted in Katz v United States was the telephone conversation overheard by the authorities, which was ruled
inadmissible as evidence.” See further § 12 9 6 below.
[77] See generally Bradley (ed) Criminal Procedure: A Worldwide Study 2 ed (2007) 520-30.
[78] United States v Janis 428 US 433 (1976).
[79] Burdeau v McDowell 256 US 465 (1921).
[80] Walder v United States 347 US 62 (1954). See further § 25 5 below.
[81] United States v Havens 446 US 620 (1980). However, the prosecutor may not pursue a line of cross-
examination aimed at eliciting an answer which would permit introduction of the otherwise inadmissible real
evidence, unless such cross-examination is connected to matters which the accused first raised in evidence in chief.
In United States v Havens supra 626 White J said that the questions may not be “smuggled in” and that if the
prosecutor’s questions would have been put by “a reasonably competent cross-examiner” in the light of the
accused’s evidence in chief, they are not “smuggled in”.
[82] United States v Verdugo-Urquidez 1990 110 S Ct 1056.
[83] For a critical discussion of this case, see Gane & Mackarel “The Admissibility of Evidence Obtained from
Abroad into Criminal Proceedings — The Interpretation of Legal Assistance Treaties and Use of Evidence Irregularly
Obtained” 1996 2 European Journal of Crime, Criminal Law and Criminal Justice 98 109.
[84] United States v Calandra 444 US 338 (1974).
[85] Mardone v United States 308 US 338 (1939) at 341.
[86] See New York v Harris 495 US 14 (1990).
[87] In Wong Sun v United States 371 US 471 (1963) it was observed: “We need not hold that all evidence is ‘fruit
of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather,
the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959). We think it clear that the
narcotics were ‘come at by the exploitation of that illegality’ and hence that they may not be used against Toy.” See
further § 12 9 7 below.
[88] See Illinois v Krull 480 US 340 (1987), where it was held that if the police, in performing their duties, in
reasonably good faith rely on a statute only later found unconstitutional, the evidence obtained by them should be
admitted.
[89] The “good faith” exception to the mandatory exclusionary rule in the USA, was first created in United States v
Leon 468 US 897 (1984), where the police reasonably and in good faith relied on a search warrant issued by a
judicial officer but later found not supported by probable cause. See also Massachusetts v Sheppard 468 US 981
(1984). For general arguments in favour of a good faith exception to the rigid exclusionary rule in the USA, see Hart
“The Good Faith Restatement of the Exclusionary Rule” 1982 73 Journal for Criminal Law and Criminology 916 and
Ball “Good Faith and the Fourth Amendment: The ‘Reasonable’ Exception to the Exclusionary Rule’ 1978 69 Journal
for Criminal Law and Criminology 635. However, there also are commentators who take a critical view of the good
faith exception. See generally Bradley “The ‘Good Faith Exception’ Cases: Reasonable Exercises in Futility” 1985 60
Indiana LJ 287. See further § 12 10 1 below.
[90] 514 US 1 (1995).
[91] Seguar v United States 468 US 796 (1984).
[92] Murray v United States 487 US 533 (1988). For a critical discussion of this case, see Bradley “ Murray v
United States: The Bell Tolls for the Search Warrant Requirement” 1989 64 Indiana LJ 907. At 911 Bradley argues
that, on the facts of the case, the officers “who ‘found’ the evidence . . . pursuant to the search warrant . . . were not
‘wholly independent’ but were the very same officers who had committed the original fourth amendment violation.”
[93] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 132. See further § 12 9 7 below.
[94] Terry v Ohio 392 US 1 (1968)
[95] Mirfield Silence, Confessions and Improperly Obtained Evidence 327.
[96] Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 144.
[97] Supra.
[98] Miranda v Arizona 384 US 436 (1966) at 478-9. See also § 10 2 3 1 above.
[99] The Miranda-warnings have been described as “prophylactic standards” (Michigan v Tucker 417 US 433
(1974) at 446), “prophylactic procedures” and “preventive medicine” (Oregon v Elstad 470 US 298 (1985)). See
further § 12 7 2 1 below. In South Africa the essence of the Miranda-warnings have been elevated to constitutional
rights. See, eg, s 35(1)(a), 35(1)(b), 35(2)(b) and 35(2)(c) of the Constitution.
[100] Miranda v Arizona supra 477.
[102] Miranda v Arizona supra 473-4. See further § 10 3 2 above and § 12 9 4 below.
[103] Miranda v Arizona supra 476-7.
[104] In Oregon v Elstad supra it was said that while the Fourth Amendment exclusionary rule (see § 12 5 1
above) is to deter unreasonable searches, “[t]he Miranda exclusionary rule serves the Fifth Amendment and sweeps
more broadly than the Fifth Amendment itself”.
[106] See also generally Smith “The Threshold Question in Applying Miranda: What Constitutes Custodial
Interrogation?” 1974 25 South Carolina LR 699 and Kamisar Police Interrogation and Confessions: Essays in Law and
Policy (1980) 139. See also Schutte 1996 SACJ 263 at 270-3.
[107] Rhode Island v Innis 446 US 291 (1980) at 301. On the facts of this case it was found that there was no
“functional equivalent” of express questioning. Cf Brewer v Williams 430 US 387 (1977) — the so-called “Christian
burial speech” case — which is discussed in detail by Kamisar Police Interrogation and Confessions: Essays in Law
and Policy 113-37; Berger Taking the Fifth: The Supreme Court and the Privilege against Self-incrimination (1980)
156-7 and Schutte 1996 SACJ 167 177-80. In this case the court concluded that the conduct of the officer had been
tantamount to interrogation and in breach of the Sixth Amendment right to counsel.
[108] Miranda v Arizona supra 479. See further § 12 9 5 below.
[109] Kamisar “The Right to be Informed of Legal Rights” in Marshall (ed) The Supreme Court and Human Rights
(1982) 189 198.
[110] 470 US 298 (1985). See further § 12 8 2 below.
[111] Oregon v Elstad supra.
[112] Oregon v Elstad supra. See further § 12 8 2 below.
[113] 475 US 412 (1986).
[114] Moran v Burbine supra 422.
[115] Moran v Burbine supra 424. Emphasis added. Some state courts have on state law grounds refused to follow
Moran v Burbine supra. See, eg, State v Reed 627 A 2d 630 (1993).
[116] 1998 (1) SACR 388 (W).
[117] Michigan v Tucker 417 US 433 (1974).
[118] Michigan v Tucker supra 446.
[119] 467 US 649 (1984).
[120] New York v Quarles supra 657.
[121] 420 US 714 (1975).
[122] 401 US 222 (1971).
[123] 467 US 431 (1984). See also the discussion of S v Pillay and Others 2004 (2) SACR 419 (SCA) by Naudé
2008 SACJ 168.
[124] See Brewer v Williams supra. Nix v Williams supra was a sequel to Brewer v Williams.
[125] Nix v Williams supra 444.
[126] R v Wray 1970 11 DLR (3d) 673.
[127] Sopinka, Lederman & Bryant The Law of Evidence in Canada 2 ed (1999) 409. Bryant, Gold, Stevenson &
Northrup “Public Attitudes toward the Exclusion of Evidence: Section 24(2) of the Canadian Charter of Rights and
Freedoms” 1990 2 Can Bar Rev 1 observed as follows (at 5): “The core idea is simple. An effective and stable legal
system must enjoy the support of the public. To admit unconstitutionally obtained evidence where that would bring
the system into disrepute in the eyes of the public would be to compromise the public’s support for the legal system.
Conversely, to exclude evidence under circumstances where this would bring the administration of justice into
disrepute would again undermine public support for the legal system. Hence the ‘compromise’ reflected in section 24
(2).” This passage was quoted with approval by Cloete J in S v Mphala and Another 1998 (1) SACR 654 (W) 660a in
his interpretation of s 35(5) of the Constitution.
[128] See generally Marin Admissibility of Statements 7 ed (1989) 182.
[129] [2009] 2 SCR 553. For discussions of Grant and its possible future persuasive influence on South African
jurisprudence as regards the interpretation of s 35(5), see Naudé 2009 Obiter 607 and De Vos 2011 (2) TSAR 268.
See also more generally Ally 2012 15(2) PER/PELJ 477.
[130] [1997] 1 SCR 607.
[131] [1987] 1 SCR 265.
[132] See also the discussion of Stillman in § 12 9 6 below.
[133] R v Grant supra at [64].
[134] At [71].
[135] See also Naudé 2009 Obiter 607 at 616; Stuart “Welcome Flexibility and Better Criteria from the Supreme
Court of Canada for Exclusion of Evidence Obtained in Violation of the Canadian Charter of Rights and Freedoms”
2010 2 Southwestern Journal of International Law 313 at 317-8.
[136] R v Grant supra at [72].
[137] 2008 (2) SACR 407 (SCA) at [33].
[138] 2006 (2) SACR 33 (SE) at 41f-42a.
[139] At [73].
[140] R v Grant at [74].
[141] R v Grant at [75].
[142] See, eg, R v Silveira [1995] 2 SCR 297.
[143] R v Grant at [75].
[144] R v Grant at [75].
[145] R v Kokesch [1990] 3 SCR 3.
[146] See also Paizes in Du Toit et al Commentary at 24-98N-17 for a summary of this line of inquiry as identified
in R v Grant.
[147] R v Grant at [76].
[148] See also Paizes in Du Toit et al Commentary at 24-98N-18.
[149] R v Grant at [79].
[150] At [83].
[151] R v Grant at [89]-[98].
[152] At [99]-[111].
[153] At [112]-[115].
[154] At [116]-[128].
[155] See the discussion of Grant by Stuart 2010 2 Southwestern Journal of International Law 313.
[156] [1987] 1 SCR 265.
[157] For analyses and criticisms of the common-law position as it stood prior to constitutionalization, see Zeffertt
“Pointing Out” in Kahn (ed) Fiat Justitia: Essays in Memory of Oliver Deneys Schreiner (1983) 398; Zeffertt 1970
SALJ 402; Skeen 1988 SALJ 389; Campbell 1968 SALJ 246; Van Rooyen 1975 Acta Juridica 70 77-81; Paizes 1988
SALJ 168; S v Malefo en Andere 1998 (1) SACR 127 (W) 152h-154g; Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others 1996 (1) SA 984 (CC) at [147] and [148]. See also generally S v Mthembu 2008 (2)
SACR 407 (SCA) at [22].
[158] This residuary clause must of course now be read subject to s 35(5) of the Constitution.
[159] Kuruma, Son of Kaniu v R 1955 AC 197 203. See also further R v Sang 1979 2 All ER 1222 and Flemming
DJP’s analysis of Sang in S v Desai 1997 (1) SACR 38 (W).
[160] Kuruma, Son of Kaniu v R supra 204, which was quoted with approval by Rumpff CJ in an obiter dictum in S
v Mushimba en Andere 1977 (2) SA 829 (A) 840. There are also cases which seem to recognise a discretion to
exclude an accused’s otherwise admissible statement where the prejudicial effect outweighs its probative value. See
S v Mbatha 1985 (2) SA 26 (D) and S v Ramgobin and Others 1986 (4) SA 117 (N).
[161] 1970 (2) SA 594 (C) as read with s 79(7) of the Constitution. For a discussion of Forbes, see Van Niekerk,
Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 14-6. See further S v Boesman and Others 1990 (2)
SACR 389 (E).
[162] 1987 (4) SA 950 (W).
[163] Act 44 of 1958. This case should now be compared with S v Naidoo and Another 1998 (1) SACR 479 (N),
which is discussed in § 12 10 1 below. See also S v Pillay and Others 2004 (2) SACR 419 (SCA).
[164] Paizes 1988 SALJ 168-70 has pointed out that this formulation should be qualified in respect of “autoptic”
evidence and the exclusion of evidence where the prejudicial effect would outweigh probative value (ie, where the
evidence is in effect irrelevant).
[165] 1994 (2) SACR 496 (C).
[166] In Hammer supra the accused was 18 years old and, whilst in custody, wrote a letter to his mother. The
paper was provided by the police and a policeman undertook to deliver the letter to the accused’s mother. Instead
the policeman read the letter and then handed it over to the office of the attorney-general. The issue at the trial was
whether the prosecutor could cross-examine the accused on the contents of the letter. Farlam J, in applying the
principles above, ruled against such a course. He concluded that the conduct of the policeman was morally
reprehensible and amounted to an injuria.
[167] 1999 (1) SACR 338 (W) 349b-c. See also S v M 2002 (2) SACR 411 (SCA).
[168] Supra 350d.
[169] Supra 350g.
[170] At 351b. The court considered R as part of a police operation (at 346h-i) but concluded that R’s involvement
was not part of a deliberate police stratagem aimed at outflanking the provisions of the Interception and Monitoring
Prohibition Act 127 of 1992. At 347b-c it was said: “The present case does not however seem to me to involve a
stratagem, but a reasonable decision on the part of the investigating officer to utilize a civilian [R], who had a
legitimate interest of his own, to record a two-party conversation. The statute did therefore not prohibit the
monitoring.”
[171] S v Kidson supra 348c-e. The relevant statute is now the Regulation of Interception of Communications and
Provision of Communication-Related Information Act 70 of 2002. See further S v Cwele and Another 2011 (1) SACR
409 (KZP).
[172] S v Kidson supra 348d-e.
[173] S v Kidson supra 348i-j.
[174] 1994 (2) SACR 496 (C) — as discussed above.
[175] 1998 (1) SACR 479 (N) — as discussed in § 12 10 1 below.
[176] According to Du Plessis & Corder Understanding South Africa’s Transitional Bill of Rights (1994) 177-8 it was
proposed that the following provision be added to 25(3) of the interim Constitution: “Every accused person shall
have the right to the exclusion during his or her trial of evidence which was obtained in violation of any right
entrenched in this Chapter: Provided that the court must be convinced that the admission of such evidence will bring
the administration of justice in disrepute.”
[177] Du Plessis & Corder Understanding South Africa’s Transitional Bill of Rights 178.
[178] 1927 CPD 181.
[179] At 182.
[180] See generally Van der Merwe 1992 Stell LR 173 184-5.
[181] Compare, eg, R v Mabuya supra with S v Motloutsi 1996 (1) SACR 78 (C) and S v Mayekiso en Andere 1996
(2) SACR 298 (C).
[182] Section 7(4) of the Interim Constitution provided, ia, that where it was alleged that any right entrenched in
ch 3 of the interim Constitution had been infringed, a court could grant appropriate relief. In S v Melani en Andere
1995 (2) SACR 141 (E) the court, in ascertaining what constituted appropriated relief, rejected both the rigid
exclusionary and rigid inclusionary approaches. Froneman J found that a strict exclusionary approach failed to take
into account the interests of the community as a whole. He held that a rigid inclusionary approach was inappropriate
in a legal system which recognised the supremacy of the Constitution and that it denied the court the opportunity of
granting effective “appropriate relief”. In favouring and applying a discretionary approach, which allowed the court to
admit evidence if its exclusion would bring the administration of justice into discredit and dishonour, the court noted
that the seeds for such an approach could be detected in the case law prior to the enactment of the interim
Constitution. In this respect Froneman J referred (at 153e) to S v Hammer and Others 1994 (2) SACR 496 (C). In
addition the court held that this discretionary approach provided the best mechanism for balancing the legitimate
interests of the accused and those of the community at large. In a later judgment bearing the same name (S v
Melani and Others 1996 (1) SACR 335 (E)) Froneman J held that s 25 of the Interim Constitution provided a further
reason for the exclusion of unconstitutionally obtained evidence, “namely the need to ensure the fairness and
integrity of the criminal process at least from arrest up to and including the trial” (at 84i-j).
[183] See generally S v Motloutsi supra, which was followed in S v Mayekiso supra.
[184] S v Mathebula and Another 1997 (1) SACR 10 (W). This approach was rejected in S v Shongwe en Andere
1998 (2) SACR 321 (T) and Bangindawo and Others v Head of the Nyanda Regional Authority and Another;
Hlantlalala v Head of the Western Tembuland Regional Authority and Others 1998 (2) SACR 16 (Tk).
[185] Compare, however, the remarks made by Magid J in S v Gumede 1998 5 BCLR 530 (D) 538B-C.
[186] Trengove in Chaskalson et al Constitutional Law of South Africa (1996, revision service 2 of 1998) 26-20.
See also the remarks made by Scott JA in S v Pillay and Others 2004 (2) SACR 419 (SCA) at [6]. In S v Agnew and
Another 1996 (2) SACR 535 (C) 541e-f Foxcroft J observed as follows: “[I]t would be farcical to insist on a high
standard of fairness in the courts while at the same time tolerating a low standard of fairness in the judicial process
prior to an accused reaching the court. What courts are ultimately concerned with is justice and the right of an
accused person to a fair trial. To allow a statement to be made to a magistrate in the circumstances of this case
without waiting for the attorney to advise his client and to be present during the making of a statement to the
magistrate, if that was what was desired, would undermine the principles of a fair trial.” See further S v Mphala and
Another 1998 (1) SACR 388 (W) as discussed in § 12 9 5 below.
[187] See § 12 9 7 below.
[188] See Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC)
and Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC); 1996 (2) SACR 113 (CC).
In para [13] of the latter case Kriegler J held: ‘In any democratic criminal justice system there is a tension between,
on the one hand, the public interest in bringing criminals to book and, on the other, the equally great public interest
in ensuring that justice is manifestly done to all, even those suspected of conduct which would put them beyond the
pale. To be sure, a prominent feature of that tension is the universal and unceasing endeavour by international
human rights bodies, enlightened legislatures and courts to prevent or curtail excessive zeal by state agencies in the
prevention, investigation or prosecution of crime. But none of that means sympathy for crime and its perpetrators.
Nor does it mean a predilection for technical niceties and ingenious legal stratagems. What the Constitution demands
is that the accused be given a fair trial. Ultimately . . . fairness is an issue which has to be decided on the facts of
each case, and the trial judge is the person best placed to take that decision. At times fairness might require that
evidence unconstitutionally obtained be excluded, but there will also be times when fairness will require that
evidence, albeit obtained unconstitutionally, nevertheless be admitted.” This passage has often been cited or referred
to for purposes of determining the admissibility of unconstitutionally obtained evidence under the interim
Constitution as well as s 35(5) of the Constitution. See S v Shongwe supra 342c-f; S v Kidson 1999 (1) SACR 338
(W); S v Gumede supra 541G-J. See also § 12 9 3 below.
[189] 1996 (1) SACR 335 (E) 352f. In this regard the court clearly relied on R v Collins 1987 28 CRR 122 (SCC) at
137, which was cited in § 12 1 above.
[190] In the second Melani case supra 348i-349j Froneman J stated: “The purpose of the right to counsel and its
corollary to be informed of that right (embodied in s 25(1)(c)) is thus to protect the right to remain silent, the right
not to incriminate oneself and the right to be presumed innocent until proven guilty. Sections 25(2) and 25(3) of the
Constitution make it abundantly clear that this protection exists from the inception of the criminal process, that is on
arrest, until its culmination up to and during the trial itself. This protection has nothing to do with a need to ensure
the reliability of evidence adduced at the trial. It has everything to do with the need to ensure that an accused is
treated fairly in the entire criminal process: in the ‘gatehouses’ of the criminal justice system (that is the
interrogation process), as well as in its ‘mansions’ (the trial court).” See also generally S v Manuel en Andere 1997
(2) SACR 505 (C) and the pre-constitutional decision S v Mpetha and Others (2) 1983 (1) SA 576 (C) 593G-H.
[191] S v Gasa and Others 1998 (1) SACR 446 (D) 447b-c.
[192] The second Melani case supra 349e-f; S v Gasa and Others supra; S v Marx and Another 1996 (2) SACR 140
(W).
[193] See generally S v Sebejan and Others 1997 (1) SACR 626 (W) as read with S v Langa and Others 1998 (1)
SACR 21 (T) and S v Ngwenya and Others 1998 (2) SACR 503 (W).
[194] These rights were embodied in s 25(1)(c) and 25(2)(a) of the Interim Constitution — in essence the right to
legal representation (and to be so informed) and the right to silence (and to be so informed).
[195] S v Marx and Another supra. The accused had upon his arrest been informed of all his relevant constitutional
rights. Some ten hours later he made a formal statement to the police during a specific police procedure, ie, the
taking down of a “warning statement” (“waarskuwingsverklaring”), without having been informed of his right to legal
assistance in regard to this procedure. Cameron J excluded the statement. There was no indication that the accused
knew that he was for purposes of making the statement, entitled to legal assistance. See also the second Melani case
supra 350f-g and S v Mathebula and Another 1997 (1) SACR 10 (W). However, compare S v Shaba en ’n Ander 1998
(1) SACR 16 (T) and S v Ndhlovu and Others 2001 (1) SACR 85 (W). The latter case was decided under s 35(5) of
the Constitution.
[196] See generally S v Malefo en Andere 1998 (1) SACR 127 (W) and S v Nombewu 1996 (2) SACR 396 (E),
where, it seems, good factual grounds existed for refusing exclusion.
[197] See ch 17 below, especially § 17 4 1 below.
[198] See ch 16 below, especially § 16 7 1 below.
[199] See generally S v Nombewu supra 403b-404c; S v Manuel en Andere 1997 (2) SACR 505 (C) 516b.
[200] The Judges’ Rules are cited in Appendix B to this work.
[201] See generally S v Nombewu supra 403b-e. However, compare, S v Van der Merwe 1998 (1) SACR 194 (O),
where Gihwala AJ held that no obligation rested upon the investigating officer, in addition to cautioning the accused
in terms of the Judges’ Rules, to advise him of his rights in terms of the interim Constitution. It should be pointed out
that in this case the investigating officer had been bona fide unaware that the accused was a suspect when he
questioned him. The court admitted the exculpatory statement (which contained admissions) on the basis that such
admission would not have deprived the accused of his right to a fair trial. The court relied on various factors in
reaching its decision (at 202c-f).
[202] 1998 (1) SACR 446 (D).
[203] 1998 (1) SACR 127 (W).
[204] 1996 (1) SACR 78 (C).
[205] 1965 IR 142.
[206] S v Motloutsi supra 83h. Farlam J also relied on S v Forbes and Another 1970 (2) SA 594 (C) as well as his
own decision in S v Hammer and Others 1994 (2) SACR 496 (C).
[207] In this case it was held (at 161) that a trial judge “has a discretion to exclude evidence of facts ascertained
by illegal means where it appears to him that public policy, based on a balancing of public interest, requires such
exclusion”.
[208] S v Motloutsi supra 88g-h.
[209] S v Motloutsi supra 88g-h.
[210] 1996 (2) SACR 298 (C).
[211] S v Mayekiso en Andere supra 307a-b.
[212] S v Mayekiso en Andere supra 307d-e.
[213] The second Melani case supra 352g.
[214] In the second Melani case supra Froneman J, before excluding the impugned evidence, observed as follows
at 352d-e: “At the time of delivery of this judgment it is, I think, fair to say that there is a widespread public
perception that crime is on the increase, in this province and in the country as a whole and that the police force is
having difficulty, to put it mildly, to contain the increase. At the best of times the police have an unenviable task.
Their opponents, criminals, are not gentlemen. They do not fight fair, but the police must. I venture to suggest that
a public opinion poll would probably show that a majority of our population would at this stage in the history of our
country be quite content if the courts allow evidence at a criminal trial, even if it was unconstitutionally obtained.”
[215] S v Mayekiso en Andere 1996 (2) SACR 298 (C) 307a-c.
[216] 1996 (2) SACR 396 (E).
[217] At 422h-i.
[218] At 422i-j.
[219] At 423c-e.
[220] 1996 (1) SACR 78 (C). See also § 12 7 2 2 above.
[221] At 86i.
[222] Ibid.
[223] The second Melani case supra; S v Shongwe en Andere 1998 (2) SACR 321 (T).
[224] 1998 (1) SACR 127 (W).
[225] 1987 28 CRR 122 (SCC).
[226] S v Malefo en Andere supra 155g-h.
[227] At 155d-f. The Canadian case Collins must now be read subject to R v Grant [2009] 2 SCR 353. See §§ 12 6
to 12 6 4 above.
[228] Steytler Constitutional Criminal Procedure 34.
[229] 1998 (1) SACR 479 (N) 527g.
[230] The main differences are the following: s 35(5) makes specific reference to a fair trial, whereas s 24(2) does
not (and had to be read into s 24(2) by the Supreme Court of Canada — see § 12 6 1 above); s 35(5) uses the
criterion “detrimental to the administration of justice”, whereas s 24(2) created the criterion “bringing the
administration of justice into disrepute” which, it is submitted, is a broader test than “detrimental to the
administration of justice” — see § 12 10 below; the words “if it is established that” in s 24(2) do not appear in s 35
(5) — see also § 12 11 2 below; the words “having regard to all the circumstances” appear in s 24(2) but not in s 35
(5) — a difference which is of no consequence as a court which interprets and applies s 35(5) must of necessity take
into account all the circumstances. In S v Pillay and Others 2004 (2) SACR 419 (SCA) Mpati DP and Motata J said (at
[93]) that although s 35(5) “does not direct a court, as s 24(2) of the Charter does, to consider ‘all the
circumstances’ in determining whether the admission of evidence will bring the administration of justice into
disrepute, it appears to us to be logical that all relevant circumstances should be considered.” In R v Grant [2009] 2
SCR 353 the Supreme Court of Canada relied heavily on the “all circumstances requirement” in reformulating the
interpretation of s 24(2). See § 12 6 above.
[231] 1965 IR 142.
[232] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 330-1. See also generally § 3 9 above.
[233] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 355.
[234] Paciocco “The Judicial Repeal of s 24(2) and the Development of the Canadian Exclusionary Rule” 1990 32
Crim LQ 326 342 (as cited by Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 354). R v
Grant [2009] 2 SCR 353 has now established a less aggressive exclusionary rule. See §§ 12 6 to 12 6 4.
[235] See the dissenting judgment of McLaghlin J in R v Stillman 1997 42 CRR (2d) 189 (SCC) — especially at
252-3 and 257.
[236] Steytler Constitutional Criminal Procedure 36; S v Soci 1998 (2) SACR 275 (E) 394f: “The terms of s 35(5)
are peremptory: the tainted evidence ‘must’ be excluded if one of the two” consequences identified would result if
the evidence is admitted.
[237] The importance of distinguishing between a rule and a discretion for purposes of s 35(5) is explained as
follows by Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 337-8: “Die vraag ontstaan . . .
waarom die aan- of afwesigheid van ’n diskresie so belangrik is . . . Die antwoord is dat ’n diskresie ‘exists where
there is a choice to do one thing or another, not merely what is involved is the application of a flexible standard’ [R v
Therens 1985 13 CRR 193 (SCC) 224]. ’n Diskresie, in teenstelling met ’n reël, verleen baie meer outonomie aan ’n
verhoorhof ten opsigte van sy beslissing. In R v Cook [1959] 2 QB 340 (CA) 348] is verklaar dat dit geykte reg is dat
’n hof van appèl nie met ’n laer hof se uitoefening van sy diskresie sal inmeng nie tensy die regspreker óf in beginsel
fouteer het óf die getuienis onvoldoende was om die beslissing te bereik wat hy bereik het.”
[238] Steytler Constitutional Criminal Procedure 36. See also S v Lottering 1999 12 BCLR 1478 (N) 1483B which is
discussed in § 12 9 4 below and S v Pillay and Others 2004 (2) SACR 419 (SCA) at [92].
[239] S v Naidoo and Another supra 527.
[240] 2008 (1) SACR 613 (SCA) at [116].
[241] Constitutional Criminal Procedure 36.
[242] De Waal, Currie & Erasmus The Bill of Rights Handbook 4 ed (2001) 658.
[243] De Waal, Currie & Erasmus The Bill of Rights Handbook 658
[244] Trengove in Chaskalson et al Constitutional Law of South Africa (1996, revision service 2 of 1998) 26-20.
[245] Ibid.
[246] 1999 (1) SACR 338 (W).
[247] R v Bartle 1994 23 CRR (2d) 193 (SCC). The Supreme Court of Canada has also expressed the view that as
the link between a breach of a Charter right and the impugned evidence becomes more tenuous, the likelihood of
exclusion diminishes. See R v Debot 1989 45 CRR 49 (SCC). For a detailed and useful discussion of the so-called
“connection” requirement in Canadian law, see Ally Constitutional Exclusion under Section 35(5) of the Constitution
of the Republic of South Africa 1996 (unpubl LLD thesis, Univ of Pretoria, 2009) at 157-162. See also Ally 2011 Stell
LR 376.
[248] 1988 37 CRR 335 (SCC).
[249] At 354.
[250] 1995 31 CRR (2d) 330.
[251] See also generally Michigan v Tucker 417 US 433 (1974) as discussed in the last paragraph of § 12 5 2 1
above.
[252] 2008 (2) SACR 407 (SCA).
[253] At [34]. Emphasis added.
[254] 2001 (1) SACR 572 (C).
[255] S v Mark and Another supra 578i.
[256] At 578i-579j. Emphasis added.
[257] At 577g. It is difficult to reconcile S v Mark and Another with the decision of the Supreme Court of Appeal in
S v Mthembu supra, unless one accepts that in the former case there was a clear break in the chain of events but not
in the latter. In Mark the witnesses wanted to testify. In Mthembu the witness was a s 204 witness.
[258] 1998 (2) SACR 275 (E). See also § 12 9 5 below for a further discussion of this case.
[259] At 293g.
[260] At 293h-294d.
[261] It is not correct to say that the violation must render the trial unfair. It is the admission of the impugned
evidence that must render the trial unfair. See further § 12 9 below.
[262] S v Soci supra 297a. In S v Tandwa and Others 2008 (1) SACR 613 (SCA) the Supreme Court of Appeal,
referring to S v Soci, said (at [119]) that there is “a high degree of prejudice when there is a close causal connection
between the rights violation and the subsequent self-incriminating acts of the accused”. See also Tandwa at [128],
where it was held that one of the reasons for excluding the real evidence (money and an AK 47) was the “high
degree of prejudice” caused by “the close causal connection” between the assaults on the accused and the
subsequent discovery of the real evidence.
[263] At 297d-f.
[264] 1993 19 CRR (2d) 156 (SCC).
[265] However, compare generally Oregon v Elstad 470 US 298 (1985) as discussed in § 12 5 2 1 above.
[266] Rakas v Illinois 439 US 128 (1978).
[267] Bradley (ed) Criminal Procedure — A Worldwide Study 2 ed (2007) 531, who explains that the “standing”
doctrine illustrates the general distaste that the Supreme Court of the USA now has for the exclusionary rule and
reflects the Court’s “consistent efforts in recent years to cabin its use, while still retaining it where it seems likely to
have a meaningful deterrent impact on the police.”
[268] R v Edwards 1994 22 CRR (2d) 29 (SCC); Sopinka, Lederman & Bryant The Law of Evidence in Canada 415.
[269] 2008 (2) SACR 407 (SCA) at 27. The issue, it seems, has only arisen on two other occasions. See the
argument of counsel for the prosecution in S v Naidoo and Another 1998 (1) SACR 479 (N) 525a-b and Schwikkard’s
discussion of S v Mark and Another 2001 (1) SACR 572 (C) in 2001 SACJ 264-5. The implication of S v Mark and
Another is that standing is not a requirement. The issue was not directly addressed. See further the discussion of
standing by Ally 2011 Stell LR 376 at 388.
[271] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 373. Emphasis in the original.
[272] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 374-6.
[273] See generally Langenhoven 2001 Obiter 102.
[274] S v Dube 2000 (1) SACR 53 (N). In this case a major motor car manufacturer which had suffered severe
losses due to internal theft, was approached by a loss control consultant who offered assistance in reducing the
incidence of theft. The loss control consultant was a private person and in no way connected to the state. A trap (see
§ 12 12 below) was set and photographs and tape recordings were obtained without the accused being aware of the
true position. At 73f-g McCall J observed as follows: “Accepting, for the purposes of this judgment, that the setting of
the trap in this case constituted a violation of some of the appellant’s rights in terms of the Bill of Rights, such as the
right to dignity in s 10 and the right to freedom and security of the person in s 12(1), the issue to be decided,
applying the requirements of s 35(5) of the Constitution, is whether the admission of the evidence of the entrapment
rendered the trial of the appellant unfair or was otherwise detrimental to the administration of justice.” The
impugned evidence was held admissible as admission could not have rendered the trial unfair and, according to
McCall J at 74i, admission “was advantageous to, rather than detrimental to, the administration of justice.” For some
critical comments on S v Dube, see Zeffertt 2000 ASSAL 795 804-6.
[275] The question whether the individual acted as an agent of the state, will have to be decided on the facts of
the case. See generally S v Kidson 1999 (1) SACR 338 (W) 351d-f, which was discussed in § 12 7 2 above.
[276] After the decision in Weeks v United States 232 US 383 (1914) — see § 12 5 1 above — the so-called “silver
platter” doctrine developed in the USA: in federal courts evidence obtained by federal authorities in breach of an
accused’s Fourth Amendment rights was inadmissible, but the same type of evidence obtained by state authorities
and handed to the federal authorities was admissible. It was only in 1960 that the Supreme Court of the USA
abolished the “silver platter” doctrine on the basis that such a doctrine violated the Fourth Amendment. See Elkins v
United States 364 US 206 (1960), which was followed by Mapp v Ohio 367 US 643 (1961) as discussed in § 12 5 1
above. Although the “silver platter” doctrine in the USA did not involve individuals, its history does show that it is the
use of the evidence that is crucial and not necessarily the identity of those who secured the evidence.
[277] Zuka v S [2009] 4 All SA 89 (E). This case is discussed by Paizes in Du Toit et al Commentary at 24-98N-6.
[278] See S v Hena and Another 2006 (2) SACR 33 (SE), especially at 40i-41b.
[279] See generally S v Kidson supra 348f-g.
[280] See further s 36 as quoted in Appendix A to this work.
[281] S v Naidoo and Another 1998 (1) SACR 479 (N) 500a.
[282] Schmidt & Rademeyer 381.
[283] See the comments made by McCall J in S v Naidoo and Another supra 499i-500a on the approach in S v
Mathebula and Another 1997 (1) SACR 10 (W).
[284] S v Naidoo and Another supra 500a. It should be noted though that even if the law in terms of which the
police had acted were to be declared unconstitutional, the evidence obtained by the police when the law was still
valid would not necessarily be excluded. Section 36 assists in determining the constitutional validity of the law
concerned, whereas s 35(5) governs the admissibility of unconstitutional evidence. If the police had acted in good
faith in what the law was before it was declared invalid, it might be possible to admit the evidence unless admission
thereof would render the trial unfair. See further § 12 10 1 below.
[285] 1998 (1) SACR 343 (C). See also generally S v Jeniker en ’n Ander 1994 (1) SACR 141 (A) as discussed in
§ 17 7 below.
[286] See the “Table of Non-derogable Rights”, which forms part of s 37 of the Constitution.
[288] The terms “first leg” and “second leg” of the test were used in S v Mark and Another 2001 (1) SACR 572 (C).
These terms are terms of convenience and do not imply that a sequence is necessarily required when considering the
admissibility of evidence in terms of s 35(5). If the court is satisfied that admission of the evidence would be
detrimental to the administration of justice (referred to as the “second leg” in § 12 10 below), the court is, strictly
speaking, not even required to consider trial fairness as required in the “first leg.” There are, however, cases where
courts have considered it necessary to respond to the first leg even though the evidence also had to be excluded in
terms of the second leg. See, eg, S v Naidoo and Another 1998 (1) SACR 479 (N) as discussed in §§ 12 9 4
and 12 10 1 below and S v Mphala and Another 1998 (1) SACR 388 (W) as discussed in § 12 10 1 below.
[289] However, compare the following remarks made by Zeffertt 1996 ASSAL 803 804-5 (emphasis in the
original): “We are told that evidence has to be excluded if its admission ‘would render the trial unfair or otherwise be
detrimental to the administration of justice”. There are at least two different ways of reading this phrase. Probably, it
was intended to mean that evidence will be inadmissible if it either renders a trial unfair or if its reception would be
detrimental to justice. But the cumulative effect of the omission of the word ‘either’, together with the inclusion of
the word ‘otherwise’, may warrant a different interpretation: evidence will not be admissible merely because it
renders the trial unfair but only if, by doing so, it would, in addition, be detrimental to justice. Is it conceivable,
however, that the admission of evidence rendering a trial unfair would not also be detrimental to justice?”
[290] See § 12 8 above.
[291] Zeffertt 1996 ASSAL 803 804.
[292] S v Lottering 1999 12 BCLR 1478 (N) 1482I-J.
[293] In S v Madiba 1998 1 BCLR 38 (D) 44F-H. Hurt J observed as follows with reference to both the first and
second legs of the test in s 35(5): “[T]he court conducting the trial is vested with a discretion, which it must exercise
in order to achieve the object of the section. That object, to paraphrase the section, must be to hold a trial which is
fair and not detrimental to the administration of justice . . . Both the concept of fairness and the concept of
maintaining the standards of administration of justice have a reciprocal nature about them . . . A trial in which a
judge is bound by the absence of any discretion to close the door on evidence on the basis that it was procured in
circumstances constituting a relatively unimportant infringement of a fundamental right may plainly be as unfair as a
trial in which he admits evidence procured in deliberate disregard of an important right. [I]t seems to me that the
section was plainly aimed at imposing a duty on the court, in the course of a trial, to make a decision which is fair to
both sides and not aimed only at considerations of fairness or advantage to the accused . . . Accordingly, I take the
view that this Court does have a discretion which it must exercise within the precepts set by section 35(5).” It should
be noted that this case dealt with the admissibility of real evidence obtained in breach of privacy and not testimonial
communications which were unconstitutionally obtained. For a discussion of Madiba, see § 12 10 1 below.
[294] Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 345.
[295] This was said by Kriegler J in Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187
(CC); 1996 (2) SACR 113 (CC) at [13], supporting the case-by-case approach which Ackermann J identified in
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at [149] as
the correct one for purposes of considering the admissibility of derivative evidence originating from statutory
compulsion. See also Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC).
[296] Key v Attorney-General, Cape Provincial Division, and Another supra at [13].
[297] Key v Attorney-General, Cape Provincial Division, and Another supra at [13]. See also S v Tandwa and
Others 2008 (1) SACR 613 (SCA) at [117].
[298] S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A) 387A.
[299] S v Zuma and Others 1995 (1) SACR 568 (CC) as discussed in § 17 4 5 2 below; Minister of Justice v Ntuli
1997 (3) SA 772 (CC). In S v Ramuongiwa 1997 2 BCLR 268 (V) it was said that “notions of fairness and justice are
now the acid test”.
[300] 2000 (2) SACR 443 (CC) at [9] and [11]. Ackermann J quoted from S v Zuma and Others supra at [16] and
also relied on Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC) at [22]. See also Naudé 2009
Obiter 607 at 622.
[301] See generally the full bench decision in S v Ngcobo 1998 10 BCLR 1248 (N) — especially at 1254G-H. This
case was decided under the interim Constitution, but the court made it clear that there is a discretion “as is apparent
from the wording of section 35(5) of the final Constitution”.
[302] S v Seseane 2000 (2) SACR 225 (O).
[303] In S v Soci 1998 (2) SACR 275 (E) 293j-294b Erasmus J held as follows: “[P]rejudice to the accused . . .
becomes relevant under the requirement in [s 35(5)] that the evidence must be excluded ‘if the admission of that
evidence would render the trial unfair’ . . . The question of prejudice is . . . inseparable from the question of fairness,
in that a trial cannot be completely fair where the accused is in any way prejudiced; but, on the other hand, the trial
can hardly be unfair where there is no prejudice. I find therefore that the presence or absence of prejudice is
relevant to the question of a fair trial.” Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis
supports this approach on the basis that “[d]ie afwesigheid van benadeling . . . beteken dat daar geen versteuring is
of kan wees van wat die Konstitusionele Hof . . . as ‘notions of basic fairness’ beskryf het nie.” In S v Lottering 1999
12 BCLR 1478 (N) — which is discussed in § 12 9 4 below — Levinsohn J was more cautious and merely noted (at
1483F) that “[t]he question of prejudice to the appellant is a factor which can legitimately be weighed in the scales
as well.” See also Bilchitz 1998 ASSAL 735 761.
[304] S v Cloete and Another 1999 (2) SACR 137 (C) 146c. In this case Davis J, after having concluded that the
impugned evidence had to be excluded, found it necessary to observe as follows (at 150h-i): “This is a difficult case.
It is particularly problematic because the burden of the crime wave and the need for crime control weighs very
heavily. It is wrong to conclude that an attempt to preserve the Constitution is necessarily a nod in the direction of
criminals. The Constitution is not the cause of crime in this country. The court’s task is to uphold the Constitution in
such a manner that gives it its proper effect which I consider is to attempt to achieve some balance between the
models of crime control and due process.”
[305] S v Soci supra 397f-g.
[306] S v Lottering supra 1483H; S v Soci supra 295d-e and 297f-g.
[307] Supra at [13].
[308] S v M 2002 (2) SACR 411 (SCA) at [30]. In this case the SCA overruled an earlier finding of exclusion made
in S v M 2000 (2) SACR 474 (N).
[309] 2008 (1) SACR 613 (SCA) at [117]. Ally Constitutional Exclusion under Section 35(5) of the Constitution of
the Republic of South Africa, 1996 (unpubl LLD thesis, Univ of Pretoria, 2009) explains at 303-4 that the SCA in
Tandwa “preferred an approach that allows for the exercise of a discretion, in terms whereof the competing societal
concerns are to be weighed up to determine trial fairness.”
[310] See s 35(3)(h) of the Constitution.
[311] See s 35(3)(j) of the Constitution.
[312] Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at
[159].
[313] See s 35(1)(c) of the Constitution.
[314] See s 35(2)(b) of the Constitution.
[315] See s 35(2)(c) of the Constitution.
[316] See § 12 5 2 above.
[317] 1998 (1) SACR 446 (D).
[318] See generally S v Soci supra where Erasmus J made frequent reference to cases decided under the interim
Constitution.
[319] S v Soci supra. Where an accused actually has knowledge of his rights due to his status as a police officer, a
statement made by him would be admissible even if his rights had not been explained to him. See Magoulaane v S
2007 3 All SA 627 (NC).
[320] 1999 12 BCLR 1478 (N).
[321] S v Lottering supra 1480H.
[322] Compare Michigan v Tucker 417 US 433 (1974) as discussed in § 12 5 2 2 above. In this case it was held
that evidence of a prosecution witness identified as a result of an accused’s non-coerced but inadmissible statement
obtained in breach of Miranda, is admissible. It is submitted that even if the accused’s pointing out in S v Lottering
supra had to be excluded, the evidence of L would, on the basis of the reasoning in Michigan v Tucker supra, still
have been admissible.
[323] S v Lottering supra 1482H.
[324] S v Lottering supra 1482J-1483A.
[325] Constitutional Criminal Procedure 36.
[326] S v Lottering supra 1483B. See also generally S v Nombewu 1996 (2) SACR 396 (E) 420e-i, which was
decided under the interim Constitution, but where Erasmus J also referred to a “value judgment”. See further S v
Pillay and Others 2004 (2) SACR 419 (SCA) at [93]; S v Nell 2009 (2) SACR 37 (C).
[327] S v Lottering supra 1483C-D. See also generally S v Tandwa and Others 2008 (1) SACR 613 (SCA) at [117].
[328] S v Lottering supra 1483D-E.
[329] S v Lottering supra 1483E-H.
[330] 2000 (2) SACR 225 (O). In this case a police officer’s modus operandi not to explain constitutional rights in
the hope of obtaining information, required exclusion of the accused’s statement. Apart from the fact that admission
of the statement would have rendered the trial unfair, Seseane was also a clear-cut case where exclusion was
required to discipline the police for the long-term purposes of promoting constitutional values (see § 12 4 1 above).
[331] 1998 (1) SACR 388 (W). See the discussion of this case in § 12 9 5 below.
[332] S v Lottering 1999 12 BCLR 1478 (N) supra 1483E-F.
[333] 467 US 649 (1984).
[334] 384 US 436 (1966).
[335] New York v Quarles supra 657.
[336] It should be stressed that the reasonable conduct of the police cannot limit the right to a fair trial and that
s 36(1) of the Constitution cannot be relied on to justify this reasoning. See § 12 8 5 above. However, it is an
entirely different matter to look at the circumstances under which the constitutional breach took place and then to
assess whether admission of the evidence so obtained, would deprive an accused of his constitutional right to a fair
trial.
[337] 1998 (2) SACR 275 (E).
[338] S v Soci supra 289j.
[339] Compare generally S v Marx and Another 1996 (2) SACR 140 (W).
[340] In S v Sebejan and Others 1997 (1) SACR 626 (W) Satchwell J observed as follows at 635g-636b: “Policy
must surely require that investigating authorities are not encouraged or tempted to retain potential accused persons
in the category of ‘suspect’ while collecting and taking statements from the unwary, unsilent, unrepresented,
unwarned and unenlightened suspects and only thereafter, once the damage has been done as it were, to inform
them that they are now to be arrested.” It should be pointed out that this case was decided under the interim
Constitution and that the court ultimately found that the accused concerned, was not a suspect at the time when she
made her statement to the police. In S v Ndlovu 1997 (12) BCLR 1785 (N) 1792B it was held that the definition, in S
v Sebejan and Others supra, of a suspect as a person in respect of whom there is some apprehension that he may be
implicated in the offence, was too wide. The court required a reasonable suspicion. See further S v Langa and Others
1998 (1) SACR 21 (T) 27b where MacArthur J noted that Sebejan’s discussion of the rights of a suspect, was obiter
and could also on the facts be distinguished. See further § 10 2 3 1 above. See also S v Mthethwa 2004 (1) SACR
449 (E), where Sebejan was not followed; and S v Orrie and Another 2005 (1) SACR 63 (C), where Bozalek J
concluded — in line with Sebejan — that “no less than an accused, a suspect is entitled to fair pre-trial
procedures” (at 69H).
[341] A clumsy but accurate term used by Satchwell J in S v Sebejan and Others supra 637e.
[342] De Waal, Currie & Erasmus The Bill of Rights Handbook 599.
[343] S v Van der Merwe 1997 10 BCLR 1470 (O) 1473. However, see also Snyckers in Chaskalson et al
Constitutional Law of South Africa 27-44 for a critical analysis of this case.
[344] 1994 4 All SA 583 (N).
[345] 1994 4 All SA 583 (N) supra 589c-d.
[346] There is Canadian authority for the view that an objection to the admissibility of evidence on grounds that it
was unconstitutionally obtained, must as a general rule be raised timeously in the course of the trial. See generally R
v Dwernychuk 1992 12 CRR 2d 175 (Alta CA).
[347] Shabalala v S supra 589g.
[348] 1998 (1) SACR 479 (N) 525i.
[349] S v Naidoo and Another supra 527c-f.
[350] See Steytler Constitutional Criminal Procedure 37 n 319.
[351] 2004 (2) SACR 419 (SCA).
[352] At 447e-f.
[353] See the discussion of S v Soci 1998 (2) SACR 275 (E) in § 12 8 2 above.
[354] In R v Clarkson 1986 19 CRR 209 (SCC) it was held, ia, that waiver of the Charter-right to counsel by an
intoxicated accused, must pass some form of “awareness of the consequences” test.
[355] S v Gasa and Others 1998 (1) SACR 446 (D).
[356] S v Melani and Others 1996 (1) SACR 335 (E) 350e. Whether there was a valid waiver can depend on “die
intelligensie en ontwikkeling van die beskuldigde en die verloop van tyd tussen onderhoude” (Buys J in S v Brown en
’n Ander 1996 (2) SACR 49 (NC) 72h-i). See also generally S v Mathebula and Another 1997 (1) SACR 10 (W) 25c-f
as well as Mtyhida v S [2013] 2 All SA 335 (ECG).
[357] See generally S v Marx and Another 1996 (2) SACR 140 (W). See further S v Mgcina 2007 (1) SACR 82 (T)
at 96b-c.
[358] 1998 (1) SACR 16 (T). See also Magoulaane v S 2007 3 All SA 627 (NC) at [21].
[359] See S v Mathebula and Another supra 35h.
[360] S v Shaba supra 20f-g. In this case it was held that although it may be desirable to advise an accused of his
rights every time he takes a procedural step by which he may incriminate himself, the failure to do so does not mean
that evidence so obtained is inadmissible merely because the required advice was not given. See also S v Brown en
’n Ander supra 72h-j where Buys J stressed the importance of considering the facts of each case.
[361] De Waal, Currie & Erasmus The Bill of Rights Handbook 43.
[362] In the USA such waivers are permitted, provided the accused did so voluntarily knowingly and intelligently:
see § 12 5 2 above. See also generally S v Buda and Others 2004 (1) SACR 9 (T).
[363] De Waal, Currie & Erasmus The Bill of Rights Handbook 613-4 n 158 attaches this interpretation to S v
Shaba en ’n Ander supra. The position is the same in the USA: see § 12 5 2 above.
[364] De Waal, Currie & Erasmus The Bill of Rights Handbook 613-4 n 158. See also generally S v Tsotetsi and
Others (3) 2003 (2) SACR 648 (W) as read with S v Tsotetsi and Others (1) 2003 (2) SACR 623 (W).
[365] See generally R v Smith 1989 41 CRR 1 (SCC). There is also no duty on a policeman arresting an accused to
advise him to obtain legal representation before making a statement. See S v Vumase 2000 (2) SACR 579 (W) 581.
[366] 1998 (1) SACR 388 (W).
[367] S v Mphala and Another supra 397c-d.
[368] S v Mphala and Another supra 399d-e.
[369] Cloete J also held that admission of the impugned evidence would — apart from rendering the trial unfair —
also have been detrimental to the administration of justice: see further § 12 10 1 below.
[370] 475 US 412 (1986).
[371] 1941 AD 75 82-3.
[372] 384 US 757 (1966). See also § 10 3 2 above.
[373] Wigmore paras 2263-2265.
[374] See generally Van der Merwe in Du Toit et al Commentary on the Criminal Procedure Act 3-2 to 3-3.
[375] S v Binta 1993 (2) SACR 553 (C) 562d-e.
[376] S v Huma and Another (2) 1995 (2) SACR 411 (W) 417; S v Maphumulo 1996 (2) SACR 84 (N) 90c-d;
Msomi v Attorney-General of Natal 1996 8 BCLR 1109 (W) 1120B.
[377] R v Gericke 1941 CPD 211; Levack and Others v the Regional Magistrate, Wynberg and Another 1999 (2)
SACR 151 (C) 155i.
[378] S v Duna and Others 1984 (2) SA 591 (CkS) 595G-H and 596B.
[379] Minister of Safety and Security and Another v Gaqa 2002 (1) SACR 654 (C) 658f.
[380] See, eg, S v Mkhize 1999 (2) SACR 632 (W) 637g-h; S v R and Others 2000 (1) SACR 33 (W) 40g-41d. See
also generally S v M 2002 (2) SACR 411 (SCA), at [31].
[381] 1987 28 CRR 122 (SCC).
[382] 1988 38 CRR 290 (SCC).
[383] R v Collins supra 137.
[384] Supra at 637g-h.
[385] Supra at 40g-41d.
[386] See generally § 19 8 below.
[387] 2000 ASSAL 795 804.
[388] 1997 42 CRR (2d) 189 (SCC).
[389] [2009] 2 SCR 353. On the facts as ultimately found by Willis J in S v R supra, the reference to R v Stillman
supra would, it is submitted, not have made any difference. The consent of the accused and/or their de facto
guardians was obtained.
[390] R v Stillman supra 223.
[391] R v Stillman supra 221-2.
[392] 384 US 757 (1966).
[393] See § 12 6 1 above.
[394] The Law of Evidence in Canada 429.
[395] R v Stillman supra 224 and 234.
[398] R v Stillman supra 224-5.
[399] However, it must also be conceded that the Constitutional Court’s description of the constitutional right to a
fair trial (see § 12 9 2 above) is so wide that a court might in extreme circumstances exclude unconstitutionally
obtained real evidence like bodily samples, under the first leg of the test. But this should then be done without
expanding the ambit of the privilege against self-incrimination to include bodily samples, ie, it is not necessary to
equate unconstitutionally obtained bodily samples with conscriptive testimonial communications emanating from the
accused.
[400] Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC).
[401] Ferreira v Levin NO; Vryenhoek v Powell NO supra at [185].
[402] Ferreira v Levin NO; Vryenhoek v Powell NO supra at [153].
[403] Ferreira v Levin NO; Vryenhoek v Powell NO supra at [268] n 43.
[404] 1997 42 CRR (2d) 189 (SCC). Stillman was overruled in R v Grant [2009] 2 SCR 353. See §§ 12 6 to 12 6 4
above.
[405] At 230-1.
[406] 1995 28 CRR 2d 244 (SCC).
[407] At 273. But in S v Pillay and Others 2004 (2) SACR 419 (SCA) at [9] Scott JA had good reason to warn as
follows: ‘To hold that the derivative evidence, ie the discovery of the money in the roof, would render the trial unfair
in such circumstances would be to extend the application of the reasoning in the Burlingham case too far.” He went
on to say that such an approach, if adopted as an invariable rule, would be in conflict with Constitutional Court cases
such as Ferreira v Levin NO; Vryenhoek v Powell NO supra, where it was made clear that hard-and-fast rules cannot
be laid down as regards the effect of derivative evidence on the fairness of the trial.
[408] Supra at [150].
[409] 2008 (1) SACR 613 (SCA) at [120]. Emphasis added. The Supreme Court of Appeal — having noted the
Canadian “Stillman modification” of the Collins test (see § 12 9 6) — also said (at [125]): “Furthermore, focusing as
the High Court did, on the classification of the evidence (. . . testimonial or real) is misleading, since the question
should be whether the accused was compelled to provide the evidence.” This observation must now be reassessed on
account of the fact that Stillman was overruled by R v Grant [2009] 2 SCR 353. See §§ 12 6 to 12 6 4 above and De
Vos 2011 2 TSAR 268 at 276-7.
[410] Bradley (ed) Criminal Procedure — A Worldwide Study 2 ed (2007) 532. See also § 12 5 2 1 above.
[411] R v Stillman supra 226. In R v Stillman 128 the decision in R v Black 1989 47 CRR 171 (SCC) was identified
as a good example of a case where inevitably discoverable evidence was admitted. In Black the accused — after
questioning by the police in breach of her Charter rights — accompanied the police to her apartment. She produced a
knife from the kitchen and identified it as the murder weapon. Her statements were excluded as having been
obtained in breach of her right against self-incrimination — admission of the statements would have rendered the
trial unfair. The knife was held to be derivative evidence procured as a direct result of the unconstitutionally obtained
conscripted statements made by the accused. Applying the discoverability principle, the court held that there was no
doubt that the police would have searched the accused’s apartment (where the murder took place) and would —
even without the accused’s co-operation or assistance — have discovered the knife. The discovery of the knife was
inevitable and its admission would not have rendered the trial unfair.
[412] On the interaction between s 218 of the CPA and s 35(5) of the Constitution, see S v Pillay and Others 2004
(2) SACR 419 (SCA) at 442-3 and S v Danster (unreported EC decision, case no CA 392/2005, 6 Dec 2007) at [80].
[413] S v Mphala and Another 1998 (1) SACR 654 (W) 660e; S v Thapedi 2002 (1) SACR 598 (T) 602b-d, where
Bertelsmann J relied on the findings of Borchers J in S v Monyane and Others 2001 (1) SACR 115 (T) 130c and 130i;
S v Mokoena en Ander 1998 (2) SACR 642 (W) 647i-j.
[414] See s 37(1)(b) of the CPA.
[415] S v Monyane and Others supra 130i.
[416] 1996 (2) SACR 187 (C).
[417] At 199e. The court found that the accused were not granted a reasonable opportunity or sufficient time to
obtain legal representation.
[418] In S v Ngwenya and Others 1998 (2) SACR 503 (W) it was held — without reference to S v Mhlakaza en
Andere supra — that s 25(3)(e) of the Interim Constitution did not require that an accused be advised of a right to
legal representation at the identification parade. The court also refused to follow the obiter dictum in S v Mathebula
and Another 1997 (1) SACR 10 (W) 19i-j.
[419] 1998 (1) SACR 654 (W).
[420] At 659e-f.
[421] At 660d-e.
[422] At 660g.
[423] 2002 (1) SACR 598 (T).
[424] The “Wade-Gilbert” rule stems from two judgments delivered by the Supreme Court of the USA on the same
day: United States v Wade 388 US 218 (1967) and United States v Gilbert 388 US 263 (1967). The essence of the
rule is that evidence of identification of an accused at a post-indictment parade held in breach of the Sixth
Amendment right to counsel, must be excluded.
[425] At 602f-603c. However, in an obiter dictum Bertelsmann J did note that there could be some merit in the
“Wade-Gilbert” rule (at 602G-H): “Met verwysing na die beslissing in US v Wade 388 US 218 (1967), waarop steun
geplaas is vir die betoog dat regsverteenwoordiging tydens die parade noodsaaklik is, moet in die eerste instansie
daarop gewys word dat hierdie beslissing betrekking het op ’n uitkenningsparade wat gehou is nadat die beskuldigde
reeds formeel aangekla is. Dit is nie volgens die afskrif van die uitspraak tot ons beskikking duidelik of hy op daardie
stadium reeds gepleit het al dan nie. Omstandighede verskil as die parade dan gehou word van dié wat tydens die
ondersoekfase van die saak heers voordat ’n beskuldigde formeel aangekla is: daarna is die geskilpunte tussen Staat
en verdediging deur die akte van beskuldiging en die pleit bepaal. ’n Uitkenningsparade wat gehou word na die
formele aanklag gestel is (en daarop gepleit is) kan moontlik tot voordeel van die Staat strek sonder dat die
beskuldigde die geleentheid gegun is om die effek van die aldus verkreë getuienis by die oorweging van sy pleit of
pleitverduideliking in aanmerking te neem. Regsverteenwoordiging mag tydens ’n parade wat onder hierdie
omstandighede gehou word, wel noodsaaklik wees.”
[426] At 603d-e. See also S v Monyane and Others 2001 (1) SACR 115 (T) 134i-135b. In R v Ross 1987 37 CRR
369 (SCC) it was held that an arrestee’s right to legal representation, as contained in s 10(b) of the Charter,
included the right to legal representation at the parade, as well as the right to legal advice prior to participation in
such a parade. See further Van der Merwe in Du Toit et al Commentary 3-16.
[427] At 604d.
[428] At 604f.
[429] At 604c.
[430] At 604d.
[431] At 604b-c.
[432] See S v Bailey 2007 (2) SACR 1 (C) at [27] and [28]. See also generally S v Tandwa and Others 2008 (1)
SACR 613 (SCA) at [129].
[433] S v Hlalikaya and Others 1997 (1) SACR 613 (SE) 617d-g; S v Zwayi 1997 (2) SACR 772 (Ck); and see
generally S v Monyane and Others supra 134. For some critical comments on S v Hlalikaya and Others supra, see
Zeffertt 1997 ASSAL 718 729-30.
[434] S v Mphala and Another 1998 (1) SACR 654 (W) 659i-j.
[435] S v Naidoo and Another 1998 (1) SACR 479 (N) 522g.
[436] On the meaning of “disrepute” in Canadian Law, see § 12 6 3 above. The reasonable person test as applied
by the Canadian court in R v Collins 1987 28 CRR 122 (SCC) in determining disrepute provides a useful mechanism
for incorporating public opinion whilst avoiding compromising judicial integrity. In terms of this test the court is
required to take into account the views of the reasonable person, who is usually the average person in the
community, “but only when the community’s current mood is reasonable” (at 136). However, the court in exercising
its discretion must consider “long-term community values” and “not render a decision that would be unacceptable to
the community when that community is not being wrought with passion or otherwise under passing stress due to
current events”.
[437] Supra 657g-h. Emphasis added. This passage was cited with approval by the Supreme Court of Appeal in S v
Tandwa and Others 2008 (1) SACR 613 (SCA) at [118] and S v Pillay and Others 2004 (2) SACR 419 (SCA) at
447i-j. See also S v Dos Santos and Another 2010 (2) SACR 382 (SCA) at [21].
[438] S v Cloete and Another 1999 (2) SACR 137 (C) 150h. See S v Pillay and Others supra 450i-451j.
[439] S v Nombewu 1996 (2) SACR 396 (E) 422h-i.
[440] Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at
[152]. See further § 27 5 8 below.
[441] 1998 10 BCLR 1248 (N). See also S v Shongwe en Andere 1998 (2) SACR 321 (T).
[442] S v Ngcobo supra 1254E-J (emphasis added): ‘It is essential that society should have confidence in the
judicial system. Such confidence is eroded where Courts on the first intimation that one of an accused’s
constitutional rights has been infringed excludes evidence which is otherwise admissible. Such evidence is very often
conclusive of the guilt of the accused. It is either admissions or a confession made voluntarily and without undue
influence wherein the accused implicates himself in the commission of the offence or it is the discovery either by way
of a search or a pointing-out of objects such as the murder weapon or property of the victim which conclusively link
the accused to the crime. At the best of times but particularly in the current state of endemic violent crime in all
parts of our country it is unacceptable to the public that such evidence be excluded. Indeed the reaction is one of
shock, fury and outrage when a criminal is freed because of the exclusion of such evidence. One need only postulate
the facts of the present matter to illustrate the point. A defenceless woman and three men are gunned down in cold
blood in the sanctity of their home in the middle of the day. The slain woman’s personal belongings taken during the
course of the robbery are dug up by the appellant in a mealie field behind his parents’ home the next night. Imagine
the reaction of the man or woman in the street if the appellant were acquitted because Captain Kweyama failed to
again warn the appellant of his right to silence and the consequences of his act of pointing-out the stolen property. It
has become noticeable in appeals and reviews from the lower courts which have come before us that at the first
intimation that an accused’s constitutional rights have been infringed the evidence tainted by such infringement is
without further ado excluded. It is necessary therefore to emphasise the discretion which rests in the presiding
officer to decide whether the evidence should be excluded. That discretion still remains as is apparent from the
wording of section 35(5) of the final Constitution.” See also S v Tandwa and Others supra at [121].
[443] Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 355, 357. See also generally S v Soci 1998 (2)
SACR 275 (E) 297f-g.
[444] 1995 (3) SA 391 (CC); 1995 (2) SACR 1 (CC).
[445] At [88]. In a dissenting judgment in S v Pillay and Others 2004 (2) SACR 419 (SCA) Scott JA said (at 448)
that in S v Makwanyane supra “Chaskalson P warned of the dangers of relying on public opinion. That was in the
context of the constitutionality of the death penalty. It seems to me, however, that the very nature of the second leg
of the inquiry postulated in s 35(5) of the Constitution contemplates a reference to public opinion. It must, at the
least, therefore constitute an important element of the inquiry. In R v Collins (supra at 524 (DLR), 282 (SCR) and
135 (CRR)) the test adopted was that of ‘the reasonable man, dispassionate and fully apprised of the circumstances
of the case’. Although the inquiry in Canada is somewhat different, ie whether the admission of the infringing
evidence ‘would bring the administration of justice into disrepute’, the test adopted strikes me as more apt than a
simple reference to public opinion, subject as it frequently is to ‘the shifting winds of passion’. The only refinement I
would add is that the reference must be understood as not to an individual but to the reasonable and dispassionate
members of society.”
[446] Diamond “The State and the Accused: Balance of Advantage in Criminal Procedure” 1960 69 Yale LJ 1149
states (emphasis added): “The principal objective of criminal procedure, like that of procedure generally, is to assure
a just disposition of the dispute before the court. But because time, resources and the ability to determine what is
just are limited, a procedural system inevitably represents a series of compromises. Justice to society is sometimes
taken to require that a given case be used not only to deal with the situation immediately before the court but also
to serve a larger public interest. In criminal cases, the accused may get relief, not so much out of concern for him or
for the ‘truth’, but because he is strategically located, and motivated, to call the attention of the courts to excesses
in the administration of criminal justice. The underlying premise is that of a social utilitarianism. If the criminal goes
free in order to serve a larger and more important end, then social justice is done, even if individual justice is not.
For example, if the police beat an offender in order to extract a confession, the social interest is held to require that
the confession be excluded from evidence, even if amply corroborated. The same is true, in varying extents in the
several states, when evidence is illegally seized, or telephones ‘tapped’, or counsel denied . . .”
[447] See, eg, S v Lottering 1999 12 BCLR 1478 (N) 1483H where Levinsohn J said: “I hasten to say that each
case must be decided on its own facts and the decision in this one must not be construed as a licence to police
officers to ignore or overlook the constitutional protection afforded to accused persons.” For a discussion of this case,
see § 12 9 4 above. See also S v Mkhize 1999 (2) SACR 632 (W) 638b-c.
[448] Cleary (ed) McCormick on Evidence 3 ed (1984) 507. Emphasis added.
[449] See the decision by Farlam J in S v Motloutsi 1996 (1) SACR 78 (C) 87i where he cited the following passage
from The People v Shaw 1928 IR 1 at 33-34: “To hold otherwise would be to hold what to many people would be an
absurd position, namely, that the less a police officer knew about the Constitution and, indeed, of the law itself, the
more likely he would be to have the evidence which he obtained in breach of the law (and/or the Constitution)
admitted in court.” See, however, S v Mkhize supra 637f.
[450] 1998 (1) SACR 479 (N).
[451] Act 127 of 1992. See now the Regulation of Interception of Communications and Provision of
Communication-Related Information Act 70 of 2002. See further S v Cwele and Another 2011 (1) SACR 409 (KZP)
where intercepted communications were admitted into evidence. In this case the police made no deliberate attempt
to act outside the statutory requirements. To put the matter differently: they were bona fide and did not attempt to
flout the primary rules (see § 12 4 6 above). See also generally S v Roberts and Others 2013 (1) SACR 369 (ECP).
[452] S v Naidoo and Another supra 527f. For a critical comment on this finding, see § 12 9 4 above.
[453] At 530g. Emphasis added.
[454] 2006 (2) SACR 33 (SE) at 42a-b.
[455] 1998 (1) SACR 388 (W).
[456] At 399h-400b. Emphasis added.
[457] See, eg, R v Duguay 1989 1 SCR 93.
[458] 1998 1 BCLR 38 (D). See also S v Mkhize 1999 (2) SACR 632 (W).
[459] At 41J.
[460] At 441-45D.
[461] At 45E.
[462] 1998 (2) SACR 275 (E). See also § 12 9 4 above for a discussion of this case.
[463] At 296g-296b-g.
[464] 1996 (2) SACR 140 (W). See also §§ 12 7 2 1 and 12 9 5 above.
[465] This term is used by Kamisar “‘Comparative Reprehensibility’ and the Fourth Amendment Exclusionary Rule”
1987 86 Michigan LR 1 34 n 147.
[466] 1998 1 BCLR 38 (D).
[467] See, eg, S v Lottering 1999 12 BCLR 1478 (N) as discussed in § 12 9 4 above. See also New York v Quarles
467 US 649 (1984) as discussed in §§ 12 5 2 2 and 12 9 4 above.
[468] This would in terms of Irish law qualify as an “extraordinary excusing circumstance”. See generally The
People (Attorney General) v O’Brien 1965 IR 142 and S v Mark and Another 2001 (1) SACR 572 (C) 578e.
[469] S v Mark and Another supra 578a.
[470] See also R v Grant [2009] 2 SCR 353 at [74]. See also § 12 6 1 above.
[471] S v Mark and Another supra 578c-d. See also S v Tandwa and Others 2008 (1) SACR 613 (SCA) at [117]
and [128] and S v Mthembu 2008 (2) SACR 407 (SCA).
[472] Langenhoven Die Toelaatbaarheid van Ongrondwetlik Verkreë Getuienis 362-3.
[473] See, eg, S v Seseane 2000 (2) SACR 225 (O) as well as the approach adopted by Mpati DP and Motata AJA
in S v Pillay and Others 2004 (2) SACR 419 (SCA) at [95].
[474] See generally S v Mark and Another supra 578d.
[475] S v Seseane supra.
[476] Supra 138. In S v Hena and Another 2006 (2) SACR 33 (SE) at 42f-g Plasket J, in excluding the impugned
evidence, attached much weight to the fact that the police had not made use of available lawful means.
[477] 1997 44 CRR 2d 1 (SCC) 37.
[478] S v Mkhize 1999 (2) SACR 632 (W) 638e. See also the remarks made by Scott JA in S v Pillay and Others
2004 (2) SACR 419 (SCA) at 448e.
[479] R v Kokesch 1990 50 CRR 285 (SCC). See also generally R v Grant [2009] 2 SCR 353 at [75].
[480] Supra 637g-h.
[481] 1987 28 CRR 122 (SCC) at 137.
[482] 1988 38 CRR 290 (SCC) at 298.
[483] See also generally S v M 2002 (2) SACR 411 (SCA) and S v Pillay and Others 2004 (2) SACR 419 (SCA) at
450f. In S v Nell 2009 (2) SACR 37 (C) at [24] Le Grange J was also adamant that the test for the admission of real
evidence is “less stringent than that for other evidence”.
[484] S v Mkhize supra 637h.
[485] Supra 637i.
[486] At 638b-e Willis J held (emphasis added): “It would, in my view, make a mockery of our law of criminal
procedure to hold that evidence stumbled upon on the search for evidence in another case would, for this reason, be
held to be inadmissible against the present appellant. Moreover, I cannot believe that admitting the evidence of the
pistol’s discovery in this case can be interpreted as giving the police carte blanche to raid the homes of the innocent
at whim or upon fancy, capriciously or arbitrarily . . . In my view, the admission of this evidence would not render
the trial of the appellant unfair or otherwise be detrimental to the administration of justice . . . Regardless of whether
a trial court has a true or narrow discretion to admit evidence in violation of the Bill of Rights in our Constitution and
regardless of which test is to be applied as to the circumstances under which a Court of appeal may interfere in the
decision of the court a quo to admit such evidence, I am satisfied that Nugent J correctly decided that, even if the
discovery of the pistol was made and the evidence in respect thereof obtained in circumstances which were not
covered by s 22(b) of the [CPA] the evidence should be admitted. It is real evidence. Furthermore, Superintendent
Lang acted in good faith, in that, if it be accepted that he failed to comply with the provisions of the Act relating to a
search, such failure was inadvertent and technical in nature. In my view, the administration of justice would be
brought into disrepute if this evidence were to be excluded.” A technical defect in a warrant provides no ground for
exclusion. See S v Dos Santos and Another 2010 (2) SACR 382 (SCA) and S v Van Deventer and Another 2012 (2)
SACR 263 (WCC). In both these cases there was no male fide conduct.
[487] 2008 (1) SACR 613 (SCA) at [125]. However, see also now R v Grant [2009] 2 SCR 353 which is discussed
in §§ 12 6 to 12 6 4 above.
[488] This seems to have been part of the reasoning of the full bench in S v Mkhize supra 637j-638a. See also
Goldberg v Director of Public Prosecutions, Western Cape 2014 (2) SACR 57 (WCC) where it was held that the real
evidence (the ivory) would have been found in any event.
[489] See § 12 5 2 4 above. See also generally the remarks made by Cachalia JA in S v Mthembu 2008 (2) SACR
407 (SCA) at [33]. See further the discussion of S v Pillay and Others 2004 (2) SACR 419 (SCA) by Naudé 2008
SACJ 168.
[490] 1997 42 CRR (2d) 189 (SCC) 228-229 and R v Black 1989 47 CRR 171 (SCC). See further n 414 above.
Sopinka, Lederman & Bryant The Law of Evidence in Canada 440 state that “Stillman extended the principle of
discoverability to all evidence classified as conscriptive. Apparently, the extension of the discoverability principle to
conscriptive, derivative evidence was designed to meet the criticism that automatically excluding all evidence was
perceived as over-compensating or being too generous to the rights of the accused.”
[491] 1997 44 CRR 2d 1 (SCC).
[492] See § 12 5 1 3 above. See generally S v Mthembu supra at [33].
[493] See § 12 6 1 above.
[494] On the role of assessors, see S v Naidoo and Another 1998 (1) SACR 479 (N) 486a-487c and compare S v
Mayekiso en Andere 1996 (2) SACR 298 (C) 203i-j. As far as admissions and confessions are concerned, see
respectively §§ 16 7 4 and 17 6 below.
[495] Director of Public Prosecutions, Transvaal v Viljoen 2005 (1) SACR 505 (SCA). This case overruled S v
Viljoen 2003 4 BCLR 450 (T). See generally S v Ngcobo 1998 10 BCLR 1248 (N) 1255A; S v Mhlakaza en Andere
1996 (2) SACR 187 (C); S v Mayekiso en Andere 1996 (2) SACR 298 (C); S v Ntzweli 2001 (2) SACR 361 (C). In S v
Hlalikaya and Others 1997 (1) SACR 613 (SE) a trial within a trial was held to determine the admissibility of evidence
obtained at a photo identification parade.
[496] S v Ntzweli supra 364f.
[497] See generally S v Monyane and Others 2001 (1) SACR 115 (T). In this case the court also noted the conflict
between S v Vilakazi en ’n Ander 1996 (1) SACR 425 (T) and S v Mhlakaza en Andere supra.
[498] S v Kidson 1999 (1) SACR 338 (W) 340e-f. See also S v Hena and Another 2006 (2) SACR 33 (SE) at 39d-e.
In this case the parties had also agreed to dispense with a trial within a trial.
[499] S v Vilakazi en ’n Ander supra; S v Mokoena en Ander 1998 (2) SACR 642 (W); S v Mphala and Another
1998 (1) SACR 654 (W).
[500] S v Bailey 2007 (2) SACR 1 (C) at [39].
[501] For an extensive and critical discussion, see Schwikkard Presumption of Innocence (1999) 56-61.
[502] 1998 (1) SACR 479 (N).
[503] S v Sebejan and Others 1997 (1) SACR 626 (W) 628e; S v Mathebula and Another 1997 (1) SACR 10 (W)
16i-j. See also generally S v Hlalikaya and Others 1997 (1) SACR 613 (SE) 615c. In S v Vilakazi en ’n Ander 1996
(1) SACR 425 (T) 428c the matter was mentioned but not decided.
[504] S v Naidoo and Another supra 523a. At 523b McCall J further said that “it may well be that during the course
of a trial-within-a-trial the onus on the different issues will tend to shift back and forth between the accused and the
State”. Schwikkard Presumption of Innocence 61-2 n 100 points out that by making this statement McCall J fails to
distinguish between the evidential burden that can shift and the burden of proof which remains fixed. See also § 31 2
below. The position in Canadian law, which seems to have influenced McCall J, is set out by Sopinka, Lederman &
Bryant The Law of Evidence in Canada 420.
[505] 1998 5 BCLR 530 (D). See also 538I. Gumede was followed in S v Lottering 1999 12 BCLR 1478 (N).
[506] 1998 (2) SACR 275 (E) 288j-289a.
[507] 1996 (2) SACR 396 (E).
[508] S v Nombewu supra 420f-g.
[509] S v Nombewu supra 289d. This statement is correct in so far as it will always be open to the state to argue
that even if the evidence were obtained unconstitutionally, its admission will not have the consequences identified in
s 35(5).
[510] See the full bench decision (per Du Plessis J, Basson and Preller JJ concurring) in S v Mgcina 2007 (1) SACR
82 (T) at 95a-i and S v Brown en ’n Ander 1996 (2) SACR 49 (NC) at 73b. It is submitted that the accused is not an
applicant seeking a remedy. If he relies on s 35(5) he is — unless the contrary is indicated — also not seeking to
have a law declared constitutionally invalid. The principles established in, eg, Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at [44] are not applicable to an objection to the
admissibility of evidence. See S v Mgcina supra at 95b-d where it was held that the well established two-stage
approach that is applied where the constitutionality of a statute or common-law rule is attacked, does not apply to
the situation now under discussion.
[511] See generally Mirfield Silence, Confessions and Improperly Obtained Evidence (1997) 47. See also the use of
the words “value judgment” by Bozalek J in S v De Vries (unreported CPD decision, case no 67/05, 11 June 2008) at
[7]. He nevertheless accepted, without deciding, that the state has to prove that the trial would not be unfair or
otherwise detrimental to the administration of justice.
[512] S v Mgcina supra 95g-i and S v Brown en ’n Ander supra 73b. This does not mean that in every instance the
state is required to disprove any breach of every conceivable constitutional right. It is only where the defence raises
the matter that the state would have to prove the contrary beyond reasonable doubt. See S v Mgcina supra at
95j-96a. See generally S v Mayekiso en Andere 1996 (2) SACR 298 (C) 305d, which was decided under the interim
Constitution.
[513] S v Nombewu supra 420f-g; S v Soci supra 289d. However, compare R v Collins 1987 28 CRR 122 (SCC)
134 where it was held that “the applicant must make it more probable than not that the admission of the evidence
would bring the administration of justice into disrepute” as provided for in s 24(2) of the Charter. Stuart Charter
Justice in Canadian Criminal Law 2 ed (1996) 485 makes the following valid observations: “It is unfortunate that the
word ‘established’ in s 24(2) has led the Supreme Court to conclude that there is some burden of proof on the
accused. The language of burdens of proof is more appropriate to matters of establishing facts rather than to an
issue of whether evidence should be excluded. One never speaks, for example, of the burden of proving that
evidence was inadmissible hearsay. As a practical matter many of the issues under s 24(2) such as issues of the
seriousness of the offence and the seriousness of the violation are questions of value to be assessed by the court
rather than proved.”
[514] See generally S v Hammer and Others 1994 (2) SACR 496 (C) 499d-e. A ruling on admissibility in a trial
within a trial is also interlocutory and may be reviewed at the end of the trial in the light of later evidence. See S v
Tsotetsi and Others (3) 2003 (2) SACR 648 (W) as read with S v Tsotetsi and Others (1) 2003 (2) SACR 623 (W). It
should also be noted that a trial is not automatically rendered unfair by the fact that the nature of the impugned
evidence becomes known to the court during s 35(5) proceedings. See S v Maputle and Another 2003 (2) SACR 15
(SCA) at [11].
[515] R v Ndimangele 1913 CPD 708 709.
[516] See § 11 4 2 above as well as Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984)
258.
[517] S v Malinga and Others 1963 (1) SA 692 (A) 693.
[518] Bronitt & Roche “Between Rhetoric and Reality: Sociolegal and Republican Perspectives on Entrapment”
2000 4 The International Journal of Evidence and Proof 77. See also generally Naudé 1998 SACJ 213 214-5.
[519] See generally S v Azov 1974 (1) SA 808 (T) 809; Bronstein 1997 SALJ 108 109-10.
[520] On entrapment in general, see Labuschagne 1976 De Jure 16; Colman 1954 SALJ 120; Engelbrecht 1989 De
Rebus 421; Louw 1995 SACJ 286; Zeffertt 1976 SALJ 130; Feltoe 1974 Rhodesian LJ 52; Bertelsmann 1970 THRHR
348; Crofton 1977 Natal Univ LR 271. For judicial criticism of entrapment, see generally R v Vlok and Vlok 1954 (1)
SA 203 (SWA); S v Petkar 1988 (3) SA 571 (A); S v Ohlenschlager 1992 (1) SACR 695 (T).
[521] Van der Mescht 1995 SACJ 271; Bester De Rebus 706 707; S v Odugo 2001 (1) SACR 560 (W) 568d.
[522] S v Dube 2000 (1) SACR 53 (N); S v Hassen and Another 1997 (1) SACR 247 (T); S v Desai 1997 (1) SACR
38 (W). For a comparative analysis of entrapment as a substantive defence, see Labuschagne 1993 SACJ 208. For
entrapment as a defence in the USA, see Sherman v United States 356 US 369 (1958) and Anon “Entrapment” 1960
73 Harvard LR 1333.
[523] S v Desai supra; R v Ahmed 1958 (3) SA 313 (T) 317.
[524] R v Small 1968 (3) SA 561 (RA); S v Sellem 1992 (2) SACR 19 (A).
[525] Mendes and Another v Kitching NO and Another 1995 (2) SACR 634 (E); S v Hassen and Another supra; S v
Hayes en ’n Ander 1998 (1) SACR 625 (O).
[526] Mendes and Another v Kitching NO and Another supra; S v Desai supra; S v Hassen and Another supra.
[527] S v Nortjé 1996 (2) SACR 308 (C); S v Hassen and Another supra; Mendes and Another v Kitching NO and
Another supra. S v Desai supra was an exception. See further Naudé 2001 SACJ 38.
[528] Act 85 of 1996, which was signed by the President on 6 Nov 1996.
[529] See Gov Gazette no 17646 of 29 Nov 1996. Section 252A does not have retrospective effect. See S v Dube
supra 71c.
[530] For an extensive and critical discussion of this section, see Bronstein 1997 SALJ 108 127-33.
[531] Section 252A does not apply to traps set by private individuals, but only to entrapment operations engaged
in by law enforcement officers or state officials or their agents as referred to in s 252A(1). See S v Dube supra
71d-e. See further S v Makhanya and Another 2002 (3) SA 201 (N). Where the criminal conduct all along emanates
from the accused, there can be no true trap even if the police were to come in finally to create the opportunity to
secure the necessary evidence. See S v Lachman 2010 (2) SACR 52 (SCA). For a distinction between “traps” and
“undercover operations”, see S v Kotzè 2010 (1) SACR 100 (SCA) at [22].
[532] See the Law Commission’s Working Paper 52, Project 84 Application of the Trapping System (1993) and the
final report on Project 84 Application of the Trapping System (1994). For critical comments on these
recommendations, see Louw 1995 SACJ 286 289-94.
[533] The gist of this section is that evidence obtained by way of entrapment shall be admissible if the conduct of
the trap did not go beyond providing an opportunity to commit an offence.
[534] This section sets out the various factors which the court must take into account in considering whether the
conduct concerned went beyond providing an opportunity to commit an offence. See S v Hammond 2008 (1) SACR
476 (SCA).
[535] Emphasis added. See also generally S v Thinta and Another 2006 (1) SACR 4 (E) at [26].
[536] On the application of this standard of proof, see S v Reeding and Another 2005 (2) SACR 631 (C) at 640a-b;
S v Kotzè supra at [19]; S v Naidoo 2010 (1) SACR 369 (KZP) at [5].
[537] Section 252A(7).
[538] See generally Naudé 1998 SACJ 213 218 and S v Odugo 2001 (1) SACR 560 (W) 568b. See also S v Spies
and Another 2000 (1) SACR 312 (SCA).
[539] Paizes in Du Toit et al Commentary 24-134. See also S v Reeding and Another supra at 639-640.
[540] [2001] 4 All SA 13 (E). See S v Odugo supra for a case where entrapment evidence was admitted.
[541] In R v Mack 1989 44 CCC 3d 513 (SCC) the police trap also went too far. The accused — a former drug user
— was over a period of six months repeatedly approached (at and one stage threatened) by a police agent to
agreeing to deal in cocaine. On “abuse of process”, see generally Naudé 2001 SACJ 38 49-51. There is a fine line
between a trap acting within or outside his mandate. Section 252A(5)(b) should be understood in this context. See S
v Domingo 2002 (1) SACR 641 (C) at 646.
[542] 1992 (1) SA 906 (O).
[543] See especially 915B-917G.
[544] 1972 (2) SA 559 (N).
[545] 1977 (2) SA 829 (A) 840D-F. See also § 10 3 3 above.
[546] Derby & Co Ltd v Weldon 1990 3 All ER 762 (ChD) & (CA).
[547] Shell SA (Edms) Bpk en Andere v Voorsitter, Dorperaad Van Die Oranje-Vrystaat, en Andere supra 917H-I.
[548] 1994 (3) SA 56 (W). On appeal in this case, the SCA expressly refrained from deciding the issue. See Janit
and Another v Motor Industry Fund Administrators (Pty) Ltd and Another 1995 (4) SA 293 (A) 307B-C.
[549] 1996 (2) SA 693 (N) 704B-C.
[550] At 706J-707A: “[T]he applicants regarded cloak and dagger tactics as the order of the day. I do not think
that it would be appropriate for this Court to be seen to lightly associate itself with a tactic of this nature . . . I
consider that the Court would be so associating itself if it were, without demur, to apply the categorical
imperative . . . and say that simply because the matter in the transcript is plainly relevant it must be admissible. In
my view, the tapes and transcripts which are now before me should not be admitted . . .”
[551] At 706E-F.
[552] Tap Wine Trading CC and Another v Cape Classic Wines (Western Cape) CC and Another 1999 (4) SA 194
(C) is clearly wrong.
[553] See generally Erasmus 1996 Obiter 291 and the following articles by De Vos: 1991 TSAR 353; 1995 Stell LR
34 and 1997 TSAR 444.
[554] 1998 (2) SA 617 (C). See further Bilchitz 1998 ASSAL 735 753-57 for a discussion of this case.
[555] At 636D-E.
[556] At 638C-D.
[557] At 639E-640B.
[558] At 640C-E.
[559] Some of the facts were the following: the violation of privacy was in respect of an office and not a private
dwelling (at 642E); the applicants on reasonable grounds believed that they had to search for the documents as a
matter of urgency as the documents were about to be removed (at 642F); the applicants were — on the information
available to them at the relevant time — “reasonable in their apprehension that they would not achieve justice by
involving the ordinary procedures, including the Anton Piller procedure, available to them” (at 642F); legal advice
given by senior counsel was that the search of the office would be lawful (at 642G); the documents found during the
course of the search were all discoverable and would therefore have been legitimately obtained by the applicants at
some stage during the proceedings: “The advantage gained by the applicants as a result of the search of [the] office,
though of significant importance, was, therefore at best, a procedural one.” (at 642I).
[560] 1997 (9) BCLR 1225 (W).
[561] At 1237D-E. See also the example given by Heher J at 1237A-D. See further Waste Products Utilisation (Pty)
Ltd v Wilkes and Another 2003 (2) SA 515 (W).
[562] At 1241F-G.
[563] At 1241H-1242F.
[564] The factors that the court would have considered in admitting the evidence are set out at 1242H-1244B.
[565] 2002 (6) SA 60 (T).
[566] At 63A.
[567] At 62D and 63A.
[568] At 65C.
[569] At 65F.
[570] At 65G-H.
[571] At 63G and 65C.
[572] De Vos 2011 2 TSAR 268 at 281.
Page 285
Section E
Hearsay
13 Hearsay –P J Schwikkard
14 A Selection of Common-Law Exceptions to the Hearsay Rule: A Brief Perspective –P J
Schwikkard
15 Selected Statutory Exceptions to the Hearsay Rule –P J Schwikkard
Page 287
Chapter 13
Hearsay
P J Schwikkard
13 1 Introduction
13 2 4 Complexity
13 3 Section 3 of the Law of Evidence Amendment Act 45 of 1988
13 7 5 The reason why the evidence is not given by the person upon whose
credibility the probative value depends: s 3(1)(c)(v)
13 7 7 Any other factor which in the opinion of the court should be taken into
account: s 3(1)(c)(vii)
13 9 Conclusion
13 1 Introduction
The Law of Evidence Amendment Act 45 of 1988 rendered the common-law rules [1]
applicable to hearsay obsolete [2] and redefined hearsay to mean “evidence, whether oral or
in writing, the probative value of which depends upon the credibility of any person other
than the person giving such evidence”. Hearsay evidence is generally inadmissible.

Historically the exclusionary rule was viewed as necessary to guard against the danger that
the trier of fact, and more particularly the jury, might place undue weight on hearsay
evidence despite its inherent weakness. The counter argument is that we all use hearsay
statements in making decisions in everyday life
Page 288
and in doing so take into account its potential unreliability. Consequently, there is no reason
to assume that either juries or professional judges lack the necessary sophistication to
accord hearsay evidence its appropriate weight. [3] This line of reasoning leads to the
assertion that “it is better to admit flawed testimony for what it is worth, giving the
opponent a chance to expose its defects, than to take the chance of a miscarriage of justice
because the trier is deprived of information”. [4]
| Although not conclusive, empirical research indicates that juries are not unduly influenced
by hearsay evidence [5] and consequently it can be assumed that a unitary court is even less
likely to accord inappropriate weight to hearsay evidence. In a unitary system there is a
further safeguard in that the court must give reasons for its judgment and would have to
justify its reliance on hearsay in reaching a decision. Consequently, if the danger of undue
weight being accorded to hearsay was the sole rationale of the hearsay rule, it would make
little sense to retain the hearsay rule. Therefore, it is necessary to consider other possible
justifications for the hearsay rule.
The distinguishing feature of adversarial proceedings that are relevant to the moulding of the
hearsay rule, are party control of investigation and presentation, the passive role of the
presiding officer, and concentration of proceedings.
The dominant and partisan role of the parties in adversarial proceedings increases the
possibility of misleading evidence being introduced. Consequently, there needs to be an
immediate mechanism for testing evidence and this mechanism is cross-examination. [6] It is
the absence of the opportunity to cross-examine the declarant on whom the probative value
of the evidence depends which makes hearsay potentially unreliable in common-law
systems. [7]
In adversarial systems adjudication takes place at a relatively concentrated trial where the
principle of orality guides the presentation of evidence. The presentation of hearsay evidence
is frequently something of a “surprise” for the
Page 289
person against whom it is sought to be admitted and there is no time to locate or prepare a
basis of challenging the credibility of the hearsay declarant. [8]
The principle of orality is directly related to a belief underlying the adversarial system that
an adjudicator is best able to make accurate decisions of fact where the witness upon whom
the probative value of the evidence depends, testifies in open court. [9] A witness who
testifies in open court does so in circumstances in which the solemnity of proceedings is
reinforced by potential liability for perjury. The presence of the party against whom the
testimony is given also encourages circumspection on the part of the witness. The court’s
ability to observe the witness’s demeanour contributes to a more reliable assessment of
credibility. However, the central objection is embedded in a belief in the effectiveness of the
adversarial mechanism for truth finding — cross examination. [10] When hearsay evidence is
admitted these advantages of testifying in open court are lost. Consequently the “four
‘dangers’ of faulty perception, erroneous memory, insincerity, and ambiguity in narration”
are inherent in the admission of hearsay. [11]
This traditional rationale must be assessed in light of a significant body of research that
indicates that the observation of demeanour (see § 30 4 below) does not necessarily
contribute to an accurate assessment of credibility, and that there is little certainty as
regards the efficacy of cross-examination in enhancing the reliability of decision making. [12]
Furthermore, it is “questionable whether the oath discourages untruthfulness to the extent
to which it has been traditionally assumed to do”. [13] Consequently, Choo concludes that
“whilst it may be true that hearsay evidence is likely, in many circumstances, to
Page 290
be less reliable than non-hearsay evidence, the actual extent to which it is less reliable can
only be a matter of speculation, and must be dependent on the particular circumstances”. [14]
The hearsay rule has also been justified on a utilitarian basis. The argument is that it pays
for itself “because it is cheaper to test witnesses in court than prepare and offer evidence
bearing on the credibility of remote declarants”. [15] This is a questionable assertion as it
would no doubt frequently be cheaper to offer a report of what a witness said than to call the
witness. [16] Allen argues vociferously against the cost justification and points to the time
spent litigating the rule. [17] He also notes that the hearsay rule also imposes costs on
academic institutions as a disproportionate amount of time is spent teaching and writing
about the hearsay rule. [18]
Another justification for the hearsay rule is that it is necessary to encourage parties to call
the original declarant. [19] However, this clearly has no application where the hearsay
evidence is the best evidence available. [20] Furthermore, the risk of low weight being
attached to the hearsay evidence should act as a sufficient incentive to call the original
declarant. It can also be argued that if the original declarant is available there is nothing
prohibiting the party against whom the hearsay is admitted from calling the original
declarant. [21]
13 2 4 Complexity
An argument can be made that in effect the hearsay rule merely requires the court to
engage in the same inquiry as it would in determining legal relevance, namely: does the
probative value of the evidence exceed its prejudicial value? What then is the utility of the
hearsay rule? Zeffertt, Paizes & Skeen [22] justify a separate hearsay rule on the basis that
hearsay attracts specific prejudicial qualities and challenges that are not necessarily features
of other types of evidence — and to include these in the legal relevance inquiry “would be to
over-burden that doctrine and to encumber it unnecessarily with principles applicable only to
a particular kind of evidence”. [23]
Page 291
It has also been argued that if the hearsay rule is subsumed under a general relevance
inquiry this will discourage settlement as parties are unlikely to be able to predict the
outcome on the basis of what evidence is likely to be admitted. [24] In response it might be
asserted that the hearsay rule is so poorly understood that parties are in any event unable
to predict admissibility.
On the other side of the score sheet is the assertion that if hearsay was properly
subjected to the relevance inquiry and admitted when probative value exceeds prejudicial
effect, the truth-seeking function of the court would be better advanced. Friedman argues
that “if live testimony by the declarant would be more probative than prejudicial then most
often . . . hearsay would be more probative than prejudicial”. [25] Consequently, to
presumptively exclude hearsay is not rational: if probative value exceeds prejudicial effect
“then the burden of producing the declarant should be placed on the person objecting to the
hearsay”. [26]
Scallen asserts that the hearsay rule has a societal dimension centred on a number of
accusatorial relationships [27] namely, that between the accused and the witness who testifies
against the accused and that between the accused and the state. In a civil context the
second relationship is absent.
Placing emphasis on the importance of shared responsibility for outcomes and individual
consciousness of guilt, Scallen argues that “confrontation is necessary as part of the social
relationship between the individual defendant and the accusing witness”. [28] She argues that
the societal dimension of confrontation strengthens the legitimacy and integrity of
adversarial processes [29] and that “participation in decision making is critical to the
perception of procedural justice”. [30] However, Scallen also acknowledges that in certain
circumstances there may be no societal value in confrontation. For example, “[b]ecause of
the difference in vulnerability and power between the individuals, a confrontation between
child and adult may be qualitatively and ethically different than a confrontation between two
adults”. [31]
Page 292

The hearsay rule can also be viewed “as a way of protecting individual rights from the
intrusion of government, or as a way of influencing the conduct of police and prosecutors in
the process of preparing and preserving evidence”. [32] (This rationale also supports an
argument that the standard for admissibility for hearsay should be lower for an accused than
the prosecution in criminal trials.) [33] Raeder argues that although a relaxation of the
hearsay rule might allow an accused to make greater use of hearsay it “is also likely to result
in prosecutors deluging the trial with hearsay” and that “such wholesale use of hearsay
would change the way criminal trials look and might lower public acceptance of verdicts”. [34]
Section 35(3)(i) of the Constitution includes the right to challenge evidence as a component
of the right to a fair trial. In S v Ndhlovu and Others [35] the Supreme Court of Appeal
considered whether cross-examination of the hearsay declarant was an indispensable
component of the right to challenge evidence. The court held that whilst the unregulated
admission of hearsay evidence might infringe the right to challenge evidence, s 3 of the
1988 Act which is primarily an exclusionary rule provides legislative criteria which protect
against any infringement of the right to challenge evidence. [36] For further discussion of the
constitutionality of s 3, see § 13 7 6 below.
13 3 Section 3 of the Law of Evidence Amendment Act 45 of

1988
Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides:
“3.(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence
at criminal or civil proceedings, unless —
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as
evidence at such proceedings;
Page 293
(b) the person upon whose credibility the probative value of such evidence depends, himself
testifies at such proceedings; or
(c) the court having regard to —
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account,
is of the opinion that such evidence should be admitted in the interests of justice.
(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible
on any ground other than that such evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court is
informed that the person upon whose credibility the probative value of such evidence depends, will
himself testify in such proceedings: Provided that if such person does not later testify in such
proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted
in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of
that subsection.
(4) For the purposes of this section —
• ‘hearsay evidence’ means evidence, whether oral or in writing, the probative value of
which depends upon the credibility of any person other than the person giving such
evidence;
• ‘party’ means the accused or party against whom hearsay evidence is to be adduced,
including the prosecution.”

Section 3(4) of Act 45 of 1988 defines hearsay as “evidence, whether oral or in writing, the
probative value of which depends upon the credibility of any person other than the person
giving such evidence”. The first step in applying the definition would be to ask what the
probative value of evidence is. For example, X parks outside a supermarket and when he
comes out he notices that somebody must have reversed into the back of his car whilst he
was shopping. A total stranger comes up to him and says he witnessed the accident and
recorded the number of the other car. The stranger hands a piece of paper, on which a
motor vehicle registration number is written, over to X and then disappears never to be seen
again. X does not ask the stranger her name. The number given to X corresponds with a car
owned by Y. X sues Y. The piece of paper is tendered into evidence. Its probative value is to
establish that Y’s car was the car that collided with X’s car. The next question must be upon
whose credibility does the probative value depend. To a limited extent the probative value
rests on X in that he can testify to and be cross-examined on his interaction with the
stranger. However, primarily the probative value would rest on the stranger. The fact that
the probative value partially rests on X will not negate the hearsay nature of the evidence.
Zeffertt, Paizes & Skeen prefer the view that “depends” requires that the “probative value
depend[s] sufficiently
Page 294
upon the credibility of someone other than the witness to lead a court to believe that its
potential for prejudice [is] sufficiently great to warrant a full examination of all the relevant
facts.” [37]
The courts need to guard against treating the common-law assertion-oriented definition as
functionally equivalent to the declarant-oriented definition provided in s 3(4). Van Heerden
JA in an obiter dictum in Mdani v Allianz Insurance Ltd [38] applied the statutory definition of
hearsay as follows:
“If A testified that B made such an admission, A’s evidence in itself is clearly not hearsay. Whether B
in fact made the admission, depends upon A’s credibility and can be tested by cross-examination.
What is hearsay, is the content of the admission if it is to be used to establish the truth of what was
said. And whether the content is true or not, depends entirely upon B’s credibility.”
This is a fusion of both the assertion-oriented and declarant-oriented definitions. Paizes [39]
gives the following example (amongst others) to illustrate the fallacy of equating the two
definitions: A tells B “I am alive” and this is tendered to establish that A was in fact alive at
the time. If we apply the common-law assertion-oriented definition, then the evidence must
be hearsay. However, if we apply the declarant-oriented test — namely does the probative
value depend upon the credibility of the non-witness who utters the words in question? —
then it is not hearsay, because the conclusion that A was alive is self-evident, since he spoke
the words.
In terms of s 3(1)(a) of Act 45 of 1988 hearsay evidence may be admitted by consent. The
failure to object to the admission of hearsay evidence may be regarded as consent. [40]
Consent will also be inferred where a party deliberately elicits hearsay evidence from her
opponent in cross-examination. [41] However, the courts will be slow to infer informed
consent where a party is unrepresented; in S v Ngwani [42] the court held that a presiding
officer must properly explain the relevant law to an unrepresented accused. Furthermore, a
“judicial officer has a duty to explain to a witness who may be tendering hearsay
evidence . . . to avoid doing so until the court has made a ruling in that regard”. [43]

In terms of s 3(1)(b) of Act 45 of 1988 hearsay evidence may be provisionally admitted
where the court is informed that the person upon whose credibility the probative value of the
evidence depends is going to testify at some future
Page 295
time in the proceedings. Section 3(3) provides that if the relevant person does not testify,
the hearsay evidence will not be taken into account unless it is admitted by consent in terms
of s 3(1)(a) of the Act or is admitted by the court in the interests of justice as provided for in
s 3(1)(c) of the Act.
In S v Ndhlovu and Others [44] the Supreme Court of Appeal found that Goldstein J was
incorrect in the approach he had adopted in the court a quo. [45] Goldstein J, in the court a
quo, admitted an extra-curial statement made by one accused against his co-accused on the
basis that the statement was admissible in terms of s 3(1)(b) and held that s 3(1)(b) did not
require the witness to repeat the extra-curial statement under oath. He adopted a literal
approach in interpreting the subsection on the basis that to do otherwise would render s 3
(1)(b) superfluous. He reasoned as follows: the subsection would have “no or little purpose
since an extra-curial statement, which is repeated under oath, need not be referred to at all,
and is indeed of doubtful admissibility, constituting as it does a previous consistent
statement”. [46]
The Supreme Court of Appeal rejected the literal interpretation adopted by Goldstein J and
referred to s 3(3) to ascertain the purpose of s 3(1)(b). Section 3(3) permits the provisional
admission of hearsay “if the court is informed that the person upon whose credibility the
probative value of such evidence depends, will himself testify in such proceedings”. Cameron
JA identified the rationale of the subsection as follows: [47]
“Before the Act, a witness whose narrative was conjoined with that of a later witness could not refer
at all to the latter’s hearsay statements. This could render the delivery of evidence fragmentary and
even incoherent. Any allusion to hearsay would be met with justified objection, and the court would
have to wait for the later witness to be called for coherence to emerge. In these circumstances the
provision permits the first witness to testify fully and without objection, provided the court is informed
that the declarant will in due course be called. If the declarant is not called the hearsay is ‘left out of
account’ unless the opposing party agrees to its admission or the interests of justice require its
admission under s 3(1)(c).” [48]
The court also identified the difficulties that may arise from adopting an interpretation that
allows a hearsay statement to become admissible simply because the extra-curial declarant
testifies. It noted that the primary rationale for excluding hearsay evidence was its
potentially untrustworthiness as the
Page 296
person on whom the probative value of the evidence depends cannot be subject to cross-
examination. Consequently, the subsection could not have been intended to allow the
admission of hearsay evidence in circumstances where such cross-examination was absent.
This might occur “when the hearsay declarant is called as a witness, but does not confirm
the statement, or repudiates it”. [49] The court then concluded that where trustworthiness
cannot be established through cross-examination the inquiry must be subsumed under s 3
(1)(c) and a court must inquire whether the evidence should be admitted in the interests of
justice.
The rules and principles which govern the situation where the declarant (source person)
repudiates her statement when called as a witness, are dealt with in § 25 4 2 below in the
chapter which examines the credibility of witnesses and the hostile witness.

The Act’s most radical departure from the common law is found in s 3(1)(c), which confers a
judicial discretion on presiding officers to admit hearsay evidence if the admission of the
evidence would be in the interests of justice. In exercising this discretion the court must
consider six specified factors as well as “any other factor which should in the opinion of the
court be taken into account”. The Supreme Court of Appeal has made it clear that a decision
to admit evidence is not simply an exercise of judicial discretion but a decision of law which
can be overruled by an appeal court if found to be wrong. In McDonald’s Corporation v
Joburgers Drive-Inn Restaurant (Pty) Ltd and Another; McDonald’s Corporation v Dax Prop
CC and Another; McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and
Dax Prop CC [50] the court held:
“It was contended that the Court a quo exercised a discretion in refusing to allow the evidence under
s 3 of the Act, and that its decision in this regard may be set aside only if the Court of appeal
considers that the discretion was not judicially exercised. I do not agree. A decision on the
admissibility of evidence is, in general, one of law, not discretion, and this Court is fully entitled to
overrule such a decision by a lower court if this Court considers it wrong. There is in my view nothing
in s 3 of the Act which changes this situation.”

In Metedad v National Employers’ General Insurance Co Ltd [51] Van Schalkwyk J referring to
s 3(1)(c) held: “[B]ecause of the presumption of innocence, and the courts intuitive
reluctance to permit the untested evidence to be used against the accused in a criminal
case, this section might only rarely find application in our criminal
Page 297
law. [52] That does not however mean that it will not be usefully and constructively applied to
assist in the search for the truth in civil actions.” [53] In civil cases the court will take into
account that the standard of proof is a balance of probabilities. [54] It has been suggested
that hearsay will be more readily admitted in application proceedings than at trial. [55] Since
bail proceedings are regarded as neither civil nor criminal proceedings, [56] the rules of
evidence are not strictly adhered to and consequently hearsay evidence is generally
admissible at bail proceedings [57] although the hearsay nature of the evidence will affect its
weight. [58] In Vigario v Afrox Ltd [59] the quasi judicial nature of inquest proceedings and an
inquiry in terms of the Housing Amendment Act 47 of 1967 was a factor taken into account
by the court in admitting hearsay evidence. [60] The court in Swissborough Diamond Mines
(Pty) Ltd and Others v Government of the Republic of South Africa and Others [61] refused to
admit hearsay evidence in interlocutory proceedings in the absence of urgency or special
circumstances. [62] Section 3 is “[s]ubject to the provisions of any other law”; [63]
consequently, it will not apply in proceedings governed by statute where special provisions
are made in regard to hearsay evidence. For example, s 30(2)(a) of the Restitution of Land
Rights Act 22 of 1994 permits the Land Claims Court to receive hearsay evidence. [64] Similar
provisions are contained in s 6(3) and (4) of the Admiralty Jurisdiction Regulation Act 105 of
1983. [65] In Ben McDonald Inc and Another v Rudolph and Another [66] the court held that
the rules of hearsay evidence did not apply to a Taxing Master as he or she was not a court
of law. However, s 3 is generally applied in statutory arbitration proceedings. [67] The
position in the Small Claims Court was dealt with in § 1 5 above.
Section 2(2) of the Prevention of Organised Crime Act 121 of 1998 provides as follows
with regard to prosecutions for racketeering offences as identified in
Page 298
s 2(1) of the Act: “The court may hear evidence, including evidence with regard to
hearsay . . . notwithstanding that such evidence might otherwise be inadmissible, provided
that such evidence would not render a trial unfair.”

Although there is no clear guidance from the case law, it can be inferred from Hewan v
Kourie NO and Another [68] that the courts are primarily concerned with the reliability of the
evidence when considering its nature. This criterion is also prominent in considering
probative value. [69] It must be borne in mind that the factors listed in s 3(1)(c) cannot be
viewed in isolation and will be weighed collectively in determining whether it is in the
interests of justice to admit the evidence. [70]
There are a myriad of factors that affect reliability. For example, the fact that the non-
witness has or had no interest in the matter before the court may impact on the court’s
assessment of reliability. [71] An indicator of reliability might be that the statement was made
against the interests of the declarant. Reliability will also be enhanced by other evidence
supporting the hearsay evidence. [72] A court may also consider the simplicity [73] of the
subject-matter and the absence of contradictory evidence. [74] The contemporaneity and
spontaneity of the hearsay statement may also be taken into account. [75] The degree of
hearsay will also be relevant, the reliability diminishing where it is second hand hearsay. [76]

In Hlongwane and Others v Rector, St Francis College, and Others [77] Galgut J held that the
fact that the hearsay evidence pertained to an issue fundamental to the case before it,
militated against its admission. [78] However, in S v Mpofu [79] Alexander J clearly rejected the
approach that the importance of the evidence militated against its admission. The court
stressed that the important criteria in determining admissibility were truthfulness and
reliability. Truthfulness and reliability are in essence one criterion that is examined when
looking at the nature of the evidence. The difficulty with the approach taken in Mpofu is that
Page 299
it then becomes difficult to ascertain what the legislature meant by “the purpose for which
the evidence is tendered”. In Metedad v National Employers’ General Insurance Co Ltd [80]
the court held that this criterion means nothing more than that evidence tendered for a
compelling reason would stand a better chance of admission than evidence tendered for a
doubtful or illegitimate purpose. [81] This in turn is difficult to distinguish from the relevance
inquiry that takes place in terms of s 3(1)(c)(iv) and s 3(1)(c)(vi) as discussed below. In S v
Rautenbach [82] the court held hearsay would be more readily admitted where its purpose
was to exonerate the accused.

The probative value of the hearsay evidence must be established in order to determine
admissibility. [83] In ascertaining whether evidence is sufficiently relevant a court will weigh
the probative value of the evidence against the potential prejudice to the party against
whom it is admitted. In S v Ndhlovu and Others [84] the court usefully spelt out the contents
of this leg of the inquiry as follows: “‘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?” [85] Borchers J in S v Saat [86] identified reliability as a central issue under this leg
of the inquiry and noted that the hearsay declarants had been subject to lengthy cross-
examination which was reflected in their recorded statements. This not only assisted the
court in determining reliability but also negated the potential prejudice that is usually
present when hearsay is admitted, namely, the inability to test the evidence (see also
§ 13 7 6 below). The existence of admissible evidence which is consistent with the hearsay
evidence will also enhance the latter’s probative value. [87]
13 7 5 The reason why the evidence is not given by the person upon
whose credibility the probative value depends: s 3(1)(c)(v)
The inherently prejudicial nature of hearsay evidence requires a party to establish the
necessity of leading such evidence. [88] In S v Nzama and Another [89] the court held that
where an application was made for a witness to testify in disguise because of the witness’
fear of retribution, including the loss of his life, it would defeat the purpose of the application
if the witness were required to testify at the application. [90] Where a person is prohibited in
law from disclosing information, the court will also generally admit the hearsay evidence. For
example, in
Page 300
Welz and Another v Hall and Others [91] the court held that where the evidence could not be
given by a revenue official who made a document because he was prohibited by legislation
from doing so, the evidence should generally be admitted in the interests of justice. In Van
Zyl and Another v Jonathan Ball Publishers (Pty) Ltd and Others [92] Navsa J held that a court
in exercising its discretion should consider the difficulty a respondent may encounter in
meeting a case on an urgent basis. [93] Other circumstances that might make it necessary to
introduce hearsay evidence would include: the death of the declarant; a witness’ absence
from the country; an inability to trace a witness; the extremely frail health of a witness.

The admission of hearsay evidence may result in procedural and substantive prejudice. For
example, in S v Ramavhale [94] the court held that it would be unduly prejudicial if an
accused found himself forced to testify in order to rebut hearsay evidence in the absence of
direct evidence supporting the prosecution’s case. The admission of hearsay evidence may
unduly lengthen proceedings and place an onerous duty of rebuttal on the party against
whom it is admitted.
There are cases from which it can be inferred that the courts will consider substantive
prejudice in determining the admissibility of hearsay evidence. [95] However, factors
pertaining to substantive prejudice are probably better considered when looking at the
nature, purpose and probative value of the evidence. The Supreme Court of Appeal in S v
Ndhlovu and Others [96] made it clear that prejudice in this context is limited to procedural
prejudice and held:
“The suggestion that the prejudice in question might include the disadvantage ensuing from the
hearsay being accorded its just evidential weight once admitted must however be discountenanced. A
just verdict, based on evidence admitted because the interests of justice require it, cannot constitute
‘prejudice’ Where the interests of justice require the admission of hearsay, the resultant strengthening
of the opposing case cannot count as prejudice for statutory purposes, since in weighing the interests
of justice the court must already have concluded the reliability of the evidence is such that its
admission is necessary and justified. If these requisites are fulfilled, the very fact that the hearsay
justifiably strengthens the proponent’s case warrants its admission, since its omission would run
counter to the interests of justice.”
In S v Ndhlovu and Others [97] the court identified the following disadvantages that may
accrue as a result of the admission of hearsay evidence. First, it is “not subject to the
reliability checks applied to first-hand testimony” and, second, “its reception exposes the
party opposing its proof to the procedural unfairness of not being able to counter effectively
inferences that may be drawn from
Page 301
it”. [98] This raises the question whether the admission of hearsay evidence potentially
infringes the constitutional right to challenge evidence. [99] Cameron JA in Ndhlovu, noting
that s 3 was primarily an exclusionary rule, held that the legislative criteria to be taken into
account in applying the “interests of justice” test were “consonant with the Constitution” [100]
and reiterated the courts reluctance to admit or rely “on hearsay evidence which plays a
decisive or even significant part in convicting an accused, unless there are compelling
justifications for doing so”. [101] The court also noted that the manner in which s 3 regulates
the admission of hearsay evidence is “in keeping with developments in other democratic
societies based on human dignity, equality and freedom” [102] and found that the
constitutional right to challenge evidence had not been infringed. The crux of the court’s
reasoning is found in the following passage:
“It has correctly been observed that the admission of hearsay evidence ‘by definition denies an
accused the right to cross-examine’, since the declarant is not in court and cannot be cross-examined.
I cannot accept, however, that ‘use of hearsay evidence by the state violates the accused’s right to
challenge evidence by cross-examination’, if is meant that the inability to cross-examine the source of
a statement in itself violates the right to ‘challenge’ evidence. The Bill of Rights does not guarantee an
entitlement to subject all evidence to cross-examination. What it contains is the right (subject to
limitation in terms of s 36) to ‘challenge evidence’. Where that evidence is hearsay, the right entails
that the accused is entitled to resist its admission and to scrutinise its probative value, including its
reliability. The provisions enshrine these entitlements. But where the interests of justice,
constitutionally measured, require that hearsay evidence be admitted, no constitutional right is
infringed. Put differently, where the interest of justice require that the hearsay statement be
admitted, the right to ‘challenge evidence’ does not encompass the right to cross-examine the original
declarant.” [103]
The Supreme Court of Appeal chose a line of reasoning that avoided the two stage
limitations analysis generally adopted by the Constitutional Court; and by concluding that
the right to cross-examine is not an essential component of the right to challenge evidence
also departed from a generous interpretation of rights. However, the approach of the
Supreme Court of Appeal finds resonance in the decisions of the United States Supreme
Court [104] which is constrained from engaging in a two stage approach in the absence of a
limitations clause.
Mlambo JA in S v Libazi and Another [105] was required to consider whether the court a quo
had correctly admitted an extra curial admission by a co-accused who had died prior to trial
and which implicated his co-accused. The court, adopting a generous approach to the
constitutional interpretation of rights, noted that the right to cross-examine is integral to the
accused’s capacity to actively assert his rights of defence. The court, whilst expressing doubt
as to the correctness of the approach taken in Ndhlovu, did not explicitly depart from it
Page 302
and instead chose to distinguish the present appeal on the basis that in Ndhlovu the maker
of the statement in question had testified but disavowed the content of his ‘hearsay’
statement, whereas in the present matter the maker of the statement was absent (having
died). Furthermore, the absent declarant was an accomplice, to which a well-established
cautionary rule applied and this militated against the admission of the statement. The court
then went on to consider whether there was sufficient evidence to sustain the convictions
despite the absence of the hearsay statement. [106] Both Libazi and Ndhlovu must now be
read subject to later decisions to the effect that an accused’s admission cannot be used
against a co-accused, not even by relying on the provisions of s 3(1)(c), that is, the
“interests of justice” criterion. This matter is dealt with in § 16 4 1 below in the chapter
which examines the admissibility of admissions.
The Constitutional Court appears to have taken the most restrictive approach in holding
that it was theoretically possible to admit evidence that did not meet the requirement of s 3
of the 1988 Act without infringing any constitutional right. In Savoi and Others v National
Director of Public Prosecutions and Another [107] the Constitution Court, inter alia, considered
the constitutionality of s 2(2) of the Prevention of Organised Crime Act 121 of 1998, which
reads: “The court may hear evidence, including evidence with regard to hearsay, similar
facts or previous convictions, relating to offences contemplated in subsection (1)
notwithstanding that such evidence might otherwise be inadmissible, provided that such
evidence would not render a trial unfair.”
The reasoning of the court in dismissing the constitutional challenge was that admitting
evidence that would otherwise be inadmissible in terms of the rules applying to hearsay,
similar facts or previous convictions would not necessarily render a trial unfair. It is the
application of s 2(2) of the facts of each case that can produce an irregularity in
constitutional terms, but the section itself is not unconstitutional.
The court considered the common-law hearsay rule and noted that its rigidity resulted in
evidence being excluded even where its probative value exceeded its prejudicial effects.
Fortunately, the common law rule was superseded by the s 3 of the Law of Evidence
Amendment Act 45 of 1988 which whilst retaining the exclusionary rule permits hearsay
evidence to be admitted if it is in the interests of justice to do so.
13 7 7 Any other factor which in the opinion of the court should be

taken into account: s 3(1)(c)(vii)
Although the common-law exceptions to the hearsay rule are obsolete, they are not
irrelevant. The common-law exceptions are factors that a court may take into account in
exercising its discretion to admit the evidence in the interests of justice. [108] For example, in
S v Mbanjwa and Another [109] the court took into account, inter alia, that the deceased’s
Page 303
statement was akin to a dying declaration [110] and was a spontaneous statement [111] and
that these types of hearsay statements were exceptionally admissible at common law.
Contemporaneity has also been taken into account. [112] The most important common-law
exceptions are briefly discussed in the next chapter.
Consistency with proven facts was “another factor” taken into account by the court in
Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting [113] The accused’s
participation in the events recorded in the hearsay document has also been taken into
account on the basis that such participation placed the accused in a position to contradict the
assertions made in the hearsay document. [114]
In S v Ndhlovu and Others [115] Cameron JA noted [116] that there were a number of duties
resting on presiding officers to ensure that the accused’s rights were upheld, namely they
are required to (a) actively guard against the inadvertent admission or “venting” of hearsay
evidence [117] ; (b) ensure that the significance of the contents of s 3 are properly explained
to an unrepresented accused; [118] and (c) protect an accused from “the late or unheralded
admission of hearsay evidence”. [119]
The admission of hearsay must be dealt with clearly and timeously. [120] However, this is
not necessarily an inflexible rule. In S v Waldeck, [121] the prosecution at the outset had
indicated its intention to introduce hearsay. When the hearsay evidence was adduced the
defence did not object, and instead cross-examined the witness and elicited additional
hearsay evidence of its own. It appears that some objection was made at the closing stages
of the trial and that the defence was offered an opportunity to re-open its case which it
declined. At no stage prior to judgment did the magistrate make a ruling on the admissibility
of the hearsay. It was the admission of the hearsay in the absence of a ruling that provided
a ground of appeal in Waldeck. The absence of a ruling, it was argued, deprived the accused
of the opportunity to make an informed decision as to whether to testify or not and
consequently deprived him of a fair trial. Kgomo JP found that other than the hearsay there
was substantial incriminating evidence adduced, and consequently it was unlikely that the
absence of the ruling on the admissibility of the hearsay would have
Page 304
made any difference to the accused’s decision not to testify. The hearsay was ruled
admissible. However, the Constitutional Court decision in S v Molimi [122] makes it clear that
the right to a fair trial requires a ruling on admissibility to be given prior to the accused
testifying. Nkabinde J held:
“It is not open to question that a ruling on the admissibility of evidence after the accused has testified
is likely to have an adverse effect on the accused’s right to a fair trial. It may also have a chilling
effect on the public discourse in respect of critical issues regarding criminal proceedings. More
importantly, proceedings in which little or no respect is accorded to the fair trial rights of the accused
have the potential to undermine the fundamental adversarial nature of judicial proceedings and may
threaten their legitimacy. There are further adverse consequences. For example, when a ruling on
admissibility is made at the end of the case, the accused will be left in a state of uncertainty as to the
case he is expected to meet and may be placed in a precarious situation of having to choose whether
to adduce or challenge evidence.” [123]
The Supreme Court of Appeal has held that in civil trials the appropriate time for a court to
make a ruling on the admissibility of evidence is at the end of the plaintiff’s case. [124]
Due notice of the intention to lead hearsay is not a pre-requisite for admissibility;
however, it will mitigate any prejudice that might result from the admission of the hearsay in
so far as it enables the person against whom the hearsay is admitted to lead evidence in
rebuttal. [125]
13 9 Conclusion
The Law of Evidence Amendment Act 45 of 1988 has relaxed the rigidity and eliminated
some of the uncertainty of the common law. However, the factors listed in s 3(1)(c) may
lead to some confusion when applied. The way in which the factors are enumerated suggests
that an inquiry into probative value and prejudice can be separated from the nature, purpose
and reliability of the evidence. Clearly the latter three factors are all pertinent in ascertaining
the probative value and prejudicial effect of the evidence, which in turn are the two
components of any relevance inquiry (see §§ 5 3 2 and 5 3 5 above). Section 3(1)(c) it
would seem is an inevitable consequence of the basic rule that all evidence admitted must
be relevant and is best understood in the light of the following directive in Hewan v Kourie
NO and Another [126] that the section “requires the Court, in the exercise of its discretion, to
have regard to the collective and interrelated effect of the considerations set out in paras (i)
-(vi) . . .”.
[1] See ch 14 for a discussion of the common law.

[2] Mnyama v Gxalaba and Another 1990 (1) SA 650 (C). However, see § 13 7 7 below.
[3] Mueller “Post modern hearsay reform: the importance of complexity” (1992) 76 Minnesota Law Review 367 at
380. See also Nance “Commentary: A response to Professor Damaska: Understanding responses to hearsay: an
extension of comparative analysis” (1992) 76 Minnesota Law Review 459 at 463 who expresses his scepticism as
follows: “The difficulty for a taint theory is explaining why being exposed to admittedly relevant information, that
may be very probative, should lead to greater inaccuracy, especially when the information carries on its face a
consumer warning . . . by virtue of its derivative status”. See also Miene, Park & Borgida “Juror decision making and
the evaluation of hearsay evidence” (1992) 76 Minnesota Law Review 683.
[4] Bull, Kovera, Park, Penrod “Juror’s perceptions of eyewitness and hearsay evidence” (1992) 76 Minnesota Law
Review 703 at 704. See also Shapiro “Saving Desdemona” (2001) 22 Cardozo Law Review 1771, Callen “Othello
could not optimize: economics, hearsay, and less adversary systems” (2001) 22 Cardozo Law Review 1791.
[5] See generally Park “The new wave of hearsay reform scholarship” (1992) 76 Minnesota Law Review 363,
Mueller op cit.
[6] Damaska Evidence Law Adrift (1987) 79-80.
[7] See Damaska op cit 85 where he notes that a rule excluding hearsay also acts as an incentive for parties to
produce the best evidence available.
[8] See Damaska op cit 64-5 where he contrasts the concentrated trial proceedings in adversarial common-law
systems and the more episodic procedures used by the Continental courts as follows: “When a witness reproduces
any person’s out-of-court statement, or when that statement is contained in a document, there is enough time in the
unhurried atmosphere of Continental litigation to seek out this person for presentation in court — at the next
procedural instalment, if necessary. And if this person’s court testimony differs from that quoted by the hearsay
witness, the court has heard them both and is thus in position to evaluate relative trustworthiness. Due to the
comparatively informal style of adducing evidence that prevails on the Continent — the hearsay witness and the
declarant can even be made to confront each other. And if the declarant turns out to be unavailable, normally there
is sufficient time before the next instalment to collect the information necessary to gauge his credibility. Also, if
hearsay evidence is relied upon by the court of first instance, the retrial of factual issues on appeal in Continental
courts provides yet another opportunity to check the information bearing on the reliability of derivative statements. A
relatively more lenient approach to the use of potentially treacherous derivative proof seems justified.”
[9] See Delisle, Stuart & Tanovich Evidence: Principles and Problems 7 ed (2004) 537-538; Wiessenberger Federal
Rules of Evidence (1987) 331. The principle of orality is also referred to in §§ 1 5 2 and 1 6 above.
[10] See S v Ndhlovu and Others 2002 (2) SACR 325 (SCA).
[11] Choo Hearsay and Confrontation in Criminal Trials (1996) 42. See also Delisle et al op cit 538; Sopinka,
Lederman & Bryant The Law of Evidence in Canada 2 ed (1999) 174; Raeder “Finding the proper balance in hearsay
policy. The uniform rules attempt to stem the hearsay tide in criminal cases without prohibiting all non-traditional
hearsay” (2001) 54 Oklahoma Law Review 631. See also Zeffertt, Paizes & Skeen (2003) 378; S v Ndhlovu and
Others 2002 (2) SACR 325 (SCA).
[12] Choo op cit 43.
[13] Choo op cit 43.
[14] Choo op cit 43. See also Mueller “Post modern hearsay reform: The importance of complexity” (1992) 76
Minnesota Law Review 367 at 380.
[15] Mueller op cit 376.
[16] Mueller ibid.
[17] Allen “Commentary: A response to Professor Friedman. The evolution of the hearsay rule to a rule of
admission” (1992) 76 Minnesota Law Review 797 at 800.
[18] Ibid.
[19] Nance “Commentary: A response to Professor Damaska: Understanding responses to hearsay: an extension
of the comparative analysis” (1992) 76 Minnesota Law Review 459. See also Friedman “Toward a partial economic,
game theoretic analysis of hearsay” (1992) 76 Minnesota Law Review 723 at 728.
[20] See for example, Tijmstra NO v Blunt-Mackenzie NO and Others 2002 (1) SA 459 (T) at 466.
[21] Nance op cit 463. This assumes that it is justified to place the costs of calling the original declarant on the
party against whom the hearsay is admitted.
[22] (2003) 377.
[23] Ibid.
[24] Raeder op cit 516.
[25] Friedman op cit 724.
[26] Ibid. However, Friedman notes that other considerations may require a departure from this approach — “such
as whether the proponent has a substantial advantage in satisfying all or part of the burden of producing the
declarant, or whether the proponent has given late notice of his intention to offer hearsay”.
[27] Scallen “Constitutional dimensions of hearsay reform: Toward a three dimensional confrontation
clause” (1992) 76 Minnesota Law Review 623 at 635.
[28] Op cit 644.
[29] Op cit 646.
[30] Op cit 647. See also Friedman “Face to face: Rediscovering the right to confront prosecution
witnesses” (2004) 8 International Journal of Evidence and Proof 1; Roberts & Zuckerman Criminal Evidence (2004)
667-670.
[31] Op cit 653. See also generally § 18 11 2 below, where the right to confront is discussed in the context of the
intermediary as provided for in s 170A of the CPA.
[32] Park op cit 365. See also Choo op cit; Friedman “Face to face: Rediscovering the right to confront prosecution
witnesses” (2004) 8 International Journal of Evidence and Proof 1; Ho “Confrontation and hearsay: A critique of
Crawford” (2004) 8 International Journal of Evidence and Proof 147 at 156. Mueller op cit 384 notes that other
grounds for objecting to hearsay include “concerns about . . . concocted or exaggerated statements, and the use of
trained investigators to exact statements by trickery and offers of immunity or leniency”.
[33] See Scallen op cit 649. See also Ho op cit 151.
[34] Raeder “Commentary: A response to Professor Swift: The hearsay rule at work: has it been abolished de facto
by judicial discretion” (1992) 76 Minnesota Law Review 507 at 512. See also Swift “The hearsay rule at work: has it
been abolished de facto by judicial discretion” (1992) 76 Minnesota Law Review 473. See Roberts & Zuckerman
Criminal Evidence op cit 599 and 603 who note that one of the reasons that the hearsay rule has endured in criminal
proceedings “is that hearsay evidence involves unacceptable risks of convicting the innocent”.
[35] 2002 (2) SACR 325 (SCA).
[36] Cf Schwikkard 2003 (120) SALJ 63; Zeffertt & Paizes 416-7; S v Mokoena and Others 2006 (1) SACR 29 (W)
at 48h. The Canadian hearsay rule has similarly passed constitutional muster. In terms of the Canadian rule “[w]
ritten or oral statements, or communicative conduct made by person otherwise than in testimony at the proceedings
in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as
proof of assertions implicit therein”. This exclusionary rule is then subject to a number of exceptions. See Sopinka,
Lederman & Bryant The Law of Evidence in Canada (1999) 173 et seq. See also Delisle & Stuart Evidence Principles
and Problems op cit 537.
[37] At 366, emphasis in original text.
[38] 1991 (1) SA 184 (A).
[39] Paizes 1983 SALJ 71 at 77.
[40] Thoroughbred Breeders Association of South Africa v Price Waterhouse 1999 (4) SA 968 (W); S v Aspeling
1998 (1) SACR 561 (C).
[41] Mahomed v Attorney-General of Natal and Others 1996 (1) SACR 139 (N).
[42] 1990 (1) SACR 449 (N).
[43] S v Congola 2002 (2) SACR 383 (T) at 386d. See also § 13 8 below.
[44] 2002 (2) SACR 325 (SCA). This case should — on the issue of admitting an accused’s admission against a co-
accused — be read subject to S v Litako and Others 2014 (2) SACR 431 (SCA) and S v Mhlongo; S v Nkosi [2015]
ZACC 19 (25 June 2015). See § 16 4 1 below.
[45] S v Ndhlovu and Others 2001 (1) SACR 85 (W).
[46] S v Ndhlovu and Others 2001 (1) SACR 85 (W) at [50].
[47] At [28]. It should be noted that provisional admissibility as provided for in s 3(1)(b) and 3(3), does not
permit the initial and provisional introduction of hearsay by a party who has full knowledge (or more than a
reasonable expectation) that the alleged “source person” will not confirm the hearsay. A party (and especially the
prosecution) must take great care to ensure that s 3(3) is not abused. See De Vos and Van der Merwe 1993 (1) Stell
LR 7 at 20 n 72. An application for provisional admission (based on an invalid assurance by a party) cannot serve as
a first step to get on record hearsay evidence which ought, in the first instance, to have been the subject of a
separate application in terms of s 3(1)(c) of Act 45 of 1988 (the “interests of justice” criterion). In S v Carstens 2012
(1) SACR 485 (WCC) Dlodlo J concluded that the prosecutor’s failure to alert the court to the fact that the “source
person” would not testify, caused serious prejudice (at [10]-[11]).
[48] See also S v Rathumbu 2012 (2) SACR 219 (SCA).
[49] At [30]. See further the discussion of S v Rathumbu supra and S v Mathonsi 2012 (1) SACR 335 (KZP) in
§ 25 4 2 below.
[50] 1997 (1) SA 1 (A) at 27D-E.
[51] 1992 (1) SA 494 (W) 499.
[52] See also S v Ndhlovu and Others 2002 (2) SACR 325 (SCA).
[53] Cf Hewan v Kourie NO and Another 1993 (3) SA 233 (T) at 239.
[54] Hewan v Kourie NO and Another supra.
[55] S v Cekiso and Another 1990 (4) SA 20 (E). See Hlongwane and Others v Rector, St Francis College, and
Others 1989 (3) SA 318 (D); Mnyama v Gxalaba and Another 1990 (1) SA 650 (C); S v Staggie and Another 2003
(1) SACR 232 (C). Cf Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting 2002 (3) SA 765 (T).
[56] S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC).
[57] S v Yanta 2000 (1) SACR 237 (Tk).
[58] S v Tshabalala 1998 (2) SACR 259 (C). See also Ellish en Andere v Prokureur-Generaal, Witwatersrandse
Plaaslike Afdeling 1994 (4) SA 835 (W); S v Mbele and Another 1996 (1) SACR 212 (W).
[59] 1996 (3) SA 450 (W).
[60] A similar approach was taken by the court in Young v Workmen’s Compensation Commissioner and Another
1998 (3) SA 1085 (T) in respect of an inquiry undertaken in terms of the Workmen’s Compensation Act 30 of 1941.
[61] 1999 (2) SA 279 (T) 336.
[62] Cf S v Saat 2004 (1) SA 593 (W).
[63] Section 3(1) of Act 45 of 1988.
[64] Richtersveld Community v Alexkor Ltd and Another 2000 (1) SA 337 (LCC).
[65] See, eg, MT Tigr Owners of the MT Tigr and Another v Transnet Ltd t/a Portnet (Bouygues Offshore SA and
Another Intervening) 1998 (3) SA 861 (SCA).
[66] 1997 (4) SA 252 (T).
[67] Southern Sun Hotels (Pty) Ltd v South African Commercial Catering & Allied Workers Union & another (2000)
21 ILJ 1315 (LAC); Edcon Ltd v Pillemer NO & others (2008) 29 ILJ 614 (LAC). See Whitear-Nel 2012 Stell LR 241.
[68] Supra.
[69] See § 13 7 4 below.
[70] See § 13 9 below.
[71] See Metedad v National Employers’ General Insurance Co Ltd 1992 (1) SA 494 (W); S v Saat supra.
[74] S v Cekiso and Another 1990 (4) SA 20 (E). See also Aetiology Today CC t/a Somerset Schools v Van
Aswegen and Another 1992 (1) SA 807 (W).
[75] S v Mpofu 1993 (2) SACR 109 (N); S v Ndhlovu and Others 2002 (2) SACR 325 (SCA).
[76] Magwanyana and Others v Standard General Insurance Co Ltd 1996 (1) SA 254 (D). However, even “double
hearsay” may be received if the “interests of justice” (s 3(1)(c)) dictate its reception. See Makhathini v Road
Accident Fund 2002 (1) SA 511 (SCA).
[77] 1989 (3) SA 318 (D).
[78] See also Hewan v Kourie NO and Another supra. In S v Ramavhale 1996 (1) SACR 639 (A) the hearsay
evidence was of crucial importance in the trial court’s finding that the state had proved its case. This was one of the
reasons that led the Appellate Division to conclude that the trial court had been “too easily persuaded” by the
prosecution to place weight on the evidence for purposes of convicting the appellant (at 649d-e).
[79] Supra.
[80] 1992 (1) SA 494 (W).
[81] In Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC) at [45], the court, although not
referring to this criterion, held if the admission of the hearsay would make no difference to the outcome of the case
it should be admitted.
[82] 2014 (1) SACR 1 (GSJ) at [109].
[83] Giesecke & Devrient South Africa Pty Ltd 2012 (2) SA 137 (SCA).
[84] 2002 (2) SACR 325 (SCA) at [45].
[85] The requirement of relevance as a pre-requisite for admissibility is discussed in ch 5 above.
[86] Supra.
[87] S v Rautenbach 2014 (1) SACR 1 (GSJ) at [112].
[88] See for example, Giesecke & Devrient South Africa (Pty) Ltd 2012 (2) SA 137 (SCA).
[89] 1997 (1) SACR 542 (D).
[90] See also Hlongwane and Others v Rector, St Francis College, and Others 1989 (3) SA 318 (D).
[91] 1996 (4) SA 1073 (C).
[92] 1999 (4) SA 571 (W).
[93] At 390E.
[94] 1996 (1) SACR 639 (A).
[95] See Harksen v Attorney-General, Cape, and Others 1999 (1) SA 718 (C); De Lille and Another v Speaker of
the National Assembly 1998 (3) SA 430 (C). Cf Metedad v National Employers’ General Insurance Co Ltd 1992 (1) SA
494 (W).
[96] Supra at [50].
[97] Supra at [13].
[98] At [13]. See also Harksen v Attorney-General, Cape, and Others 1999 (1) SA 718 (C).
[99] See s 35(3)(i) of the Constitution. See also s 25(3)(d) of the Interim Constitution.
[100] At [16].
[101] At [16].
[102] At [23].
[103] At [24].
[104] See Ohio v Roberts 448 US 56 (1980).
[105] 2010 (2) SACR 233 (SCA).
[106] Cf S v Msimango and Another 2010 (1) SACR 544 (GSJ).
[107] 2014 (1) SACR 545 (CC).
[108] Mnyama v Gxalaba and Another 1990 (1) SA 650 (C). See also S v Mpofu 1993 (2) SACR 109 (N); Hewan v
Kourie NO and Another 1993 (3) SA 233 (T).
[109] 2000 (2) SACR 100 (D).
[110] See § 14 2 2 below.
[111] See § 14 2 below. See also S v Waldeck 2006 (2) SACR 120 (NC).
[112] Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting 2002 (3) SA 765 (T).
[113] Supra.
[114] S v Shaik and Others 2007 (1) SACR 142 (D).
[115] Supra.
[116] At [17].
[117] See S v Zimmerie en ’n Ander 1989 (3) SA 484 (C) 492F-H; S v Ramavhale 1996 (1) SACR 639 (A) 651c.
[118] See S v Ngwani 1990 (1) SACR 449 (N).
[119] At [18]. See S v Ndlovu and Another 1993 (2) SACR 69 (A) 73b.
[120] S v Ndhlovu and Others supra.
[121] 2006 (2) SACR 120 (NC).
[122] 2008 (3) SA 608 (CC); 2008 (2) SACR 76 (CC).
[123] At [42]. The court in coming to this conclusion overruled a contrary decision by the Supreme Court of Appeal
in S v Molimi and Another 2006 (2) SACR 8 (SCA).
[124] Giesecke & Devrient South Africa (Pty) Ltd 2012 (2) SA 137 (SCA).
[126] 1993 (3) SA 233 (T) at 239B.
Page 305
Chapter 14
A Selection of Common-Law Exceptions to the Hearsay
Rule: A Brief Perspective
P J Schwikkard


At common law hearsay evidence was defined as any statement other than one made by a
person while giving oral evidence in the proceedings, and presented as evidence of any fact
or opinion stated. [1] The purpose of tendering the statement was critical in determining
whether a statement was hearsay or not. As noted in Subramaniam v Public Prosecutor : [2]
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or
may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to
establish by evidence, not the truth of the statement, but the fact that it was made.”

|The difficulty with the common-law hearsay rule was that it led to the exclusion of relevant
and reliable evidence. [3] In an attempt to ameliorate this unfortunate consequence of the
application of the hearsay rule, a number of ad hoc exceptions developed. Although these
exceptions are now obsolete [4] they may still be considered as “any other factor” [5] that the
court may take into consideration in exercising its discretion to admit hearsay evidence in
the interests of justice. The more common of these are discussed in this chapter.
Page 306

The phrase res gestae does not lend itself to any meaningful translation. [6] Nevertheless,
this phrase developed a meaning in the law of evidence and is succinctly stated by Choo as
follows:
“[E]vidence of facts may be admissible as part of the res gestae if these facts are so closely connected
in time, place, and circumstances with some transaction which is at issue that they can be said to
form part of that transaction.” [7]
Various categories of res gestae evolved to facilitate the admission of hearsay evidence.
These included spontaneous statements, composite acts, and declarations of state of mind
and physical sensations.
The reasoning behind the admission of spontaneous statements was that despite their
hearsay nature, they are the product of an instinctive response and therefore less likely to
be an invention or deliberate distortion. [8] In order for the statement to be regarded as
spontaneous it must be so closely linked to the event which gave rise to it that the presiding
officer is able to conclude that the “event” dominated the mind of the declarant at the time
of uttering the statement. [9]
An example is provided by the case of S v Tuge [10] in which the factual matrix before the
court included the following: a witness to a robbery wrote down the number of the robbers’
car on his hand as the car drove off, the robbers having robbed the occupants in the van in
which the witness was travelling. The witness transferred the number onto a piece of paper.
The witness had disappeared at the time of the trial and the prosecution called another
witness to hand the piece of paper bearing the registration number of the car into evidence.
Its admission into evidence was one of the grounds of appeal. The appeal court held “that
the act of writing down the number was, in all the circumstances, part of the res gestae
accompanying the events constituting the robbery . . . and was therefore admissible under
that exception to the hearsay rule”. [11] The court held that the following conditions needed
to exist for a res gestae statement to be admitted into evidence: (a) “the original speaker
must be shown to be unavailable as a witness”; [12] (b) “there must have been an occurrence
which produced a stress of nervous excitement”; [13] (c) the statement must have been
made whilst the stress was still “so operative on the speaker that his reflective powers may
be assumed to have been in abeyance”; [14] (d) “the statement must not amount to a
reconstruction of a past event”. [15] Williamson JA noted that it lay in the court’s discretion to
determine whether
Page 307
there was a sufficient degree of spontaneity, and the fact that a statement may be the
consequence of a question is not necessarily an indication of the absence of spontaneity. [16]
An obvious difficulty with this exception is that it is precisely the stress and absence of
reflective powers that may make such “excited utterances” unreliable.
Where an act was accompanied by a hearsay statement, and the act could only be properly
evaluated as evidence if it was considered in conjunction with the statement, the statement
could be admitted if certain conditions were met. [17] First, the statement and act had to be
approximately contemporaneous; second, the statement must have been made by the actor
and, third, it could be used only to explain the act. [18] Obviously the act itself had to be
relevant in order for the statement to be admissible. The exception applied to both oral and
written statements.
In Walter v Lewis [19] the accused was permitted to call a witness who testified that he
heard the accused’s wife say “this money is to pay for the sheep” when she handed some
money to an employee. The evidence was relevant in establishing the nature of the wife’s
act.
A written statement was in issue in R v Kukubula. [20] Although the accused had pleaded
guilty to making imputations of witchcraft, the prosecution sought to have a letter written by
“Manjini” admitted on the basis that it was relevant to sentence. The letter if admitted would
show (a) “that Manjini committed suicide in consequence of there having been made against
him by the accused an imputation that he was a wizard;” [21] and (b) “the deceased’s state of
mind at the time”. The court held that the contents of the letter were relevant for the
purposes of sentencing and admitted it “in support of the proof of suicide and the
[prosecution’s] contention as to the state of the deceased’s mind”. [22]
In Kukubula, discussed in the previous paragraph, the statement was not only admitted
under the res gestae rubric as a statement accompanying a relevant act, but also as a
statement which demonstrated state of mind. In order to be admissible, the state of mind of
the declarant must be relevant to an issue before the court. The rationale for this exception
was that such statements were frequently the best and sometimes the only evidence of a
person’s state of mind. [23] As with composite acts it is not clear that necessity and
contemporaneity, without other indications of reliability, are sufficient to overcome the
dangers inherent in untested hearsay.
Page 308

Statements by a non-witness such as “my head is aching” and “I am going to vomit” were
admitted at common law as evidence of contemporaneous physical sensations. [24] The
degree of contemporaneity required was a matter of discretion. The rationale was reliability,
especially when the hearsay statement was consistent with the proven facts; and
historically, when medical science was less well developed, it may well have been the best
evidence. The evidence could only be admitted to prove the symptoms and not the cause of
the physical sensation. [25] For example, if a non-witness made the following statement: “My
stomach hurts. I think Portia poisoned me” — only “my stomach hurts” would be
admissible. [26] The second part of the statement “I think Portia poisoned me” would only be
admissible if it met the requirements of another common-law exception to the hearsay rule,
namely dying declarations which are discussed in § 14 2 2 below.
Section 3 of Act 45 of 1988 [27] did away with the necessity of fitting statements into
categories and allows “res gestae” statements and other hearsay statements to be admitted
into evidence where there are sufficient indications of reliability and relevance to justify their
admission in the interests of justice.
Under common law dying declarations could be admitted into evidence provided the
following requirements were met: (a) the declaration was relevant to the cause of death; (b)
the evidence was adduced on a charge of murder or culpable homicide; (c) the deceased
would otherwise have been a competent witness; and (d) at the time of making the
statement the declarant “was under a settled hopeless expectation of death”. [28]
The rationale underpinning this exception was necessity and reliability. The necessity
argument is easily understood but the reliability in a modern context must be viewed as
questionable in that it must be a leap of faith rather than logic to assume that “a settled
hopeless expectation of death” is a guarantee against mendacity. In England and Wales the
dying declaration exception has been legislatively jettisoned. [29]
There were a number of other common-law exceptions applicable to statements made by
deceased persons that did not require a “settled expectation of death”, namely statements
against interest, statements in the course of duty, statements concerning pedigree,
statements as to public and general rights and statements by testators as to the contents of
their wills. Since 1988 these have not as yet been considered by the courts as “any other
factor” to be taken into account in applying s 3 of Act 45 of 1988. [30]
Page 309
There are a number of well-established common-law exceptions which were codified prior to
Act 45 of 1988. Some of these are discussed in chapter 15 and admissions and confessions
(whose hearsay origins are sometimes forgotten) are discussed in chapters 16 and 17
respectively.

[2] [1956] 1 WLR 965 at 969.
[3] Tapper op cit 593.
[4] Mnyama v Gxalaba and Another 1990 (1) SA 650 (C).
[5] Section 3(1)(c)(vii) of Act 45 of 1988 discussed at § 13 7 7 above.
[6] See Roberts & Zuckerman Criminal Evidence (2004) 645.
[7] Choo Evidence (2012) 292.
[8] See Wigmore paras 1747-49.
[9] S v Tuge 1966 (4) SA 565 (A).
[10] Supra.
[11] At 573.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] At 574.
[17] Howe v Malkin (1878) 40 LT 196.
[18] R v Bliss (1837) Ad & E 550; 112 ER 577.
[19] (1836) 7 C & P 344.
[20] 1958 (3) SA 698 (SR).
[21] At 698.
[22] At 699.
[23] Tapper op cit 572.
[24] Gilbey v Great Western Railway Co (1910) 102 LT 202, 203.
[25] R v Nicholas (1846) 2 Car & Kir 246.
[26] See for example R v Black (1922) 16 Cr App R 118, CCA.
[27] See ch 13.
[28] Cross in Cross on Evidence 5 ed (1979) 564. See further S v Mbanjwa and Another 2000 (2) SACR 100 (D) at
113-114.
[29] Section 14(1)(b) of the Criminal Justice Act 2003.
[30] For a discussion of these, see Skeen in Schwikkard & Van der Merwe Principles of Evidence 2 ed (2002) 267-
269.
Page 310
Chapter 15
Selected Statutory Exceptions to the Hearsay Rule
P J Schwikkard
15 1 Introduction
15 2 5 General admissibility of documentary evidence as to facts in issue
15 3 1 1 State departments, provincial administrations, courts of law,
and banks
15 3 1 6 Fingerprints, body-prints, bodily samples and crime scene
samples
15 3 1 10 The scope of s 212
15 3 6 Accounting records and documentation of banks
15 1 Introduction
The Law of Evidence Amendment Act 45 of 1988 did not repeal existing legislative provisions
governing the admission of hearsay except for ss 216 and 223 of the CPA which referred to
the common law in force on the 30 May 1961. [1] Section 3 of the Law of Evidence
Amendment Act 45 of 1988 is “[s]ubject to the provisions of any other law”. [2] This
facilitates alternate routes
Page 311
to admissibility. [3] The practical effect is this: if a party fails in getting hearsay admitted
under a legislative provision other than s 3 of the 1988 Act they may then attempt to get the
provision invoked under s 3; [4] alternatively, there seems to be no bar to relying solely on
s 3. [5]
It is beyond the scope of this chapter to deal with all existing statutory exceptions to the
hearsay rule and the focus will be on those contained in the CPEA and CPA. Electronically
generated evidence is discussed in chapter 21 below.

Section 17 of the CPEA provides:
“The trial and conviction or acquittal of any person may be proved by the production of a document
certified or purporting to be certified by the registrar or clerk of the court or other officer having the
custody of the records of the court where such conviction or acquittal took place, or by the deputy of
| such registrar, clerk or other officer, to be a copy of the record of the charge and of the trial,
conviction and judgment or acquittal, as the case may be, omitting the formal parts thereof.” [6]
The courts, [7] supported by Zeffertt, Paizes and Skeen, [8] take the view that the common-
law rule in Hollington v F Hewthorn & Co Ltd, [9] in terms of which a criminal court
conviction, is not admissible in subsequent civil proceedings as evidence that the accused
committed the offence for which he was convicted, [10] is not negated by s 17.
In Society of Advocates of South Africa (Witwatersrand Division) v Rottanburg [11] the
court, in an obiter statement, explained the rule as follows:
“[S]ave for certain well-known exceptions . . . a conviction or judgment is inadmissible evidence of
the facts upon which it was founded when those facts are directly in issue in subsequent civil
proceedings. Its exclusion springs from a combination of the hearsay rule with the rule rejecting
certain types of opinion evidence. The conviction or judgment in effect expresses the opinion at which
the court arrived on the judicial evidence placed before it which invariably does not include facts
perceived by itself.
Page 312
Where a party to the litigation therefore challenges the propriety of the conviction or judgment, the
Court in the subsequent trial would have to retry the criminal case to find out what weight ought to be
attached to the result. The conviction or judgment is then irrelevant because it expresses an opinion
on a matter which the Court in the subsequent trial itself has to decide.” [12]
None of the above cases refers to s 17 of the CPEA. Consequently, if this is not an oversight,
s 17 must be interpreted to facilitate proof of trial, conviction or acquittal with the proviso
that such “proof” may not be used as evidence of the commission of the act which formed
the basis of the charge.

Section 22(1) of the CPEA provides:
“Whenever any fact ascertained by any examination or process requiring any skill in bacteriology,
biology, chemistry, physics, astronomy, anatomy or pathology is or may become relevant to the issue
in any civil proceedings, a document purporting to be an affidavit made by a person who in that
affidavit alleges that he is in the service of the Republic or of a province or in the service of or
attached to the South African Institute for Medical Research or any university in the Republic or any
other institution designated by the Minister for the purposes of this section by notice in the Gazette,
and that he has ascertained such fact by means of such examination or process, shall, subject to the
provisions of subsections (2) and (3), on its mere production by any party in such proceedings be
admissible in evidence to prove that fact.”
Subsection (2) requires a copy of the affidavit to be delivered to all parties at least seven
days before the date of production. Subsection (3) permits a presiding officer on the
application of one of parties to order the deponent to give oral evidence or answer
interrogatories. [13]
Section 25 of the CPEA provides that where an order presuming the death of a soldier is
sought an official report will be admissible as proof of the facts stated in it, provided it is
accompanied by an affidavit by the Chief of the South African National Defence Force. The
following must be contained in the affidavit: (a) the fact that the allegedly deceased soldier
was on active service when he was last seen alive; (b) the official report was made in the
course of an official duty to make it and was transmitted through official channels; (c) the
alleged deceased soldier has been posted as “missing” by the military authorities; (d) there
is no information that would indicate that the person is alive.
See § 15 3 1 below for a discussion of proof by affidavit in criminal matters.

Tables of the times of sunrise and sunset, prepared at any official observatory in South
Africa, may in terms of s 26 of the CPEA be admitted as evidence of such times provided the
tables have been approved by the Minister in the Government Gazette. Similar provisions
are contained in s 229 of the CPA.
Page 313
Section 28 of the CPEA reads as follows:
“The entries in ledgers, day-books, cash-books and other account books of any bank, shall be
admissible as prima facie evidence of the matters, transactions and accounts therein recorded, on
proof being given by affidavit in writing of a director, manager or officer of such bank, or by other
evidence, that such ledgers, day-books, cash-books or other account books are or have been the
ordinary books of such bank, and that the said entries have been made in the usual and ordinary
course of business, and that such books are in or come immediately from the custody or control of
such bank.”
However, in terms of s 32 the section will not apply to proceedings to which the bank is a
party. Where s 28 is applicable, 10 days’ notice of the intention to give such evidence must
be given. [14] Section 29 regulates when copies may be used.
15 2 5 General admissibility of documentary evidence as to facts in

issue
The exceptions in the CPEA so far dealt with, refer to specific types of facts that may be
proved by documentary evidence. Part VI (ss 33 [15] to 38) of the CPEA sets out a more
generalised framework for the admissibility of documentary evidence as to facts in issue.
Section 38 specifically provides that Part VI shall not prejudice the admissibility of any
evidence which would otherwise be admissible.
Section 34 reads as follows:
“Admissibility of documentary evidence as to facts in issue
(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement
made by a person in a document and tending to establish that fact shall on production of the original
document be admissible as evidence of that fact, provided —
(a) the person who made the statement either —
(i) had personal knowledge of the matters dealt with in the statement; or
(ii) where the document in question is or forms part of a record purporting to be a
continuous record, made the statement (in so far as the matters dealt with therein
are not within his personal knowledge) in the performance of a duty to record
information supplied to him by a person who had or might reasonably have been
supposed to have personal knowledge of those matters; and
(b)
the person who made the statement is called as a witness in the proceedings unless he is
dead or unfit by reason of his bodily or mental condition to attend as a witness or is
outside the Republic, and it is not reasonably practicable to secure his attendance or all
reasonable efforts to find him have been made without success.
(2) The person presiding at the proceedings may, if having regard to all the circumstances of the
case he is satisfied that undue delay or expense would otherwise be caused, admit such a statement
as is referred to in subsection (1) as evidence in those proceedings —
(a) notwithstanding that the person who made the statement is available but is not called as a
witness;
(b) notwithstanding that the original document is not produced, if in lieu thereof there is
produced a copy of the original document or of the material part thereof proved to be a
true copy.
Page 314
(3) Nothing in this section shall render admissible as evidence any statement made by a person
interested at a time when proceedings were pending or anticipated involving a dispute as to any fact
which the statement might tend to establish.
(4) A statement in a document shall not for the purposes of this section be deemed to have been
made by a person unless the document or the material part thereof was written, made or produced by
him with his own hand, or was signed or initialled by him or otherwise recognized by him in writing as
one for the accuracy of which he is responsible.
(5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of
the provisions of this section, any reasonable inference may be drawn from the form or contents of
the document in which the statement is contained or from any other circumstances, and a certificate
of a registered medical practitioner may be acted upon in deciding whether or not a person is fit to
attend as a witness.”
The first requirement is that the document must be the original unless a copy is
exceptionally admitted by virtue of s 34(2)(b). [16] The pre-1961 English case of Bowskill v
Dawson [17] suggested that similarly but not identically worded legislation required proof of
the existence of the original. Binns-Ward J in Muller v Boe Bank Ltd and Others [18] noted
that unlike the South African provision, the English counterpart required the copy to be
certified a true copy. [19] The absence of this requirement means that s 34(2)(b) fell to be
interpreted differently in that it simply requires proof that the copy is a true copy. The court
held that the applicable standard of proof was proof on a balance of probabilities. [20] The
court also departed from the reasoning of Devlin J in Bowskill that required an interpretation
that favoured the least divergence from the common law. Binns-Ward J noted that s 34(1)
was introduced precisely to allow a departure from the common law and the provision,
namely s 34(2)(b) constituted an exception to s 34(1) not the common law. [21] This
approach also accords with the reminder to the courts in s 35 that they may attach as much
weight as they deem fit in the circumstances to the hearsay evidence that has been
admitted. This flexibility, the court noted, facilitated the admission of relevant evidence and
enhanced the ability of court to “justly decide civil cases”. [22]
Influenced by modern technology and the ability in effect to make multiple “originals”, the
English law has been greatly simplified and a copy will be permitted (whether or not the
original is in existence) provided it is authenticated in a manner approved by the court. It is
also immaterial “how many removes there are between a copy and the original”. [23]
Page 315
The document must have been made by a person with personal knowledge [24] of matters
contained in it or the document must form part of a continuous record and be made by a
person under a duty to record the statement from a person who has personal knowledge of
the contents. The person who made the statement must be called as a witness [25] (this
would negate the dangers of hearsay) unless they are dead, unfit to attend, out of the
country “and it is not reasonably practicable to secure their attendance”, [26] or unless they
cannot be found. The court also has a discretion, where it is satisfied that undue delay or
expense would otherwise result, to dispense with the requirements that the person who
made the statement be called as a witness and the original document be produced. [27]
A statement will be “made” by a person if it is in their handwriting or recognised by her in
some way as being a document for which she is responsible, for example, by initialling or
signing the document. A thumb-print will suffice as a signature. [28]
The case law is not particularly helpful in clarifying the meaning of “continuous record”. [29]
Du Toit et al describe it as “an ongoing and related history of events”. [30] Zeffertt, Paizes
and Skeen find this definition too restrictive and note that “[a] book of account is a typical
instance of a continuous record and, although it is ‘ongoing’, it may not give a related
history of events but rather a chronicle of disparate transactions”. [31] The person who is
making the continuous record must do so under a duty to record information supplied to him
or her. Prior to the simplification of the hearsay regime by the Civil Evidence Act 1995, the
English courts had some difficulty in determining the recipient of the information. A case
which demonstrates the frustrations that may arise when a principled approach to
admissibility is not taken, is Barkway v South Wales Transport Co Ltd. [32] The court in
Barkway declined to admit the record of evidence given at earlier proceedings; the witness
who had made the statement was dead and had not signed or initialled the document; this
could not be remedied by calling the person who had a duty to record the information as the
court found that the testimony was supplied to the court and not the shorthand recorder. It
is difficult to see how this distinction could have any effect on the reliability of the record.
There is no reason for the shorthand writer’s transcript to be less reliable than notes taken
by the bench.
Page 316
A statement will also be inadmissible if made by a person who had an interest in the
outcome of the proceedings at the time they made the statement. [33] The issue here
becomes the meaning of “interested” in s 34(3). There is no clear definition of an interested
person and whether or not a deponent falls into this category will be determined on the facts
of the case. In Barkway v South Wales Transport Co Ltd [34] this prohibition was held to
extend to the person who records the information supplied to them. The interest may be
personal or financial. [35] Parties to criminal proceedings will be viewed as having an interest
in subsequent civil proceedings. [36] The proceedings must have been viewed as reasonable
or likely at the time of making the statement for the exclusion to come into effect. [37] It is
the subjective expectation of the maker as to the likelihood of proceedings which is the focus
of the inquiry. [38]
Southwood J in Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting [39]
held that “[i]f the requirements of s 34(1) are satisfied, the Court has no discretion to
exclude the statement” and, similarly, it has no discretion to include the statement where
the requirements have not been met.
Section 35(1) of the CPEA provides that where evidence is admitted in terms of Part VI the
following factors should be taken into account in determining its weight: all circumstances
affecting the accuracy of the statement; and in particular (i) the contemporaneity of the
making of the statement and the occurrence to which the statement relates and (ii) whether
the maker of the statement had any incentive to conceal or misrepresent facts. [40] Section
35(2) simply applies the principle prohibiting self-corroboration and stipulates that a
statement admitted under Part VI cannot be used to corroborate other evidence given by the
maker of the statement. This is in line with the common-law principle discussed in § 9 8
above.
Page 317

An affidavit that meets the requirements of s 212 of the CPA [41] will constitute prima facie
proof of the matters stated in it. However, it does not lighten the prosecution’s burden of
proof and is simply a device to avoid the inconvenience of requiring oral testimony. [42]
Section 212 may be utilised by both the prosecution and the defence. [43]
15 3 1 1 State departments, provincial administrations, courts of law, and banks
Section 212(1) of the CPA provides that the fact that an act, transaction or occurrence took
place in any state department, provincial administration, court of law or bank, or that a
functionary in any one of these departments performed or did not perform a particular act or
transaction, may be proved by affidavit. The affidavit will constitute prima facie proof
provided the following requirements are met: (a) the maker of the affidavit is in the service
of the State and employed by one of the institutions referred to in the subsection; (b) the
act, transaction or occurrence would in the ordinary course of event have come to the
deponent’s knowledge and a record of it would have been kept, alternatively (c) it has not
come to the deponent’s knowledge that the act, transaction or occurrence took place and
there is no record of such act, etc.
If the issue in criminal proceedings is whether a particular person furnished a specified
officer of the state or provincial administration with certain information, in terms of s 212(2)
of the CPA, a denial by the officer in question in the form of an affidavit will constitute prima
facie proof that the person did not furnish the officer with any such information or document.
In terms of s 212(3) of the CPA where a person is authorised by law to register or record
something, proof of the registration, recording and anything connected with the registration
or recording may be provided by an affidavit deposed to by the person authorised in law to
perform the act of registering or recording.
Section 212(4) of the CPA, although more detailed, contains similar provisions to those
contained in s 22(1) of the CPEA. Section 212(4) reads as follows:
“(a) Whenever any fact established by any examination or process requiring any skill —
(i) in biology, chemistry, physics, astronomy, geography or geology;
(ii) in mathematics, applied mathematics or mathematical statistics or in the analysis of
statistics;
(iii) in computer science or in any discipline of engineering;
(iv) in anatomy or in human behavioural sciences;
(v) in biochemistry, in metallurgy, in microscopy, in any branch of pathology or in toxicology;
or
Page 318
(vi) in ballistics, in the identification of finger prints or palm-prints or in the examination of

disputed documents,
is or may become relevant to the issue at criminal proceedings, a document purporting to be an
affidavit made by a person who in that affidavit alleges that he or she is in the service of the
State or of a provincial administration or is in the service of or is attached to the South African
Institute for Medical Research or any university in the Republic or any other body designated by
the Minister for the purposes of this subsection by notice in the Gazette, and that he or she has
established such fact by means of such an examination or process, shall, upon its mere
production at such proceedings be prima facie proof of such fact: Provided that the person who
may make such affidavit may, in any case in which skill is required in chemistry, anatomy or
pathology, issue a certificate in lieu of such affidavit, in which event the provisions of this
paragraph shall mutatis mutandis apply with reference to such certificate.
(b) Any person who issues a certificate under paragraph (a) and who in such certificate wilfully
states anything which is false, shall be guilty of an offence and liable on conviction to the
punishment prescribed for the offence of perjury.”
This section is frequently invoked and the courts will generally require strict compliance. [44]
For example, in S v Kwezi [45] the court held that medical evidence had not been properly
admitted in terms of s 212(4) where the affidavit did not specify that the deponent was in
the service of the state. The court found that the presiding officer, in light of the
unrepresented accused’s objections, had erred in taking judicial notice (see § 27 4 1 below)
of the fact that district surgeons are in the service of the state. [46] Applying the approach
taken by the court in S v Hlongwa, [47] Jones J in Kwezi held that even where there is strict
compliance with s 212(4) but the medical evidence is disputed, particularly by an
unrepresented accused, the court should exercise its discretion in terms of s 212(12) to
either call the doctor in question or request the doctor to respond to written interrogatories
(see § 18 4 below). The court held it was clearly unfair to simply advise an unrepresented
accused that his only recourse was to call witnesses to dispute the evidence.
Jones J noted that over the last two decades the potential unfairness inherent in a strict
application of s 212(4) had led the courts to use s 220 of the CPA (see § 26 5 4 below) to
regulate the admissibility of medico-legal reports. The court described the process as
follows: “The magistrate usually explains the impact of the admission to the accused and, if
he agrees, the facts set out in the medical report are admitted. If he does not agree, oral
evidence must be given.” [48] The court concluded that the magistrate’s failure to follow this
alternate approach, in the circumstances, resulted in an irregularity that rendered the trial
unfair.
The establishment of this widespread practice over two decades, that has developed as a
remedy to the potential unfairness inherent in a legislative
Page 319
provision, coupled with the lack of clarity as to precisely what is required in a s 212(4)
affidavit, [49] indicates this might be an area ripe for legislative intervention.
The existence and nature of a precious metal or stone may, in terms of s 212(5) of the CPA
be proved by affidavit deposed to by an appraiser in the service of the State.
15 3 1 6 Fingerprints, body-prints, bodily samples and crime scene samples
The finding of and action taken in connection with the above, may be established by an
affidavit made by a person in the service of the State who dealt with such print in the
performance of his or her official duties. [50]
An affidavit will constitute prima facie proof of the condition or identity of a dead body at a
hospital, nursing home, ambulance or mortuary provided the following requirements set out
in s 212(7) of the CPA are met: (a) the deponent must be employed at or in connection with
the hospital, nursing home, ambulance or mortuary; (b) she must have observed the
conditions and characteristics of the body during the performance of her official duties; (c)
any injuries received whilst the body was in the care of the deponent must be recorded and
(d) she must state from whom she received the body and in whose care she left the body.
Section 212(8) of the CPA makes provision for receipt, custody, packing, marking, delivery
or dispatch of any object to be established by an affidavit deposed to by a person in the
service of the State or the South African Institute of Medical Research, any university in the
Republic or any body designated by the Minister under sub-s (4). Proof by affidavit of the
sterility of syringes is regulated by s 212(11) of the CPA. Section 212(9) of the CPA provides
for the receipt and delivery of goods by the Railway Administration to be proved by affidavit
in particular circumstances.
Section 212(12) of the CPA confers a discretion on presiding officers to subpoena deponents
to give oral evidence or to require them to submit to interrogatories. [51] Chetty J in S v
Rululu [52] held that the failure to call the deponent at a mere intimation that the results of a
DNA test were wrong did not undermine the fairness of the trial. However, the
Page 320
judgment in S v Sithole [53] suggests that an accused need do no more than raise the issue
during trial for it to become necessary for the presiding officer to call the deponent to the
affidavit to testify. The difficulty in reconciling Rululu and Sithole is pinpointing the difference
between making intimidation and raising an issue. It is suggested that given the difficulty in
challenging a s 212 affidavit the courts should err on the Sithole side.
Section 212(10) of the CPA makes provision for the Minister to give notice of the
conditions and requirements that need to be complied with in order for measurements
recorded by specified measuring instruments to constitute rebuttable proof of facts recorded
by such instruments.
The importance of following the stipulated procedures governing the admissibility of
evidence through the application of s 212 was highlighted in S v Ross. [54] The accused had
been convicted of driving with a blood-alcohol content exceeding the legal limit. The
prosecution had failed to use a s 212(10) affidavit to establish the accuracy of a gas
chromatograph and ion selective meter. Instead it purported to establish this fact in a s 212
(4) certificate which set out the results of the blood analysis as well as the accuracy of the
gas chromatograph and ion selective meter. It appears that all the parties and the
magistrate did not object to this at trial although the accused did indicate during plea
proceedings that he was “not satisfied with the blood alcohol analysis”. [55] If a s 212(10)
affidavit had been furnished the deponent would have been the same person responsible for
the s 212(4) certificate. On appeal the state sought leave to remedy the defect by tendering
a s 212(10) affidavit. The court held that the state had failed to meet the prerequisites for
additional evidence to be admitted on appeal. It accepted that the evidence was likely to be
reliable and materially relevant to the outcome of the case; however, the reason furnished
by the state for not tendering the evidence in its proper form in the first place was
inadequate and the conclusion had to be drawn that the state had failed to submit a s 212
(10) affidavit because it erroneously and inexplicably believed it did not have to. The court’s
insistence on strict compliance with procedures was underpinned by an appreciation of the
fact that s 212 significantly lightened “the burden of the state in proving facts relating to
forensic questions”. [56]
15 3 1 10 The scope of s 212
It is made explicit in s 212(13) of the CPA that s 212 should not be interpreted as affecting
the admissibility of otherwise admissible evidence and that it must “be deemed to be
additional and not in substitution” to any other law.
Does s 212 of the CPA infringe the accused’s constitutional right to challenge evidence? [57]
This question was dealt
Page 321
with in S v Van Der Sandt, [58] a case dealing primarily with s 212(4) but in which the
constitutionality of s 212 as a whole was considered. The argument raised by the accused
was that s 212 was unconstitutional in that by allowing for hearsay to be admitted it
deprived the accused of the opportunity to cross-examine and consequently infringed his
right to challenge evidence. The court dismissed this argument on a number of grounds.
First, a fair trial did not require that evidence only be given orally. The fairness of using an
alternate form of evidence would depend on the nature of the evidence. Van Dijkhorst J
noted that “the evidence allowed by s 212 is generally of a formal non-contentious nature,
often peripheral to the real issues” and that its admission was “essential to the proper
administration of justice”. [59] If the evidence is contentious and central to the issue as might
be the case in a drunk driving or speeding case, would s 212 still be constitutional? Van
Dijkhorst’s answer is yes — as s 212(12) allows the court to subpoena the deponent to
testify and if the court declines to do so the accused can always subpoena the deponent. [60]
It is also clear from the Supreme Court of Appeal decision in S v Ndhlovu and Others [61] that
the inability to cross-examine should not necessarily be equated with an infringement of the
right to challenge evidence.
However, the manner in which s 212 is applied may compromise the right to a fair trial.
The court in S v Sithole [62] dealt with s 212(8) of the Criminal Procedure Act. Bam AJ noting
the disadvantage the accused was at in challenging such evidence (as the relevant facts are
inevitable in the control of the state) held that the accused was not required “to state in
detail what the basis for the challenging of such evidence is” [63] and that in the
circumstances of the case it was sufficient for the defence to state that it “suspected that the
blood samples had been tampered with”. [64] Furthermore, the court held that in order for
the s 212(8) affidavit to constitute prima facie proof it had to deal with each stage in the
chain of evidence.
The court held that the accused’s rights to a fair trial had been unduly compromised in
that the magistrate had incorrectly found that the accused had failed to lay a basis for
challenging the evidence and consequently refused to allow a postponement to enable the
defence to challenge the evidence. In addition, the state’s failure to adduce evidence to
verify the chain of evidence, after the chain had been challenged, meant that the accused
had been denied his right to challenge and rebut the prima facie evidence.
Section 212A of the CPA permits the fact whether an act, transaction or occurrence took
place or not in
Page 322
a state department, court of law or bank outside of South Africa to be proved by affidavit,
provided the affidavit is obtained by order of court or otherwise authenticated.

Section 213 of the CPA permits the written statement of any witness, except the accused, to
be admitted into evidence in lieu of oral evidence at trial provided the parties consent and
certain formalities are complied with. The courts appear reluctant to accord such evidence
the same weight as oral evidence that has been subjected to cross-examination. [65]

Evidence recorded at a preparatory examination shall be admitted at trial in the
circumstances specified in s 214(a) of the CPA. The court must be satisfied that the
unavailable witness is dead, incapable of giving evidence, too ill to attend the trial or is being
kept away from the trial by the accused. The evidence must have been recorded in either a
magistrates’ or regional court and the accused or state (as the case may be) must have had
the opportunity of cross-examining the witness. The court has a discretion in terms of s 214
(b) to admit evidence from preparatory examination if the witness cannot be found after a
diligent search or cannot be compelled to attend the trial, provided once again that the
evidence has been recorded in the magistrates’ or regional court and the accused or state
had an opportunity to cross-examine the witness.
Section 215 of the CPA provides that evidence of a witness given at a former trial may be
admitted in evidence at a later trial on the same basis that a preparatory examination may
be admitted in terms of s 214.
The original record of judicial proceedings may be proved in terms of s 235 by a certified
copy which “shall be prima facie proof that any matter purporting to be recorded thereon
was correctly recorded”. [66]

Certain trade or business [67] records [68] will be admitted into evidence as proof of their
contents in terms of s 221 of the CPA if (a) they were compiled in the course of trade or
business from information supplied by persons having personal knowledge of the matters
dealt with in the document; [69] and (b) the person who supplied the information is dead, out
of the country, physically or mentally unfit to attend as
Page 323
a witness, cannot be identified or found, or cannot reasonable be expected to recollect the

matters dealt with in the document.
In determining the weight of the evidence the court will have regard to the reliability of
the statement, in particular the contemporaneity of the statement with facts contained in the
document and the impartiality of the person who supplied the information. Subsection (4)
specifies that the section shall not prejudice the admissibility of any evidence which would be
admissible apart from the provisions of s 221.

Section 222 of the CPA directs that Part VI of the CPEA applies in criminal proceedings. Part
VI is discussed in § 15 2 5 above.
15 3 6 Accounting records and documentation of banks [70]
Accounting records and documents [71] in the possession of a bank shall be admissible in
evidence in terms of s 236(1) of the CPA provided they are accompanied by an affidavit by a
person stating that (a) they are in the service of the bank; (b) they are ordinary records and
documents of the bank; (c) the entries have been made and the documents compiled,
printed or obtained in the usual and ordinary course of the business of the bank; (d) the
records or documents are in the custody or under the control of the bank. An entry, record
or documents will constitute proof of its contents if accompanied by an affidavit in which the
deponent states that: she is in the service of the bank, that she has examined the entry or
record and that the attached copy is a correct copy. [72] The person against whom such
records and documents are admitted, may inspect the record or document. A bank can only
be compelled to produce such records and documents by an order of court. [73] Proof of
entries in accounting records and documentation of banks in countries outside the Republic
are similarly regulated by s 236A of the CPA.
The CPA makes for a host of presumptions arising from certain forms of documentary
evidence including matters pertaining to bigamy, [74] incest [75] and a person’s absence from
the Republic. [76] In addition, in terms of s 246 of the CPA any documents which were at any
time on premises occupied by any association of persons or in the possession or under the
control of any office bearer, officer or member of such association and which reflects that the
accused is a member or an office bearer
Page 324
of such association shall be prima facie proof of that fact. Similar provisions are made in
respect of authorship of documents [77] and objects of the association. [78] In terms of s 246
(c) minutes of a meeting will constitute prima facie proof that such a meeting was held and
of its proceedings. This section has it origins in the apartheid era and casts a shadow over
the constitutional right to freedom of association.
[1] Section 9 of Act 45 of 1988. Section 216 of the CPA provided that no hearsay evidence shall be admissible “if
such evidence would have been inadmissible on the thirtieth day of May, 1961” and s 223 of the CPA contained a
similar provision in respect of dying declarations.
[2] Section 3(1) — see § 13 3 above.
[3] Giesecke & Devrient South Africa (Pty) Ltd 2012 (2) SA 137 (SCA).
[4] See S v Shaik and Others 2007 (1) SACR 142 (D); Skilya Property Investments (Pty) Ltd v Lloyds of London
Underwriting 2002 (3) SA 765 (T); Stanfield v Commissioner, South African Revenue Service 2002 (1) SA 726 (C);
Magwanyana and Others v Standard General Insurance Co Ltd 1996 (1) SA 254 (D).
[5] See S v Saat 2004 (1) SA 593 (W); Maize Board v Hart 2005 (5) SA 480 (O).
[6] Section 34 of the Superior Courts Act 10 of 2013 provides that copies of court records certified by the registrar
of the particular court under its seal shall be prima facie evidence of the record without the need to authenticate the
registrar’s signature. Rule 61 of the Magistrates’ Courts Rulesprovides that the clerk of the court may produce in
evidence any original record, entry or document of the same court in a different matter. Where it is necessary to give
evidence in another court a certified copy of the original is admissible without the production of the original.
[7] Hassim (Also Known as Essack) v Incorporated Law Society of Natal 1977 (2) SA 757 (A); Msunduzi
Municipality v Natal Joint Municipal pension/provident Fund and Others 2007 (1) SA 142 (N); Groenewald NO and
Another v Swanepoel 2002 (6) SA 724 (E).
[8] The South African Law of Evidence 317.
[9] [1943] 2 All ER 35.
[10] This rule is discussed in § 8 8 above.
[11] 1984 (4) SA 35 (T).
[12] At 38A.
[13] Interrogatories are discussed in § 18 15 below. Sections 23 and 24 of the CPEA regulate the admission of
evidence on commission; evidence on commission in civil cases is discussed in § 18 14 below.
[14] Section 30 of the CPEA. Section 30(2) allows the person receiving such notice to apply for an order to inspect
the relevant documents. The bank must be given three days’ notice.
[15] The following definitions are provided in s 33: “document” includes any book, map, plan, drawing or
photograph; “statement” includes any representation of fact, whether made in words or otherwise.
[16] See for example Rawoot v Marine & Trade Insurance Co Ltd 1980 (1) SA 260 (C) in which a copy was not
allowed.
[17] [1954] 1 QB 288.
[18] 2011 (1) SA 252 (WCC).
[19] At [30].
[20] At [32].
[21] At [36].
[22] At [36].
[23] Section 8(1) of the Civil Evidence Act 1995.
[24] See Stanfield v Commissioner, South African Revenue Service 2002 (1) SA 726 (C) paras 33-35 for a cursory
discussion of what constitutes personal knowledge.
[25] See Schimper and Another v Monastery Diamond Mining Corporation (Pty) Ltd and Another 1982 (1) SA 612
(O).
[26] See Magwanyana supra.
[27] See for example Hladhla v President Insurance Co Ltd 1965 (1) SA 614 (A).
[28] Putter v Provincial Insurance Co Ltd and Another 1963 (3) SA 145 (W).
[29] See for example Thrasyvoulos Ioannou v Papa Christoforos Demetriou 1952 AC 84; 1952 1 All ER 179;
Schimper and Another v Monastery Diamond Mining Corporation (Pty) Ltd and Another supra; Simpson v Lever 1962
3 All ER 870.
[30] Du Toit et al Commentary 24-90.
[31] The South African Law of Evidence 386 (emphasis in the original).
[32] 1949 1 KB 54; 1948 2 All ER 460.
[33] Section 34(3).
[34] Supra.
[35] See Boshoff v Nel 1983 (2) SA 41 (NC), where the headnote reads: “For the purposes of s 34(3) of the Civil
Proceedings Evidence Act 25 of 1965, the concept of ‘interest’ in the expression ‘person interested’ should not be
seen in so broad a context that an indirect interest would suffice to exclude a statement. The concept has a more
limited context and it implies a more tangible interest, that is an essential or actual or direct interest; which interest
should not, however, be interpreted so restrictively that it can only be an interest which would entitle the person
concerned to join or to be joined in the proceedings. The interest is also not confined to a monetary interest, but it
includes a personal interest, whether financial or otherwise, provided that such a personal interest is not too
remote.” See also Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting 2002 (3) SA 765 (T).
[36] Laubscher and Another v Commercial Union Assurance Co of SA Ltd 1976 (1) SA 908 (E); Colgate-Palmolive
(Pty) Ltd v Elida-Gibbs (Pty) Ltd 1990 (2) SA 516 (W); United Tobacco Co Ltd v Goncalves 1996 (1) SA 209 (W).
[37] Jarman v Lambert and Cooker (Contractors) Ltd 1951 2 KB 937; Muller v Boe Bank Ltd and Others supra.
[38] Jarman v Lambert and Cooker (Contractors) Ltd supra. See also Trend Finance (Pty) Ltd v Commissioner for
South African Revenue Services [2005] 4 All SA 657 (C).
[39] 2002 (3) SA 765 (T) at 799G-H.
[40] See Meevis v Sheriff, Pretoria East 1999 (2) SA 389 (T).
[41] For a detailed discussion of s 212 see Paizes, Du Toit et al Commentary 24-33 to 24-36N-2.
[42] S v Van Der Sandt 1997 (2) SACR 116 (W).
[43] S v Naidoo 1985 (2) SA 32 (N).
[44] S v Van Der Sandt supra; S v Mkhize and Others 1998 (2) SACR 478 (W).
[45] 2007 (2) SACR 612 (E).
[46] At [5].
[47] 2002 (2) SACR 37 (T) at 45h-46a.
[48] At [6]. This is the same approach that was recommended by the court in S v Nkhumeleni 1986 (3) SA 102 (V)
at 107B-C.
[49] In S v Van Der Sandt supra the majority held that it was not sufficient for the affidavit to constitute a mere
repetition of s 212(4). What was required was a statement of the state employee’s qualifications, a description of the
processes used, an explanation as to why the process was reliable and the results obtained through these processes.
The minority took a different approach and identified the required contents as follows: name, qualifications, name of
employer, the facts established and name of the process followed. The minority approach was favoured by S v
Tshabalala 1999 (1) SACR 412 (C).
[50] Section 212(6) as amended by s 4(b) of the Criminal Law (Forensic Procedures) Amendment Act 6 of 2010
and s 3(a) of the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013.
[51] See for example S v Kwezi supra.
[52] 2013 (1) SACR 117 (ECG). See also R v Chizah 1960 (1) SA 435 (A); S v Veldthuizen 1982 (3) SA 413 (A).
[53] 2013 (1) SACR 298 (GNP).
[54] 2013 (1) SACR 77 (WCC)
[55] At [4].
[56] At [21].
[57] Section 35(3)(i) of the Constitution.
[58] Supra.
[59] 132e.
[60] 132h.
[61] 2002 (2) SACR 325 (SCA) discussed at § 13 7 6 above.
[62] 2013 (1) SACR 298 (GNP).
[63] At [29].
[64] At [29].
[65] See S v Boeck 2000 (2) SACR 185 (T).
[66] For a full discussion of s 235 see Du Toit et al Commentary 24-109–24-110B.
[67] “Business” is defined in s 221(5) as including any public transport, public utility or similar undertaking carried
on by a local authority, and the activities of the Post Office and the Railways Administration.
[68] The Act does not provide a definition of a record and following the English approach it is likely that a single
document relating to one transaction will constitute a record. See R v Jones; R v Sullivan 1978 2 All ER 718.
[69] “Document” is defined in s 221(5) as including any device by means of which information is recorded or
stored; and “statement” is defined as including any representation of fact, whether made in words or otherwise.
[70] See § 15 2 4 for a discussion of bankers’ books in civil proceedings.
[71] Section 236 defines a document as including a recording or transcribed computer printout produced by any
mechanical or electronic device and any device by means of which information is recorded or stored; and “entry”
includes any notation in the accounting records of a bank by any means whatsoever.
[72] Section 236(2).
[73] The courts have taken a strict approach to compliance with this section. See R v Bhoola 1960 (4) SA 895 (T);
S v Smit 1966 (1) SA 638 (O).
[74] Section 237.
[75] Section 238.
[76] Section 247.
[77] Section 246(b).
[78] Section 246(d). See, for example, The State v Matsiepe 1962 (4) SA 708 (A); S v Alexander and Others (2)
1965 (2) SA 818 (C).
Page 325
Section F
The Admissibility and Proof of the Contents of
relevant Detrimental Statements
16 Informal Admissions –P J Schwikkard

17 Confessions in Criminal Trials –P J Schwikkard
Page 327
Chapter 16
Informal Admissions
P J Schwikkard
16 1 Introduction
16 5 1 2 Partners
16 5 1 4 Spouses
16 5 1 5 Referees
16 1 Introduction
An admission is a statement made by a party, in civil or criminal proceedings, which is
adverse to that party’s case. Informal admissions, which are usually made out of court, must
be distinguished from formal admissions made in the pleadings or in court. Formal
admissions are binding on the maker, and are generally made in order to reduce the number
of issues before the court, [1] whereas informal admissions merely constitute an item of
evidence that can be contradicted or explained away.
Informal admissions may be admitted to prove the truth of their contents. The rationale
for admitting such evidence would appear to be that a person is unlikely to make an
admission adverse to his interests if the contents of that
Page 328
admission are not true. However, since a statement may constitute an admission even
though a party is unaware that what he is saying is contrary to his interests, [2]
“[i]t is probably better to say that admissions or confessions do not have some of the drawbacks
inherent in hearsay because a party can hardly complain that when he made the statement he was
not on oath or did not have an opportunity to cross-examine himself.” [3]
Nevertheless in many instances informal admissions will be hearsay in nature. Section 3(4)
of the Law of Evidence Amendment Act [4] defines hearsay evidence as “evidence, whether
oral or in writing, the probative value of which depends upon the credibility of any person
|other than the person giving such evidence”. When the probative value of an informal
admission depends primarily on its maker (which will almost inevitably be the case) it will be
a hearsay statement. However, as s 3 of the Law of Evidence Amendment Act is “subject to
the provisions of any other law” [5] existing statutory provisions will remain the primary route
to admission and the common law will remain “any other factor” to be taken into account by
the court in the exercise of its discretion to admit hearsay in the interests of justice. [6]
While Paizes also takes the view that s 3(4) brings confessions and admissions within the
hearsay rule and that the probative value of a statement depends on the credibility of its
maker, [7] he concludes that s 3 does not require any significant departure from the
traditional approach to the admission of confessions and admissions, because [8]
“the more contentious aspects of the problem of the admissibility of confessions or admissions are not
the concern of s 3. And, since it is difficult to imagine how the interest of justice could be served by
the exclusion of a relevant, voluntarily made admission or confession which satisfies the other
statutory requirements, it is submitted that subjecting such evidence to the scrutiny required in s 3
will be a harmless but usually futile exercise. The hearsay objection will be met, in any event, should
the accused himself testify at his trial . . .”.
Once part of a statement has been allowed into evidence as an admission, the maker is
entitled to have the whole statement put before the court, even where it includes self-
serving statements, [9] provided the two components form part of a single statement. [10]
Page 329
An informal admission, which is made extra-judicially, must also be distinguished from a

statement made against a party’s interest during the course of a trial. The latter is treated
as ordinary evidence.

In civil matters there is only one general requirement for admissibility, and that is
relevance. [11] An additional requirement must be met where statements are made in the
course of negotiations for the settlement of a dispute, in that such statements cannot be
disclosed without the consent of both parties. [12] In criminal matters an admission must be
proved to have been made voluntarily before it can be admitted into evidence. [13]
Admissions may be contained in a verbal or written statement and they may also be inferred
from conduct. For example, in S v Shepard and Others [14] it was held that a party’s payment
of an invoice was an admission that the services specified in that invoice had been
performed. However, conduct does not need to be positive to constitute an admission, and
an admission may be inferred from silence. The constitutional right to remain silent and the
presumption of innocence will no doubt severely restrict the inferences that can be drawn
from an accused’s silence. [15]
Silence in the face of an accusation may amount to an admission when it forms the basis of
a common-sense inference against a party. [16] For example, in Jacobs v Henning [17] the
plaintiff, in bringing an action for damages for seduction, led evidence that the defendant,
when confronted and accused by the plaintiff’s father of having caused his daughter’s
pregnancy, remained silent and simply lowered his head. The court found that this conduct
was sufficient corroboration of the plaintiff’s version.
The nature of the inference that can be drawn from silence will always depend on the
surrounding circumstances. [18] In the past one of the reasons for not readily drawing an
inference from the accused’s silence was the common-law right to remain silent and the
presumption of innocence which requires the prosecution to make out a prima facie before
there can be any obligation on
Page 330
the accused to speak. [19] These rights now enjoy constitutional protection in s 35(1)(a) and
s 35(3)(h) of the Constitution.
The right to remain silent can be described as the absence of a legal obligation to
speak. [20] Its underlying rationale is three-fold: (1) concern for reliability (by deterring
improper investigation) which relates directly to the truth-seeking function of the court; (2)
a belief that individuals have a right to privacy and dignity which, whilst not absolute, may
not be lightly eroded; (3) the right to remain silent is necessary to give effect to the
privilege against self-incrimination and the presumption of innocence. [21]
In the constitutional context, an issue that has been the subject of both national [22] and
international [23] debate is whether a negative inference can be drawn from an accused’s
election to exercise her right to remain silent. Although the issue of a negative inference will
only arise at the trial stage, there are significant policy issues differentiating silence prior to
trial and silence at trial.
At common law, the right to remain silent prohibited a court from drawing adverse
inferences from silence at the investigative stage of the proceedings. However, at common
law, if an alibi defence is raised for the first time at trial, then the court, in determining
whether the alibi is reasonably possibly true, may take into account that there has been no
opportunity for the state to investigate the alibi properly. [24]
The constitutionality of the common-law approach to the late disclosure of an alibi was
considered by the Constitutional Court in S v Thebus and Another. [25] In Thebus the court
also applied its mind to the permissibility of drawing an adverse inference of guilt from pre-
trial silence and the constitutionality of drawing an adverse inference as to the credibility of
the accused from pre-trial silence.
These issues were raised on appeal by one of two co-accused whose conviction on a
charge of murder and two counts of attempted murder had been confirmed by the Supreme
Court of Appeal. On arrest, the accused was warned of his right to remain silent but
nevertheless elected to make an oral statement in which he described the whereabouts of
his family at the time of the
Page 331
shooting. At trial, he testified that this statement was not intended to include himself. (If it
did, then it would have contradicted the details of his alibi defence.) After making this initial
oral statement, the accused refused to make a written statement and only disclosed his alibi
defence two years later when the matter came to trial. The alibi defence was rejected by the
trial court and the accused was convicted. The accused’s appeal to the Supreme Court of
Appeal failed and the matter then proceeded to the Constitutional Court. The accused
contended that the Supreme Court of Appeal had erred in drawing a negative inference from
the accused’s failure to disclose his alibi defence timeously. Although there was concurrence
on the ultimate fate of the appeal on this point, it attracted four separate judgments.
Moseneke J (Chaskalson CJ and Madala J concurring) emphasised the distinction between
pre-trial silence and trial silence. In terms of this distinction, the objective of the right to
silence during trial is to secure a fair trial, whereas “[t]he protection of the right to pre-trial
silence seeks to oust any compulsion to speak”. [26] Moseneke J then categorically stated that
“[i]n our constitutional setting, pre-trial silence of an accused can never warrant the drawing
of an inference of guilt” [27] as this would undermine both the rights to remain silent and to
be presumed innocent. [28] It is the ambiguity of pre-trial silence that prohibits an inference
from silence being drawn. On Moseneke J’s account, the drawing of an inference would
render the mandatory warning of the right to remain silent “a trap instead of a means for
finding out the truth in the interests of justice”. [29]
Moseneke J drew a distinction between an inference as to guilt and an inference pertaining
to credibility on the basis of a person’s pre-trial silence. The latter would not necessarily
infringe the presumption of innocence. [30] This distinction is somewhat tendentious. For
example, with respect to the late disclosure of an alibi defence, a negative inference as to
credibility will inevitably be a factor taken into consideration in the ultimate determination of
guilt or innocence. Moseneke J’s judgment also supports a distinction being drawn between
an inference as to guilt and the effect of late disclosure on the evaluation of the weight to be
accorded the alibi evidence. The latter is simply treated as an unavoidable consequence of
adversarial proceedings: late disclosure precludes the prosecution from properly
investigating the alibi defence (see also § 30 11 2 4 below). As a result, the alibi evidence
will not be fully tested and less weight must be attached to it. The effect on weight is not a
result of a negative inference as to credibility or guilt. It is simply a product of the evaluation
of evidence in the context of an adversarial system. Nevertheless, Moseneke J appears to
equate this procedural consequence with an inference as to credibility and argues that
drawing an inference as to credibility amounts to a compulsion to speak and consequently
limits the accused’s right
Page 332
to silence. Moseneke J further noted that it is constitutionally mandatory to warn accused of

their right to remain silent but that it is not mandatory that they be warned that their silence
may possibly be used against them and that their silence will be taken into account in
determining the weight to be accorded an alibi. Taking into account the limited use of an
inference based on the late disclosure of an alibi, he concluded that the common-law rule is
a justifiable limitation of the right to remain silent and that late disclosure of an alibi may
have consequences which “can legitimately be taken into account in evaluating the evidence
as a whole”. [31] Moseneke J acknowledged that “an election to disclose one’s defence only
when one appears on trial is not only legitimate but also protected by the Constitution”. [32]
However, he then held that this protection would not preclude cross-examination on the
accused’s election to remain silent as such cross-examination would go to credit. Such cross-
examination “would not unjustifiably limit the right to remain silent” [33] provided it was
conducted with due regard to the dictates of trial fairness. [34]
Goldstone and O’Regan JJ (Ackermann and Mokgoro JJ concurring) concurred in the result
but dissented in so far as they reached the conclusion that drawing an adverse inference
from the first appellant’s failure to timeously disclose his alibi was an unjustifiable
infringement of the right to remain silent. In considering the rationale for prohibiting
inferences from silence, they rejected the argument that it is unfair to place the accused in a
position where he will suffer adverse consequences whatever his election, on the basis that
hard choices were unavoidable in the adversarial process. [35] But they went no further than
suggesting that it is inevitable that there may be adverse consequences from exercising the
right to remain silent. They avoided concluding that silence itself is an item of evidence.
Goldstone and O’Regan JJ also rejected the argument that drawing an adverse inference
infringes the presumption of innocence because it relieves the state of part of its burden of
proving guilt beyond a reasonable doubt. They argue that the Constitution “does not
stipulate that only the state’s evidence may be used in determining whether the accused
person has been proved guilty”. [36] However, taking the historical record of policing into
account, they found that the prohibition on adverse inferences was justified in so far as it
protected accused persons from improper police questioning and procedures. [37] They held
that this rationale does not extend to silence in court. They also endorsed the view that it is
unfair to warn accused persons of their right to remain silent in a formulation that implies
that there will be no penalty for silence, and then to permit a court to draw a negative
inference from that silence. [38] Although it is legitimate for an accused to be compelled to
make a
Page 333
choice, that choice must be an informed choice and “an accused person needs to understand
the consequences of remaining silent”. [39] The warning also constitutes a barrier to drawing
an adverse inference in that in many cases it “will render the silence by the accused
ambiguous”. [40] Goldstone and O’Regan JJ rejected the distinction between adverse
inferences going to guilt and those going to credit. Although they might be conceptually
different, the two justices wrote, “the practical effect of the adverse inference to be drawn
for the purposes of credit, namely, that the alibi evidence is not to be believed, will often be
no different to the effect of the inference to be drawn with respect to guilt, namely that the
late tender of the alibi suggests that it is manufactured and that the accused is guilty”. [41]
They also rejected Moseneke J’s conclusion that it is constitutionally permissible to cross-
examine accused on their election to remain silent. First, an accused should not be required
to explain why she chose to exercise a constitutional right; [42] and, second, it would be
unfair in the light of the constitutionally mandated warning in respect of silence. [43]
However, the two justices concluded that if the warning was revised, an adverse inference
from the late disclosure of an alibi would constitute a justifiable limitation on the right to
remain silent. [44]
Yacoob J, although concurring in the result, took a somewhat different approach. He
rejected the distinction between trial and pre-trial silence and held that s 35(1)(a) and s 35
(3)(h) “represent a continuum”. [45] He identified the purpose of the right to silence as being
to “ensure that people are protected from self-incrimination in the process of police
interrogation”. [46] However, the ultimate objective of the right to remain silent, Yacoob J
held, is to ensure a fair trial. Furthermore, he wrote that “[the right to a fair trial] is not
limited to ensuring fairness for the accused. It is much broader. A court must also ensure
that the trial is fair overall, and in that process, balance the interests of the accused with
that of society at large and the administration of justice.” [47] Because this broad concept of
trial fairness cannot, presumably, be found in s 35(3), Yacoob J locates it in s 35(5). Section
35(5) confers a discretion on the courts to admit evidence even if it was unconstitutionally
obtained provided that it is fair to do so and its admission is not detrimental to the interests
of justice. [48] Consequently, Yacoob J held that provided that the drawing of inferences from
the exercise of the right to remain silent, or the interrogation of such exercise on cross-
examination, does not ultimately render the trial unfair, there is no basis on which to forbid
the drawing of such inferences. He reasoned as follows:
Page 334
“In the exercise of the duty to ensure a fair trial, it would become necessary to balance the rights of
the accused, the rights of the victim and society at large. The right to silence of the accused could well
become implicated in this balancing exercise when the judicial officer makes decisions concerning the
admissibility of evidence, the allowing of cross-examination, as well as the drawing of inferences.
Indeed inferences arising out of silence cannot ordinarily be drawn unless there is evidence of the
silence of the accused and evidence of the circumstances surrounding the silence. Any investigation
around the accused’s silence cannot be said to infringe his right to silence unless the trial is thereby
rendered unfair. The same goes for all decisions concerning admissibility of evidence as well as the
use of silence in the drawing of inferences. The fairness of the trial as an objective is fundamental and
key. The right to silence can only be infringed if it is implicated in a way that renders the trial unfair.
It is a contradiction in terms to suggest that the right to silence has been infringed if it is implicated in
a way that does not compromise the fairness of the trial but enhances it.” [49]
The reasoning in this passage is difficult to sustain. First, s 35(5) only becomes applicable
once it has been established that evidence has been unconstitutionally obtained. In respect
of the right to remain silent, it first needs to be established whether the right to remain
silent in s 35(1)(a) or s 35(3)(h) has been infringed. The right to remain silent attaches only
to arrested and accused persons and does not embrace the rights of the victim and society
at large. The broader notion of trial fairness may possibly be read into s 35(5) — but is
precluded at any earlier stage of the inquiry. Secondly, by conflating the right to silence and
the right to a fair trial at all stages, Yacoob J implies that the only remedy for infringing the
right to remain silent is the exclusion of evidence. An arrested person who is subjected to
improper police questioning that infringes her right to remain silent must surely (at least
theoretically) be able to seek relief for the infringement of this pre-trial right prior to going
to trial. Undue emphasis on trial fairness may result in insufficient attention being given to
the underlying relationship between the right to remain silent and the right to dignity.
However, much is to be said for the contextual approach taken by Yacoob J in respect of
the appropriate warning to be given to arrested persons. He suggests that a more complex
warning as to the consequences of remaining silent may well “tilt the balance in favour of
getting [a] person to speak” [50] and that such a consequence may not necessarily be fairer
than the constitutionally prescribed warning that “encourages silence on the part of an
arrested person”. [51] As a result, Yacoob J concluded that the more limited warning did not
result in any unfairness to the appellant. [52] Contextualising these particular constitutional
rights might also lead to the conclusion that a more complex warning will make little
difference to the fairness of the trial: it is very likely
Page 335
that neither warning will be properly understood. Therefore adverse inferences should not be
permitted in these circumstances as silence in response to an incomprehensible warning
would inevitably be too ambiguous to sustain an inference. [53]
Given the divergent judgments, it is difficult to state, with any clarity, what the law now
is. Ten judges heard the case: surprisingly, only two of the 10 justices found that it was
unnecessary to determine whether the failure to disclose an alibi defence to the police could
attract an adverse inference — on the facts of the case the appellant had not exercised his
right to silence and after being duly warned had responded to a question concerning his
whereabouts. [54] In effect, the court treated the matter as a previous inconsistent
statement. Seven of the 10 judges held that it was constitutionally impermissible to draw an
adverse inference as to guilt from the accused’s pre-trial silence. However, four of the seven
judges indicated that if the constitutionally mandated warning was rephrased so as to
apprise arrested persons of the consequences of remaining silent, an adverse inference for
pre-trial silence might be constitutionally justifiable. Three other judges held that although
an adverse inference as to guilt was not justifiable, an adverse inference as to credibility was
a justifiable limitation on the right to remain silent and that it was permissible to cross-
examine the accused on his failure to disclose an alibi timeously. Four justices expressly
rejected this conclusion. All eight of the judges dealing with the question of adverse
inferences would appear to concur with the view that there may well be acceptable negative
consequences that attach to remaining silent. [55] It would seem, therefore, that the
common-law position remains largely intact and that it is constitutionally permissible to take
the late disclosure of an alibi into account in determining what weight should be attached to
the alibi defence (see also § 30 11 2 4 below).
As to the drawing of inferences from pre-trial silence, Moseneke J makes it categorically
clear that negative inferences are constitutionally impermissible. On the other hand, the
concurring judgment of Goldstone and O’Regan JJ suggests that such inferences might be
constitutional if arrested persons are warned of the consequences of their silence. One
conclusion that would be consistent with both judgments is that the ambiguity of silence
(and the impermissibility of drawing any inference) would remain if an arrested person did
not understand the revised warning. Such a restatement of the law would make it highly
unlikely that a negative inference could ever be drawn from silence at any stage where an
arrested person or accused person is not represented by counsel.
The position as regards inferences from trial silence likewise remains unclear. [56] At
common law, the prosecution could refer to the accused’s silence
Page 336
once a prima facie case had been established. Clear authority exists for the proposition that,
in certain circumstances, an accused’s refusal to testify, when the prosecution had
established a prima facie case, could be a factor in assessing guilt. [57] The Constitutional
Court has not expressly ruled on whether drawing an adverse inference from silence at trial
would pass constitutional muster. However, it has on more than one occasion pronounced
that trial silence may have such untoward consequences. In Thebus the court wrote: “if
there is evidence that requires a response and if no response is forthcoming . . . the Court
may be justified in concluding that the evidence is sufficient, in the absence of an
explanation, to prove the guilt of the accused”. [58]
The precise nature of the negative consequences of remaining silent at trial is not
altogether clear and there appear to be two options: (a) an adverse inference as to
credibility or guilt; (b) a conclusion that in the absence of contradictory evidence the
evidence is sufficient to convict. In (a) silence becomes an item of evidence whereas in (b)
the negative consequence is simply an unavoidable possibility in the final evaluation of
evidence. The problem with (a) is that to use silence as an item of evidence against the
accused may well infringe the right to remain silent. To date the Constitutional Court has
avoided pronouncing upon the constitutionality of using trial silence as an item of evidence.
However, the language employed by Ponnan JA in S v Monyane and Others [59] would
suggest that the Supreme Court of Appeal is prepared to expand the ambit of negative
consequences to include using silence as an item of evidence. This is clearly suggested in the
following passage.
“Secondly, somewhat surprisingly, the fourth appellant did not testify. The presence of his vehicle and
the evidence of the second appellant linked him to the crime scene. In those circumstances, a
reasonable expectation existed that, if there were an explanation consistent with his innocence, it
would have been proffered. He, however refused to rise to the challenge. For him to have remained
silent in the face of the evidence was nothing short to damning.” [60]
It appears that in the circumstances of the case there was sufficient evidence to establish
guilt beyond reasonable doubt without using silence as evidence.
Another difficulty that arises with drawing inferences from trial silence is the following:
what is the inference to be drawn if the accused remains silent on the advice of counsel? In
these circumstances it would very difficult for any court to conclude that an inference to
credibility or guilt was the only reasonable inference — the consequence outlined in (b)
above would not necessarily be precluded. This issue was skirted by the Supreme Court of
Appeal in S v Tandwa and Others [61] in which accused 1 alleged that his right to a
Page 337
fair trial had been compromised as a result of incompetent legal representation. The basis of
this complainant was that counsel had advised accused 1 not to testify. The court — taking a
similar approach to that in Monyane [62] — held that silence could, depending on the
circumstances, give rise to an inference of guilt, ie, silence could be used as an item of
evidence against the accused in establishing guilt beyond reasonable doubt and indeed it
was such an inference that led to the accused’s conviction. The court did not explain how it
discounted the undisputed fact that the accused remained silent on counsel’s advice. That
being so, it is difficult to understand how an inference as to guilt could be the only
reasonable inference in the circumstances.
For further discussion of inferences from trial silence see § 30 9 below.

In certain circumstances an admission may be inferred from the failure to answer a letter.
However, as responding to a letter requires a greater degree of positive conduct than an oral
denial, the courts are more reluctant to draw such an inference. For example, in R v
West, [63] where the accused had failed to respond to a letter from the complainant alleging
that he was the cause of her pregnancy, the court held that an acknowledgement of
paternity could not be inferred from his silence.
In each case, before an admission can be inferred, it must be established in the light of
the surrounding circumstances that it would be reasonable to draw the inference that the
party did not respond because he acknowledged that the contents of the letter were true.
Thus in Mcwilliams v First Consolidated Holdings (Pty) Ltd [64] Miller JA held:
“I accept that ‘quiescence is not necessarily acquiescence’ (see Collen v Rietfontein Engineering Works
1948 (1) SA 413 (A) at 422) and that a party’s failure to reply to a letter asserting the existence of an
obligation owed by such party to the writer does not always justify an inference that the assertion was
accepted as the truth. But in general, when according to ordinary commercial practice and human
expectation firm repudiation of such an assertion would be the norm if it was not accepted as correct,
such party’s silence and inaction, unless satisfactorily explained, may be taken to constitute an
admission by him of the truth of the assertion, or at least will be an important factor telling against
him in the assessment of the probabilities and in the final determination of the dispute. And an
adverse inference will the more readily be drawn when the unchallenged assertion had been preceded
by correspondence or negotiations between the parties relative to the subject-matter of the
assertion.”

A statement made in the presence of a party may be put before the court in order that the
court may assess whether the party’s response to hearing the statement amounted to an
acceptance of its truth. It is not necessary for the party to assent to the statement for an
inference to be drawn, as agreement as to the truth of the statement may be inferred from
silence. An inference may even be drawn from a denial if, for example, the court finds that
the party’s demeanour contradicts the denial.
Page 338
Prior to the enactment of the Bill of Rights such an inference from silence was permitted in
restricted circumstances in criminal trials. For example, in Rex v Jackelson [65] the accused
was charged with contravening the Transvaal Liquor Ordinance. A witness, when found in
possession of the illegally supplied liquor and asked by a detective where she got the liquor,
pointed to the accused, but the accused did not assent to the truth of this “statement”. It
was argued by the defence that this evidence should not be admitted unless the accused
assented to the statement at the time that it was made. The court held that the evidence
“was admissible in reference to the demeanour of the accused at the time”, but not as proof
of the correctness of the fact stated. [66] Whether the drawing of such an inference is
constitutionally tenable is a matter that is still to come before the courts.
In certain circumstances the failure to cross-examine may also constitute an informal
admission. The appellant in S v Mathlare [67] had been convicted of rape in a regional court.
On appeal it was alleged that the prosecution had failed to present formal evidence to the
effect that the blood samples identifying the appellant as the father of the child conceived as
a result of the rape were taken from himself, the child and the complainant. During the trial
the source of the blood samples had not been raised in cross-examination, the cross-
examination having focused on the reliability of the analysis of the samples and the
conclusions drawn from such analysis. The appeal court held that the tenor of the defence
cross-examination, in the particular context of the trial, constituted an informal admission of
the source of the blood samples. In effect the failure to challenge the admissibility of the
evidence at trial precluded the appellant from challenging its admissibility at the appeal
stage. [68]
As a general rule an admission is not admissible against anyone except its maker. [69] A
statement made out of court, by a person who is not a party to the suit, is excluded because
it is hearsay in nature. [70] It follows that an extra-curial statement will be admissible only if
it can qualify as an exception to the hearsay rule. [71] However, it has been argued that there
are other reasons for excluding vicarious admissions and therefore such statements should
not be admitted merely because they fall to be admitted as an exception to the hearsay rule.
Page 339
Prior to Commissioner for Inland Revenue v Whitfield [72] it was widely accepted that
certain exceptions existed in terms of which an admission of a third person (X) could be
proved against a party (Y) to litigation. These exceptions are referred to as vicarious
admissions. There are three main categories of vicarious admissions. First, where X has
implied or express authority to make a statement on behalf of Y the admission may be
proved against Y. Second, where a litigant adopts the statement of a third party as her own
and ratifies it. Thirdly, the statement may be admitted where X and Y share a privity or
identity of interest. [73] For example, in Botes v Van Deventer [74] the plaintiff claimed
damages for loss incurred as a result of a lorry colliding with his racehorse. One of the issues
to be decided by the court was whether an admission made by the driver of the defendant’s
lorry (the driver being the defendant’s employee) was admissible against the defendant. The
driver had made a statement to a police constable in which he admitted that his negligence
was the cause of the accident. However, the driver was not available to give evidence at the
trial. The court held the statement to be admissible. It’s reasoning can be summarised as
follows: an employer is vicariously liable for a delict committed by his employee acting in the
course and scope of his employment. The liability of the employer is identical to the liability
of the employee. Consequently, an employee’s statement pertaining to the subject-matter of
the liability is admissible against the employer.
However, the relevance of these exceptional categories in terms of which vicarious
admissions are admissible needs to be reassessed following the Appellate Division’s decision
in Mdani. [75] In this case the evidence in issue consisted of extra-curial statements made by
an insured driver, who was not party to the suit, which was tendered against a third-party
insurer. The court a quo found the evidence to be inadmissible in accordance with its
interpretation of Union and South West Africa Insurance Co Ltd v Quntana NO: [76] not only
are such statements inadmissible because they are hearsay in nature but also because of
their vicarious nature. Therefore, by application of s 3(2) of the Law of Evidence Amendment
Act, [77] the fact that s 3(1) of the Act permits hearsay to be admitted in certain
circumstances does not enable the court to override the rule that vicarious extra-curial
admissions and statements are generally inadmissible. On appeal the court held that it was
quite clear from the judgment in Quntana’s case that the statement in question was held to
be inadmissible on a single ground, viz that it was hearsay. [78] This approach was endorsed
by the Supreme Court of Appeal in Makhathini v Road Accident Fund. [79]
Page 340
It would therefore appear that the admissibility of extra-curial admissions made by a

person who is not a party to the suit will depend solely on whether the statement is
exceptionally admissible as hearsay in terms of s 3(1) of the Law of Evidence Amendment
Act. [80] However the common-law justifications for admitting such statements may still be a
factor to be taken into account by the court in the exercise of its discretion to admit hearsay
in the interests of justice. [81]
Zeffertt, although acknowledging the above implications of Mdani, criticises the decision
on the following basis: [82]
“Inadmissible admissions are categorized as an inadmissible species of hearsay. When a vicarious
admission is rejected for failing to meet the requirements of admissibility (for instance, that there
must either be authorization or privity of interest or obligation if a vicarious admission is to be
admissible) it is excluded as hearsay but there are other reasons that warrant the exclusion . . . It
does not follow, therefore, that because evidence in Quntana was excluded as hearsay, that the
theoretically true basis of its exclusion was not, in reality, the vicarious-admission rule.”
Paizes shows a similar disquiet and submits that the vicarious admission rule still has a role
to play in the law of evidence. He argues that vicarious admissions are also excluded
because they are irrelevant and even though such an admission may pass the hearsay test,
it should still be excluded if it is not sufficiently relevant: [83]
“Vicarious admissions constitute, technically, an exception to the rule against hearsay. Since it is an
exception that has not been accorded any specific statutory recognition, it may be thought that the
rules governing their admissibility have been abolished — along with the other ‘common-law
exceptions’ — by the repeal of s 216 and the enactment of s 3 of the Law of Evidence Amendment Act
45 of 1988. This may not be entirely true, however, since these rules are not the product of the
hearsay problem alone. An admission made by A is, for instance, normally irrelevant when tendered
against B, and the categories of admissible vicarious admissions are exceptional instances when such
admissions are relevant. It could be argued, too, that the principle that an admission should only be
admissible against its maker is a salutary policy which warrants independent recognition apart from
any considerations regarding hearsay. It may be, therefore, that the rules governing the admissibility
of vicarious admission have, to some extent, survived the enactment of s 3 and the repeal of the old s
216 by virtue of the provisions of s 210 and s 235. It may be simpler, however, to put aside labels
which have outlived their usefulness and to view the admissibility of such admissions purely in the
light of the general principles relating to relevance and hearsay . . .” [84]
The courts have taken a different approach where a party seeks to have admitted against a
third party an admission made in investigatory procedures under subpoena. The Supreme
Court of Appeal in
Page 341
O’Shea NO v Van Zyl and Others NNO [85] made no reference to the hearsay rule in holding
that the admission of a trustee (O’Shea), testifying in his independent capacity under
subpoena, could not be held against the trust. The O’Shea statement did not fall under any
exception to the rule excluding vicarious admissions due to the fact that trustees are
required to “act jointly unless the trust deed provides otherwise”. [86] There was no such
provision in the trust deed for the O’Shea family trust. The court further endorsed the
judgment of Harcourt J in Rhodesian Corporation Ltd v Globe and Phoenix Gold Mining Co
Ltd [87] in which the court noted that a witness testifying under oath cannot as a general rule
be said to be representing his principal in the witness box. His testimony is not given during
the course of his employment and his employer has no control over him whilst he is in the
witness box.
Unlike extra-curial statements, statements made at investigatory procedures may be
compelled, they must also be distinguished from prior proceedings between the same parties
as in investigatory proceedings the third party against whom the admission is sought to be
admitted will not have an opportunity to be present and to cross-examine the maker of the
statement.
The Supreme Court of Appeal held in S v Litako and Others [88] that it had erred in S v
Ndhlovu and Others [89] in admitting admissions by a co-accused against other co-accused. It
found that the rationale underlying the common-law prohibition against admitting an extra-
curial admission by one co-accused against another had not been over-ridden by s 3 of the
Law of Evidence Amendment Act 45 of 1988. In Ndhlovu the court also paid attention to the
rationale underpinning the common-law rule: it considered the cautionary rule and other
dangers of unreliability but found in the circumstances that there were sufficient safeguards
to justify the admission of the co-accused’s statements in the interest of justice.
The effect of the Litako judgment is to reinstate a rigid category of inadmissible evidence
irrespective of its relevance and reliability on the basis that the inherent dangers in
admitting an extra-curial admission by one accused against another will always be too great
to justify admission in the interests of justice. [90]
The correctness of the decision in Litako was confirmed by the Constitutional Court in S v
Mhlongo; S v Nkosi. [91] Theron AJ, writing for a unanimous Constitutional Court, relied
heavily on s 9(1) of the Constitution, which provides that everyone is equal before the law
and entitled to equal protection and benefit of the law. Was it constitutionally permissible to
distinguish
Page 342
between a co-accused implicated by an admission (by receiving the admission into evidence)
and a co-accused implicated by a confession (by excluding the confession)? Theron AJ
held: [92]
“The differentiation between accused implicated by confessions versus admissions cannot be lawfully
sustained. It is not designed to achieve any legitimate purpose. It is an irrational distinction which
violates section 9(1). It cannot be saved by the limitations clause contained in section 36 of the
Constitution because this limitation on the right to equality before the law is not ‘reasonable and
justifiable in an open and democratic society based on human dignity, equality and freedom’ . . . Nor
did the State seek to justify this limitation . . . The interpretation adopted in Ndhlovu, that extra-curial
admissions are admissible against co-accused in terms of section 3(1)(c) of the Evidence Amendment
Act, creates a differentiation that unjustifiably limits the section 9(1) right of accused implicated by
such statements. The pre-Ndhlovu common law position that extra curial confessions and admissions
by an accused are inadmissible against co-accused must be restored. As a result of this finding, it is
not necessary to consider the applicants’ additional argument that the admission of extra-curial
statements of an accused against a co-accused offends against the right to a fair trial.”
Theron AJ furthermore agreed with the reasoning of the Supreme Court of Appeal in Litako,
namely that s 219A of the CPA “does not contemplate extra-curial admissions being
tendered as evidence against anyone else . . .” [93] Section 219A is discussed in § 17 9
below.

Although Mdani [94] and Makhathini [95] should be viewed as abolishing the exceptions to the
vicarious admissions rule, the categories of exception remain relevant in that they will be a
factor taken into consideration in the exercise of the court’s discretion to admit hearsay
evidence.
Statements made by an agent within the scope of his authority may be admitted against his
principal. Admissions by employees are similarly admissible. However, where the admission
relates to a matter on which the employee and employer have incurred joint liability the
statement will be admitted on the basis that the employee and employer have an identity of
interest. [96] Agents are rarely specifically authorised to make admissions, but authorisation
will be established if it is shown that the statement was one of a type or class which the
agent was expressly or impliedly authorised to make.
For example, in Kirkstall Brewery Co v Furness Railway Co Ltd, [97] in which the plaintiff
claimed damages for the loss of a parcel, the court held that a statement made by the
station master to a policeman that the goods had been
Page 343
stolen by a porter was admissible in evidence against the railway company as the station
master had the requisite authority to make such a communication to the police.
At common law directors and servants of companies are in the same position as any other
agent. However, the position has been altered by statute with regard to criminal proceedings
instituted against a corporate body. Section 332(3) of the CPA provides:
“In criminal proceedings against a corporate body, any record which was made or kept by a director,
servant or agent of the corporate body within the scope of his activities as such director, servant or
agent, or any document which was at any time in the custody or under the control of any such
director, servant or agent within the scope of his activities as such director, servant or agent, shall be
admissible in evidence against the accused.” [98]
16 5 1 2 Partners
An admission made by a partner concerning partnership affairs is admissible against his
partners. Partners are subject to the same principles applicable to agents. However, as a
consequence of the contractual liability of partners, admissions made after the dissolution of
the partnership may be admitted against ex-partners if they pertain to a transaction which
occurred before the dissolution of the partnership. [99]
An admission made at trial by a legal representative is admissible against the client. [100]
However, it must first be established that the legal representative was properly instructed.
That a legal representative has general authority to act on behalf of his client will often be
inferred from the surrounding circumstances. [101] It is only admissions of fact that are
vicariously admissible and not expressions of opinion on the evidence adduced. [102]
16 5 1 4 Spouses
An admission by one spouse is generally inadmissible against the other spouse unless it
relates to the joint interest of the spouses in the community estate, [103] or in a deferred
sharing of profits under the accrual system introduced by the Matrimonial Property Act. [104]
However, the court may find on the facts that an express or implied agency has been
created and apply the principles pertaining to agents.
Page 344
16 5 1 5 Referees
Statements made by someone to whom a party has referred others for information may be
proved against him as an admission concerning the subject-matter of the reference. For
example, in Van Rooyen v Humphrey, [105] an action for damages resulting from a fire, a
dispute arose as to whether the fire had taken place on the appellant’s instructions. Evidence
that the appellant had instructed the respondent to ask two of the appellant’s employees
how the fire occurred, and their answers, were held to be admissible against him. [106]

If A, B and C are engaged in a common purpose, and A makes a statement in furtherance of
that common purpose, it will be admissible against B and C. [107]
Zeffertt, Paizes & Skeen note: [108] “Such acts or statements are sometimes described as
‘executive’ to distinguish them from ‘narrative statements’, which are not made in
furtherance of the common purpose but, rather, as an account or admission of past events,
in which case they are not admissible against anyone other than the maker of that
statement.”
R v Blake and Tye [109] provides an example of the distinction drawn between executive
and narrative statements. The accused were charged with a conspiracy to pass goods
through customs without paying duty. Tye had made entries incriminating both himself and
Blake in two books. The entry in one book was a necessary part of the fraud, whereas the
entry in the other book was solely a record for his own private purposes. It was held that the
first entry was admissible against Blake as something done in the furtherance of the
common purpose (an executive statement), but the second entry merely constituted
evidence against Tye because it did not advance the common purpose (a narrative
statement).
Before executive statements can be admitted into evidence the conspiracy and the
accused’s participation in it must be proved. [110] In deciding these preliminary issues the
court is permitted to look at the statements of the alleged conspirators. [111] The Appellate
Division in S v Ffrench-Beytagh [112] held that “it is immaterial whether the existence of the
conspiracy or the participation of the defendants be proved first, although either element is
nugatory without the other”. There must be some evidence aliunde establishing the
existence of the common purpose before the relevant statements can be considered at the
end of the case. [113]
Page 345
Zeffertt, Paizes & Skeen comment that there is no reason why this exception should be
confined to criminal cases as “an executive act or declaration does not depend on the kind of
proceedings for its relevance”. [114]

Where two people share a privity or identity of interest or obligation, statements by one of
them will be admissible against the other. [115] Hoffmann & Zeffertt make the following
distinction between privity and identity: [116]
“Generally speaking privity exists between persons who have successive interests in the same
property, and in the case of an owner and predecessor in title. Identity exists between persons who
have concurrent joint interests or liabilities. This rule originates in the law of correality of obligation,
the theory being that there is only a single right or obligation enforceable by or against all or any of
the parties jointly interested and which may therefore be affected by the acts or statements of any
one of them.”
Schmidt, acknowledging the difficulties of establishing whether privity or identity exists,
suggests that the case law is the best guide in determining the existence of privity or
identity. [117]
The statement of a predecessor in title of a party to litigation is admissible against that
party, provided that it relates to the title and was made during the existence of the
predecessor’s interest. [118] For example, in Head v Du Toit [119] the plaintiff sought a
declaration to the effect that he was entitled to free and undisturbed use of a road across
the defendant’s property on the basis that such right had been acquired by prescription. The
court held that evidence of the defendant’s predecessor in title, to the effect that he
recognised the existence of such a right in favour of a predecessor of the plaintiff, was
admissible.
In terms of substantive law an employer is vicariously liable for a delict committed by his
employee in the course of his employment. It follows from this rule of substantive law that
an employee’s statement will be admissible against the employer. [120]
When litigation is conducted by a nominal party an admission by the “real” party may be
proved against the nominal party. For example, where a guardian litigates on behalf of a
child an admission made by that child may be proved against the guardian. [121]
Page 346

The general rule in civil matters is that an admission will be accepted into evidence provided
that it is relevant. However, admissions included in a statement by a person involved in a
dispute and which are genuinely aimed at achieving a compromise are protected from
disclosure. Such admissions may only be accepted into evidence with the consent of both
parties.
The rationale of the rule is based on public policy which encourages the private settlement
of disputes by the parties themselves. [122] Clearly, parties would be reluctant to be frank if
what they said might be held against them in the event of negotiations failing. [123]
It is the habit of legal representatives to preface such statements with the words “without
prejudice”, meaning that the statement is made without prejudice to the rights of the person
making the offer in the event of the offer being refused. [124] However, the words “without
prejudice” do not by themselves protect the statement from disclosure. If the
communication constitutes a bona fide attempt to settle the dispute, it will be
“privileged” [125] even though it has not been prefaced with the words “without
prejudice”. [126] Conversely, even if the words are invoked, the statement may still be
disclosed if it was not made during the course of genuine negotiations. [127] Before the
“privilege” will prevail there must be some connection with or relevance to the settlement
negotiations. [128]
A “without prejudice” offer will only be protected from disclosure if it is made in good
faith. If the statement contains statements which are criminal or fraudulent, it will not
automatically be presumed to be made in bad faith, and the criminal or fraudulent content
will only be relevant to admissibility if it
Page 347
tends to show bad faith. [129] On the other hand, even if a statement is made in good faith, it
will be admissible if the attempt at settlement constitutes an act of insolvency [130] or an
offence or an incitement to commit an offence, provided that the statement is tendered to
prove the commission of the act. If a statement contains an offer that is accompanied by an
unequivocal and unconditional acknowledgement of liability, it will not be protected from
disclosure. [131]
If the statement is accompanied by a threat of litigation should the offer not be accepted,
it will remain privileged since such a threat is implicit in every offer of compromise. [132]
However, where an offer contains a threat which is relevant to establishing that the offer
was not bona fide, evidence of both the offer and threat will be heard by the court. For
example, in Davenport v Davenport [133] the defendant, in a letter marked “without
prejudice”, warned the plaintiff (his wife) that unless she withdrew a divorce application he
would ensure that criminal proceedings would be instituted against her. The court held that
the letter was admissible.
Once a settlement is reached the “privilege” ceases to exist, the rationale for its existence
having fallen away. [134] However, if the same or some connected issue is later disputed, the
earlier “without prejudice” statement will remain protected from disclosure. [135]

In § 16 4 1 above it was pointed out that an extra-curial admission of an accused is
inadmissible against a co-accused and that s 219A of the CPA does not contemplate an
extra-curial admission being received against anybody else other than its maker. The
admissibility of an accused’s extra-curial admission (also referred to as an extra-judicial
statement to indicate it was made out of court) is governed by the common law and s 219A.
At common law an extra-judicial statement made by an accused may not be admitted into
evidence unless it is proved to have been made freely and voluntarily. [136] In this context
the words “freely and voluntarily” have a technical and restricted meaning and an admission
will be found to be involuntary only if it has been induced by a promise or threat proceeding
from a person in authority. [137]
Page 348
Part of s 219A of the CPA provides:

“Evidence of any admission made extra-judicially by any person in relation to the commission of an
offence, shall, if such admission does not constitute a confession to that offence and is proved to have
been voluntarily made by the person, be admissible in evidence against him at criminal proceedings
relating to that offence . . .”
In S v Yolelo [138] the Appellate Division held s 219A merely codified the common law as
regards the meaning of voluntariness in relation to admissions. [139] As the voluntariness of
an admission will be compromised only if it has been induced by a promise or threat
emanating from a person in authority, it is necessary to look more closely at the meaning of
these terms.
A threat or a promise will be found to have been made if a person, by means of words or
conduct, indicates to the accused that they will be treated more favourably if they speak, or
less favourably if they don’t. Whether such a threat or promise was made will be a question
of fact in each case. [140] Proof of such threat or promise does not necessarily establish the
absence of voluntariness. The test of whether the threat or promise actually affected the
accused’s freedom of volition is subjective. [141] It follows from the subjective nature of the
test that the threat or promise must be operative on the mind of the accused at the time
that the admission is made. [142] This subjective test makes it impossible to specify precisely
what will constitute a threat or a promise. Clearly, an admission induced by violence or a
threat of violence will not be admissible, nor will an admission made in response to a
promise of lenient treatment be admitted. However, an admission made under police
interrogation will not necessarily be inadmissible. It will be excluded only if on the facts it
appears that it was induced by a threat or promise. [143] Similarly, whether or not an
exhortation or invitation to speak amounts to a threat or a promise negating volition will
depend on the surrounding circumstances. [144]
A threat or promise will not be relevant unless it emanates from a person in authority. A
person in authority is “anyone whom the prisoner might reasonably suppose to be capable of
influencing the course of the prosecution”. [145] Rose-Innes J, in S v Robertson en
Andere, [146] commented that the requirement that duress must flow from a person in
authority is a concept to be found in
Page 349
English law and is not referred to in the CPA. He held that for the purposes of the South
African law a person in authority is “enigiemand, of hy ’n amptelike posisie beklee al dan nie,
[met] ’n mate van outoriteit, bv dié van ’n vader teenoor ’n seun, of ’n oom teenoor ’n neef
of ’n werkgewer teenoor ’n werknemer”. [147] Having broadened the definition of a person in
authority, the court found that the accuseds’ admissions were inadmissible as they had been
intimidated into making them by an unidentified member or members of a prison gang. [148]
Whether the court was entitled to take this approach is a question for debate.
In S v Peters [149] Jones J rejected this extended definition on the basis that the court had
not properly distinguished the requirements of admissibility for confessions from those
pertaining to admissions. [150] He concluded that as the threats in question had not emanated
from persons who could influence the prosecution, the admission could not be said to be
involuntary.
Accepting that the court in Peters’ case was bound by Appellate Division authority to the
effect that the common-law meaning of “voluntarily” is retained for the purposes of s 219A,
and is restricted to a promise or a threat emanating from a person in authority, [151] the
question that remains is whether the court was correct in its restrictive interpretation of the
term “person in authority”.
Authority for “defining a person in authority” as a person “whom the prisoner might
reasonably suppose to be capable of influencing the course of the prosecution” appears to
derive from two sources, namely Cross On Evidence [152] and R v Wilson; R v Marshall-
Graham. [153] However, no such proposition is to be found in the case of R v Wilson; R v
Marshall-Graham, in which Lord Parker CJ held that there was no authority clearly defining
who constituted a person in authority and declined to make any such definition. [154]
Furthermore, in the sixth edition of Cross [155] it is noted that the House of Lords in
Commissioners of Customs and Excise v Harz [156] clarified the old rule and “rejected the
view that the inducement or threat need relate to the prosecution”.
Page 350
In the absence of Supreme Court of Appeal authority to the contrary, there would appear
to be no reason for further restricting the concept of “person in authority” to mean only a
person capable of influencing the course of the prosecution. Whether the purpose of the
admission requirements is to ensure reliability and/or to discourage improper police
behaviour, 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. [157]
Van Rooyen AJ in S v Buda and Others [158] appears to have extended the requirements of
voluntariness to include a full understanding of the implications of making an admission.
There does not seem to be direct authority on this point and it would seem to require
something more than an understanding by the accused that anything he says may be used
against him. As the intention to make an incriminating statement has never been an
admissibility requirement for informal admissions [159] it is unlikely that the courts will follow
the approach taken in Buda.
Section 35(1)(c) of the Constitution may well provide the courts with the opportunity for
departing from the artificial and technical common-law interpretation of the requirement of
“voluntariness”. Section 35(1)(c) reflects the accused’s pre-trial privilege against self-
incrimination. It provides that an arrested person shall have the right “not to be compelled
to make any confession or admission that could be used in evidence against” him or her.
There is nothing in s 35(1)(c) to suggest that admissions and confessions should be
treated differently. Section 217 of the CPA [160] requires a confession to be made freely and
voluntarily whilst the maker is in his sound and sober senses and without having been
unduly influenced thereto. In Rex v Barlin [161] Innes CJ held that the requirement of undue
influence pertaining to confessions was elastic and went beyond the ambit of voluntariness,
which was restricted to an inducement, threat or promise coming from a person in authority.
It can be argued that the constitutional entrenchment of the principles of due process and
the right to a fair trial in s 35(3) as well as the wording of s 35(1)(c), which draws no
distinction between admissions and confessions, favours an interpretation of voluntariness
which is indistinguishable from undue influence.
In S v Agnew and Another [162] Foxcroft J questioned the artificial distinction drawn
between confessions and admissions. He noted that historically, one of
Page 351
the reasons for the distinction was the assumption that admissions need not be guarded
against to the same extent as confessions. [163] However, in many instances admissions
could be as damaging as confessions. [164] The court held: “If full effect is given to the maxim
that no one should be obliged to incriminate himself, then it is difficult to understand how
incriminating statements contained in confessions should be treated differently from words
amounting to admissions only.” [165] Splig J in S v Mangena and Another [166] noted the
fragility of the distinction between admissions and confessions and the ease with which the
recording of a statement could be manipulated so as to produce an admission instead of a
confession.
In England, following the recommendations of the Criminal Law Revision Committee [167]
and the Royal Commission on Criminal Procedure, [168] the Police and Criminal Evidence
Act [169] came into being. This Act, which introduced substantial reforms to the law of
evidence and criminal procedure, provides that with regard to the requirements of
admissibility no distinction should be drawn between full confessions and admissions. [170] As
a result of this equation the restrictive interpretation of “voluntary” is no longer applicable to
admissions.
In a similar vein the United States Supreme Court has held that admissions should receive
the same cautious treatment accorded to confessions. [171] The obvious reason for taking this
approach is that all the reasons for excluding involuntary confessions apply equally to
involuntary admissions. [172] Involuntary confessions and admissions are excluded not only
because they are potentially unreliable but also because a conviction based on an
involuntary admission or confession would be one obtained without due process of law. [173]
The American courts have also held that the admission of such evidence would also be in
contravention of the Fifth Amendment ban against compulsory self-incrimination.
The South African Law Commission has recommended that admissions, confessions and
pointings out should all be subject to the same requirements of admissibility, namely that
they were made freely and voluntarily, in sound and sober sense and without undue
influence. [174] The constitutionality of the
Page 352
distinction made between admissions and confessions was raised in S v Molimi [175] However,
the court found it unnecessary to deal with the issue in the circumstances of the case.
In South Africa admissions may also be excluded in terms of s 35(5) of the Constitution
which provides for the exclusion of evidence obtained in violation of the Bill of Rights. [176]
For example, in Agnew the accused was arrested at his home in the early hours of the
morning. A telephone call was made to his attorney who instructed the arresting officer that
he would meet him and the accused at the police station. The court found that the arresting
officers had acted in a manner that pressurised the accused and resulted in him making an
incriminating statement prior to the accused being able to consult with his legal
representative. Foxcroft J held that the statement had not been made voluntarily, in that it
was made as a result of the threatening behaviour of the arresting officer. However, the
court held, more importantly, that the statement should be excluded because it had been
obtained in violation of the accused’s constitutional right to remain silent and his right to
legal representation. [177]
Section 115 of the CPA provides:
“(1) Where an accused at a summary trial pleads not guilty to the offence charged, the presiding
judge, regional magistrate or magistrate, as the case may be, may ask him whether he wishes to
make a statement indicating the basis of his defence.
(2) (a) Where the accused does not make a statement under subsection (1) or does so and it is not
clear from the statement to what extent he denies or admits the issues raised by the plea, the court
may question the accused in order to establish which allegations in the charge are in dispute.
(b) The court may in its discretion put any question to the accused in order to clarify any matter
raised under subsection (1) of this section, and shall enquire from the accused whether an allegation
which is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused
of that allegation, and if the accused so consents, such admission shall be recorded and shall be
deemed to be an admission under section 220.
(3) Where the legal adviser of an accused on behalf of the accused replies, whether in writing or
orally, to any question by the court under this section, the accused shall be required by the court to
declare whether he confirms such reply or not.”
What is the evidentiary value of an admission made by an accused who pleads not guilty and
makes certain admissions in response to questions raised by the presiding officer, but does
not consent to having them recorded as formal admissions or is not asked whether he so
consents?
In S v Sesetse en ’n Ander [178] the Appellate Division held that in these circumstances the
state is still required to prove the facts admitted in the informal statement. However, the
court held that such informal admissions still constitute probative material. [179] This means
that it can be proved against the
Page 353
accused in evidence, it can be the subject of cross-examination, and its probative value will
be assessed in the light of all the surrounding circumstances. [180] Similarly in S v Shikongo
and Others [181] the court held that statements made spontaneously by an accused, after a
plea of not guilty in terms of s 119 procedures and before the court had the opportunity of
giving the explanations and warnings required by s 115, constituted admissible informal
admissions.
However, the position was not as clear where the accused’s responses to the presiding
officer included exculpatory statements. One view is that exculpatory statements should be
accorded no evidential value as they are inadmissible as prior consistent statements. [182]
The Appellate Division, in S v Cloete, [183] was called upon to consider precisely this issue.
The court, in considering the earlier Appellate Division decision in Sesetse, [184] found that
the basis of the judgment in Sesetse’s case was “that statements in an explanation of plea
are treated in the same way as extra-curial statements”. [185] Grosskopf JA noted: [186]
“An accused is not entitled to lead evidence of exculpatory extra-curial statements made by him,
except to rebut a suggestion of recent fabrication . . . Where an explanation of plea is entirely
exculpatory it will be before the court, but if the analogy with extra-curial statements holds good, it
will have no evidential value in favour of an accused. Statements in terms of s 115 are, however,
seldom entirely exculpatory. The purpose of the statement is to define the issues raised by a plea of
not guilty, and, since such a plea places all elements of the charge in issue, a definition of the issues
normally involves admissions on the part of the accused. In practice most explanations therefore
consist of a mixture of incrimination and exculpatory statements as in the present case.”
He then concluded that if the explanation of plea were to be treated as an extra-curial
statement, it would not be possible for a court in convicting an accused to rely solely on the
incriminating parts of the plea whilst ignoring the exculpatory ones.
The court referred to the following extract from Rex v Valachia and Another with
approval: [187]
“[T]he rule is that when proof of an admission made by a party is admitted, such party is entitled to
have the whole statement put before the Court and the judicial officer or jury must take into
consideration everything contained in the statement relating to the matter in issue . . . Naturally, the
fact that the statement is not made under oath, and is not subject to cross-examination, detracts very
much from the weight to be given to those portions of the statement favourable to its author as
compared with the weight which would be given to them if he had made them under oath, but he is
entitled to have them taken into consideration, to be accepted or rejected according to the court’s
view of their cogency.”
Page 354
The court rejected [188] the holdings in S v Mkhize [189] and S v Mothlaping en ’n Ander [190]
that the exculpatory part of a s 115 statement could not be accepted as probative material
because in terms of s 196(3) of the CPA the accused is prohibited from making an unsworn
statement from the dock. Grosskopf JA held: [191] “A s 115 statement is not ‘an unsworn
statement . . . in lieu of evidence’. It is a statement in explanation of plea, and is expressly
permitted, and indeed encouraged by the Act. The only question is what effect it has.”
The court noted that in many respects s 115 was similar to s 169(5) of the Criminal
Procedure Act 56 of 1955, and that in terms of s 169(5) “[a] court was required to give
proper regard to an exculpatory statement”. [192] Grosskopf JA concluded [193]
“that the evidential value of informal admissions in s 115 derives from the ordinary common law of
evidence. That being so, there would appear to be no reason or principle why the rule enunciated in
Rex v Valachia and Another (supra) should not be applicable also to such statements. The prohibition
in s 196(3) of the Act on unsworn statements in lieu of evidence has no bearing on the matter. And I
can think of no other reason why a court should be entitled to have regard to the incriminating parts
of such statements while ignoring the exculpatory ones.”
Although acknowledging that an accused may try to abuse s 115, Grosskopf JA found that
this could be guarded against by the court “refusing to attach any value to statements which
are purely self-serving, and, generally, by determining what weight to accord to the
statement as a whole and to its separate parts”. [194] He concluded that this was the light in
which Sesetse should be understood.
The status of s 112 admissions that are subsequently retracted is not entirely clear. In S v
Sewela [195] the appellant had initially pleaded guilty in terms of s 112 of the CPA and handed
in a written statement in terms of s 112(2) admitting to a number of facts relevant to
establishing guilt. He was convicted on the basis of s 112(2) but prior to sentencing
proceedings indicated that he wished to change his plea in terms of s 113 of the CPA. In
doing so the accused handed in a written statement clearly indicating that his s 112(2) had
not been made voluntarily and was false. A plea of not guilty was entered and the state
proceeded to lead evidence. At the close of the state case the accused chose to close the
defence case without leading any evidence. The court a quo held that although the state had
failed to prove its case against the accused the admissions made in the accused s 112(2)
statement were sufficient to prove his guilt. On appeal the issue to be determined was
whether the admissions made in terms of s 112(2) were admissible. Goldstein J held that
those statements that were no longer admitted were clearly no longer admissible in terms of
s 113; however, there was no reason why they should not be admitted as
Page 355
extra-curial admissions provided the requirements of admissibility are met. Goldstein J held
that the state had failed to discharge its burden of proving voluntariness and consequently
the court a quo had erred in taking the accused’s s 112(2) admissions into account. Fevrier
AJ similarly found that the s 112(2) admissions were inadmissible in terms of s 113 in that
the accused made it clear that the admissions were no longer admitted and had been
incorrectly admitted. However, the point of departure appears to be that Fevrier AJ did not
accept the proposition that the s 112(2) statement could be treated as an extra-curial
admission. This accords with the fact that a s 112 statement is made in court and not extra-
curially.

In accordance with the presumption of innocence, the prosecution bears the burden of
proving beyond a reasonable doubt that the accused made an admission freely and
voluntarily. [196] However, s 219A(1) of the CPA provides
“that where the admission is made to a magistrate and reduced to writing by him or is confirmed and
reduced to writing in the presence of a magistrate, the admission shall, upon the mere production at
the proceedings in question of the document in which the admission is contained —
(a) be admissible in evidence against such person if it appears from such document that the
admission was made by a person whose name corresponds to that of such person and, in the
case of an admission made to a magistrate through an interpreter, if a certificate by the
interpreter appears on such document to the effect that he interpreted truly and correctly and to
the best of his ability with regard to the contents of the admission and any question put to such
person by the magistrate; and
(b) be presumed, unless the contrary is proved, to have been voluntarily made by such person if it
appears from the document in which the admission is contained that the admission was made
voluntarily by such person.”
Ackermann J, in S v Dhlaminien Andere, [197] held that to meet the requirements of s 219A
(1)(a) it was necessary to show that the name of the person who made the admission was
sufficiently similar to that of the accused, so that there could be reasonable certainty that
the accused was the person who made the admission. Further, it had to be shown that the
person to whom the admission was made was a magistrate, and where an interpreter is
used it must be proved that the person who issued the certificate was the person who
interpreted the statement. It must also be clear that the certificate relates to the admission
in question. These requirements will not be met by the mere production of the document
containing the admission.
In S v Yolelo [198] the court held that the requirements set out in s 219A(1)(a) did not have
to be met before the onus was placed on the accused as these requirements were concerned
only with the facilitation of proof. The onus will shift to the accused where it appears beyond
reasonable doubt from the document containing the admission that the accused made the
admission
Page 356
voluntarily. [199] Once the onus is on the accused, the accused must establish that the
requirement of voluntariness has not been met on a balance of probabilities. [200]
In S v Zuma and Others [201] the Constitutional Court found a similar presumption
contained in s 217(1)(b)(ii) of the CPA, pertaining to confessions, to be unconstitutional in
that by placing the burden of proving the absence of voluntariness on the accused it violated
the presumption of innocence. [202] Foxcroft J, in Agnew, [203] in an obiter dictum noted that
the presumption contained in s 219A(1)(b) had been invalidated by the Constitutional
Court’s ruling in Zuma.
There can be little doubt that if the s 219A(1) presumption were to come before the
Constitutional Court it would suffer the same fate as the one contained in s 217. However,
the Constitutional Court in Zuma specifically restricted its finding of unconstitutionality to the
presumption contained in s 217 and it is therefore doubtful whether the presumption
contained in s 219A can be said to be invalidated merely by the application of the ruling in
Zuma.
The impact of the Constitution on the interpretation and application of statutory
presumptions is dealt with more fully in chapter 29 below.

The admissibility of an admission is determined at a “trial within a trial”. At this stage of the
criminal proceedings both the defence and the prosecution will lead evidence as to the
circumstances in which the admission was obtained. The presiding officer (sitting with or
without assessors) [204] will then make a determination with regard to admissibility. The
contents of the statement are irrelevant until admissibility has been determined, [205] and
except where the accused alleges that the contents are false and were the product of police
instructions the statement should not be placed before the court. [206] However, even where
the accused alleges that the contents of the statement are not his own the court retains a
discretion where to allow the statement to be used for purposes of cross-examination. [207]
The same procedure is invoked in determining the admissibility of confessions and is
discussed in detail in § 17 6 below. A trial within a trial will also be held to determine
whether a statement is an admission or confession. [208]
[1] See ch 26 for a fuller discussion of formal admissions.

[2] The test employed in determining whether a statement or conduct constitutes an admission is objective. See
Rex v Barlin 1926 AD 459 at 465; S v Grove-Mitchell 1975 (3) SA 417 (A) 420.
[3] Zeffertt & Paizes 475. See also Randfontein Transitional Local Council v ABSA Bank Ltd 2000 (2) SA 1040 (W).
[4] Act 45 of 1988. See further ch 13 above.
[5] Section 3(1) of Act 45 of 1988.
[6] Section 3(1)(c)(vii) of Act 45 of 1988.
[7] Paizes in Du Toit et al Commentary 24-50J. See also Paizes 1985 SALJ 258, where the decision in S v
Holshausen 1984 (4) SA 852 (A) is criticised.
[8] Paizes in Du Toit et al Commentary 24-50S.
[9] Rex v Valachia and Another 1945 AD 826; S v Cloete 1994 (1) SACR 420 (A). See §§ 16 7 2 and 30 12 below.
[10] R v Vather and Another 1961 (1) SA 350 (A). See also S v Yelani 1989 (2) SA 43 (A); S v Mkize 1992 (2)
SACR 347 (A). See also § 30 12 below.
[11] In respect of informal admissions the effect of s 42 of the CPEA is to apply the English law as it was on 30
May 1961. See also §§ 3 4 and 3 5 above.
[12] See § 16 6 below.
[13] See § 16 7 below.
[14] 1966 (4) SA 530 (W).
[15] See further § 30 9 below. See also Schwikkard Presumption of Innocence (1999) 118-25.
[16] See Van der Merwe (ed) Evidence 219. See also Elliot (ed) Elliott & Phipson Manual of The Law of Evidence 12
ed (1987) 181 for a discussion of the dangers arising from drawing “commonsense inferences”.
[17] 1927 TPD 324.
[18] Elliot Elliot & Phipson 182.
[19] R v Weyer 1958 (3) SA 467 (GW); Gosschalk v Rossouw 1966 (2) SA 476 (C). Cf Rex v Barlin 1926 AD 459.
[20] S v Thebus and Another 2003 (2) SACR 319 (CC) at [55]; R v Esposito (1985) 49 CR (3d) 193 (Ont CA).
[21] Thebus supra at [55]. See also S v Manamela and Another (Director-General of Justice Intervening) 2000 (3)
SA 1 (CC); Osman and Another v Attorney-General, Transvaal 1998 (2) SACR 493 (CC).
[22] See South African Law Commission, Project 73, Simplification of Criminal Procedure A More Inquisitorial
Approach to Criminal Procedure — Police Questioning, Defence Disclosure, the Role of Judicial Officers and Judicial
Management of Trials (2002); Van Dijkhorst (2001) 118 SALJ 26; Nugent (1999) 116 SALJ 501; Schwikkard ‘Silence
and Common Sense’ (2003) Acta Juridica 92.
[23] See, for example, Easton The Case for the Right to Silence 2 ed (1998); Dennis “Silence in the Police Station:
The Marginalisation of Section 34” [2002] Criminal Law Review 25; Jackson, Wolfe & Quinn Legislating Against
Silence: The Northern Ireland Experience (2000).
[24] Rex v Mashelele and Another 1944 AD 571; S v Zwayi 1997 (2) SACR 772 (Ck). See further § 30 11 2 4
below.
[25] Thebus supra.
[26] Ibid at [55]. See also S v Sithole 2005 (2) SACR 504 (SCA) n 4 at [11] for a brief summary by Cameron JA of
the four separate judgments in S v Thebus and Another (supra).
[27] Ibid at [57].
[28] Ibid at [58].
[29] Ibid at [58].
[30] Ibid at [59].
[31] Ibid at [68].
[32] Ibid at [69].
[33] Ibid at [69].
[34] Ibid at [70].
[35] Ibid at [83].
[36] Ibid at [83].
[37] Ibid at [85].
[38] Ibid at [86].
[39] Ibid at [87].
[40] Ibid at [88].
[41] Ibid at [90].
[42] Ibid at [91].
[43] Ibid.
[44] Ibid at [34].
[45] Ibid at [104].
[46] Ibid at [105].
[47] Ibid at [107].
[48] Section 35(5) is fully discussed in ch 12 above.
[49] Ibid at [109].
[50] Ibid at [111].
[51] Ibid.
[52] Ibid.
[53] Yacoob, like Goldstone and O’Regan JJ, rejects the distinction between inferences that go to credibility and
those that go to guilt.
[54] Ngcobo J, with Langa DCJ concurring.
[55] See also S v Mavinini 2009 (1) SACR 523 (SCA); S v Mdlongwa 2010 (2) SACR 419 (SCA).
[56] See the different approaches taken in S v Brown en ’n Ander 1996 (2) SACR 49 (NC); S v Hlongwa 2002 (2)
SACR 37 (T); S v Scholtz 1996 (2) SACR 40 (NC); S v Lavhengwa 1996 (2) SACR 453 (W). For further discussion of
these cases see § 30 9 below.
[57] S v Mthetwa 1972 (3) SA 766 (A); S v Snyman 1968 (2) SA 582 (A); S v Letsoko and Others 1964 (4) SA
768 (A); Rex v Ismail 1952 (1) SA 204 (A).
[58] S v Thebus and Another supra at [58]. See also S v Boesak 2001 (1) SA 912 (CC); S v Mokoena and Others
2006 (1) SACR 29 (W); S v Hena and Another 2006 (2) SACR 33 (SE). Cf S v Sithole 2005 (2) SACR 504 (SCA).
[59] 2008 (1) SACR 543 (SCA).
[60] At [19].
[61] 2008 (1) SACR 613 (SCA).
[62] Supra.
[63] 1939 CPD 393.
[64] 1982 (2) SA 1 (A).
[65] 1917 AD 556.
[66] At 558.
[67] 2000 (2) SACR 515 (SCA). The duty to cross-examine is discussed in § 18 6 4 below.
[68] See also S v Boesak 2001 (1) SACR 1 (CC). The question of an implied admission as to non-interference with
the condition of a body between death and post-mortem was raised but not answered in S v Maleka 2005 (2) SACR
284 (SCA).
[69] This rule does not apply to admission or confessions made in the witness box. See Rex v Zawels and Another
1937 AD 342.
[70] See Union and South West Africa Insurance Co Ltd v Quntana NO 1977 (4) SA 410 (A); Mdani v Allianz
Insurance Ltd 1991 (1) SA 184 (A).
[71] See ch 13 above for a full discussion of hearsay.
[72] Supra.
[73] Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA). See also Schmidt & Rademeyer 509.
[74] 1966 (3) SA 182 (A).
[75] Supra.
[76] Supra.
[77] Act 45 of 1988. Section 3(2) provides that “[t]he provisions of subsection (1) shall not render admissible any
evidence which is inadmissible on any ground other than that such evidence is hearsay evidence”.
[78] At 188.
[79] Supra. For a discussion of this case see Monteiro (2002) 119 SALJ 270.
[80] Act 45 of 1988. See Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC). See also
Zeffertt 1991 ASSAL 537; Schwikkard 1991 SALJ 410.
[81] Makhathini v Road Accident Fund supra at [21]. For a further discussion of the now obsolete common-law
exceptions see § 13 7 7 above. Cf Zungu NO v Minister of Safety and Security 2003 (4) SA 87 (D) in which the court
admitted a vicarious admission in terms of the common law; see also Maize Board v Hart 2005 (5) SA 480 (O).
[82] 1991 ASSAL 538.
[83] Paizes in Du Toit et al Commentary 24-70A. See also ch 13 above.
[84] See also Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA), which endorses the Mdani approach.
[85] 2012 (1) SA 90 (SCA).
[86] At [23].
[87] 1934 AD 292 at 304.
[88] 2014 (2) SACR 431 (SCA).
[89] 2002 (2) SACR 325 (SCA). See also S v Molimi 2008 (2) SACR 76 (CC).
[90] See also Paizes Criminal Justice Review 1 of 2014 and Watney 2014 TSAR 855.
[91] 2015 (2) SACR 323 (CC).
[92] At [37]-[38].
[93] At [30].
[94] Supra.
[95] Supra
[96] See Botes v Van Deventer supra; Zunga NO supra, Maize Board supra.
[97] 1874 LR 9 QB.
[98] See S v Harper and Another 1981 (1) SA 88 (D).
[99] For example, in Rex v Jaspan and Another 1940 AD 9 the court held that the lodging of a statement of affairs
of partnership by one partner under s 16 of the Insolvency Act 24 of 1936 was an act of the partnership and, in the
absence of a repudiation of the contents of such statement by another partner, such statement was evidence against
both partners of the correctness of the figures in such statement.
[100] S v Gouws 1968 (4) SA 354 (GW). See also Sos Kinderdorf International v Effie Lentin Architects 1993 (2)
SA 481 (Nm), where the court held that a litigant is bound by counsel’s conduct of the case (within the limits of
counsel’s brief) and by admissions which a legal representative makes in the pleadings or in the drafting of an
affidavit, unless satisfactory reasons are given to show that counsel had no right to make such admissions. In the
absence of a satisfactory explanation a litigant will not be permitted to lead evidence to withdraw an admission made
in an affidavit. See also Brummund v Brummund’s Estate 1993 (2) SA 494 (Nm) and S v Gope and Others 1993 (2)
SACR 92 (Ck).
[101] Dlamini v Minister of Law and Order and Another 1986 (4) SA 342 (D).
[102] S v Gouws supra.
[103] See Oelofse v Grundling 1952 (1) SA 338 (C).
[104] Act 88 of 1984. In such instances it can be said that an identity of interest or obligation exists.
[105] 1953 (3) SA 392 (A).
[106] See also Kroon v J L Clark Cotton Co (Pty) Ltd 1983 (2) SA 197 (E).
[107] Rex v Levy and Others 1929 AD 312; Rex v Cilliers 1937 AD 278; R v Mayet 1957 (1) SA 492 (A); S v
Ffrench-Beytagh 1972 (3) SA 430 (A). A statement made after arrest does not fall within this exception as the
common purpose no longer exists, see S v Mangena and Another 2012 (2) SACR 170 (GSJ) at [54].
[108] At 444.
[109] 1844 6 QB 126.
[110] See S v Sibanda 1993 (1) SACR 691 (ZS), where the court held that the exception applied only to
statements made whilst the conspiracy was still operating.
[111] R v Mayet supra 494.
[112] Supra 455.
[113] S v Ffrench-Beytagh supra.
[114] Law of Evidence 447.
[115] Botes v Van Deventer supra 199.
[116] The South African Law of Evidence 4 ed (1988) 192. See also Knouwds v Administrateur, Kaap 1981 (1) SA
544 (C) 522, where the court held that the concept of privity was not rigidly defined.
[117] At 483.
[118] See Tapper Cross & Tapper on Evidence 11 ed (2007) 619.
[119] 1932 CPD 287.
[120] Botes v Van Deventer supra.
[121] Phipson Evidence 14 ed (1990) 633-6; Hoffmann & Zeffertt The South African Law of Evidence 4 ed (1988)
193.
[122] See Naidoo v Marine & Trade Insurance Co Ltd 1978 (3) SA 666 (A) 677. Where plea and sentence
agreements as provided for in s 105A of the CPA are not finalised, information exchanged in an attempt to reach
such agreements may not be used at the de novo trial. See s 105A(10) of the CPA and Van der Merwe in Du Toit et
al Commentary 15-21. The various theories concerning the exclusion of statements made without prejudice are
discussed by Van Niekerk, Van der Merwe & Van Wyk Privilegies in die Bewysreg (1984) 202-4.
[123] See also Waste-Tech (Pty) Ltd v Van Zyl and Glanville NNO 2002 (1) SA 841 (E) 846 where the court with
reference to the rationale underlying the protection of “without prejudice” statements from disclosure held that in
“general mediation proceedings should be regarded as privileged”.
[124] A without prejudice offer will not be taken into account by the court when determining an order for costs.
See Tshabalala v President Versekeringsmaatskappy Bpk 1987 (4) SA 72 (T) 76A.
[125] In Naidoo v Marine & Trade Insurance Co Ltd supra 667 Trollip JA noted that to describe “without prejudice”
statements as privileged was inaccurate but convenient. The label is inaccurate in that they are not governed by the
same rules that are applicable to privileged communications, the most important distinction being that secondary
evidence can be given of privileged communications, whereas it cannot be given in respect of “without prejudice”
statements.
[126] Millward v Glaser 1950 (3) SA 547 (W) 554; Gcabashe v Nene 1975 (3) SA 912 (D) 914; Jili v South African
Eagle Insurance Co Ltd 1995 (3) SA 269 (N); Lynn & Main Inc v Naidoo and Another 2006 (1) SA 59 (N).
[127] Brauer v Markaw 1946 TPD 344 at 350.
[128] Naidoo v Marine & Trade Insurance Co Ltd supra 678-9. Hoffmann & Zeffertt 197 favour the approach taken
in Patlansky v Patlansky 1917 WLD 10, in terms of which the statement will be protected from disclosure provided it
is not wholly unconnected, albeit irrelevant, to the negotiations in issue. The Appellate Division is yet to decide the
issue.
[129] See Brauer v Markaw supra; Coetzee v Union Government 1941 TPD 1.
[130] ABSA Bank Ltd v Chopdat 2000 (2) SA 1088 (W); Lynn & Main Inc v Naidoo and Another 2006 (1) SA 59
(N).
[131] Polverini v General Accident Insurance Co South Africa Ltd 1998 (3) SA 546 (W). See also Waste-Tech (Pty)
Ltd v Van Zyl and Glanville NNO and Another 2000 (2) SA 400 (SE).
[132] Hoffend v Elgeti 1949 (3) SA 91 (A).
[133] 1930 WLD 202.
[134] Gcabashe v Nene supra.
[135] Patlansky v Patlansky supra.
[136] S v Cele 1965 (1) SA 82 (A).
[137] Rex v Barlin supra 462.
[138] 1981 (1) SA 1002 (A).
[139] At 1009C. See also S v Schultz and Another 1989 (1) SA 465 (T); cf S v Mpetha and Others (2) 1983 (1) SA
576 (C). Paizes in Du Toit et al Commentary 24-76D notes that the courts have in general adopted an artificial
interpretation of the voluntariness requirement. For example, in R v Moiloa 1956 (4) SA 824 (A) the court found
admissions made under a statutory obligation to give information to be admissible. But see the broader approach
adopted in S v Buda and Others 2004 (1) SACR 9 (T) as discussed by Paizes in Du Toit et al Commentary 24-77.
[140] R v Magoetie 1959 (2) SA 322 (A); R v Nhleko 1960 (4) SA 712 (A).
[141] R v Magoetie supra.
[142] S v Radebe and Another 1968 (4) SA 410 (A).
[143] See S v Thwala 1991 (1) SACR 494 (N), where the court excluded an admission made after lengthy and
traumatic interrogation.
[144] In Rex v Dhlamini 1949 (3) SA 976 (N) 979 the court held that the words “You must realize that you stand
at the prison doors and that you must speak the truth” did not amount to a threat or promise.
[145] Cross on Evidence 5 ed (1979) 541. The courts have held that a person in authority includes a magistrate,
police officer, and a complainant, and in Rex v Dhlamini 1949 (3) SA 976 (N) it was held to include a complainant’s
employer.
[146] 1981 (1) SA 460 (C) 467.
[147] At 467A-C.
[148] At 467.
[149] 1992 (1) SACR 292 (E).
[150] At 295. See Schwikkard 1992 SACJ 351, where it is submitted that the fact that the court in Robertson’s
case went to some length to deal with the question of what constitutes a person in authority would indicate that it
was aware of the different requirements of admissibility applicable to admissions and confessions.
[151] S v Yolelo supra. See also S v Mpetha and Others (2) supra 581, where the court held that “voluntarily”
must be accorded its ordinary common-law meaning as “where statute deals with a specific matter also specifically
dealt with by the common law, one does not readily give the same words or concepts different meanings . . . and it
seems to me that stronger indications than are to be found in the provisions of ss 217 and 219A are required in
order to justify a departure from the accepted common-law meaning.” It should be noted that Farlam AJ in S v
Williams and Others 1991 (1) SACR 1 (C) 7, in an obiter dictum, questioned whether the common law did indeed
place such a restrictive interpretation on the meaning of the word “voluntarily”.
[152] 5 ed (1979) 541.
[153] 1967 2 QB 406; S v Schultz and Another supra.
[154] At 415.
[155] Cross on Evidence 6 ed (1985) 536.
[156] 1967 AC 760; 1967 1 All ER 177.
[157] See Lansdown & Campbell 852. Paizes in Du Toit et al Commentary 24-76A submits “that since the concept
of voluntariness is a subjective one, the test for excluding involuntary admissions should not be determined by such
objective factors as the nature of the influence or status of the person exerting such influence”.
[158] 2004 (1) SACR 9 (T) at [11].
[159] Rex v Barlin supra, S v Grove-Mitchell supra.
[160] Confessions are considered in detail in ch 17 below.
[161] Supra 462-3.
[162] 1996 (2) SACR 535 (C).
[163] At 538.
[164] Cf R v Xulu 1956 (2) SA 288 (A).
[165] At 539.
[166] 2012 (2) SACR 170 (GSJ).
[167] Cmnd 4991 (1972) 34-47.
[168] Cmnd 8092 (9181) ch 4.
[169] 1984.
[170] Section 82(1). For a full discussion of the present common-law and statutory position, see Tapper Cross &
Tapper on Evidence 12 ed (2010) 626-666. Choo 3 ed (2012) 92-123.
[171] Opper v United States 348 US 84.
[172] People v Atchley 53 Cal 2d 160, 346 P2d 764, cert dismd 366 US 207.
[173] Brown v Allen 344 US 443.
[174] South African Law Commission Project 73 Simplification of Criminal Procedure: A more inquisitorial approach
to criminal procedure — police questioning, defence disclosure, the role of judicial officers and judicial management
of trials August 2002. See clause 7 of the draft Bill of the Commission (at 141 of its report).
[175] 2008 (2) SACR 76 (CC).
[176] See ch 12 for a full discussion of unconstitutionally obtained evidence.
[177] See also § 10 2 3 above. See also S v Mphala and Another 1998 (1) SACR 388 (W) as discussed in § 12 10 1
above and compare Moran v Burbine 475 US 412 (1986) as discussed in § 12 5 2 1 above.
[178] 1981 (3) SA 353 (A).
[179] See also S v Mjoli and Another 1981 (3) SA 1233 (A).
[180] Cf S v October 1991 (1) SACR 455 (C).
[181] 2000 (1) SACR 190 (NmS).
[182] See S v Malebo en Andere 1979 (2) SA 636 (B).
[183] 1994 (1) SACR 420 (A).
[184] Supra.
[185] At 424.
[186] At 424-5.
[187] Supra 837. See also § 30 12 below.
[188] At 427.
[189] 1978 (2) SA 249 (N).
[190] 1988 (3) SA 757 (NC).
[191] At 247.
[192] At 427.
[193] At 428.
[194] At 428. See also § 30 12 below.
[195] 2007 (1) SACR 123 (W).
[196] S v Cele 1965 (1) SA 82 (A).
[197] 1981 (3) SA 1105 (W).
[198] Supra.
[199] S v Dhlaminien Andere supra.
[200] S v Mpetha and Others (2) supra.
[201] 1995 (1) SACR 568 (CC).
[202] This case is more fully discussed in §§ 17 4 5 2 and 29 2 1 below. See also S v Shangase and Another 1994
(2) SACR 659 (D).
[203] Supra 539g.
[204] See s 145(4) of the CPA. See further § 1 6 above.
[205] S v De Vries 1989 (1) SA 228 (A); S v Gaba 1985 (4) SA 734 (A).
[206] S v Khuzwayo 1990 (1) SACR 365 (A); S v Talane 1986 (3) SA 196 (A); S v Potwana and Others 1994 (1)
SACR 159 (A).
[207] S v Tsotetsi and Others (1) 2003 (2) SACR 623 (W).
[208] See S v K and Another 1999 (2) SACR 388 (C).
Page 357
Chapter 17
Confessions in Criminal Trials
P J Schwikkard
17 1 Introduction
17 1 1 The rationale for excluding involuntary admissions and confessions
17 2 The Importance of Distinguishing Between Admissions and Confessions
17 4 1 Generally
17 4 5 2 Confessions made to peace officers who are also magistrates
and justices of the peace
17 4 5 3 Confessions confirmed and reduced to writing in the presence of
a magistrate or justice of the peace and undue influence
17 7 Inadmissible Confessions which Subsequently Become Admissible
17 8 Facts Discovered as a Consequence of an Inadmissible Admission or Confession
17 8 1 Section 218(2)
17 8 4 Facts discovered in consequence of information given by the accused
17 9 Confession (and Admission) Admissible Only Against Maker
17 1 Introduction
Confessions are a special type of comprehensive admission. A statement will constitute a
confession when the maker of the statement admits, out of court, to all the elements of the
crime charged. [1] Confessions are subject to special rules of admissibility which do not apply
to admissions and which are invoked only in criminal proceedings.
Page 358
17 1 1 The rationale for excluding involuntary admissions and

confessions
The dominant reason for excluding involuntary admissions and confessions at common law
was the danger of unreliability. [2] However, the possibility that a forced admission or
confession might be unreliable was never the only reason for exclusion. [3] Even where a
confession was proved to be true by the subsequent discovery of physical evidence, such as
the murder weapon or corpse, the confession was still not admitted into evidence. This
would suggest that the exclusionary rule had another purpose: to uphold the privilege
against self-incrimination. [4] There has also been judicial acknowledgement that involuntary
confessions must be excluded in order to protect citizens from abuse. In S v January;
Prokureur-Generaal, Natal v Khumalo [5] Van Heerden JA held that the primary reason for
excluding evidence of involuntary confession and admissions was one of policy, [6] “because
in a civilised society it is vital that persons in custody or charged with offences should not be
subjected to ill treatment or improper pressure in order to extract confessions”.
This principle is entrenched in s 35(1)(c) of the Constitution, which provides that an
arrested person shall have the right “not to be compelled to make a confession or admission
that could be used in evidence against” him. Section 35(3)(j) of the Constitution also makes
the privilege against self-incrimination an essential component of a fair trial.
17 2 The Importance of Distinguishing Between Admissions and

|Confessions
In § 16 7 1 1 above an argument is put forward as to why it is constitutionally unsound to
distinguish between admissions and confessions in respect of the requirements for
admissibility. However, the matter has not as yet come before the South African courts [7]
and both the common law and existing statutory provisions make it necessary to distinguish
between admissions and confessions. This is because the requirements for admissibility are
far more onerous in respect of confessions than is the case with admissions. Furthermore,
s 209 of the CPA provides that an accused may be convicted of an offence on the single
evidence of a confession if the confession is confirmed in a material respect or if the offence
is proved by evidence, other than such confession, to have been actually committed. [8]
Page 359

As there is no statutory definition of a confession, it is necessary to look at the common law
to ascertain what a confession is. The general tendency of the courts has been to interpret
the word “confession” as strictly as possible, [9] and in Rex v Becker [10] the court held that a
confession was “an unequivocal acknowledgement of guilt, the equivalent of a plea of guilty
before a court of law”. This definition has been enthusiastically adopted by the courts and
strictly applied. [11] The result is that “[t]he accused is credited with remarkable semantic
ingenuity and his words are meticulously scrutinized to see whether he still has an
opportunity for equivocation”. [12]
For example, in Rex v Viljoen [13] the accused, who was charged with murder, told the
police that he had shot the deceased, that he had “shot her six times” and had “emptied the
gun on her”, and that she was “full of holes”. The court held that these statements did not
amount to a confession as they did not exclude the possibility of a valid defence. [14] If the
accused had said, “I murdered her” or “I unlawfully killed her”, then his statement would
have amounted to a confession. Some relief is to be found in that the court, in determining
whether a statement constitutes a confession, can have regard to the circumstances
surrounding the statement. [15] However, the courts are restricted to considering those
circumstances “which put the statement in its proper setting and which help to ascertain the
true meaning of the words used”. [16] In reaching a decision as to whether a statement
amounts to a confession the court is required to look at the confession in its entirety,
including the necessary implication of the words. [17]

There are numerous statutory offences which place either the burden of proof or an
evidentiary burden on the accused. [18] However, even in these circumstances the accused’s
statement will not amount to a confession unless it excludes the possibility of a defence. For
example, in Rex v Kumalo [19] the accused was charged with and convicted of the statutory
offence of having an unlicensed revolver in his possession. The accused, whilst driving a
motor vehicle, had been stopped by the police, who found a revolver near the driver’s seat.
The
Page 360
accused claimed the revolver as his and admitted that he did not have a licence. The
prosecution invoked a statutory presumption [20] which provided: “Any person who is in
charge of any vehicle in which there is any arm, shall, until the contrary is proved, be
deemed for the purposes of this Act to be the possessor of such arm.” Nevertheless, the
court found that the accused’s claim of ownership coupled with the admission that he did not
have a licence did not amount to a confession as he could have still led evidence to show
that he was not in possession of the firearm.
Similarly in R v Xulu [21] the accused was charged with unlawfully possessing dagga for the
purpose of sale or supply in contravention of Act 13 of 1928. [22] Section 90 of that Act
placed the onus of proving that possession was lawful on the accused. The accused, when
questioned by the police, admitted to possessing the dagga. The court found that his
statement did not constitute a confession and held: [23]
“The point is that his statement was not an unequivocal admission of guilt on that charge. It was still
open to him to try to prove that he had a permit or other right to possess dagga or . . . to allege that
the dagga had been put there without his authority by someone else who had used his car. The fact
that such defences would be hopeless in the light of the circumstances to which the police would
testify does not provide the missing elements in the statement so as to make it a confession.”
Zeffertt, Paizes & Skeen state: [24]
“The logical conclusion from these cases is that in crimes which require mens rea, an account by the
accused of his actions, however detailed and damning, will hardly ever amount to a confession (unless
there be something in the surrounding circumstances to indicate that what was said amounted to an
unequivocal admission of guilt, and unless, taking the statements as a whole, the necessary
implication is that he confessed) because it would almost always be possible to give some further
explanation which would negative the necessary mental intent.”

Is a statement that is intended to be exculpatory, but which is actually inculpatory, a
confession? Until S v Yende [25] there was a great deal of uncertainty as to which approach to
follow in such circumstances. [26] In Yende the Appellate Division held that it was necessary
to take an objective approach. If an objective approach is taken, it “is not whether the
accused intends to admit that he is guilty but whether he intends to admit facts which make
him guilty, whether he realizes it or not”. [27]
Page 361

Does a statement constitute a confession where the accused’s statement is exculpatory in
relation to the main charge, but incriminating in relation to a lesser charge?
For example, an accused is charged with raping a girl under the age of 16 and he makes a
statement admitting to having had sexual intercourse with her by consent. The statement is
exculpatory with regard to the charge of rape, but inculpatory in respect of the statutory
offence of having sexual intercourse with a girl under the age of 16. Does the statement
constitute a confession to the statutory offence? The case law does not provide clear
guidance. On substantially the same facts as given in the example above two provincial
divisions reached opposite conclusions. In R v Goliath [28] the court held that such a
statement was a confession to the lesser offence, whereas in S v F and Others [29] the court
held that the statement could not amount to a confession either because the accused
intended to exculpate himself when he made it, or, if the objective test was applied, because
the statement did not exclude the defences open to him in terms of the statute. [30] Although
Yende [31] cannot be said to be of direct application, there is no reason why the objective test
laid down by the Appellate Division should not be applied in determining whether a
statement amounts to a confession of a lesser offence. Following this approach, Zeffertt,
Paizes & Skeen formulate the test as follows: [32]
“[D]id the accused, when he made a statement that was exculpatory in relation to the main charge
against him, intend to admit facts that make him guilty of the lesser crime for which he could be
convicted on the main charge, whether he realized or not those admissions made him guilty of it?”
It does not matter whether the accused subjectively intended to exculpate himself — if
objectively his statement amounts to an unequivocal admission of guilt, then it will amount
to a confession to the lesser offence.

17 4 1 Generally
Section 217(1) of the CPA provides:
“Evidence of any confession made by any person in relation to the commission of any offence shall, if
such confession is proved to have been freely and voluntarily made by such person in his sound and
sober senses and without having been unduly influenced thereto, be admissible in evidence against
such person at criminal proceedings relating to such offence: Provided —
(a) that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a
peace officer referred to in section 334, a confession made to such peace officer which relates to
an offence with reference to which such peace officer
Page 362
is authorized to exercise any power conferred upon him under that section, shall not be
admissible in evidence, unless confirmed and reduced to writing in the presence of a magistrate
or justice; and
(b) that where the confession is made to a magistrate and reduced to writing by him, or is
confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the
mere production thereof at the proceedings in question —
(i) be admissible in evidence against such person if it appears from the document in which the
confession is contained that the confession was made by a person whose name
corresponds to that of such person, and in the case of a confession made to a magistrate
or confirmed in the presence of magistrate through an interpreter, if a certificate by the
interpreter appears on such document to the effect that he interpreted truly and correctly
and to the best of his ability with regard to the contents of the confession and any question
put to such person by the magistrate; and
(ii) be presumed, unless the contrary is proved, to have been freely and voluntarily made by
such person in his sound and sober senses and without having been unduly influenced
thereto, if it appears from the document in which the confession is contained that the
confession was made freely and voluntarily by such person in his sound and sober senses
and without having been unduly influenced thereto.”
Consequently, before a confession will be admitted into evidence the general rule is that the
prosecution must establish that the confession was made freely and voluntarily by the
accused whilst in sound and sober senses and without having been unduly influenced
thereto. In § 17 4 5 2 below it is pointed out that s 217(1)(b) has been declared
unconstitutional.

The requirements that the statement be made “freely and voluntarily” and “without undue
influence” are treated as separate requirements, each having a distinct meaning. [33] The
requirement of freely and voluntary is assigned its common-law meaning: the statement
must not be induced by a threat or promise emanating from a person in authority. [34] This
requirement is also applicable to admissions and is discussed in § 16 7 1 above. The
meaning of undue influence is discussed in § 17 4 4 below. The elasticity of this concept is
such that “it in effect covers all cases in which external influences have operated to negative
the accused’s freedom of volition”. [35] Consequently, in practice the inquiry as to whether
the statement was made voluntarily is of little relevance, it being subsumed in the inquiry as
to whether the statement was made without undue influence. [36]

Before a confession will be admitted into evidence it must be proved that the accused
understood what he was saying. This is all that is meant by the requirement that the
accused must be in his
Page 363
sound and sober senses. Consequently, the fact that the accused was intoxicated, or
extremely angry, or in great pain will not in itself lead to the conclusion that this
requirement has not been met, unless it is established that he could not have appreciated
what he was saying. [37]

Undue influence will be present where some external factor operates so as to extinguish the
accused’s freedom of will. [38] The undue influence need not emanate from a person in
authority. [39] Clearly violence or a threat of assault would constitute undue influence, but
the concept includes subtler forms of influence such as the promise of some benefit, [40] or
an implied threat or promise. [41] The view has been expressed that any practice that is
repugnant to the principles upon which the criminal law is based, is an undue one. [42] Even if
a statement is found to have been made voluntarily, it will be excluded if it was induced as a
consequence of undue influence. [43]
In S v Mpetha and Others (2) [44] the court held that the object of an inquiry into the
existence of undue influence was to determine whether the accused exercised his will freely,
and that consequently the inquiry was a subjective one. Williamson J explained the
relevance of objective factors as follows: [45]
”It is his will as it actually operated and was affected by outside influences that is the concern . . .
Obviously, if in a particular case there is evidence of factors which a court thinks are objectively
calculated or likely to influence the will of a person, then from a purely pragmatic point of view it will
not be easy for the prosecution to satisfy the court that there is no reasonable possibility of these
factors in fact having had an influence subjectively on the particular accused. Conversely, if there are
factors which the court thinks are not objectively calculated or likely to influence the will of an
accused, then it will, practically speaking, not be easy for the defence to persuade a court that there
is a reasonable possibility that these factors in fact subjectively influenced the will of the particular
accused . . . An improper influence which is trivial must be ignored; so also an improper influence,
which, though not trivial in itself, is shown in fact not to have had any meaningful influence on the will
of the confessor.”
The subjective inquiry requires the undue influence to have been operative on the accused’s
mind when he made the statement. [46] The subjective approach has allowed courts in the
past to conclude that a confession made after lengthy interrogation, or after detention
without trial, did not necessarily result in
Page 364
undue influence. [47] Similarly, a breach of the Judges’ Rules will not automatically render a
confession inadmissible, and will merely be a factor the court will take into consideration in
determining whether a confession has been made freely and voluntarily and without being
unduly influenced thereto. [48] The full text of the Judges’ Rules is cited in Appendix B to this
work.
The courts have held that the failure to advise an accused of his right to legal
representation from the time of arrest [49] may be a factor taken into consideration in
determining whether the requirements of s 217(1) have been met. [50] In S v Yawa and
Another [51] the accused had pointed out certain places and had made explanatory
statements accompanying the pointing out. It was common cause that these statements
constituted a confession and that the pointing out and accompanying statements were
inseparable. The court therefore held that the provisions of s 217(1) had to be met before
the pointing out could be admitted into evidence. The court found that the accused had not
been advised of his right to legal representation at the time of his arrest or at any time
before making the pointing out and that it was highly probable that if he had been advised of
his right to representation, he would have exercised it. Further, if the accused had exercised
this right he would —
“prior to pointing anything out, have been in a position to and would have had the opportunity to
consider whether or not to take part in the pointing out in the light of whatever advice his legal
representative may have furnished him . . . Once it is accepted that accused No 1’s decision to
participate in the pointing out was affected by his lack of appreciation that he was entitled to legal
representation, it follows that such lack of appreciation had an influence on the decision accused No 1
took.” [52]
However, the court took care to stress that the failure to advise the accused of his right to
legal representation amounted to undue influence when considered together with all the
circumstances of the case. Therefore it cannot be concluded that there is a general principle
in terms of which the failure to advise persons of their right to legal representation amounts
to undue influence. [53]
Page 365
In S v M [54] the Appellate Division, equating the right of a juvenile to be assisted by his
parents with the right to legal representation, held that [55] —
“the failure to afford a young person the assistance of a parent or guardian where this is reasonably
possible before taking a confession from such person, could conceivably lead to the conclusion that
the confession was not made freely, voluntarily, or without undue influence”.
Following this approach, the court in S v Kondile en Andere [56] held confessions made by two
juveniles to be inadmissible. Although the accused had been advised of their right to legal
representation and their right to remain silent, they were not given the opportunity of being
assisted by their parents or guardians. There was no suggestion of any other type of
improper influence; however, the court found that it was highly probable that the absence of
parental assistance influenced the accused in their decision to make the confessions and
pointing outs.
Section 35(2)(b) of the Constitution provides that anyone who is detained must be
advised of his or her right to consult with a legal practitioner. Consequently, the absence of
such advice may result in the confession being excluded as it was obtained
unconstitutionally. [57]
A distinction needs to be drawn between a confession obtained as a result of undue
influence and a confession obtained in breach of constitutional provisions. The test to be
applied in determining the presence of undue influence is subjective. However, it is
submitted that the test as to whether a constitutional guarantee has been violated must be
objective. For example, whether the absence of legal representation amounts to undue
influence will be subjectively determined, but whether or not the accused was advised of his
right to legal representation in accordance with s 35 of the Constitution is an objective
question of fact. [58]
Is a statement made under statutory compulsion admissible? In Rex v Carson [59] the court
was required to consider the admissibility of evidence taken in terms of s 55 of an
Insolvency Act. [60] Section 55 of the now repealed Act provided for the examination, by the
commissioner, of an insolvent under oath, and directed that an insolvent could
Page 366
not refuse to answer questions on the basis that they might incriminate him. The court held
that the provisions of the statute made it clear that such evidence could be admitted in both
civil and criminal proceedings. Further, the court found that the provisions of s 273 of the
Criminal Procedure and Evidence Act, [61] requiring confessions to be made freely and
voluntarily before being admissible into evidence, were of no relevance as regards the
admissibility of a statement elicited in terms of s 55. [62] The court held that both provisions
were “affirmatively couched”: s 55 stipulating that the entire statement of an insolvent,
whether or not it included a confession, was admissible in criminal proceedings, while, on the
other hand, s 273 required that all confessions must be shown to have been made freely and
voluntarily. It was therefore necessary to apply “a well-known principle of construction that a
general affirmative provision does not repeal an earlier specific affirmative provision, unless
language is used which clearly indicates an intention to repeal”. [63] Consequently, the court
found that “the provisions for regulating the admission of statements of insolvents in
criminal proceedings against themselves dealt with a special subject, and were intended to
be distinct and separate from the provisions governing the admission of confessions
generally”. [64] In R v Moiloa [65] the court held that “there would seem to be no reason to
exclude an admission made in answer to a question which is required by law to be answered,
for there is no threat or inducement to the party questioned to make him give an answer
falsely incriminating himself”. [66] Fagan JA held:
“The effect of the statutory compulsion is merely to remove the protection embodied in the maxim
nemo tenetur se ipsum accusare, leaving the question of admissibility in other proceedings to be
decided by the principles applicable to that branch of the law; and these have been so construed as
not to make the statutory compulsion a ground for ruling the statement to be inadmissible.” [67]
The court found that in deciding upon the admissibility of the statement it was bound to
follow the English law governing admissions and left open the question whether the
conclusion would be the same in regard to confessions.
However, now that the privilege against self-incrimination and the right to remain silent
have been afforded constitutional protection, statutory provisions which permit the use of
evidence obtained in breach of the privilege against
Page 367
self-incrimination to be admitted in criminal proceedings will be unconstitutional. [68] The

Constitutional Court in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others [69] dealt with the application of the right to a fair trial embodied in s 25(3) of the
Interim Constitution to the then-existing s 417(2)(b) of the Companies Act. [70] At that stage
s 417(2)(b) provided that any person summoned for an examination into the affairs of a
company “may be required to answer any question put to him at the examination
notwithstanding that the answer might tend to incriminate him, and any answer given to any
such question may thereafter be used in evidence against him”. The majority of the court
held that the rights to a fair trial only applied to a criminal trial and accordingly the section
was only invalid to the extent that it permitted the answers to be admitted at a subsequent
criminal trial.
In Canada similar statutory provisions have been attacked on numerous constitutional
grounds and survived scrutiny. [71] In Stelco Inc v Canada (AG) [72] the Supreme Court of
Canada held that s 17 of the Combines Investigation Act, [73] in terms of which persons who
are being investigated may not refuse to answer questions, was constitutional. The court
held:
“The privilege against self-incrimination, as it exists in Canada does not permit these witnesses to
refuse to answer questions during the course of an investigative hearing. It clearly cannot provide
them the right to refuse to attend. They are fully protected against the subsequent use of any
incriminating answers by the Canada Evidence Act and s 20(2) of the Combines Investigation Act, as
well as s 13 of the Charter.” [74]
Section 13 of the Canadian Charter of Rights and Freedoms provides that “[a] witness who
testifies in any proceedings has the right not to have any incriminating evidence so given
used to incriminate the witness in any other proceedings, except in a prosecution for perjury
or for the giving of contradictory evidence”. The South African Constitution contains no
similar provisions. However, it is submitted that the constitutional privilege against self-
incrimination and the right to remain silent [75] are sufficient to prohibit the admission of
evidence elicited under statutory compulsion at an investigative hearing, in a later criminal
hearing.
Page 368
In Davis v Tip NO and Others [76] the applicant was the subject of an inquiry instituted by
his employer, the Greater Johannesburg Transitional Metropolitan Council, into allegations
of, inter alia, bribery, corruption and theft. The applicant requested that the inquiry be
postponed until after the conclusion of the criminal proceedings on the basis that if the
inquiry proceeded, his right to remain silent at trial would be infringed. The request was
denied, but the applicant was given the opportunity to seek relief from the Supreme Court.
Nugent J declined the relief on the basis that the applicant was not compelled to testify at
the inquiry. The court appeared to accept the contention that if the applicant chose not to
testify, he would in all likelihood be found guilty of misconduct and dismissed, but held that
this did not constitute compulsion. The court held that dismissal would simply be the
consequence of a choice made by the applicant, “but not a penalty for doing so”. [77]
Compulsion would be found to be present only where “the alternative which presents itself
constitutes a penalty, which serves to punish a person for choosing a particular route as an
inducement to him not to do so”. [78] The court appears to have overlooked the plethora of
cases that identify the criteria of voluntariness as the cornerstone for determining whether
the privilege against self-incrimination has been infringed. [79] It is submitted that the better
approach would have been to recognise the non-applicability of s 35(3) of the Constitution to
the inquiry, leaving the admissibility of any evidence obtained as a consequence of the
violation of the privilege against self-incrimination to be determined at the relevant criminal
proceedings.
For a further discussion of the privilege against self-incrimination in this context see
§ 10 2 4 above.

Section 217(1) provides that where a confession is made to a peace officer who is not a
magistrate or justice of the peace, the confession must be confirmed or reduced to writing in
the presence of a magistrate or justice of the peace.
Section 1 defines a peace officer as including —
“any magistrate, justice, police official, correctional official as defined in section 1 of the Correctional
Services Act 8 of 1959 (Act 8 of 1959), and, in relation to any area, offence, class of offence or power
referred to in a notice issued under section 334(1) [80] any person who is a peace officer under that
section”.
It has been held that this definition is exhaustive [81] and the onus rests on the accused to
show that the person to whom he made the confession is a peace
Page 369
officer. [82] The confession must be addressed to the peace officer, [83] and it will not be said
to have been made to a peace officer if the confession is merely made in the presence of a
peace officer or if a peace officer is used solely as an interpreter. [84]
The magistrate or justice of the peace must ensure that the person who wishes to make
the statement is in sound and sober senses and is making the statement voluntarily and
without undue influence. However, the magistrate or justice of the peace is not required and
should not interrogate the person wishing to make the statement. [85]
Once a confession made to a peace officer is confirmed and reduced to writing in the
presence of a magistrate or justice of the peace, it is treated as if it were a new
confession. [86]
17 4 5 2 Confessions made to peace officers who are also magistrates and justices
of the peace
Confessions made to peace officers who are also magistrates or justices of the peace need
not be reduced to writing and will be admissible if they are made freely and voluntarily, in
sound and sober senses, and without undue influence. [87] In terms of s 217(1)(b)(ii) of the
CPA, if a confession is reduced to writing [88] and confirmed in the presence of magistrate, it
is deemed to be admissible in evidence upon mere production and if it appears from the
document that the confession was made freely and voluntarily, the confession is presumed
to have been made freely and voluntarily in sound and sober senses and without undue
influence.
Page 370
The Constitutional Court in S v Zuma and Others [89] found that the presumption in s 217
(1)(b)(ii) placed on the accused the burden of proving that the confession was not made
freely and voluntarily and required him to discharge the onus on a balance of probabilities.
The court held that the common-law rule placing the burden of proof on the state to prove
that a confession was made voluntarily was integral and essential to: the right to remain
silent after arrest; the right not be compelled to make a confession; and the right not to be a
compellable witness against oneself. The court held that by reversing the burden of proof all
these rights would be seriously compromised and undermined. The Constitutional Court
found that the right to a fair trial conferred by s 25(3) of the Interim Constitution was
broader than the list of specific rights listed in that section. It held that the right to a fair
trial embraces a concept of substantive fairness and consequently the common-law rule on
the burden of proof was inherent in the rights specifically mentioned in s 25(2) and 25(3).
The court concluded that s 217(1)(b)(ii) violated the provisions of the Interim Constitution
and was invalid. [90] S v Zuma is also discussed in § 29 2 1 below.
17 4 5 3 Confessions confirmed and reduced to writing in the presence of a
magistrate or justice of the peace and undue influence
The circumstances in which confessions are confirmed and reduced to writing in the
presence of magistrates and justices of the peace have frequently provided fertile ground for
allegations of undue influence.
The courts have consistently expressed the view that it is undesirable for a police officer,
involved in the team investigating the accused’s conduct, [91] to record the accused’s
confession or to be used as an interpreter for the purpose of recording the confession. [92] In
S v Latha and Another [93] the court held that a police officer attached to a particular unit,
which investigated the matter, should not take a confession. However, the Appellate Division
in S v Mbatha en Andere [94] held that it was wrong to view this type of conduct as an
irregularity, [95] the undesirable conduct simply being a factor taken into account in
determining whether the confession was made freely and voluntarily and without undue
influence. [96]
Page 371
In S v Colt and Others [97] the court held:

“Where an accused person is brought to a magistrate for the purpose of making a confession and it
appears that he has already made a statement, it is necessary that the questioning of the accused by
the magistrate be such firstly, to pierce the veil adverted to in Rex v Gumede and Another 1942 AD
398 at 433, ie the ‘veil between the previous interrogations by the police and the subsequent
appearance of the interrogated person before the magistrate’ and, secondly, to ensure that the result
of such piercing is that the Court is satisfied beyond reasonable doubt that whatever possible
untoward circumstances may have prevailed at the time the accused made the statement to the
police were no longer operative at the time when the accused appeared before the magistrate. The
reason for this is that there is a danger that by reason of untoward conduct on the part of the police
the accused might have been brought to a confessing state of mind which might persist at the time of
his appearance before the magistrate and which might give rise to an apparent but deceptive
voluntariness on his part to make a statement to the magistrate. The magistrate should, therefore,
enquire of the person appearing before him ‘whether he has already made a statement and, if so, the
nature of such statement and especially the reasons actuating him in wishing to repeat the
statement’.” [98]
Now that there is no longer a shift in onus when a confession is reduced to writing and
confirmed in the presence of a magistrate, the significance of the above factors may well be
diminished. However, reduction to writing remains a requirement for admissibility where the
confession is made to a peace officer who is not a magistrate or justice of the peace.
Consequently the circumstances in which a confession was reduced to writing will remain a
factor to be taken into consideration in determining whether a confession was made freely
and voluntarily, in sound and sober senses and without undue influence. [99]

It is now clear that the prosecution will always bear the burden of proving that a confession
was made freely and voluntarily in sound and sober senses and without undue influence.
The admissibility of a confession is determined at a trial-within-a-trial. [100] The rationale is
rooted in a rule of policy that self-incriminating statements should
Page 372
not be coerced and that accused persons be in a position to challenge the voluntariness of
their statements without running the risk of further incriminating themselves. It is the
insulation of the evidence given at a trial within a trial from the main trial which allows the
accused to do this. This insulation applies to both evidence given by the accused and
witnesses. [101]
In S v Louw and Others [102] the court held that where the issue before the court is
whether an incriminating statement was made it was not necessary to hold a trial within trial
as it was not a question of voluntariness that was before the court. The failure to hold a trial
within a trial when the admissibility of a confession is disputed, constitutes a material
irregularity. [103] Leach J in S v Mdyogolo [104] held that the failure to hold a trial within a trial
to determine the admissibility of a confession infringed the constitutional right to remain
silent and constituted a fatal irregularity. [105]
At this stage of the proceedings both prosecution and defence will adduce evidence as to
the circumstances in which the confession was made. The judge and assessors [106] will
decide whether the requirements of admissibility have been met. In order to avoid potential
prejudice to the accused the court will not consider the contents of a confession before
determining whether it is admissible. [107] The purpose of the inquiry is not to establish the
accused’s guilt or innocence but the admissibility of the confession, and the accused may not
be cross-examined on the issue of his guilt. [108] Consequently at the trial within a trial the
general rule is that an accused may not be cross-examined as to whether the confession is
true or not. [109] However, cross-examination of this nature may be allowed where the
accused alleges that the confession is false and that the true authors were the police. [110]
The purpose of the cross-examination is to test the accused’s credibility and not the truth of
the
Page 373
confession. [111] In such circumstances the prosecution may cross-examine on the contents
of the confession and only those portions referred to in cross-examination may become part
of the record. [112] In S v Potwana and Others [113] the court, when assessing evidence
pertinent to the voluntariness of the confession, warned against attaching undue significance
to the fact that an accused person lied with regard to the truth of the content of the
confession.
Cameron J in S v Post [114] held that there was authority [115] for the view that cross-
examination as to the contents of a confession might be sufficiently relevant on some ground
other than alleged fabrication. The court held that in the circumstances the
contemporaneous record of the accused’s pointing out was the best evidence of the
accused’s sobriety and soundness of senses and to prohibit the admission of such evidence
would be “unduly artificial and entail a clear unfairness to the state”. [116]
Once the court is satisfied that the requirements for admissibility set out in s 217(1) of
the CPA have been met, the confession will be admitted into evidence. However, if during
the course of the trial evidence comes to light which causes the court to question its earlier
ruling, it is entitled to overrule its own decision. [117] Conversely, a court may not
provisionally admit a confession on the basis that evidence may emerge later to justify its
admission. [118]
In accordance with the principle that the issue of admissibility must be kept separate from
the issue of guilt, the prosecution in the main trial may not lead evidence regarding the
accused’s testimony at the trial within a trial. [119] However, a witness who has testified at
the trial-within-a-trial “may be cross-examined in relation to inconsistencies between his
evidence in the trial-within-a-trial and the evidence given by him on the merits”. [120] The
accused is
Page 374
not precluded from leading the same evidence adduced at the trial within a trial during the
course of the main trial. This may be done in order to persuade the court that, owing to the
circumstances in which the confession was made, little weight should be attached to it. [121]
17 7 Inadmissible Confessions which Subsequently Become

Admissible
A confession excluded by s 217(1) is “unconditionally inadmissible”, [122] and as a general
rule cannot become admissible by virtue of waiver or consent on the part of the accused.
Consequently the prosecution is prohibited from introducing evidence of an inadmissible
confession either in evidence in chief or in the course of cross-examination of the accused or
other defence witnesses. In S v Nkata and Others [123] the court held that not even the
preamble to an inadmissible confession could be used in cross-examination of the accused
and to do so would constitute an irregularity. However, it is not entirely clear what the
position is where the accused elicits evidence of the inadmissible confession whilst leading or
cross-examining witnesses.
Section 217(3) of the CPA provides:
“Any confession which is under subsection (1) inadmissible in evidence against the person who made
it, shall become admissible against him —
(a) if he adduces in the relevant proceedings any evidence, either directly or in cross-examining any
witness, of any oral or written statement made by him either as part of or in connection with
such confession; and
(b) if such evidence is, in the opinion of the judge or judicial officer presiding at such proceedings,
favourable to such person.” [124]
In S v Nieuwoudt [125] the court held that the words “in connection with” indicated that the
provision is not limited to cases where the accused elicits the favourable part of the
confession. The Appellate Division approved the following definition of “in connection with”
provided in R v Mzimsha: [126]
“If the defence elicits a portion of the verbal conversation or transaction which is favourable to the
accused person it does so at the risk of the unfavourable portion also becoming admissible in
evidence, but either the favourable statements must be a natural part of the confession tendered or
the two matters, the favourable statement and the confession, must . . . be parts of substantially the
same transaction. It would . . . be competent to admit the evidence if the alleged confession took
place at a later stage of the same conversation or transaction in which the favourable statement was
made. Although then not a part of the confession there is an intimate connection in point of time in
that both form part of the same transaction.”
Page 375
The court in Nieuwoudt found the approach of the court in Mzimsha to be acceptable,
provided it was understood that everything said during the same conversation is not
necessarily “in connection with” the matter in question.
Section 217(3) has not assisted the courts in reaching consensus on the admissibility of a
confession elicited by the accused in cross-examination of a prosecution witness in
circumstances where the requirements of s 217(3) have not been met. In Rex v Bosch, [127]
a case decided prior to statutory regulation, the accused, in cross-examining a state witness,
asked the witness why he was sure that he had not made a mistake in identifying the
accused. The witness replied “to put it bluntly, the Criminal Investigation Department told
me that you admitted guilt”. The court held that this response was inadmissible to show that
the accused had admitted his guilt, but that it was admissible to show why the witness was
sure he was not making a mistake in identifying the accused. [128] However, subsequently the
courts have not been consistent in their interpretation of Bosch. In S v Magagula [129] the
court interpreted Bosch as providing authority for the view that the confession would be
inadmissible unless its reception into evidence would be to the advantage of the accused.
However, the court in S v Olifant en ’n Ander, [130] also applying Bosch, reached a different
conclusion: a confession elicited in this way will be admissible provided that the witness’s
reply was a direct and fair answer to the question. [131] Marais J, in S v Mvambo, [132] whilst
favouring this approach, held that where the accused is unrepresented the court must be
fully satisfied that the accused is fully aware of the risk attaching to the question. He also
noted that this proviso should extend to all cases and that the court should warn
inexperienced counsel of the dangers of putting such questions.
The admissibility of a confession elicited by cross-examination was determined by
reference to the right to a fair trial in S v Xaba. [133] The prosecution in consultation with a
state witness, one Sergeant Khanye, became aware that the accused had made a
confession. This confession was not reflected in Sergeant Khanye’s written statement. It was
not disclosed to defence counsel that such a confession had been made. Defence counsel
unwittingly elicited the contents of the confession in cross-examination of Sergeant Khanye.
The court was referred to the right to a fair trial, the right to access to information and the
right to adduce and challenge evidence. Labe J concluded that, albeit in good faith, the
prosecution had erred in not informing defence counsel about the confession; if this had
been done he would have had the benefit of further consultation with his client as well as
with Sergeant Khanye and he may well
Page 376
have not asked the fatal question. Consequently, the right to a fair trial demanded that the
question and answer revealing the confession be struck from the record. [134]
In S v Jeniker en ’n Ander [135] the court questioned the correctness of the court a quo’s
decision in permitting a confession that was not admissible against the accused (as it had
not been proved to have been made freely and voluntarily) to be admitted for the specific
purpose of assisting a co-accused in his defence. The Appellate Division held that it was
doubtful whether the fact that the confession could assist the accused in his defence was
sufficient basis for admitting the evidence. The accused did not testify and it therefore
appeared that the confession constituted inadmissible hearsay evidence. However, the court
found it unnecessary to reach a conclusion on these points and assumed that the confession
was admissible, but held that no weight could be attached to it as there was another
statement before the court by the accused repudiating the confession and alleging that it
was coerced.
17 8 Facts Discovered as a Consequence of an Inadmissible

Admission or Confession
The admissibility of facts discovered as a consequence of an inadmissible admission or
confession is governed by s 218 of the CPA, which provides:
“(1) Evidence may be admitted at criminal proceedings of any fact otherwise admissible in
evidence, notwithstanding that the witness who gives evidence of such fact, discovered such fact or
obtained knowledge of such fact only in consequence of information given by an accused appearing at
such proceedings in any confession or statement which by law is not admissible in evidence against
such accused at such proceedings, and notwithstanding that the fact was discovered or came to the
knowledge of such witness against the wish or will of such accused.
(2) Evidence may be admitted at criminal proceedings that anything was pointed out by an accused
appearing at such proceedings or that any fact or thing was discovered in consequence of information
given by such accused, notwithstanding that such pointing out or information forms part of a
confession or statement which by law is not admissible in evidence against such accused at such
proceedings.”
17 8 1 Section 218(2) [136]
In terms of this subsection evidence that the accused pointed out anything may be admitted
as well as evidence that any fact
Page 377
or thing was discovered in consequence of information given by the accused, even though
the pointing out or information forms part of an inadmissible confession or statement.

A pointing out has been defined as “an overt act whereby the accused indicates physically to
the inquisitor the presence or location of some thing or some place actually visible to the
inquisitor”. [137] Evidence of a pointing out will be admissible even if no concrete facts are
discovered as a result of the pointing out. It is only necessary to show that the accused
knew of a fact relevant to his guilt. [138] For example, in R v Tebetha [139] the accused was
arrested and interrogated in connection with a robbery. The police, prior to arresting the
accused, had already found the van and empty tins used to carry money. The court held that
the fact that the accused later pointed out the place where the van and tins had been found
was admissible in evidence notwithstanding that the pointing out was conducted as a
consequence of an inadmissible statement. [140]
This subsection does not permit statements accompanying the pointing out to be admitted
into evidence [141] and the courts have held a confession in the guise of a pointing out will
not be admissible. [142] In S v Magwaza [143] it was held that where “the court has certain
knowledge not only that the pointing out forms part of an inadmissible confession but also
what the precise contents of the inadmissible confession are” it should exclude the evidence
of the pointing out. However, the court in S v Masilela en ’n Ander, [144] although
distinguishing the facts of the case from those in Magwaza, made it clear that it disagreed
with the approach taken in Magwaza on the basis that the provisions of s 218(2) make the
fact that a pointing out forms part of an inadmissible confession irrelevant to the question of
admissibility. [145] Stafford J, in S v Mmonwa, [146] found that the words “[e]vidence may be
admitted” gave the courts a discretion whether or not to admit such facts. Masilela and
Mmonwa are reconcilable if it is borne in mind that there are numerous considerations other
than the mere
Page 378
inadmissibility of the confession that can influence the court in its determination regarding
the admissibility of the pointing out. [147] The question then arises as to what factors will
guide the court in determining the admissibility of evidence obtained as a consequence of a
pointing out.

Prior to S v Sheehama [148] and S v January; Prokureur-Generaal, Natal v Khumalo [149] it was
clear that central to judicial arguments for admitting a pointing out was that facts discovered
in consequence of an inadmissible confession, unlike the confession itself, cannot be rejected
on the basis that they are likely to be unreliable. [150] In Samhando the court held that
evidence of a pointing out forming part of an inadmissible statement could be admitted in
accordance with the theory of confirmation by subsequently discovered facts. In terms of
this theory the reason for excluding an admission or confession obtained by inducement is
that the evidence is potentially unreliable. However, if the contents of the admission can be
proved to be true by other evidence, the problem of unreliability falls away. Clearly if the
confirmation argument were carried to its logical conclusion, the whole confession could be
admitted if confirmed in material respects by subsequently discovered facts. The courts have
declined to go this far and have expressly held that a confession will not be admitted in the
guise of a pointing out. In Sheehama the court noted that the reliability argument was
dependent on an element of discovery and was therefore not applicable where the pointing
out simply confirmed already known facts. [151] This approach has led the courts to express
disapproval of police practices that might compromise the discovery element in a pointing
out. The courts have found the following practices to be undesirable: a member of the
investigating unit being involved in the pointing out; [152] the involvement of any person in
conducting the pointing out who has prior knowledge of the relevant places or objects; [153]
using an interpreter, during the course of the pointing out, who is attached to the
investigating unit. [154] However, such practices will not automatically render the evidence of
the pointing out inadmissible. In each case the court will determine whether the accused
acted freely and voluntarily. [155]
Prior to the enactment of s 245(2) of the Criminal Procedure and Evidence Amendment
Act 29 of 1955 and its successor s 218(2), there were some judicial objections to the
admission of evidence discovered as a consequence of a
Page 379
pointing out on the basis that it infringed the common-law privilege against self-
incrimination. [156] However, the provisions of s 245(2) were used to strengthen the
argument that a pointing out could not infringe the common-law privilege against self-
incrimination, as evidence of pointing out was not admitted in evidence on the basis that it
amounted to an extra-curial admission,
“but on the basis that it shows that the accused has knowledge of the place or thing pointed out, or of
some fact connected with it, from which knowledge it may be possible, depending on the facts of the
case concerned, to draw an inference pointing to an accused’s guilt”. [157]
The courts went as far as to hold that evidence of a pointing out would be admissible
notwithstanding that it was obtained as a result of the use of violence. [158] This view was
expressly rejected by the Appellate Division in Sheehama, [159] in which the court held:
“[A] pointing out is essentially a communication by conduct and, as such, is a statement by the
person pointing out. If it is a relevant pointing out unaccompanied by any exculpatory explanation by
the accused, it amounts to a statement by the accused that he has knowledge of relevant facts which
prima facie operates to his disadvantage and it can thus in an appropriate case constitute an extra-
judicial admission. As such the common law, as confirmed by the provisions of s 219A of the Criminal
Procedure Act 51 of 1977, requires that it be made freely and voluntarily. It is also a basic principle of
our law that an accused cannot be forced to make self-incriminating statements against his will, and it
is therefore inherently improbable that the legislature, with a view to sound legal policy, could ever
have had the intention in s 218(2) of Act 51 of 1977 to authorize evidence of forced pointings
out.” [160]
However, the court in Sheehama left open the question whether an involuntary pointing out
may nevertheless be admitted where there is the requisite element of discovery (“the
Samhando exception”). The answer was provided in S v January; Prokureur-Generaal, Natal
v Khumalo, [161] where the Appellate Division held that s 219A could not be interpreted so as
to preserve the common law as expounded in Samhando. [162] It found the provisions of
s 219A(1) to be unambiguous and that in terms of this section involuntary admissions are
inadmissible and that “linguistically the subsection admits of no exception”. [163] The court
referred with approval to S v Khumalo, [164] in which it was held that
Page 380
the reliability principle had been disapproved of in our law — consequently “the theory of
confirmation by subsequently discovered facts” must by implication be rejected. [165]
Where a pointing out cannot be separated from the confession, or where it constitutes a
confession itself, a requirement for admission is that the state must prove that it was made
freely and voluntarily, in sound and sober senses and without undue influence. [166] In S v
Mjikwa [167] the court held a pointing out made approximately nine hours after the making of
an involuntary confession to be inadmissible. The court found that it was probable that the
accused had been asked to make the pointing out as a result of the confession and that the
factors that had induced him to make the confession continued to persist at the time of
making the pointing out.
The Constitution upholds the privilege against self-incrimination and provides that no
person shall be compelled to make a confession or admission. [168] It is argued above [169]
that these constitutional provisions support the argument that admissions and confessions
should not be treated differently, and that the requirement of voluntariness should not be
given its restrictive common-law interpretation. Obviously, this argument extends to
admissions arising out of a pointing out and, if followed, would require that a pointing out be
made freely and voluntarily, in sound and sober senses and without undue influence before
being admitted into evidence. [170]
Evidence obtained as a consequence of a pointing out may also be excluded if obtained
unconstitutionally. [171] In S v Melani and Others [172] the court considered the admissibility of
pointings out made by the three accused. Accused No 3 had been wounded on arrest and
declined to make a statement to a magistrate two days after his arrest. But, despite this, he
was a few days later taken to make a pointing out. The court found that these circumstances
were sufficient to raise a reasonable doubt as to whether the accused exercised a free will at
the time of making the pointing out. [173] Consequently the pointing out was excluded from
evidence without reference to the Constitution. (The court appears not to have found it
necessary to determine whether the pointing out
Page 381
constituted an admission or confession.) Accused Nos 1 and 2 had not been properly
informed of their right to legal representation prior to making their pointings out.
Furthermore, accused No 1 had not been warned that the evidence obtained as a result of
the pointing out could be used against him. Froneman J held that non-compliance with the
Judges’ Rules [174] and the failure to advise an accused of his right to legal representation
was not, at common law, a ground for a ruling of inadmissibility. [175] The court then
considered the defence argument that the pointings out should be excluded as they had
been obtained in breach of s 25(1)(c) of the Interim Constitution. This section provided,
inter alia, that every detained person had the right to consult with a legal practitioner and to
be informed of this right promptly. Froneman J held that the provisions of s 25 required the
court to look beyond the reliability and voluntariness of the evidence and to consider the
impact of admitting the evidence on the “fairness of the criminal justice system as a whole
and not only the fairness of the actual trial itself”. [176] The court concluded that the pointings
out were inadmissible as their admission would bring the administration of justice into
disrepute. [177] The admissibility of unconstitutionally obtained evidence is dealt with in
chapter 12 above.
17 8 4 Facts discovered in consequence of information given by the

accused
It is not only facts discovered as a result of a pointing out that are admissible in terms of
s 218(2) but also evidence of any fact or thing discovered in consequence of information
given by such accused, even where that information forms part of an inadmissible
statement. And in terms of s 218(1) evidence of a fact will be admissible notwithstanding
that the witness discovered or obtained knowledge of the fact in consequence of an
inadmissible confession. It also specifically provides that such fact will be admissible even
though it came to the knowledge of the accused against the wish or will of the accused. The
meaning of this latter provision was explained by Milne JP in S v Ismail and Others (1), [178]
where he held that the words “against the wish or will” of the accused apply [179]
“to the actual discovery of the fact sought to be led in evidence, not to the confession containing
information which led to the discovery. A confession may be made to a policeman that the accused
had stolen a large sum of money but the accused might well decline to say where he had hidden it
because he wished to lay his hands upon it after undergoing his punishment for stealing it. But if the
policeman to whom he has made the confession, as a result of information contained in it, finds the
sum of money, evidence that it was so found is admissible notwithstanding that the discovery was
made against his wish or will . . . It seems to me that, although the words are capable of having
Page 382
a meaning sufficient to indicate that the evidence would be admissible, even though the confession
was obtained against the wish or will of the accused, that is not what the words where intended to
mean. The confession itself, even though made voluntarily, would be inadmissible because it was
made to a policeman, unless it was reduced to writing before a magistrate.”
The view that s 218(1) applies only where the confession is found to be inadmissible on
grounds other than that it was made involuntarily or subject to undue influence accords with
the fundamental rule that persons should not be compelled to incriminate themselves.
In S v Mokahtsa [180] the court held that the requirement of voluntariness must also be
met in circumstances where facts are discovered in consequence of information given by the
accused where the supplying of such information amounted to an admission by conduct.
However, there was an interesting twist in this judgment. The facts can be summarised as
follows: the accused was arrested in connection with a bank robbery. After intensive
interrogation the accused’s wife was brought to him and he instructed her to hand over the
money to the police. The accused’s wife took the police to the place where the money was
hidden. The court found that the information supplied by the accused had not been given
voluntarily and consequently the accused’s statements were not admissible. But it held that
the fact that it was the accused’s wife who was responsible for the recovery of the stolen
money was admissible. The court held that evidence which connected the accused in another
way with the object involved in the commission of the offence, that is in a manner
independent of the admission by conduct, was not inadmissible merely because the pointing
out of the object or the supplying of information leading to the discovery thereof had not
been made voluntarily. The court used the following analogy: if an accused is coerced into
pointing out the murder weapon, evidence that the accused pointed out the weapon will be
inadmissible; however, evidence that the accused’s fingerprints were found on the weapon
will be admissible, even though the weapon was found only as a result of a coerced pointing
out. [181]
Whether the courts have a discretion to exclude evidence of this nature on the basis that
it was obtained as a consequence of a breach of the accused’s constitutional right not to be
compelled to make an admission or confession, is discussed in § 12 9 7 above.
Page 383
17 9 Confession (and Admission) Admissible Only Against

Maker
A confession is admissible only against the person who made the confession, and may not be
admitted either directly or indirectly against any other person. [182] This rule is also applicable
to admissions and to evidence arising out of a pointing out that constitutes an admission
(see s 219A of the CPA and § 16 4 1 above). In S v Jili [183] the court distinguished between
two types of evidentiary material that may arise out of a pointing out. The first kind are facts
that are discovered as a result of the pointing out. These facts, which exist objectively, if
found to be admissible can be taken into account for all purposes against all accused. The
second is the fact that the accused did the pointing out. The relevance of this evidence is to
establish the extent of the accused’s knowledge by virtue of his ability to do the pointing
out, which amounts to an admission and consequently is admissible only against the person
who did the pointing out.
In chapter 16 above it is argued that if the constitutional privilege against self-incrimination
is to be upheld, a distinction should not be drawn between the requirements of admissibility
for confessions and admissions, and that both admissions and confessions should be
required to be made freely and voluntarily in sound and sober senses and without undue
influence. In this chapter it is noted that the courts have taken an overly technical approach
in distinguishing between admissions and confessions and that the reluctance to classify
statements as confessions appears to have its origins in judicial disapproval of the
requirement that a confession made to a peace officer be reduced to writing. This
requirement, prior to Zuma, was coupled with a proviso that once a confession was reduced
to writing in the presence of a magistrate and certain requirements were met it would be
presumed to be have been made freely and voluntarily, in sound and sober senses and
without undue influence. This proviso has been found to be unconstitutional and has been
held to be an infringement of the presumption of innocence. [184] The requirement of writing
and confirmation in the case of certain peace officers has not provided the intended
protection to accused persons as it has “had the effect of dropping a veil between the
treatment of the accused by his custodians and his resulting confession”. [185] Therefore
there would appear to be little reason to retain it. The scrapping of this requirement should
also reduce resistance to the notion of making both admissions and confessions subject to
the same requirements of admissibility. Once the distinction between confessions and
admissions is removed the necessity of retaining the restrictive and technical common-law
Page 384
interpretation of voluntariness is removed, because it can be subsumed under the umbrella

of undue influence. [186]
[1] The meaning of the term “confession” is discussed in § 17 3 below.

[2] R v Warickshall 1783 1 Leach 263; Rex v Samhando 1943 AD 608. See also Wigmore para 823.
[3] See S v Radebe and Another 1968 (4) SA 410 (A) 418-19.
[4] See Rex v Duetsimi 1950 (3) SA 674 (A); S v Sheehama 1991 (2) SA 860 (A). The rationale for upholding the
privilege against self-incrimination is discussed in § 10 2 1 above. See also generally Mirfield Silence, Confessions
and Improperly Obtained Evidence (1997) 15.
[5] 1994 (2) SACR 801 (A).
[6] See also S v De Vries 1989 (1) SA 228 (A) 233, quoting from R v Wong Kam-ming 1980 AC 247 (PC); 1979 1
All ER 939 261.
[7] Although the issue was raised in S v Molimi 2008 (2) SACR 76 (CC), the court found it unnecessary to decide
the issue.
[8] See S v Erasmus 1995 (2) SACR 373 (E), in which the court held that the necessary confirmation could be
found in another extra-curial statement made by the accused. See further §§ 30 3 3–30 3 3 4 below.
[9] See Zeffertt & Paizes 523 and Van der Merwe (ed) Evidence (1983), where it is noted that the courts’ strict
approach in interpretation was due to the initial unfavourable view of the strict requirements for admissibility. See,
eg, the dictum of Wessels J in R v Hans Veren 1918 TPD 218 at 221, approved by the Appellate Division in Rex v
Becker 1929 AD 167.
[10] Supra 171. See also S v Grove-Mitchell 1975 (3) SA 417 (A).
[11] See, eg, Rex v Viljoen 1941 AD 366; Rex v Viljoen supra.
[13] Supra.
[14] For example, self-defence.
[15] See S v Yende 1987 (3) SA 367 (A).
[16] S v Motara 1963 (2) SA 579 (T). See also Yende supra 374.
[17] Supra 375.
[18] See ch 28 below and particularly ch 29 below for a discussion of the constitutionality of these provisions. And
see ch 31 below for a discussion of the burden of proof and the evidentiary burden.
[19] 1949 (1) SA 620 (A).
[20] Section 32 of Act 28 of 1937 — which has subsequently been repealed.
[21] 1956 (2) SA 288 (A).
[22] Which is now repealed.
[23] At 294A-B.
[24] At 473 (emphasis in the original).
[25] Supra.
[26] See Zeffertt 1987 SALJ 537.
[27] The words of Greenberg J in R v Kant 1933 WLD 128 at 129. However, it should be noted that subjective
factors are not totally irrelevant in that they may be one of the surrounding circumstances taken into account in
determining the objective meaning of the statement. See S v Yende supra 374; see also S v Motloba 1992 (2) SACR
634 (BA) 638, in which the court approved and applied the objective test, but noted that the intention of the person
making the statement may be important in certain circumstances, eg, to resolve an ambiguity.
[28] 1941 CPD 3.
[29] 1967 (4) SA 639 (W).
[30] In Van der Merwe (ed) Evidence 250 it is noted that the bulk of authority favours the view taken by Lansdown
& Campbell 866-7, “that where the statement is an unequivocal admission equivalent to a plea of guilty to a lesser
offence of which the accused could competently be convicted on the indictment, then it ranks as a confession of that
lesser offence”. See S v Gcaba 1965 (4) SA 325 (N); Rex v Ahmed and Another 1940 AD 333; S v Ori 1963 2 PH
H165 (D); S v Lalamani 1981 (1) SA 999 (V) 1001.
[31] Supra.
[32] At 476.
[33] S v Radebe and Another 1968 (4) SA 410 (A); S v Lebone 1965 (2) SA 837 (A).
[34] The fact that a confession is found to contain material untruths will give rise to doubts as to the voluntariness
of the confession. See R v Wong Kam-ming 1980 AC 247 (PC); 1979 1 All ER 939; S v Blom 1992 (1) SACR 649 (E).
[35] Van der Merwe (ed) Evidence 253; Zeffertt & Paizes 530.
[36] See Zeffertt & Paizes 530; S v Radebe and Another 1968 (4) SA 410 (A); Rex v Kuzwayo 1949 (3) SA 761
(A).
[37] Rex v Blyth 1940 AD 355; R v Mtabela 1958 (1) SA 264 (A); R v Ramsamy 1954 (2) SA 491 (A).
[38] See Rex v Kuzwayo 1949 (3) SA 761 (A) 768.
[39] R v Nhleko 1960 (4) SA 712 (A); R v Masinyana 1958 (1) SA 616 (A); S v W 1963 (3) SA 516 (A).
[40] R v Masinyana supra. However, a self-induced expectation of some benefit will not qualify as undue influence.
See S v Ndika and Others 2002 (1) SACR 250 (SCA).
[41] R v Jacobs 1954 (2) SA 320 (A).
[42] Williamson J in S v Mpetha and Others (2) 1983 (1) SA 576 (C). See also S v Pietersen and Others 1987 (4)
SA 98 (C); S v Williams and Others 1991 (1) SACR 1 (C); S v Colt and Others 1992 (2) SACR 120 (E); cf S v Mafuya
and Others (1) 1992 (2) SACR 370 (W).
[43] S v Pietersen and Others supra.
[44] 1983 (1) SA 576 (C) 585.
[45] At 585C-D.
[46] S v Mkwanazi 1966 (1) SA 736 (A). See also S v Mpetha and Others (2) supra 585.
[47] S v Mkwanazi supra, S v Christie 1982 (1) SA 464 (A), S v Zulu and Another 1998 (1) SACR 7 (SCA). Cf S v
Wanna and Others 1993 (1) SACR 582 (Tk), in which the court held that, as a matter of general principle, a threat of
detention, particularly detention in solitary confinement, would constitute undue influence.
[48] See S v Mshumpa and Another 2008 (1) SACR 126 (E). There is now clear judicial recognition that
confessions are not merely excluded for potential unreliability, but because people should not be subjected to ill
treatment or improper abuses. The Judges’ Rules were designed especially to prevent such abuse; therefore logic
dictates that a breach of the Judges’ Rules should at least provide a prima facie case for exclusion.
[49] The courts have also suggested that the right to legal representation should be explained to the accused when
he is brought before a magistrate to have his confession recorded. S v Januarie en Andere 1991 (2) SACR 682 (SE);
S v Mbambeli and Others 1993 (2) SACR 388 (E).
[50] S v Molefe and Others 1991 (4) SA 266 (E).
[51] 1994 (2) SACR 709 (SE).
[52] At 717g-i. See also S v Melani and Others 1996 (1) SACR 335 (E).
[53] S v Khan 1997 (2) SACR 611 (SCA). S v Khumalo 1992 (1) SACR 28 (C). The question whether such failure
would warrant exclusion in terms of s 35(5) of the Constitution, is discussed in § 12 9 4 above.
[54] 1993 (2) SACR 487 (A).
[55] The Canadian Supreme Court in R v T (E) 109 DLR (4th) 141, referring to both the Charter of Rights and the
Young Offenders Act RSC 1985, held that parental assistance is not an alternative to legal representation and found
that where a young person was assisted by a parent but not advised of the right to counsel the constitutional
guarantee of the right to counsel had not been upheld, and consequently the confession made by the young offender
was held to be inadmissible. See also Schwikkard 1994 SACJ 141.
[56] 1995 (1) SACR 394 (SE). See also S v Manuel en Andere 1997 (2) SACR 505 (C).
[57] See § 10 2 3 1 above. See also ch 12 above for a full discussion of the admissibility of unconstitutionally
obtained evidence.
[58] This can become obscured when a judgment does not clearly identify the basis for exclusion. See for example
S v Mkhize 2011 (1) SACR 554 (KZD); S v Saloman and Others 2014 (1) SACR 93 (WCC) in which Davis J excluded
evidence on the basis of incompetent legal representation. For a critical comment on Saloman, see Schwikkard
(2014) 27 SACJ 293.
[59] 1926 AD 419.
[60] Act 32 of 1916.
[61] Act 31 of 1917, now the CPA.
[62] The successor to the 1916 Act, the Insolvency Act 24 of 1936, has similar provisions. However, s 65(2A)(a)
prohibits the publication of any information obtained at such interrogation and s 65(2A)(b) stipulates that
incriminating questions and answers given at such an interrogation are not admissible in criminal proceedings except
where the offence charged is one of perjury. In S v Vermaas (2) 1994 (2) SACR 622 (T) the court held that these
provisions did not prohibit the Master of the Supreme Court from handing over the record of the s 65 interrogation to
the Director of Public Prosecutions.
[63] At 424.
[64] Rex v Carson supra 424. See also S v Hlekani 1964 (4) SA 429 (E); S v African Bank of South Africa Ltd and
Others 1990 (2) SACR 585 (W).
[65] 1956 (4) SA 824 (A).
[66] At 831C.
[67] At 834A.
[68] See Nel v Le Roux NO and Others 1996 (1) SACR 572 (CC); S v Dlamini; S v Dladla and Others; S v Joubert;
S v Schietekat 1999 (2) SACR 51 (CC); Park-Ross and Another v Director: Office for Serious Economic Offences 1995
(1) SACR 530 (C).
[69] 1996 (1) SA 984 (CC).
[70] Act 61 of 1973. The present s 417(2)(b) provides as follows: “Any such person may be required to answer
any question, put to him or her at the examination, notwithstanding that the answer might tend to incriminate him
or her and shall, if he or she does so refuse on that ground, be obliged to so answer at the instance of the Master or
the Court: Provided that the Master or the Court may only oblige the person in question to so answer after the
Master or the Court has consulted with the Director of Public Prosecutions who has jurisdiction.” The section must
also be read with s 417(2)(c). See n 166 in § 10 2 4 above.
[71] It is submitted that in South Africa the position would be similar and should these provisions be challenged in
terms of other provisions contained in ch 2, for example s 14 (the right to privacy), they will most probably be found
to meet the requirements of the limitations clause. See Podlas v Cohen and Bryden NNO and Others 1994 (4) SA 662
(T).
[72] 68 DLR (4th) 518.
[73] RSC 1970.
[74] At 522c.
[75] See s 35(3)(h) and (j) of the Constitution.
[76] 1996 (1) SA 1152 (W). See also Seapoint Computer Bureau (Pty) Ltd v Mcloughlin and De Wet NNO 1997 (2)
SA 636 (W).
[77] At 1159B.
[78] At 1158I. Cf Williams v Deputy Superintendent of Insurance 1993 18 CRR (2d) 315.
[79] See § 16 7 1 1 above for a discussion of the requirement of voluntariness. See also S v Botha and Others (2)
1995 (2) SACR 605 (W) discussed in § 10 2 3 1 2 above.
[80] Section 334(1) empowers the Minister, by notice in the Government Gazette, to declare certain persons to be
peace officers for certain prescribed periods.
[81] R v Debele 1956 (4) SA 570 (A).
[82] R v Debele supra; R v Tshetaundzi 1960 (4) SA 569 (A).
[83] R v Hans Veren 1918 TPD 218.
[84] R v Tshetaundzi supra. The prosecution may invoke s 231 of the CPA in order to prove that a confession was
made to, or recorded by, a magistrate (see S v Kekane and Others 1986 (4) SA 466 (W)). Section 231 provides that
the mere production of a document that purports to bear the signature of a holder of public office, and which bears a
stamp or seal purporting to be that of his department, office or institution, is prima facie proof that he signed it. In S
v Jika and Others 1991 (2) SACR 489 (E) the court held that in the absence of such stamp or seal, before the
documents in question could be proved by their mere production and before the onus would shift to the accused in
terms of s 217(1)(b)(ii), it had to be established by viva voce evidence that the statements had been recorded by
the magistrate.
[85] S v Mcasa and Another 2005 (1) SACR 388 (SCA).
[86] R v Jacobs 1954 (2) SA 320 (A). In S v Mkize 1992 (2) SACR 347 (A) the accused made two admissible
confessions, at different times and contained in separate statements. The statements contradicted each other in
material respects and the court had to determine whether the two statements should be dealt with as part of one
and the same exposition by the accused of his version of events. The court held that the logical rationale behind
regarding statements as a composite whole was that, where one part of what was said qualified or altered another,
both should be considered together, but where part of what was said did not so qualify, alter or explain another part,
but merely contradicted it, different considerations apply, and when the parts are made at different times they
cannot artificially be brought together to form one identity.
[87] In S v Potwana and Others 1994 (1) SACR 159 (A) the court noted that although policeman of certain rank
are entitled to record confessions, it is obviously preferable for an accused to be brought before a magistrate.
[88] In S v Mogale en ’n Ander 1980 (1) SA 457 (T) the court held that a confession by means of a tape-recording
and the transcription thereof did not meet the requirement of writing and did not fulfil the requirements of s 217(1)
(a). This decision has been the subject of much criticism. See Van der Merwe (ed) Evidence 259.
[89] 1995 (1) SACR 568 (CC).
[90] The court held that any application of s 217(1)(b)(ii) was invalid in any criminal trial which commenced
before, on, or after 27 April 1994 and in which a verdict had not been given by 27 April 1994. See also S v Mhlungu
and Others 1995 (2) SACR 277 (CC); S v Shikunga and Another 1997 (2) SACR 470 (NmS); S v Mvelase 1997 (2)
SACR 445 (N).
[91] S v Mdluli and Others 1972 (2) SA 839 (A); S v Mahlabane 1990 (2) SACR 558 (A).
[92] S v Dhlamini and Another 1971 (1) SA 807 (A).
[93] 1994 (1) SACR 447 (A).
[94] 1987 (2) SA 272 (A).
[95] See also S v Mavela 1990 (1) SACR 582 (A). Cf S v Mbele 1981 (2) SA 738 (A); S v Magwaza 1985 (3) SA 29
(A). In S v Jantjie and Others 1992 (1) SACR 24 (SE) the state failed to provide the accused with a copy of a
confession allegedly made by the accused. The court held this was manifestly unjust and unfair and constituted an
irregularity and that the only way the accused could have a fair and just trial would be to exclude the confession
from evidence.
[96] See also S v Khoza en Andere 1984 (1) SA 57 (A) 59-60; S v Nzama and Another 2009 (2) SACR 326 (KZP).
[97] 1992 (2) SACR 120 (E) 123h-124a. See also S v Jika and Others 1991 (2) SACR 489 (E); Rex v Gumede and
Another 1942 AD 398.
[98] See also Naude (2011) 26 SAPL 464.
[99] See for example S v Maasdorp 2008 (2) SACR 296 (NC). The South African Law Commission in its Report,
Project 73, Simplification of Criminal Procedure (A more inquisitorial approach to criminal procedure — police
questioning, defence disclosure, the role of judicial officers and judicial management of trials) August 2002, has
recommended that the requirement that confessions, not made to a justice of the peace, be reduced to writing and
confirmed in the presence of a magistrate be done away with.
[100] Where two or more accused are being tried, and a number of them challenge the admissibility of a
confession, the trials within trials may be consolidated in order to be fair and just to the accused. See S v Letsoko
and Others 1964 (4) SA 768 (A); S v Yengeni and Others (2) 1990 (4) SA 429 (C). In S v K and Another 1999 (2)
SACR 388 (C) the court held, that before dealing with the issue of admissibility at a trial within a trial, it was
necessary to first complete a preliminary enquiry to establish whether the statement was an admission or confession.
[101] S v Masakale and Another 2009 (1) SACR 295 (W).
[102] 1996 (2) SACR 563 (W).
[103] S v Mofokeng 1992 (2) SACR 261 (O); S v Ntuli en ’n Ander 1995 (1) SACR 158 (T). Cf S v Mndebele 1995
(1) SACR 278 (A): on appeal it was argued that evidence of certain pointings out had been incorrectly considered as
part of the merits when they should have been considered at a trial within a trial. The Appellate Division held that
there had been no irregularity in the circumstances of the case: the defence had not insisted on a trial within a trial
and had expressly informed the court that the issue was not one of admissibility but rather of accuracy.
[104] 2006 (1) SACR 257 (E).
[105] See also Director of Public Prosecutions, Transvaal v Viljoen 2005 (1) SACR 505 (SCA).
[106] The admissibility of a confession may be decided by a judge sitting alone if the judge is of the opinion that it
is in the interests of the administration of justice to do so. See s 145(4) of the CPA.
[107] S v Gaba 1985 (4) SA 734 (A). In S v Nkata and Others 1990 (4) SA 250 (A) the court held that an
inadmissible confession may not be referred to by the prosecution at any stage of the proceedings for any purpose
whatsoever.
[108] Rex v Dunga 1934 AD 223; S v De Vries 1989 (1) SA 228 (A). In S v Yengeni and Others (3) 1991 (1) SACR
387 (C) the court held that the accused could be cross-examined on his guilt only where the accused himself raised
the issue of guilt or innocence in support of his argument that the confession was inadmissible.
[109] S v Gxokwe and Others 1992 (2) SACR 355 (C).
[110] S v Lebone 1965 (2) SA 837 (A); S v Khuzwayo 1990 (1) SACR 365 (A); S v Molimi 2008 (2) SACR 76 (CC);
S v Mriba and Others 1995 (2) SACR 585 (E); S v Mokoena and Others 2006 (1) SACR 29 (W).
[111] See S v Lebone supra; S v Talane 1986 (3) SA 196 (A); S v Mafuya and Others (2) 1992 (2) SACR 381 (W);
S v Gxokwe and Others 1992 (2) SACR 355 (C), in which the rationale for this exception is clearly set out at 358.
[112] S v Lebone supra; S v Potwana and Others 1994 (1) SACR 159 (A).
[113] Supra. See also S v Maake 2001 (2) SACR 288 (W) in which Borchers J held that the exception that permits
the contents of a disputed statement to be admitted prior to a determination of admissibility where the accused
alleges that he or she was told what to say or point out, is restricted to those circumstances in which the accused
testifies.
[114] 2001 (1) SACR 326 (W).
[115] See S v Gaba 1985 (4) SA 734 (A); S v Potwana and Others supra.
[116] At 333d.
[117] R v Melozani 1952 (3) SA 639 (A); S v W 1963 (3) SA 516 (A); S v Mkwanazi 1966 (1) SA 736 (A). See also
S v Tsotetsi and Others (3) 2003 (2) SACR 648 (W).
[118] S v Ntuli 1993 (2) SACR 599 (W).
[119] S v De Vries 1989 (1) SA 228 (A); S v Sithebe 1992 (1) SACR 347 (A); S v Malinga 1992 (1) SACR 138 (A);
S v Mlomo 1993 (2) SACR 123 (A); S v Shezi 1994 (1) SACR 575 (A). But see also generally S v Nglengethwa 1996
(1) SACR 737 (A). In De Vries and S v Sithebe supra the court left open the question as to whether an accused who
elects to testify at the main trial can be cross-examined on what he said in the trial within a trial about the merits. Cf
S v Gquma and Others (2) 1994 (2) SACR 182 (C), where the court held that once a statement and pointing out had
been ruled admissible at the trial within a trial the accused could be cross-examined in the main trial on the contents
of his evidence during the trial within a trial. See also S v Muchindu 2000 (2) SACR 313 (W) in which the court held
that evidence already led in the main trial may be referred to at a trial within a trial.
[120] S v Masakale and Another supra at [10]. See also S v Muchindu 2000 (2) SACR 313 (W); S v Gquma and
Others (2) 1994 (2) SACR 182 (C); S v Sabisa 1993 (2) SACR 525 (TKA); S v Mkwanazi 1966 (1) SA 736 (A).
[121] S v Mkwanazi supra. See also S v Zulu and Another 1998 (1) SACR 7 (SCA).
[122] Rex v Perkins 1920 AD 307.
[123] 1990 (4) SA 250 (A).
[124] Paizes in Du Toit et al Commentary 24-66J says: “The principle contained in this section is an extension of
the common-law rule of completeness.” See Rex v Valachia and Another 1945 AD 826; S v Cele 1985 (4) SA 767
(A); S v Nieuwoudt 1990 (4) SA 217 (A).
[125] 1990 (4) SA 217 (A).
[126] 1942 WLD 82 85-6.
[127] 1949 (1) SA 548 (A).
[128] At 554.
[129] 1981 (1) SA 771 (T).
[130] 1982 (4) SA 52 (NC).
[131] See also S v Mokoena 1978 (1) SA 229 (O); S v Minnie 1986 (4) SA 30 (E).
[132] 1995 (1) SACR 180 (W).
[133] 1997 (1) SACR 194 (W).
[134] In S v De Villiers en ’n Ander 1999 (1) SACR 297 (O) the court held that where a witness had unnecessarily
referred to a confession when answering questions in cross-examination, the confession remained inadmissible.
[135] 1994 (1) SACR 141 (A). Cf S v Aimes and Another 1998 (1) SACR 343 (C) as discussed in § 12 8 6 above.
[136] The South African Law Commission in its report, Project 73, The Simplification of Criminal Procedure (A more
inquisitorial approach to criminal procedure — police questioning, defence disclosure, the role of judicial officers and
judicial management of trials) August 2002, has recommended that s 218(2) of the CPA be repealed, and that the
admissibility of confessions, admissions and pointing outs all be placed on the same footing ie in each instance the
oral statement or the statement by conduct must be proved to have been made freely and voluntarily, in sound and
sober senses and without undue influence.
[137] S v Nkwanyana 1978 (3) SA 404 (N) 405H.
[138] See R v Tebetha 1959 (2) SA 337 (A) 346, where Hoexter JA held that “the mere pointing out . . . is
sufficient by itself to prove his knowledge of the thing pointed out or some fact connected with it”. See S v Mncube
en ’n Ander 1991 (3) SA 132 (A); S v Francis 1991 (1) SACR 198 (A) 207g-h as to what inferences can be drawn
from the fact of the accused’s knowledge.
[139] 1959 (2) SA 337 (A).
[140] See Paizes in Du Toit et al Commentary 24-67, where the majority decision in Tebetha is criticised. See also
Zeffertt “Pointing Out” in Kahn (ed) Fiat Iustitia: Essays in Memory of Oliver Deneys Schreiner (1983) 395.
[141] R v Nhleko 1960 (4) SA 712 (A).
[142] S v Mbele 1981 (2) SA 738 (A).
[143] 1985 (3) SA 29 (A) 39.
[144] 1987 (4) SA 1 (A).
[145] See also S v Mathebula 1991 (1) SACR 306 (T).
[146] 1990 (1) SA 81 (T).
[147] See S v Sheehama 1991 (2) SA 860 (A) 881. See also Schwikkard 1991 SACJ 318. It can be argued that the
inadmissibility of the confession does remain relevant in so far as it would be absurd if the provisions of s 217 were
negated by permitting the prohibited confession to be admitted through manipulation of s 218(2).
[148] Supra.
[149] 1994 (2) SACR 801 (A).
[150] R v Warickshall 1783 1 Leach 263; Rex v Samhando 1943 AD 608; S v Duna and Others 1984 (2) SA 591
(CkS). Cf Rex v Camane and Others 1925 AD 570.
[151] Supra 877.
[152] S v Mbele 1981 (2) SA 738 (A).
[153] S v Nyembe 1982 (1) SA 835 (A).
[154] S v Mahlabane 1990 (2) SACR 558 (A).
[155] S v Abbott 1999 (1) SACR 489 (SCA).
[156] See S v Camane supra; Rex v Duetsimi 1950 (3) SA 674 (A). Cf Rex v Samhando supra.
[157] S v Tsotsobe and Others 1983 (1) SA 856 (A).
[158] S v Ismail and Others (1) 1965 (1) SA 446 (N); Rex v Samhando supra.
[159] Supra 879 and 880.
[160] Headnote. See S v Monyane and Others 2001 (1) SACR 115 (T) in which the court held that photographs
which are pictorial representations of a pointing out by the accused should be treated similarly to admissions by
conduct and consequently their admissibility has to be proved beyond a reasonable doubt at a trial within a trial. See
also S v Maake 2001 (2) SACR 288 (W). Cf S v Muchindu and Others 1994 (2) SACR 467 (W).
[161] Supra.
[162] Supra. Cf S v Jordaan 1992 (2) SACR 498 (A).
[163] At 806.
[164] 1992 (2) SACR 411 (N).
[165] See S v Matlou and Another 2010 (2) SACR 342 (SCA). Davis J in S v Hoho 1999 (2) SACR 159 (C)
confirmed that the approach taken by the court in S v January; Prokureur-Generaal, Natal v Khumalo supra, was
compatible with the constitutional right to a fair trial.
[166] See, eg, S v Zimmerie en ’n Ander 1989 (3) SA 484 (C), in which the court held an explanation and
demonstration by the accused of how they had broken open a window and entered the premises was not a pointing
out but an inadmissible confession. See also S v Yawa and Another supra. Cf S v Post 2001 (1) SACR 326 (W) in
which the court appears to apply the three pronged inquiry applicable to confessions to a pointing out which
constituted an admission.
[167] 1993 (1) SACR 507 (A).
[168] See s 35(1)(a) and (c) and s 35(3)(j).
[169] In § 16 7 1 1 above.
[170] See, eg, S v Melani and Others 1996 (1) SACR 335 (E). Cf S v Hoho supra in which Davis J would appear to
find the common-law requirement of voluntariness sufficient for constitutional compliance.
[171] In S v Melani en Andere 1995 (2) SACR 141 (E) the court held that it had a discretion to admit such
evidence if its exclusion would bring the administration of justice into discredit. This case was decided under the
interim Constitution.
[172] 1996 (1) SACR 335 (E). See also generally § 12 7 2 1 above.
[173] At 342g-h.
[174] See Appendix B to this work.
[175] At 344b. However, the court did acknowledge that it may be incorrect in reaching this conclusion.
[176] At 349d. See also § 12 7 2 1 above.
[177] At 351g. See also S v Mathebula and Another 1997 (1) SACR 10 (W). In Zimbabwe and Namibia evidence of
involuntary pointings out have been excluded on the basis that the admission of such evidence would be contrary to
the constitutional provisions of those countries. See S v Nkomo 1990 (1) SACR 682 (ZS); S v Nkomo 1990 (1) SACR
682 (ZS). See also § 10 2 3 1 above.
[178] 1965 (1) SA 446 (N) 450H-451B; the court in this case dealt with s 245 of Act 51 of 1977, which was the
precursor to s 218 and contained substantially the same provisions.
[179] Cf S v Duna and Others 1984 (2) SA 591 (CkS).
[180] 1993 (1) SACR 408 (O).
[181] This analogy can be challenged on the basis that the fingerprints would be admissible in terms of s 225(2) of
the CPA and not s 218. See § 10 2 3 1 above for a discussion of the ascertainment of bodily features.
[182] This is made explicit in s 219 of the CPA. See S v Molimi 2008 (2) SACR 76 (CC). See also R v Baartman and
Others 1960 (3) SA 535 (A); S v Serobe and Another 1968 (4) SA 420 (A). In S v Makeba and Another 2003 (2)
SACR 128 (SCA) the court held that this prohibition extended to the use of a confession as corroborative evidence
against somebody who was not the maker.
[183] 1989 (4) SA 921 (N).
[184] See S v Jili supra; S v Shangase and Another 1994 (2) SACR 659 (D).
[185] Lansdown & Campbell 874.
[186] As noted above the South African Law Commission has recommended that the writing requirement be
removed and all adverse statements whether they are admissions, confessions or pointing outs be subject to the
same requirements of admissibility. In each instance the state must prove beyond a reasonable doubt that the
statement was made freely and voluntarily, in sound and sober senses and without undue influence.
Page 385
Section G
Kinds of Evidence and Presentation Thereof
18 Oral Evidence –S E van der Merwe

19 Real Evidence –S E van der Merwe
20 Documentary Evidence –P J Schwikkard
21 Electronic Evidence –J de Jager
Page 387
Chapter 18
Oral Evidence
S E van der Merwe
18 1 Introduction
18 4 Impeachment of One’s Own Witness during Examination in Chief
18 5 Examination in Chief: Limited Use of Witness’s Previous Consistent Statement
18 6 Cross-Examination
18 6 5 5 Cross-examination as to credit
18 8 Re-examination
18 11 The Intermediary and Related Procedures
18 11 1 A general assessment of the use of an intermediary in the context of an
adversarial trial
18 11 3 1 Section 170A as a constitutionally permissible limitation (s 36 of
the Constitution)
18 11 3 2 Section 170A and the constitutional injunction “best interests of
the child” (the paramountcy principle in s 28(2) of the
Constitution)
18 12 Evidence by Means of Closed Circuit Television or Similar Electronic Media
Page 388
18 1 Introduction
Generally, evidence for either party must, in both criminal and civil cases, be given orally by
the witnesses in the presence of the parties. There are certain exceptions such as the
receiving of evidence by way of commission, interrogatories or affidavit (see §§ 18 13
to 18 16 below).
The rationale of this practice of orality is that parties should have an opportunity to
confront the witnesses who testify against them, and should be able to challenge the
evidence by questioning in a situation where they — and the court — can also observe the
demeanour of the witness for purposes of assessing his credibility (see § 18 11 2 below). In
S v Adendorff [1] the trial court had allowed the evidence in chief of the appellant to be
presented in violation of the principle of orality. The procedure that was followed by the trial
court was described and criticised as follows by Heher JA: [2]
“Before I conclude I find it necessary to refer to the manner in which the appellant’s evidence was
presented at the trial. At the close of the State case counsel for the appellant informed the magistrate
that he had ‘for the convenience of the court’ prepared a memorandum (of 15 pages) during
consultation with his client and ‘with the court’s leave’ proposed that his client should read it into the
record. The State prosecutor did not object and the court, without comment, allowed counsel to
proceed. This was an entirely improper procedure which should not have been sanctioned. The
consequence was that the evidence-in-chief of the accused was substantially a continuous series of
leading questions derived from a statement the origins of which were an amalgam of his own version
and the thoughts, suggestions and glosses of his legal advisers (and, perhaps, other witnesses who
may have been present during consultation, since the circumstances were never investigated in cross-
examination). The statement was in fact read by counsel into the record, interpolated with his own
comments on it, and occasional additional leading questions . . . The accused said there was nothing
he wished to add to the statement. The result was that the court was deprived of the benefit of
hearing him give evidence-in-chief and had no means of assessing the accuracy of his confirmation.
This might have been of less importance if the prosecutor had made a serious effort to test the
reliability of the statement. But he did not do so. The magistrate was well aware that the evidence of
the appellant was controversial throughout and that the prosecutor was probably ill-prepared. He
abrogated his duty by submitting to counsel’s agreement on the procedure which was adopted.”
Section 161 of the CPA provides that a witness in criminal proceedings should (except where
the CPA or any other law provides otherwise) give evidence viva voce (which in the case of a
deaf and speechless person is deemed to include gesture-language). In the case of a person
under 18 years, viva voce evidence
| Page 389
shall be deemed to include “demonstrations, gestures or any other form of non-verbal
expression”. [3] A witness and an accused may give evidence through an interpreter.
Section 42 of the CPEA incorporates the general common-law provision that a witness
should give oral evidence in civil proceedings. An example of an exception to this rule was
discussed in § 15 2 2 above.

Section 162 of the CPA provides that no person shall be examined as a witness unless he
has taken the oath in the form set out in the section. The oath must be administered by the
judge, registrar, or presiding officer. [4] Section 163 of the CPA allows a person who objects
to taking the oath (either at all or in the prescribed form) to make an affirmation to speak
the truth. An affirmation has the same legal effect as an oath and the maker of both an oath
and affirmation may be charged with perjury or statutory perjury. The oath or affirmation
may be administered through or by an interpreter instructed by the court. [5]
Section 39 of the CPEA provides that no person (other than a person referred to in ss 40
and 41 and (see § 18 2 1 below)) may give evidence except on oath. The oath is to be
administered in the manner which most clearly conveys to the witness the meaning of an
oath and which the witness considers to be binding on his conscience. Section 40 provides
for an affirmation to be made in lieu of an oath.
A person who attends court in obedience to a subpoena duces tecum is not necessarily a
witness and consequently need not take an oath [6] unless he is
Page 390
required to prove the document (that is, where he is required to go into the witness-box and
identify and hand in the document).

Section 164 of the CPA provides that any person, who is found not to understand the nature
and import of the oath or affirmation, may in criminal proceedings give evidence without
taking the oath or making an affirmation. There is, however, a proviso that he should be
admonished by the judge or presiding officer to speak the truth. A person who falsely and
wilfully states an untruth after he has been admonished may be charged with perjury or
statutory perjury. Section 41 of the CPEA has similar provisions for the reception of unsworn
evidence.

A witness with no religious belief shall make an affirmation at the direction of the presiding
officer. [7]
The purpose of examination in chief is to present evidence favourable to the version of the
party calling the witness. The method most frequently adopted is the question-and-answer
technique. This method is used to control the witness so that he does not speak of
inadmissible or irrelevant matters. On the other hand, it is sometimes advisable to allow a
witness to tell his story without interruption as, in this way, a person may tell a story more
convincingly and clearly. [8] A mixture of these two approaches may be the happy medium
provided the person leading the evidence has control of the witness so that he can prevent
the introduction of inadmissible evidence. There is no rule as to which method should be
employed; it lies within the discretion of the person leading the evidence. Strict adherence to
the question-and-answer technique is normally unnecessary where the witness is
experienced in court appearances (for example, a district surgeon or policeman).

A leading question is one which either suggests the answer or assumes the existence of
certain facts which might be in issue. [9] The reason for the prohibition on leading questions
is that the witness might be favourably disposed to the person calling him and readily adopt
the suggested answer. [10] Hoffmann & Zeffertt [11] suggest that human laziness must also be
considered; it is easy to say yes or no when asked something. However, not all questions
which suggest a yes or no answer are
Page 391
leading questions. Wigmore [12] states that questions may legitimately suggest to the witness
the topic of the answer required, but not the specific tenor of the answer desired. In practice
this distinction will depend on the circumstances of each case. [13]

Leading questions are allowed with regard to introductory or uncontested matters. Most
examinations commence by suggesting the witness’s name (“Are you Joe Soap?”), his
address (“Do you live at 14 Jan Smuts Avenue?”) and his personal knowledge of a party
(“Do you know the accused?”). Likewise, in a vehicle accident case the date, place and time
of the accident may be led if these facts are not in dispute. It is often permissible to use
leading questions with regard to such matters as identification of persons or things. [14] The
general rule is that leading questions may be asked in cross-examination [15] (see generally
§ 18 6 2 below).
18 4 Impeachment of One’s Own Witness during Examination in

Chief
Generally speaking a person who calls a witness is considered to hold him out as a truthful
person. However, it sometimes happens that the witness unexpectedly gives evidence
unfavourable to the party calling him. The general rule is that a party may not cross-
examine his own witness unless the witness has been declared by the court to be a hostile
witness (see § 25 3 3 below). There is, however, nothing to prevent the party from calling
other witnesses to contradict the evidence of an unfavourable witness (see § 25 3 1 below).
The party may also in terms of s 190 of the CPA impeach the testimony of the witness and
prove a previous inconsistent statement. A similar approach is possible in civil proceedings
(see § 25 3 2 below). The impeachment of the credit of a witness is dealt with in detail in
chapter 25 below.
18 5 Examination in Chief: Limited Use of Witness’s Previous

Consistent Statement
A party almost invariably presents the evidence in chief of his witnesses on the basis of
earlier extra-curial written statements made by the witnesses concerned. These earlier
statements may generally not be proved or quoted by the party conducting examination in
chief (see § 9 1 above). During examination in chief (and other stages of a trial) the earlier
written statement serves an extremely limited purpose: it merely assists a party to examine
his witness on facts falling within the latter’s knowledge. But there are some instances where
a witness’s previous consistent oral or written statement may — either during examination in
chief or during re-examination — be put to more use on
Page 392
account of its relevance (see § 9 5 above). A witness’s previous written statement may also
be used to refresh his memory whilst he is in the witness-box, but certain strict
requirements must be satisfied. These requirements are discussed in §§ 24 5 to 24 5 6
below.
18 6 Cross-Examination [16]
Cross-examination is a fundamental procedural right. [17] It is one of the essential

components of the accusatorial or adversarial trial and a natural and integral part of our trial
system, where emphasis is placed upon orality. Cross-examination is the name given to the
questioning of an opponent’s witness. It succeeds examination in chief. The essence of any
defence should in principle be introduced during cross-examination. [18]
Failure to allow cross-examination constitutes a gross irregularity. The court has no right
to prevent cross-examination — even if the purpose is to protect the witness. [19]

The purpose of cross-examination is to elicit facts favourable to the cross-examiner’s case
and to challenge the truth or accuracy of the witness’s version of the disputed events. [20]
Page 393
The scope of cross-examination is wider than that of examination in chief. The cross-
examiner is also not restricted to matters covered by the witness in his evidence in chief. [21]
A number of methods may be used in cross-examination to test the reliability, credibility

and observation of the witness. A witness may be asked the same question more than once
in cross-examination in order to test the witness; but pointless repetition may be stopped by
the court. [22] The court should not forbid the cross-examiner the right to ask a witness to
repeat something that has already been said in chief merely because it has already been
said. [23] But the court may curtail cross-examination where the cross-examiner endeavours
to wear the witness down or where there are grounds to intervene on the basis of s 166(3)
of the CPA (see § 18 6 5 6 below).
Leading questions may as a rule be asked in cross-examination (compare § 18 3 1 above).
But there is a measure of dispute as to whether leading questions may be put to witnesses
who are obviously favourably disposed to the cross-examiner. [24] A court is obviously
entitled to attach less weight to answers given to leading questions put by a cross-examiner
to a favourable witness. [25] A cross-examiner who wishes to put blatant leading questions to
a favourable witness must therefore consider this risk.

The right to cross-examine arises as soon as any witness of an opponent has been sworn or
admonished or has made an affirmation. This right may be exercised even if the witness
does not give evidence in chief. In the event of a joint trial, each accused is entitled to cross-
examine a co-accused who has testified. The cross-examination of witnesses called by the
court is discussed in § 18 10 below.
A party may as a rule not cross-examine his own witness. Those exceptional cases where
a party is allowed to cross-examine his own witness are discussed in detail in § 25 3 3
below.
Page 394

A party has a duty to cross-examine on aspects which he disputes. [26] His failure to cross-
examine may in appropriate cases have evidential consequences in that an adverse
inference may be drawn against him (see § 30 8 below). The rationale of this duty to cross-
examine is that if it is intended to argue that the evidence of the witness should be rejected,
he should be cross-examined so as to afford him an opportunity of answering points
supposedly unfavourable to him. [27]
Generally the failure of the prosecutor to cross-examine an accused may be decisive. [28]
A failure to cross-examine by a simple peasant does not necessarily signify guilt. [29] It is
the duty of the court to tell an undefended accused to put relevant portions of his defence to
a witness. [30] The court must assist illiterate persons and undefended persons. [31]
There are limits beyond which cross-examination should not go. The most important limits
are discussed in §§ 18 6 5 1 to 18 6 5 7 below.
Page 395
Vexatious, abusive, oppressive or discourteous questions may be disallowed. [32] Much will
depend, however, upon the demeanour of the witness who is being cross-examined. The
court will allow a cross-examiner to cut a rude or sarcastic witness down to size, but will
adopt a different approach where a witness is for no reason harassed by abusive cross-
examination. The dignity of the court must, above all, be maintained. Cross-examination
need not always be aggressive in order to be effective.
In S v Omar [33] it was held that the conduct of the prosecutor in cross-examining the
accused was unseemly and unfair, being hectoring, rude and unreasonable, and that, even
though the accused’s counsel had not objected to such cross-examination, the presiding
officer was not absolved from ensuring that he received a fair trial or from requiring those
who appear before him to comport themselves properly in his court. It is the duty of the
court to prevent unfair questions as often as is necessary. [34]
Misleading or vague statements should not be put to a witness. In S v Kubeka it was
said: [35]
“[W]hile it is perfectly permissible cross-examination to test a witness’s version of events by
ascertaining the details thereof and then by interrogating him about them, one ought not in cross-
examination so to couch one’s questions that they appear as statements of fact to which others will
depose when in truth the ‘facts’ in question are not part of one’s case and no evidence is intended to
be led thereon. Questions put in this way are apt to mislead the witness.”
A cross-examiner should take care before asserting that a witness has previously said
something in his evidence which had in fact not been said; and the court should curb this
type of questioning. [36]
Inadmissible evidence may not be put to nor elicited from a witness. An accused may, for
example, not be cross-examined on the basis of an inadmissible confession. [37] Cross-
examination on the basis of a privileged statement is also inadmissible. [38]
Page 396
In civil cases, where a person elicits inadmissible evidence which is unfavourable to him or
fails to object to such type of evidence, he may be held to have consented to its admission.
In criminal cases, generally, where an accused elicits unfavourable evidence which is
inadmissible, this evidence does not become admissible. However, there are certain
qualifications. [39]
In Rex v Bosch [40] the accused elicited an inadmissible hearsay confession which
presumably formed a natural part of the answer. This did not constitute an irregularity.
According to Lansdown & Campbell, [41] the effect of this decision is that a statutory or
common-law exclusionary rule of evidence which would prevent the state or the court from
eliciting certain inadmissible evidence cannot be applied to the accused who elicits
inadmissible evidence during cross-examination (provided the evidence is to the advantage
of the accused and was elicited by a purposive question put by the defence). It has been
argued [42] that a confession elicited by an accused in cross-examination is admissible
against him to prove state of mind (even if such confession was made to a peace officer). It
is submitted that Rex v Bosch is merely authority for the rule that if an accused elicits
inadmissible evidence, he may not later on appeal or review argue that as a result of the
recording of such inadmissible evidence an irregularity took place. [43] The evidence may not
be used to prove the guilt of the accused. [44] The issues which arose in Rex v Bosch and the
effect of s 217(3) of the CPA were discussed in greater detail in § 17 7 above. It should also
be borne in mind that s 217(3) of the CPA (quoted in § 17 7 above) has to some extent
modified Rex v Perkins, [45] where it was held that an accused could not by waiver or consent
render admissible a statement which the legislator had expressly and unconditionally
declared to be inadmissible.
In terms of ss 197 and 211 of the CPA an accused who gives evidence may neither be asked
nor be required to answer any questions which tend to show that he has been convicted of
or charged with any other offence apart from the one on which he is standing trial. But s 197
also makes provision for specific instances where questions of this nature are admissible.
These instances were discussed in detail in §§ 6 2 3 1 to 6 2 3 4 above.
18 6 5 5 Cross-examination as to credit [46]
This aspect and the rule that answers given to questions in cross-examination relating to
collateral issues are final, are discussed in greater detail in chapter 25 below. A few
introductory remarks are necessary at this stage.
Page 397
A witness may be cross-examined as to his memory, perception, reliability, consistency,

honesty and accuracy in relating his story. Fairly wide bounds are permitted in cross-
examination. But in R v Sacks [47] a cross-examiner was not allowed to ask a witness
whether he had previously been in trouble for illicit diamond buying as this could not have
affected his credibility. In Gillingham v Gillingham [48] a question as to whether a witness had
committed adultery was disallowed as it had no bearing on his credibility and the answer
could not in any way have assisted the court in determining the issues. In Heystek v Alge
and Paiken [49] it was held that a witness could be asked if his testimony had been rejected
in previous proceedings, but if he denies, the answer must be taken as final (see § 25 2 1
below).
An answer to a question which solely concerns the credibility of a witness must be
accepted as final (see § 25 2 1 below). This is so as to prevent endless collateral issues from
being investigated. [50] It is sometimes difficult to decide whether an issue is sufficiently
relevant to allow contradictory evidence to be led.
There are, however, two situations where cross-examination as to credit may be followed
up with contradicting evidence. These situations are dealt with in detail in §§ 25 2 2
and 25 2 3 below.
A court must permit a fair measure of latitude in cross-examination and it must “avoid even
suspicion that the defence is muzzled”. [51] There are, however, situations where cross-
examination is abused and degenerates “to a treadmill of repetition and a quagmire of
irrelevancies”. [52] Courts have a common-law power to curtail this kind of cross-
examination. [53] But given their passive role in the adversarial system and the constitutional
right to a fair trial, courts are generally inclined not to interfere. [54]
The legislature has — for purposes of criminal cases — strengthened the hands of the
courts to curtail cross-examination. Section 8 of the Criminal Procedure Amendment Act [55]
added s 166(3) to the CPA. Section 166(3) came

Page 398
into operation on 1 September 1997. [56] Section 166(3)(a) provides that if it appears to the
court that cross-examination is being protracted unreasonably and thereby causing an
unreasonable delay in the proceedings, the court may request the cross-examiner to disclose
the relevancy of any particular line of examination and may impose reasonable limits on the
length of the examination or any particular line of examination. [57] In terms of s 166(3)(b)
the court may order that any submission regarding the relevancy of the cross-examination
be heard in the absence of the witness. The purpose of this provision is to ensure that
counsel who is requested by the court to disclose the relevancy of a particular line of cross-
examination, cannot argue that such disclosure would prematurely make the witness aware
of what counsel is seeking to establish or probe.
Paragraph 3 3 of the Code of Conduct: Uniform Rules of Professional Ethics of the General
Bar Council of South Africa requires advocates to observe the following ethical rules in cross-
examining witnesses: (a) Questions which affect the credibility of a witness by attacking his
character, but are not otherwise relevant to the actual enquiry, ought not to be asked unless
the cross-examiner has reasonable grounds for thinking that the imputation conveyed by the
question is well-founded or true. (b) An advocate who is instructed by his attorney that in
his opinion the imputation is well-founded or true, and is not merely instructed to put the
question, is entitled prima facie to regard such instructions as reasonable grounds for so
thinking and to put the question accordingly. (c) An advocate should not accept as
conclusive the statement of any person other than the attorney instructing him that the
imputation is well-founded or true, without ascertaining, so far as is practicable in the
circumstances, that such person can give satisfactory reasons for his statement. (d) Such
questions, whether or not the imputations they convey are well-founded, should only be put
if, in the opinion of the cross-examiner, the answers would or might materially affect the
credibility of the witness; and if the imputation conveyed by the question relates to matters
so remote in time or of such a character that it would not affect the credibility of the
witness, the question should not be put. (e) In all cases it is the duty of the advocate to
guard against being made the channel of questions which are only intended to incense or
annoy either the witness or any other person. Counsel must exercise his own judgment as to
the substance and form of the question put.
Paragraph 3 4 of the above Code of Conduct also provides that counsel defending a client
on a criminal charge, is not entitled wantonly or recklessly to attribute to another person
(who, for example, may be a prosecution witness
Page 399
who is being cross-examined) the crime with which his client is charged. [58] This paragraph,
however, also provides that counsel may make an imputation of criminal conduct where “the
facts or circumstances given in the evidence, or rational inferences drawn from them, raise
at the least a not unreasonable suspicion that the crime may have been committed by the
person to whom the guilt is so imputed”.

Cross-examination usually takes place immediately after examination in chief. Cross-
examination may be reserved, but it is solely within the discretion of the court whether to
allow this to happen. [59] Once an application to reserve cross-examination has been granted,
the court cannot later deny the defence the exercise of that right — irrespective of the stage,
before judgment, at which the proceedings might be. [60]
In criminal cases it is customary to allow the accused to cross-examine in the order that
they are listed in the charge sheet. Parties in civil cases will usually cross-examine in the
order that their names appear on the record. [61] Defence witnesses called by one accused
may be cross-examined by a co-accused before the prosecutor cross-examines. [62]
The cross-examiner is not obliged to state in advance the relevance of questions he may
wish to ask. But he should as a matter of principle avoid setting out on a “fishing
expedition”. There ought to be some latent relevance. And in S v M Donen AJ noted that a
court is — for purposes of protecting the dignity of a complainant in a rape case — entitled
to investigate the relevance of offending questions: [63]
“. . . I wish to make a few further remarks in regard to the conduct of the trial and the question of
cross-examination. The eventual disclosure of the appellant’s defence showed that the offensive
elements of cross-examination, which I have referred to above, served no forensic purpose of the
State or the defence and that the cross-examination was entirely unhelpful in the decision of the
matter. The questions and answers were neither facts in issue nor facts relevant to the issue . . .
Cross-examination in the manner described above, constituted a gratuitous violation of the dignity of
the complainant. The admission of the sordid questions referred to was intolerable on any basis . . .
The value accorded to the right to human dignity stands alongside the right to life in the interim and
final Constitutions. Before this kind of questioning can be tolerated in cross-examination, its relevance
to the issues must be established from the cross-examiner. There are limits to an accused person’s
right of silence . . . The protection of the dignity
Page 400
of a rape victim raises an area of reasonable and justifiable limit to an accused’s right of silence. In
this matter the fairness of the appellant’s trial would not have been affected in any way had the
relevance of the offending questions to the appellant’s defence been investigated and then ruled
inadmissible.”
It is perfectly proper for the court to draw a cross-examiner’s attention to matters on which
cross-examination is, in its view, desirable. [64] Such an approach is desirable where counsel
is inexperienced or where the accused is undefended.
Where a witness dies before completion of cross-examination, the court has a discretion
to exclude the evidence of the deceased where full cross-examination has not taken place so
as to ensure a fair trial. [65]
Where a party has more than one legal representative, only one of them is allowed to
cross-examine a particular witness. [66] The court has a discretion to deviate from this rule.
In S v Basson [67] — which was a lengthy and complicated case — two groups of state
advocates were involved: two advocates handled the prosecution’s case on fraud charges
and two advocates dealt with other charges against the accused. An application was made
that the leader of each group should cross-examine the accused on the respective charges
handled by them in the course of the state’s case. The court concluded that a refusal would
prolong the case. But in granting the application, the court set the following conditions: [68]
that the leaders of the two groups of state advocates be present in court throughout the
cross-examination of the accused; the advocate who commenced cross-examination would
not be allowed to put any further questions after he had finished cross-examination and his
colleague had begun his part of the cross-examination; the advocates had to decide who
would first cross-examine on overlapping evidence — once the advocate who first cross-
examined on such an aspect completed his cross-examination on that aspect, no further
cross-examination by the other advocate would be allowed on that aspect unless substantial
reasons could be furnished for deviating form this condition.
Page 401
18 8 Re-examination
Re-examination follows cross-examination and is conducted by the party who initially called
the witness. A party has a right to re-examine.
The purpose of re-examination is to clear up any point or misunderstanding which might
have occurred during cross-examination; to correct wrong impressions or false perceptions
which might have been created in the course of cross-examination; to give the witness a fair
opportunity to explain answers given by him under cross-examination which, if unexplained,
may create a wrong impression or be used to arrive at false deductions; to put before the
court the full picture and context of facts elicited during cross-examination; or to correct
patent mistakes made under cross-examination. Re-examination can be, and frequently is, a
very important mechanism of presenting a full picture and thus of arriving at the truth. The
right to re-examine is not restricted to matters raised for the first time during cross-
examination. [69] But new matters (that is, matters not introduced in evidence in chief) may
only be canvassed with leave of the court, which should then allow further cross-examination
on the new evidence. Re-examination is conducted in accordance with the rules which cover
examination in chief; consequently leading questions will not be permitted. If part of a
document has been referred to in cross-examination, the whole document may be referred
to in re-examination. [70]

The court has the right to question a witness at any stage of the proceedings and the rule
against leading questions does not apply. But it is desirable that leading questions should be
avoided. Very often questioning by the court takes place after re-examination. The main
purpose of such questioning should be to clear up any points which are still obscure. The
court should play a limited role. In Yuill v Yuill Lord Greene expressed the following
sentiments on the subject: [71] “The judge who himself conducts the examination . . .
descends into the arena and is liable to have his vision clouded by the dust of conflict.
Unconsciously he deprives himself of the advantage of calm and dispassionate observation.”
Similar observations were made in Hamman v Moolman. [72] In S v Rall [73] it was said that it
is difficult and undesirable to define precisely the limits
Page 402
within which judicial questioning should be confined. Certain broad limitations were
mentioned: (a) the judge must conduct the trial so that his impartiality and fairness are
manifest to all concerned; (b) a judge should refrain from questioning in such a way or to
such an extent as to lose judicial impartiality and objectivity; and (c) a judge should desist
from questioning in a way which may intimidate or disconcert a witness so as to affect his
demeanour or impair his credibility.
In criminal cases a judge has more latitude, subject to the rules [74] mentioned above, to
intervene to see that justice is done and the truth ascertained. In civil proceedings his
intervention should be less frequent.
Section 115 of the CPA does not entitle a court to cross-examine an accused during the
so-called explanation of plea procedure. [75] A similar approach applies with regard to s 112
(1)(b) of the CPA. [76]

In chapter 23 below it will be pointed out that the court may in certain circumstances also
call a witness. The court should in a fair and impartial manner lead the evidence of any
witness it may call. The court will usually allow cross-examination of a witness called by it,
but has a right to control such cross-examination as may take place. [77] A witness who has
been recalled by the court may also only be cross-examined with leave of the court. [78] A
recalled
Page 403
witness remains the witness of the party who initially called the witness. [79] If the evidence
of a recalled witness is adverse to a party, he should be given the opportunity to lead
evidence in rebuttal. [80]
18 11 The Intermediary [81] and Related Procedures [82]
In April 1989 (exactly five years prior to constitutionalization) [83] the South African Law
Commission concluded [84] that the ordinary adversarial trial procedure with its strong
emphasis on cross-examination was insensitive and unfair to the child witness — especially
the alleged sexually abused child witness, who had to go through the traumatic experience
of facing the accused in court and who had to be subjected to cross-examination which could
be intimidating, aggressive, tormenting and humiliating.
In its final report on the matter in 1991, the Commission recommended [85] that in certain
circumstances a so-called “intermediary” could be appointed. It also recommended that, in
the event of such an appointment, face-to-face confrontation should be eliminated by using
electronic or other devices.
Section 170A was inserted [86] into the Criminal Procedure Act 51 of 1977 on the basis of
the Commission’s recommendations. Section 170A(1) provides that whenever criminal
proceedings are pending before any court and it appears to such court that the proceedings
would expose any witness under the biological or mental age of 18 years to undue mental
stress or suffering if he or she testifies, the court may appoint an intermediary in order to
enable such witness to give his or her evidence through that intermediary.
In terms of s 170A(2)(a) of the CPA no examination in chief, cross-examination or re-
examination of any witness in respect of whom a court has appointed an intermediary shall
take place in any manner other than through that intermediary. This means that the parties
may at no stage question the witness directly. It is only the court that may question the
witness without intervention by the intermediary.
A crucial provision is contained in s 170A(2)(b) of the CPA: “The . . . intermediary may,
unless the court directs otherwise, convey the general purport of any question to the
relevant witness.” This means that — subject to the court’s final control — any question put
by the prosecutor and the defence
Page 404
may be “blocked” by the intermediary in the sense that the intermediary may “relay” the
question to the witness in a different form. The “general purport” of the question is conveyed
and the ipsissima verba of the original question may be ignored. The court may mero motu
or in response to objections raised by one or more of the parties direct the intermediary to
put the original question or, if necessary, to make another attempt at conveying the general
purport of the original question. Or the court may take a shortcut and put the original
question in the form that it thinks fit. But the nature of the court’s question must be such
that the court does not descend — or is not perceived to be descending — into the arena.
The court may not cross-examine.
Whenever an intermediary has been appointed the witness concerned is in another room
and does not hear the original questions as put by the prosecutor or defence counsel. The
witness only hears — and therefore merely responds to — the prosecutor’s or defence
counsel’s question as relayed by the intermediary to the witness, either in its original or
amended form.
The intermediary is not a lawyer. In terms of s 170A(4)(a) the Minister of Justice may by
notice in the Gazette determine the persons or the category or class of persons who are
competent to be appointed by the court as intermediaries. At least seven categories of
persons have been determined in this manner. [87] In practice, however, intermediaries are
largely appointed from only two of these categories: social workers and psychologists. The
intermediary is indeed a court official, and must display the necessary impartiality despite
his or her close contact with the child witness and the inevitable rendering of some
“emotional support” to the child during the latter’s testimony.
Section 170A(3) of the CPA provides that if a court appoints an intermediary in terms of
s 170A(1), the court may direct that the witness concerned shall give his evidence at any
place
“(a) which is informally arranged to set that witness at ease;
(b) which is so situated that any person whose presence may upset that witness, is outside the sight
and hearing of that witness; and
(c) which enables the court and any person whose presence is necessary at the relevant
proceedings to see and hear, either directly or through the medium of any electronic or other
devices, that intermediary as well as that witness during his testimony.”
One obvious purpose of these provisions — which can be invoked only if an intermediary is
appointed — is to ensure that during the course of the witness’ testimony a full and proper
opportunity is given to the prosecutor, the accused, defence counsel and the court (including
assessors) of observing the demeanour of the child witness and the behaviour of the
intermediary. [88] Closed circuit television or one-way mirrors can be employed.
Page 405
18 11 1 A general assessment of the use of an intermediary in the

context of an adversarial trial
It must be stressed that an intermediary cannot conduct his or her own independent
questioning of the witness. The intermediary’s power to interfere can only be exercised in
response to a question put by one of the parties. This is an important check or restriction on
the functions of the intermediary. The parties are, broadly speaking, still in control of the
witness. They can — through their questions — confine the witness and the intermediary to
those aspects of the case which they wish to probe. And in this respect there has been no
real deviation from the adversarial model.
The appointment of an intermediary and the use of related procedures are not confined to
the situation where the child witness happens to be the victim of a sexual offence. Section
170A can be invoked in all criminal proceedings. The criterion for appointing an intermediary
is whether it appears to the court that a witness under the biological or mental age of
eighteen will suffer “undue mental stress or suffering” if he or she testifies. In practice,
however, s 170A is mainly invoked only in sexual abuse cases and then only in those cases
where the child witness happened to be a witness for the prosecution.
Seen from a practical point of view, s 170A of the CPA impacts largely on the case for the
defence. It may affect cross-examination by the defence of a child witness testifying on
behalf of the prosecution. Admittedly, all questioning by the prosecutor must also be
conducted through the intermediary. It may therefore be argued that both parties — the
prosecutor as well as the defence — have similar difficulties whenever an intermediary
participates in the proceedings. But this is not a valid argument. In South Africa — as in
most other countries where criminal trial procedure is adversarial in nature — the
examination of one’s own witness is “witness friendly”.
The following valid questions arise: What is the purpose of an intermediary if the court
does in fact have the power ultimately to control and determine the question? Why was the
court not given the power to interfere more actively and to fulfil some inquisitorial role?
These questions must be considered in the light of the following remarks made by the South
African Law Commission. [89] It was felt that the presiding officer should in principle retain
the role of arbitrator or passive umpire and that the appointment of an intermediary who is
controlled by the presiding judicial officer would most closely resemble or retain the
theoretical structure of the adversarial trial. The court does in principle remain aloof from the
proceedings and is there to ensure that the rules of procedure and evidence are observed by
the prosecution and the
Page 406
defence. What is new, however, is that the intermediary — whilst certainly neither a witness
in nor a party to the proceedings — becomes a further participant in the adversarial trial (or
game, as some would have it). The intermediary participates quite independently from the
prosecution and defence.
It is submitted that participation by intermediaries in the administration of the criminal
justice system is in accordance with democratic theory. Their participation rests upon the
same philosophical or ideological basis upon which other non-lawyers — such as lay
assessors in South Africa [90] and jurors in other countries — are called upon and permitted
to participate: enhancement not only of the general legitimacy of the system but also the
fact-finding process. The fact that intermediaries are not adjudicators and are not really lay
persons does not destabilize or destroy the essence of this argument. The use of
intermediaries adds a new dimension to the ways in which the legitimacy of the system and
the search for the truth can possibly be promoted or reinforced.

It has been claimed that the right to confront can be traced to the primitive ordeal of “trial
by battle”, [91] and that the notion that demeanour must be observed finds its early roots in
the corsnaed or so-called “ordeal of the accursed morsel”. [92] But whatever the historical
origins of “confrontation” may be, [93] the fact of the matter is that the right to confront is
presently a procedural right generally deemed essential for a fair trial.
More than two centuries ago the Sixth Amendment to the Constitution of the USA granted
an accused the right “to be confronted with the witnesses against him”. One of the original
purposes of this guarantee was to prevent the improper introduction of hearsay evidence
and to restrict the use of ex parte affidavits in criminal trials. The Supreme Court of the USA
has also said that the Sixth Amendment right to confront “(1) insures that the witness will
give evidence under oath — thus impressing him with the seriousness of the matter and
guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to
submit to cross-examination . . . [and] (3) permits the [court] to observe the demeanor of
the witness”. [94]
The decision in Coy v Iowa [95] in 1988 provides a good example of the extent to which the
majority of the US Supreme Court will go in upholding the right of an accused to be
confronted with the witnesses against him. In this case the accused was charged with the
sexual assault of two thirteen-year-old girls. In accordance with an Iowa statute the trial
court had permitted the placing of a
Page 407
large screen between the accused and the two complainants. The screen was used only
during the testimony of the witnesses. With certain lighting adjustments the screen enabled
the accused “dimly to perceive” the two complainants. But these two witnesses could not see
the accused at all. The accused was convicted despite his claim that use of the screen had
violated his Sixth Amendment right to confront the two witnesses.
An appeal was lodged to the Supreme Court of Iowa. This court, however, confirmed the
conviction and expressed the view that there had been no violation of the constitutional right
to confront. The Iowa Supreme Court pointed out, first, that direct examination and cross-
examination of the two witnesses had occurred in full view of the judge and jury and,
secondly, that counsel for the defence had cross-examined both witnesses fully and without
limitation while they were under oath.
But a further appeal to the US Supreme Court was successful. A majority reversed the
judgment of the Supreme Court of Iowa on the basis that [96]
“(1) the confrontation clause of the Sixth Amendment guarantees a criminal defendant a face-to-face
meeting with witnesses appearing before the trier of fact; (2) in the case at hand, the defendant’s
right to such a meeting with the two child witnesses was violated, where (a) the screen was
specifically designed to enable the witnesses to avoid viewing the defendant as they gave their
testimony, (b) the screen was successful in its objective, and (c) despite the state’s claim that such a
procedure was necessary to protect victims of sexual abuse, the conviction could not be sustained by
any conceivable exception to the right to face-to-face confrontation, for the recently passed statute,
which created a generalized, legislatively imposed presumption of trauma, was not firmly rooted in
the nation’s jurisprudence, and there had been no individualized findings that the particular witnesses
needed special protection . . .”
O’Connor J — who had agreed with the majority — also wrote a separate judgment in which
she was at pains to point out that an accused’s rights under the confrontation clause are not
absolute. According to her, these rights may in suitable cases “give way to other competing
interests so as to permit the use of certain procedural devices designed to shield a child
witness from the trauma of courtroom testimony”. [97] O’Connor J noted that she would allow
use of a particular trial procedure which entailed something other than face-to-face
confrontation if such a procedure was essential to promote an important public policy. And
the protection of child witnesses, said O’Connor J, “. . . is . . . just such a policy”. [98] White J
concurred in this separate judgment even though he, like O’Connor J, also agreed with the
majority that in the case at hand Coy’s constitutional rights under the confrontation clause in
the Sixth Amendment had been violated by the implementation of the Iowa legislation under
discussion.
Blackmun J wrote a dissenting judgment, in which he was joined by Rehnquist CJ. They
concluded that the screening procedures permitted by the Iowa legislation and employed by
the trial court had not violated [99]
Page 408
“(1) the confrontation clause, because (a) the important public policy in protecting child witnesses
from the fear and trauma associated with such children’s testimony in front of a defendant
outweighed the confrontation clause’s ‘preference’ for face-to-face confrontation, and (b) the child
witnesses had testified under oath and in full view of the jury, and had been subjected to unrestricted
cross-examination; or (2) due process, because the procedure was not inherently prejudicial”.
There are, of course, significant differences [100] between the procedure provided for in
s 170A of the CPA and that provided for by the Iowa legislation which was the subject of
dispute in Coy v Iowa supra. But the point remains that this case illustrates the impact of
the constitutional right to confront on legislative measures which seek to assist child
witnesses.
Hard on the heels of Coy v Iowa came the decision in Maryland v Craig. [101] The latter
concerned a Maryland statute which had permitted the use of one-way closed circuit
television if the judge came to the conclusion that testimony by the child in the courtroom
would have resulted in “serious emotional distress such that the child cannot reasonably
communicate”. [102] A minority (four judges) of the US Supreme Court expressed the view
that the Maryland procedure conflicted with the accused’s constitutional right to a face-to-
face confrontation. But a majority (five judges) held that a face-to-face confrontation was
not an indispensable element of the Sixth Amendment’s confrontation guarantee. Writing for
the majority, O’Connor J said: [103]
“Maryland’s statutory procedure, when invoked, prevents a child witness from seeing the defendant as
he or she testifies against the defendant at trial. We find it significant, however, that Maryland’s
procedure preserves all of the other elements of the confrontation right: the child witness must be
competent to testify and must testify under oath; the defendant retains full opportunity for
contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by
video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are
mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal
proceeding, the presence of these other elements of confrontation — oath, cross-examination, and
observation of the witness; demeanor — adequately ensures that the testimony is both reliable and
subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-
person testimony. These safeguards of reliability and adversariness render the use of such a
procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte
affidavit or inquisition . . .”
Page 409
It is distinctly possible that Anglo-American systems over-estimate the value of oath-taking

in open court. The usefulness of providing the finder(s) of fact with an opportunity to
observe the demeanour of a witness who is taken through examination in chief, cross-
examination and re-examination might also be overrated. Demeanour, according to the
South African Appellate Division, is a “tricky horse to ride”. [104] It is, furthermore, quite
possible that cross-examination is not, as Wigmore so smugly but in obvious hyperbolical
terms had claimed, “the greatest legal engine ever invented for the discovery of the
truth”. [105]

In K v the Regional Court Magistrate NO, and Others [106] a full bench of the Eastern Cape
Division of the Supreme Court held that the physical separation of the complainant from the
courtroom did not violate the right to a public trial. According to the court, the right to a
public trial is not violated merely because the complainant gives evidence in a separate
room. This conclusion is supported. However, the court also concluded that, even giving a
broad and liberal interpretation to the fundamental rights of the accused, the right to cross-
examine has not been violated by the provisions of s 170A. Having come to this conclusion,
it was not necessary for the court to have considered the second stage of the constitutional
inquiry, namely, whether the infringement or denial was a constitutionally permissible
limitation in terms of s 33(1) of the Interim Constitution (now s 36 of the Constitution).
18 11 3 1 Section 170A as a constitutionally permissible limitation (s 36 of the
Constitution)
It is distinctly possible that other courts may conclude that s 170A does infringe the right to
cross-examine. [107] In this event the second stage will be entered: can the “offending
legislation” — that is, s 170A of the CPA — be saved in terms of the limitation clause as
contained in s 36 of the Constitution?
The threshold test is whether s 170A is a “law of general application”. [108] This test seeks
to ensure that there is equality before the law and equal protection of the law. Section 170A
passes this threshold test. It is a law which applies to all those cases where it appears to the
court that a witness under the age of eighteen years might be subjected to undue mental
stress or suffering. The intermediary is appointed for purposes of a certain category of cases
and not for purposes of a certain type of individual who stands accused of crime. There is no
unequal treatment of accused persons similarly situated. For the same reasons it can be said
that s 170A(3)(b) also passes the “threshold test”. This section determines that if an
intermediary is appointed, the court may direct
Page 410
that the witness shall give his evidence at any place which is so situated that any person
whose presence might upset the witness is outside the sight and hearing of that witness.
In addition to the threshold test, the limitation shall also be permissible only to the extent
that it is reasonable and, furthermore, justifiable in an open and democratic society based
on human dignity, equality and freedom. Section 170A seeks to protect the child witness
from the trauma of courtroom testimony in the adversarial trial. It is neither capricious nor
arbitrary. It is not aimed at hampering the defence or impeding the fact-finding process. In
fact, s 170A might even enhance the fact-finding process. It is a reasonable provision and
seeks to protect human dignity, and the “best interests of the child” as required by s 28(2)
of the Constitution (see also § 18 11 3 2 below).
The impact of s 170A on the right to challenge evidence is reasonable because the
measures contained in s 170A not only stem from considerations which are of sufficient
importance to interfere with the right to challenge evidence but are also proportional to the
objective sought to be achieved. Whilst it is certainly true that s 170A does impair the right
to challenge evidence, it does so only to the extent that it is necessary to protect the child.
The right to challenge evidence is infringed as little as possible. Consider the following: (a)
Face-to-face confrontation is eliminated, but the defence can at all times observe the
witness. The opportunity to observe the demeanour of the witness remains intact. (b) The
intermediary may convey the general purport of any question, but the court may in its
discretion (and either mero motu or in response to an objection raised by defence counsel or
the prosecutor) direct that the original question be put. The final decision rests with the
court — and this is the kind of control that the court should or could, even in the absence of
an appointed intermediary, have exercised if defence counsel’s questions were unfair,
confusing, insensitive or otherwise improper.
It is submitted that protection of the child witness in the adversarial trial is of compelling
importance for the reasons advanced not only in our local official reports, [109] literature [110]
and case law [111] but also in the official reports [112] and literature [113] of foreign countries.
One is driven to agree with the following
Page 411
words of Blackmun J in his dissenting judgment in Coy v Iowa: “[A] State properly may
consider the protection of child witnesses . . . an important public policy.” [114] And the fact
that other countries have taken legislative steps to protect the child witness [115] provides
further ground for concluding that there is a compelling importance which justifies legislative
measures which conflict with the right of the accused directly to challenge the evidence of a
child witness by way of cross-examination in a face-to-face confrontation.
18 11 3 2 Section 170A and the constitutional injunction “best interests of the
child” (the paramountcy principle in s 28(2) of the Constitution)
In S v Mokoena en Ander; S v Mokoena; S v Phaswane [116] Bertelsmann J held that s 170A
(1) was unconstitutional on account of the provisions of s 28(2) of the Constitution. Section
28(2) states: “A child’s best interests are of paramount importance in every matter
concerning the child”. In terms of s 28(3) of the Constitution a “child” is, for purposes of
s 28(2), a person under the age of eighteen years. Bertelsmann J said that s 28 of the
Constitution “demands that a child should be exposed to as little stress and mental anguish
as possible”, especially a child victim of a sexual attack. [117] Having noted that it is difficult
to understand why the legislature should insist that the child witness should be exposed to
undue mental stress or suffering before a court may consider appointing an intermediary,
Bertelsmann J said: [118]
“This threshold provision places a limitation upon the best interests of the child that is neither rational
nor justifiable when weighed up against the legitimate concerns of the accused, the court and the
public interest. The child is entitled as of right to a procedure that eliminates as much as possible of
the anguish that accompanies the necessity of having to relive the horror of abuse, violation, rape,
assault or deprivation that the child experienced when he or she became a victim or witness. To
demand an extraordinary measure of stress or anguish before the assistance of an intermediary can
be called upon clearly discriminates against the child and is constitutionally untenable.”
Page 412
Section 170A(1) was declared unconstitutional “in that it grants a discretion to the trial court
to appoint or not to appoint an intermediary when a child witness is to be called in a criminal
trial”. [119] In subsequent confirmation proceedings the Constitutional Court in Director of
Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and
Others [120] refused to confirm the various orders of invalidity made by the High Court. In
coming to this conclusion the Constitutional Court identified and relied upon the following
broad principles:
(a) The phrase “undue mental stress or suffering” must be understood in the context of
the objective of s 170A(1), as informed by s 28(2) of the Constitution and the
intimidating atmosphere and procedures encountered by a child who testifies in
court. [121] In this context, it is not unconstitutional to allow a judicial officer, in
exercising a judicial discretion, to assess the individual needs and wishes and feelings
of each individual child — and to do so in conformity with the constitutional “best
interest of the child” imperative. [122]
(b) The provisions of s 170A(1) apply to all children who are witnesses in criminal trials; it
is not confined to victims of sexual offences. [123]
(c) The prosecution does not bear an onus of proving that an intermediary must be
appointed, because the trial court must in each instance enquire into the desirability of
appointing an intermediary: [124]
“The overriding consideration at that enquiry is to prevent the child from exposure to undue
stress that may arise from testifying in court. What is required of the judicial officer is to
consider whether, on the evidence presented to him or her, viewed in the light of the objectives
of the Constitution and the subsection, it is in the best interests of the child that an intermediary
be appointed.”
(d) If the best interests of the child are not served in the course of s 170A proceedings,
“then the fault lies not in the provision itself but in the manner in which . . .
[s 170A] . . . is interpreted and implemented”. [125]
This section provides as follows:
“The court shall provide reasons for refusing any application or request by the public prosecutor for
the appointment of an intermediary in respect of child complainants below the age of 14 years,
immediately upon refusal and such reasons shall be entered into the record of the proceedings.”
In S v Mokoena; S v Phaswane Bertelsmann J concluded that the above section
discriminates between children under the age of 14 years and those over the age of 14, and
does so in an arbitrary and irrational manner. [126] Section 170A(7) was accordingly held
unconstitutional. In
Page 413
Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional

Development, and Others [127] the Constitutional Court refused to confirm this order of
constitutional invalidity. It held: [128]
“Where the child is 14 years or older, the presiding officer need not give reasons immediately upon
refusal, but may give reasons at a later stage or at the end of the case. This distinction is neither
irrational nor unfair. It serves merely to remind presiding officers of the greater vulnerability of
younger children.”
In the above case the Constitutional Court also confirmed the constitutional validity of s 158
(5) which contains a provision similar to s 170A(7) and which applies to the situation where
a court refuses to allow a child complainant below the age of 14 to testify by means of
electronic media or closed circuit television. [129] Section 158 is dealt with in § 18 12 below.

In S v Stefaans Mitchell AJ observed as follows: [130]
“In my opinion it is advisable for this Court to lay down some guidelines as to how and in what
circumstances the section should be invoked. At the same time I record that such guidelines can only
be given in broad terms, as each case must be dealt with on its own merits . . . The following general
principles may, however, be stated:
1. A court faced with an application for the provisions of s 170A to be invoked should be mindful of
the dangers which are inherent in the use of an intermediary which might prejudice the right of
the accused to a fair trial. These are:
1.1 that cross-examination through an intermediary may be less effective than direct cross-
examination of a witness . . .
1.2 that an accused prima facie has the right to confront his accusers and be confronted by
them;
1.3 that human experience shows that it is easier to lie about someone behind his back than to
do so to his face.
2. The provisions of the section will find application more readily in cases involving a physical or
mental trauma or insult to the witness than in other types of cases.
3. The giving of evidence in court is inevitably a stressful experience. In order to find application,
the section requires the court to be satisfied that such stress will be ‘undue’ ie something in
excess of the ordinary stresses. In this regard, it seems fair to say that the younger (and more
emotionally immature) the witness, the greater the likelihood that such stress will be ‘undue’.
4. A witness who is known to the accused and who knows the accused and is still prepared to
testify is less likely to be unduly stressed by the need to testify before the
Page 414
accused than one whom is unknown to the accused and may fear intimidation. This factor, of
course, needs to be balanced by the factor referred to in para 3 above.
5. If the application to involve the section is not opposed, it may be more readily granted.
6. An unrepresented accused should have his right to oppose the application carefully explained to
him by the presiding judicial officer and, as in the case of a plea of guilty, if any doubt exists as
to the accused’s understanding of the matter, the application should be treated as opposed.
7. If the application is opposed, the presiding judicial officer should require that appropriate
evidence be adduced to enable him to exercise a proper discretion as to whether the section
should be invoked or not. Such evidence may, in the case of a younger witness in a matter
clearly involving mental or physical trauma, consist of nothing more than evidence of the nature
of the charge and the age of the witness. In other matters, evidence of a suitably qualified
expert, whether that be a social worker, psychologist or psychiatrist, may be necessary.
8. If the section is invoked the presiding judicial officer should be aware of the risk that the efficacy
of cross-examination may be reduced by the intervention of the intermediary. The judicial officer
should be alert to this and should be prepared to intervene to assist that the exact question
rather than the import thereof, be conveyed to the witness.
Adherence to these guidelines would, in my opinion, reduce the risk of the accused not being afforded
a fair trial.”
Guideline number one in the above quotation, has been criticised on the basis that Mitchell
AJ failed to “balance this with a judicial reminder as to the purposes of s 170A, namely to
facilitate the ascertainment of the truth and further the constitutional right of equality before
the law”. [131] And guideline number four has been criticised on the basis that it makes an
assumption which is contrary to available research findings. [132]
The complainant in Stefaans was 16-and-a-half years old at the time of the trial. The
accused was charged with rape and the trial court had granted the state’s application that
s 170A be invoked. On appeal Mitchell AJ noted that s 170A(1) refers to “undue mental
stress” (“onredelike geestespanning”) and not “unnecessary stress” (“onnodige
geestespanning”) as the trial court seemed to have assumed. [133] It was concluded that the
trial court had erred in two respects: [134]
“In the first instance the use of the word ‘onredelik’ (undue) connoted a degree of stress greater than
the ordinary stress to which witnesses, including witnesses in complaints of offences of a sexual
nature, are subject. Secondly, where such an application is opposed, the magistrate should conduct
an investigation sufficient to establish whether factors are present which justify the application of the
section. If such investigation disqualifies him
Page 415
from presiding at the trial after he has made his ruling, then so be it. Another magistrate must
proceed with the matter. For this reason it is appropriate for such application to be made before the
commencement of evidence.”
There is a strong element of prognostication in s 170A(1). The court must attempt to
forecast the probable future course of events. This much is clear from the words “would
expose” (“sal blootstel”) as used in s 170A(1). It is submitted that use of the words “would
expose” — as opposed to “would experience” — requires a court to assess the probable risks
of undue mental stress or suffering should the witness testify in the normal course.
In S v CT is was held that it was an irregularity where a trial court had not even
considered the possible appointment of an intermediary. [135] In this case the rape victim was
the 9-year-old daughter of the accused.
In considering whether to appoint an intermediary, a court may take into account that the
accused’s legal representative has no objection and does indeed hold the view that the
witness concerned would suffer undue mental stress. [136]
A failure to administer an oath or affirmation to an intermediary, is not necessarily an
irregularity causing a failure of justice. [137]
The role and function of an intermediary must be distinguished from the duties of an
interpreter. [138] However, where an intermediary — duly appointed in terms of s 170A —
also interprets the evidence into another language, he must also be sworn in as an
interpreter. [139]
An undefended accused must be given an opportunity to object to the prosecution’s
application that s 170A be used. [140] A court that has decided not to invoke s 170A, may
review its own earlier decision should it later appear that the witness is in the course of his
or her evidence exposed to undue mental stress or suffering. [141]
Where a trial court proceeds in terms of s 170A, the record must show that the person
appointed as intermediary was competent to be so appointed. [142] The record must also
show that the prosecutor, the accused and the accused’s legal representative were able to
see and hear both the witness and the intermediary as required by s 170A(3)(c). [143]

The South African Law Commission has recommended that an intermediary should
automatically be provided for a
Page 416
child witness in criminal proceedings involving a sexual offence unless exceptional

circumstances exist that justify not appointing an intermediary — and in which case such
circumstances must be specified by the court. [144] It was also recommended that, in
accordance with certain criteria, a vulnerable adult witness should also be assisted by an
intermediary. [145] Various further amendments to s 170A have also been proposed. [146]
18 12 Evidence by Means of Closed Circuit Television or Similar
Electronic Media
Section 158(2)(a) of the CPA provides that a court may — subject to s 153 [147] — on its own
initiative or on application by the public prosecutor, order that a witness or accused may
give evidence by means of closed circuit television or similar electronic media. [148] But the
witness or accused in respect of whom the order is made, must consent thereto. [149] An
order in terms of s 158(2)(a) may also be made on the application of an accused or
witness. [150] Section 158(3) provides that a court may make an order contemplated in s 158
(2)(a) only if the facilities therefore are readily available or obtainable and if it appears to
the court that to do so would (a) prevent unreasonable delay; (b) save costs; (c) be
convenient; (d) be in the interest of the security of the state or of public safety or in the
interests of justice or the public; or (e) prevent the likelihood that prejudice or harm might
result to any person if he or she testifies or is present at such proceedings.
In S v F [151] the prosecution sought a s 158(2)(a)-order permitting the complainant to
testify by means of closed circuit television. Albertus AJ noted that “allowing a witness to
testify outside the presence of an accused might very well encroach upon his rights in the
sense that it could diminish the forcefulness and effect of cross-examination.” [152] He
accordingly held that s 158(2)(a) and 158(3) had to be interpreted restrictively: [153] the
requirements in s 158(3)(a), 158(3)(b) and 158(3)(c) must be met as well as one of the
requirements in either s 158(3)(d) or s 158(3)(e). [154] As a result of this finding, and having
regard to the facts of the case, the prosecution clearly had no
Page 417
prospects of success and, as an alternative, brought an application that s 170A be used [155]
— a matter already dealt with in § 18 11 4 above.

In S v Staggie and Another [156] Sarkin AJ held that S v F was “clearly wrong” [157] in
following a conjunctive interpretation to paras (a), (b) and (c) or s 158(3) and a disjunctive
approach as regards (d) and (e) of the same section. Sarkin AJ took the view that paras (a)
to (e) of s 158(3) had to be read disjunctively in that “a court must have view of all the
circumstances and then determine if one or more of the various paragraphs is present.” [158]
It was also said: [159]
“A purposive argument would be that ss (2) and especially (3), couched in open-ended language, as it
were, confer a discretion on the court to determine proceedings in the best interest of justice (and
especially to protect witnesses) and that this discretion should not be restrictively construed (by, for
instance, reading (a), (b) and (c) disjunctively).”
The conflict between Staggie and F was resolved in S v Domingo, [160] a special review. HJ
Erasmus (Louw J concurring) rejected the interpretation in F and agreed with Staggie that a
disjunctive reading of all the paragraphs in s 158(3) is required “in accordance with what
might be regarded as the plain meaning of the text”. [161] Such an approach was also in
accordance with the interpretation given to sections, in other statutes, which are structured
in the same way as s 158(3) of the CPA. [162]
In S v Domingo Erasmus J also said the following with reference to s 158(3): [163]
“Paragraph (e) of sub-s (3) explicitly provides for the application of the subsection in circumstances
where ‘prejudice or harm’ might result to a witness if he or she gives evidence in open court. In
practice this would usually mean complainants or witnesses in crimes of violence or abuse. The
section compliments s 170A of the Act. Victims of, or eye-witnesses to, crimes of violence or abuse do
not always fall within the purview of s 170A, either because they are older than 18 years, or, if they
are younger than 18 years, they do not need an intermediary. Section 158 provides greater protection
for complainants or witnesses, especially women and children, in such sensitive and difficult cases . . .
Reading ss (3) in the manner decided in S v F may result in potentially thwarting the interests of
justice and blunting one of the principal purposes of the section, namely, to facilitate the evidence of
persons involved in crimes of violence and abuse.”
In terms of s 158(4) the court may — in order to ensure a fair and just trial — make the
giving of evidence in terms of s 158(2) subject to such conditions as it may deem necessary.
However, s 158(4) also contains a proviso to the effect that the prosecutor and the accused
retain the right to question a witness and to observe the demeanour of the witness. A court
is not allowed to disallow cross-examination. [164]
Page 418
In terms of s 158(5) a court is required to furnish reasons “for refusing any application by
the public prosecutor for the giving of evidence by a child complainant below the age of 14
years by means of closed circuit television or similar electronic media . . .”. The same section
also requires that such reasons must be furnished immediately upon refusal and must be
entered into the record of the proceedings. Section 158(5) is consistent with constitutional
requirements (see n 129 in § 18 11 3 3 above).

Section 171(1)(a) of the CPA provides that whenever criminal proceedings are pending
before any court and it appears to such court on application made to it that the examination
of any witness who is resident in South Africa [165] is necessary in the interests of justice and
that the attendance of such witness cannot be obtained without undue delay, expense or
inconvenience the court may dispense with such attendance and issue a commission to any
magistrate. [166] The specific matter with regard to which the evidence of the witness is
required, must be set out in the relevant application. [167]
The magistrate to whom the commission is issued (hereafter “the magistrate”) must
proceed to the place where the witness is — or shall summon the witness before him — and
take down the evidence. [168] The rights of the parties to proceedings in which a commission
is issued in terms of s 171, are regulated by s 172. In terms of this section the parties
concerned may
“(a) transmit interrogatories in writing which the court issuing the commission may think relevant to
the issue, and the magistrate to whom the commission is issued, shall examine the witness upon
such interrogatories; or
(b) appear before such magistrate, either by a legal representative or, in the case of an accused
who is not in custody or in the case of a private prosecutor, in person, and examine the
witness.”
The witness concerned must give his evidence under oath or affirmation. [169] The evidence
must be recorded and read over to the witness who, if he adheres to it, must sign it. [170] The
magistrate must also sign. [171]
Page 419
The magistrate must return the record of the evidence to the court which issued the
commission. [172] The parties to the proceedings have the right to inspect the evidence. [173]
The evidence — in so far as it is admissible evidence — forms part of the record of the court
that issued the commission. [174]
It is accepted that a person who asks for a commission is at a disadvantage: less weight
may be attached to such evidence as the court does not have the opportunity to observe the
demeanour of the witness. However, it is also accepted that if such a person is refused a
commission, his disadvantage will be even greater because the evidence cannot be put
before the court at all.

Rule 38(3) of the Uniform Rules of Courtprovides that a court may, where it appears
convenient or necessary for the purposes of justice, make an order for the taking of
evidence before a commissioner. Magistrates’ courts may issue commissions in terms of s 53
of the Magistrates’ Courts Act 32 of 1944. A review of the authorities and principles
concerning the issue of commissions is to be found in the case of Federated Insurance Co
Ltd v Britz and Another. [175] The courts have consistently followed the sentiments expressed
in Robinson v Randfontein Estates Gold Mining Co Ltd [176] to the effect that the court will
normally grant a commission rather than lose the evidence.
It has been held that a commission may be issued in respect of both formal as well as
contentious factual issues. [177] As a rule evidence taken on commission will carry less weight
than evidence given before the court because the court did not have the opportunity of
observing the demeanour of the witnesses (see generally § 30 4 below). Right of
representation and cross-examination will be afforded at the hearing of the commission.
In civil cases interrogatories may be granted in terms of rule 38(5) of the Uniform Rules of
Courtand s 39 of the Superior Courts Act 10 of 2013. In magistrates’ courts the appropriate
section is s 52 of the Magistrates’ Courts Act 32 of 1944.
The principles governing the issues of interrogatories are similar to those for the issue of
commissions (see § 18 14 above). A list of proposed questions is
Page 420
drawn up by the parties. The court may also add questions of its own. The interrogatories
are then sent to the court having jurisdiction where the witness is present. This court then
summons the witness, puts the questions to him, records the answers, and returns the
record to the original court. The interrogatories will be read as evidence at the trial and form
part of the evidential material.

Evidence received by way of affidavit in terms of ss 212 and 212A of the CPA and s 22 of the
CPEA was discussed in §§ 15 2 1 and 15 2 2 above.

Section 214 of the CPA allows for the reading of a witness’s evidence at a preparatory
examination at a subsequent trial if it is proved to the satisfaction of the court that the
witness is dead or incapable of giving evidence or too ill to attend the trial or is being kept
away from the trial by the means and connivance of the accused and if the evidence was
recorded by a magistrate or regional court magistrate. It must also be shown that the
accused (or state as the case may be) had had an opportunity to cross-examine the absent
witness. [178] It is provided that if a witness, after having given evidence at a preparatory
examination, cannot be found after a diligent search or cannot be compelled to attend the
trial, his evidence may be read if it is apparent from the record that the opposing party had
had the opportunity to cross-examine the witness. The court is given a discretion whether to
allow the production of the evidence of a witness who cannot be found. In R v Stolz [179] it
was held that the discretion should be exercised sparingly and, where the nature of the
evidence would depend on the credibility of the witness, the court should be very slow to
admit the evidence. [180]
In terms of s 23(1) of the CPEA a Supreme Court has the power to order evidence to be
taken on commission on the application of a person who alleges that he will become entitled
to an interest in some asset upon the happening of a future event, but who cannot bring an
action before the event occurs. [181]
[1] 2004 (2) SACR 185 (SCA).

[2] At [20]. Emphasis added. It should be noted that in Adendorff there was no attempt to refresh the memory of
the witness — a procedure that is discussed in ch 24 below. Paizes in Du Toit et al Commentary 22-60 provides the
following context to the principle of orality: “Our law displays a strong bias in favour of the principle of orality. The
preference for viva voce evidence as opposed to preserved memory found in written form is a marked characteristic
of the common-law evidentiary system, where great faith is placed in cross-examination as a means of exposing
falsehood. The principle is not, however, absolute. It is ameliorated by a number of rules, statutory as well as of the
common law . . . .”
[3] Section 161(2) of the CPA. See further Le Roux 2000 Stell LR 480 485. Section 161(2) must not be interpreted
restrictively. Viva voce evidence would also include reliably interpreted sign language or hand signals. See S v Roux
2007 (1) SACR 379 (C). In this case the court could find no reason why the evidence of the complainant — a minor
with Down’s syndrome — could not be given with the assistance of a speech therapist if the latter could interpret his
speech.
[4] S v Bothma 1971 (1) SA 332 (C). In S v Shezi 1987 (1) SA 552 (N) it was held that where the record of the
proceedings show that the accused has been sworn, the record is prima facie proof that it was correctly recorded.
The administration of the oath by a judge’s clerk and in his absence by a court orderly acting temporarily as court
registrar is proper or substantial compliance: S v Orphanou and Others 1990 (2) SACR 429 (W). The oath may not
be administered by the prosecutor: S v Bothma supra. A court must at all times be satisfied that a witness
understands the difference between truth and falsehood. See S v V 1998 (2) SACR 651 (C). See further S v Malinga
2002 (1) SACR 615 (N). However, see also S v Bezuidenhout (unreported SCA case, case no 22/2002, dated 27 Sept
2002).
[5] A failure to administer the oath to a witness or administration of the oath through an interpreter who has not
been sworn, results in the “evidence” being inadmissible: The State v Naidoo 1962 (2) SA 625 (A). On interpreters
generally, see S v Manzini 2007 (2) SACR 107 (W); S v Mponda 2007 (2) SACR 245 (C) and S v Sydow 2003 (2)
SACR 302 (C) as well as S v Mabona 1973 (2) SA 614 (A). The constitutional right to a fair trial is compromised
when there are inaccuracies in the interpretation. See S v Lin [2010] 1 All SA 358 (W). In Sayed and Another v
Levitt NO and Another 2012 (2) SACR 294 (KZP) the interpreter’s lack of proficiency in the language concerned and
her ignorance of the legal process contributed to irregularities affecting trial fairness. When an interpreter uses
technical language, a presiding judicial officer is obliged to establish whether the words or terms are those of the
witness or the interpreter. See S v MM 2012 (2) SACR 18 (SCA).
[6] Waterhouse v Shields 1924 CPD 155.
[7] See, eg, s 163(1)(d) of the CPEA. Various other objections to oath-taking are also listed in s 163(1)(a)-(c).
[8] O’Dowd The Law of Evidence in South Africa (1963) 154; Wigmore para 767.
[10] Lansdown & Campbell 775. In S v B 1996 (2) SACR 543 (C) Van Reenen J pointed out (at 555g-556b) that
the reason for the prohibition against leading questions in evidence in chief is that the witness could think that such
questions were an invitation or suggestion or even an instruction not to answer questions truthfully, but rather in a
manner that would favour the party who called the witness. See also S v Rall 1982 (1) SA 828 (A) 831E.
[11] The South African Law of Evidence 4 ed (1988) 444.
[12] Para 767.
[13] O’Dowd Evidence 154.
[14] The rule that a trial judge has a discretion to permit leading questions in the interests of justice and
expedition, was confirmed by a full bench in S v Bailey 2007 (2) SACR 1 (C) at [25].
[15] Paizes in Du Toit et al Commentary 22-79.
[16] The following local works deal with the art or technique of cross-examination: Mullins & Da Silva Morris —
Technique in Litigation 6 ed (2010) 220-283; Colman Cross-Examination — A Practical Handbook (1970); Stillwell
Legal Practice Handbook — Cross-examination (1997). The rules which govern cross-examination are dealt with by
Pretorius Cross-examination in South African Law (1997).
[17] Distillers Korporasie (SA) Bpk v Kotze 1956 (1) SA 357 (A) 361H. As far as criminal cases are concerned, see
s 35(3)(i) of the Constitution. In S v Mgudu 2008 (1) SACR 71 (N) Madondo J said (at [28]): “Section 35(3) of the
Constitution guarantees the right to a fair trial. The weight of decided cases supports the view that there can be no
fair trial without the exercise of the right to cross-examine witnesses called by the opposing party, unless such right
is or has been waived by the party concerned. In the present case it is abundantly clear from the record that the
continued refusal by the magistrate to recall the witness and to allow the defence attorney to cross-examine her will
certainly offend against the right to a fair trial and seriously violate the right to adduce and challenge evidence, in
particular, entrenched in s 35(3)(i) of the Constitution.” See also S v Msimango and Another 2010 (1) SACR 544
(GSJ) at [27]. It is a fatal irregularity to disallow cross-examination of witnesses on evidence given at a previous trial
that had to be stopped because of the presiding judicial officer’s recusal in that trial. See S v Ismail 2006 (1) SACR
593 (C). See also S v Manqaba supra. In Meyer v Director of Public Prosecutions, KwaZulu-Natal [2006] 4 All SA 598
(N) it was held that the trial was unfair because important prosecution witnesses had relied on their privilege against
self-incrimination (as provided for in s 203 of the CPA) and, in so doing, had deprived the accused of cross-
examining them on relevant and vitally important matters. See Paizes in Du Toit et al Commentary 22-78 for a
critical comment on this case.
[18] S v Nkomo 1975 (3) SA 598 (N). See also § 31 4 2 below.
[19] S v Mcolweni 1973 (3) SA 106 (E); R v Ndawo and Others 1961 (1) SA 16 (N); S v Mgudu supra at [26]. In S
v Manqaba 2005 (2) SACR 489 (W) a magistrate had refused to allow cross-examination of a child witness with
reference to her earlier statements to the police. The main reason for the refusal was the possible traumatisation of
the child. Satchwell J found (at [58]) that this refusal was an irregularity which negated the right of the accused to a
fair trial, because the refusal to allow cross-examination “was predicated upon an expressed intention by the
magistrate to protect the complainant at the expense of the accused” (at [55]). At [31] it was pointed out that
s 170A of the CPA could have been invoked. Section 170A is discussed in §§ 18 11 to 18 11 5 below.
[20] Carroll v Carroll 1947 (4) SA 37 (D).
[21] Distillers Korporasie (SA) Bpk v Kotze 1956 (1) SA 357 (A). McEwan Evidence and the Adversarial Process —
The Modern Law 2 ed (1998) 14 explains the need to cross-examine in the following terms: “[C]ross-examination is
a necessary counter-balance to the way evidence-in-chief is elicited. Given the way witnesses are guided through
their evidence-in-chief (albeit without leading questions as such) the right to cross-examine is essential to the other
party. For the questions put in chief may omit, consciously or unconsciously, significant matters, the answers to
which could be to the advantage of the other side. There may have been qualifications or explanations which the
witness did not have the opportunity to add to his or her in-chief testimony, and which subsequently can be
uncovered only by cross-examination.”
[22] R v De Bruyn and Another 1957 (4) SA 408 (C); R v Amod and Another 1958 (2) SA 658 (N). See also the
discussion of s 166(3) of the CPA in § 18 6 5 6 below.
[23] S v Mngogula 1979 (1) SA 525 (T).
[24] R v Ismail 1943 CPD 418; Novick and Another v Comair Holdings Ltd and Others 1978 (3) SA 333 (W).
[25] Rex v Milne and Erleigh (7) 1951 (1) SA 791 (A).
[26] S v Malele 1975 (4) SA 128 (T); Small v Smith 1954 (3) SA 434 (SWA); S v Mgudu 2008 (1) SACR 71 (N).
But much will also depend on the circumstances of each case. In S v Scott-Crossley 2008 (1) SACR 223 (SCA) the
trial court had held against the appellant the fact that his full version as to everything that had transpired on the day
in question was not put to certain witness. But on appeal it was held, given all the facts of the case, that “it is not
necessary for an accused’s version to be put in all its detail to every witness” who testifies on behalf of the state (at
[26]).
[27] Rex v M 1946 AD 1023. See further President of the Republic of South Africa and Others v South African
Rugby Football Union and Others 2000 (1) SA 1 (CC) at [61]; S v Boesak 2001 (1) SACR 1 (CC) at [26]: “This rule,
which is part of the practice of our courts, is followed to ensure that trials are conducted fairly, that witnesses have
the opportunity to answer challenges to their evidence, and that parties to the suit know that it may be necessary to
call corroborating or other evidence relevant to the challenge that has been raised.” See also S v Katamba 2000 (1)
SACR 162 (NmS); S v Roberts and Others 2013 (1) SACR 369 (ECP) at [38]; S v Essop 2014 (2) SACR 495 (KZP) at
[32]. In S v Mavinini 2009 (1) SACR 523 (SCA) at [13] Cameron JA also explained as follows: “The general
requirement that a witness must be confronted with damaging imputations is not a formal or technical rule. It is a
precept of fairness. That means it must be applied with caution in a criminal trial: if, despite the absence of
challenge, doubt arises about the plausibility of incriminating evidence, the accused should benefit.” See further S v
Pistorius 2014 (2) SACR 314 (SCA). It should be noted that a proposition or a version of events put in cross-
examination to a witness, is not evidence (S v Katoo 2005 (1) SACR 522 (SCA) at [19]). But if the cross-examiner
should make an assertion amounting to an admission, no formal proof would be required. See § 26 6 below.
[28] S v Gobozi 1975 (3) SA 88 (E); S v Manicum 1998 (2) SACR 400 (N).
[29] S v Mngomezulu 1983 (1) SA 1152 (N). It is absurd to draw an inference against an accused for a failure to
cross-examine where the defence was fully explained in the plea: S v Kibido 1988 (1) SA 802 (C). It is also improper
to tell an undefended accused that he can put his defence during cross-examination but that he is not obliged to
disclose his defence to the court: Govazela supra; see S v M 1989 (4) SA 421 (T).
[30] S v Govazela 1987 (4) SA 297 (O); S v Ndou 2006 (2) SACR 497 (T) 500; S v Tyebela 1989 (2) SA 22 (A).
[31] S v Sebatana 1983 (1) SA 809 (O). See also S v Dipholo 1983 (4) SA 757 (T); S v Lekhetho 2002 (2) SACR
13 (O); S v Moilwa 1997 (1) SACR 188 (NC); S v Simxadi and Others 1997 (1) SACR 169 (C); S v Wellington 1991
(1) SACR 144 (Nm). The exact extent to which the trial court should assist an undefended accused, depends on the
facts and can be difficult to determine. See Ramaite v S [2015] 1 All SA 35 (SCA) where the Supreme Court of
Appeal was divided.
[32] S v Sello 1993 (1) SACR 497 (O). The right to cross-examine does not entitle the cross-examiner to get
angry, to deliver a speech or to be aggressive. See S v BM 2014 (2) SACR 23 (SCA) at [18]. See also S v Manqaba
2005 (2) SACR 489 (W) at [45]. Disallowing questions of this nature does not amount to a limitation of the right to
cross-examine because such questions do not serve the legitimate purpose of cross-examination. Steytler
Constitutional Criminal Procedure (1998) at 348.
[33] 1982 (2) SA 357 (N). See also S v Gidi and Another 1984 (4) SA 537 (C) and Tshona v Regional Court
Magistrate, Uitenhage 2001 8 BCLR 860 (E).
[34] S v Nisani en Andere 1987 (2) SA 671 (O); S v Nkibane 1989 (2) SA 421 (NC). It is, for example, unfair —
and therefore not permissible — to ask a witness to speculate. See S v BM 2014 (2) SACR 23 (SCA) at [24]-[25]. An
accused should, for instance, not be asked “why would witness X implicate you?” when it is clear that the accused
can have no knowledge of the motive concerned (at [22]). See further S v Lesito 1996 (2) SACR 682 (O); S v
Ipeleng 1993 (2) SACR 185 (T); S v Lotter 2008 (2) SACR 595 (C) at [34]-[38].
[35] 1982 (1) SA 534 (W) 536.
[36] S v Tswai 1988 (1) SA 851 (C). However, it is equally true that a court should take care not to curb cross-
examination on the basis that something was not said when in fact it was said. See S v Tilo 2006 (2) SACR 266 (NC)
at [6].
[37] S v Nkwanyana 1978 (3) SA 404 (N); Rex v Black 1923 AD 388. See further § 25 5 below.
[38] Israelsohn v Power, NO and Ruskin, NO (1) 1953 (2) SA 499 (W). See also generally S v Nkosi 2010 (1) SACR
60 (GNP).
[39] LAWSA para 573; S v Waldeck 2006 (2) SACR 120 (NC) at [131].
[40] 1949 (1) SA 548 (A). But see further S v Xaba 1997 (1) SACR 194 (W).
[41] At 790.
[42] Hiemstra 1981 SACJ 22 28-9.
[43] See generally Schmidt & Rademeyer 304-5 and 385.
[44] Rex v Bosch supra 554-5.
[45] 1920 AD 307.
[46] Cross-examination as to credit means “cross-examination as to . . . credibility”. See Hobbs v Tinling 1929 2
KB 1 at 19.
[47] 1931 TPD 188.
[48] 1904 TS 126.
[49] 1925 TPD 1 49. See also S v Damalis 1984 (2) SA 105 (T). However, in Maxwell v White 1936 SR 59 it was
decided that English law, which disallows such conduct, should be followed. See Skeen 1984 SALJ 431, where S v
Damalis is criticised as not reflecting the English law as it stood on 30 May 1961. However, in S v Zwane and Others
1993 (1) SACR 748 (W); 1993 (3) SA 393 (W), the advantages in allowing such questioning are stated. See also
1993 ASSAL 732.
[50] Wood v Van Rensburg 1921 CPD 36; S v Ffrench-Beytagh (3) 1971 (4) SA 571 (T).
[51] Dongwe v Assistant Magistrate, Durban unreported judgment, NPD; dated 10 Dec 1951; as cited by Pretorius
Cross-examination in South African Law 254).
[52] S v Baleka and Others (4) (unreported judgment, TPD, dated 15 Nov 1988; as cited by Pretorius Cross-
examination in South African Law 256).
[53] S v Cele 1965 (1) SA 82 (A) 91-2: “Latitude in testing by cross-examination the credibility of a witness where
credibility is clearly the issue, should be allowed until the court is satisfied, either that the right to cross-examine is
being misused or abused, or that the particular line of cross-examination could never be productive of anything
which could assist the court in its eventual decision on credibility.”
[55] Act 86 of 1996.
[56] Procl 49 in GG 17231 dated 30 Aug 1997.
[57] Pretorius Cross-examination in South African Law 258 observes as follows: “A cross-examiner must be given
a reasonable opportunity before being required to show the relevance of his questioning. What a reasonable
opportunity is, will depend upon the circumstances, such as the nature, extent and complexity of the case, and
especially also the points which the cross-examiner wishes to show with his questioning.” It has been argued that
s 166(3) is constitutional but ought to be applied with caution in order to protect the constitutional fair trial right as
guaranteed by s 35(3) of the Constitution. See Van der Merwe 1997 Stell LR 348 355-9.
[58] See S v DD 2015 (1) SACR 165 (NCK) at [54]-[55].
[59] Gumede v Daines, NO and the Attorney-General 1952 (2) SA 315 (T). On the right of the defence to recall a
state witness for further cross-examination, see S v Rautenbach 2014 (1) SACR 1 (GSJ).
[60] S v Mgudu 2008 (1) SACR 71 (N). In this case the trial court had erred in hearing an application for the
discharge of the accused (in terms of s 174 of the CPA) before the state witness concerned was recalled for cross-
examination as reserved. Madondo J noted that this was “a departure from the rules of procedure” (at [15]) but
ruled that cross-examination as reserved nevertheless had to take place even though the case for the state had been
closed (at [25]-[29]).
[62] R v Herholdt and Others (4) 1956 (3) SA 313 (W).
[63] 1999 (1) SACR 664 (C) 673f-j.
[64] Lansdown & Campbell 788; R v Solomons 1959 (2) SA 352 (A).
[65] In S v Motlhabane and Others 1995 (2) SACR 528 (B) Khumalo J said (at 531d-f): “In my view if a party
waives his right to cross-examine, then he cannot complain and the untested evidence given by the witness must be
considered with the rest of the evidence. If, however, a witness dies before cross-examination commences, then his
evidence is untested and must be regarded as pro non scripto. If cross-examination has started and the witness dies,
the opposing party may, if he considers that the purposes of cross-examination have been achieved, agree that the
evidence of the deceased witness be considered with the rest of the evidence. If the opposing party has clearly not
cross-examined adequately on all the aspects of the witness’ evidence, then the purpose of cross-examination will
not have been achieved . . . The test should be whether the opposing party was given a full opportunity to test the
evidence of the witness”. A similar approach should be adopted where a witness has become too ill for cross-
examination or further cross-examination. See generally Engles v Hofmann and Another 1992 (2) SA 650 (C). The
discretionary approach was rejected in S v Msimango and Another 2010 (1) SACR 544 (GSJ).
[66] S v Yanta 2000 (1) SACR 237 (Tk) 250h-j; see also rule 39(8) of the Uniform Rules of Court.
[67] 2001 (2) SACR 537 (T).
[68] At 541h-i.
[69] S v Ramalope 1995 (1) SACR 616 (A).
[71] 1945 1 All ER 183 189.
[72] 1968 (4) SA 340 (A). See also generally Take and Save Trading CC and Others v Standard Bank of SA Ltd
2004 (4) SA 1 (SCA).
[73] 1982 (1) SA 828 (A); Skeen 1982 SACC 180. See also S v Msithing 2006 (1) SACR 266 (N); S v Mathabathe
2003 (2) SACR 28 (T); S v Joors 2004 (1) SACR 494 (C). In S v Gerbers 1997 (2) SACR 601 (SCA) it was held that
the lengthy questioning of accused persons by the presiding judicial officer is per se a relatively neutral factor. The
important factor is the manner of judicial questioning. It is an irregularity when questions are put so belligerently or
intimidatingly, or so repetitively or confusingly, as to amount to judicial harassment. But judicial questioning to
which the accused finds it difficult to respond without damaging his case, cannot justify a perception of partiality. A
trial judge may explore avenues not explored by the prosecutor. In S v Mseleku and Others 2006 (2) SACR 237 (N)
the trial judge had asked 62% of all questions asked and had called and recalled important witnesses. A full bench
concluded that no irregularity had taken place. The prosecutor was inexperienced (at [69]) and her cross-
examination “was pusillanimous and languid” (at [61]). Writing for the full bench, Nicholson J said that “in criminal
proceedings the court will, if it is necessary in order that justice be done, come to the aid of the accused who is
represented by inexperienced counsel . . . The corollary of this would seem to be that inexperienced counsel for the
State should be assisted also” (at [60]). The active role played by the trial judge was justified in all the
circumstances of this case. However, the important point is that the trial judge had never cross-examined any
witnesses and had refrained from putting leading questions (at [66]). At [66] it was also said that every question put
by the trial judge “was open and allowed the witness to give information which would assist the court in achieving
justice in the difficult circumstances in which it was placed. The trial court had also never cross-examined the
appellants,”. . . even though their version cried out for that form of questioning . . .” (at [70]). On judicial
questioning of defence witnesses, see also S v Mohase 1998 (1) SACR 185 (O).
[74] R v Baartman and Others 1960 (3) SA 535 (A); R v Roopsingh 1956 (4) SA 509 (A); S v Mosoinyane 1998 (1)
SACR 583 (T); S v Matthys 1999 (1) SACR 117 (C). See S v Mseleku and Others supra.
[75] S v Seleke en ’n Ander 1980 (3) SA 745 (A); Van der Merwe, Barton & Kemp Plea Procedures in Summary
Criminal Trials (1983) para 6 6 3.
[76] S v Jacobs 1978 (1) SA 1176 (C) 1177; S v Gumede 1978 1 PH H81 (N); S v Nqwakuzayo 2003 (1) SACR 253
(Tk); S v Williams 2008 (1) SACR 65 (C). Section 112(1)(b) also does not entitle the court to put leading questions
to the accused. See S v Mbebe 2004 (2) SACR 537 (Ck); S v Balatseng 2005 (2) SACR 28 (B); S v Mahlasela 2005
(1) SACR 269 (N); S v Gwenya 1995 (2) SACR 522 (E) and S v Nyanga 2004 (1) SACR 198 (C).
[77] R v Majosi and Others 1956 (1) SA 167 (N); R v Kumalo 1952 (3) SA 223 (T). Denying the defence a remand
to prepare to cross-examine a witness recalled by the court, may constitute an irregularity. See S v Magalane 1999
(1) SACR 627 (W).
[79] S v Brumpton 1976 (3) SA 236 (T) 242.
[80] S v Lubbe 1966 (2) SA 70 (O).
[81] The intermediary is known as “tussenganger” in Afrikaans. Parts of the discussion in the text were previously
published by Van der Merwe in 1995 Obiter 194 and in Nijboer & Reijntes (eds) Proceedings of the First World
Conference on New Trends in Criminal Investigation and Evidence (1997) 239.
[82] See also generally Paizes in Du Toit et al Commentary 22-30 to 22-32C and Kruger Hiemstra’s Criminal
Procedure (2007) 22-69 to 22-71.
[83] The interim Constitution came into operation in April 1994.
[84] See Working Paper 28 of the SA Law Commission: The Protection of the Child Witness: Project 71 (April
1989).
[85] See Report of the SA Law Commission on the Protection of Child Witnesses: Project 71 (February 1991),
especially paras 5 48 and 5 49.
[86] See s 3 of the Criminal Law Amendment Act 135 of 1991. However, s 170A only came into operation on 30
July 1993 (Proc R64 in GG 15025 dated 30 July 1993).
[87] GN R1374 GG 15024 of 30 July 1993 determined that certain categories or classes of persons are competent
to be appointed as intermediaries. This notice has been amended by GN R360 in GG 17882 of 28 Feb 1997 and by
GN R597 in GG 22435 of 2 July 2001.
[88] In S v T 2000 (2) SACR 658 (Ck) Ebrahim J said (at [23]): “[W]hat does not appear from the record is
whether the magistrate and, of course, the prosecutor and the appellant’s legal representative as well as the
appellant, were able to see as well as hear, both the intermediary and the witness as required by s 170A(3)(c) of the
CPA. While s 170A(3)(b) stipulates that the person whose presence may upset the witness should be out of the sight
and hearing of the witness, s 170A(3)(c) provides that the court and those present should be able to see the witness
and intermediary either directly or through the medium of any electronic or other devices. The record of the
proceedings merely indicates that they were in a different room. It was the responsibility of the magistrate to record
in which manner the provisions of s 170A of the CPA had been complied with. In the absence of this information the
Court of appeal is left to speculate regarding the circumstances which prevailed at the trial.” S v Manzi 2004 (2) SA
133 (N) is a rather peculiar case. At the trial it was agreed that the accused would sit in the room reserved for
intermediaries. He was thus able to hear, but not see, the witness. On appeal it was held that this was irregular, but
that this irregularity did not result in a failure of justice.
[89] Paragraphs 2 8–2 11 of the Report of the SA Law Commission on the Protection of Child Witnesses: Project 71
(February 1991).
[90] See generally s 93ter of the Magistrates’ Courts Act 32 of 1944. See also generally § 1 6 above.
[91] Re “Oral v Written Evidence: The Myth of the Impressive Witness” 1983 57 Australian LJ 679. See also
§ 1 3 1 above.
[92] Paton & Derham (eds) A Textbook of Jurisprudence 4 ed (1972) 597. See also § 1 3 1 above.
[93] See generally Pollitt “The Right of Confrontation: Its History and Modern Dress” 1959 8 Journal of Public Law
381.
[94] California v Green 399 US 149 (1970) at 158.
[95] 487 US 1012, 101 LEd 2d 857 (1988).
[96] Quotation taken from the headnote of the case as reported in 101 LEd 2d 857-8 (1988).
[97] Coy v Iowa supra 868.
[98] Coy v Iowa supra 869.
[99] Quotation taken from the headnote of the case as reported in 101 LEd 2d 857 (1988).
[100] The two important differences are as follows: (a) Section 170A requires the court to make a case-specific
finding as regards the child before the measures contained in this section can be invoked. The Iowa legislation
amounted to a “legislatively imposed presumption of trauma”, and did not call for an individualised finding. (b) In
terms of s 170A the defence must at all relevant times be able to observe the child witness. Use of the screen as
permitted by the Iowa legislation confined the defence to observing a mere silhouette.
[101] 497 US 836 (1990).
[102] The full text of the Maryland statute is cited in 111 LEd 2d 666 675 (1990). In the event of the court
concluding that the child would suffer serious emotional distress to the extent that the child’s ability to communicate
reasonably is affected, the court should — apart from directing the use of closed circuit television — also adopt the
following procedure: the judge, jury and accused remain in the courtroom, whereas the child witness, the prosecutor
and defence counsel should withdraw to a separate room, where the witness may then be examined and cross-
examined whilst being observed by the judge, jury and accused. The witness cannot see the accused. The latter is at
all times in electronic communication with his or her counsel. Objections can be made as if the child witness is in the
courtroom.
[103] 111 LEd 2d 666 682 (1990).
[104] S v Kelly 1980 (3) SA 301 (A) 308B. See § 30 4 below.
[106] 1996 (1) SACR 434 (E).
[107] See generally Kriegler & Kruger Hiemstra: Suid-Afrikaanse Strafproses 6 ed (2002) 445; Kruger Hiemstra’s
Criminal Procedure (2007) 22-69 and Schwikkard & Jagwanth 1996 SACJ 215. In Director of Public Prosecutions,
Transvaal v Minister of Justice and Constitutional Development, and Others 2009 (2) SACR 130 (CC) the
Constitutional Court dealt with different issues concerning s 170A. See § 18 11 3 2 below.
[108] Section 36(1) of the Constitution.
[109] See generally the SA Law Commission’s Discussion Paper 102, Project 107, Sexual Offences: Process and
Procedure (2002) paras 26 1–26 5 12.
[110] See, eg, Schwikkard 1991 SACJ 44; Zieff 1991 SACJ 21; Hammond & Hammond 1987 SACC 3; Key 1988 De
Rebus 54; Steyn Witnesses in South Africa, The Step-children of the Criminal Justice System (unpub LLM thesis, Univ
of Cape Town, 1999) 133-166; Müller The Child Witness in the Accusatorial System (unpub PhD thesis, Rhodes Univ,
1997) 235-45; Müller & Tait 1997 TSAR 519; Watney 1998 THRHR 423; Müller & Tait 1999 THRHR 241.
[111] See, eg, S v Basil Simons (unreported, DCLD; case no 84/88; 13/6/88); S v Mokoena; S v Phaswane 2008
(2) SACR 216 (T) at [54]-[60].
[112] See, eg, Report on the Evidence of Children and Other Potentially Vulnerable Witnesses Scottish Law
Commission, Study no 125, Edinburgh (1990).
[113] See, eg, Morgan & Plotnikoff “Children as Victims of Crime: Procedure at Court” in Spencer, Nicholson, Flin &
Ball (eds) Children’s Evidence in Legal Proceedings: An International Perspective (1990) 189-92; McEwan “Child
Evidence: More Proposals for Reform” 1988 Crim LR 813; Adler “Prosecuting Child Sexual Abuse: A Challenge to the
Status Quo” in Maquire & Pointing (eds) Victims of Crime: A New Deal? (1988) 138-46; Hardin “Guardians ad litem
for Child Victims in Criminal Proceedings” 1986-1987 25 Journal of Family Law 687; Pynoos & Eth “The Child Witness
to Homicide” 1984 40 Journal of Social Issues 87; Pynoos & Eth “Witnessing Violence: Special Intervention Programs
for Child Witnesses to Violence” in Lystadt (ed) Violence in the Home (1986) 193-216; Spencer “Children’s Evidence:
How Not to Reform the Law” 1988 137 New Law Journal 497; Goodman “The Child Witness: Conclusions and Future
Directions for Research and Legal Practice” 1984 40 Journal of Social Issues 157; Black & Kaplan “Father Kills
Mother: Issues and Problems Encountered by a Child Psychiatric Team” 1988 153 British Journal of Psychiatry 624;
Harmon “Examination of Children in Sexual Offences: The Israeli Law and Practice” 1988 Crim LR 263; Aman &
Hirschman “Child Sexual and Physical Abuse: Children’s Testimony” in Ceci, Ross & Toglia (eds) Children’s Eye-
witness Memory (1987) 142; Libai “The Protection of the Child Victim of a Sexual Offence in the Criminal Justice
System” 1969 15 Wayne LR 980; Graham “Indicia of Reliability and Face to Face Confrontation: Emerging Issues in
Child Sexual Abuse Prosecutions” 1985 University of Miami LR 19; Oates “Children as Witnesses”’ 1990 64 Australian
LJ 129; Christiansen “The Testimony of Child Witnesses: Fact, Fantasy and the Influence of Pre-trial Interviews”
1987 62 Washington LR 709; Malamquist “Children Who Witness Parental Murder: Post Traumatic Aspects” 1986 25
Journal of the American Academy of Child Psychiatry 320.
[114] 487 US 1012, 101 LEd 2d 857 874 (1988).
[115] See, eg, the discussion of the position in England by Morgan & Zedner Child Victims: Crime, Impact, and
Criminal Justice (1992) 134-5. See also the Canadian case R v Levogiannis 1993 18 CRR (2d) 242 (SCC).
[116] 2008 (2) SACR 216 (T).
[117] At [78].
[118] At [79].
[119] At [185].
[120] 2009 (2) SACR 130 (CC).
[121] At [100].
[122] At [123].
[123] At [114].
[124] At [115]. In this regard the Constitutional Court specifically rejected the decision in S v F 1999 (1) SACR 571
(C). For a further critical discussion of F, see Schwikkard 1999 SACJ 259.
[125] At [131].
[126] 2008 (2) SACR 216 (T).
[127] 2009 (2) SACR 130 (CC).
[128] At [161].
[129] At [160] it was said with reference to s 158(5) as well as s 170A(7): “The fact that these subsections require
the court to give reasons for refusing the application for the use of a CCTV or the appointment of an intermediary in
the case of a child under the age of 14 years, as the case may be, does not in itself exclude the need for reasons in
the case of a refusal in respect of a child over the age of 14 years. The issue is one of emphasis rather than one of
exclusion. What the subsections emphasise is that the younger the child, the more the need exists for protection.
Selecting the age of 14 years may perhaps be perceived to be arbitrary. So are all choices relating to age. This,
however, does not detract from the fact that the subsections recognise that younger children may need the
protection more than older children. As pointed out earlier, the protection that is given to children must be
appropriate to their age, level of maturity and unique needs. These subsections recognise this. They also recognise
that vulnerability decreases with age.”
[130] 1999 (1) SACR 182 (C) 187h-188i.
[131] Schwikkard 1999 SACJ 259 260-1. See also § 18 11 3 2 above. It must be noted that elsewhere in his
judgment, Mitchell J referred to the necessity of balancing competing rights “in such a way as to ensure fairness to
both sides”. See S v Stefaans supra 187g.
[132] Schwikkard 1999 SACJ 259 261. See also para 26 5 2 4 of the SA Law Commission’s Discussion Paper 102,
Project 107, Sexual Offences: Process and Procedure (2002). See further Whitear-Nel 2006 SACJ 334 339.
[133] S v Stefaans supra 186j-187b. See further Müller & Tait 1999 THRHR 241 245-7 for a critical analysis of the
criterion “undue mental stress or suffering” as used in s 170A(1). A court is obviously obliged to consider the
criterion carefully before deciding to appoint an intermediary. See S v Mathebula 1996 (2) SACR 231 (T).
[134] S v Stefaans supra 187c-d.
[135] 2012 (2) SACR 517 (GNP). However, the irregularity was not a fatal one: the trial was fair because no
prejudice was caused to the accused. See further S v Nedzamba 2013 (2) SACR 333 (SCA).
[136] S v Peyani 2014 (2) SACR 127 (GP).
[137] S v Motaung 2007 (1) SACR 476 (SE). See also generally S v Booi and Another 2005 (1) SACR 599 (B) and
compare S v QN 2012 (1) SACR 380 (KZP).
[138] S v QN supra at [21].
[139] S v Mponda 2007 (2) SACR 245 (C) at [36]. See also S v Bongani 2001 (1) SACR 670 (C).
[140] S v Mathebula 1996 (2) SACR 231 (T).
[141] S v F supra 584h.
[142] S v T 2000 (2) SACR 658 (Ck) at [22]. See also generally S v Bongani 2001 (1) SACR 670 (C) which must
now be read subject to the provisions of s 170A(5) and 170A(6).
[143] S v T supra at [23].
[144] See para 26 5 3 5 of Discussion Paper 102, Project 107, Sexual Offences: Process and Procedure (2002).
See also generally Schwikkard 1996 Acta Juridica 148 160 and the approach adopted by Bertelsmann J in S v
Mokoena; S v Phaswane 2008 (2) SACR 216 (T).
[145] See para 26 5 4 2 of Discussion Paper 102.
[146] See para 26 6 of Discussion Paper 102.
[147] Section 153 of the CPA deals with the circumstances in which criminal proceedings shall not take place in
open court.
[148] This section came into operation on 1 Sept 1997 and was inserted by s 7 of the Criminal Procedure
Amendment Act 86 of 1996. See unreported CPD decision, case no ss 18/97, 4 Dec 1997, where s 158(2) and 158
(3) were invoked. See Howie 1998 De Rebus 49 for a discussion of De Grandhomme and the advantages and
questionable aspects of s 158(2).
[149] See s 158(2)(a).
[150] Section 158(2)(b).
[151] 1999 (1) SACR 571 (C).
[152] At 577j-578a.
[153] At 578b.
[154] At 578d-579b.
[155] On the possibility of using s 158 as an alternative to s 170A, see Müller & Tait 1999 SACJ 57 as well as S v
Domingo 2005 (1) SACR 193 (C) 198d-e.
[156] 2003 (1) SACR 232 (C).
[157] At 248g.
[158] At 248h.
[159] At 248i-j
[160] 2005 (1) SACR 193 (C).
[161] At 197b-c.
[162] At 197b-g.
[163] At 198d-f.
[164] S v Domingo supra 199g-h.
[165] The position as regards a witness in a foreign country is catered for by s 2(1) of the International Co-
Operation In Criminal Matters Act 75 of 1996. See further S v Basson 2000 (2) SACR 188 (T) and S v Basson 2001
(1) SACR 235 (T). See also generally S v Zuma and Others 2006 (2) SACR 69 (D) and Zuma and Others v National
Director of Public Prosecutions 2008 (1) SACR 298 (SCA).
[166] On evidence on commission, see generally S v Hoare and Others 1982 (3) SA 306 (N); S v Ffrench-Beytagh
(2) 1971 (4) SA 426 (T); Rex v Levy and Others 1929 AD 312 332; S v Mzinyathi 1982 (4) SA 118 (T). A useful
summary of cases and principles relating to the grant or refusal of a commission is to be found in S v Banda and
Others 1990 (2) SACR 44 (B). In S v Hassim and Others 1973 (3) SA 443 (A) it was held that a judge has a wide
discretion in deciding whether to grant a commission and should grant such applications sparingly and in unusual
circumstances. But there is no need to limit the enabling statutory provision to evidence of a formal nature. It should
be pointed out that all the cases referred to in this footnote, dealt with statutory provisions which preceded the
amendment of s 171 by s 36 of Act 75 of 1996.
[167] Section 171(1)(b). If the application is granted, the court may confine the examination of the witness to
matters raised in the application.
[168] Section 171(2)(a).
[169] Section 171(2)(b).
[170] Section 171(2)(b).
[171] Section 171(2)(b).
[172] Section 173.
[173] Section 173.
[174] Section 173.
[175] 1981 (4) SA 74 (T); Skeen 1982 SALJ 338. See also further Meyerson v Health Beverages (Pty) Ltd 1989 (4)
SA 667 (C) and Fernandes v Fittinghoff & Fihrer CC 1993 (2) SA 704 (W).
[176] 1918 TPD 420.
[177] Smitham v De Luca 1977 (2) SA 582 (W). The strength or weakness of a party’s case is quite irrelevant to
whether a commission should be granted. What is important is the relevance of the evidence and whether the taking
of the evidence is convenient or necessary for the interests of justice. Meyerson v Health Beverages (Pty) Ltd 1989
(4) SA 667 (C).
[178] Rex v McDonald 1927 AD 110; R v Matyeni 1958 (2) SA 573 (E); R v Goliath 1946 EDL 310; R v Mkwanazi
1935 TPD 129.
[179] 1925 WLD 38.
[180] Rex v Andrews 1920 AD 290.
[181] Ross and Another v Silberman and Others 1963 (2) SA 296 (W).
Page 421
Chapter 19
Real Evidence
S E van der Merwe
19 1 Introduction
19 2 3 Court’s observation of witness for purpose of determining competency to
testify
19 4 Fingerprints
19 7 Handwriting
19 1 Introduction
In S v M Heher JA said: “Real evidence is an object which, upon proper identification,
becomes, of itself, evidence (such as a knife, photograph, voice recording, letter or even the
appearance of a witness in the witness-box).” [1] The party who wishes to produce real
evidence for inspection by the court, must — in the absence of a formal admission by an
opponent — call a witness who can identify the material object (pistol, stolen document, [2]
handwriting [3] ). If such properly identified real evidence is relevant and if there is no other
rule of evidence demanding exclusion, it will be received as an exhibit, duly labelled and
numbered and available for inspection by the court (see § 19 1 2 below).
Real evidence usually owes its efficacy (and relevance) to a witness who explains, for
example, where the exhibit was found or how it was used or why he claims that he is the
owner. In the case of injuries sustained by a person evidence should generally be led to link
the exhibit with the injuries. Medical evidence is useful to show whether the weapon in
|question could have caused
Page 422
the injuries and, if so, what approximate degree of force had been used. Sometimes the
working of a machine may be demonstrated to the court; for example, the functioning of a
telephone call-box apparatus may be demonstrated to the court to show how coins can
illegally be removed from the apparatus.

The court should describe the exhibit carefully so that the details may be embodied in the
record. The court should not attempt to make any observations which require expert
knowledge. [4] But the court itself may obviously conduct any test where expert assistance
would be superfluous, such as measuring exhibits. In Rex v Makeip [5] the judge examined
some plaster casts of footprints (which were exhibits) with a magnifying glass and also
measured the distance between the various marks. The Appellate Division held that this
procedure was permissible as it did not require more than ordinary knowledge or skill. There
are situations where a court, having received real evidence for its inspection and
assessment, can or should also receive expert evidence to enhance or contribute to the
court’s interpretation of the evidence. [6]

Oral evidence describing relevant real evidence not produced in court, is not rendered
inadmissible on account of the fact that the thing described was available to the party
concerned but not produced to the court for its inspection. [7] When such oral evidence is
received, one deals with reported real evidence (the description given by the witness to the
court) as opposed to immediate real evidence (where the witness, in addition to his
identification of the real evidence and his other oral descriptions or explanations of such real
evidence, also presents the real evidence to the court for the latter’s inspection). [8] Reported
real evidence is admissible. However, a party’s reliance on reported real evidence (that is,
his failure or decision not to produce available real evidence) may affect the weight of such
evidence and may, where appropriate, have an adverse effect on the case of the party
concerned. [9] In S v Msane Hoexter J said: [10]
Page 423
“In recent months I have had occasion to consider on review several cases in which the prosecutor
has failed (for no stated or apparent reason) to produce as an exhibit at the trial the real evidence
(the dagga alleged to have been involved) mentioned by the State witness. Such a failure does not, of
course, render inadmissible the oral evidence of the witness concerned. But non-production by a State
witness of a physical object, which might conveniently be produced for inspection by a trial court, may
afford a valid ground for criticism of the witness’ evidence. In my opinion that failure in the instant
case materially reduces the cogency of Mfusi’s evidence (a State witness). It is the duty of a trial
court in a criminal case to treat the evidence of a single witness with caution. Amongst other things
this duty implies, so I consider, that the veracity of the witness and the consistency of his or her story
should be tested where this can be easily done. In a case such as the present an obvious and
elementary test would have been to require the witness to produce for inspection of the court the
dagga alleged to have been sold to her . . . [A] dishonest witness for the prosecution may falsely
implicate an innocent accused in one of the two following ways: (a) having in fact bought dagga from
X he may nevertheless identify Y as the seller or (2) having bought no dagga from anybody at all he
may nevertheless allege that Y sold him dagga. Requiring production of the real evidence will not of
itself prevent the wrong conviction of Y in situation (1); but in situation (2) it may effectively expose
the mendacity of the witness . . . The tendency of prosecutors to take short-cuts by not adducing all
the available evidence should be discouraged by magistrates. The feckless presentation of the case for
the prosecution is subversive of proper criminal justice. It increases alike the risk of the acquittal of
guilty persons and the conviction of innocent ones. Either result is unfortunate.”
A person’s physical appearance and characteristics are real evidence. The court may
examine wounds sustained by a person and, if it does so, should describe its observations
for the purposes of the record. Identity may be established by a person’s physical
characteristics. His size, strength, dexterity and other physical peculiarities may be relevant
to the issue of guilt or innocence.

The resemblance of a child to his or her reputed mother or father may afford some evidence
of parentage, although the value of such evidence is marginal. [11] The evidence may carry
slightly more weight if the alleged parents are of different ethnic origins and the child is in
appearance of mixed origin. [12]

The physical appearance of a person may serve as real evidence of his or her approximate
age. [13]
Section 337 of the CPA also provides as follows:
Page 424
“If in any criminal proceedings the age of any person is a relevant fact of which no or insufficient
evidence is available at the proceedings, the presiding judge or judicial officer may estimate the age
of such person by his appearance or from any information which may be available, and the age so
estimated shall be deemed to be the correct age of such person, unless —
(a) it is subsequently proved that the said estimate was incorrect; and
(b) the accused at such proceedings could not lawfully have been convicted of the offence with
which he was charged if the correct age had been proved.”
Section 337(b) makes it clear that an estimation of age based on “appearance” (or any other
available information) is not permitted where the precise age of the accused is an element of
the crime. Section 337 may also only be relied upon as a last resort and not as a matter of
convenience, especially since persons under the age of eighteen years may fall, for
procedural and other purposes, within the ambit of the constitutional injunction “best
interests of the child” as provided for in s 28 of the Constitution. [14]
19 2 3 Court’s observation of witness for purpose of determining

competency to testify
Where the issue is whether a witness is on account of his or her mental inability incompetent
to testify, the court may, for purposes determining this issue, allow the witness concerned to
testify “so that the court can observe him or her and form its own opinion on the witness’s
ability to testify.” [15]
Tape recordings may be admissible as real evidence. The main danger concerning this type
of evidence is the possibility of editing or alteration of the tapes. [16]
Page 425
The court should be satisfied that it is shown prima facie that the recording is original. The
recording must also be sufficiently intelligible. Sometimes a transcript of the recording will
be produced in evidence subject to the court being satisfied as to the accuracy of the
transcription. In Hopes v HM Advocate [17] a Scottish court held that a typist who prepared a
transcript after playing over the recording many times could be considered an expert in
respect of the particular recording. The transcript must be identified by the person who
made it. [18] There must be evidence to identify the speakers. [19] This may be done in
several ways, for example, either by a person who heard the speech or conversation or by
inference from what was said. [20] Evidence of video recordings is discussed in § 19 5 below.
19 4 Fingerprints
Evidence that fingerprints were found at the scene of the crime or on a particular object is
often of strong probative value in linking the accused with the commission of a crime. The
usual manner in which fingerprint evidence is obtained is as follows: a policeman will lift a
print by means of folien from the object and then send off the folien and fingerprints taken
from the suspect to a police expert stationed at a main centre; the expert will then compare
the fingerprints of the suspect with those found at the scene; the expert will mount enlarged
photographs of the two sets of prints side by side and mark the points of similarity. If the
expert attends court, he will often re-take the accused’s fingerprints and compare them with
the prints found at the scene. Seven
Page 426
points of similarity are sufficient to prove beyond doubt that the prints were made by one
and the same person. [21] The evidence of comparison may be given orally or by affidavit
(s 212(4) and (6) of the CPA; see § 15 3 1 10 above). Once the court accepts that the
witness is an expert it will as a general rule accept his evidence. [22] The procedural
requirements relating to comparative charts are set out in a number of cases. [23]
Footprints do not require explanation by an expert and the court is obviously not obliged
to accept an opinion as to the identity of footprints. [24]

Photographs may be produced as real evidence of such matters as injuries or accident
damage. A photograph may also be used where an item is too bulky to produce in court.
Section 232 of the CPA expressly allows for the production of photographs. Witnesses may
also identify persons by examining photographs. A photograph is a document in terms of
Part VI of the CPEA (s 33) and may be admissible in both civil and criminal proceedings
(s 222 of the CPA) if the photographer has acknowledged in writing that he is responsible for
its accuracy. In other instances there must be evidence that the photograph is a true
likeness of the items shown in it.
The principles regarding the use of films as real evidence are the same as those for
photographs. In The Statue of Liberty [25] a radar station’s films and recordings of echoes of
ships on the River Thames were accepted as real evidence. The cases dealing with the
admissibility of film and video recordings show differing approaches.
In S v Mpumlo and Others [26] the court held that a video film was not a document but was
real evidence which, so long as it satisfied the requirement of relevance, could be produced,
subject to any dispute as to authenticity or interpretation. In that case a copy was produced,
but this was said only to go against the weight that may be attached to the evidence.
Page 427
In S v Ramgobin and Others [27] Milne JP held that there was no difference in principle
between the admission of audio tapes and video recordings. Milne JP held that the state had
to prove the following factors beyond a reasonable doubt: (a) originality; (b) that no
interference had taken place; (c) that they related to the incident in question; (d) that the
recording was faithful; (e) that the identity of the speakers was identified; and (f) that the
recordings were sufficiently intelligible.
In S v Baleka and Others (1) [28] it was held that sound recordings and video recordings,
and a combination of the two, are real evidence to which the rules relating to documentary
evidence are not applicable. In S v Baleka and Others (3) [29] Van Dijkhorst J found himself
unable to agree with the stringent test for admissibility laid down in S v Ramgobin and
Others supra because it is absurd to exclude evidence because it is potentially dangerous.
Reliability need be established only later — all that need be established for admissibility is
that prima facie the recordings had some probative value.
It is open to the court to hold an inspection in loco to observe the scene of an incident or the
nature of an object which cannot be produced in court. The decision to hold an inspection in
loco is solely within the discretion of the court. A court of appeal will be slow to hold that the
trial court was wrong in refusing to hold an inspection. [30] The power to hold inspections in
loco is conferred on a court, in criminal cases, by s 169 of the CPA and in civil cases by
Magistrates’ Courts Rules rule 30(1)(d) and rule 39(16)(d) of the Uniform Rules of Court.
An inspection in loco may achieve two main purposes: (a) it may enable the court to
follow the oral evidence more clearly or (b) it may enable the court to observe some real
evidence which is additional to the oral evidence. It is undesirable that an inspection in loco
should take place after the evidence and arguments have been completed, because
observations made by the court should be recorded and the parties should be afforded the
opportunity of making submissions and leading evidence to correct an observation which
seems to them to be incorrect. [31] The inspection should be held in the presence of both
parties. There is authority that the presiding officer may
Page 428
make the inspection on his own. [32] The better view is that he should not do so. If witnesses
point out items and places during the inspection, they should subsequently be called or
recalled to give evidence on what was indicated at the inspection. [33] It is irregular for the
inspection to be held in the presence of only one of the parties or his witnesses. [34]
19 7 Handwriting
Comparisons of disputed writing with any writing proved to be genuine may be made by a
witness. Such writings and the evidence of the witnesses may be submitted as proof or
otherwise of the writing in dispute (s 228 of the CPA and s 4 of the CPEA). The writing
submitted for comparison is real evidence. [35] An expert in the comparison of handwriting is
usually known as a “questioned document examiner”. Such an expert will usually mount the
disputed writing side by side with the genuine writing and indicate points of similarity. The
court is of course not bound by an expert’s opinion. [36] A layman may give evidence
concerning the comparison of writing that he knows. The Supreme Court of Appeal has found
that a court may draw its own conclusions from its own comparisons. [37] Identification of
handwriting in the context of opinion evidence is also discussed in § 8 5 2 above.

The results of blood tests may be used in litigation. This is usually done in cases of driving
under the influence of alcohol or driving with an excess blood-alcohol level. In paternity
cases red blood cell tests can at the most give a negative result. All that can be said is that
the alleged father could not have been the father. [38] The HLA tissue typing test may be
used to prove paternity to a much more certain degree than red blood cell tests. In
Page 429
Van der Harst v Viljoen [39] evidence showed a probability of 99,85% that the defendant was
the father. However, such testing is merely corroborative of the evidence of the complainant
or plaintiff.
In paternity cases it is disputed whether a person may be forced to submit to blood or
tissue tests in civil cases by order of the Supreme Court. [40] However, if there is no such
order and a party decides not to submit, the provisions of s 37 of the Children’s Act 38 of
2005 must govern the situation (see § 28 5 4 below).
A far more precise method of identification is to be found in the so-called DNA
“fingerprinting”. [41] Section 36A(1) in Chapter 3 of the CPA, defines “DNA” as
“deoxyribonucleic acid which is a bio-chemical molecule found in the cells and that makes
each species unique . . .”. What follows is a very basic description of DNA as a means of
identification, the scientific basis thereof and the process involved. Humans have 46
chromosomes in the nucleus of each somatic or body cell. These thread-like structures are
composed of a linear arrangement of genes which in turn are made up of DNA
(deoxyribonucleic acid). The DNA of each individual is unique, except for identical twins. A
person’s DNA resembles that of his or her parents because one member of each of the 23
chromosome pairs comes from the mother and one from the father. DNA can be extracted
from cells taken from skin, bone, blood, hair follicles and semen. This DNA can then be used
in laboratory tests to show a distinctive pattern of bands. This process is known as DNA
fingerprinting. The pattern that is revealed can then be compared with other samples of DNA
to determine if there is a match.
The DNA evidence thus obtained can be used for several forensic purposes. It can
determine the identity of a deceased person, where other reliable means are no longer
possible. DNA taken from the skeleton, for example, would be similar to that of the parents
or children of the deceased. In paternity disputes a sample of DNA from the child is
compared with the DNA of the mother and
Page 430
the alleged father. In S v Mathlare [42] the expert’s evidence, based on DNA analysis, was to
the effect that there was a mere 0,06% possibility that the appellant was not the father.
DNA tests can be used to link a suspect to a crime, or to show that the suspect could not
have been the perpetrator. In a rape case, for example, semen found on the victim can be
analysed and compared with DNA from blood samples taken from suspects and the victim.
DNA profiling is a more useful forensic diagnostic tool than simply using blood types.
In S v R Willis J said: “In my view there are substantial benefits to be derived from
harnessing the advances in modern science to the law. When it comes to rape cases DNA
testing can be especially helpful.” [43] The testing process — like all other scientific processes
— must be executed and recorded with such care that it can later be verified by any
objective scientist, and a fortiori also a court of law. [44]
S v SB contains valuable insights into the technical and scientific basis upon which DNA
evidence rests. [45] In this case Van der Merwe JA expressed his debt to Meintjes-Van der
Walt’s book DNA in the Courtroom: Principles and Practices which was published in 2010 and
which has often been referred to by South African courts. [46]

The extent to which the above can be received as real evidence, is examined in § 21 4
below.
[1] 2002 (2) SACR 411 (SCA) at [31]. Many further examples can be added. In fact, real evidence may include any
thing, person (Newell v Cronje and Another 1985 (4) SA 692 (E)) or place (§ 19 6 below) which is observed by the
court in order that a conclusion may be drawn as to any fact in issue. Both Cross Cross & Tapper on Evidence 11 ed
(2007) 60 and Keane The Modern Law of Evidence 6 ed (2006) 276 refer to the case of Line v Taylor (1862) 3 F & F
731, where the defendant was permitted to bring his dog (as real evidence) into court so that the dog could be
observed by the jury for the purpose of determining the fact in dispute, namely the allegedly vicious nature of the
dog.
[2] In this instance the document is a thing (object), and rules governing documentary evidence (ch 20) do not
apply.
[3] See § 19 7 below.
[4] See the discussion of Stewarts & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty) Ltd and
Others 1979 (1) SA 1018 (W) in § 8 1 above.
[5] 1948 (1) SA 947 (A).
[6] In R v Luttrell 2004 2 Cr App R 520 CA an expert in lip-reading provided expert assistance to the court as to
what a person had said on a closed circuit television recording received as real evidence. In S v Mdlongwa 2010 (2)
SACR 419 (SCA) at [20]-[21] the court accepted the evidence of an expert who had found 13 points of similarities
between the facial features of a person in video footage (received as exhibit F29) and a photograph of the accused
(received as exhibit K). For an insightful analysis of and critical comment on the use of closed circuit television
images as identification evidence, see Edmond & Meintjes-Van der Walt (2014) 131 SALJ 109.
[7] Keane The Modern Law of Evidence 6 ed (2006) 276. It should be noted that real evidence can also be proved
by way of a properly identified photograph of the item or article concerned. See, for instance, s 232 of the CPA. This
section may be relied upon only where the court has been requested to receive into evidence a photograph of the
item or article concerned. See S v Vorster en ’n Ander 2006 (1) SACR 611 (T) at 615f-g. See further § 19 5 below.
[8] The distinction between “reported real evidence” and “immediate real evidence” is dealt with by Phipson “‘Real’
Evidence” 1920 29 Yale Law Journal 705 706 and can be traced to Bentham.
[9] S v Mosoinyane 1998 (1) SACR 583 (T) 598e-g.
[10] 1977 (4) SA 758 (N).
[11] Rex v Stephen Jood 1949 (1) SA 298 (GW); Russel v Russel 1923 129 LT 151.
[12] R v P 1957 (3) SA 444 (A); R v D 1958 (4) SA 364 (A). Where a person’s ethnic descent is in dispute his
appearance may be real evidence. See R v S 1954 (3) SA 522 (A).
[13] S v Mavundla 1976 (4) SA 731 (N); S v Mavundla and Another; S v Sibisi 1976 (2) SA 162 (N). For a
comprehensive summary of the various physical indicators doctors rely on in estimating age, see Le Roux-Kemp in
Du Toit et al Commentary at 33-17 to 33-20.
[14] S v Dial 2006 (1) SACR 395 (E). Inconvenience to a district surgeon is no adequate reason for resorting to an
estimation in terms of s 337 of the CPA. See S v Swato 1977 (3) SA 992 (O). Where a presiding judicial officer
estimates age, he should record his observations as part of the record. See S v Nyathi 1978 (2) SA 20 (B). S v
Mavhungu 1988 (3) SA 67 (V) deals comprehensively with the application of s 337 and the approach to be taken in
determining age.
[15] S v Katoo 2005 (1) SACR 522 (SCA) at [13]. It should be noted that in this case the court’s observation of the
complainant was also relevant to the merits of the case. The accused’s defence to the main charge of rape was that
it was consensual; and to the alternative charge (the statutory offence of intercourse with an imbecile) the defence
was that he did not know that the complainant was in imbecile and therefore he lacked the required dolus. At [14]
Jaftha JA said: “In addition, the intention of the State here was not to rely on the truth of the evidence of the
complainant; it was to demonstrate to the [trial] Court that she was an imbecile and that that fact would have been
apparent to anyone — in other words, a procedure akin to an inspection in loco.” In S v Mnguni 2014 (2) SACR 595
(GP) Keightley AJ took the view that this method of receiving evidence is not acceptable. In this case the accused
was charged with the rape of a 20-year-old mentally disabled woman. The prosecution led no expert evidence
concerning the victim’s disability. The magistrate then called the victim into court so that all present “could see for
themselves whether the complainant was mentally disabled” (at [21]). At [22] Keightley AJ observed: “Not only is it
quite irregular for the court to try to formulate an opinion in this manner, but it is also fundamentally contrary to the
complainant’s rights to privacy and dignity. She was effectively put on display and discussed as an object by the
magistrate and others involved in the trial.” The approach in Mnguni is supported.
[16] See S v Ramgobin and Others 1986 (4) SA 117 (N) and the discussion of this case in § 19 5 below. The
headnote in S v Nieuwoudt 1990 (4) SA 217 (A) reads as follows: “Even if it is accepted that proof of authenticity is
a prerequisite for the admissibility of a tape recording, the recording cannot be excluded from the evidence solely on
the ground that interferences (‘steurings’ — ie the erasure or substitution of existing parts of the recording and the
insertion of new parts) appear in it. On the contrary, when it is borne in mind that the danger which has to be
guarded against is the admission of a recording in respect of which there is a reasonable possibility that it is a
distorted version of the reality, it is obvious that every ‘interference’ has to be examined in order to determine
whether such a possibility indeed exists. But not every interference necessarily or even probably points to the
absence of authenticity: it would be absurd, for example, to exclude a recording from which part of a conversation
had been accidentally erased solely because of such defect. Naturally the evidential value thereof would, depending
on the materiality of the missing part, be affected but there can be no objection to the admissibility of the recording
where there is no suggestion of any lack of authenticity. The same applies to deliberate interferences. Although it
can be accepted that such interferences are, at first glance, cause for suspicion, there can again be no objection to
the admissibility of, for example, a recording from which a part has been erased without thereby distorting the
remainder. In such a case, the remaining part is still admissible evidence (unless it is inadmissible on other
grounds), even though the evidential value thereof might be less than what it otherwise would have been. . . Where
the authenticity of a tape recording is in issue in a case where the State wishes to tender the tape recording as
evidence, the crucial question is whether the State has excluded the reasonable possibility of a false recording. That
question has to be answered with reference to the cumulative effect of all available indications without the State
being expected to exclude every separate factor which might count in favour of the accused/appellant. Therefore,
where it is alleged that there is a strange voice on the recording (which would be an indication of the recording not
being authentic) and the Court is not able to determine, from its own observations and with the aid of expert
evidence, whether a strange voice does occur on the recording, the Court’s aforementioned inability together with all
other relevant facts should be considered as part of the totality of the evidence in order to determine whether the
reasonable possibility of a false recording has been excluded.”
[17] 1960 SC (J) 106. But cf Ramgobin supra 163I-J.
[18] S v Singh and Another 1975 (1) SA 330 (N).
[19] R v Behrman 1957 (1) SA 433 (T).
[20] The State v Peake 1962 (4) SA 288 (C).
[21] S v Kimimbi 1963 (3) SA 250 (C); S v Nala 1965 (4) SA 360 (A).
[22] R v Nksatlala 1960 (3) SA 543 (A); S v Nala supra. But see also S v Blom 1992 (1) SACR 649 (E) as
discussed in § 8 6 2 above. See also Meintjes-Van der Walt 2006 SACJ 152 for a thought-provoking article on
fingerprints as a means of identification.
[23] S v Phetshwa 1982 (3) SA 404 (E); S v Malindi 1983 (4) SA 99 (T); S v Van Wyk 1982 (2) SA 148 (NC); S v
Nyathe 1988 (2) SA 211 (O) (overruling S v Segai 1981 (4) SA 906 (O)); Skeen 1988 SACJ 339.
[24] Rex v Makeip 1948 (1) SA 947 (A); Rex v Debati 1951 (1) SA 421 (T). See also generally § 8 1 above.
[25] 1968 2 All ER 195. Section 212(10) of the CPA allows the Minister to prescribe in respect of any measuring
instrument, by notice in the Gazette, the conditions and requirements which must be complied with before any
reading made by such instruments may be accepted in criminal proceedings. Once the conditions are complied with
the measuring device shall be accepted as proving the fact recorded unless the contrary is proved. An apparatus
which takes a photograph of a speeding vehicle is not a computer and the photograph is real evidence. See S v Fuhri
1994 (2) SACR 829 (A). See also generally Van Dokkum 1995 SACJ 322.
[26] 1986 (3) SA 485 (E). The decision in Mpumlo was noted by the Supreme Court of Appeal in S v Mdlongwa
2010 (2) SACR 419 (SCA) at [22]. See further Motata v Nair NO and Another 2009 (1) SACR 263 (T).
[27] 1986 (4) SA 117 (N). See also generally S v Dube 2000 (1) SACR 53 (N).
[28] 1986 (4) SA 192 (T).
[29] 1986 (4) SA 1005 (T). See generally S v Kidson 1999 (1) SACR 338 (W) 340e; S v Fuhri 1994 (2) SACR 829
(A) 835; S v Koralev and Another 2006 (2) SACR 298 (N) 305f-306g; S v Mdlongwa supra at [24].
[30] Rex v Sewpaul 1949 (4) SA 978 (N); R v Roberson 1958 (1) SA 676 (A) 679; East London Municipality v Van
Zyl 1959 (2) SA 514 (E); S v Solani en Andere 1987 (4) SA 203 (NC); S v Mkohle 1990 (1) SACR 95 (A) 99h-i. A
trial court may hold an inspection mero motu. See S v Gerbers 1997 (2) SACR 601 (SCA) 606f. Conclusions reached
by a trial court on account of its observations after an inspection in loco, can assist a court of appeal. See generally S
v Mashile 1993 (2) SACR 67 (A). A court of appeal may hold an inspection in loco, but should only do so to gain a
better understanding of the record and should, furthermore, inform the parties of its observations. See R v Carelse
1943 CPD 242.
[31] Goldstuck v Mappin & Webb Ltd 1927 TPD 723; Kruger v Ludick 1947 (3) SA 23 (A); Bayer South Africa (Pty)
Ltd and Another v Viljoen 1990 (2) SA 647 (A).
[32] R v Mouton 1934 TPD 101; R v Akoon 1926 NPD 306. Schmidt & Rademeyer 331 correctly criticize the rule
that the court may make an inspection on its own.
[33] Rex v Van der Merwe 1950 (4) SA 17 (O). Kruger Hiemstra’s Criminal Procedure (2008) 22-66 states: “The
best practice is for the judicial officer to make notes on the record of what he or she saw at the inspection, to read
them out in open court once court proceedings have resumed, and to ask the parties whether they are satisfied with
them . . . It is advisable to ask the parties on the spot whether they are satisfied with the court’s formulation, so that
disputes can be resolved immediately, and thereafter to read the notes into the record.” Where appropriate, an
inspection in loco may be held at night. See, eg, S v Balkwell and Another 2006 (1) SACR 60 (N), where a night time
inspection was held because the defence had challenged the ability of a witness to have observed the alleged events
at night. This night time inspection was held in addition to a day time inspection (at [18]).
[34] R v Bereng 1949 AC 253. S v Douglas 1993 1 PH F14 (C); S v Dippenaar en ’n Ander 1990 (1) SACR 208 (T).
[35] See S v Smith en Andere 1978 (3) SA 749 (A). But this is real evidence where experts might assist the court
(see § 19 1 1 above). In R v Mayahle 1968 (2) SA 801 (RA) it was held that where handwriting experts do give
evidence, they should produce photographs depicting the similarities and should, furthermore, explain why there are
similarities and what the significance of such similarities are.
[36] Annama v Chetty and Others 1946 AD 142; R v Smit 1952 (3) SA 447 (A).
[37] S v Boesak 2000 (1) SACR 633 (SCA) at [57]. See also S v Boesak 2001 (1) SACR 1 (CC) at [13]. This rule
was also established in R v Kruger 1941 OPD 33.
[38] See Darroll 1965 SALJ 317.
[39] 1977 (1) SA 795 (C). See also generally Böhm & Taitz 1986 SALJ 662 and 1987 SALJ 307. The HLA test is
based on the white blood cells.
[40] In Seetal v Pravitha and Another NO 1983 (3) SA 827 (D) it was held that the Supreme Court had the power
as upper guardian to consent to a minor undergoing a blood test against parental wishes and in M v R 1989 (1) SA
416 (O) it was held that the Supreme Court had the power to order both a minor and an adult to submit to a blood
test; see Zeffertt 1989 ASSAL 412-3. These decisions turned on the court’s power to regulate its procedure; see also
O v O 1992 (4) SA 137 (C). However, in Nell v Nell 1990 (3) SA 889 (T) the court declined to order a child to
undergo a tissue test on the grounds that such an order was not a purely procedural matter in which the court could
exercise its inherent power to regulate its procedure. See also E v E 1940 TPD 333 and S v L 1992 (3) SA 713 (E),
where it was held that the court possessed no such power. The right to privacy under s 14 of the Constitution might
alter the situation and make such tests unconstitutional unless shown to be reasonable limitations. But see D v K
1997 2 BCLR 209 (N). See further also Crow v McMynn 1991 49 CRR 290. Schmidt & Rademeyer (2007) 8-24 n 130
submit that “an argument can be made for the constitutionality of an order forcing an unwilling adult to submit to
blood tests in paternity disputes.” The essence of their argument is that if a court finds it is in the best interests of
the child (s 28 of the Constitution) to determine paternity, then the minimal breach of the adult’s right to privacy
must yield to the best interests of the child.
[41] See generally Böhm & Taitz 1986 SALJ 662 and 1987 SALJ 307; Martin 1998 De Rebus 67; Goodwin &
Meintjes-Van der Walt 1997 SALJ 151; Redmayne “Presenting Probabilities in Court: The DNA Experience” 1997 1
The International Journal of Evidence and Proof 187; S v Isaacs (unreported WLD decision, SS 235/99, 28 Nov
2007). For a comprehensive overview of the use of DNA evidence in South African criminal courts, see Meintjes-Van
der Walt 2008 SACJ 22.
[42] 2000 (2) SACR 515 (SCA) at [12].
[43] 2000 (1) SACR 33 (W) 39d. In S v SMM 2013 (2) SACR 292 (SCA) at [11] it was concluded that the DNA
evidence and the appellant’s inability to explain the presence of his semen on the complainant’s panties, provided
adequate proof of the rape. See also generally S v Rululu 2013 (1) SACR 117 (ECG).
[44] S v Maqhina 2001 (1) SACR 241 (T).
[45] 2014 (1) SACR 66 (SCA) at [8]-[16].
[46] See, for instance, S v Adams (unreported ECG case no CA 73/2011, 25 June 2012).
Page 431
Chapter 20
Documentary Evidence
P J Schwikkard
20 1 Introduction
20 2 “Document”
20 3 2 Authenticity
20 3 3 Stamp duty
20 1 Introduction
In chapter 15 numerous statutory provisions pertaining to the admission of documentary
hearsay were considered. In this chapter we look at rules regulating the admission of
documents where the purpose of admission is to prove what the document contains and not
to prove that the facts contained in the document are true. In the latter case the evidence
will inevitably fall to be hearsay and admissibility will be regulated by s 3 of the Law of
Evidence Amendment Act 45 of 1988, [1] Part VI of the CPEA [2] , or some other statutory
provision. [3]
The admission of documents for non-hearsay purposes is governed by the common law
|
tempered by a number of statutory provisions some of which are dealt with below.
20 2 “Document”
There appears to be no single common-law definition of what constitutes a document and it
is probably prudent to simply acknowledge that the definition is very wide. [4] In the words of
Darling J in R v Daye [5] a document is “any written thing capable of being evidence” and it
does not matter what it is written on. “Document” has also been statutorily defined and
varies between statutes. For example, s 33 of the CPEA defines a document as including
“any book, map, plan, drawing or photograph” and s 221 of the CPA defines a document as
including “any device by means of which information is recorded or stored”. The Electronic
Communications and Transactions Act 25 of 2002 accommodates developments in
technology by creating a new type of evidence, namely, a “data message”, which is defined
as “data generated, sent, received or stored by
Page 432
electronic means and includes (a) voice, where the voice is used in an automated
transaction; and (b) a stored record”. [6] See chapter 21 below for a discussion of machine-
generated evidence.
There are two basic rules governing the admissibility of a document: the original document
must be produced (§ 20 3 1 below) and the document must be authenticated (§ 20 3 2
below). Of course, all the general rules of evidence must — where applicable — also be
taken into account (for instance, the rule that would exclude irrelevant evidence).

Despite the long history of the original document requirement it is not always clear how to
identify an original document. However, originality would appear to correspond with the
original source of recording. It is consistent with the rationale of requiring the original in
order to avoid error or falsification. This accords with case law. For example, it has been held
that the form filled in at the post office and not the resultant telegram constitutes the
original document. [7] It also allows for the recognition of multiple originals in the case of
carbon copies, [8] initialled copies and even a roneod copy. [9]
The rationale underlying this requirement has also been associated with the best evidence
rule. However, as noted by Conradie J in Welz and Another v Hall and Others [10]
“As far as the best evidence rule is concerned, it is a rule which applies nowadays only in the context
of documents and then only when the content of a document is directly in issue. It provides that the
original of a document is the best evidence of its contents. The rule is a very ancient one. It goes back
to the Dark Ages, well perhaps the twilight days, before faxes and photocopying machines, when
making copies was difficult and such copies as were made often inaccurate. Under those
circumstances Courts, naturally, insisted upon production of the original document as being the most
reliable evidence of its contents.” [11]
Nevertheless, the original remains a requirement in South African law, a consequence of
which is that secondary evidence may not be used to prove the contents of a document. [12]
However, if the secondary evidence is the only means of proving the document, it may be
admitted. [13] Also secondary
Page 433
evidence may be used to prove things other than the contents of the document. For
example, the existence of a status or a relationship such as a partnership [14] or tenancy.
Secondary evidence may be exceptionally used to prove the contents of a document in the
following circumstances: (a) the document is lost or destroyed; or (b) the document is in the
possession of the opposing party or (c) a third party; or (d) it is impossible or inconvenient
to produce the original; or (e) it is permitted by statute.
In Singh v Govender Brothers Construction [15] the central issue on appeal was whether
the magistrate was correct in allowing secondary evidence of a contract in the form of a
facsimile of the original contract. Leon J held [16] that “[t]he general rule of the law of
evidence is that, when the purpose is to establish the terms of a writing, the writing itself
must be produced but that secondary evidence may be given of the contents when the
original has been destroyed or lost and proper search has been made for it. It is necessary
to prove that proper search has been made for the original and that it could not be
found.” [17] A document will be said to be lost “when, although its existence is presumed, the
precise place of its existence cannot be remembered by anyone who can reasonably be
expected to have known it, and it cannot be found despite adequate search”. [18]
The court in Singh held that there was insufficient evidence to establish that the original
contract was lost or that there had been a proper search. The court then went on to consider
whether secondary evidence was admissible on another basis namely, was the document in
the opponent’s possession and had the opponent failed to produce it having been given
notice to do so. [19] The court noted that a mere notice to produce and non-production of the
document will not on its own justify the reception of secondary evidence. [20] The court held
that on the facts it was clear that the plaintiff accepted that the defendant (the non-
producing opponent) did not have possession of the original document and consequently this
particular exception to the rule prohibiting secondary evidence did not apply. The defendant
could not be said to have “detained” the document and consequently the rationale for the
rule ceased to exist. [21] However, where the document is in the possession of the
Page 434
opponent, the opponent must be given a reasonable opportunity to comply and the notice
need not be formal. [22] It remains disputed whether notice may be implied. [23]
Where the document in question is in the possession of a third party it must be
established, before secondary evidence can be led, that a subpoena duces tecum was served
on the third party to produce the document and that the third party refused to do so on the
basis of a recognised privilege. [24] Secondary evidence will also be allowed where the third
party resides outside of the jurisdiction of the court and is unco-operative. [25]
The impossibility or inconvenience of producing the original document is ascertained on a
case by case basis. For example, in the case of Owner v Bee Hive Spinning Co Ltd, [26] in a
prosecution under a statute relating to factories, it became necessary to prove the contents
of a notice specifying the times allowed in the factory for meals. The relevant statute
required the notice to be affixed in the factory or workshop. The court allowed oral evidence
of the contents of the notice to be admitted. [27]
An example of secondary evidence permitted by statute is s 18(1) of the CPEA, which
reads:
“Whenever any book or other document is of such a public nature as to be admissible in evidence on
its mere production from proper custody, any copy thereof or extract therefrom proved to be an
examined copy or extract or purporting to be signed and certified as a true copy or extract by the
officer to whose custody the original is entrusted, shall be admissible in evidence.” [28]
In determining the characteristics of a public document it is necessary to refer to the
common law. For a document to be classified as one of a public nature it must: (a) be made
by a public official; [29] (b) “in pursuance of a public duty”; [30] and (c) the document must
constitute a permanent record and be open to public inspection. [31]
Similar provisions are contained in s 233 of the CPA.
20 3 2 Authenticity
The requirement that a document be authenticated, generally means no more than
tendering evidence of authorship or possession depending on the purpose for which it is
tendered. This can be done in a variety of ways, these were described by Human J in
Howard & Decker Witkoppen Agencies and Fourways Estates (Pty) Ltd v De Sousa [32] as
follows:
Page 435
“The law in relation to the proof of private documents is that the document must be identified by a
witness who is either (i) the writer or signatory thereof, or (ii) the attesting witness, or (iii) the person
in whose lawful custody the document is, or (iv) the person who found it in possession of the opposite
party, or (v) a handwriting expert, unless the document is one which proves itself, that is to say
unless it:
(1) is produced under a discovery order, or
(2) may be judicially noticed by the court, or
(3) is one which may be handed in from the Bar, or
(4) is produced under a subpoena duces tecum, or
(5) is an affidavit in interlocutory proceedings, or
(6) is admitted by the opposite party.”
The effect of s 36 of the CPEA is that the only instance in which the evidence of an attesting
witness is required to prove a document is in the case of a will. In all other cases the
document may be proved by evidence identifying the author. [33]
There are a number of statutory provisions which circumvent the common-law
requirement of proof of authenticity. [34] For example, in terms of s 37 of the CPEA if a
document is older that 20 years and has been kept in proper custody it will be rebuttably
presumed to have been duly executed. This is made applicable to criminal proceedings by
s 222 of the CPA.
20 3 3 Stamp duty
The Revenue Laws Amendment Act 60 of 2008 repealed the Stamp Duties Act 77 of 1968 as
from the 1 April 2009. All documents executed since the 31 March 2009 no longer need to
be stamped. The Act is not retrospective and the limited number of documents executed
prior to that date and which required stamping still need to be stamped in order to be used
in civil proceedings. [35] Where a document has not been stamped the court will generally
give a party the opportunity to have it stamped. For example, in Buyers Guide (Pty) Ltd v
Dada Motors (Mafikeng) Pty Ltd [36] the appellant appealed against a magistrate’s decision
that a document which had not been stamped in accordance with the Stamp Duties Act had
no evidential value. The magistrate had not permitted the plaintiff to stamp the document
before judgment was given. The appeal court found that the magistrate had erred in not
allowing the document to be stamped. It held that
“the non-stamping of a document is not an absolute bar to it being used as evidence, particularly
where no issues of morality or dishonesty are involved, or the action was not deliberate, and that if
the interests of the fiscus are met, normally there would be no impediment in allowing the party
concerned to proceed and, once the document was
Page 436
properly stamped and penalties paid, any disability in not using the document is removed with
retroactive effect, and the document assumes the status it would have had, had it been properly
stamped in the first instance.” [37]
In civil proceedings parties in litigation may be called upon to “discover” all documents they
have in their possession or under their control which relate to the action. [38] Parties must
then allow inspection of the documents discovered except for those covered by privilege.
Statements of witnesses taken for purposes of the proceedings, communications between
attorney and client and between attorney and advocate, pleadings, affidavits and notices
need not be discovered. If a party fails to discover a document they may then be barred
from using the document at trial.
Magistrates’ Courts Rules 23(10) and rule 35(10) of the Uniform Rules of Courtmake
provision for notice to be given requiring the other party to admit that a document was
properly executed and is what it purports to be. In the absence of a response the document
can be produced at the trial without proof. However, if the other party gives notice that it is
not admitting the document then the document must be proved in court, if it is admitted by
the court then the party refusing admission may be ordered to pay costs.
For a discussion of pre-trial disclosure of the statements of prosecution witnesses, see
§§ 11 5 to 11 5 2 4 above.
[1] See ch 13.

[2] See ch 15.
[3] See ch 15.
[4] See ch 15.
[5] [1908] 2 KB 333, at 340.
[6] Data is defined as “electronic representations of information in any form”.
[7] R v Regan (1887) 16 Cox CC.
[8] Lynes v International Trade Developer Inc 1922 NPD 301.
[9] Herstigte Nasionale Party Van Suid-Afrika v Sekretaris Van Binnelandse Sake en Immigrasie 1979 (4) SA 274
(T).
[10] 1996 (4) SA 1073 (C) at 1079C-E.
[11] See also § 2 10 above.
[12] See Rex v Pelunsky 1914 AD 360; R v Nhlanhla 1960 (3) SA 568 (T); Ex Parte Roche Et Uxor 1947 (3) SA
678 (D); Gemeenskapsontwikkelingsraad v Williams and Others (1) 1977 (2) SA 692 (W); Standard Merchant Bank
Ltd v Rowe and Others 1982 (4) SA 671 (W); Singh v Govender Brothers Construction 1986 (3) SA 613 (N).
[13] Welz and Another v Hall and Others supra.
[14] Alderson v Clay (1816) 1 Stark 405, 171 ER 511.
[15] 1986 (3) SA 613 (N).
[16] At 617.
[17] See also R v Amod & Co (Pty) Ltd and Another 1947 (3) SA 32 (A) at 40; S v Tshabalala 1980 (3) SA 99 (A);
S v Adendorff 2004 (2) SACR 185 (SCA).
[18] Ex parte Roche et Uxor 1947 (3) SA 678 (D).
[19] See S v Miles 1978 (3) SA 407 (N).
[20] Singh supra 618A.
[21] At 618 the court cited the following passage from Wigmore at [1199] giving the rationale of the rule: “If the
opponent detains the document, then it is not available for the proponent, and as the fundamental notion of the
general rule is that production is not required where it is not feasible, the rule here falls away and the non-
production is excused.”
[22] Standard Merchant Bank Ltd v Rowe and Others 1982 (4) SA 671 (W).
[23] See S v Miles 1978 (3) SA 407 (N); cf R v Southall 1921 TPD 403.
[24] Mills v Oddy (1834) 6 C & P 728, 172 ER 1438.
[25] Boon v Vaughan & Co Ltd 1919 TPD 77.
[26] 1914 (1) KB 105.
[27] See also R v Zungu 1953 (4) SA 660 (N).
[28] Section 19 of the CPEA regulates the production of documents under the control of state officials and s 20
permits certified copies or extracts of official documents to be admitted into evidence.
[29] Tselentis Mining (Pty) Ltd and Another v Mdlalose and Others 1998 (1) SA 411 (N).
[30] Northern Mounted Rifles v O’Callaghan 1909 TS 174 at 177.
[31] Hassim v Naik 1952 (3) SA 331 (A).
[32] 1971 (3) SA 937 (T) at 940E-G. See also Maize Board v Hart 2005 (5) SA 480 (O).
[33] Section 36 of the CPEA is applicable in criminal proceedings as consequence of s 222 of the CPA.
[34] Section 18 of the CPEA and s 233 of the CPA are examples which are referred to in § 20 2 above. Rule 63 of
the Uniform Rules of Courtregulates the authentication of documents executed outside of South African for use in
South African courts. In Maschinen Frommer Gmbh & Co Kg v Trisave Engineering & Machinery Supplies (Pty) Ltd
2003 (6) SA 69 (C) the court held that the purpose of rule 63 was to ensure the genuiness of a document and the
requirements were not mandatory and authenticity could be proved on a balance of probabilities by direct or
circumstantial evidence. See also Chopra v Sparks Cinemas (Pty) Ltd and Another 1973 (2) SA 352 (D); Friend v
Friend 1962 (4) SA 115 (E) and Ex parte Holmes & Co (Pty) Ltd 1939 NPD 301.
[35] See s 12 of the Stamp Duties Act 77 of 1968.
[36] 1990 (4) SA 55 (BG).
[37] See also Steyn v Gagiano en ’n Ander 1982 (3) SA 562 (NC) in which the court allowed the copy of a
document to be stamped.
[38] See Magistrates’ Courts Rules 23 and Uniform Rules of Court 35.
Page 437
Chapter 21
Electronic Evidence
J de Jager [*]
21 1 Introduction
21 3 The Electronic Communications and Transactions Act 25 of 2002 (ECT Act)
21 5 Conclusion
21 1 Introduction
The use of computers has become the defining characteristic of the modern world. From
business transactions to ordinary communication between individuals, the use of electronic
means is unavoidable. [1] The result is that evidence in judicial proceedings is increasingly
taking the form of electronic evidence. [2] However, this has presented a number of
challenges to the even-handed treatment of evidence in the form of electronic data
messages and their manuscript counterparts. [3]
In developing an approach to deal with electronic evidence, it is important to understand
what exactly falls within this area of evidence. The terms
Page 438
“electronic” and “digital” are often used interchangeably to refer to data created by
electronic means. By and large, this is acceptable usage of the terms. However, a distinction
must be made between data that is analogue and data that is digital (typically in binary
|form). Data is analogue if it is created by an analogue device and is represented in a fixed or
permanent format (for example vinyl records and photographic film). [4] Data is digital if it is
in a format created or stored on an electronic device such as a computer [5] or the Internet.
Analogue data is more difficult to manipulate than electronic data. Analogue data may of
course be converted to, and stored and communicated in, a digital format, in which case it
may be treated as digital evidence. It is electronic evidence in the narrow sense of digital
data, which evidence is inherently problematic in the sense that it is easy to manipulate or
alter, that we are primarily concerned with in this chapter.
South African courts take the view that all relevant evidence is admissible unless excluded
by some other rule of evidence governing admissibility. [6] However, one of the difficulties
with data messages is that these messages do not fit into one of the traditional categories of
evidence normally admitted or excluded. [7] Electronic evidence must further overcome the
rules relating to authenticity [8] and the production of the original version. [9]
As a result the South African courts have taken a conservative view of electronic evidence
and over the years the legislature has been called upon, from time to time, to reform the
law. The most recent response from the legislature in this regard is the Electronic
Communications and Transactions Act [10] (the “ECT Act”), which drew heavily on the United
Nations Commission on International Trade Law (“UNCITRAL”), Model Law on Electronic
Commerce. [11]
In addition to the specific electronic evidence legislation, the position prior to the ECT Act
is still relevant, to the extent that the Civil Proceedings Evidence Act [12] (the “CPEA”) and
the Criminal Procedure Act [13] (the “CPA”) provide exceptions to the hearsay rule.
Page 439

Inadequacies in the law of evidence relating to computer-generated evidence came to the
fore for the first time in 1976 with the Appellate Division decision in Narlis v South African
Bank of Athens. [14] Holmes JA decided that “a computer, perhaps fortunately, is not a
person”. [15] He was therefore not prepared to admit a computer printout in terms of 34 [16]
of the CPEA, which provides for the admissibility, in certain circumstances, of a “statement
made by a person in a document.” [17] The court, reversing the decision of the court a quo,
held that computerised bank documents establishing the principal debt did not constitute a
statement made by a person and therefore did not prove the contents. However, before
concluding with the matter, Holmes JA suggested that “this is perhaps a matter which might
well engage the attention of the Legislature in South Africa.” [18] And, indeed, electronic
evidence is a matter that has captured the legislature’s attention on numerous occasions
since then.
Troubled by the Narlis decision, the Clearing Bankers’ Association approached the South
African Law Commission to investigate the need for specific legislation. The Commission was
of the view [19] that an amendment to s 34 of the CPEA would not be adequate to address
the problems relating to computer evidence and therefore recommended a separate statute.
Consequently, in 1983, the legislature passed the Computer Evidence Act, [20] which was to
apply to civil proceedings.
The Act provided that an authenticated computer printout was admissible as evidence of any
fact recorded in it where direct oral evidence of the fact would be admissible.
“Authenticated” meant that the printout had to be accompanied by an authenticating
affidavit and other supplementary affidavits necessary to establish the reliability of the
information contained in the printout. The court could attach as much or as little evidential
weight to the printout as the circumstances of the case dictated. [21] The Act [22] required that
the deponent to the authenticating affidavit had to be a person qualified to depose thereto in
two respects. Firstly by reason of his knowledge and experience of computers and the
particular system in question; and secondly in respect of his examination of all relevant
records and facts concerning the operation of the computer
Page 440
and the data and instructions supplied to it. The records and facts had to be verified by him
if he had control of or access to them in the ordinary course of his business, employment,
duties or activities. [23] If not, then a supplementary affidavit was required from a person
who had control of or access to them. [24] Records and facts were sufficiently verified if the
deponent stated that, to the best of his knowledge and belief, they comprised all the
relevant records and facts. [25]
Difficulties were experienced in meeting the overly technical requirements of the Act [26]
and its repeal was welcomed.
The approach which South African courts have taken to the admissibility of computer
printouts in criminal proceedings was based on s 221 [27] (for business records) and s 236 [28]
(for banking records) of the CPA. [29] Section 221 provides for certain trade or business [30]
records to be admitted into evidence as proof of their contents if (a) they are compiled in the
course of business from information supplied by persons having personal knowledge of the
matters dealt with in the document; and (b) the person who supplied the information is
dead, out of the country, physically or mentally unfit to attend as a witness, cannot be
identified or found, or cannot reasonably be expected to recollect the matters dealt with in
the document. In terms of the Act, a document includes any device by means of which
information is recorded or stored and a statement includes any representation of fact
whether made in words or otherwise. [31]
The question whether computer printouts are documents within the meaning of a
document in s 221 was considered in S v Harper and Another. [32] Milne J took a similar
approach to the finding in the Narlis decision by holding that the extended definition of a
document in the CPA was not wide enough to cover a computer. [33] In reaching his finding
the judge stated that “. . . at any rate where the operations carried out by it are more than
the mere storage or recording of
Page 441
information.” [34] In other words information obtained from computer printouts would be
admissible only if the function of the computer was purely passive in that it merely recorded
or stored the information. If the computer carried out active functions, over and above
storage, then the fruits of its endeavours would be inadmissible.
The decision in S v Harper and Another was then applied in S v Mashiyi and Another, [35]
and s 221 was read to exclude computer printouts (in this case documents relating to
fraudulent medical aid claims) that contained information “obtained after treatment by
arrangement, sorting, synthesis and calculation by the computer.” [36] In the Mashiyi
judgment the court added its voice to the call “that this lacunae in our law be filled and for
new legislation relating specifically to computer evidence in criminal cases be considered and
promulgated.” [37] Such legislation is contained in the ECT Act, which came into operation [38]
soon after the Mashiyi judgment was handed down. [39]
21 3 The Electronic Communications and Transactions Act 25 of

2002 (ECT Act)
The ECT Act moves beyond the concept of “computer printouts” and focuses on the terms
“data” and “data messages”. The Act defines data as “electronic representations of
information in any form” [40] and data messages as “data generated, sent, received or stored
by electronic means and includes — (a) voice, where the voice is used in an automated
transaction; and (b) a stored record.” [41]
Section 15 of the ECT Act regulates the admissibility and evidential weight of data
messages, which is the focus of this chapter. However, the ECT Act further provides for the
production of a data message in an original form, [42] guidelines for judging the integrity of
the data message, [43] the production of the data message in court [44] and the requirement
to satisfy a court of the authenticity
Page 442
thereof. [45] In so far as the formal requirements of signature are concerned, s 13 provides
for compliance by way of the use of an electronic signature [46] to be attached to a data
message.
The ECT Act is a comprehensive document, which aims to be an enabling piece of
legislation that will permit and regulate the use of electronic data in civil and criminal
proceedings.

Section 15(1) permits the admissibility of electronic evidence by laying down the following
general principle:
“In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of
a data message, in evidence —
(a) on the mere grounds that it is constituted by a data message; or
(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on
the grounds that it is not in its original form.”
The exact meaning of this provision requires close consideration of the established principle
that the law excludes documents as hearsay because of doubts about the reliability of their
content. Therefore, should s 15(1) be given too wide an interpretation by making all data
messages admissible then it would undermine the established law which governs manuscript
documents. [47]
The court in Ndlovu v The Minister of Correctional Services And Another [48] took the view
that s 15(1) facilitates admissibility by ousting evidence rules which would exclude electronic
evidence purely because of its electronic origin. The printout concerned was identified as “a
data message”. The court stated: “The data message must be relevant and otherwise
admissible, be proved to be authentic and the original be produced, unless (in regard to the
latter aspect) s 15(1)(b) applied.” [49]
The court continued, with regard to the hearsay rule: [50]
“Where the probative value of the information in a data message depends upon the credibility of a
(natural) person other than the person giving the evidence, there is no reason to suppose that section
15 seeks to override the normal rules applying to hearsay evidence. On the other hand, where the
probative value of the evidence depends upon the ‘credibility’ of the computer (because information
was processed by the computer), section 3 of the Law of Evidence Amendment Act 45 of 1988 will not
apply, and there is
Page 443
every reason to suppose that section 15(1), read with sections 15(2) and (3), intend for such
‘hearsay’ evidence to be admitted, and due evidential weight to be given thereto according to an
assessment having due regard to certain factors.”
The electronic evidence, which the court was called upon to consider, consisted of a two-
page printout of a “diary” which recorded entries, from a number of authors, relating to the
plaintiff’s parole violations as experienced by the authors. Two of the authors gave evidence:
the remaining entries were treated as hearsay evidence which the court ruled as admissible
in terms of the discretion to do so in s 3 of the Law of Evidence Amendment Act. The court
was, without much analysis, [51] satisfied that the printout should not be excluded on the
basis of the authenticity and original version rules. [52]
Then in La Consortium & Vending CC t/a La Enterprises v MTN Service Provider (Pty)
Ltd [53] Malan J, writing for the full bench of the South Gauteng High Court, took the
following view regarding admissibility: [54]
“The definition of ‘data message’ in s 1 is sufficiently wide to include not only real, but also hearsay,
evidence. This follows from the wide description of ‘data’ as the ‘electronic representations of
information in any form’, but also from the definition of ‘data message’ as ‘data generated, sent,
received or stored by electronic means’, including ‘(a) voice, where the voice is used in an automated
transaction; and (b) a stored record’. This, however, does not mean that hearsay is admissible just
because it is contained in a data message. The principle of ‘functional equivalence’ does not free data
messages from the normal strictures of the law of evidence . . .”
More recently, the SCA in Firstrand Bank v Venter [55] summarised s 15 by noting that it
“facilitates the use of and reliance on a data message . . .” [56] While this case turned on s 15
(4) the SCA nevertheless expressed an interpretation of s 15 which focuses on the enabling
character of the section rather than a view that it prescribes the admission of all data
messages. [57]
As a result, the body of emerging case law is taking the approach that s 15 permits the
admissibility of data messages but that the ordinary South African law on admissibility of
evidence must still apply.

Once admitted, s 15(2) ensures that “[i]nformation in the form of a data message must be
given due evidential weight”. Guidance for the assessment thereof is then provided for by
s 15(3):
“In assessing the evidential weight of a data message, regard must be had to —
a) the reliability of the manner in which the data message was generated, stored or communicated;
b) the reliability of the manner in which the integrity of the data message was maintained;
Page 444
c) the manner in which its originator was identified; and

d) any other relevant factor.”
Section 15(3) was considered by the Supreme Court of Appeal in Firstrand Bank v
Venter. [58] Heher JA, setting aside the judgment of the court a quo, held that it had over-
emphasised items (a), (b) and (c) by overlooking that the witness had not been led or cross-
examined on those matters and the court had underplayed the role of item (d) by failing to
take cognisance of factors which go to the relevance of the evidence. [59] It would seem that
a holistic approach to the evidential weight of a data message and the other evidence before
the court is required.
When applying the guidelines set out in s 15(3) courts may well find expert evidence of
assistance. [60] An illustration of this may be seen in Jafta v Ezemvelo KZN Wildlife [61] in
which Pillay J considered the expert evidence led by the parties in order to determine the
weight to be attached to an email sent by the plaintiff accepting a job offer, which the
defendants did not receive due to a technical error.

The legislature took a curious diversion away from the guidance of the UNCITRAL model laws
by introducing s 15(4), which is unique to the ECT Act. The subsection provides that:
“A data message made by a person in the ordinary course of business, or a copy or printout of or an
extract from such data message certified to be correct by an officer in the service of such person, is
on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law,
the rules of a self regulatory organisation or any other law or the common law, admissible in evidence
against any person and rebuttable proof of the facts contained in such record, copy, printout or
extract.”
In essence, s 15(4) seems to do two things: first, it creates a statutory exception to the
hearsay rule in favour of data messages made during the ordinary course of business; and
second, it creates a rebuttable presumption that such records are correct. [62]
In an obiter statement in the Ndlovu case the court expressed the view that s 15(4)
applies to two types of “documents”, namely: data messages made in the ordinary course of
business (not requiring certification as to its correctness); and copies, print-outs or extracts
from a business record which are certified to be correct. [63]
The business exception in s 15(4) was, however, first discussed in Golden Fried Chicken
(Pty) Ltd v Yum Restaurants International (Pty) Ltd. [64] The matter revolved
Page 445
around an appeal against the decision of the Registrar of Trade Marks to remove a mark
from the register on the grounds that there had not been continuous use for five years since
registration. The appellant company submitted a print-out as evidence that there had indeed
been use of the mark. Du Plessis J found that the print-out was not admissible in terms of
s 15(4) because it had not been certified by an officer of the company nor had it been show
that that it had been made in the ordinary course of business. [65]
In MTN Service Provider (Pty) Ltd v La Consortium & Vending CC t/a La Enterprises, and
Others [66] the court found that various computer print-outs, made in the ordinary course of
business and supported by the requisite certificates, were indeed admissible in terms of s 15
(4). On appeal, however, the full bench of the South Gauteng High Court took the view that,
despite the wide wording of s 15(4), hearsay contained in a data message remained subject
to the scrutiny of the criteria set out in s 3 of the Law of Evidence Amendment Act. [67]
It has been argued that the full bench’s finding in LA Consortium, did not address the fact
that their interpretation of s 15(4) is contrary to the literal wording of the section. [68]
Therefore, the precise meaning of s 15(4) may still not be settled.

The law of evidence in South Africa distinguishes a distinction between documentary
evidence and real evidence. [69] Relevant real evidence is admissible. [70] The question is
whether a data message may take the form of real evidence? In this regards a distinction
needs to be drawn between “computer-generated” and “computer-assisted” data. [71]
In Ex Parte Rosch [72] the court was called upon to consider the admissibility of a series of
automatically generated computer print-outs regarding the details of telephone calls. The
court held as follows: [73]
“On behalf of the appellant it was submitted that the admission of this document offends against the
hearsay rule. In our view there is no substance in this submission. The computer is not a witness who
stated what he did not himself know. The printout is real evidence in the sense that it came about
automatically and not as result of any input of information by a human being. There is therefore no
room for dishonesty or human error. The printout in the present case is similar to the radar diagram
produced in the
Page 446
English case of The Statue of Liberty: Owners of the Motorship Sapporo Maro v Owner of Steam
Tanker, Statue of Liberty [1968] 2 All ER 195 (PDA) where such a document was admitted as
evidence.”
On this basis the computer-generated printouts were treated as real evidence and held
admissible.
In S v Ndiki and Others [74] Van Zyl J considered the admissibility of two kinds of computer
print-outs. Some were generated by a computer following human input. These the judge
classified as hearsay. [75] But the print-outs produced without human intervention, were
regarded as real evidence and were therefore held admissible. [76] However, Van Zyl J noted
that the admissibility of this evidence would be dependent on the accuracy and reliability of
the computer, its operating system and its processes. [77]
The approach of the courts to treat computer generated evidence as real evidence
overcomes the problem of treating all data messages as hearsay forms of evidence and is in
keeping with the functional equivalence doctrine. The contrary view would result in the
classification of evidence long considered as real evidence as hearsay simply because it
takes an electronic form. [78]
21 5 Conclusion
Courts are increasingly faced with the task of evaluating evidence which takes an electronic
form. The ECT Act enables the reliance on such evidence and provides guidance for its use.
South African courts appear to be taking the view that electronic evidence is not freed from
the normal strictures of the law of evidence.
[*] Original text by Debbie Collier-Reed, some of which has been retained. I am indebted to Dr Collier-Reed who
provided guidance and insight into the preparation of the current version.
[1] Recent decisions illustrate just how pervasive electronic communications have become in legal interactions. For
example, contractual agreements have recently been held to have been validly formed and terminated via mere SMS
communication (see Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC) and Sihlali v SA Broadcasting Corporation
Ltd (2010) 31 ILJ 1477 (LC)). Facebook cases are another example. In Media Workers Association of SA on behalf of
Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA) and Sedick & another v Krisray (Pty) Ltd (2011)
32 ILJ 752 (CCMA) remarks posted onto Facebook formed the basis for justification of the employee’s dismissal. In
Isparta v Richter and Another 2013 (6) SA 529 (GNP) damages were awarded for disparaging and malicious
comments posted on plaintiff’s Facebook wall; and in Cmc Woodworking Machinery (Pty) Ltd v Pieter Odendaal
Kitchens 2012 (5) SA 604 (KZD), Steyn J even authorised substituted service by posting a message on the
defendant’s Facebook page.
[2] For a detailed discussion on the sources of electronic evidence see Weir and Mason “The Sources of Digital
Evidence“in Mason (ed) Electronic Evidence 3 ed (2012) at 1-21.
[3] The term “functional equivalence” is often used to describe this practice of ensuring that data messages fulfil
the function of paper-based documents and that no discrimination occurs, either for or against, either manuscript or
electronic documents. For a detailed discussion see the UNCITRAL Model Law on Electronic Commerce with Guide to
Enactment 1996, available at <http://www.uncitral.org/pdf/english/texts/electcom/05-89450_Ebook.pdf> [Accessed
3 July 2014].
[4] Mason (ed) Electronic Evidence: Disclosure, Discovery & Admissibility (2007) 201. Evidence produced by an
analogue device is usually less problematic than digital evidence and is likely to be presented as real evidence (see
the discussion of the admission of real evidence in § 21 4 below).
[5] A computer is defined in the Computer Evidence Act 57 of 1983 (now repealed) as: “any device or apparatus,
whether commonly called a computer or not, which by electronic, electro-mechanical, mechanical or other means is
capable of receiving or absorbing data and instructions supplied to it, of processing such data according to
mathematical or logical rules and in compliance with such instructions, of storing such data before or after such
processing, and of producing information derived from such data as a result of such processing.”
[6] See ch 5 above.
[7] Hofman & De Jager “South Africa “in Mason (ed) Electronic Evidence (2012) at 761.
[8] See § 20 3 1 above.
[9] See § 20 3 2 above.
[10] Act 25 of 2002.
[11] UNCITRAL Model Law on Electronic Commerce with Guide to Enactment (1996).
[12] Act 25 of 1965.
[13] Act 51 of 1977.
[14] Narlis v South African Bank of Athens 1976 (2) SA 573 (A).
[15] At 577H.
[16] For a discussion of the application of s 34, see § 15 2 5 above. In addition, s 28 of the CPEA (see § 15 2 4
deals with the admissibility of bank records in civil proceedings, where the bank is not a party to the proceedings.
[17] At 577H.
[18] At 578.
[19] South African Law Commission Report on the Admissibility in Civil Proceedings of Evidence Generated by
Computers, Project 6, Review of the Law of Evidence (1982).
[20] Act 57 of 1983.
[21] Section 4.
[22] Section 2(3).
[23] Section 2(4)(a).
[24] Section 2(4)(b).
[25] Section 2(5).
[26] Although in Ex Parte Rosch [1998] 1 All SA 319 (W) it was held that the Act does not restrict the use, as
evidence, of information retrieved from a computer to only those instances when the provisions of the Act apply. ‘It
is a facilitating Act not a restricting one’ (at 327). In that case, even though the provisions of the Act had not been
met, the particular computer printouts in question (automated recordings of telephone calls) were held to be
admissible as their trustworthiness had otherwise been established.
[27] See § 15 3 4 above.
[28] Section 236 of the CPA allows for the production of the accounting records of a bank and any document,
including a computer printout, in the possession of the bank subject to the requisite supporting affidavits. See
§ 15 3 6 above.
[29] The fact that s 34 of the CPEA is applicable to criminal proceedings in terms of s 222 of the CPA is not
particularly helpful in view of the rule in the Narlis case.
[30] In terms of s 221(5) “business” includes any public transport, public utility or similar undertaking carried on
by a local authority, and the activities of the Post Office and the Railway Administration.
[31] Section 221(5).
[32] S v Harper and Another 1981 (1) SA 88 (D).
[33] At 95F.
[34] At 95F.
[35] S v Mashiyi and Another 2002 (2) SACR 387 (Tk).
[36] At 390.
[37] At 392.
[38] The Act commenced on the 30 August 2002.
[39] The hurdles facing litigants who wished to adduce computer printouts in civil and criminal proceedings, had
long been recognised by the Law Commission, which had commenced a project to investigate the admissibility of
computer generated evidence (project 95); this project was subsumed by the project committee appointed to
investigate computer-related crime (project 108) and the results were contained in a draft Computer Abuse Act. It is
unlikely however that the provisions of the draft Computer Abuse Act will be enacted in view of the subsequent
enactment of the ECT Act: spearheaded through parliament by the Department of Communications and gazetted on
2 August 2002.
[40] Section 1 of the ECT Act.
[41] Section 1 of the ECT Act.
[42] Section 14.
[43] Section 14(2) read with s 17(2).
[44] Section 14(1)(b) read with s 17(1).
[45] Sections 18 and 19(3) allows for the electronic notarisation, certification and sealing of data messages.
[46] Section 1 defines an electronic signature as “data attached to, incorporated in, or logically associated with
other data and which is intended by the user to serve as a signature”; and an advanced electronic signature as “an
electronic signature which results from a process which has been accredited by the Authority as provided for in
section 37.” For a discussion on electronic signatures in e-commerce in South Africa see Ncube. “Electronic
commerce” in Collier-Reed & Lehmann (eds) Basic Principles of Business Law 2 ed (2010) at 516. For a
comprehensive discussion on electronic signatures generally see Mason Electronic Signatures in Law 3 ed (2012).
[47] For a discussion regarding the textual meaning of the provision see Zeffertt, Paizes & Skeen The South
African Law of Evidence (2003) at 393-395.
[48] Ndlovu v The Minister of Correctional Services And Another [2006] 4 All SA 165 (W) (W) 172.
[49] Ndlovu supra [16].
[50] Ndlovu supra [18]. In support, the court refers to Zeffertt, Paizes & Skeen at 394: “[T]he purpose of the
legislature was probably to free as much computer-generated evidence from the hearsay trap as could be justified
without doing violence to the important value served by the exclusionary rule.”
[51] On the basis that no substantive objections were raised in this regard.
[52] For a more detailed look at the court’s judgment see Collier “Producing computer print-outs in Court:
Evidently not so simple” in (2005) Juta’s Business Law at 6–9.
[53] La Consortium & Vending CC t/a La Enterprises v MTN Service Provider (Pty) Ltd 2011 (4) SA 577 (GSJ).
[54] At [19].
[55] Firstrand Bank v Venter [2012] JOL 29436 (SCA).
[56] At [16].
[57] This is evident in the SCA’s choice to use the word “facilitates” rather than “dictates” or “prescribes.”
[58] Firstrand Bank v Venter supra.
[59] At [17]-[18]. In this case, Heher JA felt that relevant factors included the sending of bank statements, their
perusal by the Respondent, the details of the statements, and the Respondents omission to query the statements.
[60] Hofman & De Jager “South Africa” in Mason (ed) Electronic Evidence (2012) at 781. See the discussion on the
admission of expert evidence at § 8 6 above.
[61] Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC).
[62] ABSA Bank Ltd v Le Roux and Others 2014 (1) SA 475 (WCC) at [19].
[63] Ndlovu supra at [172-173].
[64] Golden Fried Chicken(Pty) Ltd v Yum Restaurants International (Pty) Ltd 2005 BIP 269 (T).
[65] Ibid at 272.
[66] MTN Service Provider (Pty) Ltd v La Consortium & Vending CC t/a La Enterprises, and Others 2011 (4) SA 562
(W).
[67] LA Consortium supra at [19].
[68] Hofman & De Jager “South Africa” in Mason (ed) Electronic Evidence (2012) at 773.
[69] See § 19 1 above.
[70] See § 5 1 above.
[71] A very succinct definition of the two terms was set out by the SCA in a copyright matter in which the court
took the view that “. . . a [copyright] work qualifies as having been computer-generated only if it was created by a
computer in circumstances where there is no human author of the work. If there is a human author, the work is
computer-assisted and not computer-generated” (Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd
And others 2006 BIP 317 (SCA) at [31]).
[72] Ex Parte Rosch [1998] 1 All SA 319 (W).
[73] At 328.
[74] S v Ndiki and Others 2008 (2) SACR 252 (Ck). For a detailed discussion of this case see Collier (2005) Juta’s
Business Law 6.
[75] Ndiki at [34]-[35].
[76] Ibid at [36]-[37]. See also generally Lochner, Benson & Horne 2012 25(2) Acta Criminologica: South African
Journal of Criminology 69 at 77. At 80 these authors also argue that “the signal of a cell phone, when a call is made
or received, is stored as electronic data on the system of the cell phone company and . . . can be made visible
scientifically and presented as physical evidence”.
[77] Ibid at [37].
[78] Hofman & De Jager “South Africa” in Mason (ed) Electronic Evidence (2012) at 777. In Ex parte Rosch supra
the court gave the following examples: “In S v Fuhri 1994 (2) SACR 829 (A) the court admitted photographs
produced by a machine and the information contained in such photographs, which included the digital time report. In
S v Dickenson 1982 (3) SA 84 (A) the evidence produced by a gas chromatograph was held to be admissible. In R v
Farden and White 1982 (1) CLR 588 (CA) and R v Dodson 1984 (1) CLR 489 (CA) the English Court of Appeal held
that evidence contained in video films produced automatically was admissible in court” (at 319).
Page 447
Section H
Witnesses
22 The Competence and Compellability of Witnesses –W L de Vos

23 The Calling of Witnesses –W L de Vos and S E van der Merwe
24 Refreshing the Memory of a Witness –S E van der Merwe
25 Impeaching the Credibility of a Witness –S E van der Merwe
Page 449
Chapter 22
The Competence and Compellability of Witnesses
W L de Vos
22 1 Introduction
22 4 Children
22 9 The Accused
22 11 Spouses
22 11 1 Civil cases
22 13 Members of the National Assembly and National Council of Provinces
22 1 Introduction
The competence and compellability of a witness should not be confused with the possible
privileges which he might claim. Cowen & Carter [1] explain as follows:
“A competent witness is a person whom the law allows a party to ask, but not to compel, to give
evidence. A compellable witness is a person whom the law allows a party to compel to give evidence.
There are certain questions which a witness may refuse to answer if he so wishes. He is said to be
privileged in respect of those questions. It should be clear, therefore, that competence without
compellability (or bare competence) is not the same as privilege. Compellability is concerned with
whether a witness can be forced by a party to give evidence at all. Privilege is concerned with whether
a witness who is already in the box is obliged to answer a particular question. The protection of
privilege is exactly the same whether the witness is barely competent and of his own free will elected
to give evidence or the witness is compellable and was forced to give evidence.”
It follows that a competent and compellable witness who wishes to rely on, for example, the
privilege against self-incrimination may not refuse to enter the witness-box: he may only
claim his privilege once the relevant question is put to him. [2]
Page 450
| Seen from a historical perspective, the general development has been towards
competence rather than incompetence. It was, for example, formerly held that a person who
had been sentenced to death was an incompetent witness because he hardly had a reason to
fear prosecution for perjury. In the modern era, however, such a person is not considered an
incompetent witness solely on the basis of the fact that he awaits capital punishment. [3] His
evidence may be tested in cross-examination and he is indeed a competent witness. [4] Since
the death penalty has been declared unconstitutional by the Constitutional Court this issue
has now become irrelevant. [5]
Today it is also accepted that a person’s religious belief — or no such belief at all —
cannot make him an incompetent or non-compellable witness. [6]

In both civil and criminal proceedings the general rule is that every person is presumed to be
competent and compellable to give evidence unless the matter of competence and
compellability is regulated by statutory provisions [7] or, where applicable, by the law as it
stood “on the thirtieth day of May 1961”. [8]
It should be noted that in South Africa, following the English example, the parties to a civil
suit are regarded as competent witnesses. In contrast to the English orientated approach
continental systems generally, under the influence of the French model, do not regard the
parties in civil proceedings as competent witnesses. In South Africa a party to a civil suit is
not only competent to testify in his own cause but he can also be compelled by his opponent
to give evidence for the latter. In other words, the plaintiff can call the defendant as a
witness and vice versa. [9]
Page 451

Parties cannot consent to the admission of an incompetent witness’ evidence. [10] The court
must decide any question concerning the competence or compellability of any witness. [11]
The method of examining and deciding issues relating to competence or compellability is
normally that of trial within a trial. [12] It may be necessary for the court to hear evidence,
for example, on the issue whether a deaf mute can communicate properly. [13] However, the
court can also decide the issue of competence on the basis of its own observations, without
requiring a trial within a trial. [14] A competent and compellable witness who refuses to
attend the proceedings may be brought before the court by means of a warrant of arrest. [15]
Such a witness, or one who does attend but refuses to testify, may also be tried and
punished summarily by the court for his failure or refusal. The witness concerned can,
however, avoid punishment by presenting an acceptable excuse. [16]
22 4 Children
There is no statutory provision governing a child’s capacity to give evidence. At common law
there is also no specific age limit. Even very young children may testify provided that they
(a) appreciate the duty of speaking the truth; [17] (b) have sufficient intelligence; and (c) can
communicate effectively. A child who is competent may be sworn in, provided that the court
is of the opinion that he understands the nature and religious sanction of the oath. If the
child is unable to understand that, he may give his evidence without taking the oath; but in
this event the court must admonish him to speak the truth. However, such admonishment
can only take place if the court made some form of enquiry into the capacity of the witness
to understand the nature and import of the oath, followed by a finding that the witness lacks
such capacity. Thereupon
Page 452
the judicial officer should establish whether the witness can distinguish between truth and
lies and, if the answer is positive, admonish him to speak the truth. [18]
Children are competent and compellable to testify against their parents. But in R v
Zulu [19] it was pointed out that it is in principle undesirable that children should be
compelled to do so. The decision to call them, however, rests in the discretion of the
prosecutor and will normally depend upon considerations such as the availability of other
witnesses and the seriousness of the offence with which the parent is charged. [20]
The evidence of children is approached with caution. [21]

Section 194 of the CPA provides that no person appearing or proved to be afflicted with
mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or
the like and who is thereby deprived of the proper use of his or her reason shall be a
competent witness whilst so afflicted or disabled. [22] It follows that an intoxicated person,
for example, will regain his competence and compellability when sober. [23] It is also clear
that the section is directed at a certain degree of mental illness or imbecility of mind, which
deprives the witness of the ability to communicate properly in regard to the subject-matter
in question. [24] Therefore, a person who is affected to some extent but still endowed with
the proper use of his reason, which enables him to convey his observations in an
understandable way to the court, will be a competent witness. [25]
When the conduct of a witness creates the impression of a mental disorder, which might
affect his competence to testify, the court must investigate and determine this issue before
proceeding with the trial on the merits. Since it is a question of admissibility of evidence,
such an investigation can be conducted by means of a trial within a trial or other similar and
effective enquiry. But in appropriate circumstances the court can also rely on its own
observations of the witness in the witness-box, without resorting to a trial within a trial, to
determine whether he is a competent witness. Thus, in S v Zenzile [26] the court concluded,
on the basis of its observation of the witness during evidence in
Page 453
chief, that her mental condition was such that she could not understand simple questions
and, therefore, could not convey her observations to the court. Without finding it necessary
to direct a trial within a trial the court determined that the witness was incompetent. [27]
It should be noted further that a finding of mental normality or otherwise is interlocutory
and may be altered if the evidence so indicates. Moreover, it has often happened that in
certain circumstances a person who appeared to be mentally disordered was allowed to
testify. [28] In S v Malcolm [29] the magistrate refused to hear the evidence of the accused in
her application for bail, pending an appeal against an order for her detention in a psychiatric
hospital. He refused to hear her evidence because he had already decided that she was
incapable of understanding the proceedings. The High Court pointed out that the magistrate
had deprived himself of the opportunity to observe the accused’s behaviour in the witness-
box and concluded that his refusal to hear the accused was a gross irregularity. [30]

These persons are competent and compellable if they can communicate with the court. [31]
The CPA also provides that in the case of deaf and speechless (“deaf and dumb”) persons
oral evidence shall be deemed to include gesture-language. [32]
Judges and magistrates are not competent to give evidence in cases over which they preside
or have presided. [33] If they have personal knowledge of a fact in dispute, they should
recuse themselves. [34] They may then testify after recusal. [35] No recusal is necessary where
judicial notice may take place. [36]
If a judge is competent to testify in a given case, a subpoena may nevertheless not be
issued against him without leave of the High Court. [37]
Page 454

Attorneys, advocates and prosecutors are competent witnesses in cases in which they are
professionally involved. But it is extremely undesirable that they testify in such cases. [38] By
so doing they would compromise their independence with regard to the case and put their
credibility at stake. [39]
22 9 The Accused
An accused, whether or not charged jointly with another accused, is at any appropriate stage
in criminal proceedings competent to testify in his own defence. [40] He may not, however, be
called as a witness except upon his own application. [41] The accused is therefore a
competent but non-compellable witness. It should be borne in mind, however, that an
accused who has given evidence may be recalled by the court. [42]

An accused who testifies in his own defence may in the process give evidence favourable to
a co-accused. But since every accused testifies only of his own volition, a co-accused cannot
compel another accused to give evidence on his behalf. An accused may also incriminate a
co-accused whilst giving evidence on his own behalf. But the state cannot call him as a
witness for the prosecution since his competence is confined to being a witness in his own
defence. It is only by terminating his status as an accused in the same proceedings as the
co-accused that he can become a witness for the prosecution against his former co-
accused. [43]
Such a change of status can be achieved in the following ways: [44]
(a) If the charge against the accused is withdrawn. This does not amount to an acquittal
and the former accused can be prosecuted again. But by testifying he can in certain
circumstances qualify for an indemnity from prosecution. [45]
(b) If the accused is found not guilty and discharged. In terms of s 6(b) of the CPA a
prosecution may be stopped even after an accused has pleaded, in which event he
must be acquitted. In such an instance the accused may not be prosecuted again but
may be called as a state witness.
(c) If the accused pleads guilty and the trials of the accused and his co-accused are
Page 455
separated. Furthermore, it is desirable that the accused should be convicted and

sentenced before being called as a witness. [46]
(d) If the trials of the accused and his co-accused are separated for another valid
reason. [47] In this event it is also desirable that the accused, if convicted, should be
sentenced before being called to testify for the prosecution.
Since the former accused is ordinarily an accomplice, the cautionary rule in this regard will
apply. [48]
22 11 Spouses
The position regarding the competence and compellability of a spouse to be called as a
witness for or against the other spouse depends on the nature of the proceedings (see
§§ 22 11 1 and 22 11 2 below). A partner in a civil union as provided for by the Civil Union
Act 17 of 2006 is also a spouse. This is clearly the effect of s 13(2)(b) of this Act, which
provides that “husband, wife or spouse in any other law, including the common law, includes
a civil union partner.” People married in terms of indigenous law or any system of religious
law, are also considered spouses (see n 52 to § 22 11 2 below).
22 11 1 Civil cases
In these proceedings the spouse of a party is a competent and compellable witness for and
against the party concerned.
In this context a distinction must be drawn between the case where the spouse of an
accused testifies on behalf of the defence and where the spouse is called as a witness on
behalf of the prosecution. For the sake of convenience the husband is in paragraphs (i) and
(ii) below cast in the role of the accused, whilst his wife assumes the role of the witness.
Witness for the defence
The spouse of an accused is a competent witness for the defence, whether or not the
accused is charged jointly with any other person. [49] If the spouse is called to testify on
behalf of the accused, she is both competent
Page 456
and compellable [50] to do so. The spouse is also a competent witness for any co-accused of
the accused. But in this instance she cannot be compelled to testify. [51]
Witness for the prosecution
The spouse of an accused is a competent witness for the prosecution, but as a rule she
cannot be compelled to testify in this capacity. [52] However, she is both a competent and
compellable witness for the prosecution where the accused is charged with a crime falling
within the following categories: [53] (a) any offence committed against the person of either of
them or of a child of either of them; (b) any offence under Chapter 8 of the Child Care Act
1983 committed in respect of any child of either of them; (c) any contravention of any
provision of s 31(1) of the Maintenance Act 1998, or of such provision as applied by any
other law; (d) bigamy; (e) incest as contemplated in s 12 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007; (f) abduction; (g) any
contravention of any provision of s 2, 8, 10, 11, 12, 12A, 17 or 20 of the Sexual Offences
Act 1957; (gA) any contravention of any provision of s 17 or 23 of Act 32 of 2007 as
referred to in (e) above; (h) perjury committed in connection with or for the purpose of any
judicial proceedings instituted or to be instituted or contemplated by the one of them against
the other, or in connection with or for the purpose of criminal proceedings in respect of any
offence included in this subsection; (i) the statutory offence of making a false statement in
any affidavit or any affirmed, solemn or attested declaration if it is made in connection with
or for the purpose of any such proceedings as are mentioned in (h) above.
The rule of non-compellability is based on the consideration that the marital relationship
between the accused and his spouse should be protected. [54] However, in the case of the
crimes listed above this consideration loses its validity since these crimes are generally
directed against the person of the
Page 457
spouse, or one of their children, or they affect the marriage in some way. In these
circumstances there is, therefore, no reason why the spouse should not be treated like any
other competent witness for the prosecution and thus also be compellable.
The words “offence against the person” have generally been interpreted restrictively by
our courts. In principle the phrase has been confined to charges of assault or charges
involving assault. [55] However, it seems doubtful whether this approach accords fully with
the legislative purpose behind the provision. There appears to be no valid reason why crimes
that infringe the personality rights of a person, such as crimen iniuria, should not be
included under this section. [56]
In S v Taylor [57] the court decided that the words “wife or husband” contained in ss 195
and 196 of the CPA include the former spouse of an accused if she is required to testify to
events which occurred stante matrimonio. Accordingly, if the former spouse is called as a
witness by the state or the court, she is competent to testify about these events, but not
compellable. [58] The position would be the same if she is called to testify on behalf of a co-
accused of her former husband. [59] The former spouse is only competent and compellable if
the accused requires her evidence for his defence. [60]
In terms of the common law a former spouse was in the same position as a current
spouse. Both were incompetent witnesses for the prosecution in relation to matters that
occurred whilst their respective marriages to the accused existed. The legislature changed
this general rule by declaring the spouse to be a competent witness for the state in the
normal course of events. [61] Although the former spouse is not mentioned in this provision,
she must clearly be included within its ambit. If not, the common-law principle of
incompetence would still apply to the former spouse. To treat the current spouse as
competent and the former spouse as incompetent would be an absurd situation that could
not have been contemplated by the legislature. [62] It is therefore submitted that the above
decision correctly expresses the legislative purpose.

In the case where a husband and wife are charged jointly it is self-evident that neither of
them can be called as a witness for the prosecution. The rules as set out in § 22 10 above
apply. But if either of them testifies in his or her own defence and incriminates the other
party, such evidence will be admissible, notwithstanding the fact that the former might not
be a competent witness for
Page 458
the state against the latter. [63] Since the spouse of an accused is now generally a competent
witness for the prosecution, the necessity for the above rule of admissibility might be
questioned. However, the rule might still be justified on the basis that s 195 covers only the
position of the spouse called by the state and does not sanction the situation where she
testifies in her own defence and incriminates her co-accused husband.
22 13 Members of the National Assembly and National Council

of Provinces
In terms of s 9 of the Powers, Privileges and Immunities of Parliament and Provincial
Legislatures Act, [64] a member of the National Assembly or the National Council of Provinces,
who is required to attend to business in Parliament by virtue of a certificate issued by the
Speaker of the National Assembly or the Chairperson of the Council, is absolved from
attending a court as a witness or defendant in civil proceedings or as a witness in criminal
proceedings, pending the completion of his or her business in Parliament.

The President of the Republic is clearly a competent witness, but there has been some
controversy about his compellability. In President of the Republic of South Africa and Others
v South African Rugby Football Union and Others [65] this was one of the many issues that
the Constitutional Court had to determine. The court a quo had referred the application of
SARFU for the hearing of oral evidence on a number of issues. For this purpose De Villiers J
had ordered certain witnesses, as well as the President, to appear personally to be examined
and cross-examined as witnesses. [66] The judge made no special order concerning the
circumstances in and the place at which the President was to testify. The effect of the
judge’s order was, therefore, to compel the President to testify in open court, which he duly
did. [67] On appeal the Constitutional Court held that De Villiers J had misdirected himself in
referring the matter for oral evidence and that his order was, therefore, clearly wrong. [68]
The Constitutional Court then considered the remaining question whether the order
compelling the President to testify in a civil matter in relation to the performance of his
official duties was correct. [69] The full court stated that “[t]his is a question of considerable
constitutional significance going to the heart of the separation of powers under the
Constitution”. [70] The court pointed out that there are two
Page 459
aspects of public policy that might be in conflict in this situation, namely the public interest
in preserving the dignity and status of the president’s office and the need to ensure that
courts are not impeded in the administration of justice. [71] The court concluded that the
status of the president’s office demands that the judiciary must exercise restraint in such
cases. Therefore, an order compelling the President to testify should only be made in
exceptional circumstances, where the interests of justice clearly demand that this be
done. [72] The court added that when such circumstances do exist, the special dignity and
status of the President, together with his busy schedule and the importance of his work,
must be taken into account. [73] Finally, the court held that there were no circumstances in
casu that justified an order compelling the President to submit himself to cross-
examination. [74]
In view of this authority it is clear that the President is both a competent and compellable
witness. However, the status of his office demands that he should only be compelled to
testify in highly exceptional circumstances. Furthermore, even if such circumstances exist,
the nature of the President’s work should be taken into account in determining when, where
and in what manner his evidence should be taken.
In terms of s 3 of the Diplomatic Immunities and Privileges Act [75] foreign heads of states
and diplomatic agents (and various other persons in diplomatic missions or public
international organisations and institutions) are immune from the civil and criminal
jurisdiction of South African courts. Such immunity obviously includes non-compellability as
witnesses. [76]
[1] Essays on the Law of Evidence (1956) 220.

[2] See generally § 10 1 above. However, cf S v Boesman and Others 1990 (2) SACR 389 (E) 396e-g, where this
rule was for practical considerations not followed.
[3] R v Tom 1914 TPD 318.
[4] Scoble The Law of Evidence 3 ed (1952) 256.
[5] See S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (2) SACR 1 (CC).
[6] Cf s 163 of the CPA. See generally S v Bakos 2010 (1) SACR 523 (GSJ) at [11]-[12].
[7] Section 8 of the CPEA provides that “[s]ave in so far as [the CPEA] or any other law otherwise provides, every
person shall be competent and compellable to give evidence in civil proceedings”. (Emphasis added.) And s 192 of
the CPA states that “[e]very person not expressly excluded by [the CPA] from giving evidence shall, subject to the
provisions of section 206, be competent and compellable to give evidence in criminal proceedings”. The fact that
s 192 of the CPA — unlike s 8 of the CPEA — makes no reference to “any other law” is immaterial because “the most
recent expression of the will of Parliament enjoys preference” (Schmidt & Rademeyer (2007) 8-3). In fact, there are
at least two statutory provisions, not contained in the CPA, where certain persons who have a statutory duty to
report are specifically declared — for purposes of criminal proceedings as specified in the statutory provisions
concerned — to be “competent but not compellable” witnesses. See s 38(3) of the Financial Intelligence Centre Act
38 of 2001 (as discussed in § 11 4 5 1 above) and s 17(9) of the Protection of Constitutional Democracy Against
Terrorist and Related Activities Act 33 of 2004 (as discussed in § 11 4 5 2 above).
[8] Section 8 of the CPEA must be read with the residuary provision contained in s 42 of the CPEA (see § 3 4
above) and s 192 of the CPA must be read with the residuary provision contained in s 206 (see § 3 5 above). Paizes
in Du Toit et al Commentary 23-24 states — with reference to Ex Parte Minister of Justice: In Re Rex v Demingo and
Others 1951 (1) SA 36 (A) — that “statutory provisions are not exclusive but must be read with the common-law
position as pertained on 30 May 1961.”
[9] This is in accordance with the general rule above. See De Vos Grondslae van die Siviele Prosesreg (1989 LLD
thesis RAU) 95, 273 and 118 where the position regarding the competence of the parties in English, South African
and French procedure is discussed.
[10] S v Thurston en ’n Ander 1968 (3) SA 284 (A) 291.
[11] See, eg, s 193 of the CPA.
[12] S v Thurston en ’n Ander supra 291; Zeffertt & Paizes 809. The so-called trial within a trial was also briefly
referred to in § 16 7 4 above.
[13] See § 22 6 below.
[14] S v Zenzile 1992 (1) SACR 444 (C) 446. The court must at all times make a proper investigation into the
cause of the witness’ alleged incompetence (such as, for example, imbecility) before making a finding of
incompetence. See S v Katoo 2005 (1) SACR 522 (SCA) at [13]. This case is also referred to in § 19 2 3 above. See
also S v Dladla 2011 (1) SACR 80 (KZP).
[15] Cf ss 170(2) and 188 of the CPA; s 35 of the Superior Courts Act 10 of 2013; Uniform Rules of Court 38; s 51
of the Magistrates’ Courts Act 32 of 1944 and rule 26 of the rules of these courts.
[16] The terminology in civil and criminal proceedings differs and the punishment in criminal proceedings is more
severe than in civil cases. But in essential respects the procedure in the respective proceedings is the same. Cf
ss 22, 170, 188 and 189 of the CPA; s 51 of the Magistrates’ Courts Act; ss 35 and 36 of the Superior Courts Act 10
of 2013.
[17] Section 164(1) of the CPA; Paizes in Du Toit et al Commentary at 23-24 to 23-24A. See further Cele v S
[2012] 4 All SA 182 (KZP). In Cele a 5-year-old who was three at the time of the alleged rape, was allowed to
testify.
[18] Section 164(1) of the CPA; S v V 1998 (2) SACR 651 (C). Matshivha v The State [2013] ZASCA 124.
[19] 1947 2 PH H302 (N).
[20] Bosman (ed) Social Welfare Law (1982) 45.
[21] See § 30 11 3 below.
[22] See also s 9 of the CPEA. Voluntary intoxication of a witness amounts to contempt of court. But the judicial
officer cannot proceed summarily with contempt of court proceedings, whilst the witness is in an intoxicated state,
since the latter could not be expected to be able to mount a proper defence in such a condition. Once the witness
appears to be in an intoxicated state the proper procedure is to adjourn the case until he is sober and to leave it to
the Director of Public Prosecutions to charge him in due course. See S v Nqula 2005 (1) SACR 283 (E).
[23] R v Creinhold 1926 OPD 151.
[24] Cf S v Zenzile 1992 (1) SACR 444 (C) 446. See also S v Katoo 2005 (1) SACR 522 (SCA).
[25] Schmidt & Rademeyer 219; Schmidt & Rademeyer (2007) 8-6.
[26] 1992 (1) SACR 444 (C) 446g.
[27] 446i-447a. However, on the importance of receiving medical evidence on the mental condition of the witness
if circumstances so require, see S v Dladla 2011 (1) SACR 80 (KZP).
[28] S v Malcolm 1999 (1) SACR 49 (SE) 53a, referring to S v Thurston en ’n Ander 1968 (3) SA 284 (A).
[29] 1999 (1) SACR 49 (SE).
[30] 53b-c.
[31] R v Ranikolo 1954 (3) SA 255 (O). They may, if necessary, communicate through an interpreter; The State v
Naidoo 1962 (2) SA 625 (A). In Master of the High Court v Deedat and Others 1999 11 BCLR 1285 (N) a party was
found incompetent to testify, because he was paralysed from the neck down and unable to speak, after having
suffered a stroke.
[32] Section 161(2).
[33] See generally Zeffertt & Paizes 815; Schmidt & Rademeyer 220; Schmidt & Rademeyer (2007) 8-7.
[34] See generally Ferreira Strafproses in die Laer Howe 2 ed (1979) 47-57.
[35] Buzzard, May & Howard Phipson on Evidence 13 ed (1982) para 48.
[36] Judicial notice is discussed in ch 27 below.
[37] Section 47 of the Superior Courts Act 10 of 2013.
[38] Rex v Nigrini 1948 (4) SA 995 (C): Elgin Engineering Co (Pty) Ltd v Hillview Motor Transport 1961 (4) SA 450
(N).
[39] Schmidt & Rademeyer 221; Schmidt & Rademeyer (2007) 8-7.
[41] Section 196(1)(a) of the CPA. This rule also finds expression in s 35(3)(h) and (j) of the Constitution.
[42] See s 167 of the CPA.
[45] In terms of s 204 of the CPA; see § 10 2 2 above.
[46] Ex Parte Minister of Justice: In Re Rex v Demingo and Others supra; R v Zonele and Others 1959 (3) SA 319
(A).
[47] See s 157(2) of the CPA. In S v Lungile and Another 1999 (2) SACR 597 (SCA) accused no 1 wanted to call
accused no 2 to testify on his behalf, but the latter elected to remain silent. Accused no 1, therefore, applied for a
separation of trials, so that he could compel accused no 2 to give evidence. On appeal the trial court’s refusal of this
application was confirmed. The reasoning was that it would be unfair to require accused no 2 to give evidence in
accused no 1’s trial until his own case has been disposed of. The position would be the same if accused no 2 wants to
call accused no 1 as a witness. Therefore, where an accused, whose evidence is required by a co-accused, invokes
his right to remain silent, an application for a separation of trials by the co-accused should not be granted. Olivier JA
stated succinctly that “the right of an accused to subpoena a co-accused as witness cannot override the right of the
latter not to incriminate himself or to remain silent at his trial” (605d).
[48] See § 30 11 1 below.
[50] This follows by implication from the wording of the section. See Schmidt & Rademeyer 222.
[52] Section 195(1) of the CPA; see generally Schmidt & Rademeyer 221-6; Zeffertt & Paizes 823-825. In the
past, a person married in accordance with indigenous law or custom was, for purposes of the law of evidence in
criminal proceedings, regarded as an unmarried person. However, in KwaZulu-Natal a marriage in accordance with
Zulu law and customs was recognised for purposes of the law of evidence in lower courts: KwaZulu Criminal
Procedure Amendment Act 11 of 1982. The position in the whole Republic was changed by an amendment to section
195(2) of the CPA (s 4 of the Justice Laws Rationalisation Act 18 of 1996, which came into operation on 1 April
1997). The new section 195(2) provides as follows: “For purposes of the law of evidence in criminal proceedings
‘marriage’ shall include a customary marriage or customary union concluded under the indigenous law and custom of
any of the indigenous peoples of the Republic . . . or any marriage concluded under any system of religious law.” It
should be noted that a marriage entered into for ulterior purposes is nevertheless a valid marriage, provided that the
parties intend the normal legal consequences to flow from such union. See, eg, S v Leepile and Others (3) 1986 (2)
SA 352 (W), in which the court found that although the motive of the witness and the accused in entering into a
marriage was to afford the witness a just excuse for refusing to testify, the validity of the marriage was not affected.
Accordingly, the court held that the witness (spouse) had a just excuse as contemplated in s 189(1) of the CPA. See
also S v Louw 2000 (2) SACR 714 (T). See further s 2(1) of the Recognition of Customary Marriages Act 120 of 1998
and S v Vengetsamy 1972 (4) SA 351 (D).
[53] Section 195(1)(a)-(i) of the CPA (as substituted by s 68 of Act 32 of 2007, with effect from 16 Dec 2007).
[54] See generally Schmidt & Rademeyer 222; Schmidt & Rademeyer (2007) 18-11.
[55] Compare S v Dhlamini 1966 (4) SA 149 (N) 152.
[56] See generally Schmidt & Rademeyer 224; Schmidt & Rademeyer (2007) 8-9.
[57] 1991 (2) SACR 69 (C).
[58] At 72-3.
[59] Section 196(1)(b) of the CPA.
[61] Section 195(1) of the CPA as amended by s 6 of Act 45 of 1988.
[62] S v Taylor 1991 (2) SACR 69 (C) 71i-72a.
[63] Section 196(2) of the CPA. The purpose of this provision was to eliminate the effect of S v Groesbeek en ’n
Ander (1) 1969 (4) SA 383 (O).
[64] Act 4 of 2004.
[65] 2000 (1) SA 1 (CC) 106-108. Cf Guzana v Council of State, Republic of Ciskei 1993 (2) SA 445 (CkA).
[66] 21C.
[67] 105H. This happened after the judge had dismissed the President’s application for a revocation of the order
compelling him to testify — 21F and 106B.
[68] 102I-105G.
[69] 106A.
[70] 106A.
[71] 1159C-D.
[72] 1159D.
[73] 1160A. In this regard the Court referred with approval to Clinton v Jones 137 L Ed 2d 945 (US) where the
Supreme Court of the USA expressed the same view and suggested that the testimony of the President might be
taken at the White House to accommodate his busy schedule.
[74] 1159F.
[75] Act 37 of 2001.
[76] Different considerations apply when dealing with internal criminal law matters. See generally Southern Africa
Litigation Centre v Minister of Justice and Constitutional Development & others [2015] 3 All SA 505 (GP).
Page 460
Chapter 23
The Calling of Witnesses
W L de Vos and S E van der Merwe
23 1 Introduction
23 2 2 The oath, affirmation or admonition
23 4 4 Witnesses recalled by the court
23 5 1 The right or duty to begin
23 7 Witnesses Called on Appeal or Remittal for Further Evidence
23 1 Introduction
This chapter is largely of a procedural nature and briefly sets out the rules in terms of which
witnesses are called to testify. The general rule is that all evidence should be given viva voce
(see also § 18 1 above).

The attendance of a witness may be secured by means of a subpoena. A subpoena duces
tecum is issued to a witness who is required to bring documentary evidence to court.

In criminal cases witnesses are generally required to wait outside before being called upon to
testify. [1] The purpose of this rule is to ensure that a witness is not influenced by what other
witnesses in the same case have said. [2] The position of the accused is different and is
discussed in § 23 4 2 below.
|
Page 461
Expert witnesses [3] are sometimes allowed to be present in court before being called upon
to testify. This is an exception to the general rule. The purpose of this procedure is to give
the expert an opportunity of assessing the issues, background, circumstances, and nature of
the case. This procedure may place the expert witness in a better position to give a valued
opinion when he is eventually called upon to testify. The court may grant the expert
permission to be present prior to his testifying.
23 2 2 The oath, affirmation or admonition [4]
Witnesses may be examined only if they are under oath or if they have made an affirmation
or if they have been admonished by the presiding officer to speak the truth.
Only one witness at a time is called and examined. In both criminal and civil proceedings
there are three basic stages during which a witness may be examined: [5] (a) examination in
chief by the party who called the witness; (b) cross-examination by the opponent or
opponents of the party who called the witness; and (c) re-examination by the party who
initially called the witness. The court may also question a witness. [6]
The calling of witnesses in criminal proceedings is discussed in §§ 23 4 1 to 23 4 4 below.
The position of the accused who testifies in his own defence is examined in § 23 4 2 below,
and must be read with the discussion in §§ 22 9 and 22 10 above.

In criminal cases the state leads evidence first. Before any evidence is adduced the
prosecutor may address the court for the purpose of explaining the charge and indicating,
without comment, what evidence the state intends to adduce in support of its allegations
against the accused. [7] The prosecutor then calls his first witness and examines him in terms
of the rules which govern examination in chief. [8] In terms of s 150(2)(a) of the CPA the
prosecutor may examine the witness and adduce such evidence as may be admissible to
prove that the accused committed the offence referred to in the charge or any other offences
which might be competent verdicts [9] on the charge. At the completion of examination in
chief
Page 462
the accused or his legal representative has a right [10] and a duty [11] to cross-examine the
witness. Cross-examination should not be conducted by the accused and his legal
representative. [12] The prosecutor has a right to re-examine the witness upon completion of
cross-examination by the defence. [13] The prosecutor may thereafter call the next witness (if
any) and this witness will in turn be taken through examination in chief by the prosecutor,
cross-examination by the defence, and (if necessary) re-examination by the prosecutor.
The prosecutor closes his case after all the witnesses for the state have testified. At this
stage the defence may apply for the discharge of the accused in terms of s 174 of the
CPA. [14] The court may also grant a discharge mero motu. [15]

If there is no discharge in terms of s 174 of the CPA, the accused is left with several options.
He may rely on his constitutional active defence right [16] by testifying in his own defence [17]
and calling one or more defence witnesses. [18] The accused may also rely on his passive
defence right [19] by closing his case without testifying and without calling any defence
witnesses. Or the accused can combine his active and passive defence rights: [20] as a
constitutionally non-compellable witness [21] he may refuse to testify and merely call one or
more defence witnesses. The accused may also elect to testify without calling any defence
witnesses.
The court has a duty to explain the above options to an accused who has no legal
representative. [22] In S v Brown en ’n Ander Buys J pointed out that the court must inform
an undefended accused that he has a constitutional right to silence and that no adverse
inference can be drawn from the mere fact that he has opted for
Page 463
silence. [23] Buys J, however, added the following rider: the accused must also be informed of
the prejudicial consequence of exercising the constitutional right to refuse to testify, namely
that the prosecution’s prima facie case that he committed the crime will be left
uncontradicted and — in the absence of an account given by the accused — the court will
decide the case on the prosecution’s version. [24] This rider is necessary in order to ensure
that the undefended accused makes an informed decision. [25] The effect of an accused’s
silence in response to the prosecution’s case is dealt with in more detail in § 30 9 below.
An accused who wishes to adduce evidence on behalf of the defence may address the
court for the purpose of indicating to the court, without comment, what evidence he intends
adducing on behalf of the defence. [26]
Section 151(1)(b)(i) of the CPA provides that an accused who intimates that he wishes to
testify shall, except where the court on good cause shown allows otherwise, be called as a
witness before any other witness for the defence. [27] Section 151(1)(b)(ii) of the CPA
provides that if an accused changes his mind and elects to testify after one or more defence
witnesses have testified, the court may draw such inference from the accused’s conduct as
may be reasonable in the circumstances. The purpose of s 151(1)(b) is to create a situation
where an accused who wishes to testify does so before having heard the evidence of his
defence witnesses. He has a right to be present at his trial and — unlike other witnesses —
cannot be asked to wait outside whilst the defence witnesses give their testimony. It has
been suggested that s 151(1)(b) is unconstitutional. [28] Before the CPA came into operation
in 1977 there were no statutory provisions which had attempted to prescribe the order in
which an accused and his defence witness(es) were to testify. [29] However, from a tactical
Page 464
point of view it was — and still is — best for an accused to testify before having heard his
own witness(es) in court. [30] If he testifies after having heard their testimony, he may be
cross-examined on the reasons for this sequence and — depending upon his explanations —
may run the risk that at the end of the trial the court may conclude that he had tailored his
evidence in the light of the evidence given by the defence witnesses. The extent to which an
adverse inference can be drawn as one of the “reasonable” inferences which the court may
draw in terms of s 151(1)(b)(i) of the CPA, is discussed in § 30 7 below.
Section 151(1)(b) does not apply where there are more than one accused. [31] In S v
Ngobeni [32] it was also pointed out that s 151 of the CPA does not prescribe the order in
which several accused should respectively put their cases to the court. It is, however, an
established practice that if there are several accused, they should put their cases in
numerical order, that is, in the order in which they are listed in the charge. The court can
order a departure from this rule of practice if one of the parties applies for such departure in
circumstances where the court is of the opinion that none of the parties would be prejudiced
and, further, that such departure would be in the interests of fairness and justice.
In S v Mpetha and Others (1) [33] it was held that if counsel for all accused are agreed that
they should present the cases for the accused in an order different to that in which the
accused appear in the indictment, then it is their right and duty to do so. It was also held
that counsel should not be called upon to explain to the court why they want to depart from
the usual practice.
It is an incorrect procedure to ask an accused to exercise his choice of giving evidence
and/or calling witnesses before the accused preceding him in numerical order has closed his
case. [34] An accused who has closed his case without having testified will be permitted to
testify if he is unexpectedly incriminated by a co-accused. [35]

Section 186 of the CPA provides as follows:
“The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed any person
as a witness at such proceedings, and the court shall so subpoena a witness or so cause a witness to
be subpoenaed if the evidence of such witness appears to the court essential for the just decision of
the case.”
This section introduces an inquisitorial element into our basically accusatorial trial
system. [36] It is an irregularity if the court fails to call a witness whose evidence is essential
for the just decision of the case. [37]
Page 465
In terms of s 166(2) of the CPA the prosecutor and the accused may, with leave of the
court, examine or cross-examine any witness called by the court in criminal proceedings.
Section 186 of the CPA does not empower the court to call the accused as a witness. The
accused may testify only upon his own application. [38] The court may, however, recall an
accused who testified in his own defence (see § 23 4 4 below).
23 4 4 Witnesses recalled by the court [39]
Section 167 of the CPA determines, inter alia, that the court may recall and re-examine any
person, including an accused, already examined at the proceedings and shall recall the
person concerned if his evidence appears to the court essential to the just decision of the
case.
The calling of witnesses in civil proceedings is governed by the principle of party control. It
is, therefore, for the parties, or rather their legal representatives, to decide which witnesses
they wish to call and in what sequence the witnesses are to testify. In accordance with the
position in criminal proceedings, the evidence is also presented by means of questioning
conducted by the parties. Every witness called to testify also undergoes examination in chief,
cross-examination and re-examination. The court, on the other hand, plays a passive and
neutral role with regard to the presentation of evidence. The judge is, however, entitled to
ask questions of the witnesses in order to clear up any obscure points. And he must see to it
that the parties follow the correct procedure in the presentation of their evidence. But the
judge must refrain from going beyond this by taking the examination of witnesses upon
himself. In a common-law-orientated procedural system, like ours, this would be regarded
as improper interference by the judge. [40]
23 5 1 The right or duty to begin [41]
In a civil case the party who bears the onus of proof has the right (or duty) to present his
case first. [42] As a rule the plaintiff carries the onus to prove all the facts in issue and
therefore has the
Page 466
right (duty) to begin. But in some cases the onus may be on the defendant to prove certain
facts, such as a special defence. [43] Zeffertt & Paizes explain the position as follows: [44]
“In a civil action the plaintiff . . . has the right (or duty) to begin if the burden of proof on any issue is
upon him or her, but he or she may close his [or her] case without leading any evidence on those
issues on which the burden is on the defendant. It is then the defendant’s turn to lead his or her
evidence on all the issues on which he or she led no evidence at first.”
The party who bears the onus of proof is sometimes relieved of the duty to begin. This is the
case where an evidentiary burden is cast upon his opponent at the outset of the trial, by
reason of admissions the latter has made in the pleadings. In other words, the former has
established a prima facie case on the pleadings, which calls for an answer from the latter at
the outset. [45]
If there is a dispute as to the incidence of the burden of proof, the court must give a
ruling on the issue. [46]

In the normal course of events the plaintiff begins by presenting his evidence. He may
testify and he may call witnesses to testify on his behalf. Thereafter he closes his case. In
certain circumstances absolution from the instance may be granted against the plaintiff at
this stage (see further § 32 6 below). If that does not happen, the defendant is required to
present his case. This he does in the same manner as the plaintiff: he may testify and call
witnesses to testify on his behalf.
There is no fixed order in which a litigant (plaintiff or defendant as the case may be) and
his witnesses should testify. It is a tactical decision. Mullins & Da Silva give the following
advise: [47]
“The reason why the litigant testifies first, is to avoid the imputation that he has tailored his evidence
in order to suit that given by his witnesses (something less likely if his evidence precedes that of his
other witnesses). But this is not to say that the rule is immutable. You might decide, for good reason,
that your client should be preceded by one or more witnesses. If so, ensure that you have a good
reason, consider in your opening address disclosing that reason, ensure that your client does not
attend court until he testifies, and beware of the overwhelming likelihood that your opponent will
suggest to your client in cross-examination that, even if he wasn’t in court during the earlier evidence,
he was kept up to date on it, and has trimmed his sails accordingly.”

A party who wishes to call an expert witness to testify on his behalf must comply with the
notice requirement laid down in the rules of court. [48] The reason for this requirement is to
enable the opponent to do the necessary preparation for the trial.
Page 467

In a civil case the court has no power to call a witness, except if the parties give their
consent in this regard. If a witness has already testified, the court has a discretion to recall
the witness for further examination or cross-examination. [49] This position is in accordance
with the principle of party control that holds sway in our system.

A party who has formally closed his case will generally not be permitted to present further
evidence by calling further witnesses. The purpose of this general rule is to promote the
finality of litigation. There are, however, several exceptions to this rule.
The court may permit a party to present evidence in rebuttal in respect of new matter
introduced during the course of the opponent’s evidence if the party concerned could not
reasonably have foreseen the presentation of the new issue. In other words, the opponent
must have come up with something in the nature of a surprise. [50] The court will refuse
reopening if the opponent had during the trial given an indication of the matter, for example
through cross-examination. [51] This is another reason why it is essential that a defence
should be put during cross-examination. [52]
Section 248(1) of the CPA creates a presumption that the accused possessed a particular
qualification or acted in a particular capacity if such allegation is made by the prosecution in
the charge. [53] Section 248(2) provides that if such allegation is denied or evidence is led to
disprove it after the prosecution has closed its case, the prosecution may adduce any
evidence and submit any argument in support of the allegation as if it had not closed its
case.
Reopening may also be allowed to prove a previous inconsistent statement; [54] to
introduce facts to show that a witness is biased if such bias is denied under cross-
examination; [55] and to call a witness to express an opinion as to the veracity of an
opponent’s witness. [56]
An accused who has closed his case without having testified will be allowed to testify if he
is later unexpectedly incriminated by a co-accused. [57]
In civil proceedings an application to re-open a case to lead further evidence, must be
decided on the basis of the following considerations: [58]
Page 468
“(i) The reason why the evidence was not led timeously.
(ii) The degree of materiality of the evidence.
(iii) The possibility that it may have been shaped to ‘relieve’ the pinch of the shoe.
(iv) The balance of prejudice, viz the prejudice to the plaintiff if the application is refused and
the prejudice to the defendant if it is granted.
(v) The stage which the particular litigation has reached. Where judgment has been reserved
after all evidence has been heard and, before judgment is delivered, plaintiff asks for leave
to lead further evidence, it may well be that he or she will have a greater burden because
of factors such as the increased possibility of prejudice to the defendant, the greater need
for finality, and the undesirability of a reconsideration of the whole case, and perhaps also
the convenience of the Court.
(vi) The ‘healing balm’ of an appropriate order as to costs.
(vii) The general need for finality in judicial proceedings.
(viii) The appropriateness, or otherwise, in all the circumstances, of visiting the fault of the
attorney upon the head of his client.”
23 7 Witnesses Called on Appeal or Remittal for Further

Evidence
In exceptional circumstances a court may hear evidence on appeal or review or remit the
case to the trial court for purposes of hearing further evidence. [59] In S v Wilmot the
Supreme Court of Appeal confirmed that the prerequisites for a successful remittal, are the
following: [60]
“(a) There should be some reasonably sufficient explanation, based on allegations which may be
true, why the evidence which it is sought to lead was not led at the trial.
(b) There should be a prima facie likelihood of the truth of the evidence.
(c) The evidence should be materially relevant to the outcome of the trial.”
[1] The court may make such an order. See s 187 of the CPA. For a comparison with the position in civil cases, see
S v Williams and Others 1991 (1) SACR 1 (C) 16j-17a.
[2] See further § 30 7 below. However, it is a serious violation of the constitutional right to adduce and challenge
evidence (s 35(3)(i) of the Constitution) if the court were to refuse to hear a defence witness merely because this
witness was present in court during the hearing of the case. See S v Lukhandile 1999 (1) SACR 568 (C).
[3] See generally § 8 7 above. Paizes in Du Toit et al Commentary 23-14 submits that “except for experts, it is a
wholesome practice to exclude potential witnesses”.
[4] See § 18 2 above.
[5] See §§ 18 3, 18 6 and 18 8 above.
[6] See § 18 9 above.
[7] Section 150(1) of the CPA. Obviously, the opening address is not “evidence” (see § 2 3 above). But the
defence is entitled to cross-examine a state witness on discrepancies between his testimony and the prosecutor’s
opening address. See S v Mbata en Andere 1977 (1) SA 379 (O).
[8] See §§ 18 3 to 18 5 above.
[9] See ss 256-70 of the CPA.
[10] Section 35(3)(i) of the Constitution and s 166(1) of the CPA.
[12] R v Baartman and Others 1960 (3) SA 535 (A); S v Nkwanyana and Others 1990 (4) SA 735 (A).
[15] See S v Amerika 1990 (2) SACR 480 (C).
[16] See § 3 9 above.
[17] Section 196(1) of the CPA; see also § 22 9 above. A court should take great care to ensure that an accused
makes an informed decision. In S v Bakos 2010 (1) SACR 523 (GSJ) an unrepresented accused had declined to
testify under oath. He explained as follows: “I cannot take the oath because it is against my religious beliefs but I
can only speak honestly and truthfully out of my mouth. . .” (at [2]). The trial magistrate interpreted the accused’s
refusal to take the oath as required in s 162, as a decision not to testify in his own defence (at [6]). The accused was
not invited to consider or make an affirmation as provided for in s 163 of the CPA. On review this was found an
irregularity resulting in a failure of justice. At [13] Mokgoatlheng J stated: “The accused’s refusal to testify was not
premised on the exercise of his constitutional right to remain silent, in terms of s 35(3)(h) of the Constitution . . . in
the sense that he appreciated, understood and knew that he could have testified in his defence if he so elected,
under affirmation in lieu of oath, in terms of s 163 . . . at the magistrate’s direction.”
[18] Section 35(3)(i) of the Constitution and s 151 of the CPA.
[19] See § 3 9 above.
[21] Section 35(3)(h) of the Constitution; s 196(1) of the CPA. See further § 22 9 above.
[22] Rex v Sibia 1947 (2) SA 50 (A).
[23] 1996 (2) SACR 49 (NC) 65f. See also § 30 9 below and the discussion of Griffin v California 380 US 609
(1965) by Van der Merwe in 1994 Obiter 1. Cf S v Makhubo 1990 (2) SACR 320 (O) 322g. See also generally the
discussion of S v Thebus and Another 2003 (2) SACR 319 (CC) in § 16 3 1 above.
[24] At 65g. See generally S v Scholtz 1996 (2) SACR 40 (NC). For some critical comments, see S v Hlongwa 2002
(2) SACR 37 (T).
[25] S v Brown en ’n Ander supra 65d. See also S v Khomunala and Another 1998 (1) SACR 362 (V).
[26] Section 151(1)(a) of the CPA.
[27] See generally S v Nene and Others (1) 1979 (2) SA 520 (D).
[28] Van der Merwe 1994 Stell LR 243. Brooks v Tennessee 406 US 605 (1972) is discussed in this article. In this
case the majority of the Supreme Court of the USA held that Tennessee legislation, which had determined that an
accused “desiring to testify shall do so before any other testimony for the defense is heard”, was unconstitutional in
view of procedural guarantees contained in the Fifth and Fourteenth Amendments of the Constitution of the USA.
This legislation foreclosed later testimony by the accused if he had decided to call his witnesses first. It is submitted
that s 151(1)(b) of the CPA does not have this effect: the accused remains a competent witness even if he deviates
from the order which s 151(1)(b) seeks to secure. But it is submitted that s 151(1)(b) is nevertheless
unconstitutional for the reasons advanced in 1994 Stell LR 243 251-9. See also generally Kriegler & Kruger
Hiemstra: Suid-Afrikaanse Strafproses 6 ed (2002) 386 and Kruger Hiemstra’s Criminal Procedure (2008) 22-9.
Paizes in Du Toit et al Commentary at 22-4B-1 states that it could also be argued that s 151(1)(b) “contains a
reasonable limitation in terms of s 36 of the Constitution, given the purpose of preventing an accused from tailoring
his evidence to fit that of his other witnesses”.
[29] In S v Nkomo 1975 (3) SA 598 (N) 601 H it was said that “there is no obligation whatsoever upon an accused
person to testify before his witnesses are called. He is perfectly entitled to say ‘I wish my witness to testify before I
give evidence’ or even to say ‘I wish them to testify before I elect whether or not I will give evidence or myself
remain silent’.”
[30] See further § 30 7 below as well as Tansley 1964 SALJ 109.
[31] S v Swanepoel en ’n Ander 1980 (2) SA 81 (NC) 83.
[32] S v Ngobeni 1981 (1) SA 506 (B).
[33] 1983 (1) SA 492 (C).
[34] S v Ngobeni supra.
[35] R v Simelane 1958 (2) SA 302 (N).
[36] See generally Snyman 1975 CILSA 100. The court has a duty to invoke s 186 where it is necessary to attempt
to discover the truth so that substantial justice can be done between the accused and the prosecution. See S v
Mseleku and Others 2006 (2) SACR 237 (N); Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR
217 (SCA) and S v Gabaatlholwe and Another 2003 (1) SACR 313 (SCA). But the court’s duty and power in terms of
s 186 cannot be invoked to call an incompetent witness (Rex v Jamba 1947 (4) SA 228 (C)).
[37] S v B and Another 1980 (2) SA 946 (A) 953. An appeal court will only in rare circumstances interfere with a
trial court’s decision that the evidence of the witness was essential to the just decision of the case. See S v
Gabaatlholwe and Another 2003 (1) SACR 313 (SCA). A court is also entitled to draw the attention of the prosecution
to the fact that “wesenlike getuienis ontbreek”. See S v Legote en ’n Ander 2001 (2) SACR 179 (SCA) 184e. In this
respect the SCA rejected the strict approach which was adopted in S v Matthys 1999 (1) SACR 117 (C).
[38] Section 196(1)(a) of the CPA. See also § 22 9 above.
[39] See generally S v Shezi 1994 (1) SACR 575 (A).
[40] See generally Hamman v Moolman 1968 (4) SA 340 (A) 344.
[41] This topic is examined in detail in §§ 32 3 and 32 4 below.
[42] Uniform Rules of Court 39(5) and (9); Magistrates’ Courts Rules 29(7)(a) and (8).
[43] See § 32 2 below.
[44] At 890; compare Uniform Rules of Court 39(13) and Magistrates’ Courts Rules 29(9)(a).
[46] Uniform Rules of Court 39(11); Magistrates’ Courts Rules 29(9)(a).
[47] Mullins & Da Silva Morris: Tehnique in Litigation 6 ed (2012) at 185 n 23.
[48] Uniform Rules of Court 36(9); Magistrates’ Courts Rules 24(9); see § 8 7 above. See also Hall v Multilateral
Motor Vehicle Accidents Fund 1998 (4) SA 195 (C).
[49] Zeffertt & Paizes 927-928; cf Magistrates’ Courts rule 29(12).
[50] Coetzee v Union Periodicals Ltd 1931 WLD 37; Rex v Lipschitz 1921 AD 282.
[51] R v Lukas 1923 CPD 508.
[52] See generally §§ 18 6 4 above and 31 4 2 below.
[53] See, on presumptions, ch 28 below.
[54] See § 25 2 4 below.
[55] Zeffertt & Paizes 928; see also § 25 2 3 below.
[56] Zeffertt & Paizes 928; see also § 25 2 5 below.
[57] R v Simelane 1958 (2) SA 302 (N). In S v Van Der Vyver (unreported CPD decision, case no ss 190/06, 29
Nov 2007) the defence had closed its case without the accused having testified. In the course of closing argument
delivered by the defence, the presiding judge commented on the fact that the accused had not testified. Despite the
late stage of the proceedings, the defence succeeded in an application to reopen the defence case in order to call the
accused as a witness.
[58] Porterstraat 69 Eiendomme (Pty) Ltd v P a Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C) 617C-E.
[59] See, eg, ss 304(2)(b) and 316 of the CPA; s 19 of the Superior Courts Act 10 of 2013; s 87(b) of the
Magistrates’ Courts Act 32 of 1944.
[60] 2002 (2) SACR 145 (SCA) 155g-h. See also S v Toba and Another 2008 (1) SACR 415 (E). S v De Jager 1965
(2) SA 612 (A) at 613D; S v Marais 2010 (2) SACR 606 (CC) at [21].
Page 469
Chapter 24
Refreshing the Memory of a Witness
S E van der Merwe
24 1 Introduction
24 2 “Refreshing of Memory” Versus the Distinction Between “Present Recollection
Revived” and “Past Recollection Recorded”
24 5 Refreshing of Memory While the Witness Is in the Witness-Box: The Common-Law
Foundation Requirements
24 5 4 Fresh in the memory
24 5 6 Production of the document
24 6 The Probative Value of a Document Used to Refresh Memory
24 1 Introduction [1]
The law of evidence assigns great importance to the principle of orality in the adjudication of
disputes. Witnesses are as a rule required to give independent oral testimony in the sense
that they are generally not permitted to rely on, or refer to, a statement, note or document
whilst testifying. [2] This general rule creates the impression that preference is given to
memory over writing as a means of “preserving evidence”. This preference can hardly be
reconciled with the simple truth embodied in the saying “Ink does not loose its hold on
paper, as facts do on the memory”. Be this as it may, the preference for oral evidence is a
corner-stone of the common-law evidential system, where cross-examination plays a pivotal
role: greater weight is attached to viva voce statements of witnesses than to their earlier
recorded statements.
Legislation has amended the position to a certain extent. Part VI of the CPEA (as read with
s 222 of the CPA) [3] gives effect to the valid argument that the written statement of a
witness may, depending upon circumstances, be more accurate than his recollection in court.
In certain circumstances a prior
|
Page 470
written statement can in terms of Part VI be submitted in order to supplement — but not
corroborate [4] — the evidence of a witness who cannot recall an event or some details
thereof. [5]
Part VI cannot, however, be relied upon in all circumstances. [6] Where Part VI does not
find application, recourse must be had to the common-law rules which provide for refreshing
the memory of a witness. This procedure entails that a witness, who for some reason has
forgotten a part (or all) of the events in respect of which he is to testify, may read or rely on
his earlier record or statement in an attempt to refresh his memory.
Refreshing the memory of a witness with the aid of his earlier record or statement is really
a necessary exception to the general rule that witnesses must testify on the basis of an
independent recollection of the relevant facts. Human memory is fallible, especially in those
situations where considerable time has lapsed between the actual event and the witness’s
narration in court. The complexity of some issues may also make it extremely difficult or
impossible for a witness to testify without the aid of his earlier record. [7] In this context
“record” may include an ordinary written statement, a tape recording, [8] a policeman’s
notebook, [9] hospital records, [10] a ship’s logbook, [11] and entries in a family Bible. [12]
Refreshing the memory of a witness in the course of his testimony and whilst he is in the
witness-box, may take place only if certain conditions have been met. These conditions are
referred to as the common-law foundation requirements and are discussed in §§ 24 5
–24 5 6 below. Evidence must also be led to show compliance with these conditions. [13]
It is also possible to distinguish between the situation where a witness refreshes his
memory before being called upon to testify (see § 24 3 below) and the situation where
refreshing of memory takes place during an adjournment (see § 24 4 below). In all these
situations the distinction between “present recollection revived” and “past recollection
recorded” (as explained in § 24 2 below) plays an important role.
The admissibility of evidence given by a witness who prior to trial had his memory
restored by hypnosis, was discussed in § 5 3 8 above.
Page 471
24 2 “Refreshing of Memory” Versus the Distinction Between

“Present Recollection Revived” and “Past Recollection
Recorded”
The phrase “refreshing the memory of a witness” is really a misnomer. [14] Zeffertt & Paizes
state: [15]
“The phrase ‘refreshing memory’ is, in this context, rather misleading. In everyday life there is a clear
difference between a situation where a person has no recollection at all of an event, but had made a
note of it when he did, and a situation where a person has a present recollection but bolsters it (or
revives it) with a contemporaneous aid to memory in the form of a note. But the distinction between
‘present actual recollection’ and a recollection which once existed, but has ‘irrevocably vanished’ has
not been generally appreciated in the English common law.”
In the United States this problem is acknowledged and a distinction is drawn between
“present recollection revived” and “past recollection recorded”. [16] “Present recollection
revived” (“herinneringsherlewing”) refers to the situation which mostly closely resembles a
true “refreshing of memory”. Consulting the record or statement (or part thereof) merely
serves as a trigger that re-establishes (or stimulates) the memory of the witness: the
witness can actively recall the forgotten events and can testify without further recourse to
the
Page 472
written source. On the other hand, “past recollection recorded” (“herinneringsherhaling”)

refers to the situation where the witness, after having examined the written source, still has
no independent recollection and can only vouch for the accuracy and reliability of the written
source. “Past recollection recorded” thus refers to a situation where there is, in effect, no
memory to refresh. It refers to a “recollection which once existed, but now, having
irrevocably vanished, depends on artificial preservation”. [17] Psychological theory and
knowledge of human memory confirm the validity of distinguishing between “present
recollection revived” and “past recollection recorded”. [18] The two situations are not,
however, separated by a rigid and distinguishable boundary. Quite often situations may arise
where it would be difficult to distinguish between “present recollection revived” and “past
recollection recorded”. In United States v Ricardi [19] it was pointed out that the difference
between the two categories will frequently be one of degree.
Although an argument can be made out that the distinction between “present recollection
revived” and “past recollection recorded” should be ignored because of the difficulty in
establishing which of the two is applicable in a given case, the advantages of identifying,
accepting and using such distinction far outweigh the disadvantages. A proper approach
should be to distinguish between “present recollection revived” and “past recollection
recorded” and to accept the natural consequences of such a distinction: oral evidence is
received in the case of present recollection revived (because the witness testifies from
memory) and documentary evidence is received in the case of past recollection recorded
(because the witness relies on the contents of documents). There are strong indications that
our Supreme Court of Appeal may be prepared to adopt such an approach. In S v Bergh it
was stated: [20] “By verfrissing van geheue is die aantekening wat gebruik word nie getuienis
in die saak nie, alhoewel dit miskien getuienis skyn te word indien die getuie geen
onafhanklike herinnering van die inhoud het nie.”

No general rule exists which precludes a witness from reading his or her statement before
entering the witness-box. [21] There are several reasons why a witness (including a party)
should be allowed to refresh his memory before testifying. First, the common-law approach
that witnesses should as a rule testify from memory [22] indirectly encourages parties and
their witnesses to refresh their memories out of court. Secondly, a rule prohibiting pre-trial
refreshment of memory can create serious problems for the honest witness and will have
little or no effect on the dishonest witness. [23] Thirdly, it is possible to argue that
Page 473
pre-trial refreshment of memory is a procedural right based on the fundamental rule that a
party should be given an adequate opportunity to prepare for the trial. [24] Section 35(3)(b)
of the Constitution specifically states that an accused person must be afforded adequate
time and facilities to prepare a defence. Fourthly, testimony in the witness-box will become a
test of memory (rather than truthfulness) if witnesses and parties were denied the
opportunity to refresh their memories prior to trial. [25] Our courts have indeed had no
hesitation in holding that a witness or a party may refresh his memory before entering the
witness-box. [26]
A document used for pre-trial refreshing of memory need not be made available to the
court and the opposing party. Any privilege which might exist with regard to a document
therefore remains intact. Where, however, it becomes clear during the course of a witness’s
testimony that he has merely memorised the contents of his statement before trial, and in
fact has no independent recollection of the events, the opposing party may demand, and the
court should order, that the privileged document be produced. Again it is a matter of
distinguishing between present recollection revived and past recollection recorded. But the
court will have to be satisfied that the holder of any possible privilege (for example, the
client in respect of a document which falls within the ambit of legal professional privilege)
has expressly or by necessary implication waived his privilege. [27] If the privileged document
is withheld, the evidence should of course be excluded. [28]
There is no rule of law which prohibits a witness whose testimony has been interrupted by
an adjournment, from refreshing his memory during the course of such an adjournment. [29]
What are the evidential consequences which flow from such conduct? Again the answer boils
down to the distinction between present recollection revived and past recollection recorded
as explained in § 24 2 above. If it is clear that the witness had memorised the contents of
his
Page 474
statement during the adjournment, then the document must be produced. [30] But if it is
clear that the witness is still testifying from memory after the adjournment, the document
need not be produced. [31]
May the court adjourn for the specific purpose of giving a witness, who is busy testifying,
an opportunity of refreshing his memory from his statement which — on account of the
requirement as set out in § 24 5 4 below — cannot be used for purposes of refreshing his
memory while he is being questioned? In R v Da Silva it was held that the following
procedure should be adopted to meet this situation: [32]
“In our judgment, therefore, it should be open to the judge, in the exercise of his discretion and in the
interests of justice, to permit a witness who has begun to give evidence to refresh his memory from a
statement made near to the time of events in question, even though it does not come within the
definition of contemporaneous, provided he is satisfied (1) that the witness indicates that he cannot
now recall the details of events because of the lapse of time since they took place, (2) that he made a
statement much nearer the time of the events and that the contents of the statement represented his
recollection at the time he made it, (3) that he had not read the statement before coming into the
witness box and (4) that he wished to have an opportunity to read the statement before he continued
to give evidence . . . We do not think it matters whether the witness withdraws from the witness-box
and reads his statement, as he would do if he had had the opportunity before entering the witness-
box, or whether he reads it in the witness-box. What is important is that, if the former course is
adopted, no communication must be had with the witness, other than to see that he can read the
statement in peace. Moreover, if either course is adopted, the statement must be removed from him
when he comes to give his evidence and he should not be permitted to refer to it again, unlike a
contemporaneous statement which may be used to refresh memory while giving evidence.”
24 5 Refreshing of Memory While the Witness Is in the Witness-

Box: The Common-Law Foundation Requirements
Certain requirements must be met before a witness in the witness-box may refresh his
memory from an earlier record. The party who wishes to refresh the memory of the witness
must prove that these requirements have been met. [33]

The witness must have had personal knowledge of the events recorded, and a finding to this
effect is necessary. The
Page 475
need for this requirement is of course to avoid the inadvertent admission of hearsay. [34]
Proof of personal knowledge may be difficult in the case of past recollection recorded.
However, the law of evidence is flexible in this regard, and inferences drawn from
circumstantial evidence can assist the court in determining the presence or absence of
personal knowledge. [35]
It must be shown that the witness is unable to recollect fully a matter on which he is being
examined. The court should at all times be satisfied that the witness’s claim that he cannot
recollect is genuine. [36] In the normal course of events the witness’s mere ipse dixit may be
sufficient, [37] whereas certain other circumstances may demand a careful enquiry.

The witness must have made the recording. But it is also accepted that in at least two
instances a witness may use the record of somebody else, namely, where the recording took
place upon the instructions of the witness [38] (in which event the original recorder should
also testify), [39] or where the witness read the record and accepted its accuracy [40] (in which
event the original recorder need not testify). [41] It must be shown that the facts were fresh
in the mind of the witness when he made the recording [42] or gave the instructions [43] or
read and verified the recording. [44] The requirement “fresh in the memory” is discussed in
§ 24 5 4 below.
In R v Kelsey [45] the Court of Appeal ruled that it is sufficient if it can be shown that the
witness verified the record by hearing it, as opposed to reading it. [46] In
Page 476
this case witness A saw a motor vehicle at the scene of the crime. Some twenty minutes late
he gave an oral account of the registration number of this vehicle to witness B, a policeman.
B recorded the number and read it back aloud to A who — without reading what B had
written down — confirmed that the number was correct. The court concluded as follows:
“The question we have to decide is . . . whether witness A can verify a note he dictates to B only by
reading it himself, or whether it is sufficient if the note is read back by B to A at the time for
confirmation. In most cases we would expect the note to be read by A if it is made in his presence.
But what of the instant case, or cases involving the blind or illiterate? In our view there is no magic in
verifying by seeing as opposed to verifying by hearing . . . What must be shown is that witness A has
verified in the sense of satisfying himself whilst the matters are fresh in his mind, (1) that a record
has been made, and (2) that it is accurate.” [47]
It should be borne in mind that in R v Kelsey supra witness B testified that he had correctly
recorded the number given to him by A and, further, that he had correctly read back the
number to A. R v Kelsey supra can be distinguished from S v Van Tonder. [48]
24 5 4 Fresh in the memory [49]
At an early stage during the development of the English common law it was required that
the writing should have been brought into existence contemporaneously or almost
contemporaneously with the events. [50] It was, however, soon realised that a strict
requirement of contemporaneity or substantial contemporaneity is inappropriate. [51] The test
should be whether the writing came into being, or was checked and verified, at
Page 477
a time when the facts were still fresh in the memory of the witness. [52] The presence or
absence of substantial contemporaneity is merely a factor which can assist the court in
determining whether the writing came into existence at a time when the facts were still fresh
in the memory of the witness. Much will depend upon the circumstances of the case. [53]

The original document must be used where the witness has no independent recollection, that
is, in the case of past recollection recorded. [54] This rule may, however, be departed from
where the opponent fails to object [55] or where it can be shown that the original has been
lost or destroyed. [56] Where the original is not used the accuracy of the copy or extract must
be proved. [57] Where present recollection revived is present the approach is more flexible
because memory, and not the document, is seen as the “source” of the oral evidence. [58]
24 5 6 Production [59] of the document [60]
A document used to refresh memory whilst the witness is in the witness-box must [61] be
made available to the court and the opponent in order to enable them to inspect it. [62] A
witness is
Page 478
thus precluded from using a document which he refuses to produce. [63] Where the document
is privileged the holder of the privilege has two options: either waive the privilege so that
the document can be produced (and the witness may use it) or claim privilege so that the
document cannot be produced (and the witness may not use it). [64] The opposing party may
waive his right of access to a document used by a witness. Furthermore, a court has a
discretion to restrict cross-examination, relating to the produced document, to those parts
which were used by the witness. [65]
The effect of the Constitutional Court’s decision in Shabalala and Others v Attorney-
General of Transvaal and Another [66] must be noted. The prosecution no longer has a
“blanket docket privilege” on statements obtained from (potential) state witnesses. [67] In
most instances the defence will already be in possession of the statement of the witness.
However, the statement must still be made available to the court if used to “refresh
memory” — irrespective of the fact whether present recollection revived or past recollection
recorded is at hand.
24 6 The Probative Value of a Document Used to Refresh

Memory
The probative value of a document used to refresh memory depends upon the existence of
one of three possible situations: present recollection revived, past recollection recorded, and
the conduct of the cross-examiner.

Oral evidence is received in this instance. [68] The memory is merely “triggered” and the
witness testifies on his own “mental power”. [69]

In § 24 2 above it was pointed out that the decision in S v Bergh [70] seems to have
acknowledged the validity of accepting the viewpoint that the document is received as
evidence in the case of past recollection recorded. The unequivocal acceptance of this
viewpoint would neither conflict with the hearsay rule nor amount to a subtle or disguised
circumvention of the rule against previous consistent statements. [71]
Page 479

The course taken in cross-examination can also determine the value of the document. If the
cross-examiner confines his questions to those parts of the document used by the witness to
refresh his memory, the document does not become evidence. [72] But if he cross-examines
on other parts of the document, he “lets in the whole, and that part referred to by the
witness originally also becomes evidence”. [73]
The rationale for this dual approach adopted by the common law is explained as follows by
Newark and Samuels: [74]
“When a cross-examiner confines his cross-examination to the part of the document used by the
witness to refresh his memory he is merely testing the genuine nature of the refreshment of the
witness’s memory or challenging the accuracy of the past recollection recorded and deposed to by the
witness. But when he cross-examines on other parts of the document he is attempting to elicit
testimony from the witness, or to discredit him by means of a document that is not before the jury as
evidence in the case. The argument is that it would be wrong to allow the cross-examiner to make use
of the document in a way quite unrelated to the testing of the refreshment of memory, and then to
complain about being required to put the document in evidence.”
A document which is received in evidence in the manner explained above has extremely
limited probative value. [75] It can merely show consistency or inconsistency, and cannot
corroborate the witness. [76] The general rule against self-corroboration remains intact. [77]
The present South African rules governing refreshing of memory are the products of a trial
system which seeks to maintain orality and which views “refreshing of memory” as a method
of receiving oral evidence — even in those instances where the witness has no independent
recollection and relies exclusively on his recorded recollection. This fiction should be
rejected.
It is true that the common-law procedure of “refreshing the memory” of a witness should
be understood in the light of the principle of orality and the evolution of the accusatorial trial
system with its concomitant exclusionary rules of evidence, which largely came about as a
result of trial by jury, the doctrine of precedent and the desire to protect the adversary. But
it is also submitted that the distinction between present recollection revived and past
Page 480
recollection recorded can be easily reconciled with the fundamental rules and principles of
the common-law trial and evidentiary system. It is not only a matter of employing accurate
terminology. It is also a matter of establishing a sound analytical framework to solve
practical problems.
[1] This chapter is an abbreviated and updated version of an article by Van der Merwe in 1991 Stell LR 62.
[2] S v Molefe 1975 (3) SA 495 (T). The expert witness is to some extent treated as an exception. See also § 8 7
above and Schmidt & Rademeyer 323 as well as Meintjes-Van der Walt Expert Evidence in the Criminal Justice
Process — A Comparative Perspective (2001) 126-9.
[3] Part VI is discussed in ch 14 above.
[4] Section 35(2) of the CPEA.
[5] Rawoot v Marine & Trade Insurance Co Ltd 1980 (1) SA 260 (C).
[6] See generally ch 14 above.
[7] See generally the discussion of expert witnesses in § 8 7 above.
[8] R v Mills 1962 3 All ER 298.
[9] Lenssen v R 1906 TS 154.
[10] Rex v Rose 1937 AD 467.
[11] Rawoot v Marine & Trade Insurance Co Ltd 1980 (1) SA 260 (C).
[12] R v Sherrin 1913 TPD 474.
[13] Rex v Ndhlovu 1950 (4) SA 574 (N).
[14] Lansdown & Campbell 781. See also Estate Parry v Murray 1961 (3) SA 487 (T) 491 and Morgan “The
Relation between Hearsay and Preserved Memory” 1928 40 Harvard LR 712 717-8. Newark & Samuels “Refreshing
Memory” 1978 Crim LR 408 remark as follows (our emphasis): “In dealing with the problem of refreshing memory it
is necessary to draw a distinction between the different senses in which a witness’s memory may be said to be
revived. First, the witness may be unable to recall the incident or important details of it but when referred to his
notes it all comes back to him and he is able to swear to the facts from his present recollection. Secondly, the
witness may be unable to recall the incident or important details thereof but on referring to his notes is prepared to
swear to the accuracy of those notes although he has no present recollection. Thirdly, there are cases where the
witness is unable to recall the incident or important details of it but on referring to his notes he is prepared to swear
to some facts from his present memory and to vouch for the accuracy of his record of other facts.”
[15] At 741. (Emphasis in the original.) McWilliams Canadian Criminal Evidence 3 ed (1988) 36-8 quotes the
following statements by Hayes J in Talbut v Cuzack 1864 17 Ir CL 213 220: “[‘Refreshing the memory of a witness’]
is a very inaccurate expression; because in nine cases out of ten the witness’s memory is not at all refreshed: he
looks at it again and again, and he recollects nothing of the transaction; but seeing that it is in his own handwriting,
he gives credit to the truth and accuracy of his habits; and, though his memory is a perfect blank, he nevertheless
undertakes to swear to the accuracy of his entry.”
[16] United States v Landof 591 F 2d 36 (9th Cir 1978); State v Carter 449 A 2d 1280 (1982); State v Contreras
253 A 2d 612 (1969); United States v Ricardi 174 F 2d 883 (3d Cir 1949) at 887; United States v Rappy 157 F 2d
964 (2d Cir 1946); Johnstone v Earle 313 F 2d 686 (9th Cir 1962); Williams v United States 365 F 2d 21 22 (7th Cir
1966); Thompson v United States 342 F 2d 137 (5th Cir 1965) at 140; Wigmore para 727; Lilly An Introduction to
Evidence (1978) paras 27, 28, 66 and 67; Cleary (ed) McCormick on Evidence 3 ed (1984) para 9; Hutchins &
Slesinger “Some Observations on the Law of Evidence — Memory” 1927 41 Harvard LR 860 861-3; Maquire & Quick
“Testimony: Memory and Memoranda” 1957 41 Harvard LJ 11 14; Walker “Witness’ Use of Memoranda: Present
Recollection Revived and Past Recollection Recorded” 1975 6 Cumberland LR 472; Westman “Past Recollection
Recorded: The ‘Forward-looking’ Federal Rules of Evidence Lean Backwards” 1975 50 Notre Dame Lawyer 737. The
fundamental differences between present recollection revived and past recollection recorded have led the American
courts to adopt a so-called liberal approach with regard to present recollection revived: any document (despite its
nature, authenticity or origin) may serve to stimulate the memory of the witness. It is accepted that a memory
stimulated to recall an event functions quite independently of the actuating cause. Of course, the court must at all
times be satisfied that the witness’s memory is truly refreshed. In the absence of such a finding the common-law
foundation requirements concerning the nature, authenticity and origin of the document — which is then no longer
considered a mere “trigger” — should be met.
[17] Wigmore para 725 (emphasis in the original).
[18] Van der Merwe 1989-1990 Obiter 49.
[19] 174 F 2d 883 (3d Cir 1949) at 889.
[20] 1976 (4) SA 857 (A) 865C-D.
[21] R v Richardson 1971 (2) All ER 773.
[22] S v Molefe 1975 (3) SA 495 (T).
[23] Lau Pak Ngam v The Queen 1966 Crim LR 443-4. See also Paizes in Du Toit et al Commentary 22-18.
[24] Van der Merwe 1990 SACJ 117 118.
[25] Lau Pak Ngam v The Queen supra.
[26] Yskor Utiliteitswinkel (Edms) Bpk v Maia 1985 2 PH F32 (A); Ex Parte Minister van Justisie: In Re S v Wagner
1965 (4) SA 507 (A). A rule to the contrary would at any rate be rather futile because of the lack of effective control.
See further Munday Evidence (2007) 238 and Tapper Cross & Tapper on Evidence 11 ed (2007) 318 as well as Choo
Evidence (2006) 404
[27] Bowes v Friedlander NO and Others 1982 (2) SA 504 (C). See also § 10 3 5 above.
[28] Van der Merwe Die Geheueverfrissingsprosedure (unpub LLD thesis, UCT, 1988) 311.
[29] There are, of course, certain ethical rules which attempt to limit and, in certain circumstances, prohibit
interviews with witnesses after they have been sworn: see para 4 2 of the Uniform Rules of Ethics. It is extremely
unlikely that a South African court will sanction the procedure adopted in State v Henson 234 SW 832 (1921). In this
case a prosecutor was allowed an adjournment so that he could privately refresh the memory of a witness who got
stuck in the course of her testimony. See also the criticism by Anon “Evidence: Not Error for Prosecutor to Withdraw
Witness and Privately Refresh his Recollection” 1922 20 Michigan LR 673.
[30] Van den Berg en ’n Ander v Streeklanddros, Vanderbijlpark en Andere 1985 (3) SA 960 (T) 963F-G: “In so ’n
geval is die verklaring altyd die beste getuienis en moet dit aan die hof en verdediging voorgelê word.”
[31] See generally Bowes v Friedlander NO and Others 1982 (2) SA 504 (C) and Van den Berg en ’n Ander v
Streeklanddros, Vanderbijlpark en Andere supra 967F: “Verder kan dit nie gesê word dat hierdie getuie nie ’n
onafhanklike herinnering gehad het oor die gebeure nie. Al wat hy gedoen het, is net om sy geheue weer te
stimuleer. Hy het wel getuig oor die gebeure wat hy kon onthou. Hy was nie aangewese op die dokument vir die
getuienis nie en gevolglik kan die dokumente ook nie op daardie grond toegelaat word as getuienis in die hof nie.”
[32] 1990 1 All ER 29 33c-e. Choo Evidence: Text and Materials (1998) 177 takes the view that Da Silva is not
prescriptive, and that the trial judge has a considerable discretion in deciding the matter. He relies on R v South
Ribble Magistrates, ex p Cochrane 1996 2 Cr App R 544. See further Keane The Modern Law of Evidence 6 ed (2006)
179.
[33] Vumendlini v Boardman 1946 EDL 165.
[34] R v Mawena 1961 (3) SA 362 (SR). See also Paizes in Du Toit et al Commentary 22-18.
[35] In Maugham v Hubbard 108 ER 948 951 Bayley J explained as follows (our emphasis): “Where a witness
called to prove the execution of a deed sees his signature to the attestation, and says that he is, therefore, sure that
he saw the party execute the deed, that is sufficient proof of the execution of the deed, though the witness add that
he has no recollection of the fact of the execution of the deed.” See also R v Bryant; R v Dickson 1946 31 Cr App R
146 150.
[36] In United States v Goings 377 F 2d 753 at 760 it was pointed out that the whole adversary system will have
to be revised if a party were to be allowed to offer a previous statement under “the guise of ‘refreshing’ recollection”.
[37] Newark & Samuels 1978 Crim LR 408 maintain that where it is clear that the witness will at some stage have
to refer to his notes, the court will allow this at the outset to save time. This approach finds practical application in
respect of expert witnesses. See § 8 7 above. An attempt to refresh the memory of the witness cannot be construed
as an attempt to have the witness declared hostile. See S v Hancock (unreported SCA decision, case no 333/03, 2
June 2004). See further § 25 3 3 below.
[38] R v O’Linn 1960 (1) SA 545 (N); S v Smuts 1972 (4) SA 358 (T).
[39] See generally S v Van Tonder 1971 (1) SA 310 (T).
[40] Dyer v Best 1866 4 H and C 189; 1866 LR 1 Exch 152; R v Mullins 1848 12 JP 776; Digby v Stedman 1 Esp
328 (1795) at 329; Burrough v Martin 1809 2 Camp 112; Anderson v Whalley 1952 3 Car and Kir 54; Topham v
McGregor (1844) 1 Car & Kir 320; 174 ER 829; R v McClean 1968 Cr App R 80; Rex v Varachia and Another 1947 (4)
SA 267 (T) 270. Written confirmation of the accuracy of the other person’s record is not required, but can facilitate
proof of verification.
[41] Van der Merwe Die Geheueverfrissingsprosedure 163-75.
[42] Druker v Timmerman 1939 SWA 42; R v Isaacs 1916 TPD 390; Reference by the Attorney-General under
Section 36 of the Criminal Justice Act 1972 (No 2 of 1979) 1979 69 Cr App R 411.
[43] R v O’Linn 1960 (1) SA 545 (N).
[44] S v Van Tonder 1971 (1) SA 310 (T); Harris v Mayer 1911 AD 260; Groves v Redbart 1975 Crim LR 158.
[45] 1982 74 Cr App R 213.
[46] Succinctly stated, R v Kelsey supra raised the question of “verification by hearsay”.
[47] At 217.
[48] 1971 (1) SA 310 (T). In this case E, at the time of the incident, dictated the registration number of a motor
vehicle to his daughter. She recorded the number on a piece of paper and E, at a time when the number was still
fresh in his memory, confirmed the correctness of his daughter’s recording. At a later stage a policeman took a
statement from E, and E also gave his daughter’s note to the police. At the trial and in the course of E’s testimony it
became clear that E had no independent recollection of the number. In re-examination the prosecutor “refreshed the
memory” of E with the aid of the statement which the policeman had taken from E. But E never testified that the
policeman had correctly copied the number from the daughter’s note and the policeman was not called as a witness.
The daughter testified that she had recorded a number. However, she never mentioned the exact number in her
evidence and her note was never produced. The trial court allowed witness E to refresh his memory from his
statement taken by the policeman. But on appeal it was concluded that without the policeman’s evidence the court
could not find that the policeman had correctly recorded what was said by E or what appeared on the note paper.
See 313F-G of the report. Nowadays the court has a discretion to admit hearsay: see ch 13 above and cf generally S
v Mpofu 1993 (2) SACR 109 (N).
[49] See generally Druker v Timmerman 1939 SWA 42; R v Isaacs 1916 TPD 390; Groves v Redbart 1975 Crim LR
158; R v Bryant; R v Dicksonn 1946 31 Cr App R 1436; R v Woodcock 1963 Crim LR 273; R v Simmons 1967 51 Cr
App R 316. In R v Governor of Gloucester: Ex parte Miller 1979 2 All ER 1103 1105e-j it was remarked that the
requirement of contemporaneity (’fresh in the memory’) is a mere rule of practice and not of law. Carter Cases and
Statutes on Evidence (1981) 183 rightly describes this case as “open to doubt”. It should also be appreciated that
the requirement that the document should have come into existence while the events were still fresh in the memory
“is by no means as stringent as the proximity demanded by, for example, the res gestae doctrine . . . The basis of
the rule is not that the statement must have been forced from the witness by an irresistible pressure of events
perceived by him but simply that he must have been able to remember the situation at the time the statement was
made” (Howard 1972 Crim LR 351 352-3).
[50] Doe d Church & Phillips v Perkins 1790 3 Term Rep 749 753; 100 ER 838.
[51] See generally Wigmore para 745 and Cleary (ed) McCormick on Evidence 4 ed (1984) para 301.
[52] A period of twenty-two days between the event and the recording thereof has been accepted: R v
Fotheringham 1975 Crim LR 710. In R v Isaacs 1916 TPD 390 a period of eight days was accepted. At 392 the court
concluded that if the recording was made “so soon afterwards as to render it probable, in the opinion of the court,
that the facts which it purports to narrate, were still fresh in the memory of the person writing them down, or
reading them, as the case may be, then the witness is allowed to refresh his memory”.
[53] Newark & Samuels 1978 Crim LR 409 remark as follows: “In the case of detailed or humdrum matters, eg a
previously unknown car or telephone number, only a record made instantaneously or at least within a few minutes
might be sufficient. In other cases a record made the same day may be acceptable. In some other cases where the
information is either straightforward and/or unusual and striking it will fade much less quickly and a record made the
following day or even some days later may be regarded as sufficiently contemporaneous.”
[54] S v Bergh 1976 (4) SA 857 (A) 865; Doe d Church & Phillips v Perkins 1790 3 Term Rep 749 753; 100 ER
838; R v Harvey 1869 11 Cox CC 546; R v Alward 1976 32 CCC 2nd 416; R v Jonathan 1947 1 PH K4 (C).
[55] R v Mohafa 1950 2 PH H103 (E). In Rex v Carr 1949 (4) SA 132 (T) 134 it was said: “If defending counsel
objected to the extracts and wanted the original register, they would no doubt have been produced. I cannot agree
that it is legitimate for them to keep a point of this sort up their sleeve to be taken on appeal.”
[56] Burton v Plummer (1934) 2 A & E 341; 11 ER 132.
[57] Topham v McGregor (1844) 1 Car & Kir 320; 174 ER 829.
[58] Tapper Cross & Tapper on Evidence 9 ed (1999) 267-8.
[59] “Production” here is “used in the sense of ‘made available’, not ‘put in as an exhibit’”: Buzzard, May & Howard
Phipson on Evidence 13 ed (1982) paras 33-42n60. See also De Bruin v Rex 1945 2 PH H255 (T). There is a rule of
practice — well illustrated in Rex v Smit and Another 1946 AD 862 867 — in terms of which a memorandum from
which a witness refreshed his memory in court may, in the absence of an objection and for the sake of convenience,
be utilised as a convenient record of the evidence of the witness. But this rule of practice does not elevate the
memorandum to the status of evidence.
[60] See generally Ratushny “Basic Problems in Examination and Cross-Examination” 1974 Canadian Bar Rev 209
215.
[61] Wigmore para 753(4) seems to take the view that production is essential only if the opponent so requests.
This approach might be valid in an accusatorial system where both parties are equally familiar with the rules of trial,
but is certainly invalid in respect of, eg, an undefended accused: see generally R v Elijah 1963 (3) SA 86 (SR) 89C.
[62] R v Elijah supra; MacDuff & Co (in Liquidation) v Johannesburg Consolidated Co Ltd 1923 TPD 318 319.
[63] Michael v Additional Magistrate of Johannesburg & Attorney-General 1926 TPD 331 333; Rex v Grieve 1947
(2) SA 264 (T); R v Scoble 1958 (3) SA 667 (N) 669; R v Alward 1976 32 CCC 2nd 416; R v Smith (No 2) 1938 71
CCC 394; R v Bass 1953 1 All ER 1064. Production of the document is not confined to past recollection recorded: R v
Elijah 1963 (3) SA 86 (SR).
[64] See generally Bowes v Friedlander NO and Others 1982 (2) SA 504 (C) 511F-G.
[65] R v Bass 1953 1 All ER 1064 1068A; R v Scoble 1958 (3) SA 667 (N) 670D; Rex v Grieve 1947 (2) SA 264 (T)
266.
[66] 1995 (2) SACR 761 (CC).
[67] See § 11 5 above.
[68] See § 24 2 above.
[69] Walker 1975 6 Cumberland LR 471 474.
[70] 1976 (4) SA 857 (A) 865C-D.
[71] Schmidt & Rademeyer 325; Van der Merwe Die Geheueverfrissingsprosedure 245: “Anders as in die geval van
herinneringsherlewing, kan daar nie in die geval van herinneringsherhaling beweer word dat die bewys van die
inhoud van die aantekening met die gemeenregtelike reeül teen vorige ooreenstemmende verklarings bots nie. Daar
is geen risiko van selfstawing nie. Die skriftelike stuk is die enigste bron.” See also § 9 10 above. There will also be
no infringement of the hearsay rule as the “witness” is available for cross-examination. See further ch 13 above.
[72] See generally R v Fenlon 1980 71 Cr App Rep 307 312; Estate Parry v Murray 1961 (3) SA 487 (T) 492; Rex
v Rose 1937 AD 467 471; R v Elijah 1963 (3) SA 86 (SR) 88H–89A; R v Wilken 1939 EDL 151 154; De Bruin v Rex
1945 2 PH H255 (T); R v Isaacs 1916 TPD 390 392; Gregory v Tavernor 1833 6 Car and P 280; 172 ER 1241.
[73] Estate Parry v Murray supra 292A. See further R v Britton 1987 1 WLR 539, 541-2. There is also another rule,
independent of the one under discussion, which states that if a party calls for and inspects a document held by the
other, he is bound to put it in evidence if required to do so: Senat v Senat 1965 2 All ER 505.
[74] 1978 Crim LR 408 411.
[75] R v Wilken 1939 EDL 151.
[76] R v Virgo 1978 67 Cr App R 323.
[77] See also § 9 10 above and § 30 3 1 below.
Page 481
Chapter 25
Impeaching the Credibility of a Witness
S E van der Merwe
25 1 Introduction
25 2 1 Cross-examination as to credit on some collateral issue: the finality of the
response
25 2 2 Cross-examination as to credit and the right to contradict a denial:
previous convictions
25 2 3 Cross-examination as to credit and the right to contradict a denial: bias
25 2 4 Cross-examination on and proof of a previous inconsistent statement made
by an opponent’s witness
25 2 5 Calling a witness to testify on veracity
25 3 Impeaching the Credibility of Your Own Witness
25 3 2 Proving a previous inconsistent statement against your own witness
25 3 3 Cross-examination of your own witness: the hostile witness
25 3 4 The rule that a party may not cross-examine its own witness unless
declared hostile: a constitutional perspective
25 4 Rules and Principles Which Govern the Proof and Probative Value of Previous
Inconsistent Statements
25 4 2 Substantive use of a previous inconsistent statement: proving the truth of
its contents
25 5 Attacking the Credibility of an Accused on the Basis of an Unconstitutionally Obtained
Prior Inconsistent Statement
25 1 Introduction
The credibility of a witness is mainly impeached through cross-examination — a procedure
that has already been discussed in §§ 18 6 to 18 7 above and which — in § 1 5 2 above —
was identified as an essential feature of the common-law adversarial trial system. In certain
circumstances it is also possible for a party to lead evidence which — though not directly
relevant to the facta probanda — is nevertheless received on account of the impact that it
may have on the credibility of an opponent’s witness who has testified on matters relating to
the facta probanda. It is, furthermore, possible that a party may experience the real need to
attack the credibility of her own witness. May she do so through cross-examination? May she
adduce evidence to contradict the evidence of a prior witness called by her?
The purpose of the present chapter is to identify and explain principles and rules which
govern the situation where impeachment of the credibility of an opponent’s witness as well
as one’s own witness is attempted through cross-examination or the leading of evidence, or
cross-examination as well as the
Page 482
leading of evidence. It is necessary to distinguish between impeachment of the credibility of
an opponent’s witness and that of one’s own witness: different rules come into play.

Section 190(1) of the CPA provides, inter alia, that a party in criminal proceedings may
|impeach the credibility of any witness called against such party. In terms of this section it
may be done in any manner in which — and by any evidence by which — the credibility of
such witness might on 30 May 1961 have been impeached by such party. Section 42 of the
CPEA has a similar effect. A South African court must therefore apply the common law as it
stood on 30 May 1961. The common-law methods and means of impeaching the credibility
of an opponent’s witness — as well as the applicable rules and principles — are set out in
§§ 25 2 1 to 25 2 5 below. The rules and principles as set out in these paragraphs are really
refinements of and limitations on a party’s right to cross-examine and adduce evidence.
25 2 1 Cross-examination as to credit [1] on some collateral issue: the

finality of the response
An answer given by a witness under cross-examination in response to a question which
concerns matters which are relevant to the issue may be contradicted by other evidence. But
if an answer is given to a question which is relevant solely to the credit of the witness on
some other matter which is collateral, the answer must as a general rule (see §§ 25 2 2
and 25 2 3 below) be accepted as final in the sense that the cross-examiner may not adduce
evidence to contradict the answer. [2] In S v Zwane and Others [3] it was held that a witness
could be asked if he has been disbelieved in previous judicial proceedings. But the court also
noted as follows: [4]
“If the finding by a previous court on the credibility of a witness whose credibility is sought to be
impugned is purely a collateral matter — as it frequently will be — such material can nevertheless be
used to cross-examine the witness; but if the witness gives a reply under cross-examination which
contradicts the previous finding, or his evidence on the issues in the previous matter, then (always
assuming that the previous finding and his previous evidence are not relevant to the issue before the
court in the subsequent proceedings) such reply is conclusive and the cross-examiner is neither
entitled to adduce evidence, nor is he permitted to put portions of the record of the previous
proceedings to the witness, to contradict such reply. The furthest that the cross-examiner could go in
the face of a denial . . . would be to show the relevant portion of the previous
Page 483
record to the witness and say: ‘Look at this paper: do you still adhere to your answer?’ If the witness
does adhere to his answer, that is the end of the enquiry . . .”
The rule that an answer given by a witness under cross-examination on a collateral matter is
final must be understood in the context of the principle that in the course of litigation a
proliferation or multiplicity of collateral issues must be avoided — a matter already dealt with
in § 5 3 3 above.
The difficulty, of course, is to decide whether an issue is collateral or not. In Attorney-
General v Hitchcock 1847 1 Exch 91 the following test was suggested: [5]
“The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you
would be allowed on your own part to prove in evidence — if it had such a connection with the issues
that you would be allowed to give it in evidence — then it is a matter on which you may contradict
him.”
It has often been remarked that the exact meaning of “collateral” is not entirely clear. The
reason is that the meaning of “collateral” is difficult to describe in the abstract, and concrete
application of the term is only possible by relying on “relevance” in the context of the
specific facts of the case: “Relevance to the issue before the court determines whether or
not evidence is collateral, and what is relevant depends on the facts of each case”. [6]
In R v Marsh [7] a witness for the prosecution denied under cross-examination that he had
threatened the accused. The trial court denied the accused an opportunity to adduce
evidence to contradict the denial. The court of appeal did not agree. An integral part of the
accused’s defence was that he had every reason to believe that the witness had intended to
attack him. The issue was therefore not a collateral one — and the accused should have
been allowed to adduce evidence in an attempt to contradict the denial. [8] Wood v Van
Rensburg, [9] on the other hand, provides an example of a case where a party was irregularly
permitted by the trial court to rebut answers which the witness had given under cross-
examination on collateral matters. The questions which the plaintiff had put were admissible,
but “not material to the issue”. [10] Their sole relevance was to assail the credit of the
witness. It was held that the trial court had erred by allowing rebutting evidence (taken by
means of interrogatories) in contradiction of the defendant’s answers: having regard to the
facts of the case, [11] such evidence could have made no real probative contribution as
regards the issues. It merely involved general credibility and caused the court to get side-
tracked into collateral matters. Wood v Van Rensburg should be understood in the light of
the following remarks by Lawrence J in Harris v Tippett: [12]
Page 484
“I will permit questions to be put to a witness as to any improper conduct of which he may have been
guilty, for the purpose of trying his credit; but when those questions are irrelevant to the issue on the
record, you cannot call other witnesses to contradict the answer he gives.”
25 2 2 Cross-examination as to credit and the right to contradict a

denial: previous convictions
On the basis of the 30 May 1961 provision as contained in s 190(1) of the CPA and s 42 of
the CPEA, the credit of an opponent’s witness may be impeached with reference to his
previous convictions. [13] The witness may be asked whether he has any previous convictions
and — in the event of a denial or refusal to admit or answer — the cross-examiner may
prove such previous convictions. [14] In the application of this rule it must of course be kept
in mind that an accused as a witness in his own defence is entitled to the protection granted
to him in terms of local statutory provisions as well as common-law rules. [15] Counsel
defending an accused who has a criminal record would normally be wise to steer clear of
impeaching the credit of a prosecution witness on the basis of the latter’s previous
convictions. Such impeachment of the credibility of a prosecution witness would cause the
accused to lose the shield of protection which he enjoys in terms of s 197 of the CPA. This
matter is dealt with in § 6 2 3 1 above.
25 2 3 Cross-examination as to credit and the right to contradict a

denial: bias
A witness may be cross-examined on facts which tend to show that she is biased in favour of
the party who called her [16] or that she is prejudiced against the case of the cross-
examiner, [17] as the case may be. In the event of a denial evidence may be called to
contradict her. [18] It is sometimes said that this approach is an exception to the rule that the
answer given by a witness under cross-examination in relation to a collateral matter is final.
However, it is possible to argue that the matter of bias or prejudice is not really a collateral
matter. The presence of bias or prejudice should be brought to the attention of the court in
order to enable the court to make a proper assessment of the evidence concerned — and if
such prejudice or bias is denied by the witness, the matter should be clarified by adducing
evidence. In Thomas v David [19] the plaintiff called his female housekeeper, who was one of
the attesting witnesses
Page 485
to the defendant’s signature on a promissory note. In the course of cross-examination it was
alleged that she was the mistress of the plaintiff and regularly slept with him — an allegation
which she denied. The defendant was permitted to call a witness to contradict this denial.
Coleridge J remarked and held as follows: [20]
“Is it not material to the issue, whether the principal witness who comes to support the plaintiff’s case
is his kept mistress? If the question had been whether the witness had walked the streets as a
common prostitute, I think that would have been collateral to the issue, and that, had the witness
denied such a charge, she could not have been contradicted; but here, the question is whether the
witness had contradicted such a relation with the plaintiff as might induce her to move readily to
conspire with him to support a forgery, just in the same way as if she had been asked if she was the
sister or daughter of the plaintiff, and had denied that. I think the contradiction is admissible.”
25 2 4 Cross-examination on and proof of a previous inconsistent

statement made by an opponent’s witness
A witness may be cross-examined with reference to a prior statement made by her and
which is inconsistent with her testimony in court. [21] But proof of the prior inconsistent
statement is permitted only if it is relevant, going beyond mere collateral matters. [22] The
statement may be proved if the witness denies having made it. The rules and principles
which govern the proof and evidential value of a previous inconsistent statement are set out
in § 25 4 below. The rules and principles set out in § 25 4 below must, however, also be
read in conjunction with s 5 of the English Criminal Procedure Act of 1865. Section 5 of this
Act applies to criminal as well as civil proceedings in South Africa. It not only governs the
situation where an opponent’s witness is cross-examined with reference to a prior
inconsistent written statement but also regulates the procedure to be followed in proving
such a statement. Section 5 of the English Criminal Procedure Act of 1865 provides as
follows:
“A witness may be cross-examined as to previous statements made by him in writing or reduced to
writing relative to the subject-matter of the indictment or proceeding, without such writing being
shown to him; but if it is intended to contradict such witness by the writing, his attention must, before
such contradictory proof can be given, be called to those parts of the writing which are to be used for
the purpose of so contradicting him; provided always, that it shall be competent for the judge, at any
time during the trial, to require the production of the writing for his inspection, and he may thereupon
make such use of it for the purposes of the trial as he may think fit.
The fact that the presiding officer “may make such use of the statement for the purpose at
the trial as he may think fit” does not entitle the presiding officer to treat the contents of the
statement as evidence. [23] It is only in the exceptional
Page 486
circumstances as identified and examined in § 25 4 2 below, that the contents of a previous

inconsistent statement can be put to substantive use.
25 2 5 Calling a witness to testify on veracity [24]
There is an archaic rule — which has some historical link with the ancient system of calling
compurgators [25] — in terms of which a witness may be called to say that he would not
believe the testimony of the opponent’s witness under oath. The witness is in fact called
upon to express an opinion on the credibility of the opponent’s witness. The purpose of the
evidence is to discredit all the evidence given by the opponent’s witness. The opinion
amounts to evidence of bad character. The witness must base his opinion on his own
personal knowledge of the veracity of the impugned witness and may also refer to the
latter’s general reputation for veracity. But in neither instance may the witness refer to
specific incidents. It can be argued that abolition of this rule would not leave the law of
evidence any poorer.
25 3 Impeaching the Credibility of Your Own Witness [26]
The general rule is that a party is not permitted to impeach the credibility of a witness called
by her. There are various historical reasons for this rule. [27] The early procedure of calling up
so-called “compurgators” or “oath-helpers” [28] is probably the most important historical
reason. This procedure gave rise to the idea that a party vouches for or guarantees the
credibility of the witness called by him. [29] The procedure of calling an oath-helper would
have made very little sense if a party could be permitted to contradict the very oath-helper
called by him. However, the idea that a witness called by a party should not be contradicted
by such a party was carried into early English trial procedure when witnesses were called
upon to testify as to the events and not merely to confirm a party’s oath (see § 1 3 3
above). In 1681 North LCJ said (rather rudely, it seems): [30]
“Look you, Mr Colledge, I will tell you something for the law and set you right. Whatsoever witness
you call, you call them as witnesses to testify the truth for you; and if you ask them any questions,
you must take what they have said as truth; . . . let him answer you if he will, but you must not
afterwards go to disprove him.”
Page 487
The rule against impeachment of your own witness became part of the adversarial system: it
was accepted that a party had a right to cross-examine an opponent’s witness but could as a
general rule not cross-examine a witness called by herself.
The “modern” justification for the rule — though not beyond criticism — was set out as
follows by Wessels J in R v Wellers: [31]
“It appears to me that the first principle as to why a party is not entitled to cross-examine his own
witness as being adverse is that if this were allowed, a party may find that the witness is not giving
evidence in accordance with his anticipation, and then in order to bring the witness back to what he
conceives to be the true statement, or the statement he happens to have before him, he may put
leading questions and so get the witness to give evidence in accordance with counsel’s brief. This the
court cannot allow. On the other hand, you may have a case where the witness in the box is giving
the true statement but the counsel examining him is disappointed at the trend of his evidence, and
wishes to bring him away from the true story which he is actually telling, in order, either by
browbeating or confusing him, to throw doubt on his evidence. If, therefore, counsel were allowed to
cross-examine his own witness the court might be led to doubt evidence which is really true.”
But in certain circumstances a party may attempt to contradict her own witness by calling
another witness; she may also prove a previous inconsistent statement against her own
witness; and — in one exceptional situation — she may even cross-examine her own
witness. These circumstances and the applicable rules are set out in §§ 25 3 1 to 25 3 3
below and must be seen as exceptions to the general rule that a party may not impeach the
credibility of her own witness. The impact of constitutional provisions on this general rule is
— as far as an accused is concerned — examined in § 25 3 4 below.

A party may always call a witness to contradict the evidence given by a witness who was
also called by that party. [32] However, the second witness — like the first witness and all
other witnesses in every trial — may, of course, only give admissible evidence. Thus, in S v
Nel [33] Marais J agreed with the trial court’s refusal to allow defence counsel to lead
psychiatric evidence: the sole purpose of the evidence — which was really expert opinion
evidence which was supererogatory and therefore inadmissible [34] — was to show that a
defence witness who in her testimony had contradicted aspects of the accused’s testimony
was “mildly to moderately retarded” and therefore likely to “clamp up” under the strain of
testifying in court. It was held that intellectual and psychological disabilities of a relatively
normal kind and which
Page 488
merely affect personality, powers of articulation and ability to recall can be assessed
reasonably adequately by the court while the witness is testifying. Marais J noted the
obvious admissibility of medical evidence of a physical affliction which adversely affects the
ability of the witness to testify accurately and reliably. For example, is the previous witness
so shortsighted that he could not possibly have identified a person who was 100 metres
away at the time? [35] Marais J also noted that although expert evidence of mental
abnormality could be used to impeach the credibility of the first witness, it could not be said
that “the grounds upon which it was sought to lead the evidence of the psychiatrist in the
case before us are fairly comparable”. [36] The principles relied upon in Nel supra would, of
course, also apply to the situation where an attempt is made to impeach the credibility of an
opponent’s witness. [37]
The fact that a party may call another witness to contradict her own previous witness or
otherwise impeach the latter’s credibility is a clear indication that the idea that a party
somehow “guarantees” the credibility of his witness is based on a fiction.
25 3 2 Proving a previous inconsistent statement against your own

witness
At common law a party did not have an unqualified right to impeach the credibility of his
own witness by proving an inconsistent statement made by the latter. [38] The position was
changed by s 57 of the General Law Amendment Act 46 of 1935 and is presently governed
by s 190(2) of the CPA and s 7 of the CPEA. The latter section — which is substantially
similar to s 190(2) of the CPA — provides as follows:
“Any party who has called a witness who has given evidence in any civil proceedings (whether that
witness is or is not, in the opinion of the person presiding at such proceedings, adverse to the party
calling him) may, after the said party or the person so presiding has asked the witness whether he
has or has not previously made a statement with which his evidence in the said proceedings is
inconsistent, and after sufficient particulars of the alleged previous statement to designate the
occasion when it was made, have been mentioned to the witness, prove that he previously made a
statement with which his said evidence is inconsistent.”
The most important rules and principles which regulate proof of a previous inconsistent
statement are set out in § 25 4 below. The fact that a party has proved a previous
inconsistent statement against his own witness does not automatically entitle the party to
embark upon cross-examination of the witness concerned: cross-examination can take place
only once the party has successfully applied to the court to have her witness declared hostile
— a procedure which is dealt with in § 25 3 3 below.
Page 489
Neither s 190(2) of the CPA nor s 7 of the CPEA requires that the statement should be
relevant “to the subject-matter of the indictment or proceeding”. [39] Both these sections also
make it clear that proof of a previous inconsistent statement against a party’s own witness
may proceed regardless of the fact whether the witness is or is not, in the opinion of the
court, adverse to the party who called him.
25 3 3 Cross-examination of your own witness: the hostile witness [40]
An application to have a witness declared hostile may be brought in the course of evidence
in chief or re-examination. The purpose of such an application is to obtain the right to cross-
examine one’s own witness in the same way as if the latter had been called by an opponent.
The decision to bring such an application is a tactical one, and such an application may at
times be necessary despite the fact that the credibility of the witness has been destroyed by
proof of a previous inconsistent statement. [41] The party concerned must weigh the risks:
would an opportunity to cross-examine promote her case? or would it merely give the
witness a further opportunity to give evidence supporting the opponent’s case?
“Hostile” is not the equivalent of “adverse” or “unfavourable”. [42] The party bringing the
application has the burden [43] of satisfying the court that the witness is “not desirous of
telling the truth at the instance of the party calling him” [44] — an antagonistic animus must
be proved. [45] The test is a subjective one. [46] The party seeking a declaration of hostility
has a difficult task: he must prove that the witness has an antagonistic animus so that he
may cross-examine him — and yet if he could cross-examine, he would have a better chance
of exposing the required animus. [47]
The mere fact that a party’s own witness has given evidence contradicting what was
expected of him does not per se render him hostile. Proof of a previous inconsistent
statement is merely one of the factors to be considered. [48] In City Panel Beaters v Bhana
and Sons Findlay AJ said that it “may well be that the nature of the statement and the
inconsistency are such that the inference of hostility is very strong and that no more is
required to establish this”. [49] In
Page 490
S v Steyn en Andere it was also said that the nature of the contradictions (’weersprekings’)
can create a strong probability of hostility. [50] In this case Le Roux J also referred to the
“demeanour” test as being decisive: can hostility be inferred from the behaviour of the
witness in the witness-box? [51] Further factors — none of which is necessarily decisive — are
the relationship between the witness and parties involved in the dispute; [52] the fact that the
witness is a prosecution witness who was warned in terms of s 204 of the CPA and who
therefore has prospects of receiving indemnity; [53] the fact that a witness has deceived a
party into calling him as a witness. [54] This is not an exhaustive list, as is evident from the
following remarks by Findlay AJ: [55]
“[I]n order to be satisfied that a witness is hostile, the court will evaluate that witness’s stance
towards the party calling him. It is clearly undesirable to lay down any rigid formula to be applied,
since what is under consideration is, by its very nature, the attitude of the witness, which obviously
requires an entirely subjective assessment of that witness in the given circumstances of the case
before the court. Accordingly the general guidelines derived from the authorities such as the witness
being shown to have made a previous inconsistent statement, his demeanour, his position towards
the party calling him, his relationship to any party and what are loosely described as ‘the general
circumstances of the case’ (which necessarily preserves a measure of flexibility in the enquiry) are no
more than factors, no one of which will necessarily be decisive, which the court will take into account
when deciding the question.”
25 3 4 The rule that a party may not cross-examine its own witness
unless declared hostile: a constitutional perspective
In terms of s 35(3)(i) of the Constitution an accused shall have the right to a fair trial, which
shall include the right to challenge evidence. The right to challenge evidence includes the
right to cross-examine. [56] The following question arises: does the constitutional right to
cross-examine have any impact on the common-law rule that a party — and in this instance
it is the accused — may not cross-examine his own witness unless declared hostile?
In Chambers v Mississippi [57] the accused had called one McDonald to introduce the
latter’s written confession to the crime with which the accused was charged. This was duly
done. But under cross-examination by the state, McDonald repudiated the confession and
asserted an alibi. The accused thereupon sought permission to cross-examine McDonald with
regard to the circumstances of his repudiation of the written confession and the alibi as
asserted, as well as three other oral confessions allegedly made by McDonald. The trial court
refused to give such permission. The refusal was based on a Mississippi rule prohibiting a
party from impeaching his own witness unless found “adverse”. The accused was convicted.
On appeal, the Mississippi Supreme Court confirmed the conviction and noted, inter alia, that
the
Page 491
testimony of McDonald was not adverse to the accused as McDonald had at no stage
“pointed a finger” (incriminated) the accused. But the Supreme Court of the USA did not
agree. It held that — having regard to the circumstances of the case — the accused had
been denied his constitutional due process right to a fair trial, including the right to confront
and cross-examine. The following remarks and findings are significant: [58]
“In this case, petitioner’s request to cross-examine McDonald was denied on the basis of a Mississippi
common-law rule that a party may not impeach his own witness. The rule rests on the presumption —
without regard to the circumstances of the particular case — that a party who calls a witness ‘vouches
for his credibility . . .’ Although the historical origins of the ‘voucher’ rule are uncertain, it appears to
be a remnant of primitive English trial practice in which ‘oath-takers’ or ‘compurgators’ were called to
stand behind a particular party’s position in any controversy. Their assertions were strictly partisan
and, quite unlike witnesses in criminal trials today, their role bore little relation to the impartial
ascertainment of the facts . . . Whatever validity the ‘voucher’ rule may have once enjoyed, and apart
from whatever usefulness it retains today in the civil trial process, it bears little present relationship to
the realities of the criminal process. It might have been logical for the early common law to require a
party to vouch for the credibility of witnesses he brought before the jury to affirm his veracity. Having
selected them especially for that purpose, the party might reasonably be expected to stand firmly
behind their testimony. But in modern criminal trials, defendants are rarely able to select their
witnesses: they must take them where they find them. Moreover, as applied in this case, the
‘voucher’ rule’s impact was doubly harmful to Chambers’ efforts to develop his defense. Not only was
he precluded from cross-examining McDonald, but, as the State conceded at oral argument, he was
also restricted in the scope of his direct examination by the rule’s corollary requirement that the party
calling the witness is bound by anything he might say. He was, therefore, effectively prevented from
exploring the circumstances of McDonald’s three prior oral confessions and from challenging the
renunciation of the written confession . . . In this Court, Mississippi has not sought to defend the rule
or explain its underlying rationale. Nor has it contended that its rule should override the accused’s
right of confrontation. Instead, it argues that there is no incompatibility between the rule and
Chambers’ rights because no right of confrontation exists unless the testifying witness is ‘adverse’ to
the accused. The State’s brief asserts that the ‘right of confrontation applies to witnesses ‘against’ an
accused’. Relying on the trial court’s determination that McDonald was not adverse, and on the State
Supreme Court’s holding that McDonald did not ‘point the finger at Chambers’, that State contends
that Chambers’ constitutional right was not involved . . . The argument that McDonald’s testimony
was not ‘adverse’ to, or ‘against’, Chambers is not convincing. The State’s proof at trial excluded the
theory that more than one person participated in the shooting of Liberty. To the extent that
McDonald’s sworn confession tended to incriminate him, it tended also to exculpate Chambers. And, in
the circumstances of this case, McDonald’s retraction inculpated Chambers to the same extent that it
exculpated McDonald. It can hardly be disputed that McDonald’s testimony was in fact seriously
adverse to Chambers. The availability of the right to confront and to cross-examine those who give
damaging testimony against the accused has never been held to depend on whether the witness was
initially put on the stand by the accused or by the State. We reject the notion that a right of such
substance in the criminal process may be governed by that technicality or by any narrow and
unrealistic definition of the word ‘against’. The ‘voucher’ rule, as applied in this case, plainly interfered
with Chambers’ right to defend against the State’s charges.”
Page 492
The Supreme Court of the USA did not declare the Mississippi rule unconstitutional, but held
that, as applied to the facts of the case, it had violated the constitutional rights of the
accused.
It is submitted that in our law the rule that an accused may not cross-examine his defence
witness unless declared hostile may have to be reconsidered in the light of the accused’s
constitutional right to cross-examine. The constitutional right to a fair trial should be the
ultimate test and not the question of whether the accused has proved the defence witness
“hostile” in the technical sense of the word.
25 4 Rules and Principles Which Govern the Proof and Probative
Value of Previous Inconsistent Statements
The following rules and principles govern the proof or probative value of previous
inconsistent statements — irrespective of whether one is dealing with an opponent’s witness
or one’s own witness:
(a) The witness must — at some stage prior to the attempt to prove her previous
inconsistent statement — be asked whether she has made a prior statement
inconsistent with her testimony in court.
(b) Proof of a previous inconsistent statement may also take place only once the witness
has been given sufficient particulars of the alleged previous inconsistent statement to
designate the occasion on which it was made. [59]
(c) The witness must be given an opportunity of explaining the inconsistency if she admits
having made the statement. [60]
(d) If the witness denies having made the statement, the statement — whether oral or in
writing — must be proved in a proper manner, for example, through witnesses who
heard or recorded it. [61] It is not properly proved if read from the bar. [62]
(e) The common-law rule is that proof of a previous inconsistent statement merely has an
impact on credibility in the sense that inconsistencies may impair the credibility of the
witness concerned: the previous inconsistent statement cannot provide evidence of the
facts stated in it [63] despite the fact that the statement as such is received and marked
as an exhibit upon proper proof thereof. However, in § 25 4 2 below it will be shown
that a
Page 493
court may — in exceptional circumstances and by relying on statutory provisions

regulating hearsay — go beyond the ambit of the common law rule by putting the
contents of a properly proved previous inconsistent statement to substantive use.
(f) The degree to which proof of a previous inconsistent statement affects the credibility of
the witness depends upon the facts. [64] What is the nature of the inconsistency? And
what is the extent thereof?
(g) A witness who is confronted with a previous inconsistent statement should not be
urged to adhere to her previous statement: she should be called upon to speak the
truth. [65]
(h) In S v Tshabalala [66] it was confirmed that where a witness is being cross-examined on
the basis of inconsistencies between his evidence and the statements of other persons
who have not yet testified, such statements may provisionally be used during cross-
examination of the witness, but only if it appears that these other witnesses are
themselves also going to testify either for the prosecution or for the defence. In the
same case it was also stressed that if a witness’s own statement is sought to be used
during her cross-examination, it has first to be established that that
Page 494
statement was properly deposed to by her. In S v Govender and Others [67] Nepgen J
gave the following detailed description of the proper procedure:
“As I have mentioned, in the present matter the cross-examination of the State witnesses,
insofar as it was directed at the contents of their police statements, was done properly. In each
instance the witness was asked to confirm that he had made a statement to the police. The
witness was then asked whether that which he told the policeman was written down; whether it
was read back to him; whether he was asked to confirm the correctness thereof; and whether,
having done so, he was asked to sign, or place his mark, or thumb-print, on the statement. The
witness was then asked to identify, with reference to his signature or mark (except, obviously,
where a thumb-print had been placed on the statement), that the statement in question was in
fact the statement he made. Once confirmation of this had been obtained, counsel proceeded to
go through the whole statement with the witness. After each sentence, or on occasion after a
whole paragraph, had been read to the witness he was asked whether he had in fact said to the
police what had been read to him (and therefore written down). Sometimes the answer was in
the affirmative, other times not. Having gone through this exercise, the witness was then
referred to differences between such witness’ earlier evidence and those portions of the police
statement which he had confirmed reflected what he had told the police. In some instances
these differences were marked, in others the differences could be described as subtle. Where
appropriate, the witness was asked why certain facts mentioned during his evidence did not
appear in the statement, with it being suggested that the reason therefor was that he had not
told the police. The witness was asked why there were such contradictions and/or omissions,
thereby being afforded an opportunity to provide an explanation.”
25 4 2 Substantive use of a previous inconsistent statement: proving

the truth of its contents
In § 25 4 1 (e) above it was pointed out that in terms of our common law a previous
inconsistent statement cannot serve as evidence of the facts stated in the statement: it can
merely impair credibility by proving the inconsistencies between the earlier out of court
statement of the witness and the oral evidence of the witness in court.
However, in S v Rathumbu [68] the Supreme Court of Appeal confirmed the trial court’s
decision that the previous inconsistent statement of a hostile prosecution witness could on
the facts of the case be put to substantive use. In this case the hostile witness, R, was the
sister of the accused. In the course of her oral evidence in court, R denied that she had seen
the accused stabbing the deceased, his wife. However, R’s evidence “was in stark contrast to
the facts she had disclosed in her statement to the police”. [69] In her statement to the
police, made shortly after the event, R claimed that she had witnessed the accused stabbing
the deceased. [70] This previous inconsistent written statement was made voluntarily and was
properly proved in accordance with the rules and principles identified in § 25 4 1 above. [71]
The prosecution then made a successful application to have R declared a hostile witness as
provided for in
Page 495
s 190 of the CPA. [72] R was thereupon “extensively cross-examined on the contents of her
statement” and she “persistently denied its contents to the extent that it implicated the . . .
[accused] . . . in the attack upon the deceased”. [73] In convicting the accused, the trial court
relied on the contents of R’s previous inconsistent statement, having rejected her oral
evidence disavowing the statement. [74]
The main ground of appeal was that the trial court’s reliance on the contents of R’s
previous inconsistent statement to the police — which was “essentially . . . hearsay
evidence” [75] — constituted a material misdirection. Writing for a unanimous full bench,
Ndita AJA pointed out that s 3 of the Law of Evidence Amendment Act 45 of 1988 (which is
cited in full in § 13 3 above) requires a court, in determining whether it is in the interests of
justice to admit hearsay, to have due regard to all relevant factors and “more
specifically . . . the factors mentioned in s 3(1)(c)”. [76] Reference was also made [77] to an
observation made by the Supreme Court of Appeal almost a decade earlier in S v Ndhlovu
and Others to the effect that even though a witness’s disavowal of his prior statement may
bear on the issue of the reliability of the statement at the time it was made, it could not
change the nature of the essential enquiry, namely “whether the interests of justice require
its admission”. [78] Ndita AJA was satisfied that given the totality of the circumstances under
which R had made her statement to the police, the court below had correctly admitted her
statement as evidence of the contents thereof. [79] The most important indicia of reliability
were the following: R’s spontaneous oral responses to the police at the scene “affirm[ed] the
reliability of the original statement in preference to her later disavowal” in court; [80] R’s
“inconsistent evidence at the trial” could be explained on the basis that as the sister of the
accused, she wanted to protect him; [81] the incriminating allegations made by R against the
accused at the scene, “did not attract any protestation” from the accused; [82] “[s]ubstantial
corroboration for the truthfulness” of R’s police statement was present in other evidence
tendered by the prosecution. [83]
The decision of the Supreme Court of Appeal in S v Rathumbu as discussed above, must
also be read with the KwaZulu-Natal High Court decision in
Page 496
S v Mathonsi [84] which was decided some eight months prior to Rathumbu but not referred
to in Rathumba. Mathonsi, too, concerned the previous inconsistent statement of a state
witness, C, who had been declared hostile by the trial court [85] in terms of the procedure
and rules set out in § 25 4 1 above. On appeal the question was whether C’s statement had
“any probative value worth considering during the evaluation and assessment of all the
evidence adduced before the court a quo and, if the answer is in the affirmative, what
weight is to be attached thereupon”. [86] This question inevitably called for a reassessment of
the common law in terms of which C’s statement could only serve to discredit him “but not
as evidence of the facts stated therein” [87] — a rule which was also stated in § 25 4 1 (e)
above.
In addressing this matter, Madondo J (Sishi J concurring) took his cue from the decision of
the Canadian Supreme Court in R v B (KG) [88] where it was held that a prior inconsistent
statement, if found both reliable and necessary, could be admitted as an exception to the
hearsay rule — in which event the contents of the statement could qualify for substantive
use. Having duly noted all the conditions set by the Supreme Court of Canada in R v B (KG)
for admitting a previous inconsistent statement for substantive use purposes, [89] Madondo J
stated: [90]
“I fully subscribe to the view expressed in the R v B (KG) case supra, that the time has come for the
rule, limiting the use of prior inconsistent statements to impeaching the credibility of the witness, to
be replaced by a new rule recognising the changed means and methods of proof in modern society.
This will be in keeping with the development in other democratic societies.”
In Mathonsi C’s statement was also treated as a hearsay statement, [91] which meant that its
admission in terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 could be
considered. Reference was made to the fact that subparas (iv) and (vi) of s 3(1)(c) require a
court to consider both the probative value and the prejudicial effect of an item of
evidence. [92] It was found
Page 497
that C’s statement — which was a voluntary statement [93] — had strong probative value
and, if admitted, could cause no prejudice to the accused given all the circumstances of the
case as well as the safeguards which were present in minimising the normal risks attached
to hearsay evidence: [94]
“Although the witness denied the truth of the facts contained in the statement, the safeguards for
admitting the statement as evidence existed: The witness had made the statement under oath to the
police. Also, as the declarant, he, the witness, testified at the trial on the statement. He was
subjected to full and effective cross-examination by both the prosecution and the defence. He was
thereby afforded an opportunity to explain the inconsistencies in his prior statement and the truth of
the facts contained therein. The purposes of cross-examination are to elicit evidence which supports
the cross-examiner’s case and to cast doubt upon the evidence given for the opposing party. The
police officer who took down the statement also testified as to the circumstances under which the
statement was made and that the witness had personal knowledge of the truth of the facts contained
therein.”
It was accordingly concluded that the trial court was entitled to make substantive use of C’s
statement. [95]
Four general observations should be made in respect of the new approach:
(a) The rule that a previous inconsistent statement can be put to substantive use, is a fact-
sensitive one. In both South African cases discussed above, the previous inconsistent
statements were statements of witnesses who had been declared hostile and each
witness was, therefore, a witness who was “not desirous of telling the truth at the
instance of the party calling him” (see § 25 3 3 above). This type of situation
accentuates or highlights the need for the earlier statement to be received and
considered for substantive purposes, provided its probative value and reliability are
such that it can be received as admissible hearsay on account of the provisions of s 3
(1)(c) of Act Law of Evidence Amendment Act. The interests of justice must prevail.
(b) A court that refuses to admit a prior inconsistent statement for the purpose of putting
it to substantive use, is not precluded from relying on the orthodox common-law rule
to the effect that the statement concerned can be taken into account in determining
credibility once it is has been properly proved and received in terms of the rules and
principles identified in § 25 4 1 above. The two South African cases referred to above,
make it clear that the common-law rule prohibiting the substantive use of a prior
inconsistent statement is no longer an absolute rule. But the other facet of the
common-law rule — in terms of which the statement concerned can be considered for
purposes of assessing credibility — has obviously been left intact. Common sense must
prevail.
(c) The new development provides all bona fide parties and witnesses some form of
protection against efforts to coerce or improperly influence a witness, since a previous
inconsistent statement is no longer for all
Page 498
practical purposes revocable at the will (or even whim) of the witness concerned. [96]
The integrity of the fact-finding process must prevail.

(d) The further development of the new rule should remain within the applicable
constitutional provisions and guarantees, taking into such rights as the right to
challenge evidence. [97] The constitutional fair trial right must prevail.
25 5 Attacking the Credibility of an Accused on the Basis of an

Unconstitutionally Obtained Prior Inconsistent Statement
It is possible that a non-coerced and otherwise admissible statement of an accused must be
excluded on the sole grounds that he was not, prior to police questioning, advised of his
constitutional rights as stipulated in s 35(3) of the Constitution. [98] Such exclusion, if
warranted, takes place in terms of s 35(5) of the Constitution and the evidence so excluded
must in principle remain inadmissible for all purposes. However, the question arises whether
South African courts should interpret and apply s 35(5) in accordance with the so-called
“rule in Harris”: in § 12 5 2 4 above it was pointed out that in Harris v New York [99] the
majority of the Supreme Court of the USA held that an accused’s pre-trial statement which
could have been part of the prosecution’s case were it not for the failure of the police to
have administered the Miranda-warnings, [100] could in cross-examination of the accused be
used by the prosecution for the limited purpose of attacking the credibility of the accused if
the latter’s evidence in chief happens to be inconsistent with such pre-trial statement.
Writing for the majority, Burger CJ held: [101]
“Petitioner’s testimony in his own behalf concerning the events of January 7 contrasted sharply with
what he told the police shortly after his arrest. The impeachment process here undoubtedly provided
valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not
be lost, in our view, because of the speculative possibility that impermissible police conduct will be
encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police
conduct, sufficient deterrence flows when the evidence in question is made unavailable to the
prosecution in its case in chief . . . Every criminal defendant is privileged to testify in his own defense,
or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury . . .
Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and
accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of
the adversary process. Had inconsistent statements been made by the accused to some third person,
it could hardly be contended that the conflict could not be laid before the jury by way of cross-
examination and impeachment . . . The shield provided by Miranda cannot be perverted into a license
to use perjury by
Page 499
way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold,
therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting
statements.”
The decision of the majority in Harris has been criticised on the basis that “the police must
surely interpret the message from Harris as a mixed one which half discourages them from
failing to accord suspects their rights”. [102] It has also been argued that a prior inconsistent
statement obtained in the course of police questioning and in the absence of the
Miranda-warnings, is not necessarily true or accurate and that use of such a statement for
purposes of cross-examination may impede instead of enhance the search for the truth. [103]
The fact that the police might receive the wrong message, is probably the stronger
argument. Indeed, Brennan J — writing for the minority in Harris — observed that the
majority [104]
“today tells the police that they may freely interrogate an accused incommunicado and without
counsel and know that although any statement they obtain in violation of Miranda cannot be used on
the State’s direct case, it may be introduced if the defendant has the temerity to testify in his own
defense. This goes far toward undoing much of the progress made in conforming police methods to
the Constitution.”
In S v Makathini [105] the court had earlier ruled that certain statements to the police were
inadmissible because the accused had not been informed of his rights in terms of s 35 of the
Constitution in circumstances where he should have been so informed. Relying on the
majority decision in Harris, counsel for the prosecution sought permission to cross-examine
the accused with reference to these inadmissible statements. Hurt J refused to allow such
cross-examination. Having noted the essence of the minority judgment in Harris, Hurt J
observed as follows: [106]
“In my view the starting point in relation to any enquiry as to what can and what cannot properly and
fairly be put to a witness in cross-examination must be the rights enshrined in section 35 of the
Constitution, and, in particular, the right to remain silent and the right to legal representation, which
the Constitution requires to be explained carefully and properly to an accused person before any
information is sought to be elicited from him . . . I do not think that we are faced with quite the same
quandary as the majority of judges in the Harris case — namely that if the State is not entitled to put
previous inconsistent statements made to the police to an accused person who elects to give evidence
there will be an implicit encouragement to that person to commit perjury. Our constitutional law and
the application of the New Constitution are, as yet, in comparative infancy. It seems to me that the
solution to the avoidance of contradictory statements being made by the accused and not being
admissible before the Court is in the hands of the police themselves, and once the police get into the
habit of observing the requirements of the Constitution meticulously, the type of problem which
perhaps has arisen in this case may disappear altogether. Certainly I do not think that it is correct for
this Court to start tampering with, or restricting, the limits of admissibility of evidence given by
accused persons to police by making adjustments to the procedures in the course of trial.”
Page 500
In Wesso and Another v Director of Public Prosecutions, Western Cape [107] Erasmus J did not
have to decide on the correctness of the decision in Makathini or the question whether the
majority in Harris should be followed. He did note, however, that it was a controversial issue
and that there are issues of principle and policy which arise and which a trial court — once
appraised of the full factual context — would have to decide. [108]
It must, of course, also be borne in mind that a South African court must decide the issue
on the basis of the duty and discretion [109] which it has in terms of s 35(5) of the
Constitution: Would admission of the statement (the prosecution’s use of the statement for
purposes of challenging credibility) in the course of cross-examination of the accused, render
the trial unfair or otherwise be detrimental to the administration of justice? It is submitted —
in line with the decision in Makhathini — that approval of the majority decision in Harris
would render the trial unfair on the basis that the constitutional privilege against self-
incrimination would be compromised [110] and, therefore, the constitutional right to a fair trial
as set out in § 12 9 2 above. Permitting the prosecution to use the impugned statement for
the limited purposes of cross-examination, would also be detrimental to the administration
of justice in that it would probably encourage police officials not to administer the warnings
required in terms of s 35 of the Constitution. They might ignore constitutional requirements
on the basis that an accused — were he to testify — would under cross-examination have to
explain inconsistencies between his pre-trial statement made during police questioning and
his testimony in court. The development of such a practice will fly in the face of
constitutional provisions and rights.
In R v Calder [111] the Supreme Court of Canada dealt with the problem under discussion.
A statement obtained from the accused in breach of his Charter-right to counsel, was in
terms of s 24(2) of the Charter excluded from the prosecution’s case in chief. The trial judge
refused to permit the prosecution to use the previously excluded statement for purposes of
impeaching the accused’s credibility during cross-examination. The majority of the Supreme
Court agreed, holding that there would be very limited circumstances which
Page 501
would constitute a material change [112] which would warrant reopening the issue once
evidence has been excluded in terms of s 24(2) of the Charter. The Supreme Court also
noted that if use of the statement is seen to be unfair because the statement was obtained
in breach of an accused’s Charter-rights, it is not likely to be viewed as less unfair simply
because the statement was used only to destroy the credibility of the accused. [113]
It should be noted that as far as a co-accused is concerned, different considerations apply.
This much is clear from the decision of Desai J in S v Aimes and Another [114] which was
discussed in § 12 8 6 above. In this case it was held that accused number two could — in
order to protect his constitutional right to a fair trial — cross-examine accused number one
on the latter’s bail evidence which was inadmissible evidence on account of the fact that it
had been obtained in breach of the right to be advised to remain silent. Desai J also ruled,
however, that accused number one’s bail evidence could not be used to prove the truth of its
contents against number one.
As far as real evidence — as opposed to a statement — is concerned, it was noted in
§ 12 5 1 1 (c) above that in the USA real evidence which the prosecutor could on account of
the rule in Mapp (see § 12 5 1) not have produced in the course of presenting the case for
the prosecution, can — for the limited purpose of impeaching credibility — be introduced to
contradict a statement made by an accused in evidence in chief or cross-examination. As far
as could be established, this issue has not arisen in South Africa. Section 35(5) of the
Constitution will have to be applied. It is doubtful whether our courts would follow the rule
as established in the USA. A different approach might be required in respect of a co-accused.
If A and B are co-accused and real evidence obtained by the police in breach of A’s
constitutional right to privacy is excluded in terms of s 35(5), it might very well be in breach
of B’s constitutional right to a fair trial if B were precluded from cross-examining A with
reference to the excluded real evidence if such real evidence exculpates B. If B is permitted
to follow this line of cross-examination, the real evidence should nevertheless remain
inadmissible against A. The real evidence therefore cannot become part of the prosecution’s
case against A, even though the prosecution might gain some benefit if B’s cross-
examination of A happens to have an adverse impact on the credibility of A. [115]
[1] In Hobbs v Tinling 1929 2 KB 1 Scrutton LJ explained (at 19) that cross-examination as to credibility, is in
common-law terms “commonly called cross-examination to credit”.
[2] Grant v SA National Trust and Assurance Co, Ltd & Others 1948 (3) SA 59 (W); Van der Burgh v Guardian
National Insurance Co Ltd 1997 (2) SA 187 (E); S v Ffrench-Beytagh (3) 1971 (4) SA 571 (T); S v Sinkankanka and
Another 1963 (2) SA 531 (A). The rule does not mean that the court must necessarily accept the truth of the answer
given by the witness, nor is the cross-examiner obliged to concede the truth thereof.
[3] 1993 (1) SACR 748 (W). See also § 18 6 above, as well as S v Damalis 1984 (2) SA 105 (T) and Skeen SALJ
431.
[4] At 750d-e.
[5] 1847 1 Exch 91 99. See the discussions of R v Nagrecha 1997 2 Cr App R 401 and R v Funderburk 1990 2 All
ER 482 by Seabrooke “The Vanishing Trick — Blurring the Line between Credit and Issue” 1999 Crim LR 387.
[6] S v Zwane and Others supra 750g (emphasis added).
[7] 1986 83 Cr App R 165.
[8] The evidence was also relevant to determine whether the accused or the witness was the aggressor.
[9] 1921 CPD 36.
[10] At 38.
[11] The plaintiff had sued the defendant for an amount due to him as a result of certain building work. The
defendant pleaded that at the time of the summons the work had not been completed. At the trial the defendant was
cross-examined on the point whether he was legally married and whether he did not have some revolvers in his
possession without a permit.
[12] 1811 2 Camp 637.
[13] Section 6 of the English Criminal Procedure Act of 1865 applies.
[14] Any previous conviction can be proved, irrespective of the fact whether it involved dishonesty or not: Clifford
v Clifford 1961 3 All ER 231. As far as cross-examination with reference to the previous conviction is concerned, legal
professional ethics (as set out in § 18 6 5 7 above) must be borne in mind.
[16] Thomas v David 1836 7 C & P 350.
[17] R v Phillips 1936 26 Cr App R 17.
[18] R v Mendy 1976 64 Cr App R 17 is a case which seems to go slightly beyond “bias” or “prejudice” as an
exception to the general rule. In this case the husband of the accused denied under cross-examination that, whilst
waiting outside court to be called as a defence witness, he had been given information as to testimony given by a
detective. The Court of Appeal confirmed that it was correct to have allowed evidence in contradiction of this denial
as the court (and jury) should not have been kept in ignorance of the alleged behaviour of the husband as a witness.
[19] 1836 7 C & P 350.
[20] As cited by Carter Cases and Statutes on Evidence (1981) 208. Cf Crankshaw v Galloway 1887 5 SC 202,
which is critically discussed by Zeffertt, Paizes & Skeen 763.
[21] See ss 4 and 5 of the English Criminal Procedure Act of 1865. These sections apply by virtue of the provisions
of s 190(1) of the CPA and s 42 of the CPEA. A witness can be cross-examined on an unsworn prior inconsistent
statement. See S v Sebejan and Others 1997 (1) SACR 626 (W).
[22] Both ss 4 and 5 of the English Criminal Procedure Act of 1865 require that the previous statement must be
“relative to the subject-matter of the indictment or proceedings”.
[23] See generally R v Birch 1924 18 Cr App R 172. See further § 25 4 1 (e) below and compare § 25 4 2 below.
[24] R v Adamstein 1937 CPD 331; R v Richardson & Longman 1968 2 All ER 761. In S v Bashing and Others 1997
(2) SACR 390 (W) 393e Cloete J accepted that the rule under discussion is by virtue of s 252 of the CPA part of the
common law of South Africa. However, he also subjected the rule to a critical analysis (at 393c-d): “The notion that
a man with a bad reputation is more likely to perjure himself than a man with a good reputation, does not accord
with contemporary legal thinking Accordingly, it seems that evidence of general reputation, led solely for the purpose
of impugning credit, will usually be of little assistance. Evidence of individual opinion as to another witness’s
character based on personal knowledge may also be of little value.”
[25] See generally § 1 3 2 above.
[26] See generally Marler The Hostile Witness in English and South African Law of Evidence (unpubl LLM thesis,
Univ of Stellenbosch 1990) 14-26.
[27] See generally Chambers v Mississippi 410 US 284 (1973) at 296 and § 25 3 4 below.
[28] See generally § 1 3 2 n 23 above.
[29] See generally Chambers v Mississippi 410 US 284 (1973) at 296 and § 25 3 4 below.
[30] 1681 8 How St Tr 549 (cited by Marler The Hostile Witness in English and South African Law of Evidence 17).
[31] 1918 TPD 234 237 (emphasis added).
[32] Ewer v Ambrose 1825 3 B & C 746. In this case Littledale J said (as cited by Carter Cases and Statutes on
Evidence 195): “Where a witness is called by a party to prove his case, and he disproves that case . . . the party is
still at liberty to prove his case by other witnesses. It would be a great hardship if the rule were otherwise, for if a
party had four witnesses upon whom he relied to prove his case, it would be very hard that, by calling first the one
who happened to disprove it, he should be deprived of the testimony of the other three . . . The order in which the
witnesses happen to be called ought not, therefore, to make any difference . . .” The mere fact that a witness has
failed to support the case of the party who called him does not entitle the court to disregard the evidence of the
witness on this ground alone. See R v Ratner 1910 TPD 1327 and Engelbrecht 1988 De Rebus 105.
[33] 1990 (2) SACR 136 (C). See also § 5 3 3 above.
[34] See § 8 3 above.
[35] At 143d-e.
[36] At 114c.
[37] See Toohey v Metropolitan Police Commissioner 1965 1 All ER 506, where it was held that medical evidence
(tendered by the defence) was wrongly excluded as such evidence related to the mental illness which could have
shown that the witness (the complainant) was incapable of giving reliable evidence.
[38] See generally Tapper Cross & Tapper on Evidence 11 ed (2007) 331-333 for a discussion of the early
common-law position.
[39] Cf s 5 of the English Procedure Act of 1865 as cited in § 5 2 above and which applies in respect of proof of a
previous inconsistent statement made by an opponent.
[40] The common law applies as a result of the provisions of s 190(1) of the CPA and s 42 of the CPEA.
[41] See generally S v Steyn en Andere 1987 (1) SA 353 (W) 355C-D.
[42] S v Steyn en Andere supra 355F. An attempt to refresh the memory of the witness with reference to his
earlier out-of-court statement, is not equivalent to an attempt to treat the witness as a hostile witness. See S v
Hancock (unreported SCA decision, case no 333/03, 2 June 2004) at [11].
[43] S v Steyn en Andere supra 358G-H.
[44] A test put forward by Stephen Digest of the Law of Evidence 12 ed Article 147 — as cited by Zeffertt, Paizes &
Skeen 749 and applied in S v Steyn en Andere supra 357H and S v Hancock supra at [11]. See also Keane The
Modern Law of Evidence 6 ed (2006) 194.
[45] Scoble The Law of Evidence 3 ed (1952) 352.
[46] S v Steyn en Andere supra 355H.
[47] Scoble The Law of Evidence 352.
[48] Jabaar v South African Railways and Harbours 1982 (4) SA 552 (C). See also Nyadeni v Road Accident Fund
(unreported WLD decision, case no 06/26259, 27 Nov 2007).
[49] 1985 (2) SA 155 (D) 160C-D.
[50] 1987 (1) SA 353 (W) 357C-D.
[51] At 357A-B.
[52] Jabaar v South African Railways and Harbours supra 555D; S v Steyn en Andere supra 358F.
[53] S v Steyn en Andere supra 357F.
[54] R v Wellers 1918 TPD 234.
[55] City Panel Beaters v Bhana and Sons supra 160H-J.
[56] See generally Van der Merwe 1995 Obiter 194 196.
[57] 410 US 284 (1973).
[58] At 296-8 (emphasis in the original).
[59] Oosthuizen v Stanley 1938 AD 322 332-3.
[60] See, for example, S v Mika & others 1973 (2) PH H68 (R) and S v Muhlaba and Others 1973 (3) SA 141 (R).
In both these cases reliance was placed on R v Michael George 1945 (2) PH H255 (N) where Selke J took the view
that “credibility cannot properly be estimated unless [the witness] is given an opportunity of explaining how the
inconsistency came about, for he may be able to explain it to the satisfaction of the court” (at 261). Selke J also
noted that “it would be extremely unfair to a witness if he were merely faced with a statement which he admitted to
be his and to be inconsistent with his present testimony . . . and . . . the matter were then carried no further” (ibid).
[61] R v Kupeka and Others 1957 (1) SA 399 (A).
[62] R v Tladi 1924 CPD 545.
[63] Rex v Beukman 1950 (4) SA 261 (O); R v Hoskisson 1906 TS 502; R v Deale & others 1929 TPD 259; S v
Mathonsi 2012 (1) SACR 335 (KZP) at [23]. On the origin of this rule and the hearsay dangers involved, see
Bellengère & Walker (2013) 26 SACJ 175-8; Naude (2013) 26 SACJ 55 at 59-64.
[64] International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1) 1955 (2) SA 1 (W) 8. In S v Bruiners
en ’n Ander 1998 (2) SACR 432 (SE) Horn AJ said (at 437g-438a): “Ek is van mening dat ten einde ’n Staatsgetuie
te diskrediteer sover dit sy getuieverklaring betref, dit steeds ’n vereiste is dat daar ’n wesenlike afwyking deur die
getuie van sy getuieverklaring moet wees alvorens ’n negatiewe afleiding gemaak kan word. Nie-wesenlike afwykings
in ’n getuieverklaring sal nie noodwendig afbreuk doen aan die gehalte van ’n Staatsgetuie se getuienis as ’n geheel
nie. Die doel van ’n polisieverklaring is om besonderhede van ’n misdaad te bekom sodat daar besluit kan word of
die beskuldigde vervolg moet word. Die getuieverklaring is nie om die getuie se getuienis in die hof vooruit te loop
nie. Dit is vergesog om van ’n getuie te verwag om in sy getuieverklaring reeds presies dieselfde weergawe te
verskaf as wat hy in die ope hof gaan getuig. Getuieverklarings bly nuttige ammunisie vir kruisondervraging, maar
dan moet dit in konteks oorweeg word en sal die aard en omvang van die afwykings in geheel in ag geneem moet
word alvorens dit gesê kan word dat ’n getuie se getuienis as gevolg van sulke afwykings verwerp moet word.” In S
v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) Olivier JA set out four broad principles (at 593e-594h) which are
accurately summarised in the headnote which reads as follows: “The mere fact that it is evident that there are self-
contradictions must be approached with caution by a court. Firstly, it must be carefully determined what the
witnesses actually meant to say on each occasion, in order to determine whether there is an actual contradiction and
what is the precise nature thereof. In this regard the adjudicator of fact must keep in mind that a previous statement
is not taken down by means of cross-examination, that there may be language and cultural differences between the
witness and the person taking down the statement which can stand in the way of what precisely was meant, and that
the person giving the statement is seldom, if ever, asked by the police officer to explain their statement in detail.
Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects
the credibility of a witness. Non-material deviations are not necessarily relevant. Thirdly, the contradictory versions
must be considered and evaluated on a holistic basis. The circumstances under which the versions were made, the
proven reasons for the contradictions, the actual effect of the contradictions with regard to the reliability and
credibility of the witness, the question whether the witness was given a sufficient opportunity to explain the
contradictions – and the quality of explanations – and the connection between the contradictions and the rest of the
witness’ evidence, amongst other factors, to be taken into consideration and weighed up. Lastly, there is the final
task of the trial Judge, namely to weigh up the previous statement against the viva voce evidence, to consider all the
evidence and to decide whether it is reliable or not and to decide whether the truth has been told, despite any
shortcomings.” See also S v Mostert 2006 (1) SACR 560 (N) 570f-h.
[65] S v N 1979 (4) SA 632 (O). At any rate, if it is a party’s own witness who has not been declared hostile, any
form of cross-examination is prohibited.
[66] 1999 (1) SACR 163 (T) 169a.
[67] 2006 (1) SACR 322 (E) 327b-f.
[68] 2012 (2) SACR 219 (SCA).
[69] At [5].
[70] At [5] and [11].
[71] At [6] and [11.3].
[72] At [5].
[73] At [6].
[74] At [7].
[75] At [8]. The Supreme Court of Appeal accepted without analysis that R’s prior inconsistent statement was
hearsay. Hearsay is defined by s 3(4) of the Law of Evidence Amendment Act 45 of 1988. See § 13 4 above. Paizes
in Du Toit et al Commentary at 23-22F argues that R’s previous statement was hearsay ‘simply because of the
express wording of s 3(4): its probative value depends upon a person other than the person who gives evidence of
the prior statement”. Emphasis in the original. See further S v Mathonsi 2012 (1) SACR 335 (KZP) at [39]-[41] and
compare Naudé (2013) 26 SACJ 55 at 59-60.
[76] At [10].
[77] At [10].
[78] 2002 (2) SACR 325 (SCA) at [31].
[79] S v Rathumbu supra at [11].
[80] At [112].
[81] At [12].
[82] At [112].
[83] At [11].
[84] 2012 (1) SACR 335 (KZP). For useful comparative discussions of Mathonsi and Rathumbu supra, see
Bellengère & Walker (2013) 26 SACJ 175; Naudé (2013) 26 SACJ 55 and Paizes in Du Toit et al Commentary 23-22C
to 23-22I. All these commentators accept — albeit at times for different reasons — that the new approach adopted in
Mathonsi and Rathumbu provides a welcome break from the traditional common-law rule (see § 25 4 1 (e) above),
provided the reliability of the previous inconsistent statement can be properly assessed and established.
[85] At [22].
[86] At [20].
[87] At [23].
[88] [1993] 1 SCR 740. For a discussion of this case in the context of Mathonsi supra, see Paizes in Du Toit et al
Commentary 23-22C to 23-22E.
[89] These conditions were summarized as follows by Madondo J in Mathansi supra at [28]: “[F]irst, the evidence
contained in the prior statement is such that it would be admissible if given in court; secondly, the statement has
been made voluntarily by the witness and is not the result of any undue pressure, threats or inducements; thirdly,
the statement was made in circumstances which, viewed objectively, would bring home to the witness the
importance of telling the truth; fourthly, the statement is reliable in that it has been fully and accurately transcribed
or recorded; and fifthly that the statement was made in circumstances where the witness would be liable to criminal
prosecution for giving a deliberately false statement.”
[90] At [33].
[91] At [39]-[42].
[92] At [48].
[93] At [43].
[94] At [46]. Emphasis added.
[95] At [52].
[96] Paizes in Du Toit et al Commentary 23-22G.
[97] Mathonsi supra at [44] and [51].
[98] See generally §§ 12 9 1 to 12 9 4 above.
[99] 401 US 222 (1971). For a full discussion of the so-called “rule in Harris”, see Niesing The Admissibility of
Unconstitutionally Obtained Evidence: Issues Concerning Impeachment (unpubl LLM thesis, Univ of Stellenbosch,
2005) at 58-63.
[100] These warnings are set out in § 12 5 2 above.
[101] At 225-6.
[102] Mirfield Silence, Confessions and Improperly Obtained Evidence (1997) 334.
[103] Anon “Admissibility of Unlawfully Obtained Statement for Impeachment Purposes” 1971 85 Harvard LR 44
48.
[104] Harris v New York supra 232.
[105] Unreported decision of the DCLD, case no CC 73/97, dated 21 Nov 1997.
[106] At 3-4 of the typed judgment.
[107] 2001 (1) SACR 674 (C).
[108] At 685b.
[109] See §§ 12 8 and 12 9 supra.
[110] There is merit in the following arguments by Millenbach “Impeachment of a Defendant-witness by the Use of
Illegally Obtained Statements: From Walder to Harris — The Exception Becomes the Rule” 1972 22 Syracuse LR 685
713-4: “The use of prior inconsistent statements, obtained through violations of Miranda, for impeachment on
matters related to the crime being charged, constitutes a form of self-incrimination. Where the exclusionary rules
deny the primary use of such evidence, the policies behind those rules are negated by its admission through the
‘back door’ of impeachment. It is fallacious to resort, under the pretext of seeking the truth, to evidence which the
government should not have initially procured. For these reasons, the impeachment use of such statements should
be strictly limited to situations in which the defendant has purposefully waived objection to them, as where he
introduces character evidence inconsistent with such evidence, or seeks to use it on his own behalf.” For a further
and broader critical analysis of Harris v New York supra, see Dershowitz & Ely “ Harris v New York: Some Anxious
Observations on the Candor and Logic of the Emerging Nixon Majority” 1971 80 Yale LJ 1198.
[111] 1996 46 CR 4th 133 (SCC). For a general critical comment on this case, see Rose “Calder Successes will be
Rare and the Procedure Uncertain” 1996 46 CR 4th 151.
[112] Scott “Calder — The Charter Trumps the Truth-seeking Tool of Impeaching the Accused with a Prior
Inconsistent Statement” 1996 46 CR 4th 161 speculates as follows as to what a change in circumstances could be (at
166): “Returning then to the question of what change in circumstances could satisfy the new threshold established
by the Supreme Court, by way of example, it would perhaps require an accused testifying in his evidence-in-chief
that he lied during his voir dire testimony, that he was given his Charter rights, and did indeed understand that he
had a right to speak to a lawyer before he gave a statement to the police. The Crown could then submit that the
accused had misled the court and accordingly the fair trial interests would suggest that the Crown now has a right to
cross-examine the accused on his prior statement. Scenarios of this nature would be so rare in my view that for all
practical purposes, the door is now closed on the use of prior inconsistent statements held to be Charter inadmissible
to impeach the credibility of the accused.”
[113] R v Calder supra 147.
[114] 1998 (1) SACR 343 (C).
[115] If the procedure as proposed in the text is unacceptable or if it might cause prejudice to either A or B, A or B
might apply for a separation of trials as provided for in s 157(2) of the CPA.
Page 503
Section I
Proof Without Evidence
26 Formal Admissions –P J Schwikkard and S E van der Merwe

27 Judicial Notice –P J Schwikkard and S E van der Merwe
28 Rebuttable Presumptions of Law –P J Schwikkard
29 A Constitutional Perspective on Statutory Presumptions –P J Schwikkard
Page 505
Chapter 26
Formal Admissions
P J Schwikkard and S E van der Merwe
26 1 Introduction
26 5 Criminal Proceedings: The Common Law and Section 220 of the CPA
26 5 1 The effect and withdrawal of a formal admission in criminal proceedings
26 5 5 Formal admissions of facts outside the maker’s personal knowledge
26 1 Introduction
The general rule is that all relevant facts must be proved on the basis of evidence presented
by the parties. However, there are several exceptions to this rule. Evidence need not be
adduced to prove a fact where a formal admission is made by one of the parties or where
the court takes judicial notice of a fact. [1] The application of a presumption of law may also
have the effect of dispensing with the necessity to adduce evidence pertaining to a particular
fact. [2]

For the purposes of trial a party may formally admit one or more facts. These facts then no
longer need to be proved by her adversary. [3] Time and costs are saved. [4]
Page 506
In S v Kuzwayo [5] the court held that a party cannot employ a formal admission as a
means of getting on record something which the opponent does not propose to make part of
his case. The court also noted that when the state elects to accept an admission then the
admission constitutes sufficient proof of every fact which “it covers”. [6] In S v Groenewald [7]
|the court was called upon to interpret admissions placed on record by the accused’s legal
representative as common cause between the state and the defence. The court held that an
admission “does not stand in isolation” [8] and must be interpreted in the circumstances of
the case. Cameron JA noted the rule of interpretation in terms of which an ambiguous
admission made by the accused should be interpreted in favour of the accused. [9] However,
the court found that this rule was also subject to a contextual analysis and held that where
the admission is tendered and formulated by the accused it would be apposite to apply a
potentially competing rule of interpretation namely, that written provisions should be
“interpreted against the party drafting them”. [10]

It is necessary to distinguish between formal and informal admissions. [11] An informal
admission is usually made out of court and merely constitutes an item of evidence which can
be contradicted or explained away. The weight accorded by the court to an informal
admission will vary according to the surrounding circumstances. [12] In contrast a formal
admission is generally made in the pleadings or in court and is considered to be “conclusive
proof” of the fact admitted. Formal admissions are binding on their makers and normally
cannot be withdrawn or contradicted unless certain legal requirements have been
satisfied. [13] But the maker of an informal admission is always free to lead evidence to
contradict such an admission or explain it away.
Whilst formal admissions serve to narrow down the issues, informal admissions frequently
give rise to additional issues, for example, the question whether they were made freely and
voluntarily. [14]
A party must intend to make a formal admission and the existence of the requisite
intention will be determined by means of a subjective test. In contrast the maker of an
informal admission need not even be aware that she is making an admission. [15]
Page 507

Clearly a formal admission has important and serious evidential implications for its maker.
Consequently, in both civil and criminal proceedings the courts require that before an
admission is treated as a formal admission the maker must intend the admission to be an
admission of a fact which she does not wish to dispute. In AA Mutual Insurance Association
Ltd v Biddulph and Another [16] Trollip JA held that “it must clearly and unequivocally appear
from the pleadings that the alleged admission has been made expressly, or by necessary
implication, or according to rule 22(3) by omitting to deny or deal with the relevant
allegation of fact in the plaintiffs claim”. [17]
In civil proceedings a formal admission can be made in the pleadings or at the trial. Section
15 of the CPEA provides that “[i]t shall not be necessary for any party in any civil
proceedings to prove, nor shall it be competent for any such party to disprove any fact
admitted on the record of such proceedings”. Rule 22(2) of the Uniform Rules of
Courtrequires the defendant in his plea “either [to] admit or deny or confess and avoid all
material facts alleged” by his adversary. This rule must be read together with rule 22(3),
which provides that “[e]very allegation of fact in the combined summons or declaration
which is not stated in the plea to be denied or to be admitted, shall be deemed to be
admitted”.

In Whittaker v Roos; Morant v Roos [18] Wessels J held that the court was reluctant to deny a
party the opportunity to amend its pleadings. The aim and function of the court was to do
justice between the parties. It should therefore not base its decision on admitted facts which
it knew to be wrong. [19] The Appellate Division in S v Daniels en ’n Ander [20] held that in
both civil and criminal cases the court has a discretion to relieve a party from the
consequences of a formal admission made in error. [21] Before a civil litigant will be granted
leave to amend its pleadings it must establish (1) that a bona fide mistake was made; and
(2) that
Page 508
the amendment will not cause prejudice to the other side which cannot be cured by an
appropriate order as to costs. In President-Versekeringsmaatskappy Bpk v Moodley [22]
Hiemstra J held that amendments involving a withdrawal of an admission should be treated
on the same basis as all other amendments. However, he noted that [23]
“the withdrawal of an admission is usually more difficult to achieve because (i) it involves a change of
front which requires full explanation to convince the court of the bona fides thereof, and (ii) it is more
likely to prejudice the other party, who had by the admission been led to believe that he need not
prove the relevant fact and might, for that reason, have omitted to gather the necessary evidence”.
A bona fide mistake would, for example, be an error of judgment such as a failure to
appreciate the crucial nature of the fact formally admitted. [24] The mere fact that withdrawal
may defeat the opponent’s claim or defence is not a matter amounting to prejudice in the
legal sense. [25]
In S v Mbelo [26] the court held that a party is bound by admissions made by its legal
representative unless the legal representative has not been properly instructed or “the
admission was made as a result of a bona fide mistake”. [27] As with other admissions an
admission by a legal representative will “constitute sufficient (albeit not conclusive) proof of
the admitted fact(s).” [28] However, an admission made during counsel’s address will not
ordinarily constitute a formal admission. [29]
The court still retains a discretion to grant relief to a party where the pleadings were
drafted ineptly or with insufficient precision. See, for example, ABSA Bank Ltd v Blumberg
and Wilkinson, [30] where the court held that Supreme Court rule 22(3), which provides that
every allegation of fact “which is not stated in the plea to be denied or to be admitted, shall
be deemed to be admitted”, could not be applied “so as to deprive a party of a defence
which is plainly, though perhaps imprecisely, raised on the pleadings”. [31]
Once a formal admission has been withdrawn it is no longer binding on the maker.
However, it may still be taken into account as an item of evidence. [32]
Page 509
This merely means that the initial making of the formal admission and the circumstances
which led to its withdrawal may be considered for whatever probative value they might
have. [33]

A party who wishes to withdraw a formal admission should present oral evidence or evidence
by way of affidavit in order to satisfy the requirements set out in the previous paragraph. [34]
In Brummund v Brummund’s Estate [35] the withdrawal of a formal admission made in an
affidavit during application proceedings was in issue. The court held that “the applicant was
obliged to give a full and satisfactory explanation on affidavit as to how the admissions came
to be made and, if they were made in error, to apply formally for their withdrawal. [36] It was
insufficient to instruct counsel to state from the Bar that a mistake had been made and that
the admissions would be ignored.” [37] However, an admission may not always require a
formal withdrawal. [38] For example, in Kevin and Lasia Property Investment CC and Another
v Roos NO and Others [39] the court held that in the circumstances a formal withdrawal was
not required as “the admission amounted to no more than an election not to pursue a
particular line of argument on the available facts”. There was, furthermore, no evidence of
mala fides or prejudice to the opposing party.
26 5 Criminal Proceedings: The Common Law and Section 220
of the CPA
At common law the defence was unable to make any formal admissions. [40] However, the
present position is regulated by statute. Section 220 of the CPA provides that an accused or
her legal adviser or the state may in criminal proceedings admit any fact placed in issue at
such proceedings and any such admission shall be “sufficient proof of such fact”. [41] Section
220 used to contain no reference to the state because the state can in terms of our common
law make a formal admission. [42] This explains why it was always in practice accepted that
the state could bind itself by way of an admission. [43] Section 12 of Act 86 of 1996 amended
s 220 by making provision for formal admissions by the state. This amendment merely
confirms the common-law position.
Page 510
26 5 1 The effect and withdrawal of a formal admission in criminal

proceedings
In S v Seleke en ’n Ander [44] it was held that an admission made in terms of s 220 of the
CPA has the effect that the accused cannot later allege that what she admitted must still be
proved by the state. The court found that the words “sufficient proof” in s 220 absolved the
state from the burden of proving in any other manner the particular fact which has been
admitted, unless the state, for special reasons, wished to adduce before the trial court any
further evidence concerning the admitted fact. In this decision it was also said that
“sufficient proof” does not amount to “conclusive proof” and can later be rebutted by the
accused, for example, on the grounds of duress or mistake or by other legally acceptable
facts. Cloete JA in S v Van der Westhuizen [45] described the process for withdrawing an
admission as follows:
“[T]he minimum that an accused, who wishes to lead evidence or advance an argument inconsistent
with a formal admission in terms of s 220, would first have to show . . . is that there is an
explanation, consistent with bona fides, why the admission was made in the first place; and why he or
she now wishes to resile from it . . . a court will not in a criminal matter close its eyes and ears to the
truth and convict an accused based on an admission where the admission is clearly wrong.” [46]
In S v Sesetse en ’n Ander [47] it was also held that if the formal admission is still standing at
the end of the trial, it becomes “conclusive proof” in respect of the fact to which the
admission has reference.
It is submitted that cases like S v Mjoli and Another, [48] S v Shabalala [49] and S v Malebo
en Andere [50] should be read subject to S v Sesetse en ’n Ander and S v Van der Westhuizen
supra.
As in civil cases, once a formal admission has been withdrawn the fact that it was made in
the first place will be an item of evidence for consideration by the court. The weight that will
attach to such an item of evidence will depend on the accused’s explanation as to why it was
made. [51]
A formal admission is binding on the maker only in respect of the proceedings at which it
is made. However, at other proceedings it may be proved against the maker in the same
way as any other informal admission. [52] A formal admission made in terms of s 220 is not
binding on a co-accused. [53]

A plea of guilty requires that an accused admit all the allegations against her and therefore
places nothing in dispute. Paizes notes that case law supports the view that s 220 does not
apply once a plea of guilty has been entered because “a plea of guilty constitutes an
admission of every material fact alleged in the charge [and
Page 511
therefore] a formal admission would be tautologous”. [54] However, s 112(1)(b) of the CPA
provides, inter alia, that upon a plea of guilty the presiding officer should, in certain
circumstances, question the accused with reference to the alleged facts of the case in order
to ascertain whether he admits the allegations in the charge to which he has pleaded
guilty. [55] Section 113(1) of the CPA stipulates that if the court, at any stage of the
proceedings under s 112 and before sentence is passed, is in doubt whether the accused is
in law guilty of the offence to which he has pleaded guilty or it is alleged or appears to the
court that the accused does not admit an allegation in the charge or that the accused has
incorrectly admitted any such allegation or that the accused has a valid defence to the
charge, the court should record a plea of not guilty and require the prosecutor to proceed
with the prosecution. [56] A proviso to s 113 is to the effect that any allegation — other than
an allegation referred to above — admitted by the accused up to the stage at which the
court records a plea of
Page 512
not guilty shall in any court stand as proof of such allegation. [57] Formal admissions are
therefore established in this manner.
An unrepresented accused must have his rights fully explained to him before a plea of
guilty will be properly admitted. [58]

Section 115(1) of the CPA provides that where an accused pleads not guilty the court may
ask him whether he wishes to make a statement indicating the basis of his defence. If the
accused makes no statement or if his statement is not clear as to what extent he admits or
denies the issues raised by the plea, the court may question him to establish which
allegations are in dispute. [59] Section 115(2)(b) provides, inter alia, that the court shall
enquire whether an allegation which is not placed in issue may be recorded as an admission
and, if the accused consents, the admission can be recorded as a formal admission in terms
of s 220 of the CPA. [60] Facts admitted in this manner are then placed beyond dispute. [61]
Where the accused does not consent to an admission being recorded the admission will be
treated as an informal admission. [62]

In S v Mdladla [63] it was said that it is absolutely necessary that formal admissions be
meticulously and unequivocally made to obviate any doubt or misunderstanding as to which
matters thereafter remain in dispute.
An accused need not assist the state in discharging its burden of proof. It follows that an
unrepresented accused should be warned by the court that she is under no obligation to
make a formal admission. [64] It is necessary that a similar warning be given with regard to
admissions made in terms of s 115(2)(b) of the CPA and that a full record of how the
accused’s rights were explained should appear from the record. [65]
Page 513
26 5 5 Formal admissions of facts outside the maker’s personal

knowledge
The maker of a formal admission need not necessarily have personal knowledge of the facts
which he is prepared to admit. [66] However, the courts take a particularly cautious approach
where the accused has no legal representation. In S v Adams en Tien Ander Soortgelyke
Sake [67] it was held that a court may not simply accept an accused’s admission of an
unknown fact. Before a court can be satisfied of the accused’s guilt in such circumstances
there must be additional grounds on which the court can rely to establish that the admitted
fact is true. In S v Mavundla [68] it was said that where an accused who lacks legal
representation makes a formal admission of a fact which is beyond the range of his personal
knowledge the presiding officer, before accepting the formal admission, should satisfy
himself that the accused’s decision to make it has been taken with full understanding of its
meaning and effect. The court noted in S v Ndlela; S v Janjie; S v Jonas; S v Macgregor; S v
Soobramoney; S v Mazeka; S v Naidoo [69] that “[a]lthough there is no legal rule that an
accused cannot admit something which is beyond his personal knowledge, the weight of
such an admission will no doubt depend upon the facts and circumstances of a particular
case”.
Informal admissions of facts outside a party’s knowledge are of course admissible in civil
as well as criminal proceedings. [70] However, the weight to be attached to such admissions
will necessarily depend upon the particular circumstances of each case.

This section provides for a fairly elaborate process in terms of which a prosecutor can, prior
to trial, attempt to secure formal admissions in those criminal cases where an accused has a
legal representative. Section 212B has not been a success and it is hardly ever used in
practice.

Questions put in cross-examination may be of such a nature as to involve an explicit
assertion of fact by the cross-examiner. For example, the legal representative of an accused
might put to a state witness that the accused will say that she (the accused) was the driver
of the motor vehicle at the alleged place and time, but that she was not involved in any
accident. In S v Magubane [71] it was said that such assertions, for example, the driving of
the vehicle and the presence of the accused at the scene, are to be accepted as unequivocal
Page 514
admissions of the facts so asserted. A statement that the accused was not involved in the
accident cannot be an admission as it is not a fact unfavourable to the accused. [72]
In S v W [73] it was held that assertions which amount to admissions and which are
deliberately and specifically made by the cross-examiner during the course of her cross-
examination require no formal proof before they may be used against the party concerned.
It would seem as if this type of admission should for all practical purposes be treated as a
formal admission. [74] An implicit assertion in the course of cross-examination, can amount to
“an unequivocal informal admission by implication . . . requiring no formal proof”. [75]

[2] See chs 28 and 29 below.
[3] See S v Daniels en ’n Ander 1983 (3) SA 275 (A); S v Groenewald 2005 (2) SACR 597 (SCA) at [33] and Sher
and Others NNO v Administrator, Transvaal 1990 (4) SA 545 (A) 554-5.
[4] Keane The Modern Law of Evidence 6 ed (2007) 713 suggests that lawyers owe a duty to their clients to
consider whether formal admissions can be made. Mullins & Da Silva Morris: Technique in Litigation 6 ed (2010) at
25 state as follows: “Admissions may be made deliberately and formally by an attorney or counsel at any stage of
the litigation with the object of saving time and money by rendering it unnecessary to call witnesses to prove
matters which are not really in dispute. The rules of court dealing with pre-trial conferences are designed for this
very purpose. . . The framers of the rules considered that if the legal representatives were compelled to come face to
face and discuss matters which the one or the other thought to be beyond dispute the process of litigation might be
streamlined. Those meetings lead to admissions which are normally recorded and are the basis of the trial.”
[5] 1964 (3) SA 55 (N).
[6] At 57.
[7] Supra.
[8] At 605f.
[9] See also S v Maweke and Others 1971 (2) SA 327 (A).
[10] At [39]. See also Paizes in Du Toit et al Commentary 24-81.
[11] See also § 16 1 above.
[12] See Murphy A Practical Approach to Evidence 10 ed (2008) 298.
[13] See § 26 4 1 below.
[14] See § 16 2 above.
[15] See Naik v Pillay’s Trustee 1923 AD 471; Wigmore para 1049.
[16] 1976 (1) SA 725 (A) at 375.
[17] See also Gordon v Tarnow 1947 (3) SA 525 (A); Rance v Union Mercantile Co Ltd 1922 AD 312. A similarly
cautious approach is adopted in criminal cases. See, eg, Rex v Van der Merwe 1952 (1) SA 143 (SWA); S v Mavundla
1976 (4) SA 731 (N). For an example of a criminal case where it was held that an admission had been made by
necessary implication, see S v Maleka 2005 (2) SACR 284 (SCA).
[18] 1911 TPD 1092 at 1102-3.
[19] See Frosso Shipping Corporation v Richmond Maritime Corporation (Ideomar SA Intervening) 1985 (2) SA
476 (C) 485D, where the court referred with approval to the following passage from Canaric NO v Shevil’s Garage
1932 TPD 196 at 199: “[The court may] disregard an admission made in the pleadings where it is clear after a full
investigation that this admission is contrary to the facts and where injustice will result from an adherence to the
admission.” See also Fourie v Sentrasure Bpk 1997 (4) SA 950 (NC). Cf Dinath v Breedt 1966 (3) SA 712 (T); Turbo
Prop Service Centre CC v Croock t/a Honest Air 1997 (4) SA 758 (W); Fourie v Sentrasure Bpk 1997 (4) SA 950
(NC).
[20] 1983 (3) SA 275 (A) at 298H.
[21] See also Gordon v Tarnow 1947 (3) SA 525 (A).
[22] 1964 (4) SA 109 (T).
[23] At 110-11.
[24] See, eg, Fleet Motors (Pty) Ltd v Epsom Motors (Pty) Ltd 1960 (3) SA 401 (N); S v Seleke en ’n Ander 1980
(3) SA 745 (A).
[25] Zarug v Parvathie, NO 1962 (3) SA 872 (D).
[26] 2003 (1) SACR 84 (NC) at [10].
[27] At [10.2]. See also Sos Kinderdorf International v Effie Lentin Architects 1993 (2) SA 481 (Nm).
[28] At [10.3]. See also S v Seleke en ’n Ander supra; S v Sesetse en ’n Ander 1981 (3) SA 353 (A).
[29] Saayman v Road Accident Fund 2011 (1) SA 106 (SCA). See also Standard Bank of SA Ltd v Minister of Bantu
Education 1966 (1) SA 229 (N); Kevin and Lasia Property Investment CC and Another v Roos NO and Others 2004
(4) SA 103 (SCA).
[30] 1995 (4) SA 403 (W) at 408I, 409D-E.
[31] See also Robinson v Randfontein Estates Gm Co Ltd 1925 AD 173 198. Cf S v Mbelo supra at [10.6] in which
the court held that a legal representative’s incompetence or “lack of knowledge of the law” was not a basis on which
to “attack the admissions”.
[32] S v Mbothoma en ’n Ander 1978 (2) SA 530 (O).
[33] A clear misunderstanding between lawyer and client should obviously have no consequences.
[34] Sliom v Couzyn 1927 TPD 438.
[35] 1993 (2) SA 494 (Nm).
[36] See Dinath v Breedt 1966 (3) SA 712 (T); Birgin Bower Investments (Pty) Ltd v Marketing International 2003
(3) SA 382 (W).
[37] At 498E (emphasis in the original). See also Sliom v Couzyn 1927 TPD 438.
[38] Whether an explanation from the bar might be considered sufficient in certain circumstances, remains an
open question. See, eg, Watersmeet (Pty) Ltd v De Kock 1960 (4) SA 734 (E) 736B.
[39] 2004 (4) SA 103 (SCA) at [12].
[40] R v Thornhill 1838 8 C & P 575; 173 ER 624.
[41] See further generally Paizes in Du Toit et al Commentary 24-79.
[42] Richings 1975 SALJ 246 247.
[43] S v Davidson 1964 (1) SA 192 (T) 194. Cf S v Dingoos 1980 (1) SA 595 (O).
[44] 1980 (3) SA 745 (A).
[45] 2011 (2) SACR 26 (SCA) at [37].
[46] See also S v Daniels en ’n Ander 1983 (3) SA 275 (A).
[47] 1981 (3) SA 353 (A).
[48] 1981 (3) SA 1233 (A).
[49] 1986 (4) SA 734 (A).
[50] 1979 (2) SA 636 (B).
[51] See Rex v Kumalo and Another 1930 AD 193.
[52] See Zeffertt, Paizes & Skeen 789.
[53] See S v Long 1988 (1) SA 216 (NC); Paizes in Du Toit et al Commentary 24-81.
[54] Paizes in Du Toit et al Commentary 24-80. See S v Martin 1996 (1) SACR 172 (W); R v Fouche 1958 (3) SA
767 (T); R v Philip 1960 (2) SA 267 (N); S v Phongoma 1976 (1) SA 367 (O); cf Rex v Mazibuko 1947 (4) SA 821
(N); R v Mcwilliam 1958 (2) SA 243 (E).
[55] See generally Van der Merwe, Barton & Kemp Plea Procedures in Summary Criminal Trials (1983) para 2 3. In
S v Vorster and Four Similar Cases 2002 (1) SACR 379 (N) a full bench of the NPD drew a distinction between
admissions made in the course of the trial and admissions made in response to judicial questioning in terms of s 112
(1)(b) of the CPA. At 388c-e Hugo J said: “Admissions in a trial (where there is a lis between the parties) form part
of the evidential material which to a greater or lesser extent relieve the party who bears the onus from the duty of
proving the admitted fact . . . Admissions in terms of s 112(1)(b) serve a different purpose, they are not tendered as
proof but as a safeguard for persons who erroneously believe themselves to be guilty (not for persons who merely
erroneously believe that the state has sufficient evidence of their guilt)”. Questioning in terms of s 112(1)(b) does
not require that a court should also establish from an accused that his admissions are based on admissible evidence
that the prosecution has in its docket. The question is whether the accused can provide a factual basis confirming the
validity of his plea of guilty. On this basis the full bench rejected the conclusions reached in S v Lourens 2000 (2)
SACR 164 (E) and S v Lindhorst 2000 (2) SACR 161 (E). It should be noted that in terms of s 112(2) the defence can
hand in a written statement in which the accused “sets out the facts which he admits and on which he has pleaded
guilty”. The court may then, in lieu of questioning the accused in terms of s 112(1)(b), convict the accused on the
strength of the contents of the statement if satisfied of the accused’s guilt, provided that the court may in its
discretion put any question to the accused in order to clarify any matter raised in the statement. In S v Mshengu
2009 (2) SACR 316 (SCA) at [7] Jafta JA said that s 112(2) “requires that the statement must set out the facts
which he admits and on which he has pleaded guilty. Legal conclusions will not suffice”. Emphasis added.
Furthermore, where the prosecution never contested or disputed the section-112(2) statement on which the accused
was convicted, the contents of such a statement constitute “the essential factual matrix on the strength of which
sentence should be considered and imposed” (per Molemela J in S v Thole 2012 (2) SACR 306 (FB) at [8]). It is
fundamentally unfair if the factual matrix that was common ground for purposes of the conviction, can be altered to
impact adversely on an accused for purposes of sentencing. See S v Van der Merwe and Others 2011 (2) SACR 509
(FB) at [22]; S v Kekana 2014 JDR 2139 (SCA) at [9]; S v Latha and Another 2012 (2) SACR 30 (ECG) at [13]. It is,
however, for purposes of sentencing permissible for a court to receive further evidence not inconsistent with the
factual matrix provided in a section-112(2) statement. See S v Khumalo 2013 (1) SACR 96 (KZP) at [11]. In S v
Kondo 2012 (2) NR 415 (NLD) at [14] Liebenberg J rightly pointed out that the state “should not readily accept a
plea of guilty if the facts and basis on which the plea is tendered are not clearly set out in the accused section-112
(2) statement”.
[56] See S v Britz 1963 (1) SA 394 (T); Attorney-General, Transvaal v Botha 1993 (2) SACR 587 (A); Qoko v La
Grange NO and Others 2004 (2) SACR 521 (E); Mokonoto and Others v Reynolds NO and Another 2009 (1) SACR
311 (T); S v Swartz 2014 (1) SACR 461 (NCK); Cf Naidoo and Another v De Freitas and Others 2013 (1) SACR 284
(KZP).
[57] See generally S v Fikizolo 1978 (2) SA 676 (NC) and the discussion of s 113 by Van der Merwe in Du Toit et al
Commentary 17-13 to 17-16B.
[58] S v Mbathsha 2014 (2) SACR 143 (ECG).
[59] Section 115(2)(a) of the CPA.
[60] See generally Skeen 1982 SACC 158 159.
[61] Schmidt & Rademeyer 209 maintain that s 115(2)(b) can only be employed with regard to primary facta
probanda and that s 220 should be used with regard to secondary facta probanda. See generally § 2 2 above for the
distinction between primary and secondary facta probanda.
[62] This type of informal admission is discussed in § 16 7 2 above.
[63] 1972 (3) SA 53 (N). The need for accurate formal admissions proving the chain of custody of real evidence, is
discussed by Meintjes-Van der Walt (2010) SACJ 371 at 375.
[64] S v M 1967 (1) SA 70 (N).
[65] See S v Mahlangu 1985 (4) SA 447 (W); S v Evans 1981 (4) SA 52 (C) 59. In S v Ndlovu 1987 (3) SA 827
(N) the court held that the prosecution was entitled to lead viva voce evidence to prove that an accused’s rights had
been explained to him prior to his making a statement containing admissions in terms of s 115.
[66] Van der Merwe et al Plea Procedures in Summary Criminal Trials (1983) para 6 6 5.
[67] 1986 (3) SA 733 (C). See also S v Vorster and Four Similar Cases 2002 (1) SACR 379 (N) 386e. In this case
the approach adopted by Leach J in S v Lindhorst 2000 (2) SACR 161 (E) and S v Lourens 2000 (2) SACR 164 (E)
was considered too strict and technical.
[68] 1976 (4) SA 731 (N).
[69] 1984 (4) SA 131 (N) 134H.
[70] Richings 1975 SALJ 246.
[71] 1975 (3) SA 288 (N).
[72] See § 16 1 above.
[73] 1963 (3) SA 516 (A), followed in S v Gope and Others 1993 (2) SACR 92 (Ck).
[74] Cf S v Mjoli and Another 1981 (3) SA 1233 (A) 1248A.
[75] S v Mathlare 2000 (2) SACR 515 (SCA) 520c. See further Paizes in Du Toit et al Commentary 24-80.
Page 515
Chapter 27
Judicial Notice

27 3 Procedure
27 5 1 Animals
27 5 8 Crime
27 6 Law

It is in the nature of the accusatorial process that judicial officers should play a passive role
and be aloof from the proceedings. [1] This serves to enhance the principle of impartiality. A
judicial officer must withdraw from a case (recuse himself) if he happens to have private
information concerning the facts of the case before him. [2] However, the law of evidence
does to a limited extent allow a judicial officer to accept the truth of certain facts which are
known to him even though no evidence was led to prove these facts. This process is known
as judicial notice and must be distinguished from the procedure of receiving evidence. [3] For
example, a judicial officer may, without hearing evidence,
Page 516
accept the fact that Johannesburg is in South Africa and that there are twelve months in a
year. These facts are so well known [4] or can so easily be ascertained [5] that evidence to
prove them would be completely unnecessary and even absurd.
In Cross & Tapper on Evidence the following reasons for the existence of the doctrine of
judicial notice are identified: [6]
| “In the first place, it expedites the hearing of many cases. Much time would be wasted if every fact
which was not admitted had to be the subject of evidence which would, in many instances, be costly
and difficult to obtain. Secondly, the doctrine tends to produce uniformity of decision on matters of
fact where a diversity of findings might sometimes be distinctly embarrassing.”
The process of judicial notice deprives the parties of an opportunity to cross-examine and
consequently the courts apply the doctrine with caution. [7]

Some facts are judicially noticed without any inquiry, that is, without consulting a specific
source, whereas other facts may be judicially noticed only with reference to a source of
indisputable authority. This distinction is important because in the former instance evidence
may generally not be led to refute facts which have been properly noticed, whilst in the
second instance evidence may generally be led concerning the disputability or indisputability
of the source in question. [8]
How do we distinguish between receiving evidence and the taking of judicial notice? The
distinction is easy to make when judicial notice is taken without any inquiry. In such a case
the court is relying on its own knowledge, [9] which is something entirely different from the
reception of evidence. However, the distinction is more difficult to make when the taking of
judicial notice is preceded by either referring to texts or the hearing of evidence. “If learned
treatises are consulted, it is not easy to say whether evidence is being received under an
exception to the rule against hearsay or whether the judge is equipping himself to take
judicial notice.” [10] In McQuaker v Goddard [11] the court, before taking judicial notice of the
fact that camels are domesticated animals, consulted books about camels and heard
evidence from witnesses regarding the nature of camels. The Court of Appeal in affirming
the decision noted that the trial judge, when hearing the witness’s testimony as to the
nature of camels, had not been taking evidence in the ordinary sense — the witnesses were
merely assisting him in “forming his view as to what the ordinary course of nature in this
regard in fact is, a matter of which he is supposed to
Page 517
have complete knowledge”. [12] In Macleod v Rens [13] the court in ascertaining whether the
defendant had been a negligent participant in a motor vehicle accident held:
“In cases such as the present, the relevant evidence encompasses not only the concrete or physical
facts of the accident, but also such relevant facts and circumstances regarding motor vehicles and
their operation that are generally known among reasonably informed and educated people. This
knowledge must be notorious and not merely the result of personal observation. So, for example it is
beyond dispute that in general a motor vehicle is controlled by a driver by means of a fuel injection
system, a braking mechanism and a steering apparatus. It is further permissible to take judicial
cognisance of the abstract fact that generally a road-worthy motor vehicle under the control of a
reasonably skilful and careful driver will behave in a manner consonant with the basic traffic rules
designed to ensure the safety of all users of the road. Such cognisable facts serve the Court as
evidence as much as if they have been testified to by properly qualified and reliable expert witnesses.
They then form the basis of reconsideration of the probabilities. Outside the framework of notorious
facts lies the vast scientific field of motor vehicle mechanics and the dynamics of motor vehicle
accidents. The boundaries of judicial cognisance may be blurred and open to debate; it is, however,
the duty of the Court to scrupulously observe the distinction between notorious facts and facts that
require expert evidence for the proof thereof.”
In these circumstances the distinction between taking judicial notice and the reception of
evidence lies in the effect of the inquiry. [14] When judicial notice is taken a precedent is
established and in England a judge may withdraw a fact that has been judicially noticed from
the jury. [15] Furthermore, evidence is not admissible in rebuttal of a judicially noticed
fact. [16] In Lansdown & Campbell the following observation is made: [17]
“Evidence is inadmissible to controvert facts properly noticed; they have more than merely prima
facie validity, being irrefutable. This does not of course disregard the fact that whether something is
indisputable may itself be a matter of dispute.”
It should be noted that Schmidt & Rademeyer [18] hold a different view and assert that “[g]
eregtelike kennisname toon heelwat ooreenkoms met die weerlegbare vermoede wanneer
dié in werking gestel is”. This, Zeffertt argues, is true only if one takes the view that a fact
judicially noticed can be rebutted, a view which is contrary to the English law by which we
are bound. [19]
27 3 Procedure
The question whether a fact should be judicially noticed is one of law and should be decided
by the court, which should, where possible, inform the parties in advance (that is during the
trial and before verdict) of its intention
Page 518
to take judicial notice of a certain fact which is of such a nature that it might give rise to
conflicting views. [20] In Rex v Tager [21] the court held that in these circumstances the
parties may lead evidence to dispel any erroneous impression under which the court may
labour. [22] Some circumstances may allow no evidence but only argument. [23]

Facts which are judicially noticed are either well known to all reasonable persons or to a
reasonable court in a specific locality. [24] It is not sufficient for a presiding officer to act on
his personal knowledge of facts. [25] In S v Mantini [26] the court held that a magistrate had
erred in making use of his personal knowledge to take judicial notice of the fact that the
climate of a mountain range was suitable for the cultivation of dagga.
Generally, presiding officers must take judicial notice of certain law [27] and matters which
have been noticed by well-established practices or precedents of the courts. [28] However,
the courts may also take judicial notice of facts which they are not required to notice. [29] In
terms of our common law judicial notice should be taken of notorious facts and facts which
are readily ascertainable. Special common-law and statutory rules apply where rules of law
are concerned. [30]

According to Zeffertt & Paizes [31] notorious facts can be divided into two categories: facts of
general knowledge, and specific facts which are notorious within the locality of the court.
Facts of general knowledge would include, for example, the fact that there is a national road
network in South Africa and that these roads are public roads, [32] the fact
Page 519
that chess, billiards and table-tennis are games of skill [33] and the fact that there are seven
days in a week. In R v African Canning Co (Swa) Ltd and Others [34] it was said that
notorious facts include elemental experience in human nature, commercial affairs [35] and
everyday life.

Facts may be judicially noticed even if they are not of general knowledge. However, the
proviso is that these facts should be notorious among all reasonably well-informed people in
the area where the court sits. [36] In R v Levitt [37] a local court took judicial notice of the fact
that Franschhoek is not a small place and it contains a number of streets. Judicial notice has
also been taken of the distance between well-known local places and that a specific local
road is a public road within the local town or city in the jurisdiction of the court. In S v Van
Den Berg [38] the court held that it was a notorious fact that a particular company was mining
rough and uncut diamonds in Oranjemund.

Facts which are not generally known but which are readily and easily ascertainable should
also be judicially noticed. [39] However, they should be easily ascertainable from sources of
indisputable authority, for example, maps and surveys issued under governmental or other
reliable authority. [40] Sections 229 of the CPA and 26 of the CPEA contain provisions to the
effect that certain official tables, approved in the Gazette, may on the mere production
thereof serve as proof of the exact times of sunrise and sunset at specific places in South
Africa. In S v Sibuyi and Others [41] the court held that, although a court might take judicial
notice of the accuracy of almanacs, diaries or calendars as regards days and months, they
could not be regarded as indisputably accurate as regards the phases of the moon, setting
and rising of the sun, or the state of the tides. The basis of the court’s reasoning was that
such evidence was hearsay and did not merit being admitted as an exception to the hearsay
rule. [42] The court also noted that such information could not even be regarded as being
prima facie correct. [43]
Page 520
27 5 1 Animals
The instinctive behaviour of domesticated animals should be judicially noticed. [44] However,
in S v Soko and Another [45] it was held that judicial notice may not be taken of the fact that
ordinary fowls do not wander off like other stock.
In S v Steenberg [46] one of the issues was whether certain duikers were blue duikers and
as such protected game. The trial court took notice of this fact, which was really a matter
that should have been ascertained with the aid of expert testimony. On appeal it was held
that, even if the trial court had had the required special knowledge, judicial notice was still
irregular: the matter was neither immediately and accurately ascertainable nor of general
knowledge. It has also been held that judicial notice is irregular in respect of the following:
the local market value of animals; [47] the manner of estimating the age of animals; [48] and
that a particular skin (which was admitted as real evidence) was that of a particular species
of buck. [49] The following facts have been judicially noticed: scab is a well-known sheep
disease; [50] dangerous wild animals remain potentially dangerous even after docile
behaviour has come about as a result of semi-domesticity; [51] brand marks on cattle do not
fade completely; [52] and rhinoceros are rarer than elephants; [53] All these facts were
apparently considered to be of such general knowledge that judicial knowledge was
justified. [54]
The doctrine of judicial notice has not escaped the effects of the historically inherent
injustice of the South African social structure. Although overturned on appeal, trial courts
have taken judicial notice of the “fact” that “natives” are able to see in the dark; [55] that
“Bantu” women submit to rape without protest; [56] that “Bantu” women are unlikely to
support the evidence of their husbands against a lover; [57] that “native” witnesses who give
evidence in support of an alibi may be judicially assumed to be liars. [58] Rumpff CJ in S v
Augustine [59] made the startling assertion that “coloured” and
Page 521
“black” men sometimes stab others without reason. Clearly, such racist generalisations are
not matters which should be the subject of judicial notice. [60]

The sovereignty of foreign states and the existence of a state of war may normally be
judicially noticed. [61] In Nasopie (Edms) Bpk en Andere v Minister Van Justisie en Andere [62]
it was held that the court was entitled to take judicial notice of the constitutional
development which led to the promulgation of an Act under which independence was
granted to Bophuthatswana. It was also held that the court was compelled to take judicial
notice of the creation of the self-governing area of Bophuthatswana and its later
independence.
An appropriate certificate may be obtained from the executive if the court does not have
sufficient information to take judicial notice of certain political and state matters, for
example whether a war has been declared. According to Cross & Tapper on Evidence [63] this
certificate is, for reasons of public policy, treated as one of indisputable accuracy: it is
undesirable that the judicial and executive branches of government should hold conflicting
views with regard to relationships with other states. In cases concerning extradition
agreements a certificate from the Minister of Justice is an appropriate method of informing
the court of the attitude of the government. [64] In Inter-Science Research and Development
Services (Pty) Ltd v Republica Popular De Mocambique [65] it was held that, in proceedings
against a foreign government, recognition of such government as the government of the
foreign state concerned may be a matter of judicial notice. However, if there is any doubt on
the matter, the court should receive a certificate from the Minister of the appropriate state
department of South Africa. [66] Certificates are usually required where inter-state
relationships are in issue. [67]
Certain political circumstances (for example, the existence of a specific political system) in
a specific area or country may be judicially noticed if sufficiently notorious. [68]
Page 522

According to Lansdown & Campbell [69] matters of science may not be judicially noticed
unless “they have permeated into the background knowledge of non-specialists”. Such
matters can be said to be noticed on the basis of general notoriety. Judicial notice has been
taken of the fact that no two fingerprints are exactly the same, [70] but not of the age at
which a girl reaches puberty. [71] The normal period of human gestation has been judicially
noticed, but not the possible limits within which the period may be abnormal except in the
most extreme cases. [72] The court in S v Ratte [73] took judicial cognisance that an AK47
firearm could be set to operate as a machine gun. [74]
When evidence includes measurement by a mechanical or scientific instrument it is
ordinarily required to be accompanied by testimony as to the trustworthiness of the method
or process used to make the measurement as well as the accuracy of the instrument
used. [75] However, in certain circumstances the courts will take judicial notice of the
reliability of the measuring device and expert evidence will not be necessary. [76] “The
acceptance of the evidence of recordings of scientific instruments depends on whether they
are sufficiently well known for their trustworthiness to enable a court to take judicial notice
of their reliability.” [77] A court may, for example, take judicial notice of the process of
weighing on an assized scale. [78] In S v Fuhri [79] the court held that the relevant science
pertaining to the taking of photographs and the recording of speed by a device known as a
speed camera had advanced to such a level of general acceptance that judicial notice could
be taken that the photograph in question reflected a true image of what had appeared in
front of the camera lens at that specific moment. In S v Bester [80] the court correctly
refused to take judicial notice of the accuracy of a reading produced by the operation of a
blood-alcohol testing device known as a Dräger Alcotest 7110 Mark 111.
Page 523
In S v Heilig [81] the court held that a magistrate had erred in taking judicial notice of
certain statistics, it being notorious that trained experts frequently disagree in respect of the
accuracy and interpretation of statistics. However, this cannot be viewed as prohibiting a
court from taking judicial notice of statistics that are not disputed and easily verifiable. [82]

Judicial notice has been taken of the fact that the value of money has declined over the
years; [83] that most public companies are incorporated for the purpose of making a profit
from income; [84] the practice of furnishing bank guarantees in sales of land; [85] and the
practice of making payment by cheque. [86] In Van Huyssteen and Others NNO v Minister of
Environmental Affairs and Tourism and Others [87] the court held that it was permissible to
take judicial notice of the fact that “sites for holiday homes will be more valuable if they are
in close proximity to beautiful and unspoilt natural areas and that they will be much less
valuable if such areas are polluted or otherwise detrimentally affected”. [88] However, the
courts have held that judicial notice cannot be taken of the rate of exchange between South
African rands and a foreign currency and that proof of the rate of exchange must be
provided. [89]
In Schmidt and Another v Jack Brillard Printing Services CC, [90] the court in relation to
banking practices was prepared to take notice of computerisation and the Automated
Clearing Bureau but not of their operation.
The court in ABSA Bank Bpk h/a Volkskas Bank v Retief [91] had to decide whether a court
could take judicial cognisance of the existence of certain trade usages by banks as found in
the judgments of other courts. The relevant trade usages were: (1) the charging of interest
on an overdrawn account despite the absence of any agreement, and (2) the exercise of the
banks’ discretion in determining the applicable interest rate and its periodic adjustment. The
court held that it was entitled to take judicial notice that interest was charged on overdrawn
accounts, as this was a notorious fact of general knowledge.
Page 524
However, the court found that a trade usage allowing a bank to charge interest at a rate
determined at its own discretion was not sufficiently notorious to be the subject of judicial
notice.
A more difficult question raised in the ABSA case, is the dictum of Buys J to the effect that
a court may not take judicial notice of a trade usage which another court had held to exist
unless it has itself frequently heard evidence of the trade usage or evidence was led in the
case before it as to the existence of the trade usage. The court further held that judicial
notice would only constitute binding precedent where the usage was so notorious that
evidence about the existence and content of the usage was unnecessary. It appears that the
court in ABSA failed to distinguish between the taking of judicial notice after an inquiry and
the reception of evidence to prove a fact. The former being distinguished from the latter on
the basis, amongst others, that it constitutes binding precedent. [92] The better view is
expressed by Kerr:
“[O]nce a custom or trade usage is affirmed by a court the court’s decision is a precedent and judicial
notice of it is taken as in the case of all other precedents. In other words, the decision is a precedent
because the court in the first case found as a matter of law that the trade usage or custom exists; it
does not become a trade usage or custom of which judicial notice can be taken because the
subsequent court has found on other ground, such as repeated affirmation in court cases, that judicial
notice is to be taken of it.” [93]

If we take the view that a fact judicially noticed cannot be rebutted by adducing evidence to
the contrary, [94] then those cases in which the courts have taken judicial notice of the
functioning of traffic lights must be subject to some scrutiny. In Gomes v Visser [95] the court
held that in civil cases a court can “take judicial notice of the fact that when the lights facing
in one direction at a right-angled intersection are green those facing at right angles to them
should be, and probably are red”. However, in S v Delange [96] the court found that in a
criminal case it was not competent for the court to take judicial notice of the fact that if one
light is green, the one at right angles to it must, beyond reasonable doubt, be red. The Natal
Provincial Division in S v Lund reached a different conclusion and held: [97]
“If the court is entitled to take judicial notice of a fact in a civil case, it is entitled to take notice of it in
a criminal case. Once it has taken judicial notice of it, it is still a question of fact whether or not that
fact establishes what the state has to prove in the case in question, and establishes it sufficiently
clearly for it to be said to be established beyond reasonable doubt.”
Although the court was undoubtedly correct in that no distinction should be made between
the taking of judicial notice in civil and criminal trials, it failed “to recognize that the common
law lays down that when, as a result of inquiry judicial
Page 525
notice is taken of a fact, there is no longer an issue about the fact”. [98] Zeffertt argues that
although there is presumption of fact [99] “that traffic lights are probably in a working
condition . . . it would be wrong to infer that they are beyond a reasonable doubt in a
working order”. [100] It is submitted that the basis for the confusion arising out of these cases
is the incorrect labelling of a presumption of fact as judicial notice.

There is no general rule that facts which are reliably (as opposed to easily and reliably)
ascertainable can be judicially noticed. [101] However, our courts have used history books to
establish historical facts. [102] In S v Mkhwanazi [103] a magistrate had taken judicial notice of
two facts: (i) statistics submitted by the agricultural union of Ermelo which contained inter
alia data regarding the number of reports of theft of sheep and (ii) that organised agriculture
in Ermelo had donated a substantial amount of money to the South African Police for use as
rewards to informers in stock-theft cases. On review the court held that the magistrate had
misdirected himself in taking judicial notice of the first fact as it did not fall within the local
community’s knowledge. With regard to the second fact, the court found that the magistrate
had erred on the basis that although a court can take judicial notice of a historical fact
mentioned in history books, it cannot take notice of a specific occurrence or incident. Zeffertt
argues that “[a] specific instance may be of such general notoriety as to warrant it being
noticed despite its being too recent to appear in a history book”. The example he gives is the
release of Nelson Mandela. [104] Dodson J in Hlatshwayo and Others v Hein [105] took judicial
notice of the fact “that most rural black people have, by reason of a barrage of
discriminatory laws applied to them over the years, in most instances been prevented from
accumulating any substantial wealth”. [106] In Richtersveld Community and Others v Alexkor
Ltd and Another [107] Gildenhuys AJ took judicial notice (on the basis of notoriety) that the
Restitution Act [108] “gains its historical origin from the policy of previous governments which
sought to divide up the country spatially along racial and ethnic lines”. [109]
The courts have also made use of dictionaries to establish the meaning of words. In
Page 526
Association of Amusement and Novelty Machine Operators and Another v Minister of Justice
and Another [110] it was held that the opinions of language experts and other witnesses as to
the meaning and status of words as used in a statute are generally inadmissible and that
recourse could be had to any authoritative dictionary of the language employed by the
legislature.
27 5 8 Crime
In recent years judicial notice has been taken of a number of matters relating to crime. In S
v Brand, [111] Van Reenen J held that theft and fraud by people in trust was sufficiently
notorious for judicial notice to be taken of this fact for the purposes of sentencing. The
Supreme Court of Appeal in S v Sibisi [112] held that judicial notice could be taken of the
carnage and destruction wrought by AK47 rifles in otherwise peaceful and defenceless
communities. The court has also taken judicial notice of the fact that South Africa is
“currently engulfed by an unacceptably high crime rate”. [113] In National Director of Public
Prosecutions v Mcasa and Another [114] the court took judicial notice of the fact that a
significant proportion of people charged were acquitted. [115]
Farlam J in S v Kampher [116] took judicial notice of the fact that some South Africans may
hold a strong belief that consensual acts of sodomy between adult males was immoral and
that such acts should be subject to criminal sanction. However, the court held that this did
not justify criminalising sodomy occurring between consenting adult men.
Dodson J in Van Zyl NO v Maarman [117] took judicial notice of the problems in the legal aid
system in South Africa. In Mohlomi v Minister of Defence [118] Didcott J took judicial notice of
“the state of affairs prevailing in South Africa, a land where poverty and illiteracy abound and
differences of culture and language are pronounced, where such conditions isolate the people whom
they handicap from the mainstream of the law, where most persons . . .
Page 527
are either unaware of or poorly informed about their legal rights and what they should do in order to
enforce those, and where access to the professional advice and assistance that they need so sorely is
often difficult for financial and geographic reasons.” [119]
Froneman J in Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern
Cape, and Another, [120] after citing the above passage from Mohlomi, took judicial notice of
the fact that the roads in the Eastern Cape are frequently in a poor condition.
27 6 Law
Judicial notice must be taken of South African law. This is a rule of convenience. It would be
very tedious and absurd if in each and every case expert witnesses were necessary in order
to prove the relevant legal rules. Parties may not lead evidence in order to clarify the nature
or ambit of a South African legal rule. [121] They may, however, do so by way of argument,
and indeed should be given an opportunity of doing so. This is particularly necessary where
the court on its own initiative has consulted case law, legislation or authoritative textbooks
in order to seek clarification of a legal rule. The position as regards indigenous law is dealt
with in § 27 6 3 below.

Judicial notice is taken of Acts of Parliament and of the provincial legislatures. Colonial
statutes and provincial ordinances are judicially noticed in terms of our common law, whilst
subordinate legislation (for example, proclamations, regulations and by-laws) and private
Acts of Parliament are judicially noticed in terms of statutory law. [122] The common law also
provides for judicial notice to be taken of proclamations, which have the force of original
legislation. [123] Judicial notice should also be taken of any law which purports to be published
under the superintendence or authority of the Government Printer. [124]
The rules of our common law are judicially noticed. There are no exceptions to this rule.
The mere fact that a particular rule is vague will not entitle a party to adduce expert
evidence, for example, by calling a professor of law who has specialised in the rule
concerned.

Public international law (also known as the law of nations, or ius gentium) consists of the
body of rules governing the
Page 528
relations between states in times of peace and war. [125] Public international law that has
acquired the status of custom [126] is judicially noticed. Dugard states: [127]
“Since international law is not foreign law, courts may take judicial notice of it as if it were part of our
own common law. In practice this means that courts turn to the judicial decisions of international
tribunals and domestic courts, both South African and foreign, and to international law treatises for
guidance as to whether or not a particular rule is accepted as a rule of customary international law on
the ground that it meets the twin qualifications of usus and opinio juris.”
As customary international law is seen as forming part of the common law, the courts should
take judicial notice of it. [128] Section 232 of the Constitution provides that “[c]ustomary
international law is law in the Republic unless it is inconsistent with the Constitution or an
Act of Parliament”. [129]

Prior to the Law of Evidence Amendment Act [130] the courts of chiefs and headmen could
take judicial notice of indigenous laws and customs. But this was not the position in the
ordinary courts, where such indigenous law and custom were treated as foreign law. [131]
Until 1988 foreign law had to be proved by calling an expert witness and could not be
judicially noticed. [132] Judicial notice may now be taken of both indigenous [133] and foreign
law [134] in terms of s 1 of the Law of Evidence Amendment Act, which provides:
“1(1) Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as
such law can be ascertained readily and with sufficient certainty: [135]
Page 529
Provided that indigenous law shall not be opposed to the principles of public policy or natural justice:
Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi
or other similar custom is repugnant to such principles.
(2) The provisions of subsection (1) shall not preclude any party from adducing evidence of the
substance of a legal rule contemplated in that subsection which is in issue at the proceedings
concerned.
(3) In any suit or proceedings between Blacks who do not belong to the same tribe the court shall
not in the absence of any agreement between them with regard to the particular system of indigenous
law to be applied in such suit or proceedings, apply any system of indigenous law other than that
which is in operation at the place where the defendant or respondent resides or carries on business or
is employed, or if two or more different systems are in operation at that place (not being within a
tribal area), the court shall not apply such system unless it is the law of the tribe (if any) to which the
defendant or respondent belongs.
(4) For the purposes of this section ‘indigenous law’ means the Black law or customs as applied by
the Black tribes in the Republic.” [136]
Where the foreign law in question cannot be ascertained readily and with sufficient certainty
it must be proved by means of expert evidence. [137] Where a party seeks to rely on
statutory foreign law the relevant statute must be placed before the court. [138] In
Harnischfeger Corporation and Another v Appleton and Another [139] the court held that even
though the words “readily” and “sufficient certainty” defied definition, they could not be
ignored. [140] Fleming DJP, finding that accessible library holdings on the relevant topic of
American law were inadequate, came to the conclusion that the American law in point was
neither readily accessible nor ascertainable and consequently the common law had to be
applied. At common law “each aspect of foreign law is a factual question and any evidence
on that aspect must emanate from someone with the necessary expertise”. [141] It will be
presumed that there is no distinction between foreign and South African law and the onus
rests on the person asserting a distinction to produce evidence. [142] In Harnischfeger the
court held that this presumption applied to both common and statutory law. [143]
Page 530
Hartzenberg J, in Maisela v Kgolane NO, [144] held that in terms of s 1(1) a litigant who
wishes to have an action determined by indigenous law must prove that indigenous law is
applicable to the case. And unless judicial notice can be taken of the principles they must be
alleged and proved. [145] A litigant may adduce expert evidence to prove those principles that
are not readily ascertainable. [146] If the litigant fails to establish the applicability of the
indigenous law, the common law will apply.
In terms of s 1(1) a court may not take judicial notice of indigenous law that is contrary to
principles of public policy or natural justice. Mpati AJA in Mthembu v Letsela and Another [147]
in determining whether a rule of indigenous law, excluding illegitimate children from sharing
in the intestate succession of their father, was contrary to public policy, described public
policy in the following terms:
“[T]he interests of the community or the public are of paramount importance in relation to the
concept of public policy and that public policy ‘reflects the mores and fundamental assumptions of the
community’; it is ‘the general sense of justice of the community, the boni mores manifested in public
opinion.” [148]
He then reached the very questionable conclusion that the rule could not be against public
policy as the deceased would have been entitled to exclude his illegitimate child if he died
testate.
The status of indigenous law was reaffirmed in the Interim Constitution by Constitutional
Principle XIII [149] which provides that “[i]ndigenous law, like common law, shall be
recognized and applied by the courts subject to the fundamental rights contained in the
Constitution and to legislation dealing specifically therewith”. In terms of s 39(2) of the
Constitution “[w]hen interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purpose and objects
of the Bill of Rights”.

Rule 31(1) of the Constitutional Court Rules [150] provides that any party to any proceedings
before the court, and an amicus curiae properly admitted by the court, [151] shall be entitled,
in documents lodged in terms of the rules of the Constitutional Court, to canvass factual
material which is relevant to the
Page 531
determination of the issues and which does not specifically appear on the record. The
proviso, however, is that such facts must be either common cause or otherwise
incontrovertible [152] or of an official, scientific, technical or statistical nature, capable of easy
verification. [153] In terms of rule 31(2) all other parties are entitled to admit, deny,
controvert or elaborate upon such facts to the extent necessary and appropriate for a proper
decision by the Constitutional Court. Rule 31 contains the same provisions as rule 34 of the
Interim Constitutional Court Rules. [154]
Rule 31 should be understood in the context of the distinction between so-called
“adjudicative facts” and “legislative facts”. [155] This distinction was first drawn by Davis in
1942 [156] and later again explained by him in 1955: [157]
“When a court or an agency finds facts concerning the immediate parties — who did what, where,
when, how, and with what motive or intent — the court or agency is performing an adjudicative
function, and the facts so determined are conveniently called adjudicative facts. When a court or an
agency develops law or policy, it is acting legislatively; the courts have created the common law
through judicial legislation, and the facts which inform the tribunal’s legislative judgment are called
legislative facts. Stated in other terms, the adjudicative facts are those to which the law is applied in
the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate
to the parties, their activities, their properties, their businesses. Legislative facts are those which help
the tribunal to determine the content of law and policy and to exercise its judgment or discretion in
determining what course of action to take. Legislative facts are ordinarily general and do not concern
the immediate parties. In the great mass of cases decided by courts and by agencies, the legislative
element is either absent, unimportant, or interstitial, because in most cases the applicable law and
policy have been previously established. But whenever a tribunal is engaged in the creation of law or
of policy, it may need to resort to legislative facts, whether or not those facts have been developed on
the record . . . The exceedingly practical difference between legislative and adjudicative facts is that,
apart from facts properly noticed, the tribunal’s finding of adjudicative facts must be supported by
evidence, but finding or assumptions of legislative facts need not, frequently are not, and sometimes
cannot be supported by evidence.”
Rule 31 cannot be relied upon by the parties in respect of facts which are essentially
“adjudicative”. In respect of these facts the parties are bound by the evidence on record and
the normal common-law and statutory rules which govern judicial notice. But for purposes of
“legislative facts”, they may go beyond the record of the case by relying on rule 31. Judicial
notice of legislative facts might be necessary when the court must decide upon the
constitutional validity of a statute or common-law rule “upon grounds of policy, and the
policy is thought to hinge upon social, economic, political or scientific
Page 532
facts”. [158] Rule 31 seeks to ensure that the Constitutional Court is well informed about the
general background of a specific rule before upholding it, striking it down, expanding or
limiting it. [159]
Rule 31 can be described as our own local version of the so-called “Brandeis brief”, which
originated in the United States of America. [160] In 1908 the United States Supreme
Court [161] had to decide on the constitutional validity of an Oregon state law of 1903, which
had determined that “’no female [shall] be employed in any mechanical establishment, or
factory, or laundry in this state for more than ten hours during one day”. Brandeis was
briefed by the state. Apart from traditional legal argument, Brandeis also submitted extracts
from over ninety reports of committees, bureaus of statistics, commissioners of hygiene,
inspectors of factories, “to the effect that long hours of work are dangerous for women
primarily because of their special physical organization”. The court not only upheld the
Oregon statute but also accepted extracts on the basis that it took “judicial cognizance of all
matters of general knowledge”. [162] The truth of the matter is that the court accepted the
extracts for the sake of convenience and in order to familiarise itself with the policy
considerations which had given rise to the Oregon statute’s limitation on female working
hours in certain industries. The evidentiary short-cut taken by the Supreme Court in Muller v
Oregon had the result that the term “Brandeis brief” came to be used “to refer to briefs filled
with factual, as well as legal arguments”. [163] Brandeis later also became a judge of the
United States Supreme Court and in several of his own judgments went outside the record,
relying on official reports and similar sources in respect of legislative facts. [164] Hogg claims
that there are justifications for the “Brandeis brief”: [165]
“There are two justifications for the Brandeis brief. The first is the pragmatic one that the Brandeis
brief may be the only practicable way to inform the court of the full range of professional opinion on a
particular point of social science. It is true that expert opinion evidence could be adduced, but on
many topics no one expert or group of experts could easily canvass the entire range of professional
opinion within the limits of the law of evidence, and especially the hearsay rule. Moreover, any
attempt to do so by conventional sworn testimony, subject to cross-examination, would be extremely
time-consuming and expensive . . . The second justification for the Brandeis brief is more principled
and more conclusive. The nature of judicial review is such that it is not necessary to prove legislative
facts as strictly as adjudicative facts which are relevant to the disposition of litigation, the court need
not be so definite in respect of legislative facts in constitutional cases. The most that the court can ask
in respect of legislative facts is whether there is a rational basis for the legislative judgment that the
facts exist.”
Page 533
The South African Constitutional Court has on several occasions [166] referred to and relied
upon so-called discussion documents submitted by the parties. However, O’Linn AJA in S v
Katamba [167] expressed some disquiet at the extension of the boundaries of judicial
notice. [168]
The Constitutional Court applied the distinction between adjudicative and legislative facts
in S v Lawrence; S v Negal; S v Solberg, [169] in which it was required to determine the
constitutionality of certain provisions of the Liquor Products Act 60 of 1989. The appeals
were subject to the provisions of the Interim Constitution and the appellants conceded that
the magistrate had correctly convicted them. Their sole defence was that the provisions in
terms of which they had been convicted were unconstitutional.
No evidence relevant to the constitutionality of the provisions in issue was contained in
the appeal record. After the noting of the appeals to the Constitutional Court the
representatives of the appellants and the Attorney-General agreed that “expert affidavits”
would be lodged by the appellants, the Attorney-General being entitled to lodge replying
affidavits, and the appellants could then lodge further replying affidavits.
Expert affidavits were lodged by the appellants, the Attorney-General and the Minister of
Trade and Industry. In addition appellants’ counsel, at the hearing, tendered numerous
extracts from publications purportedly relied upon by one of the appellant’s experts. There
was no accompanying affidavit by the expert in confirmation or offering an explanation why
the extracts had not been dealt with in his affidavit. Counsel for the Attorney-General and
counsel for the Minister of Trade and Industry objected to the admission of these extracts as
well as the “expert affidavits” lodged by the appellant on the basis that they exceeded the
ambit of rule 34 of the Interim Constitutional Court Rules (now rule 31). In response the
appellants made an application in which it was contended that the affidavits were admissible
in terms of rule 19 [170] and rule 34, alternatively that the court exercise its general power
under rule 35 [171] to condone non-compliance with its provisions.
The court rejected the appellant’s submission that the general rule permitting new
evidence on appeal only in exceptional circumstances, did not apply to an appeal based on a
constitutional question falling exclusively within the jurisdiction of the Constitutional Court.
Chaskalson P held that there was nothing prohibiting the appellants from having placed the
evidence on record
Page 534
at the time of their trial; they could also have taken the opportunity of tendering such
evidence when appealing to the High Court. [172]
The court also dismissed the appellants’ contention that the former rule 19 (regulating the
procedure to be followed in appeals in which leave to appeal is required) permitted parties to
supplement the trial record with new evidence. It held that rule 19 “prescribes a procedure
for circumscribing the record and not a means for introducing new evidence on appeal”. [173]
In the absence of an express provision in rule 19 facilitating the introduction of new
evidence, an interpretation of the rule which required all eleven judges of the Constitutional
Court to hear disputed evidence could not be justified. The court held that the circumstances
of the cases did not justify the exercise of its powers in terms of rule 33 [174] to admit new
evidence and that only those portions of the new evidence that fell within the parameters of
the former rule 34 would be admitted.
In drawing the distinction between legislative and adjudicative facts the court held that
the question of who bears the burden of proof is less important when dealing with legislative
facts than when adjudicative facts are in issue. The court then proceeded to take judicial
notice of the legislative fact that the “excessive consumption of liquor is universally regarded
as a social evil. It is linked to crime, disturbance of the public order, impairment of road
safety, damage to health, and has other deleterious social and economic consequences.” [175]
The appellant, who objected to the restrictions imposed by the Liquor Act on hours during
which the holder of a grocer’s wine licence may sell table wine, argued that restricted hours
do not reduce alcohol-related problems and consequently such restrictions were irrational. In
support of this contention appellant submitted an affidavit of an expert witness referring to
studies undertaken in other countries. The Minister of Trade and Industry relied on the
affidavit of a different expert witness who disputed the correctness of this proposition. The
court held that it was inappropriate in the circumstances for the court to prefer one expert
above the other. Chaskalson P held that: [176]
“The expert evidence was not placed before the Court in a proper form and the attempt to cure the
defect by tendering unverified extracts from publications on which the expert is said to have relied is
unacceptable. The proposition relied upon by the appellants is, moreover, not ‘common cause or
otherwise incontrovertible’ nor does it depend on ‘official, scientific, technical or statistical’ material
that is capable ‘of easy verification’. In any event the conflict is not decisive of the case. The question
to be decided is not
Page 535
whether the policy underlying the Liquor Act is an effective policy; it is whether there is a rational
basis for such policy related to the purpose of the legislation.” [177]
The court did accept evidence contained in another of the appellant’s expert affidavits’ to the
effect that the control of the availability of alcohol is a recognised means of combating the
adverse effects of alcohol. That the same expert disputed the efficacy of such measures was
not relevant, as the court was required to determine whether there was a rational basis for
the policy related to the purpose of the legislation, not the efficacy of the policy.
In Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others [178] it
was held that the evidence sought to be introduced in terms of rule 31 was inadmissible
since it was “all put in issue by the respondents . . . [and] therefore [had] to be excluded on
that basis alone”. [179] If the evidence sought to be adduced under rule 31 is controvertible, it
is inadmissible. [180] Admissibility depends on the nature and substance of the dispute; [181]
and the facts sought to be canvassed may not be irrelevant. [182]
In Lee v Minister for Correctional Services [183] an extract from Annual Report 2010/2011:
Treatment of Inmates and Conditions in Correctional Centres was disallowed because it was
“not relevant to the determination of the issues”; [184] and a scientific study entitled
Tuberculosis in a South African Prison — A Transmission Modelling Analysis was also
disallowed “because its introduction . . . [did] . . . not meet the threshold requirement of
being incontrovertible or common cause or capable of easy verification as envisaged in rule
31.” [185]
[1] See § 1 5 2 above.
[2] Lansdown & Campbell 725.
[3] See § 27 2 below; Tapper Cross & Tapper on Evidence 12 ed (2010) 76. One must agree with Keane The
Modern Law of Evidence 6 ed (2006) 707 that “more often than not judicial notice of a fact is taken without being
stated. For example, when evidence is adduced that a burglar was found in possession of skeleton keys, judicial
notice is tacitly taken of the fact that skeleton keys are frequently used in the commission of the crime of burglary”.
(Emphasis added).
[4] See § 27 4 1 below.
[5] See § 27 4 3 below.
[6] Tapper Cross & Tapper on Evidence 84.
[7] See Rex v Tager 1944 AD 339, S v Imene 1979 (2) SA 710 (A). However, see Redgment 1984 SALJ 459 and
Van der Berg 1986 SALJ 103, whose articles indicate that the caution is more apparent than real.
[8] See Lansdown & Campbell 726.
[9] However, a presiding officer may not act on her personal knowledge of a fact. See § 27 4 below.
[11] McQuaker v Goddard 1940 1 KB 687; 1940 All ER 471.
[12] At 700.
[13] 1997 (3) SA 1039 (E) at 1047.
[14] See Zeffertt & Paizes 865.
[16] See Tapper Cross & Tapper on Evidence 88; Zeffertt & Paizes 865. However, cf the provisions of s 1(3) of Act
45 of 1988 as cited in § 27 6 3 below.
[17] At 726.
[18] At 185.
[19] Zeffertt 1987 ASSAL 429. Cf S v Lund 1987 (4) SA 548 (N). For a contrary view see Schmidt & Rademeyer
185-6.
[20] See S v Heilig 1999 (1) SACR 379 (W); S v Chipape 2010 (1) SACR 245 (GNP).
[21] Supra.
[22] See also Redgment 1984 SALJ 459.
[23] See § 2 3 above for the distinction between evidence and argument.
[24] Schmidt & Rademeyer 192 express the view that the question is not the knowledge of the reasonable person
that is in issue but whether the fact would be known to any court having jurisdiction in the matter. See also Schmidt
& Rademeyer (2007) 6-6. Support for this view can be found in S v Mseleku 2006 (2) SACR 574 (D) 578i-579b,
where the court took judicial notice that “in this Division” inexperience of counsel is not an unusual occurrence,
forcing trial judges to play an active role to ensure a fair trial. A presiding judicial officer is entitled to rely on his own
knowledge regarding the prevalence of crime in his jurisdiction. In S v Matshiba 2012 (1) SACR 577 (ECG) at [17]
and S v Moswathupa 2012 (1) SACR 259 (SCA) at [9] the prevalence of housebreaking was noted. In S v Mgibelo
2013 (2) SACR 559 (GSJ) at [4] Mudau J went further by noting that murder, attempted murder and arson “are
prevalent, not only in the jurisdiction of this court, but country-wide as well”.
[25] Rex v Tager 1944 AD 339 343-4. Tapper Cross & Tapper on Evidence 89.
[26] 1990 (2) SACR 236 (E). See also S v Leonards 1997 (1) SACR 307 (C); S v M 2000 (1) SACR 484 (W); S v
Lourens 2000 (2) SACR 164 (E).
[27] See § 27 6 below.
[28] Phipson on Evidence 14 ed (1990) para 2-07.
[29] Ibid. See R v Refanis 1929 OPD 195 202.
[30] See § 27 6 below.
[31] At 867.
[32] R v Bikitsha 1960 (4) SA 181 (E).
[33] Ex Parte Minister Van Justisie: In Re S v Concalves 1976 (3) SA 629 (A).
[34] 1954 (1) SA 197 (SWA) 199F; see also Rowe v Assistant Magistrate, Pretoria 1925 TPD 361 368.
[35] See, for eg, Kellogg Co and Another v Bokomo Co-Operative Ltd 1997 (2) SA 725 (C) in which the court took
judicial notice that in South Africa groceries are predominantly sold in supermarkets and self-service shops.
[36] S v Mosala 1968 (3) SA 523 (T).
[37] 1933 CPD 411 412.
[38] 1996 (1) SACR 19 (Nm).
[39] See generally Zeffertt & Paizes 873; Schmidt & Rademeyer 192.
[40] Rex v Pretoria Timber Co (Pty) Ltd and Another 1950 (3) SA 163 (A) 172. In S v Mirirai 1995 (2) SACR 134
(T) the court held that it is so well known that the Limpopo River forms the boundary between the RSA and
Botswana between Maartinsdrift and Groblersbrug that the court could summarily take notice thereof. The court’s
statement (at 137f-g) that no map was required, is perhaps too accommodating unless a reasonable court sitting in
that area would not have needed one.
[41] 1988 (4) SA 879 (T), in which the court found the decision in S v Mpharu en ’n Ander 1981 (2) SA 464 (NC)
to have been wrong.
[42] At 881F-G.
[43] At 880I.
[44] Parker v Reed 1904 SC 496.
[45] 1963 (2) SA 248 (T). In S v Olyn 1990 2 PH H107 (B) it was held that a court could not take judicial notice
that goats always return to their own kraals.
[46] 1979 (3) SA 513 (B) 515.
[47] R v Pretorius 1934 TPD 76.
[48] R v Sombana 1939 EDL 71.
[49] R v Butelezi 1959 (1) SA 191 (N).
[50] R v Bunana 1958 (1) SA 573 (E).
[51] Bristow v Lycett 1971 (4) SA 223 (RA).
[52] R v Maduna 1946 EDL 334.
[53] R v Mazweinzini and Another 1964 (4) SA 201 (SR).
[54] For a more sceptical approach, see Redgment 1984 SALJ 459.
[55] R v Tusini and Another 1953 (4) SA 406 (A).
[56] R v A 1952 (3) SA 212 (A); S v M 1965 (4) SA 577 (N).
[57] S v Sihlani and Another 1966 (3) SA 148 (E).
[58] Mcunu v R 1938 NPD 229.
[59] 1980 (1) SA 503 (A).
[60] For a fuller criticism of these cases, see Van der Berg 1986 SALJ 550. For a bizarre defence of the assertion
that “coloureds and blacks stab each other without reason”’, see Marais 1987 SALJ 204. In S v Scott-Crossley 2008
(1) SACR 223 (SCA) 237c the Supreme Court of Appeal referred to “the danger of stereotyping which may result in
unfair and unwarranted generalisations being made” and warned that “[s]uch generalisations are to be avoided in
judicial reasoning as they may result in a miscarriage of justice”.
[62] 1979 (3) SA 1228 (NC). See also generally S v Wellem 1993 (2) SACR 18 (E) 20g-i.
[64] S v Devoy 1971 (3) SA 899 (A).
[65] 1980 (2) SA 111 (T).
[66] For example, the Dept of Foreign Affairs.
[67] Hassim v Naik 1952 (3) SA 331 (A). But see also S v Mataboge and Others 1991 (1) SACR 539 (B) 548i-j,
where the court without any certificate not only took judicial notice of the fact that (the former) Bophuthatswana did
not enjoy extradition facilities with Botswana but also that the latter did not recognise (the former) Bophuthatswana
as an independent state. The court also took judicial notice that no border formalities were required to pass from one
country to the other and that border control was lax. This was done for the purposes of a bail application where the
ordinary rules of evidence are relaxed. See § 1 7 above.
[68] Grgin v Grgin 1961 (2) SA 84 (W). See also S v Vries 1996 (2) SACR 638 (Nm) 671.
[69] At 727-8.
[70] Rex v Morela 1947 (3) SA 147 (A). See also S v Phiri 2014 (1) SACR 211 (GNP) at [9] where Makgoka J and
Baloyi AJ said that they could “take judicial notice of the fact that HIV/Aids has no cure presently . . .”
[71] S v Khuzwayo 1969 (1) SA 70 (N).
[72] R v Sewgoolam 1961 (3) SA 79 (N); Mitchell v Mitchell and Another 1963 (2) SA 505 (D).
[73] 1998 (1) SACR 323 (T).
[74] Cf S v Shiini 1997 (1) SACR 212 (Nm) 215a-b, in which the Namibian High Court reached the opposite
conclusion.
[75] S v Mthimkulu 1975 (4) SA 759 (A) 764.
[76] Ibid.
[77] R v Harvey 1969 (2) SA 193 (RA) 200D.
[78] S v Mthimkulu supra. See also S v Van Der Sandt 1997 (2) SACR 116 (W).
[79] 1994 (2) SACR 829 (A).
[80] 2004 (2) SACR 59 (C). At 62i-j the court relied on what was said in S v Mthimkulu supra 759H: “The extent to
which the court will insist upon, or relax, the standards of proof which theoretically apply when evidence involving
the use of scientific instruments is presented to it will very much depend upon (a) the nature of the process and
instrument involved in the particular case, (b) the extent, if any, to which the evidence is challenged and (c) the
nature of the enquiry and the facta probanda in the case. No hard and fast rule can, or should, be laid down. Much
will depend on the facts and the circumstances of each individual matter.”
[81] 1999 (1) SACR 379 (W).
[82] See for example, S v Mkhwanazi 1989 (2) SA 802 (T); S v SMM 2013 (2) SACR 292 (SCA) at [14]. See also
rule 31 of the Constitutional Court rules as discussed in § 27 7 below.
[83] Bryant v Foot 1868 LR 3 QB 497.
[84] R v African Canning Co (Swa) Ltd and Others 1954 (1) SA 197 (SWA).
[85] Trichardt v Muller 1915 TPD 175.
[86] Schneider and London v Chapman 1971 TPD 497.
[87] 1996 (1) SA 283 (C) 302D.
[88] In S v Van Den Berg 1996 (1) SACR 19 (Nm) the court took judicial notice of the fact that a specific company
was mining rough and uncut diamonds at Oranjemund and that the security arrangements related to rough and
uncut diamonds. These the court held were notorious facts.
[89] Barclays Bank of Swaziland Ltd v Mnyeketi 1992 (3) SA 425 (W). In Mathobanyane v Vrystaatse Drankraad
en ’n Ander 2000 (4) SA 342 (O) the court quoted with approval the following passage from Hoffmann & Zeffertt The
South African Law of Evidence 4 ed (1988) at 547: “If it is proved, directly or circumstantially, that a letter was
properly addressed the court may take judicial notice of the regularity of post office deliveries and infer that it was
received by the addressee.”
[90] 2000 (3) SA 824 (W).
[91] 1999 (3) SA 322 (NC). See also Bilchitz 1999 ASSAL 662 680 for a discussion of this case.
[92] See § 27 2 above.
[93] Kerr 2000 THRHR 661.
[94] See § 27 2 above.
[95] 1971 (1) SA 276 (T).
[96] 1972 (1) SA 139 (C).
[97] 1987 (4) SA 548 (N) 553A-B.
[98] Hoffmann & Zeffertt The South African Law of Evidence 4 ed (1988) 416 (emphasis in the original). The
matter is also discussed in detail by Zeffertt & Paizes 865.
[99] For discussion of presumptions of facts, see § 28 3 3 below.
[100] 1987 ASSAL 429.
[101] LAWSA para 621.
[102] Consolidated Diamond Mines of South West Africa Ltd v Administrator, Swa and Another 1958 (4) SA 572
(A).
[103] 1989 (2) SA 802 (T).
[104] 1989 ASSAL 418.
[105] 1999 (2) SA 834 (LCC).
[106] At 847G.
[107] 2001 (3) SA 1293 (LCC).
[108] The Restitution of Land Rights Act 22 of 1994.
[109] At [84].
[110] 1980 (2) SA 636 (A). See also § 8 3 above: expert testimony is unnecessary. Where a witness uses a
peculiar word in the course of his evidence, the meaning of such a word should be explained in evidence by asking
the witness what is meant by the word. In S v Maelangwe 1999 (1) SACR 133 (NC) counsel for the state argued that
the Afrikaans word “flou” as used by a witness meant to kill. However, Buys J found as follows (at 148h-i): “Geen
getuienis is omtrent hierdie uitgebreide betekenis van die woord ‘flou’ gelei nie; ek ken nie so ’n uitgebreide
betekenis nie en ek kan dus nie geregtelik kennis neem daarvan nie of van ’n ander betekenis van die woord flou nie
as dat die oorledene aangerand moet word totdat hy sy bewussyn verloor.’’
[111] 1998 (1) SACR 296 (C). The prevalence of rhino-related crime in South Africa, was judicially notified by
Tshoka J in S v Lemtongthai 2014 (1) SACR 495 (GJ) at [19].
[112] 1998 (1) SACR 248 (SCA).
[113] S v Zitha and Others 1999 (2) SACR 404 (W) at 409f-g. See also Ferreira v Levin NO and Others; Vryenhoek
and Others v Powell NO and Others 1996 (1) SA 984 (CC) at [152]. In S v Brophy and Another 2007 (2) SACR 56
(W) judicial notice was taken “of the gross overcrowding in prisons housing awaiting-trial prisoners” (at [18]). In S v
Nkunkuma and Others 2014 (2) SACR 168 (SCA) at [16] Pillay JA, writing for a full bench, said: “Rape and robbery
have become serious social problems. It is not difficult to take judicial notice of this phenomenon in the light of the
number of cases dealt with by the regional courts, the high courts and those which eventually come to this court.”
[114] 2000 (1) SACR 263 (TkH).
[115] See also S v Howells 1999 (1) SACR 675 (C); S v Blank 1995 (1) SACR 62 (A).
[116] 1997 (2) SACR 418 (C) 433b-c.
[117] 2001 (1) SA 957 (LCC).
[118] 1997 (1) SA 124 (CC).
[119] At [14].
[120] 2001 (2) SA 609 (E).
[121] In fact, it has been held to be an abuse of process to subpoena a witness to come and give evidence on
points of law. See De Klerk v Scheepers and Others 2005 (5) SA 244 (T).
[122] Section 224(a) of the CPA and s 5(1) of the CPEA.
[123] R v Foster 1922 EDL 166.
[124] Section 224(b) of the CPA and s 5(2) of the CPEA.
[125] Hahlo & Kahn The South African Legal System and Its Background (1973) 111-2.
[126] A rule of international law will be accorded customary status when it has general or widespread acceptance.
Although in Nduli and Another v Minister of Justice and Others 1978 (1) SA 893 (A) at 906D the court indicated that
universal acceptance was required, the correctness of this view has been questioned in subsequent decisions and it
would appear that general acceptance is sufficient. See Inter-Science Research and Development Services (Pty) Ltd v
Republica Popular De Mocambique 1980 (2) SA 111 (T) 124–5; S v Petane 1988 (3) SA 51 (C) 56-7; Dugard
International Law: A South African Perspective 4 ed (2011) 50-52.
[127] Dugard International Law 51.
[128] See, eg, South Atlantic Islands Development Corporation Ltd v Buchan 1971 (1) SA 234 (C), in which the
court refused to admit an affidavit from an expert on international law on the ground that international law is not
foreign law and therefore cannot be proved by affidavit.
[129] See Dugard International Law 50-51.
[130] Act 45 of 1988.
[131] Rowe v Assistant Magistrate, Pretoria 1925 TPD 361.
[132] S v Masilela and Another 1968 (2) SA 558 (A); Standard Bank of South Africa Ltd and Another v Ocean
Commodities Inc and Others 1983 (1) SA 276 (A).
[133] See, eg, Thibela v Minister Van Wet en Orde en Andere 1995 (3) SA 147 (T). Also Standard Bank of South
Africa Ltd and Another v Ocean Commodities Inc and Others 1983 (1) SA 276 (A).
[134] See, eg, Holz v Harksen 1995 (3) SA 521 (C); Kwikspace Modular Buildings Ltd v Sabodala Mining Co Sarl
and Another 2010 (6) SA 477 (SCA) and Martin 1997 Stell LR 377. Note that s 39(1)(b) & (c) of the Constitution
provides that in interpreting the provisions of ch 2 a court “must consider international law and may consider foreign
law”. See further Shabalala v Attorney-General, Transvaal and Another; Gumede and Others v Attorney-General,
Transvaal 1995 (1) SACR 88 (T) 125d-g; S v Makwanyane and Another 1995 (2) SACR 1 (CC). For a comparative
survey of methods of proving foreign law, see Hartley “Pleading and Proof of Foreign Law: The Major European
Systems Compared” 1996 45 International and Comparative Law Quarterly 271.
[135] See Sati v Kitsile 1998 (3) SA 602 (E) in which the court held that while s 1(1) allowed courts to take judicial
notice of readily accessible and readily ascertainable rules it was not a vehicle for extending the jurisdiction of the
Magistrates’ Courts.
[136] Section 1(4) was amended by s 4 of Act 18 of 1996 (by means of schedule III to this Act).
[137] Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting 2002 (3) SA 765 (T). In Institut
National des Appellations d’Origine v Schmidt [2003] JOL 11095 (T) the court could not take judicial notice of French
law. Two witnesses were therefore called as “experts” on French law to prove that the appellant was a juristic
person. The court held that neither was an expert: one worked for a French government department and never
claimed that she was a lawyer; the other one was a French intellectual property lawyer who lacked experience and
never stated his qualifications.
[139] 1993 (4) SA 479 (W). See also C Hoare & Co v Runewitsch and Another 1997 (1) SA 338 (W); Hassan v
Hassan 1998 (2) SA 589 (D).
[140] At 485D-E.
[141] At 485H. See Schlesinger v Commissioner for Inland Revenue 1964 (3) SA 389 (A); S v Masilela and
Another 1968 (2) SA 558 (A); MV Alam Tenggiri Golden Seabird Maritime Inc and Another v Alam Tenggiri Sdn Bhd
and Another 2001 (4) SA 1329 (SCA). See also Kahn 1970 SALJ 145.
[142] Bank of Lisbon v Optichem Kunsmis (Edms) Bpk 1970 (1) SA 447 (W). Cf Kahn 1970 SALJ 145.
[143] At 486-7. In S v Kruger en Andere 1987 (4) SA 326 (T) it was held that the presumption did not apply in
criminal proceedings.
[144] 2000 (2) SA 370 (T).
[145] See also Mabena v Letsoalo 1998 (2) SA 1075 (W) 1075.
[146] Hlophe v Mahlalela and Another 1998 (1) SA 449 (T).
[147] 2000 (3) SA 867 (SCA).
[148] At [43]. See generally Bennett A Sourcebook of African Customary Law for Southern Africa (1991) 129-33.
[149] Schedule 4 to the Interim Constitution.
[150] Government Notice, No R1675 in Gazette 25726, 31 Oct 2003 (with effect from 1 Dec 2003).
[151] An amicus curiae is, strictly speaking, not a party to the case, but someone who has a special interest in the
outcome of the case. The admission of and submissions by an amicus curiae are largely governed by rule 9 of the
Constitutional Court rules. See also generally Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others 1996 (1) SA 984 (CC) at [4] and Ex Parte Institute for Security Studies: In Re S v Basson 2006 (2) SACR
350 (CC).
[152] Rule 31(1)(a) of the Constitutional Court Rules.
[153] Rule 31(1)(b) of the Constitutional Court Rules.
[154] Government Notice, No 16204, Reg No 5450, 6 Jan 1995. See n 150 above for the Government Notice
containing the present rules.
[155] See generally Charles et al Evidence and the Canadian Charter of Rights and Freedoms (1989) 112;
Wormuth “The Impact of Economic Legislation upon the Supreme Court” 1957 6 Journal of Public Law 296 308;
Delisle Evidence: Principles and Problems 2 ed (1989) 183-91.
[156] Davis “An Approach to Problems of Evidence in the Administrative Process” 1942 55 Harvard LR 364 402.
[157] Davis “Judicial Notice” 1955 55 Columbia LR 945 952. See also Davis Administrative Law Treatise (vol 3) 2
ed (1980) para 15 2.
[158] Cleary (ed) McCormick on Evidence 2 ed (1984) para 328.
[159] See generally the cases referred to in n 165 below.
[160] See generally Alfange “The Relevance of Legislative Facts in Constitutional Law” 1966 114 University of
Pennsylvania LR 637 667; Hogg “Proof of Facts in Constitutional Cases” 1976 26 University of Toronto LJ 386 395.
[161] Muller v Oregon 208 US 412 (1908).
[162] At 421.
[163] De Witt (ed) The Supreme Court and its Work (1981) 32.
[164] See generally Davis 1955 44 Columbia LR 945 953.
[165] Hogg 1976 26 University of Toronto LJ 387 396.
[166] See generally S v Ntuli 1996 (1) SACR 94 (CC) at [27] (statistics); Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others supra at [4] (memoranda submitted by professional bodies); S v
Makwanyane and Another 1995 (2) SACR 1 (CC) at [24] (statistics); Shabalala and Others v Attorney-General of
Transvaal and Another 1995 (2) SACR 761 (CC) at [18] (annual reports of the Dept of Justice).
[167] 2000 (1) SACR 162 (NmS).
[168] At 171.
[169] 1997 (2) SACR 540 (CC).
[170] Rule 19 of the interim rules coincides with rule 20 of the current rules.
[171] Rule 35 of the interim rules is replaced by rule 32 in the current rules.
[172] See also National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1 (CC) at [7]; Parbhoo and Others v Getz NO and Another 1997 (4) SA 1095 (CC). Cf Prince v
President, Law Society, Cape of Good Hope and Others 2001 (1) SACR 217 (CC).
[173] At [19]. See now rule 20.
[174] Rule 33 has been replaced by rule 32 in the current rules.
[175] At [54].
[176] At [68]. See also Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) at [10], [11], [13]
and [98].
[177] For an example of additional material introduced in terms of rule 31 see Hoffmann v South African Airways
2001 (1) SA 1 (CC) at [3]. The material admitted included: opinions by various medical experts on the transmission,
progression and treatment of HIV as well as the ability of people with HIV to be vaccinated against yellow fever;
minutes reflecting the unanimous views of these medical experts.
[178] 2005 (2) SA 359 (CC).
[179] At [38].
[180] In Re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and
Others 2002 (5) SA 713 (CC); Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC) at
[45]; Prince v President of the Law Society of the Cape of Good Hope 2002 (1) SACR 431 (CC) at [11].
[181] Prince v President, Cape Law Society, and Others supra at [10].
[182] S v Shaik and Others 2008 (1) SACR 1 (CC) at [19]; Prince v President, Cape Law Society, and Others supra
at [11].
[183] 2013 (2) SA 144 (CC).
[184] At [34].
[185] Ibid.
Page 536
Chapter 28
Rebuttable Presumptions of Law
P J Schwikkard

28 3 The Classification of Presumptions
28 5 1 Marriage
28 5 2 Bigamy
28 5 3 Legitimacy
28 5 5 Death
28 5 6 Regularity
28 5 6 1 Letters

A precise and readily identifiable definition of the term “presumption” is probably impossible
to formulate because the nature and effect of presumptions are so varied. [1] Elliot defines a
presumption “as a conclusion which may or must be drawn in the absence of contrary
evidence”. [2] Heydon asserts that in terms of this definition presumptions merely state the
effect of the rules as to the burden of proof. [3] For example, the presumption of innocence
requires the prosecution to prove the accused’s guilt; “. . . it is not in itself an item of
evidence”. [4] There is another kind of presumption: “[A] conclusion (the —presumed fact’)
which may or must be drawn if another fact (the —basic fact’) is first proved.” [5] For
example, once it is shown that two people went through what appeared to be a marriage
ceremony their marriage will be presumed to be valid. In R v Bakes [6] Dickson CJC noted:
“Presumptions can be classified in two general categories: Presumptions without basic facts and
presumptions with basic facts. A presumption without a basic fact is simply a
Page 537
conclusion which is to be drawn until the contrary is proved. A presumption with a basic fact entails a
conclusion to be drawn upon proof of the basic fact . . .”
|
Thayer describes presumptions as “aids to reasoning and argumentation, which assume the
truth of certain matters for the purpose of some given inquiry”. [7] Presumptions form part of
our legal system for a number of reasons. [8] Morton and Hutchison assert that presumptions
assist the courts in reaching a valid and effective affirmative finding. [9] Presumptions also
allocate burdens of proof in accordance with the probabilities and dictates of fairness. [10]
Presumptions, furthermore, save time by not requiring a party to prove something that is
most probably true. Allen argues that presumptions are a means of giving presiding officers
control over the evidentiary process and that they are a device for prying information from
litigants. [11] Presumptions also reflect policy preferences as to desired outcomes. [12] For
example, the presumption of innocence is not applied because common sense tells us that
most accused persons are likely to be innocent, but because policy considerations require us
to minimise the risk of convicting innocent persons.
Presumptions can also be viewed as necessary for legal rhetoric which is based on the
“argument-from-ignorance”. [13] This rhetorical manner forces us to reach default legal
conclusions in the absence of sufficient evidence. This, for example, is explicit in the
application of the presumption of innocence which requires an acquittal in the absence of
proof of guilt beyond a reasonable doubt. [14]
28 3 The Classification of Presumptions [15]
Presumptions are traditionally classified in terms of three categories: irrebuttable

presumptions of law, rebuttable presumptions of law, and presumptions of fact.
Page 538

Irrebuttable presumptions of law furnish conclusive proof of the fact presumed and cannot
be rebutted by evidence to the contrary. The term “presumptions” in this context is
misleading because irrebuttable presumptions of law are really rules of substantive law. [16]
As many of these presumptions exist for reasons of public policy and not because they
necessarily reflect reality, it has been argued that they should not be disguised as
presumptions. [17] For example, because a child under the age of 10 is presumed to be
incapable of discerning between good and evil she cannot be held to be criminally or
delictually liable. [18] Obviously some children under the age of 10 may be capable of
distinguishing between good and evil, and for this reason Zeffertt, Paizes & Skeen are of the
view that the rule would be better phrased as follows: “No child under 10 may be convicted
of a criminal offence.” [19]

Rebuttable presumptions of law “are rules of law (within the law of evidence) compelling the
provisional assumption of a fact. They are provisional in the sense that the assumption will
stand unless it is destroyed by countervailing evidence”. [20] For example, in terms of s 21(3)
of the Sexual Offences Act, [21] once a person is proved to reside in a brothel or to live with
or to be habitually in the company of a prostitute and to have no visible means of
subsistence the court is required to assume that she or he is living off the earnings of
prostitution. This assumption will stand until the accused satisfies the court to the
contrary. [22]
In Rex v Fourie and Another [23] Stratford ACJ said that “the judge’s mind does not — and
ought not to — advert to the reason for the presumption, and the presumption must be
accepted as proof of the fact presumed until rebutted”. However, where a presumption
infringes a constitutional right (see chapter 29 below) a logical connection between the
evidence which triggers the presumption and the presumed fact will be a prerequisite for
constitutional justification.
Elliot describes presumptions of fact as “merely frequently recurring examples of
circumstantial evidence”. [24] Similarly Zeffertt, Paizes & Skeen state that a presumption of
fact “is a mere inference of probability which the court may draw if on all the evidence it
appears to be appropriate”. [25] A court is not obliged to draw the inference dictated by a
Page 539
presumption of fact if such an inference would not accord with common sense. [26] For
example, it can be presumed that a person found in possession of recently stolen goods
stole them or received them knowing that they were stolen. In S v Skweyiya, [27] when the
accused was stopped at a road block, he lied to the police in telling them that he did not
have a key to the boot. When the boot was eventually opened it was found to contain stolen
property (hi-fi equipment and bedspreads). The accused lied again and told the police that
he had not known that the goods were in his boot. The court, finding that the goods were of
the type that could be quickly sold, held that the facts did not justify invoking the
presumption that the accused himself actually stole them. Consequently, he was found guilty
of receiving stolen property but not guilty of theft. [28]
As these inferences reflect no more than ordinary reasoning and common sense, it has
been suggested that it is misleading to call them presumptions. Ogilvie Thompson JA in
Arthur v Bezuidenhout and Mieny referred with approval to the following remarks made by
Wigmore: [29]
“[T]he distinction between presumptions ‘of law’ and presumptions ‘of fact’ is in truth the difference
between things that are in reality presumptions and things that are not presumptions at all There is in
truth but one kind of presumption; and the term ‘presumption of fact’ should be discarded as useless
and confusing.”

In § 28 1 above it was said that presumptions which operate without the requirement of
proof of any basic facts can be viewed as merely stating the rules as to the burden of proof.
The effect of these presumptions on the burden of proof is generally easily ascertainable: for
example, the presumption of innocence requires the state to prove the guilt of the accused
beyond a reasonable doubt, whilst the presumption of sanity requires a person alleging
insanity to provide proof on a balance of probabilities. [30] However, the effect on the burden
of proof by presumptions that require proof of a basic fact is not always as clear. In R v
Downey [31] the court classified presumptions in terms of their effect on the burden of proof
as follows:
“(a) Permissive Inferences: Where the trier of fact is entitled to infer a presumed fact from the proof
of a basic fact, but is not obliged to do so. This results in a tactical burden whereby the accused may
wish to call evidence in rebuttal, but is not required to do so (b) Evidential Burdens: Where the trier of
fact is required to draw a conclusion from proof of the basic fact in the absence of evidence to the
contrary. This mandatory conclusion
Page 540
results in an evidential burden whereby the accused will need to call evidence, unless there is already
evidence to the contrary in the Crown’s case . . . (c) Legal Burdens: Similar to the burden in (b)
except that the presumed fact must be disproved on a balance of probabilities instead of by the mere
raising of evidence to the contrary. These are also referred to as ‘reverse onus clauses’.”
The above analysis of presumptions was found to be useful by the Constitutional Court in S v
Zuma and Others. [32] The constitutionality of presumptions that have the effect of placing a
burden of proof on the accused is discussed in chapter 29 below.
Permissive presumptions (inferences) of fact, in terms of the Downey analysis, have no
effect on the incidence of the burden of proof, merely casting a tactical burden on the
accused to adduce evidence. They need to be distinguished from presumptions requiring
mandatory conclusions in the absence of evidence to the contrary. The latter presumptions
carry evidentiary burdens and must in turn be distinguished from presumptions casting a full
legal burden on a party.
Zeffertt, Paizes & Skeen assert that whether a rebuttable presumption of law casts an
evidential burden or legal burden on the person against whom the presumption operates can
be ascertained by looking at the language in which the presumption is cast. [33] When a
provision states that “X has happened unless the contrary has been proved (or other words
to that effect)” [34] then a legal burden rests on the party who has the task of rebutting the
presumption. The presumption can be rebutted by proof on a balance of probabilities. [35]
However, where it is stated “that evidence of fact constitutes ‘prima facie proof of’, or ‘prima
facie evidence of’ then only an evidentiary burden is created”. [36] The words “in the absence
of evidence to the contrary” have the same effect. [37]

There are so many presumptions both at common law and in terms of statute that any
detailed discussion of them would be “an unprofitable and monstrous task”. [38] A few
examples have been selected for discussion in order better to illustrate the effect of
presumptions (see §§ 28 5 1 to 28 5 7 below). There are two important statutory
presumptions which are dealt with in other chapters of
Page 541
this work: the presumption concerning lack of criminal capacity in respect of children 10
years or older but not yet 14 years old (see § 4 4 above) and the presumption of mental
normality (see § 31 3 3 1 below).
28 5 1 Marriage
The validity of a marriage will be presumed once evidence is adduced showing that a
marriage ceremony was performed. [39] The onus is on the person who challenges the
validity of such a marriage to show that it is invalid. [40] This rebuttable presumption of law
creates a legal burden in that the validity of the marriage must be disproved on a balance of
probabilities. The presumption as stated in Halsbury’s Laws of England [41] also requires
proof that the parties subsequently lived together as husband and wife. However, Zeffertt,
Paizes & Skeen state that although in most of the decided cases there was proof of
cohabitation, evidence of cohabitation does not appear to be essential to raise a presumption
of validity. [42]
In Halsbury [43] it is also stated that “[m]ere cohabitation as man and wife if the parties
were esteemed and reputed as such by those who knew them may be sufficient to raise the
presumption” (that is the presumption of marriage). Although in Aronegary v Vaigalie [44] the
presumption was held to persist “unless the contrary be clearly proved”, it is argued that an
analysis of the majority of cases would indicate that this is a presumption of fact. [45] For
example, in Fitzgerald v Green [46] one of the issues that the plaintiffs had to prove was that
they were the legitimate children of their parents (F and H). The defendant alleged that F
and H had not been legally married. In support of his contention the defendant established
that there was no record of the marriage in the relevant registers. However, it was also clear
from the evidence that the registers had not been properly kept and were incomplete. The
court, although noting that the ordinary way of proving a marriage was to produce the
register or a certified extract from it, held that it could be proved in other ways, for example,
by evidence of witnesses who were present at the marriage ceremony or by satisfactory
evidence of cohabitation and repute. [47] The plaintiffs produced evidence of a court order
granting a decree of divorce, which they argued was proof that their parents had been
married. The court held that in the circumstances of the case the parties had not been
strangers to one another and the decree of divorce was evidence of the marriage of F and
H. [48] However, the court held that apart from the decree of divorce the plaintiffs had
established a lawful marriage between their parents by the production of evidence of
cohabitation and repute. A witness testified that he had known F and H before they were
married, and after hearing that they were
Page 542
to be married he saw them go to a church. He also saw them leaving the church and
thereafter heard them being congratulated as bridegroom and bride. Several other witnesses
testified that F and H lived together as husband and wife and were generally considered to
be married. Evidence was also led that the plaintiffs had been baptised in the Roman
Catholic Church and that this Church did not baptise children “of parents living in sin
together”. [49] The court held that all this evidence considered together established a very
strong prima facie case that F and H were legally married. [50] Common sense tells us that
the court did not have to invoke a presumption of law to reach this conclusion as the facts
alone were sufficient to establish a prima facie case. Consequently, it would appear that a
presumption of fact and not a presumption of law was applied in this case. The court held
that the finding in Aronegary v Vaigalie, [51] that where a man and woman are proved to
have lived together as man and wife, the law will presume, unless the contrary be clearly
proved, that they were living together in consequence of a valid marriage and not in a state
of concubinage, also reflected the correct position in South African law. [52] This is the
language of a rebuttable presumption of law and it is submitted that this is the correct
classification of the presumption.
Every marriage is presumed to be in community of property until the contrary is
proved. [53] In Brummund v Brummund’s Estate [54] the parties’ marriage certificate did not
reflect whether they were married with or without an antenuptial contract, the relevant
space on the certificate having been left empty. The court held that the presumption that
they were married in community of property could be defeated by satisfactory evidence to
the contrary. Although in Acar v Pierce and Other Like Applications [55] the court appears to
have regarded the presumption as one of fact, Brummund’s case would appear to indicate
that it is a rebuttable presumption of law. [56]
28 5 2 Bigamy
“(1) At criminal proceedings at which an accused is charged with bigamy, it shall, as soon as it is
proved that a marriage ceremony, other than the ceremony relating to the alleged bigamous
marriage, took place within the Republic between the accused and another person, be presumed,
unless the contrary is proved, that the marriage was on the date of the solemnization thereof lawful
and binding.
(2) At criminal proceedings at which an accused is charged with bigamy, it shall be presumed,
unless the contrary is proved, that at the time of the solemnization of the alleged bigamous marriage
there subsisted between the accused and another person a lawful and binding marriage —
Page 543
(a) if there is produced at such proceedings, in any case in which the marriage is alleged to
have been solemnized within the Republic, an extract from the marriage register which
purports —
(i) to be a duplicate original or a copy of the marriage register relating to such
marriage; and
(ii) to be certified as such a duplicate original or such copy by the person having the
custody of such marriage register or by a registrar of marriages;
(b)
if there is produced at such proceedings, in any case in which the marriage is alleged to
have been solemnized outside the Republic, a document which purports —
(i) to be an extract from a marriage register kept according to law in the country
where the marriage is alleged to have been solemnized; and
(ii) to be certified as such an extract by the person having the custody of such register,
if the signature of such persons on the certificate is authenticated in accordance
with any law of the Republic governing the authentication of documents executed
outside the Republic.
(3) At criminal proceedings at which an accused is charged with bigamy, evidence —
(a) that shortly before the alleged bigamous marriage the accused had been cohabiting with
the person to whom he is alleged to be lawfully married;
(b) that the accused had been treating and recognizing such persons as a spouse; and
(c) of the performance of a marriage ceremony between the accused and such person,
shall, as soon as the alleged bigamous marriage, wherever solemnized, has been proved, be prima
facie proof that there was a lawful and binding marriage subsisting between the accused and such
person a the time of the solemnization of the alleged bigamous marriage.”
The words “unless the contrary is proved” contained in sub-ss (1) and (2) place a legal
burden on the accused, whilst the words “prima facie proof” in sub-s (3) place an evidential
burden on the accused. [57]
28 5 3 Legitimacy
Once a party alleging legitimacy has proved that the child in question was conceived by a
woman whilst she was married the child will be presumed to be legitimate, and the party
contesting legitimacy must prove on a balance of probabilities that the child was not
conceived as a result of intercourse between the spouses. It is clear that a legal burden is
created by this presumption. This presumption can be rebutted by leading evidence of blood
or DNA tests showing that the spouse was not the father, or by establishing that the
husband was sterile at the relevant time. It has been held that proof that contraceptives
were used at the material time will carry little weight. [58] In terms of s 226 of the CPA either
spouse may give evidence that the parties did not have sexual intercourse during the period
when the child was conceived. A similar provision is found in s 3 of the CPEA. [59]

Section 36 of the Children’s Act [60] provides:
Page 544
“If in any legal proceedings in which it is necessary to prove that any particular person is the father of
a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the
child at any time when that child could have been conceived, that person is, in the absence of
evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the
child.”
A similar presumption existed at common law. [61] In terms of the common law the person
against whom the presumption operated had to prove that he could not possibly be the
father, not merely that he probably was not the father. [62] However, the words “in the
absence of evidence to the contrary which raises a reasonable doubt” [63] are a clear
indication that the statutory presumption in s 36 merely places an evidential burden [64] on
the alleged father in contrast to the common-law presumption, which created a legal burden,
that is, a burden of proof. [65]
The statutory presumption that a person who refused to submit to a paternity test did so
in order to conceal the truth in regard to the paternity of the child [66] has been repealed and
replaced by s 37 of the Children’s Act [67] , which provides:
“If a party to any legal proceedings in which the paternity of a child has been placed in issue has
refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out
scientific tests relating to the paternity of the child, the court must warn such party of the effect which
such refusal might have on the credibility of that party.”
Unlike its predecessor this section does not create a presumption of any sort and merely
provides a procedural safeguard for, or evidential warning to, the person who refuses to
submit to a paternity test in that he or she must be reminded that depending on the
circumstances inferences may be drawn as to his or her credibility.
In LB v YD [68] the above two provisions were held not to apply in the following factual
scenario. The child whose paternity was in question was conceived whilst the mother (the
respondent) was co-habiting with and engaged to the applicant. Two months after
conception the mother left the applicant’s home and seven months later when the child (Y)
was born, the respondent was married to another man (X). In the year subsequent to birth
both applicant and respondent at various stages claimed and denied the applicant’s paternity
of the child. The applicant eventually approached the court for an order directing the
applicant and Y to submit to a DNA test so that he could establish
Page 545
whether he was the father of Y. The respondent objected to the blood test on the basis that
it was an unnecessary infringement of the privacy and dignity of herself and Y, as she was
ready to concede that the applicant was the father of the child. Furthermore ss 36 and 37 of
the Children’s Act provided a less invasive way of proving paternity.
Murphy J held that s 36 did not assist in this case. Y was born in wedlock and
consequently X, not the applicant, was presumed to be the father. Section 37 was also of
little assistance as it did not help the applicant determine whether or not he was the father
of the child. The court noted that the law to date was unsettled as regards the courts’
authority to order non-consenting adults to be tested for purposes of establishing DNA. In
respect of children the preponderance of authority confirmed the courts’ authority to order
such a test in relation to minor children. The court noted that making an order in relation to
a non-consenting adult required balancing the interest of justice in establishing the truth, the
privacy rights of the adult and the best interests of the child. Although the best interests of
the child were paramount, they were not the only consideration. Taking into account the
rights of unmarried biological fathers and their right to approach the court in terms of s 26 of
the Children’s Act for an order confirming paternity, as well as the child’s interest in having
certainty regarding paternity, the court held that it was in the best interest of the child that
the respondent submit herself and Y to DNA tests for the purpose of establishing paternity.
The court dismissed the mother’s application for leave to appeal in YD v LB (A). [69]
Judge Murphy’s approach seems to be one that accords with the spirit of both the
Children’s Act and the Constitution and hopefully will set a precedent that will settle the
prevailing uncertainty as regards the court’s inherent jurisdiction to make non-consenting
adults submit to DNA testing for the purposes of establishing paternity.
28 5 5 Death
In terms of both the Inquests Act [70] and the common law, in certain circumstances, a
person can be presumed to have died. Section 16(1) of the Inquests Act provides:
“If in the case of an inquest where the body of the person concerned is alleged to have been
destroyed or where no body has been found or recovered, the evidence proves beyond a reasonable
doubt that a death has occurred, the judicial officer holding such inquest shall record a finding
accordingly . . .”
Once such a finding has been made the magistrate is required to submit the record of the
inquest to a provincial or local division of the High Court for review. [71] Once the finding is
confirmed by the High Court it is no longer necessary to make an application to court for an
order presuming death. [72]
It would appear that at common law death is not required to be proved beyond
reasonable doubt and the applicant is required to persuade the court
Page 546
that death can be “inferred on a preponderance of probability from the evidence”. [73] A
judicial declaration of death is a presumption in that it is based on circumstantial evidence
and can be invalidated if the person is subsequently proved to be alive. [74]
Unlike the English law, which requires a person to have been unheard of for seven years
before a persuasive presumption of death will be found to exist, [75] the South African law
does not require any specific facts to be proved before death will be presumed. The court will
not presume death merely because a person has been missing for a number of years. [76] For
example, in Ex parte Govender [77] the applicant’s husband had been missing for eight years.
Ten days after the day on which he disappeared a suicide note was found in his jacket
pocket. In the note he gave financial difficulties as the reason for taking his life. The suicide
note was dated some five months before his disappearance. The court, noting that it was
extremely rare for the body of a suicide victim not to be found and that the suicide victim
had not left the note in a place where it could easily be discovered, held that it was also
possible that the applicant’s husband had disappeared in order to avoid his creditors. The
court held that, although there was an inherent possibility of suicide, there were insufficient
facts from which to infer that on a preponderance of probabilities death had occurred. [78]
However, in some circumstances the mere passage of time will make it unlikely that the
person is still alive. In Ex parte Engelbrecht [79] death was presumed when the man had been
missing for thirty-five years, and would have been 93 years old at the date of the
application. In Ex parte Rungsamy [80] a presumption of death was made when the woman
who was the subject of the application had been missing for only four years. However, she
was 83 or 84 years of age, known to be in frail health, and had not collected her pension
during the years when she was missing.
Most often when an application is made for a presumption of death the court will issue a
rule nisi calling upon all persons to show cause why an order presuming death should not be
made. The rule nisi will be issued once the applicant has established a prima facie case. [81]
The court will only decide on the return day whether there is sufficient evidence to support a
presumption of death. Zeffertt, Paizes & Skeen suggest that if there is no response to the
rule nisi, a presumption of death will be made. [82] However, in Ex parte Dieters, [83] despite
the absence of a response to the rule nisi, the court declined to presume death. This can
perhaps be explained on the basis that a prima facie
Page 547
case does not mean that a court must find in favour of the applicant, but simply that it may
find in favour of the applicant. The disadvantages suffered by an applicant who goes to the
expense of publishing the rule nisi, but fails in her application despite the absence of a
response, is ameliorated in that the court may find that there is sufficient evidence to enable
the court to appoint a curator bonis to manage the missing person’s affairs. [84] The court
may even order that the estate be distributed to the heirs, usually with the proviso that
security be given. [85] For example, in Ex parte Dieters [86] the court, having issued a rule
nisi, found that there was not sufficient evidence to order a presumption of death. However,
the court authorised the distribution of the money held in the guardian’s fund to the missing
man’s children without the necessity of the children providing security.
Section 2 of the Dissolution of Marriages on Presumption of Death Act [87] provides that when
a married person has been presumed dead in terms of the Inquests Act “the marriage in
question shall for all purposes be deemed to have been dissolved by death”. The surviving
spouse need not make application for an order dissolving the marriage.
Section 1 of the Act provides that when an application for an order presuming the death of
a married person is made the High Court granting the order may at the same time make an
order that the marriage is deemed to be dissolved. If the orders are not made
simultaneously, the surviving spouse may at any later stage make an application for an
order dissolving the marriage.
The court will presume death to have occurred on or before a particular date only if the
evidence supports such a finding. [88] In Nepgen NO v Van Dyk NO [89] Lansdown JP held that
there was no presumption in our law such as the English law presumption that if the order of
death is uncertain the younger is deemed to have survived the elder. Consequently, the
party alleging a particular order of death bears the onus of proof. Where people have died in
a common disaster the court has frequently held that they died simultaneously. Examples of
orders presuming simultaneous death include cases where ships had been torpedoed during
wartime; [90] the death of a mother and sister during the German occupation of Poland; [91]
the death of passengers in an air crash. [92] This presumption is one of fact and will generally
only be invoked where on the facts it appears most probable that the deaths
Page 548
were simultaneous. However, it would also appear that factors such as the absence of
prejudice and the intention of the testator also affect the willingness of the court to presume
simultaneous death. For example, in Ex Parte Chodos [93] there was little, if any, evidence to
show that the parties had died simultaneously; however, the court made an order declaring
that the two people had died simultaneously, noting that the order would not prejudice
anybody’s rights. The court in Ex Parte Graham [94] held that there was evidence to show
that the testators, in using the word “simultaneously” in their will, had foreseen their deaths
happening on one occasion as a result of a single disaster, whether or not there was a
difference in time between the technical moments of death. It was therefore found that the
parties had died simultaneously. [95]
28 5 6 Regularity
The presumption of regularity is based on the maxim omnia praesumuntur rite esse acta.
Zeffertt, Paizes & Skeen, noting that the presumption is ill-defined, describe it in the
following terms: [96]
“In some cases it appears to be no more than an ordinary inference, based upon the assumption that
what regularly happens is likely to have happened again. In other cases it is treated as a presumption
of law, sometimes placing an onus upon the opposing party and sometimes creating only a duty to
adduce contrary evidence. It has been applied in a wide variety of cases which are impossible to
catalogue exhaustively.”
28 5 6 1 Letters
Circumstantial evidence can be adduced to prove that a letter was posted. The party alleging
posting may lead evidence establishing the existence of a routine used for posting letters
and showing that the letter in question was dealt with in this routine manner. This is more
easily done in the case of public officials as the court will take judicial notice of the existence
of an office routine. [97] Wessel CJ in Cape Coast Exploration Ltd v Scholtz and Another
held: [98]
“We must presume that an official will carry out the ordinary routine work of his office, for in our
experience this is what usually occurs. Hence we must presume that if an official letter is written and
a copy filed, the former is dispatched in the ordinary course of business to the person concerned and
that he has received it.”
However, in the case of persons working in the private sector the court generally requires
evidence of an office routine from which posting can be inferred. [99] The rule has also been
held to apply to documents sent by means of the Document Exchange (Docex). [100] This is a
presumption of fact; therefore the burden of proof is not affected.
An unregistered letter that is presumed to be posted will not be presumed to have been
received. For example, in
Page 549
Goldfields Confectionery and Bakery (Pty), Ltd v Norman Adam (Pty), Ltd [101] the court
assumed in the defendant’s favour that an envelope containing a cheque had been posted
and that if it had been placed in the plaintiff’s post-office box by postal officials, this would
constitute delivery. Counsel for the defendant argued that there was a presumption that a
letter which has been posted had reached the addressee. Ramsbottom J rejected this
contention and held that the word “presumption” in this context
“means no more than that the fact that a letter was posted is evidence from which an inference that it
reached the addressee may be drawn. But all the circumstances must be considered in order to decide
whether on a balance of probabilities the inference ought to be drawn.” [102]
The court concluded that in the present case there was no evidence that the envelope was
addressed to the plaintiff’s post box and consequently delivery could not be inferred. [103]
However, the position in respect of registered letters is different both at common law and
in terms of statute. In S v Buys [104] the court held evidence that a letter had been posted
and that a post-office slip had been received, constituted prima facie proof that the request
had been received and that the appellant’s failure to testify elevated the prima facie proof to
proof beyond reasonable doubt. It would therefore appear that proof that a letter was sent
by registered post will give rise to a presumption that it was received. The presumption casts
an evidentiary burden on persons alleging that they did not receive the letter.
Section 7 of the Interpretation Act [105] provides: [106]
“Where any law authorizes or requires any document to be served by post, whether the expression
‘serve’, or ‘give’, or ‘send’ or any other expression is used, then unless the contrary intention appears,
the service shall be deemed to be effected by properly addressing, prepaying, and posting a
registered letter containing the document, and unless the contrary is proved, to have been effected at
the time at which the letter would be delivered in the ordinary course of post.”
Zeffertt, Paizes & Skeen comment on the strangeness of this presumption, in that by
allowing the addressee to rebut the presumption that he received it at a particular time, it
will “always be open to the addressee to prove that the service was in fact ineffective
because the document did not reach him”. [107] It would appear that this presumption casts a
legal burden on the person disputing the time of delivery.
Public officials are rebuttably presumed to have been properly appointed. This presumption
places a legal burden on the
Page 550
party alleging the contrary. [108] It is also presumed that an official has acted in compliance
with prescribed formalities. [109] Wigmore [110] sets out the following conditions for the
operation of the presumption: [111]
“The general experience that a rule of official duty, or the requirement of legal conditions, is fulfilled
by those upon whom it is incumbent, has given rise occasionally to a presumption of due
performance. This presumption is more often mentioned than enforced; and its scope as a real
presumption is indefinite and hardly capable of reduction to rules . . . It may be said that most of the
instances of its application are found attended by several conditions; first, that the matter is more or
less in the past, and incapable of easily procured evidence; secondly, that it involves a mere formality
or detail of required procedure, in the routine of litigation or of a public officer’s action; next, that it
involves to some extent the security of apparently vested rights, so that the presumption will serve to
prevent an unwholesome uncertainty, and, finally that the circumstances of the particular case add
some element of probability.”
In S v Thornhill [112] the court held that not all the requirements set out by Wigmore need to
be present in order for the presumption to apply. [113] The effect of the presumption on the
burden of proof varies: [114]
“In some criminal cases it has been said to place an onus upon the accused, but in others the judges
have used language which indicated that the presumption could be rebutted by some evidence upon
which the court could find that the requisite formalities were not complied with . . . In civil cases,
however, the presumption has often been treated as placing an onus upon the opposing party, and in
cases where proof of non-compliance with a formality would involve the disturbance of old and vested
rights, the onus of rebuttal has been very heavy indeed.”
The presumption should not be interpreted as meaning that it will be presumed that all
official acts are lawful. For example, in R v Jenkins [115] the court held that it could not be
presumed that an arrest was lawful.
It would appear that the presumption applies in a very diluted form to private acts, and is
merely an ordinary inference of probability. [116]

The maxim res ipsa loquitur means “the matter speaks for itself”. It is almost exclusively
applied where the cause of an accident is unknown. [117] If it is the type of accident that does
not ordinarily occur in the absence of negligence, an inference of negligence may be drawn
from the
Page 551
accident itself. [118] For example, in Arthur v Bezuidenhout and Mieny [119] the appellant’s
vehicle had suddenly swerved to its right onto the incorrect side of the road and collided
head-on with the respondent’s vehicle. Both drivers had been killed and there was no clear
explanation as to the cause of the accident. The court found the maxim res ipsa loquitur
applied and negligence was inferred. In Madyosi and Another v SA Eagle Insurance Co
Ltd [120] the court found that the maxim did not apply. A bus left the road and overturned
after the left front tyre had burst. The court found that the only known facts relating to the
negligence did not only consist of the occurrence itself. It was known that the bus left the
road and overturned because of the burst tyre. It was held that the burst tyre was not a
neutral fact as regards the alleged negligence. It explained why the bus left the road.
Although the burst tyre was not inconsistent with a negligent failure to maintain the tyres,
no such negligence had been pleaded.
The court concluded that the fact of the burst tyre precluded the inference being drawn
from the mere fact of the occurrence. [121]
Brand J in Buthelezi v Ndaba [122] noted that the maxim res ipsa loquitur seldom had
application in determining medical negligence as the complexities of surgery meant that the
fact that something went wrong during an operation could not automatically lead to an
inference of negligence.
As this presumption is not based on a rule of law but on common-sense reasoning, it
should not strictly be classified as a presumption but rather as a permissible inference which
may be drawn if it is sustained by the proven facts. [123]
The maxim does not affect the incidence of the burden of proof. In Sardi and Others v
Standard and General Insurance Co Ltd [124] the court held:
“The person against whom the inference of negligence is sought to be drawn, may give or adduce
evidence seeking to explain that the occurrence was unrelated to any negligence on his part. The
court will test the explanation by considerations such as probability and credibility. At the end of the
case, the court has to decide whether, on all the evidence and the probabilities and the inferences,
the plaintiff has discharged the onus of proof on the pleadings on a preponderance of probability, just
as the court would do in any other case concerning negligence. In this final analysis the court does
not adopt the piecemeal approach of (a) first drawing the inference of negligence from the occurrence
itself, and regarding this as a prima facie case; and then (b) deciding whether this has been rebutted
by the defendants explanation.”
Where an inference of negligence is drawn an evidential burden is cast on the defendant;
however, this does not mean that he must prove that he was not
Page 552
negligent. He must merely show that the facts are as consistent with an inference not
involving negligence, or he must adduce evidence so as to raise a reasonable doubt. [125]
The maxim res ipsa loquitur is also discussed in § 30 5 4 below.
[1] For a general discussion on definitional difficulties see Dlamini 2002 THRHR 3.
[2] Elliot Elliot and Phipson Manual of the Law of Evidence 12 ed (1987) 77.
[3] Heydon & Ockelton Evidence: Cases & Materials 4 ed (1996) 58.
[4] Heydon & Ockelton Evidence 58.
[6] 1986 26 DLR (4th) 200.
[7] Thayer Preliminary Treatise of Evidence at Common Law (1898) 314.
[8] For a general discussion see Heydon & Ockelton Evidence 60-62. See also Schwikkard Presumption of
Innocence (1999) 22-3.
[9] Morton & Hutchison The Presumption of Innocence (1987) 11.
[10] Cleary “Presuming and Pleading: An Essay on Juristic Immaturity” 1959 12 Stanford Law Review 5.
[11] Allen “Burdens of Proof, Uncertainty, and Ambiguity in Modern Legal Discourse” 1994 17 Harvard Journal of
Law and Public Policy 627. See also Morgan “Instructing the Jury upon Presumptions and Burdens of Proof” 1993 47
Harvard Law Review 59.
[12] Allen 1994 Harvard Journal of Law and Public Policy 627 at 636. See also Gaskin Burdens of Proof in Modern
Discourse (1992) 22.
[13] See Gaskins Burdens of Proof in Modern Discourse (1992) 7, 207 and 210, who identifies the principal
rhetorical manner employed by lawyers as the “argument-from-ignorance”, in terms of which advocates identify a
default position and challenge their opponents to produce irrefutable evidence that their position is correct.
[14] See Rosen “Defrocking the Courts: Resolving ‘Cases of Controversy’ not Announcing Transcendental Truth”
1995 17 Harvard Journal of Law and Public Policy 715.
[15] See § 2 17 above and § 30 5 4 below.
[16] See Scagell and Others v Attorney-General of the Western Cape and Others 1997 (2) SA 368 (CC); 1996 (2)
SACR 579 (CC) at [30].
[17] See § 4 4 above.
[18] R v Lourie (1892) 9 SC 432.
[19] At 168. See also § 4 4 above. Section 7 of the Child Justice Act 75 of 2008 replaced the common law
presumption that children under the age of 7 lacked criminal capacity (raising the age to 10).
[20] LAWSA para 607.
[21] Act 23 of 1957.
[22] On the constitutionality of provisions of this nature, see ch 29 below.
[23] 1937 AD 31 44.
[24] Elliot & Phipson 89. See also § 30 5 4 below.
[25] At 168.
[26] See Elliot Elliot & Phipson 89.
[27] 1984 (4) SA 712 (A).
[28] See also S v Jantjies 1999 (1) SACR 32 (C). In S v Madonsela 2012 (2) SACR 456 (GSJ) it was also confirmed
that the nature of the goods concerned must be taken into account. See further S v Thwala 2014 (1) SACR 414
(KZP) as regards possession that could be considered recent enough to activate the inference of involvement.
[29] 1962 (2) SA 566 (A) 574. The quotation is from Wigmore para 2491.
[30] The constitutionality of this presumption may also be challenged on the same basis as those statutory
presumptions which have the effect of placing the burden of proof on the accused. See § 31 4 1 below.
[31] Supra 456. The burden of proof is discussed in chs 31 (criminal cases) and 32 (civil cases) below.
[32] 1995 (1) SACR 568 (CC); S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC). See §§ 29 1 to 29 2 1 for
further discussion.
[33] At 212.
[34] At 214.
[35] S v Coetzee and Others 1997 (3) SA 527 (CC); S v Zuma and Others 1995 (1) SACR 568 (CC); S v
Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC).
[36] Scagell and Others v Attorney-General of the Western Cape and Others 1997 (2) SA 368 (CC); 1996 (2)
SACR 579 (CC) [11]; Ex Parte the Minister of Justice: In Re Rex v Jacobson & Levy 1931 AD 466, 478; Rex v Abel
1948 (1) SA 654 (A) 661; S v Veldthuizen 1982 (3) SA 413 (A) 416.
[37] Zeffertt & Paizes 185. Despite the Constitutional Court’s approval of the Downey analysis of presumptions, it
has in its own judgments failed to draw a distinction between permissive and mandatory evidentiary presumptions.
See for example, Scagell and Others v Attorney-General of the Western Cape and Others supra discussed in
Schwikkard Presumption of Innocence 6 3 2.
[38] Heydon & Ockelton Evidence 58, quoting Thayer A Preliminary Treatise on Evidence at the Common Law
(1989) 313.
[39] Fitzgerald v Green 1911 EDL 432; Ex Parte L (Also Known as A) 1947 (3) SA 50 (C).
[40] Ochberg v Ochberg’s Estate 1941 CPD 15 33.
[41] Hailsham (ed) vol 13, s 702 at 634.
[43] Laws of England 634.
[44] 1881 6 App Cas 364 371.
[46] 1911 EDL 432.
[47] At 449.
[48] At 452.
[49] At 454.
[50] At 459.
[51] Supra.
[52] At 457. See also Nyokana v Nyokana 1925 NPD 227.
[53] Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A).
[54] 1993 (2) SA 494 (Nm).
[55] 1986 (2) SA 827 (W).
[56] See also Zeffertt & Paizes 203, where they state that it is not clear into which category this presumption falls.
[57] See also Zeffertt & Paizes 204.
[58] Rex v Van der Merwe 1952 (1) SA 647 (O).
[59] Prior to 1935 such evidence was prohibited in terms of the common law. See Russel v Russel and Mayer 1924
AC 687.
[60] Act 38 of 2005.
[61] There is uncertainty whether the common-law presumption can be invoked only by an admission of
intercourse, or whether it also comes into operation when intercourse is proved by some other means. See S v Swart
1965 (3) SA 454 (A).
[62] Mahomed v Shaik 1978 (4) SA 523 (N). On this basis, Zeffertt, Paizes & Skeen at 192 state the exceptio
plurium concubentium, or defence based on evidence that the woman slept with other men, is not part of modern
law. The matter was left open by the Appellate Division in S v Swartz supra.
[63] This formulation makes it clear that the alleged father does not have to show non-paternity on a balance of
probabilities.
[64] The meaning of “evidential burden” is explained in ch 32 below.
[65] Macdonald v Stander 1935 AD 325 329.
[66] Section 2 of the Children’s Status Act 82 of 1987.
[67] Act 38 of 2005.
[68] 2009 (5) SA 463 (T).
[69] 2009 (5) SA 479 (GNP).
[70] Act 58 of 1959.
[71] Section 18(1) of Act 58 of 1959.
[72] Section 18(2) and (2A).
[73] Ex parte Govender 1993 (3) SA 721 (D) 722.
[75] Phipson on Evidence 15 ed (2000) 4-23.
[76] Re Beaglehole 1908 TS 49.
[77] 1993 (3) SA 721 (D).
[78] At 723I.
[79] 1956 (1) SA 408 (E).
[80] 1958 (4) SA 688 (D).
[81] Ex parte Alexander 1956 (2) SA 608 (A) 611.
[82] At 207.
[83] 1993 (3) SA 379 (D).
[84] Ex parte Thomson 1919 CPD 277.
[85] Ex parte Heppinstall 1923 OPD 134.
[86] Supra.
[87] Act 23 of 1979.
[88] See Ex parte Graham 1963 (4) SA 145 (D), in which the court held that the presumptions referred to in Voet
34 5 3 and 36 1 16 were not part of our law; Kakuva en ’n Ander v Minister Van Polisie 1983 (2) SA 684 (SWA).
[89] 1940 EDL 123.
[90] Ex parte Bagshaw 1943 2 SA PH F77 (C); Ex parte Martienssen 1944 CPD 139.
[91] Ex Parte Chodos 1948 (4) SA 221 (N).
[92] Ex Parte Graham supra.
[93] Supra.
[94] Supra.
[95] See 1978 ASSAL 364-6.
[96] At 195.
[97] Cape Coast Exploration Ltd v Scholtz and Another 1933 AD 56.
[98] 1933 AD 56 76.
[99] Barclays National Bank Ltd v Wall 1983 (1) SA 149 (A); Union Spinning Mills (Pty) Ltd v Paltex Dye House
(Pty) Ltd and Another 2002 (4) SA 408 (SCA).
[100] John and Another v Road Accident Fund 2000 (1) SA 459 (T).
[101] 1950 (2) SA 763 (T).
[102] At 768.
[103] See Zeffertt & Paizes 214, where it is noted that “cases in which receipt of a letter is inferred from posting
must be distinguished from those in which, as a matter of substantive law, posting is all that needs to be proved.”
[104] 1988 (2) SA 201 (O).
[105] Act 33 of 1957.
[106] For examples of the application of this provision, see Maron v Mulbarton Gardens (Pty) Ltd 1975 (4) SA 123
(W); Allen v Casey NO and Another 1991 (3) SA 480 (D).
[107] At 198.
[108] Naidoo v R 1909 TS 43.
[109] Rex v Naran Samy 1945 AD 618; Byers v Chinn and Another 1928 AD 322; Tshivhase Royal Council and
Another v Tshivhase and Another 1990 (3) SA 828 (V).
[111] This passage was approved by the Appellate Division in Byers v Chinn and Another 1928 AD 322 at 332;
Natal Estates Ltd v Secretary for Inland Revenue 1975 (4) SA 177 (A).
[112] 1997 (2) SACR 626 (C).
[113] See for example, Byers v Chinn and Another 1928 AD 322.
[114] Zeffertt & Paizes 215. See also Schmidt & Rademeyer (2007) 5-25.
[115] 1945 (3) SA 560 (C).
[116] O’Dowd The Law of Evidence in South Africa (1963) 108. Zeffertt & Paizes 218. See Knocker v Standard
Bank of SA Ltd 1933 AD 128 133, where the court, although not deciding, suggests that it is inappropriate to apply
the presumption to private acts.
[117] Madyosi and Another v SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A).
[118] In Groenewald v Conradie; Groenewald en Andere v Auto Protection Insurance Co Ltd 1965 (1) SA 184 (A)
the court held that in deciding whether a particular matter is one where res ipsa loquitur applies, the court must look
solely at the occurrence itself. See also Stacey v Kent 1995 (3) SA 344 (E).
[119] 1962 (2) SA 566 (A).
[120] Supra.
[121] At 445.
[122] 2013 (5) SA 437 (SCA) at [16], following Van Wyk v Lewis 1924 AD 438.
[123] See, eg, Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A); Stacey v Kent supra; Macleod v Rens
1997 (3) SA 1039 (E). See also § 30 5 4 below.
[124] 1977 (3) SA 776 (A) 780. See also Arthur v Bezuidenhout and Mieny supra 574; Madyosi and Another v SA
Eagle Insurance Co Ltd supra; Osborne Panama SA v Shell & Bp South African Petroleum Refineries (Pty) Ltd and
Others 1982 (4) SA 890 (A).
[125] Arthur v Bezuidenhout and Mieny supra. Zeffertt, Paizes & Skeen 203.
Page 553
Chapter 29
A Constitutional Perspective on Statutory
Presumptions
P J Schwikkard
29 1 Introduction
29 2 The Presumption of Innocence
29 2 2 Justifiable limitations
29 1 Introduction
To date constitutional scrutiny of reverse onuses has occurred mainly in the criminal arena.
The rights most frequently infringed are the presumption of innocence and the right to
remain silent. [1] In civil cases these rights are generally inapplicable [2] as they are rights
that accrue to detained, arrested and accused persons in criminal matters. The presumption
of innocence has been held not to apply to interrogation procedures outside of the criminal
process, [3] nor to proceedings that take place after conviction. [4] Quasi exceptions are the
civil imprisonment of debtors [5] and contempt of court proceedings instituted by means of
civil proceedings. [6] Reverse onuses in civil cases may also attract attention in a broader
|constitutional context. [7]
Page 554
29 2 The Presumption of Innocence [8]
The presumption of innocence both at common law [9] and as a constitutional right [10] places
a burden on the prosecution to prove the guilt of an accused person beyond reasonable
doubt. [11] The presumption of innocence applies to those elements of the state’s case that
must be established in order to justify punishment. [12]

There is clear authority for the view that the presumption of innocence will be infringed
whenever there is the possibility of a conviction despite the existence of a reasonable doubt.
Reverse onus provisions were considered for the first time by the Constitutional Court in S v
Zuma and Others [13] where the constitutionality of s 217(1)(b)(ii) of the CPA was in issue.
This section placed a burden on the accused to prove, in specified circumstances, the
inadmissibility of a confession on a balance of probabilities. Kentridge AJ delivering the
unanimous decision of the court held that the presumption of innocence will be infringed
whenever there is a possibility of conviction despite the existence of a reasonable doubt.
Furthermore, where a statutory presumption requires the accused to prove or disprove an
element of an offence or excuse on a balance of probabilities, such a presumption would
create the possibility of conviction despite the existence of a reasonable doubt. [14] Finding
that the effect of the presumption contained in s 217(1)(b)(ii) was to place a burden on the
accused to prove a fact on a balance of probabilities, Kentridge AJ concluded that the section
breached the constitutional right to be presumed innocent.
In S v Coetzee and Others [15] the Constitutional Court had the opportunity of dealing with
the effect of the presumption of innocence on statutory provisions requiring the accused to
prove an exemption, exception or defence. [16] In Coetzee the court was required to
determine the constitutionality of s 332(5) of the CPA which provides:
“When an offence has been committed, whether by the performance of any act or by the failure to
perform any act, for which any corporate body is or was liable to prosecution, any person who was, at
the time of the commission of the offence, a director or servant of the corporate body shall be
deemed to be guilty of the offence, unless it is proved that he
Page 555
did not take part in the commission of the offence and that he could have prevented it, and shall be
liable to prosecution therefore, either jointly with the corporate body or apart therefrom, and shall on
conviction be personally liable to punishment therefor.”
Langa J favouring the approach adopted by the Canadian Supreme Court in R v Whyte [17]
and R v Keegstra [18] held that s 332(5) imposed an onus on the accused to prove an
element relevant to the verdict, whether this element pertained to the offence or to an
exemption was not relevant, the issue being the substance of the offence. “If a provision is
part of the substance of the offence and the statute is formulated in a way which permits a
conviction despite the existence of a reasonable doubt in regard to that substantial part, the
presumption of innocence is breached.” [19] The court in Coetzee by implication rejected the
“greater includes the lesser test”. [20] Consequently, a reverse onus provision cannot be
saved by the argument that the legislature by creating a special defence in respect of which
the accused bears the onus, has ameliorated the hardship the accused would otherwise have
suffered if it had chosen to create an absolute liability offence.
The Constitutional Court in Scagell and Others v Attorney-General of the Western Cape
and Others, [21] without distinguishing between permissive and mandatory evidentiary
presumptions, held that an evidentiary burden does not create the possibility of conviction
despite the existence of a reasonable doubt. One of the provisions considered in Scagell was
s 6(3) of the Gambling Act [22] which reads as follows:
“When any playing-cards, dice, balls, counters, tables, equipment, gambling devices or other
instruments or requisites used or capable of being used for playing any gambling game are found at
any place or on the person of anyone found at any place it shall be prima facie evidence in any
prosecution for a contravention of subsection (1) that the person in control or in charge of such place
permitted the playing of such game at such place and that any person found at such place was
playing such game at such place and was visiting such place with the object of playing such game.”
O’Regan J noted that the words “shall be prima facie evidence” used in s 6(3) were generally
considered as imposing no more than an evidentiary burden on the accused. Such an
evidentiary burden merely requires “evidence sufficient to give rise to a reasonable doubt to
prevent conviction”. [23] She held that unlike the imposition of a legal burden, an evidentiary
burden did not create the possibility of conviction despite the existence of a reasonable
doubt. The court found it unnecessary to consider whether s 6(3) nevertheless infringed the
Page 556
presumption of innocence by relieving the prosecution of its duty to prove all the elements of
the offence charged. This was due to the court’s conclusion that the section infringed the
right to a fair trial, its sweeping provisions permitting innocent persons to be brought to trial
“merely upon proof of a fact which itself is not suggestive of any criminal behaviour” [24] (for
example, possession of a pack of playing cards).
One of the weaknesses in the Scagell judgment is the court’s failure to draw a distinction
between permissive and mandatory evidentiary burdens. Adopting the terminology of the
Canadian and American courts, it is clear that s 6(3) created a mandatory presumption. The
presumption requires the court to presume, once certain items had been found, that the
person in control or in charge of such place permitted the playing of a gambling game. There
can be no doubt that proof of the basic fact in s 6(3) has a very tenuous relationship with
the presumed fact and could in no way be considered to inexorably lead to the conclusion
presumed. Consequently, if the accused exercised his constitutional right to remain silent
and led no defence evidence, he would in the absence of other evidence capable of raising a
reasonable doubt, be liable to conviction despite the existence of a reasonable doubt. [25] In
the absence of a mandatory presumption, the prosecution would be forced to lead additional
evidence of the presumed fact in order to secure conviction or avoid discharge. It is clear
that the application of such a presumption could lead to conviction despite the existence of a
reasonable doubt. Ironically, this is implicit in O’Regan J’s reasons for holding that s 6(3)
infringed the right to a fair trial. She held that the effect of s 6(3) was that “innocent
persons, against whom there is no evidence suggestive of criminal conduct at all, may be
charged, brought before a court and required to lead evidence to assert their innocence”. [26]
The court in S v Manamela and Another (Director-General of Justice Intervening) [27] drew
a distinction between an infringement of the right to remain silent and the presumption of
innocence. The court had to deal with a reverse onus embedded in s 37 of the General Law
Amendment Act 62 of 1955. Section 37 reads as follows:
“(1) Any person who in any manner, otherwise than at a public sale, acquires or receives into his
possession from any other person stolen goods, other than stock or produce as defined in section one
of the Stock Theft Act 57 of 1959, without having reasonable cause proof of which shall be on such
first-mentioned person, for believing at the time of such acquisition or receipt that such goods are the
property of the person from whom he receives them or that such person has been duly authorized by
the owner thereof to deal with or to dispose of them shall be guilty of an offence and liable on
conviction to the penalties which may be imposed on a conviction of receiving stolen property knowing
it to have been stolen except in so far as the imposition of any such penalty may be compulsory.
(2) For the purposes of subsection (1) “public sale” means a sale effected —
(a) at any public market; or
Page 557
(b) by any shopkeeper during the hours when his shop may in terms of any law remain open
for the transaction of business; or
(c) by a duly licensed auctioneer at a public auction; or
(d) in pursuance of an order of a competent court.” [28]
The court was required to consider whether the reverse onus in s 37 infringed the
constitutional right to a fair trial, in particular the right to be presumed innocent, to remain
silent, and not to testify during proceedings.
The majority held that s 37(1) required the prosecution to prove the following beyond a
reasonable doubt: (1) that the accused was found in possession of goods, other than stock
or produce; (2) that the goods were acquired otherwise than at a public sale; and (3) that
the goods had been stolen. Once the prosecution had discharged this burden the accused
must establish on a balance of probabilities that: (1) he or she believed, at the time of
acquiring the goods, that the person from whom he or she received them was the owner of
the goods or was duly authorised by the owner to dispose of them; and (2) his or her belief
was reasonable. Section 37(1) effectively creates statutory liability for the negligent
acquisition or receipt of stolen goods.
The majority held that s 37(1) was a justifiable infringement of the right to remain silent
but an unjustifiable infringement of the presumption of innocence. The court drew a
distinction between the right to remain silent and the presumption of innocence. It held that
the reverse onus infringed the right to silence because the accused had to establish that
they had reasonable grounds for believing that the seller of the goods was authorised to sell
the goods or was the owner of the goods even where the prosecution had led no evidence
regarding the reasonableness of the belief. Additionally, if the accused failed to produce
evidence of the reasonableness of his or her belief it was an inevitable conclusion that such
belief was not reasonable as it was not possible for any other inference to be drawn. The
presumption of innocence was infringed because s 37 “imposed a full legal burden of proof
on the accused”. [29]
The issue of determining the application of the presumption of innocence to regulatory
offences has yet to be properly considered by the courts. However, the Constitutional Court
had indicated that the regulatory nature of an offence is better considered as a factor in
establishing whether a provision constitutes a justifiable limitation on the right to be
presumed innocent rather than in establishing breach. This approach is to be preferred in
that it allows the court to concentrate on “the values at stake in the particular context” [30]
rather than focusing on the unruly distinction between regulatory and criminal offences. [31]
Page 558
29 2 2 Justifiable limitations [32]
Although the Constitutional Court has made it clear that there may well be instances where a
reverse onus provision is justified, [33] it has been remarkably consistent in refusing to find
justification for an infringement of the presumption of innocence. The normative value
accorded to the presumption as a fundamental right has been underlined by the court’s
insistence that any justification for infringing the presumption of innocence would have to be
clear, convincing and compelling. [34]
In undertaking the proportionality inquiry required by the limitation clause, [35] it is clear
that the importance of the objective of the limitation, even if addressing a pressing and
substantial concern, will seldom, if ever, on its own justify an infringement of the
presumption of innocence. [36] However, if the objective is not sufficiently important it would
appear that the constitutional challenge must fail irrespective of the means used to achieve
the objective. It is inevitable that a reverse onus in the criminal context will have as its
broad objective the effective prosecution of crime; however, to be sufficiently important it
must be shown that there is a pressing social need for the effective prosecution of the
category of offence to which the presumption applies. [37]
Once it is established that the purpose of the limitation is not discordant with the values
underlying an open and democratic society based on human dignity and equality, the validity
of an infringement is dependent on a determination of whether the means used in attaining
the objective are reasonable and justifiable. In determining the nature and extent of the
limitation the courts appear wary of presumptions that are overly broad in their
application. [38] Overbreadth must be considered in relation to the range of offences brought
within the framework of the presumption as well as the category of offenders. In the case of
a reverse onus it would be logical to infer that the effect of the limitation will also be
influenced by the accused’s ease of access to the information required to discharge the
burden. Cameron J in S v Meaker [39] expressed the view that a presumption would
constitute a lesser infringement of the presumption of innocence where it only came into
effect once a person had already been shown to have committed an offence. However, this
will clearly not be the case where the offence to which the presumption pertains attracts
heavier penalties or greater disapprobation than the offence proved. [40] The extent of the
limitation will also be partially
Page 559
determined by the nature of the penalties and stigma attached to the offence. However, the
trivial consequences of conviction on their own will not constitute sufficient justification. [41]
Whether the offence to which the presumption applies is truly criminal or regulatory, will also
be taken into account. [42] Evidence that a reverse onus is applied with circumspection and is
therefore unlikely to impact on the rights of innocent people will not be considered a
justifying factor, it being unacceptable for the rights of innocent people to be dependent on
the discretion of the police or Director of Public Prosecutions. [43] The extent of the limitation
will also be affected by the likelihood of the presumption operating in a manner that
increases the possibility of innocent people being brought to trial, [44] for example, where the
basic fact from which the inference to be drawn is in itself not suggestive of criminal
behaviour. [45] In Meaker [46] Cameron J found that the fact that the presumption contained
in s 130 of the Road Traffic Act, [47] that the owner of the vehicle was also the driver, only
came into operation once the actus reus had been proved limited “both its range and
attendant effects” [48] and constituted “a safeguard against wanton intrusion on the citizen’s
rights”. [49]
The inquiry into the relationship between the limitation and its purpose requires a finding
of both external and internal rationality. [50] External rationality requires a rational
connection between the presumption and the legislative purpose behind its enactment.
Internal rationality requires a rational connection between the basic fact and the presumed
fact. The content of the presumption of innocence compels the court to establish internal
rationality at both the breach and limitations stages. The degree of internal rationality
determines whether conviction is possible despite the existence of a reasonable doubt. At
the limitation stage the court needs to assess the parameters of doubt arising in accordance
with the level of internal rationality. In the absence of express articulation of this view by the
Constitutional Court, the best example of the different application of the rational connection
test is to be found in the Witwatersrand Local Division decision in S v Meaker. [51] In Meaker
the court
Page 560
applied s 36 of the Constitution in determining whether the presumption contained in (the

now repealed) s 130(1) of the Road Traffic Act constituted a justifiable infringement of the
presumption of innocence. This section provided that in any prosecution under the common
law relating to the driving of a motor vehicle or under the Act, it will be presumed that the
vehicle was driven by the owner thereof. In finding that s 130 breached the presumption of
innocence, the court found that it was reasonably possible that the owner would not be the
driver of the vehicle. However, in applying s 36 the fact that it was not unlikely that the
owner was the driver was sufficient to conclude that the provision was sufficiently rational
for the purposes of the limitations clause. Whilst it is clear that insufficient rationality will be
found to exist for the purposes of breach when the inference to be drawn from the basic fact
does not exclude a reasonable doubt as to the existence of the presumed fact, it is less clear
what will constitute sufficient rationality at the second stage of the inquiry. The finding of the
court in Meaker would support the minority view of McLachlin in R v Downey [52] “that at a
minimum proof of the substituted fact must make it likely that the presumed fact is
true”. [53]
An inquiry as to whether less restrictive means could be used to achieve the limitations
objective, includes the question whether the infringement is required at all. [54]
Consequently, it is argued that s 36 does not exclude the necessity test that was provided
for in s 33 of the Interim Constitution, [55] but merely makes it applicable to all
constitutionally guaranteed rights. In establishing the necessity of a reverse onus, the state
would have to lead evidence that in practice it was impossible or unduly burdensome for the
state to discharge its onus. [56] A factor supporting such a contention would be that the
presumed fact was peculiarly within the knowledge of the accused. [57] But this on its own
will not be sufficient evidence of an unduly burdensome onus. [58] Nor will the mere fact that
a presumption makes proof of the offence easier, constitute sufficient justification. [59] Nor
would it be sufficient to show that in certain circumstances the absence of the presumption
would permit a guilty person to escape conviction, this being an inevitable consequence of
the presumption of innocence. [60] The courts will also take into account the approach
adopted in foreign jurisdictions regarding the necessity of a presumption in relation to the
offence or category of offence under consideration. [61]
Once it is established that the objective of the provision could not be obtained by using
policing or prosecutorial tactics which do not conflict with
Page 561
the provisions of the constitution, [62] the question arises whether the objective could have
been obtained by using less intrusive means, for example, by imposing an evidential burden
rather than a legal burden. [63] This raises the difficulties experienced by the Canadian courts
in determining the parameters of the minimal impairment test.
Sachs J in Coetzee v Government of the Republic of South Africa; Matiso and Others v
Commanding Officer, Port Elizabeth Prison, and Others [64] formulated the parameters of
necessary review as follows:
“The law would not be permitted to impose restrictions or burdens going beyond what would be
strictly required to meet the legitimate interest of judgment creditors and society as a whole. This is
not to say that an impossible high threshold would have to be established which effectively ruled out
genuine weighing by Parliament of reasonable alternatives within the broad bracket of what would be
unduly oppressive in the circumstance. The requirement of finding the ‘least onerous solution’ would
not therefore have to be seen as imposing on the Court a duty to weigh each and every alternative
with a view to determining precisely which imposed the least burden. What would matter is that the
means adopted by Parliament fell within the category of options which were clearly not unduly
burdensome, over broad or excessive, considering all the reasonable alternatives.” [65]
This formulation tends towards a conclusion substantially similar to that reached by the
majority in R v Chaulk, [66] namely that the minimal impairment test does not require
Parliament to have chosen the absolutely least intrusive means of meeting its objective.
The Constitutional Court has been relatively consistent in requiring evidence in support of
those factors put forward as justifying a limitation on the right to be contempt of court
proceedings presumed innocent. In doing so, the Court has drawn a distinction between
adjudicative and legislative facts [67] and has held that the onus of proving admissibility is
less important in respect of legislative facts. [68]
[1] Section 35(3)(h) of the Constitution.

[2] See Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC); Minister of Safety and Security v Sekhoto
and Another 2011 (1) SACR 315 (SCA).
[3] See §§ 10 2 4, 10 2 3 1 2 and 17 4 4 2 above.
[4] In S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) at [53] the court held that while the accused’s
liberty and security interests were not extinguished during the sentencing phase of the trial, they were reduced in
that the presumption of innocence was no longer applicable. (However, Ackermann J held that the accused’s rights to
remain silent and not to testify during proceedings were still applicable at the sentencing stage (at [40]). See also
National Director of Public Prosecutions v Phillips and Others 2001 (2) SACR 542 (W) in which the court held that
proceedings in terms of ch 5 of the Prevention of Organised Crime Act 121 of 1998, relating to confiscation orders
commencing after conviction could not be affected by the presumption of innocence as guilt or innocence was not in
issue. See also Qoko v La Grange NO and Others 2004 (2) SACR 521 (E).
[5] Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth
Prison, and Others 1995 (4) SA 631 (CC).
[6] Uncedo Taxi Service Association v Maninjwa and Others 1998 (2) SACR 166 (E). The presumption of innocence
has clear application in contempt of court proceedings. See generally S v Baloyi 2000 (1) SACR 81 (CC); S v
Mamabolo (E Tv and Others Intervening) 2001 (1) SACR 686 (CC); S v Singo 2002 (1) SACR 576 (V). Cf S v
Chinamasa 2001 (1) SACR 278 (ZS).
[7] See for example, the Constitutional Court’s consideration of the allocation of the burden of proof in defamation
cases in relation to s 16 of the Constitution in Khumalo and Others v Holomisa 2002 (5) SA 401 (CC). See also
Coetzee v Government of the Republic of South Africa 1995 10 BCLR 1382 (CC), in which the court held the civil
imprisonment of debtors unconstitutional.
[8] See generally Schwikkard Presumption of Innocence (1999).
[9] Rex v Ndhlovu 1945 AD 369.
[10] S v Zuma and Others 1995 (1) SACR 568 (CC); S v Coetzee and Others 1997 (3) SA 527 (CC); S v
Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC).
[11] S v Boesak 2001 (1) SA 912 (CC) at [16].
[12] Schwikkard Presumption of Innocence 40 et seq.
[13] 1995 (1) SACR 568 (CC).
[14] See also S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), where the Constitutional Court similarly found the
presumption contained in s 21(1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 unconstitutional. In S v
Ntsele 1997 (2) SACR 740 (CC) s 21(1)(b) of the Drugs and Drug Trafficking Act was held unconstitutional; in S v
Mello and Another 1999 (2) SACR 255 (CC) s 20 of the Drugs and Drug Trafficking Act was struck down. In S v
Mbatha; S v Prinsloo 1996 (1) SACR 371 (CC) the court held s 40(1) of the former Arms and Ammunition Act 75 of
1969 unconstitutional. See also R v Downey 1992 13 CR 4th 129 (SCC); R v Oakes 1986 50 CR 3d 1 (SCC).
[15] 1997 (3) SA 527 (CC). For a discussion of Coetzee, see Kemp 1998 Stell LR 106.
[16] See also S v Nduku 2000 (2) SACR 382 (Tk) (HC). See generally Paizes 1998 SACJ 409.
[17] 1989 51 DLR 4th 481 (SCC).
[18] 1990 3 CRR 2d 193. The defence-offence dichotomy has largely been viewed as irrelevant by the Canadian
Supreme Court except in regard to proof that a person holds a statutorily required licence. See S v Schwartz 1989
66 CR 3d 251 (SCC).
[19] At [38].
[20] This American phraseology is used to reflect an argument that since the legislature in formulating offences is
not obliged to provide any defence, it is free to determine the rules of proof in relation to any defences it gratuitously
creates ie the greater power of elimination of the defence is seen as including the lesser power of shifting the burden
of proof. See Dripps “The Constitutional Status of the Reasonable Doubt Rule” 1987 75 California LR 1665.
[21] 1997 (2) SA 368 (CC); 1996 (2) SACR 579 (CC).
[22] 51 of 1965.
[23] At [12].
[24] At [16].
[25] See R v Wholesale Travel Inc 1992 8 CR (4th) 145.
[26] At [16].
[27] 2000 (1) SACR 414 (CC).
[28] Emphasis added.
[29] At [25]. For a critical discussion of this case see Schwikkard 2000 SACJ 239. Cf Osman and Another v
Attorney-General, Transvaal 1998 (2) SACR 493 (CC), which is critically discussed by Schwikkard 1999 SALJ 462.
[30] See S v Coetzee and Others supra [43].
[31] See Stuart Canadian Criminal Law — A Treatise 3 ed (1995) 160. See also Schwikkard Presumption of
Innocence 97 et seq. Cf S v Fransman 2000 (1) SACR 99 (W).
[32] See generally Schwikkard Presumption of Innocence 133 et seq.
[33] S v Zuma and Others supra [41].
[34] See S v Mbatha; S v Prinsloo supra [10]; S v Ntsele supra [4].
[35] Section 36 of the Constitution. Section 33 of the interim Constitution.
[36] S v Coetzee and Others supra [84].
[37] Scagell and Others v Attorney-General of the Western Cape and Others supra [74].
[38] S v Coetzee and Others supra [84]. It is submitted that Cameron J in S v Meaker 1998 (2) SACR 73 (W) in
upholding the presumption contained in s 130 of the Road Traffic Act 29 of 1989, erred in failing to take into
consideration the broad application of s 130. Section 130 applied to all common-law offences as well as all offences
under the Road Traffic Act involving the driving of a vehicle on a public road. And consequently would include:
reckless and negligent driving; hit-and-run collisions; murder and culpable homicide. The present position is
governed by s 73(1) of the National Road Traffic Act 93 of 1996. See n 47 below.
[39] Supra.
[40] S v Bhulwana; S v Gwadiso supra.
[41] Cf S v Meaker supra where Cameron J rejected the contention that the trivial consequences of convictions
were relevant to justification.
[42] S v Coetzee and Others supra.
[43] S v Mbatha; S v Prinsloo supra [23]; Scagell and Others v Attorney-General of the Western Cape and Others
supra [17-18].
[44] S v Mbatha; S v Prinsloo supra [24].
[45] See Scagell and Others v Attorney-General of the Western Cape and Others supra.
[46] Supra.
[47] 29 of 1989. It should be noted that s 130 has been replaced by s 73(1) of the National Road Traffic Act 93 of
1996. Section 73(1) provides as follows: “Where in any prosecution in terms of the common law relating to the
driving of a vehicle on a public road, or in terms of this Act, it is necessary to prove who was the driver of such
vehicle, it shall be presumed, in the absence of evidence to the contrary, that such vehicle was driven by the owner
thereof.’’ Emphasis added. The words as emphasised make it clear that the accused no longer has a burden of proof,
but a mere evidential burden. See also Hoctor Cooper’s Motor Law 2 ed (2008) B12-4.
[48] At 89j.
[49] At 90c.
[50] See for example S v Bhulwana; S v Gwadiso supra; S v Julies 1996 (4) SA 313 (CC); S v Van Nell 1998 4
BCLR 605 (NC); S v Mbatha; S v Prinsloo supra, S v Ntsele supra.
[51] Supra.
[52] 1992 13 CR 4th 129 (SCC).
[53] At [69].
[55] See Schwikkard Presumption of Innocence 143-4.
[56] S v Mbatha; S v Prinsloo supra; Scagell and Others v Attorney-General of the Western Cape and Others
supra.
[57] S v Zuma and Others supra.
[59] S v Bhulwana; S v Gwadiso supra [11].
[61] S v Coetzee and Others supra; S v Meaker supra.
[62] S v Coetzee and Others supra; Scagell and Others v Attorney-General of the Western Cape and Others supra.
[64] 1995 (4) SA 631 (CC).
[65] At [60].
[66] 1990 2 CR 4th 1 (SCC). Cf the later decision of the Canadian Supreme Court in R v Laba 1995 34 CR 4th 360
(SCC). See also Schwikkard Presumption of Innocence 154-5 where the approach in Laba is preferred.
[67] See § 27 7 above.
[68] S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC).
Page 563
Section J
Weight of Evidence and Standards and Burdens
of Proof
30 The Evaluation of Evidence –S E van der Merwe

31 The Standard and Burden of Proof and Evidential Duties in Criminal Trials –P J
Schwikkard and S E van der Merwe
32 The Standard and Burden of Proof and Evidential Duties in Civil Trials –P J Schwikkard
Page 565
Chapter 30
The Evaluation of Evidence
S E van der Merwe
30 1 Introduction
30 3 Corroboration
30 3 3 3 Confirmation in a material respect
30 3 3 4 Confirmation in a material respect: other extra-curial
confessions or admissions of the accused
30 4 Credibility: The Impact of Demeanour and Mendacity
30 6 Credibility of a Witness: Previous Experience of the Court
30 9 Failure of a Party to Testify (and the Constitutional Right of an Accused to Refuse to
Testify)
30 10 Failure to Call Available Witnesses
30 11 2 Evidence of identification
30 11 2 1 Dock identification
30 11 2 2 Evidence of identification at a formal identification parade
parade
30 11 3 Children
30 11 4 The single witness
30 11 5 Abolition of the cautionary rule in sexual offences
30 11 6 Handwriting
30 13 Court required to give reasons
30 1 Introduction
In § 1 1 above it was pointed out that a court should first determine the factual basis of the
case before pronouncing on the rights, duties and liabilities of the
Page 566
parties engaged in the dispute. The factual basis is determined by evaluating all the
probative material admitted during the course of the trial. In Stellenbosch Farmers’ Winery
Group Ltd and Another v Martell Et Cie and Others Nienaber JA provided the following
informative guidelines and principles in resolving factual disputes: [1]
“. . . To come to a conclusion on the disputed issues a court must make findings on (a) the credibility
of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness will depend on its impression about the veracity of the
witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of
importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent
and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was
pleaded or put on his behalf, or with established fact or with his own extracurial statements or
actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and
cogency of his performance compared to that of other witnesses testifying about the same incident or
events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv)
and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii)
the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis
and evaluation of the probability or improbability of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c), the court will then, as a final step, determine
whether the party burdened with the onus of proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one
direction and its evaluation of the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors are equipoised, probabilities prevail.”
The difficult task of finally analysing and assessing the weight or cogency of probative
material arises after all the parties have closed their respective cases and delivered their
arguments (see § 3 3 above for a discussion of the difference between evidence and
argument). The presiding judge or magistrate — and assessors where they have been used
|— must then assess the weight of the probative material in order to determine whether the
party carrying the burden of proof has proved its allegations in accordance with the
applicable standard of proof. A court must give reasons for its decision. [2] This matter is
addressed more fully in § 30 13 below.
Maguire once said that the rules of exclusion have kept Anglo-American lawyers so fully
occupied that they have not yet satisfactorily explored the importance of evidential cogency;
they have been too busy deciding what should be kept out to make — much less teach — a
systematic appraisal of what they finally let in. [3] This allegation is probably partly true.
However, it is also true that the court’s duty to evaluate probative material is in many
respects
Page 567
similar to the function of any prudent non-judicial finder of fact: credibility is determined,
inferences are drawn, and probabilities and improbabilities are considered. In the evaluation
of evidence there are a few legal rules — largely stemming from case law — which can assist
the court and which can act as a check (see § 30 2 1–30 12 below). But the difficult mental
task of sifting truth from falsehood, of determining credibility, of relying on probabilities, and
of inferring unknown facts from the known is by and large a matter of common sense, logic
and experience. Inferences which are drawn should, for example, be in accordance with the
rules of logic (see § 30 5 below) and circuitous reasoning is obviously not permissible. [4]
The absence of extensive legal rules governing the evaluation of probative material must
also be understood in the light of the following statement by Van den Heever J: In the
process of adjudication two factors are constant, namely what must be proved and to what
degree of persuasion; but the third factor, namely the quantum and quality of the probative
material required so to persuade the court, is subject to great variety. [5]
The purpose of the present chapter is to identify some of the main principles and rules
which govern the determination of the quantum and quality of probative material. [6]
Two basic principles should be kept in mind whenever evidence is evaluated: First, evidence
must be weighed in its totality (see § 30 2 1 below); secondly, probabilities and inferences
must be distinguished from conjecture or speculation (see § 30 2 2 below).

In S v Trainor Navsa JA said: [7]
“A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside
such evidence as may be found to be false. Independently verifiable evidence, if any, should be
weighed to see if it supports any of the evidence tendered. In considering whether evidence is
reliable, the quality of that evidence must of necessity be evaluated, as must corroborative evidence,
if any. Evidence, of course, must be evaluated against the onus on any particular issue or in respect
of the case in its entirety. The compartmentalised and fragmented approach of the magistrate is
illogical and wrong.”
Page 568
It is of paramount importance that the court should eschew piecemeal processes of

reasoning. [8] Evidence must be weighed as a whole, [9] taking account of the probabilities
(see § 30 2 2 below), the reliability and opportunity for observation of the respective
witnesses (see § 30 11 2 below), the absence of interest or bias, the intrinsic merits or
demerits of the testimony itself, and inconsistencies or contradictions, corroboration (see
§ 30 3 below) and all other relevant factors (for example demeanour, as discussed in § 30 4
below). “[I]t is axiomatic that the trier of fact must have regard to all the evidence and to all
such considerations as reasonably invite clarification . . .” [10]

During the course of the evaluation of evidence inferences may be drawn and probabilities
may be considered. Inferences and probabilities, however, must be distinguished from
conjecture or speculation. [11] In Caswell v Powell Duffryn Associated Collieries Ltd [12] it was
said that there can be no proper inference unless there are objective facts from which to
infer the other facts which it is sought to establish. [13] If there are no positive proved facts
from which the inference can be drawn, the method of inference fails and what is left is mere
Page 569
conjecture or speculation. [14] The court must stay “within the four corners of the proved
facts . . . [I]t is not entitled to speculate as to the possible existence of other facts.” [15]
Probabilities must also be considered in the light of proved facts. It is, for example,
possible to accept direct credible evidence even though this evidence conflicts with
probabilities arising from human experience or expert opinion. [16] In Mapota v Santam
Versekeringsmaatskappy Bpk [17] the plaintiff had claimed damages for certain injuries which
he had allegedly sustained when a bus had knocked him over and driven over his left foot.
The plaintiff was the only person who could furnish direct evidence on how the accident
occurred. His evidence was partially supported by two other witnesses who were present
when the accident occurred, but who were not eye-witnesses of the actual manner in which
the plaintiff had received his injuries. The bus driver and a medical practitioner testified on
behalf of the defendant. These witnesses, however, were unable to give direct evidence of
the manner in which the plaintiff’s injuries were sustained. The medical expert expressed the
opinion that it was improbable that the plaintiff had sustained the injuries in the manner
alleged by the latter, but that he could not exclude the reasonable possibility that they were
caused in that way. The medical expert was of the opinion that it was more probable that
the injuries were sustained by somebody tramping on the plaintiff’s foot. The plaintiff’s claim
was dismissed by the trial court. However, the Appellate Division took the view that the
plaintiff’s version of the accident was the only one which rested on direct evidence and his
evidence, apart from the expert medical evidence, was not inherently improbable and was
satisfactory in all respects. It was held that the scientific medical evidence could only refute
the strong and otherwise acceptable and corroborated evidence of the plaintiff if that
evidence unquestionably showed that the reasonable possibility that the accident could have
taken place as described by the plaintiff did not exist. The Appellate Division concluded that
the plaintiff had proved on a balance of probabilities that his injuries were sustained in the
manner alleged by him because such reasonable possibility had not been excluded by the
expert medical evidence.
30 3 Corroboration [18]
It stands to reason that whenever corroboration is present it would be easier to conclude

that the required standard of proof has been satisfied. It is therefore
Page 570
understandable that the trier of fact will always look for corroboration even though
corroboration is not formally required by law — except in the case of confessions, as
discussed in § 30 3 3 below.

In S v Gentle Cloete JA said:
“[B]y corroboration is meant other evidence which supports the evidence of the complainant, and
which renders the evidence of the accused less probable, on the issues in dispute.” [19]
Repetition of a story cannot furnish corroboration. [20] It can, at most, prove consistency —
as is the case, for example, where a previous consistent statement of a witness is admitted
in order to rebut an allegation of recent fabrication. [21] But proof of consistency is not the
equivalent of corroboration. [22] In Director of Public Prosecutions v Kilbourne the rationale of
the rule against self-corroboration was explained as follows: [23]
“There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is
doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in
with other statements or circumstances relating to the particular matter; the better it fits in, the more
one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by
the other statements or circumstances with which it fits in. In ordinary life we should be, and in law
we are required to be, careful in applying this idea. We must be astute to see that the apparently
corroborative statement is truly independent of the doubted statement. If there is any real chance
that there has been collusion between the makers of the two statements we should not accept them
as corroborative. And the law says that a witness cannot corroborate himself. In ordinary affairs we
are often influenced by the fact that the maker of the doubted statement has consistently said the
same thing ever since the event described happened. But the justification for the legal view must, I
think, be that generally it would be too dangerous to take this into account and therefore it is best to
have a universal rule.”

The injuries suffered by the victim of a violent offence may furnish corroboration of his or
her
Page 571
testimony. [24] And so may emotional distress shortly after the incident. [25] But much will
depend on the facts of the case and the nature of the defence advanced by the accused. The
facts in issue may require the court to consider certain risks before accepting bodily and
emotional condition as corroboration; for example: were the injuries self-inflicted? was the
emotional distress genuine or simulated? And even if genuine, the court must still be
satisfied that the emotional distress was indeed the result of the fact that the witness was
the victim. [26]
The rule against self-corroboration is confined to oral or written communications of the
witness concerned.
Section 209 of the CPA provides that an accused may be convicted of any offence on the
single evidence of a confession by such accused that he committed the offence in question, if
such confession is confirmed in a material respect or, where the confession is not so
confirmed, if the offence is proved by evidence, other than such confession, to have been
actually committed. The purpose of s 209 is to prevent convictions on the basis of false
confessions: “Experience in the administration of justice has shown that people occasionally
do make false confessions for a variety of reasons.” [27]
Section 217 of the CPA governs the admissibility of confessions, [28] whereas s 209 of the
CPA relates to the sufficiency of a confession: in what circumstances will an admissible
confession be sufficient for purposes of a conviction? In terms of s 209 there has to be either
confirmation in a material respect (see § 30 3 3 3 below) or evidence aliunde (outside) the
confession that the offence has been committed (see § 30 3 3 5 below). But even if the
requirements of s 209 have been met, it does not mean that a conviction must necessarily
follow: the court must in the ultimate analysis be convinced that the guilt of the accused has
been proved beyond reasonable doubt. [29]
A confession which is made in the course of plea proceedings need not satisfy the
requirements of s 209 of the CPA. [30] But a confession or admissions made by an accused in
the course of
Page 572
plea proceedings may for purposes of s 209 serve as confirmation of extra-curial confession
proved by the prosecution against the accused. [31] In S v Rossouw [32] parts of the accused’s
explanation of plea confirmed his extra-curial confession. But other parts contradicted the
extra-curial confession. The court held that there was no proof of guilt beyond a reasonable
doubt. The court came to this conclusion despite the fact that it was satisfied that there was
— for purposes of s 209 — “sufficient confirmation in material respects”. [33]
30 3 3 3 Confirmation in a material respect [34]
In Rex v Blyth [35] the accused had written a letter confessing to the murder of her husband
by arsenical poisoning. The fact that his body contained some arsenic was found to be
sufficient confirmation of her confession. The finding of arsenic in the body was found to be
confirmation in a material respect even though this arsenic neither connected her to the
murder nor amounted to evidence aliunde that her husband had indeed been murdered. [36]
The requirement is only that a material aspect of the confession should be confirmed.
However, it should also
Page 573
be pointed out that in this case the accused did not testify (see generally § 30 9 below). The
Appellate Division rejected the argument of the defence that the hypothesis of suicide had
not been disproved beyond a reasonable doubt. The Appellate Division also rejected the
argument that the reference to arsenic in the confession could conceivably have been
explained by the knowledge on the part of the accused that her husband had committed
suicide by taking arsenical poison. The result of this case could have been different had the
accused testified in her own defence.
30 3 3 4 Confirmation in a material respect: other extra-curial confessions or
admissions of the accused
In S v Erasmus [37] the prosecution proved not only a confession which the accused had
made to a magistrate but also an incriminating letter which was written by her to the
investigating officer. The prosecution also proved various confessions which the accused had
made to her daughter. But there was no evidence aliunde of the commission of the crime.
The circumstances relating to the death of the husband of the accused were consistent
with suicide and murder — he was found shot. The court held that — before a conviction
could be entered on the basis of any of the confessions — there had to be compliance with
s 209 of the CPA and the standard of proof beyond reasonable doubt. The issue was whether
the various confessions, or at least one of them, could be said to have been confirmed in a
material respect. The prosecution submitted that the required confirmation for the
confession made to the magistrate could be found in the other confessions made by the
accused. Nepgen J held that there was no reason why the required confirmation could not
come from another extra-curial confession made by the accused. He also held, however, that
a high degree of confirmation of the confession to the magistrate was necessary because of
certain unsatisfactory aspect of this confession. Nepgen J further held that the letter to the
investigating officer was ambiguous and — in the absence of a clear indication of what the
accused meant — the letter could not provide sufficient confirmation of the accused’s
confession. The confessions to the daughter of the accused, held Nepgen J, could, however,
provide the required confirmation. These confessions to the daughter had been made in
circumstances which indicated that they would not be false. It was held that the prosecution
had proved beyond a reasonable doubt that the accused had killed her husband intentionally
and in circumstances which were unlawful.
S v Blom [38] provides an example of a case where the accused — an unreliable witness —
was acquitted because the two confessions proved against him both contained material
untruths. The fact that a confession complies with s 209 of the CPA does not mean that the
contents thereof must necessarily be accepted as the truth.
Section 209 of the CPA can also be satisfied by evidence aliunde the confession that the
offence to which the
Page 574
accused confessed had actually been committed (see § 30 3 3 above). [39] For example, if A
confesses to the stabbing and murdering of B, it would be sufficient for the purpose of s 209
to prove that B died as a result of several stab wounds. In this instance the accused is not
really protected against a false confession as the prosecution merely has to prove the
commission of the crime.
30 4 Credibility: The Impact of Demeanour and Mendacity [40]

The credibility (“geloofwaardigheid”) of witnesses can be decisive to the outcome of a case.
A wide variety of factors must be taken into account in assessing credibility: [41]
“Included in the factors which a court would look at in examining the credibility or veracity of any
witnesses, are matters such as the general quality of his testimony (which is often a relative condition
to be compared with the quality of the evidence of the conflicting witnesses), his consistency both
within the content and structure of his own evidence and with the objective facts, his integrity and
candour, his age where this is relevant, his capacity and opportunities to be able to depose to the
events he claims to have knowledge of, his personal interest in the outcome of the litigation, his
temperament and personality, his intellect, his objectivity, his ability effectively to communicate what
he intends to say, and the weight to be attached and the relevance of his version, against the
background of the pleadings.”
Some of the factors and issues considered below are: what is the impact of the demeanour
of the witness upon credibility? Must untruthful evidence given by a party — especially an
accused — necessarily result in a verdict against this party?
Page 575
The demeanour of witnesses includes “their manner of testifying, their behaviour in the
witness-box, their character and personality, and the impression they create. . .” [42] It is
considered real evidence in the sense that it is something that the trial court observes. [43]
Was the witness “candid or evasive, ready or reluctant” [44] to give her account of events?
Did she hesitate unnecessarily in responding to questions — especially under cross-
examination? Was she too bold or too timid? Were there nervous fidgeting and facial
twitches in response to straightforward relevant questions? In our law of evidence the
demeanour of the witness can play a role in assessing her credibility. There is probably some
remote historical link between this rule and the ancient and primitive ordeal known as the
corsnaed, which was discussed in § 1 3 1 above. In Medscheme Holdings (Pty) Ltd and
Another v Bhamjee Nugent JA noted, with good reason, that an assessment of evidence on
the basis of demeanour has been referred to disparagingly as the “Pinocchio theory”. [45]
However, it is perhaps quite rational to permit a trier of fact to make a finding on
demeanour and to take such finding into account in assessing credibility. It is an inevitable
consequence of a trial system based upon orality and confrontation. But the following
principles govern the situation:
(a) Demeanour, in itself, is a fallible guide to credibility [46] and should be considered with
all other factors: it is in the overall scrutiny of evidence that demeanour should be
taken into account — and then only if there are sufficient indications thereof to be
significant. [47]
(b) The limited value of a finding on demeanour becomes even less where an interpreter is
used. [48]
(c) The Constitutional Court has pointed out the danger of assuming that
Page 576
“all triers of fact have the ability to interpret correctly the behaviour of a witness,
notwithstanding that the witness may be of a different culture, class, race or gender and
someone whose life experience differs fundamentally from that of the trier of fact.” [49]
(d) Demeanour can hardly ever be decisive in determining the outcome of a case.
Demeanour is merely one factor to be taken into account: “In addition to the
demeanour of the witness”, said Krause J in R v Momekela & Commandant, [50] “one
should be guided by the probability of his story, the reasonableness of his conduct, the
manner in which he emerges from the test of his memory, the consistency of his
statements and the interest he may have in the matter under enquiry”. Jones J has
also noted that the “risk of accepting possibly incorrect evidence because it is given by
a witness of good demeanour is reduced if that evidence accords with the inherent
probabilities, or if it is corroborated, or if its only contradiction is by evidence of poor
quality given by a witness of poor demeanour”. [51]
(e) A trial court is obviously in a better position than the court of appeal to make a finding
on demeanour; and the court of appeal “must attach weight, but not excessive
weight” [52] to the trial court’s finding. It is as a general rule important that a trial court
should record its impression of the demeanour of a material witness. [53]
The maxims semel mentitus, semper mentitur (once untruthful, always untruthful) and
falsum in uno, falsum in omnibus (false in one thing, false in all) do not apply in our law of
evidence. [54] It is permissible either to accept or reject the evidence of a witness who has
lied before or who has lied only with regard to a particular fact: everything depends upon
the particular circumstances of the case. In S v Oosthuizen it was said: [55]
Page 577
“All that can be said is that where a witness has been shown to be deliberately lying on one point, the
trier of fact may (not must) conclude that his evidence on another point cannot safely be relied
upon . . . . The circumstances may be such that there is no room for honest mistake in regard to a
particular piece of evidence: either it is true or it has been deliberately fabricated. In such a case the
fact that the witness has been guilty of deliberate falsehood in other parts of his evidence is relevant
to show that he may have fabricated the piece of evidence in question. But in this context the fact
that he has been honestly mistaken in other parts of his evidence is irrelevant, because the fact that
his evidence in regard to one point is honestly mistaken cannot support an inference that his evidence
on another point is a deliberate fabrication.”
The court’s rejection of the testimony of a witness does not necessarily establish the truth of
the contrary. In Rex v Weinberg [56] it was pointed out that the disbelief of the statement of
a witness merely removes an obstacle to the acceptance of evidence tending to prove the
contrary. This does not mean that mendacity is irrelevant. For example, a false statement by
an accused can be used in drawing an inference of guilt from other reliable evidence. [57]
In Goodrich v Goodrich [58] it was also emphasised that a court should carefully guard
against the acceptance of the fallacious principle that a party should lose its case as a
penalty for its perjury or lies under affirmation. It was pointed out that the specific
circumstances of each case should be considered and that in each case the court should ask
itself whether the fact that a party has attempted to strengthen or support its case with lies
proves or tends to prove the belief of a party that its case is ill-founded: as a general rule a
carefully considered and prepared false statement (and a fortiori a conspiracy with others
that they should give false evidence in support of the case of the party concerned) would
Page 578
more likely be an indication of a party’s awareness of the weakness of its case than a story
contrived on the spur of the moment. [59]
The difference between direct and circumstantial evidence was dealt with in § 2 9 above.
Circumstantial evidence is not necessarily weaker than direct evidence. [60] In some
instances it may even be of more value than direct evidence. [61] Inferences are drawn from
circumstantial evidence. In this process certain rules of logic must be followed (see § 30 5 2
and 30 5 3 below) and the difference between the standards of proof in criminal and civil
cases may not be discarded (see § 30 5 3 below).
The court should always consider the cumulative effect of all the items of circumstantial
evidence. In Rex v De Villiers [62] it was pointed out that the court should not consider each
circumstance in isolation and then give the accused the benefit of any reasonable doubt as
to the inference to be drawn from each single circumstance. [63] This approach can also be
put differently: the state must satisfy the court, not that each separate item of evidence is
inconsistent with the innocence of the accused, but only that the evidence taken as a whole
is beyond reasonable doubt inconsistent with such innocence. [64]

In Rex v Blom [65] it was said that in reasoning by inference in a criminal case there are two
cardinal rules of logic which cannot be ignored. The first rule is that the inference sought to
be drawn must be consistent with all the proved facts: if it is not, the inference cannot be
drawn. The second rule is that the proved facts should be such that they exclude every
reasonable inference from them save the one sought to be drawn: if these proved facts do
not exclude all other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is
Page 579
correct. [66] This second rule takes account of the fact that in a criminal case the state should
furnish proof beyond reasonable doubt (see generally chapter 31 below). The rules as set
out in Rex v Blom supra are not applicable when an application for a discharge in terms of
s 174 of the CPA is considered. [67]

In civil proceedings the inference sought to be drawn must also be consistent with all the
proved facts, but it need not be the only reasonable inference: it is sufficient if it is the most
probable inference. [68] For example, in AA Onderlinge Assuransie-Assosiasie Bpk v De
Beer [69] it was held that a plaintiff who relies on circumstantial evidence does not have to
prove that the inference which he asks the court to draw is the only reasonable inference: he
will discharge his burden of proof if he can convince the court that the inference he
advocates is the most readily apparent and acceptable inference from a number of possible
inferences.
The second rule as set out in § 30 5 2 above, and which applies to criminal proceedings,
does not apply to civil proceedings because of the lesser standard of proof applicable in civil
proceedings, namely, proof on a balance of probability (see chapter 32 below), as opposed
to the stricter standard applicable in criminal proceedings, namely, proof beyond reasonable
doubt (see chapter 31 below).

The so-called presumptions of fact are not rules of law. The term “presumption of fact” is
really only another way of indicating that the specific circumstances of a case are such that
inferential reasoning is permissible. The presumption of fact has been described as a “. . .
praesumptio hominis . . . which has no place in the law, and is merely in arbitrio judicis . . .
addressing itself only to the rational faculty . . .” [70] In S v Sigwahla [71] it was also pointed
out that it is simpler to speak of inferences of fact than of presumptions of fact. In the
absence of direct evidence the true enquiry is whether the court can from the totality of
evidence draw inferences in accordance with the rules of logic mentioned in § 30 5 2
and 30 5 3 above. [72] The so-called presumption of fact is also discussed in § 28 3 above.
Page 580
In Arthur v Bezuidenhout and Mieny [73] it was accepted that the maxim res ipsa loquitur
(the matter speaks for itself) gives rise to an inference rather than a presumption. [74] “It is
really”, said Innes CJ in Van Wyk v Lewis, [75] “a question of inference”. It has been held that
the maxim res ipsa loquitur also applies in criminal cases. [76] But in S v Maqashalala two
judges did not agree on this point. [77] Res ipsa loquitur is also discussed in § 28 5 7 above.
It is submitted that the use of presumptions of fact is singularly unhelpful in the
evaluation of evidence: it is not conducive to sound reasoning and may easily lead to a
piecemeal approach (see § 30 2 1 above) and disregard for the rules of logic pertaining to
inferences drawn from circumstantial evidence (see § 30 5 2 and 30 5 3 above). However,
the law of precedent has seen to it that certain presumptions of fact still stalk the evidential
terrain. In terms of the presumption of continuance (which exists eo nomine) the existence
of a certain state of affairs in the past gives rise to an inference of its continued
existence. [78] Each case, however, must be considered on its own merits. [79] There is also a
presumption of fact that a defamatory statement in a telegram or on a postcard was read by
a third person. [80]
In theft cases the prosecution frequently relies on the so-called “doctrine of recent
possession” in terms of which the possessor of recently stolen goods is presumed to have
been the thief. [81] In S v Parrow Holmes JA made it clear that there is no magic meaning in
the doctrine of recent possession and that it is really a matter of inferential reasoning in the
light of all the facts of the case. [82] It has been held that a mere caretaker cannot be
regarded, for the purposes of the presumption of fact arising from the doctrine of recent
possession, to be in
Page 581
possession of goods which he temporarily has in his care. [83] It is submitted that this is just
another way of saying that, having regard to all the proved facts, no inference of guilt could
be inferred.
A so-called presumption of fact cannot affect the incidence of the burden of proof. [84] It
does, at most, give rise to an evidential burden. [85]
30 6 Credibility of a Witness: Previous Experience of the

Court [86]
Part of the headnote in S v Sinam reads as follows: [87]
“The Court found that the magistrate had misdirected himself in several respects, inter alia by relying
on his previous experience of a witness (a municipal constable who had testified before him on several
occasions in the past) to make a favourable credibility finding as regards that witness, whose
testimony he had relied on to justify his finding on the facts. The Court remarked in this respect that
the previous experience an adjudicator of facts may have of a witness qua witness was of limited
value and operate very unfairly and lead to an injustice being perpetrated — the accused had no way
of testing the court’s opinions and usually had no prior knowledge of the fact that the court would
take its own view of the witness into consideration. Where the court does rely on its own knowledge of
the witness, it must at least indicate that it is doing so with circumspection and that it is fully aware of
the dangers inherent in such an approach; furthermore, the acceptance of the credibility of a State
witness did not necessarily mean the rejection of the accused’s version of the case. The magistrate in
the instant case did not adhere to these principles and the Court held that in the circumstances of the
case the magistrate’s previous experience of the witness was insufficient justification for his credibility
findings.”

In § 22 2 above it was pointed out earlier that non-expert witnesses should as a rule wait
outside the courtroom until they are called upon to testify. This is done to ensure that a
witness is not influenced by what he hears from other witnesses who testify in his presence.
The presence of a witness in court prior to his testifying does not make him an incompetent
witness, but may have a
Page 582
detrimental effect on his credibility. [88] In S v Ntanjana it was said that a finding relating to
the weight of such evidence would depend very much on the circumstances of the case and
a proper assessment can really only be made after all the evidence has been heard. [89] In S
v Williams and Others Farlam J remarked and held as follows: [90]
“While it is not the practice for witnesses to sit in court before they testify in criminal trials, they do so
in civil cases without it being suggested that their evidence should on that ground be rejected. From
the fact that a witness in a criminal trial has sat in court before giving evidence, it does not follow
automatically that the witness is to be disbelieved. What is important is to consider what the witness
heard before testifying and whether he or she is able to tailor his or her evidence so as to fit in with
what he or she has heard.”
In § 23 4 2 above it was pointed out that an accused has a right to be present at his trial [91]
and that s 151(1)(b) of the CPA seeks to ensure that an accused who wishes to testify
should do so before calling his defence witnesses. [92] Section 151(1)(b) provides as follows:
“The court shall also ask the accused whether he himself intends giving evidence on behalf of the
defence, and
(i) if the accused answers in the affirmative, he shall, except where the court on good cause
shown allows otherwise, be called as a witness before any other witness for the defence; or
(ii) if the accused answers in the negative but decides, after other evidence has been given on
behalf of the defence, to give evidence himself, the court may draw such inference from the
accused’s conduct as may be reasonable in the circumstances.”
It is submitted that several important principles should be taken into account before a court
can really draw an adverse inference which is “reasonable in the circumstances.” [93] First, at
the end of the prosecution’s case the undefended accused should be warned that an
inference which is reasonable in the circumstances may be drawn from the fact that he, after
having declined to testify and after having listened to one or more defence witnesses, does
decide to testify. [94] Secondly, no inference adverse to the accused may be drawn from
Page 583
the mere fact that he gives evidence after having listened to one or more defence
witnesses. [95] Thirdly, it would be in conflict with the constitutional and common-law
presumption of innocence to proceed from the premise that an accused’s evidence is suspect
simply because he was not the first witness for the defence. [96]
The nature and purpose of cross-examination was dealt with in § 18 6 1 above. A failure to
cross-examine is generally considered to be an indication that the party who had the
opportunity to cross-examine did not wish to dispute the version or aspects of the version of
the particular witness who was, during the course of the trial, available for cross-
examination. [97] In S v Gobozi [98] it was said that a prosecutor’s failure to cross-examine
may often be of decisive importance in deciding whether the guilt of the accused has been
established beyond all reasonable doubt: the accused’s version, if not manifestly false, ought
to be
Page 584
tested before it is rejected since the process of testing a suspect story may reinforce it or
even demonstrate its truthfulness or authenticity.
Failure to cross-examine may not be held against an illiterate and unrepresented accused.
30 9 Failure of a Party to Testify (and the Constitutional Right

of an Accused to Refuse to Testify)
In civil cases a party’s failure to give gainsaying testimony under oath or affirmation may
have an adverse effect on his case. However, the effect of such a failure would depend upon
all the circumstances of the case. [99]
As far as criminal cases are concerned, Holmes JA held as follows in S v Mthetwa, [100]
which was decided in 1972:

“Where the state case against an accused is based upon circumstantial evidence and depends upon
the drawing of inferences therefrom, the extent to which his failure to give evidence may strengthen
the inferences against him usually depends upon various considerations. These include the cogency or
otherwise of the state case, after it is closed, the case with which the accused could meet it if
innocent, or the possibility that the reason for his failure to testify may be explicable upon some
hypothesis unrelated to his guilt . . . Where, however, there is direct prima facie evidence implicating
the accused in the commission of the offence, his failure to give evidence, whatever his reason may
be for such failure, in general ipso facto tends to strengthen the state case, because there is then
nothing to gainsay it, and therefore less reason for doubting its credibility or reliability . . .”
The above rules (hereafter referred to as the “rules in Mthetwa”) were based on several pre-
1972 Appellate Division decisions [101] and have been quoted and relied upon on numerous
occasions since 1972. [102] Constitutionalization in 1994 has given rise to the following
issues: are the rules in Mthetwa compatible with an accused’s constitutionally guaranteed
right not only to be a non-compellable witness against himself but also to refuse to testify at
his own trial? To put the matter differently: is there a measure of inconsistency or insincerity
Page 585
or even deviousness in a criminal justice system which, on the one hand, grants an accused
a constitutional right to refuse to testify, but which, on the other hand, also takes the view
that in certain circumstances an accused’s refusal to testify in the face of a prima facie case
against him can become a factor in assessing guilt?
Beginning with a judgment by Buys J in S v Brown en ’n Ander, [103] there is a five-part
answer to the above questions:
(a) No adverse inference can be drawn against an accused merely by virtue of the fact that
he has exercised his constitutional right to refuse to testify. [104] The rules in Mthetwa,
in so far as they are inconsistent with this proposition, [105] must therefore be adjusted.
It is submitted that it can no longer be argued or held that silence ipso facto
strengthens a prima facie state case based on direct evidence.
(b) If an accused exercises his constitutional right to silence, the court is left with nothing
but the uncontroverted prima facie case presented by the state: the silence of the
accused has no probative value (“geen bewyswaarde”). [106] In so far as the rules in
Mthetwa seek to consider or identify the silence of the accused as a “fact” that has
some independent probative value, it must be rejected. In R v Sole Cullinan AJ
said: [107]
“[N]o adverse inference should be drawn from the accused’s silence in the sense that it is an
evidential item bolstering the Crown case, and it certainly cannot cure defects in the Crown
case. Such silence is simply not evidence in the case. Nonetheless, there may be cases where
the strength of the Crown’s case is such that the result of the accused’s silence is that no
reasonable doubt exists in the mind of the Court, and the Crown’s prima facie case becomes a
case beyond reasonable doubt.”
(c) It follows that the court is really only called upon to decide whether the uncontradicted
prima facie case of the prosecution must harden into proof beyond reasonable
doubt: [108]
Page 586
“Prakties beteken dit dat die probleem dus benader moet word uit die hoek van die
onweerspreekte getuienis van die Staat en nie uit die hoek van die stilswye van die beskuldigde
nie. Die vraag wat beslis moet word, is of die onweerspreekte Staatsgetuienis sterk genoeg is
om die facta probanda bo redelike twyfel te bewys en nie of die beskuldigde se stilswye die een
of ander bewyswaarde het nie. Sy stilswye het volgens my oordeel geen bewyswaarde nie, maar
gewone logika sê dat sy stilswye nadelige gevolge vir hom kan inhou.”
(d) The accused’s constitutional right to silence cannot prevent logical inferences: [109] the
circumstances of a case may be such that a prima facie case, if left uncontradicted,
must become proof beyond reasonable doubt. This happens not because the silence of
the accused is considered an extra piece of evidence (“n ekstra stukkie getuienis”), [110]
but simply because the prima facie case in a particular case is in the absence of
contradictory evidence on logical grounds strong enough to become proof beyond
reasonable doubt. In S v Boesak the Constitutional Court said: [111]
“The right to remain silent has application at different stages of a criminal prosecution. An
arrested person is entitled to remain silent and may not be compelled to make any confession or
admission that could be used in evidence against that person. It arises again at the trial stage
when an accused has the right to be presumed innocent, to remain silent, and not to testify
during the proceedings. The fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to a decision to remain silent during the
trial. If there is evidence calling for an answer, and an accused person chooses to remain silent
in the face of such evidence, a court may well be entitled to conclude that the evidence is
sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a
conclusion is justified will depend on the weight of the evidence.”
(e) If the accused’s silence is, in the assessment of the prosecution’s uncontroverted prima
facie case, neither treated as “evidence” nor as a “factor”, then it can hardly be argued
that the drawing of logical inferences indirectly compels an accused to testify or
amounts to a situation where an accused is being penalised for having exercised his
constitutional right to refuse to testify. [112] Evidential pressure which stems from the
sheer strength of the case presented by the prosecution cannot be described or
Page 587
identified as compulsion violating an accused’s constitutional right to be a non-

compellable witness and to refuse to testify. [113]
In the light of the principles set out in (a)–(e) above, an undefended accused should not at
the end of the case for the prosecution be informed by the court that “failure to give
evidence is a factor which can be taken into account together with other factors to make an
inference of guilt”. [114] Such a warning might very well lead an accused to believe that he
must testify. [115] The correct warning that a court must give to an accused in our
constitutionalized system was formulated by Buys J in S v Brown en ’n Ander [116] and is
discussed in § 23 4 2 above.
30 10 Failure to Call Available Witnesses [117]
A party’s failure to call available [118] witnesses may in exceptional circumstances lead to an
adverse inference being drawn from such failure against the party concerned. [119] The extent
to which such an inference can be drawn will depend on the circumstances of the case. [120]
The court should, inter alia, consider the following: Was the party concerned perhaps under
the erroneous
Page 588
but bona fide impression that he had proved his case and that there was therefore no need
to have called the witness? [121] Is there a possibility that the party concerned believed that
the potential witness was biased, hostile or unreliable? [122]

The cautionary rule is a rule of practice and must be followed whenever the evidence of
certain witnesses is evaluated (see § 30 11 1–30 11 5 below). It serves as a constant
reminder to courts that the facile acceptance of the credibility of certain witnesses may
prove dangerous.
The cautionary rule requires, first, that the court should consciously remind itself to be
careful in considering evidence which practice has taught should be viewed with suspicion
and, secondly, that the court should seek some or other safeguard reducing the risk of a
wrong finding based on the suspect evidence. [123]
It has often been stressed, however, that the exercise of caution should not be allowed to
displace the exercise of common sense. [124] The application of the cautionary rule does not
affect the standard of proof. [125] Corroboration is not the only manner in which the
cautionary rule can be satisfied. [126] Any factor which can in the ordinary course of human
experience reduce the risk of a wrong finding will suffice, for example, mendacity, a failure
to cross-examine, the absence of gainsaying testimony, etc. It has been held that the fact
that an accomplice gives evidence and, in addition to the accused, implicates a relative
against whom he bears no ill will, can reduce the risk of a wrong conviction. [127] These
circumstances constitute a factor in favour of the truth of such ordinarily suspect evidence
emanating from an accomplice.

The accumulated experience of courts of law has taught that certain witnesses may have
special motives to give false evidence. For example, it has been accepted that an accomplice
might have special reasons to incriminate an accused falsely. In S v Masuku and Another [128]
the following elaborate exposition of the basic principles relating to the evidence of an
accomplice was given:
Page 589
“(1) Caution in dealing with the evidence of an accomplice is imperative. . . . (2) An accomplice is a
witness with a possible motive to tell lies about an in imself. (3) Corroboration, not implicating the
accused but merely in regard to the details of the crime, not implicating the accused, is not conclusive
of the truthfulness of the accomplice. The very fact of his being an accomplice enables him to furnish
the court with details of the crime which is apt to give the court the impression that he is in all
respects a satisfactory witness, or, as has been described ‘to convince the unwary that his lies are the
truth’. (4) Accordingly, to satisfy the cautionary rule, if corroboration is sought it must be
corroboration directly implicating the accused in the commission of the offence. (5) Such
corroboration may, however, be found in the evidence of another accomplice provided that the latter
is a reliable witness. (6) Where there is no such corroboration, there must be some other assurance
that the evidence of the accomplice is reliable. (7) That assurance may be found where the accused is
a lying witness, or where he does not give evidence. (8) The risk of false incrimination will also, I
think, be reduced in a proper case where the accomplice is a friend of the accused. (9) In the absence
of any of the aforementioned features, it is competent for a court to convict on the evidence of an
accomplice only where the court understands the peculiar danger inherent in accomplice evidence and
appreciates that acceptance of the accomplice and rejection of the accused is only permissible where
the merits of the accomplice as a witness, and the demerits of the accused as a witnesses, are beyond
question. (10) Where the corroboration of an accomplice is offered by the evidence of another
accomplice, the latter remains an accomplice and the court is not relieved of its duty to examine his
evidence also with caution. He, like the other accomplice, still has a possible motive to tell lies. He,
like the other accomplice, because he is an accomplice, is in a position to furnish the court with details
of the crime which is apt to give the court, if unwary, the impression that he is a satisfactory witness
in all respects.”
The evidence of an accessory after the fact also falls within the ambit of the cautionary
rule. [129]
In S v Dladla [130] it was pointed out that circumstances may be such that the risk in acting
upon the evidence of one accused — who had testified in his own defence and had implicated
his co-accused — can be of an exceptionally high degree, especially where there are actual
indications of attempts by, or of a tendency in, an accused to take advantage of the
opportunity which the situation granted him, namely to try and save his own skin at the cost
of his co-accused. The cautionary rule is therefore applied to the evidence of such an
accused. [131]
The following witnesses are also suspected of having an ulterior motive for giving false
evidence: police traps; [132] the plaintiff in paternity and seduction cases; [133] the private
detective; [134] and persons who claim against the estates of deceased persons. [135] This list
is not exhaustive. [136]
Page 590
30 11 2 Evidence of identification [137]
Evidence of identification must be approached with caution. Experience has shown that it is
for various reasons very easy for the identifying witness to be mistaken. In S v Mthetwa it
was said: [138]
“Because of the fallibility of human observation, evidence of identification is approached by the courts
with some caution. It is not enough for the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various factors, such as lighting, visibility, and
eyesight; the proximity of the witness; the opportunity for observation, both as to time and situation;
the extent of his prior knowledge of the accused; the mobility of the scene; corroboration;
suggestibility; the accused’s face, voice, build, gait and dress; the result of identification parades, if
any; and, of course the evidence by or on behalf of the accused. The list is not exhaustive. These
factors, or such of them as are applicable in a particular case, are not individually decisive, but must
be weighed one against the other, in the light of the totality of the evidence, and the probabilities . . .
”
30 11 2 1 Dock identification [139]
In § 9 7 above it was pointed out that an identification in court (a so-called “dock

identification”) is of very little probative value. [140] A court should be alert to the fact that
“[t]here is clearly a danger that a person might make an identification in court because
simply by seeing the offender in the dock, he had become convinced that he was the
offender.” [141]
30 11 2 2 Evidence of identification at a formal identification parade [142]
A parade of this nature is held in terms of rules of practice which are based on standards of
fairness [143] in order to secure a reliable result. [144] A court will more readily “accept
evidence of identification by a witness where such has been confirmed
Page 591
at a properly conducted parade”. [145] It is therefore essential that a court should be satisfied
that there were no material irregularities at the parade. In S v Daba it was also said that a
bald statement of a witness that he had identified the accused at an identification parade is
worthless where no evidence is placed before the court “as to the circumstances under which
the identification took place and therefore whether it was reliable”. [146] In S v Mohlathe [147]
the Supreme Court of Appeal referred, with approval, to R v Kola where Schreiner JA said
the following as regard the dangers of relying on parade identification evidence which
stemmed from an improper parade: [148]
“But an identification parade, though it ought to be a most important aid to the administration of
justice, may become a grave source of danger if it creates an impression which is false as to the
capacity of the witness to identify the accused without the aid of his compromising position in the
dock. Unsatisfactory as it may be to rely upon the evidence of identification given by a witness not
well acquainted with the accused, if that witness has not been tested by means of parade, it is worse
to rely upon a witness whose evidence carries with it the hall-mark of such a test if in fact the hall-
mark is spurious. Of course an identification parade is not necessarily useless because it is imperfect.
In some respects the quality of the parade must necessarily be a question of degree.”

parade [149]
The use of photographs for purposes of identification during the pre-trial investigative
stage, creates the danger that the witness will in court identify the person whose photograph
he saw and not the person whom he saw committing the offence. In S v Moti [150] the
Supreme Court of Appeal stressed the importance of a cautious approach in assessing
identification evidence based on a photographic identification parade. Various factors which a
court should take into account were also identified and considered. [151] And in
Page 592
S v Ndika and Others it was said that all will depend upon whether there is a reasonable
possibility that improper conduct in the course of the photographic identification parade “has
tainted the reliability of the identification or that, even in the absence of the improper
conduct, the objective circumstances attending the photographic identification parade were
not conducive to accuracy and reliability”. [152]
Referring to relevant authority, MJ Strydom J in S v Malefo en Andere [153] identified the
following five principles as the correct approach in assessing an alibi defence raised by an
accused: (a) There is no burden of proof on the accused to prove his alibi. [154] (b) If there is
a reasonable possibility that the accused’s alibi could be true, then the prosecution has failed
to discharge its burden of proof and the accused must be given the benefit of the doubt. [155]
(c) An alibi “moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die
getuies beoordeel word.” [156] (d) If there are identifying witnesses, the court should be
satisfied not only that they are honest, but also that their identification of the accused is
reliable (“betroubaar”). [157] (e) The ultimate test is whether the prosecution has furnished
proof beyond a reasonable doubt — and for this purpose a court may take into account the
fact that the accused had raised a false alibi. [158]
In some foreign jurisdictions an accused is in terms of legislation required to give advance
notice of an alibi defence. [159] The purpose of this type of legislation is to enable the state to
investigate the alibi prior to trial. South Africa does not have such legislation. However, if the
alibi is raised only during the course of cross-examination or when the accused testifies, the
court may —
Page 593
in assessing whether there is a reasonable possibility that the alibi is true — take into
account that the late disclosure of the alibi defence had deprived the prosecution of the
opportunity of investigating the alibi. [160]
The question whether it is constitutionally permissible to draw an adverse inference from a
failure to disclose an alibi timeously, was dealt with by the Constitutional Court in S v
Thebus and Another [161] — a case which is discussed in detail in § 16 3 1 above.
Evidence of voice identification must be treated with caution [162] and is — in the absence of
prior acquaintance — considered extremely poor evidence. [163] It has been said:
“Identification by voice is particularly contentious since the human ear is generally less
discriminating than the eye, and the aural abilities of people differ greatly.” [164]
30 11 3 Children [165]
In Rex v Manda [166] it was said that the imaginativeness and suggestibility of children are
only two of a number of reasons why the evidence of children should be “scrutinized with
care amounting, perhaps, to suspicion”. In S v S [167] Ebrahim J examined this issue very
carefully because he felt that a “new and more specific approach to cases involving children”
was necessary. In S v V Zulman JA, writing for a unanimous Supreme Court of Appeal,
stated as follows: [168]
“In view of the nature of the charges and the ages of the complainants it is well to remind oneself at
the outset that, whilst there is no statutory requirement that a child’s evidence must be corroborated,
it has long been accepted that the evidence of young children should be treated with caution . . .”
Page 594
The South African Law Commission has recommended that the cautionary rule relating to
children should be abolished unequivocally: [169]
“It is clear that an awareness of recent advances in the discipline of psychology and the application
thereof are prerequisite to reaching an intelligent conclusion regarding the evidence of children. As
the cautionary rule relating to children is so entrenched in the daily application of the law in our courts
it is recommended that the [proposed] Sexual Offences Act should clearly state that this rule should
no longer be applied.”
It remains to be seen whether the above recommendation will eventually become law. It is
perhaps necessary to repeat that the cautionary rule does not require corroboration. The
court must ultimately be satisfied that, having regard to all the facts and circumstances,
there is or is not proof beyond a reasonable doubt that the accused is guilty. And whilst it is
certainly true that the evidence of children should not be approached on the basis of
assumptions that all children make false allegations, have poor memories and are highly
suggestible, it is equally true that a court may not and cannot convict unless it is safe to do
so, that is, unless there is proof beyond reasonable doubt. The circumstances of and the
issues as raised in a particular case, might inevitably require that a court will have to
consider the age of the child witness and his or her mental ability and development. Each
case must be considered on its merits [170] — and this might involve a finding on whether the
evidence of the child witness concerned is such that it can for purposes of a conviction safely
be relied upon. [171]
30 11 4 The single witness [172]
Section 208 of the CPA provides that an accused may be convicted of any offence on the
single evidence of any competent witness. [173] In civil cases judgment may also be given on
the evidence of a single witness. In S v Sauls and Others [174] it was said that there is no
rule-of-thumb test or formula to apply when it comes to the consideration of the credibility
of a single witness. The trial court should weigh the evidence of the single witness and
should consider its merits and demerits and, having done so, should decide whether it is
satisfied that the truth has been told despite shortcomings or defects or contradictions in the
evidence. In S v Webber [175] it was decided that the evidence of a single witness should be
Page 595
approached with caution and such evidence ought not necessarily be rejected merely
because the single witness happens to have an interest or bias to the accused. The correct
approach is to assess the intensity of the bias and to determine the importance thereof in
the light of the evidence as a whole.
30 11 5 Abolition of the cautionary rule in sexual offences [176]
There used to be a cautionary rule that applied to the evidence of female as well as male [177]
complainants in sexual cases. [178] It was a rule that “was moulded by the prejudices of
another age, and . . . it [was] clearly influenced by a discredited conception of female
psychology.” [179] The rule was abolished in South Africa in 1998 by the Supreme Court of
Appeal’s decision in S v Jackson. [180] Writing for a full bench, Olivier JA held: [181]
“In my view, the cautionary rule in sexual assault cases is based on an irrational and out-dated
perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden is on the State to prove the guilt of an
accused beyond reasonable doubt — no more and no less.
Page 596
The evidence in a particular case may call for a cautionary approach, but that is a far cry from the
application of a general cautionary rule.”
This decision brought South African law in line with comparable foreign jurisdictions like
Canada, England, New Zealand and California. [182] The rule has also been abolished in
Namibia [183] as well as Zimbabwe. [184]
In S v Jackson Olivier JA considered it “important for our purposes” [185] to cite the
following passage from the English decision R v Makanjuola, R v Easton, [186] a decision that
was given after the legislative abrogation of the cautionary rule in England by s 32(1) of the
Criminal Justice and Public Order Act, 1994: [187]
“In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting
upon the unsupported evidence of a witness. This will not be so simply because the witness is a
complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an
accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness
may be unreliable. An evidential basis does not include mere suggestions by cross-examining
counsel.”
Applying S v Jackson and referring to R v Makanjuola, R v Easton, Shakenovsky AJ observed
as follows in S v M: “I do not . . . apply any general cautionary rule to complainant’s
evidence merely because this is a rape case. I look at the evidence as a whole and the
reliability of what has been placed before me.” [188] It is submitted that this approach is
correct and most certainly in line with the decision in S v Jackson. One would, furthermore,
have thought that “[t]his matter has now once and for all been settled in the Supreme Court
of Appeal.” [189] But not according to the South African Law Commission, which has
concluded that S v Jackson merely reformulated the existing rule. The South African Law
Commission (hereafter “the SALC”) accordingly recommended that a clause providing for the
abolition of the cautionary rule in sexual offences should be included in the (proposed)
Sexual Offences Act. [190]
Page 597
It is respectfully submitted that the interpretation which the SALC has given to S v Jackson
simply cannot be justified. S v Jackson abolished the cautionary rule. [191] It did not redefine
it. To claim that the decision “implies that a ‘residual’ cautionary rule may still apply in
sexual offences matters”, [192] is to ignore the very essence of the decision, namely that “[i]n
our system of law, the burden is on the State to prove the guilt of an accused beyond
reasonable doubt — no more and no less”. [193] Read in context, there is nothing “unclear” in
Olivier JA’s observation that “[t]he evidence in a particular case may call for a cautionary
approach”. [194] It is ultimately the incidence of the burden of proof
Page 598
and the application of the standard of proof that must control the whole process. [195] These
are constitutional fair trial rights — and where the evidence of a particular case may require
a cautionary approach, it merely means that a court is required to ensure that the accused
receives a fair trial in the sense that there can be no conviction unless the court is satisfied
that the prosecution has proved the guilt of the accused beyond a reasonable doubt.
Statutory confirmation of the abolition of the cautionary rule is found in s 60 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This
section — which came into operation on 16 December 2007 — provides as follows:
“Notwithstanding any other law, a court may not treat the evidence of a complainant in
criminal proceedings involving the alleged commission of a sexual offence pending before
that court, with caution, on account of the nature of the offence”.
This section does not oust the application of a cautionary rule where the complainant
happens to be a single witness (see § 30 11 4 above) or where identity is in issue (see
§ 30 11 2 above). Different considerations apply. Section 60 seeks to ensure — in line with S
v Jackson supra — that preconceived and discriminatory assumptions (like a possible motive
on the part of the complainant) or mere suspicions (like those based on prejudice or mere
suggestions in cross-examination) may not activate a cautionary approach. But s 60 does
not — and cannot — preclude a court from taking the necessary care once evidentially based
circumstances or probabilities favouring the accused have emerged. Any caution that arises
in this regard merely means that the court must in its assessment of all the evidence for
purposes of its verdict, ensure that nothing less than proof beyond reasonable doubt shall
result in a conviction. It is not the sexual nature of the charge that demands this approach.
There is no unfair treatment of or discrimination against the complainant. In all cases — and
regardless of the sexual or non-sexual nature of the offence — a court is, constitutionally
speaking, required to assess the evidence holistically and fairly.
30 11 6 Handwriting
Lay as well as expert opinion evidence on handwriting, must be approached with caution [196]
(see also § 8 5 2 above). A court may also make its own comparisons, but must be careful in
coming to and relying upon conclusions. [197]
Page 599

In Rex v Valachia and Another [198] it was decided that if part of a statement is proved
against a party on the basis that it contains admissions, then the party is entitled to have
the rest received as well if the two components comprise a single statement. However, in
terms of the rule in Valachia the court is entitled to attach less weight to those parts of the
statement favourable to its maker. [199] In S v Nduli and Others Nienaber JA, relying on the
rule in Valachia, said: [200]
“A statement made by a man against his own interests generally speaking has the intrinsic ring of
truth; but his exculpatory explanations and excuses may well strike a false note and should be treated
with a measure of distrust as being unsworn, unconfirmed, untested and self-serving.”
Rejecting exculpatory parts and accepting incriminating parts should only take place on
consideration of the evidence as a whole [201] and then only if there are sound reasons for
such rejection and acceptance.
The rule in Valachia [202] is not confined to extra-curial statements which are proved
against a party in court but also applies to an explanation of plea given by an accused in
terms of s 115 of the CPA. [203] This matter is dealt with in detail in § 16 7 2 above.
30 13 Court required to give reasons [204]
In the evaluation of evidence all the principles, rules and guidelines as set out in §§ 30 2
to 30 12 above, must — where applicable — be taken into account. And the surest way of
determining whether there was a proper assessment of the evidence, is to look at all the
evidence and the reasons advanced by the court for making the factual findings which it did.
There are also several other reasons why courts are required to furnish reasons. [205] But for
present purposes the focus is on the furnishing of reasons in enhancing the fact finding
process. It is only by articulating reasons to justify a factual finding, that the proper
Page 600
assessment of evidence can be achieved and arbitrariness avoided. [206] In Schoonwinkel v

Swart’s Trustee De Villiers JP said: [207]
“It is not sufficient for a magistrate to say, ‘I believe this witness and I did not believe that witness.’
The court of appeal expects the magistrate, when he finds that he cannot believe a witness, to state
his reasons why he does not believe him. If the reasons are because of inherent improbabilities, or
because of contradiction in the evidence of the witness, or because of his being contradicted by more
trustworthy witnesses, the court expects the magistrate to say so. If the reason is the demeanour of
the witness, the court expects the magistrate to say that.”
An “intelligent analysis of the evidence and an extraction of all the material points” are
required. [208] The conclusions which are reached “must account for all the evidence”. [209] A
judgment consisting of a mere repetition of evidence — a “regurgitation of the evidence” [210]
— is unacceptable.
Paucity of reasons and the absence of any specific finding as regards an accused’s
evidence, are “tantamount to a situation where no reasons for a conviction are given”. [211]
The requirement that reasons be given, ensures that courts base their decisions on “rational
grounds”. [212]
In National Director of Public Prosecutions v Naidoo and Others 2011 (1) SACR 336 (SCA)
Mpati P and Tshiqi JA said: [213]
“The importance of furnishing reasons for a judgment is a salutary practice. Judicial officers express
the basis for their decisions through reasoned judgments. A statement of reasons gives assurance to
the parties and to any other interested member of the public that the court gave due consideration to
the matter, thereby ensuring public confidence in the administration of justice.”
In appeals against a trial court’s findings of fact, these findings are — in the absence of
demonstrable and material misdirection by the trial court — presumed to be correct unless
the recorded evidence shows them to be clearly wrong. [214] However, this established
principle does not apply where “no judgment worth speaking of” was given by the trial court:
in such an instance the court of appeal is at liberty to assess the evidence afresh and come
to its own conclusions. [215]
[1] 2003 (1) SA 11 (SCA) at [5]. See also Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) at [6]; Louwrens v
Oldwage 2006 (2) SA 161 (SCA) at [14]; Dreyer and Another NNO v Axzs Industries (Pty) Ltd 2006 (5) SA 548
(SCA) at [30]; Katz v Katz 2004 4 All SA 545 (C) at [66]. For a useful article on fact-finding, see Bingham “The
Judge as Juror: The Judicial Determination of Factual Issues” 1985 38 Current Legal Problems 1.
[2] See s 146 of the CPA; s 93ter(3)(c) and (e) of the Magistrates’ Courts Act 32 of 1944; S v Maake 2011 (1)
SACR 263 (SCA) at [24]-[25]. In civil cases it is a rule of practice. See further Mphahlele v First National Bank of SA
Ltd 1999 (2) SA 667 (CC) at 671E-H.
[3] Maguire Evidence: Common Sense and Common Law (1947) 10.
[4] S v Abrahams 1979 (1) SA 203 (A).
[5] S v Van Wyk 1977 (1) SA 412 (NC) 414E-F.
[6] In the rest of this chapter the term “evidence” is used in its widest possible sense and as a synonym for
“probative material”. This is necessary as most courts do not distinguish between “evidence” (“getuienis”) in its wide
sense and “evidence” in a narrow sense. See further § 2 4 above as regard the distinction between evidence and
probative material. Cf also generally the use of the word “oortuigingsmateriaal” as used by Fleming J in S v Cronje
1983 (3) SA 739 (W) 744A-B and S v Mosendu 1981 (1) SA 323 (O) 325B.
[7] 2003 (1) SACR 35 (SCA) at [9]. Emphasis added.
[8] S v Sigwahla 1967 (4) SA 566 (A) 569H; S v Snyman 1968 (2) SA 582 (A) 589. But, obviously, where several
accused are charged together the defence of each individual accused must be considered carefully. In S v Jama and
Others 1989 (3) SA 427 (A) 439C-D Vivier JA said: “To adopt such a global view of the totality of the defence cases
in order to reject the evidence of an individual accused is not permissible and constitutes a serious misdirection.” See
also S v Mtsweni 1985 (1) SA 590 (A).
[9] S v Civa 1974 (3) SA 844 (T) 846-7. In S v Van Aswegen 2001 (2) SACR 97 (SCA) 101d-e the following
approach adopted by Nugent J in S v Van Der Meyden 1999 (1) SACR 447 (W) 450a-b was cited with approval
(emphasis added): “The proper test is that an accused is bound to be convicted if the evidence establishes his guilt
beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he
might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is
that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some
of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may simply be ignored.” See also S v Crossberg 2008 (2)
SACR 317 (SCA) at [157].
[10] S v Zitha 1993 (1) SACR 718 (A) 720i-721a. Ponnan JA has on at least three occasions stressed the
importance of the principle that evidence must be assessed “holistically”. See S v Zitha supra at [142] and S v
Monyane and Others 2008 (1) SACR 543 (SCA) at [21] as well as S v Van De Venter 2011 (1) SACR 238 (SCA) at
[8]. See further S v Carstens 2012 (1) SACR 485 (WCC) at [14].
[11] S v Mtsweni 1985 (1) SA 590 (A) 593D. See S v Mokgiba 1999 (1) SACR 534 (O) 548, where the evidence of
a doctor was found to be mere speculation and therefore of no value whatsoever.
[12] 1939 3 All ER 722 733. Referred to with approval in Katz v Katz 2004 4 All SA 545 (C) and Skilya Property
Investments (Pty) Ltd v Lloyds of London Underwriting 2002 (3) SA 765 (T) at 781A-C.
[13] S v Essack and Another 1974 (1) SA 1 (A) 16. In Bates & Lloyd Aviation (Pty) Ltd and Another v Aviation
Insurance Co; Bates & Lloyd Aviation (Pty) Ltd v Aviation Insurance Co 1985 (3) SA 916 (A) at 939I-940A Nicholas
JA drew a further distinction between inference and speculation, on the one hand, and hypothesis on the other hand:
“From both inference and speculation must be distinguished hypothesis. This is a theory advanced in explanation of
the facts in evidence as a basis for an inference. To be logically sound, it must be consistent with all the proved
facts, and it must not postulate facts which have not been proved. It may be advanced by a legal representative or,
where the subject is a technical one, by an expert witness. The process of reasoning by inference frequently includes
consideration of the various hypotheses which are open on the evidence and in civil cases the selection from them,
by balancing probabilities, of that hypothesis which seems to be the most natural and plausible (in the sense of
acceptable, credible or suitable).” Emphasis added.
[14] De Wet and Another v President Versekeringsmaatskappy Bpk 1978 (3) SA 495 (C) 500.
[15] S v Ndlovu 1987 1 PH H37 (A) 68.
[16] Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) 436H. See also § 8 6 2 above as regards the
probative value of expert opinion evidence.
[17] 1977 (4) SA 515 (A). See also Abdo NO v Senator Insurance Co Ltd and Another 1983 (4) SA 721 (E).
[18] “Corroboration” (“stawing”) is not a technical term. It is evidence which confirms or supports a fact of which
other evidence is given. See S v B 1976 (2) SA 54 (C) 59. In Popovic v Derks 1961 VR 413 it was said that
corroboration is evidence which renders the factum probandum more probable by strengthening the proof of one or
more facta probantia. Evidence which is merely consistent with facts which are not in dispute cannot be described as
corroboration: corroborative evidence must have a bearing on facts which are in dispute. See R v P 1957 (3) SA 444
(A) 454. See also generally Savage “What is Corroboration?” 1963 6 Criminal Law Quarterly 159.
[19] 2005 (1) SACR 420 (SCA) at [18]. Emphasis in the original. Reference was also made to Rex v W 1949 (3) SA
772 (A) at 778-9. In R v Cross 1970 1 CCC 216 217 Gale CJ said: “I have in mind the misdirection with respect to
the fact that two buttons were missing from the complainant’s coat when she appeared at the police station. While
she stated that the two buttons were lost during her struggle with the accused there was no independent evidence
that the buttons were on the coat prior to the struggle, and they were not found in the car. Hence any probative
value of the evidence was dependent upon the veracity of the girl and it was, therefore, incapable of being viewed as
corroboration.” See further Van der Merwe 1980 Obiter 86 90-2.
[20] Rex v Rose 1937 AD 467 473. See also S v Scott-Crossley 2008 (1) SACR 223 (SCA) at [17]; S v Hammond
2004 (2) SACR 303 (SCA) at [12]-[16]; S v M 2006 (1) SACR 67 (SCA) at [5]. In S v AM 2014 (1) SACR 48 (FB) the
court of appeal concluded that the victim’s report to her aunt corroborated the victim’s evidence (at [6]). This
approach is wrong because it is inconsistent with the rule against self-corroboration. See Van der Merwe 2014 (1)
Criminal Justice Review at 7. In S v Hanekom 2011 (1) SACR 430 (WCC) at [27] Saner AJ correctly said that there is
a “rule against self-corroboration by self-consistent statements.”
[21] S v Bergh 1976 (4) SA 857 (A) 869. See further § 9 6 5 above.
[22] R v Whitehead 1929 1 KB 99 102.
[23] 1973 1 All ER 440 456 (emphasis added).
[24] R v Trigg 1963 1 All ER 490.
[25] R v Redpath 1962 46 Cr App R 319; R v Knight 1966 1 WLR 230; S v Hammond 2004 (2) SACR 303 (SCA) at
[21] and [22]. In S v S 1990 (1) SACR 5 (A) at 11a-c the victim’s condition of severe shock was accepted as strong
corroboration (“sterk stawing”) that she was raped. See also § 9 6 5 above.
[26] See S v Balhuber 1987 1 PH H22 (A) 44 and S v Hammond supra at [23]. See also § 9 6 5 above.
[27] S v Kumalo 1983 (2) SA 379 (A) 383G-H.
[29] S v Blom 1992 (1) SACR 649 (E) 657i-j; S v Kearney 1964 (2) SA 495 (A) 501H; S v Mbambo 1975 (2) SA
549 (A) 554D.
[30] S v Talie 1979 (2) SA 1003 (C). Section 209 therefore does not relate to the confessio in iudicio: Bekker 1978
THRHR 207; Barton 1978 SACC 92; Klopper 1978 SACC 98.
[31] In S v Mjoli and Another 1981 (3) SA 1233 (A) it was held (Jansen JA dissenting) that an admission made by
an accused during the explanation of plea in terms of s 115 of the CPA (see generally § 26 5 1 above) is capable in
law of furnishing confirmation as required by s 209 of the CPA even though the admission was never formally
recorded as an admission in terms of s 220 of the CPA (as provided for by s 115(2)(b) of the CPA). It can be argued
that this approach of the Appellate Division conflicts with the rule against self-corroboration (as discussed in § 30 3 1
above) and does not take proper account of the true meaning and effect of corroboration as discussed in § 30 3
above). In his dissenting judgment Jansen JA took the view that the reason for requiring confirmation is to reduce
the risk of a false confession and that mere repetition of the confession cannot be said to reduce this risk. This
argument was clearly based upon the rule against self-corroboration. However, Rumpff CJ said that the danger of
convicting on a false confession was averted when a plea of not guilty was entered and the provisions of s 209 were
satisfied. Paizes 1982 SACC 115 121 has submitted that this approach is not very helpful: to say that compliance
with s 209 of the CPA is in these circumstances a safeguard is to beg the question of what s 209 actually requires by
way of confirmation. “If the accused’s own statement is sufficient corroboration, then such safeguard is
illusory” (Paizes 1982 SACC 115 121). Viljoen JA adopted a more cautious approach than Rumpff CJ, although the
former also stopped short of agreeing with Jansen JA. Viljoen JA proceeded from the premise that the inquiry was
not from what source the confirmation emanated, but what the circumstances were under which the confirmatory
statement was made: as long as the confirmation was such as to reduce the risk of a false confession it should
suffice for purposes of s 209 of the CPA. He also added the caveat that if the source of information was the accused
himself, then the court should be more cautious as the risk of a false confession would not be reduced to the same
extent as it would if the confirmation emanated from an independent source. However, according to Viljoen JA this
does not mean that such a confirmatory source is not permissible at all: everything must depend on the
circumstances under which the statement was made. See further generally S v Kumalo 1983 (2) SA 379 (A); S v
Erasmus 1995 (2) SACR 373 (E); S v Rossouw 1994 (1) SACR 626 (E).
[32] 1994 (1) SACR 626 (E).
[33] At 632j.
[34] R v Sephanyane 1955 2 PH H223 (A): “The confirmation must relate to a material matter. It may further be
assumed that the factor of materiality affects degree as well as kind, and that the confirmation must not be trivial or
unsubstantial. But it need not go so far as to establish, independently, the accused’s guilt.” In S v Maelangwe 1999
(1) SACR 133 (NC) the accused was charged with housebreaking. Apart from the accused’s confession, there was no
evidence that he shop was broken into. However, the accused had stated in his confession that the shop was opened
from inside by someone. Buys J found (at 147f-i) confirmation of the accused’s confession in the fact that there was
evidence that the shop was properly locked at closing time, that there were indeed no signs of a breaking-in and that
a person could have hidden in the shop before closing time.
[35] 1940 AD 355.
[36] Zeffertt, Paizes & Skeen The South African Law of Evidence (2003) 795.
[37] 1995 (2) SACR 373 (E).
[38] 1992 (1) SACR 649 (E).
[39] Cf generally S v Bengu 1965 (1) SA 298 (N).
[40] The problems which relate to credibility were set out by Lord Pearce in Onassis v Vergottis 1968 2 Lloyd’s Rep
403 431: “Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is
he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person,
telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register
the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his
recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with
others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily
and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with
every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a
witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken
down in writing immediately, after the accident occurred. Therefore, contemporary documents are always of the
utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable
that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is
put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these
problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one
judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities
must play their proper part.”
[41] Mohamed J in Hees v Nel 1994 1 PH F11 (T) 32.
[42] Jones J in Cloete v Birch 1993 (2) PH F17 (E) 51. In R v Haefele 1938 SWA 21 Van den Heever J gave the
following broad description of demeanour (at 22): “[T]he word demeanour does not merely signify the appearance of
a witness in the box; whether he gives his testimony with assurance, sometimes amounting to impudence, or
whether he has the sheepish look which one would expect from a liar; it means much more; it signifies that which
distinguishes the living word from mere written records and it includes such matters as a momentary hesitation and
an intonation of the voice and a thousand considerations which one may enumerate . . .”
[43] Nokes An Introduction to Evidence 4 ed (1967) 449: “[T]he blush of a witness is as real as a dried blood-stain
on a knife.” Naudé 2013 CILSA 166 comments on the effect of face-coverings on demeanour evidence and the fair
trial right.
[44] R v Mokwena 1940 OPD 130.
[45] 2005 (5) SA 339 (SCA) at [14]. In S v Kelly 1980 (3) SA 301 (A) it was also said that “demeanour is, at best,
a tricky horse to ride”: an honest witness may be shy or nervous by nature, whilst a dishonest and crafty witness
may simulate an honest demeanour (at 308B-D). See also Estate Kaluza v Braeuer 1926 AD 243 at 266 and Allie v
Foodworld Stores Distribution Centre (Pty) Ltd and Others 2004 (2) SA 433 (SCA) at [40].
[46] Rex v Masemang 1950 (2) SA 488 (A). See also Minister Van Veiligheid en Sekuriteit v Geldenhuys 2004 (1)
SA 515 (SCA) at [38].
[47] S v Civa 1974 (3) SA 844 (T).
[48] Le Roux J in S v Malepane and Another 1979 (1) SA 1009 (W) 1016H-1017A: “Demeanour can be a false
indication in this particular case. It must be remembered that all the accomplices are Black men testifying through
an interpreter and however excellent the interpreter is (and I must say in this particular case he was one of the best
I have come across) it is almost impossible to judge from demeanour alone whether a man is telling the truth or not
as would be the case with a witness who is cross-examined directly by counsel.” See Rex v Dhlumayo and Another
1948 (2) SA 677 (A) 697. See also Zeffertt 2000 ASSAL 795 801 and Body Corporate of Dumbarton Oaks v Faiga
1999 (1) SA 975 (SCA).
[49] President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000
(1) SA 1 (CC) at [79]. See also Patel v Patel 1946 CPD 46; Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) at [16]
and Allie v Foodworld Stores Distribution Centre (Pty) Ltd and Others supra at [40].
[50] 1936 OPD 24.
[51] Cloete v Birch 1993 (2) PH F17 (E). See also S v V 2000 (1) SACR 453 (SCA) 455f; S v M 2006 (1) SACR 135
(SCA) at [283]; Medscheme Holdings (Pty) Ltd and Another v Bhamjee supra at [39]-[41].
[52] Koekemoer v Marais 1934 1 PH J27 (C). The court of appeal is not obliged to accept the trial court’s finding on
demeanour as conclusive. Undue weight must not be accorded to the advantages that are said to be enjoyed by a
trial court, because “the demeanour of a witness is no substitute for evaluating the content of the evidence, taking
into account the wider probabilities” (S v M supra at [283]). See also Medscheme Holdings (Pty) Ltd and Another v
Bhamjee supra at [14]. A trial court’s credibility findings which are based – directly or indirectly – on the demeanour
of the witnesses, can be ignored where the court of appeal is satisfied that the record (“the written word”) shows
that the performance of the witnesses was obviously far from satisfactory (S v Heslop 2007 (1) SACR 461 (SCA) at
[13]. See also S v Crossberg 2008 (2) SACR 317 (SCA) at [149]. But “[b]earing in mind the advantage which a trial
court has of seeing, hearing and appraising a witness, it is only in exceptional circumstances that [a court] will be
entitled to interfere with a trial court’s evaluation of oral testimony . . .” (Smalberger JA in S v Francis 1991 (1)
SACR 198 (A) 204e). However, different considerations apply to expert witnesses. See Stock v Stock 1981 (3) SA
1280 (A) 1296E and Jackson v Jackson 2002 (2) SA 303 (SCA) 324B: the opportunity to observe the witness is less
important, as a court of appeal is in as good a position as the trial court to follow the reasoning of the expert.
[53] S v Mwanyekanga 1993 2 PH H54 (C). In the absence of findings on demeanour the court of appeal is in as
good a position as the trial court to assess credibility: S v Jochems 1991 (1) SACR 208 (A).
[54] Rex v Gumede 1949 (3) SA 749 (A).
[55] 1982 (3) SA 571 (T) (emphasis in the original).
[56] 1939 AD 71 80. See also S v M 2006 (1) SACR 135 (SCA) at [281].
[57] Rex v Blom 1939 AD 188 198; R v Nel 1946 WLD 406. In S v Mtsweni 1985 (1) SA 590 (A) the Appellate
Division considered the effect of a finding that the accused had given false evidence. The headnote in this case reads
as follows: “Although the untruthful evidence or denial of an accused is of importance when it comes to the drawing
of conclusions and the determination of guilt, caution must be exercised against attaching too much weight thereto.
The conclusion that, because an accused is untruthful, he therefore is probably guilty must especially be guarded
against. Untruthful evidence or a false statement does not always justify the most extreme conclusion. The weight to
be attached thereto must be related to the circumstances of each case. In considering false testimony by an
accused, the following matters should, inter alia, be taken into account: (a) the nature, extent and materiality of the
lies and whether they necessarily point to a realisation of guilt; (b) the accused’s age, level of development and
cultural and social background and standing in so far as they might provide an explanation for his lies; (c) possible
reasons why people might turn to lying, eg because in a given case, a lie might sound more acceptable than the
truth; (d) the tendency which might arise in some people to deny the truth out of fear of being held to be involved in
a crime, or because they fear that an admission of their involvement in an incident or crime, however trivial the
involvement, would lead to the danger of an inference of participation and guilt out of proportion in the truth.” In S v
Burger and Others 2010 (2) SACR 1 (SCA) Navsa JA warned as follows (at [30]): “There might be suitable cases in
which it is safe to conclude that lies, together with other suitable evidence, prove the guilt of an accused. However,
courts should be careful to decide against an accused merely as punishment for untruthful evidence.” Emphasis
added. See also S v Mcoseli 2012 (2) SACR 82 (ECG) at 87d-f. Paizes in Du Toit el Commentary at 22-26 points out
that in S v Deppe & another [2013] ZASCA 4 (unreported, SCA case no 512/12, 7 March 2013) the Supreme Court of
Appeal, relying on an Australian case Zoneff v R [2000] 200 CLR 234, took note of the distinction between
“credibility lies” and “probative lies”: the former refers to those situations where the contents of the lie affect the
credibility of the accused, whereas the latter refers to the situation where the contents establish directly guilt beyond
a reasonable doubt. See further S v MM 2012 (2) SACR 18 (SCA) at [18] and S v Gabaatlhole 2013 (1) SACR 471
(NCK) at [17]-[18].
[58] 1946 AD 390 396-7.
[59] See also further the discussion of Goodrich v Goodrich supra and R v Mlambo 1957 (4) SA 727 (A) in S v
Steynberg 1983 (3) SA 140 (A).
[60] Cloete v Birch 1993 (2) PH F17 (E). In S v Reddy and Others 1996 (2) SACR 1 (A) 8i Zulman AJA quoted Best
on Evidence 10 ed para 297: “[E]ven two articles of circumstantial evidence, though each taken by itself weigh but
as a feather, join them together, you will find them pressing on a delinquent with the weight of a mill-stone. . .” See
also S v Dos Santos and Another 2010 (2) SACR 382 (SCA) at [33].
[61] S v Shabalala 1966 (2) SA 297 (A) 299. See also S v Musingadi and Others 2005 (1) SACR 395 (SCA) at [21].
[62] 1944 AD 493 508-9. See also S v Reddy and Others supra 8e-g.
[63] R v Hlongwane 1959 (3) SA 337 (A); S v Ressel 1968 (4) SA 224 (A); S v Ntsele 1998 (2) SACR 178 (SCA)
182d-h; S v Mashiane en Andere 1998 (2) SACR 664 (NC) 668a-b.
[64] Rex v Mtembu 1950 (1) SA 670 (A); Rex v De Villiers supra 508-9; S v Reddy and Others supra 8c.
[65] 1939 AD 188 202-3. See also S v Mcasa and Another 2005 (1) SACR 388 (SCA) at [12]; S v Zuma 2006 (2)
SACR 191 (W) at 211e-g; S v Koralev and Another 2006 (2) SACR 298 (N) at 308a-b; R v Sole 2004 (2) SACR 599
(Les) at 664h-666h; S v Pitout 2005 (1) SACR 571 (B) at [18].
[66] S v Sesetse en ’n Ander 1981 (3) SA 353 (A) 369-70. Rex v Blom supra has been approved in many cases: S
v Steynberg 1983 (3) SA 140 (A); S v Van As 1991 (2) SACR 74 (W) 102e-f; S v Nango 1990 (2) SACR 450 (A)
457b; S v Morgan and Others 1993 (2) SACR 134 (A) 172h-i. In S v Reddy and Others supra 8c-d Zulman AJA held:
“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis
and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility
that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then
that one can apply the oft-quoted dictum in Rex v Blom 1939 AD 188 at 202-3 where reference is made to two
cardinal rules of logic which cannot be ignored.” For an argument that the cardinal rules in Blom are inadequate in
setting out how circumstantial evidence should be treated by our courts, see Paizes (2014) 27 SACJ 272 at 280.
[67] S v Cooper and Others 1976 (2) SA 875 (T). See further § 31 5 below.
[68] Govan v Skidmore 1952 (1) SA 732 (N) 734; Macleod v Rens 1997 (3) SA 1039 (E); Katz v Katz 2004 4 All
SA 545 (C) at [95].
[69] 1982 (2) SA 603 (A).
[70] Thayer A Preliminary Treatise on Evidence at the Common Law (1898) 341.
[71] 1967 (4) SA 566 (A) 569.
[72] R v Sacco 1958 (2) SA 349 (N).
[73] 1962 (2) SA 566 (A) 575.
[74] See also Sardi and Others v Standard and General Insurance Co Ltd 1977 (3) SA 776 (A).
[75] 1924 AD 438 445.
[76] S v Mudoti 1986 (4) SA 278 (ZS) 279J. Cf R v Jass 1939 EDL 249 and see Zeffertt 1986 ASSAL 476.
[77] 1992 (1) SACR 620 (Tk). At 622 White J pointed out that the “basis for the application of the maxim in civil as
well as criminal cases differs so materially that to do so in both fields can only lead to confusion and uncertainty. It
seems preferable that its application be restricted to civil cases, where it had its origin and where it is regularly
invoked, and that in criminal cases reference be made to the rules enunciated in Rex v Blom 1939 AD 188.” At 623j
Hancke J said “that as long as the correct standard of proof is applied according to whether it is a criminal or civil
case, I can see no objection in applying the maxim res ipsa loquitur in both proceedings”.
[78] Salisbury Bottling Co (Pvt) Ltd v Arista Bakery (Pvt.) Ltd 1973 (3) SA 132 (RA).
[79] Rex v Fourie and Another 1937 AD 31.
[80] Pretorius v Niehaus en ’n Ander 1960 (3) SA 109 (O) 112.
[81] See generally S v Skweyiya 1984 (4) SA 712 (A) 716C. This so-called doctrine does not apply to a charge of
housebreaking with intent to commit an offence. See S v Tandimali 1998 (1) SACR 119 (C) 121c.
[82] 1973 (1) SA 603 (A) 604C (emphasis added): “On proof of possession by the accused of recently stolen
property, the court may (not must) convict him of theft in the absence of an innocent explanation which might
reasonably be true. This is an epigrammatic way of saying that the court should think its way through the totality of
the facts of each particular case, and must acquit the accused unless it can infer, as the only reasonable inference,
that he stole the property”. The court is also required to consider the nature of the goods concerned. See S v
Madonsela 2012 (2) SACR 456 (GSJ). The question whether possession was recent enough to justify a conclusion
that the accused was involved, was dealt with in S v Thwala 2014 (1) SACR 414 (KZP).
[83] S v Letoba 1993 (2) SACR 614 (W).
[85] See § 31 2 and 32 2 below as regards the distinction between the burden of proof (“bewyslas”) and evidential
burden (“weerleggingslas”).
[86] It may happen (especially with regard to the police witnesses in small towns) that the presiding officer may
form a general impression of the reliability of a particular witness as a result of having heard the latter testify in
many previous trials. In the evaluation of evidence the court is not required to disregard such experience completely
(R v Mukuma 1934 TPD 134). In R v L 1955 (1) SA 575 (T) 577 it was said, eg, that it is inevitable that a court
should form a general impression of the reliability of a witness who appears frequently before it and that it is
impossible for that impression to be disregarded when the witness gives evidence. However, the important proviso is
that the evidence should still be weighed impartially (R v Van Heerden en Andere 1960 (2) SA 405 (T)) in that the
court should constantly bear in mind that there is no justification for basing a conviction solely on the improbability
that a false story would emanate from an apparently responsible and trustworthy person who has frequently given
what has seemed to the court to be fair and honest evidence (R v P 1955 (2) SA 561 (A) 564). An objective
approach is essential. See further Rademeyer v Steyn 1968 1 PH F30 (A) and S v Motsepe 1971 (2) SA 475 (T)
476E.
[87] 1990 (2) SACR 308 (E).
[88] Rex v Keller & Parker 1915 AD 98 99; S v Lukhandile 1999 (1) SACR 568 (C) 569. In S v Mpofu 1993 (2)
SACR 109 (N) Alexander J noted that “common sense, sanctioned by immemorial usage, has seen to it that one
witness should not be exposed beforehand to the evidence of another . . .” (at 112e). It remains, however, irregular
to visit such exposure with incompetence to testify. And there is no rule that a witness who has sat in court before
testifying, must automatically be disbelieved. See S v Lukhandile supra 569i. See also S v Mdali 2009 (1) SACR 259
(C).
[89] 1972 (4) SA 635 (E) 636.
[90] 1991 (1) SACR 1 (C) 16j-17a.
[91] See s 158 (as read with s 159) of the CPA.
[92] See generally Van der Merwe 1994 Stell LR 243 for a discussion of the history, purpose and constitutionality
of s 151(1)(b) of the CPA.
[93] Much will indeed depend upon the circumstances of the case. The position of an accused who has legal
representation and who testifies after having listened to four defence witness who had testified in support of his alibi
differs materially from the position of an undefended accused who elects not to testify and is then unexpectedly let
down by a defence witness who turns out to be a hostile defence witness, ie a witness “not desirous of telling the
truth at the instance of the party calling him” (see generally § 25 3 3 above for a discussion of the hostile witness).
[94] In S v Makhubo 1990 (2) SACR 320 (O) 321e-f the duplicated form used by the magistrate to explain the
rights of the accused at the end of the prosecution’s case merely contained the following concerning s 151(1)(b):
“Artikel 151 vereis dat u eerste getuig en daarna u getuies dog indien u gegronde redes aanvoer waarom u na u
getuies moet getuig, kan die hof dit toelaat.” It is submitted that this warning is inadequate in the sense that it does
not enable the undefended accused to make an informed consent. This matter, however, was not decided in S v
Makhubo supra.
[95] Cf generally the following remarks made in Zebediah v R 1962 1 PH F6 (SR) 11 13 (emphasis added): “The
considerations to which I have referred in relation to the calling of witnesses by counsel apply in essence to an
unrepresented accused though with very much less emphasis. Equally too no inference adverse to the accused
should be drawn from the mere fact that he elects to give evidence last. If the prosecutor wishes to contend that the
accused has done this in order to be able to mould his evidence and has so moulded his evidence, it is his duty to
cross-examine on these points. The reason why the accused called his witnesses first is relatively unimportant. The
important point is whether the accused has in fact moulded his evidence to accord with that of the witnesses who
have already given evidence. The question whether or not he decided to give evidence last in order to be able to
mould his evidence is of course relevant to the question whether he has in fact moulded his evidence. I do not think
the point can be taken further than that.” See further Tansley 1964 SALJ 109 for a discussion of this case.
[96] Cf generally the following remarks made in the pre-Charter Canadian case of R v Smuk 1971 3 CCC (2d) 457
462 (emphasis added): “It is to be remembered that until the accused is found guilty at the conclusion of the
trial. . .there is a presumption in our law that he is innocent and when he testifies presumably he testifies as a
witness of truth and his evidence like that of any other witness must be carefully weighed and considered after the
evidence has been given in Court. His evidence cannot be prejudged and no advantage or disadvantage is to be
attributed to his evidence in advance because he testifies after defence witnesses have testified for and on his
behalf . . . The credibility of one who testifies, whether he is an accused person or not, cannot under any
circumstances be prejudged by any Court. His credibility like that of any other witness can only be assessed after he
has testified and his credibility as a witness must be assessed upon a multiplicity of considerations, perhaps even
including the fact that he did not testify until after he had called all of his witnesses, if that fact is germane to the
assessment of his credibility, but to state in advance that an accused person must be called first to testify and failing
that, that his evidence must be suspect is a monstrous theory and completely and entirely foreign to our
jurisprudence and is a practice that should not, under any circumstances, be encouraged.”
[97] See President of the Republic of South Africa and Others v South African Rugby Football Union and Others
2000 (1) SA 1 (CC) at [61] and S v Boesak 2001 (1) SACR 1 (CC) at [26] and [28]. See also generally S v Mgudu
2008 (1) SACR 71 (N) at [77]; S v Naidoo 2010 (1) SACR 369 (KZP) at [15]. However, a failure to cross-examine is
not necessarily a fatal factor, but a factor to be weighed up with all the other facts and factors in the case. See Rex v
M 1946 AD 1023. In S v Scott-Crossley 2008 (1) SACR 223 (SCA) at [26] it was emphasised that “the failure to put
a version, even where it should have been put, does not necessarily warrant an inference that the accused’s version
is a recent fabrication.” And in S v Abader 2008 (1) SACR 347 (W) at 356c Horwitz AJ said that the rule “does not
simply perfunctorily operate to the prejudice of [the accused] because of his legal representative’s shortcomings or
because of his own inability to cross-examine”.
[98] 1975 (3) SA 88 (E) 89.
[99] Brand v Minister of Justice and Another 1959 (4) SA 712 (A) 715. In Galante v Dickinson 1950 (2) SA 460 (A)
465 Schreiner JA stated: “[I]t seems fair at all events to say that in an accident case where the defendant was
himself the driver of the vehicle the driving of which the plaintiff alleges was negligent and caused the accident, the
Court is entitled, in the absence of evidence from the defendant, to select out of two alternative explanations of the
cause of the accident which are more or less equally open on the evidence, that one which favours the plaintiff as
opposed to the defendant.” However, see also Dlakela v Transkei Electricity Supply Commission 1997 (4) SA 523
(TkS) for a case where circumstances were such that no adverse inference could be drawn from the failure of the
plaintiff to testify. In Olivier v Minister of Safety and Security and Another 2008 (2) SACR 387 (W) at 393e-f Horn J
said the following in rejecting the argument of counsel for the defendants that an adverse inference had to be drawn
from the plaintiff’s failure to testify: “It is quite permissible for a plaintiff in a case of unlawful arrest, when the onus
rests on the defendant, when the facts are largely common cause and the unlawfulness of the defendant’s conduct
can be ascertained from those facts and the evidence presented by the defendant, to refrain from giving evidence.
Even more so where there is nothing for the plaintiff to rebut, such as was the case here. In my view nothing sinister
can be read into the plaintiff’s decision not to give evidence in the circumstances of this case.”
[100] 1972 (3) SA 766 (A) 769A-E (emphasis in original).
[101] See generally S v Snyman 1968 (2) SA 582 (A) 588F; S v Letsoko and Others 1964 (4) SA 768 (A) 776A-F;
Rex v Ismail 1952 (1) SA 204 (A).
[102] S v Van Wyk 1992 (1) SACR 147 (NmS) 154; S v Francis 1991 (1) SACR 198 (A).
[103] 1996 (2) SACR 49 (NC). On this issue, see also generally Attorney-General v Moagi 1981 Botswana LR 1; S
v Scholtz 1996 (2) SACR 40 (NC); S v Sidziya 1995 12 BCLR 1626 (Tk); S v Chabalala 2003 (1) SACR 134 (SCA).
See further the discussion of Griffin v California 380 US 609 (1965) by Van der Merwe in 1994 Obiter 1.
[104] S v Brown en ’n Ander supra 60f-g. See further S v Mofokeng 1998 (1) SACR 57 (O) 60g. However, compare
S v Lavhengwa 1996 (2) SACR 453 (W) 487b-h where the court relied, amongst others, on Canadian authority which
must now be read subject to the decision of the Supreme Court of Canada in R v Noble (1997) 1 SCR 874 (SCC). For
criticism of Lavhengwa and a discussion of Noble, see Schwikkard Presumption of Innocence (1999) 119-22. In
Noble the majority held that the drawing of an adverse inference from an accused’s silence infringed the right to
silence as well as the presumption of innocence. For a further discussion of Noble, see Van der Merwe 1997 SACJ
262.
[105] In S v Brown en ’n Ander supra 63b-c Buys J thought that they were not: “Alhoewel Holmes AR [in the rules
in Mthetwa] sê dat die beskuldigde se swye die Staatsaak ‘versterk’, is dit duidelik dat die geleerde Regter eintlik
niks meer sê nie, as dat die direkte getuienis van die Staat onweerspreek staan en dat daar gevolglik minder rede is
om daardie getuienis te betwyfel. Ek lees nie hierdie uitspraak as synde gesag dat die Appèlhof die beskuldigde se
stilswye as ’n ekstra stukkie getuienis teen hom in aanmerking geneem het nie.” See also S v Chabalala 2003 (1)
SACR 134 (SCA) at [20], where a similar interpretation was given to Mthetwa.
[106] S v Brown en ’n Ander supra 63h-i. See also S v Hlongwa 2002 (2) SACR 37 (T) at [45].
[107] 2004 (2) SACR 599 (Les) (HC) at 684f-g. Emphasis in the original.
[108] S v Brown en ’n Ander supra 61h-i. The following statement by the SCA in S v Lange and Others 1998 (1)
SACR 1 (SCA) at 5g-h is perhaps unfortunate: “His silence, in the face of compelling evidence of guilt, proves the
case against him.”
[109] In his dissenting judgment in Griffin v California supra 623 Stewart J said: “No constitution can prevent the
operation of the human mind.” In S v Tandwa and Others 2008 (1) SACR 613 (SCA) at [53] it was said that although
silence was the constitutional entitlement of the accused, “his exercise of the right does not suspend the operation of
ordinary rational processes”.
[110] S v Brown en ’n Ander supra 61i-63c.
[111] 2001 (1) SACR 1 (CC) at [24]. See also generally S v Chabalala 2003 (1) SACR 134 (SCA) at [21]; S v De
Ruiter 2004 (1) SACR 332 (W) at [11]-[12]; S v Monyane and Others 2008 (1) SACR 543 (SCA) at [19]; S v
Hlongwa 2002 (2) SACR 37 (T); Hendricks v S [2010] 4 All SA 184 (SCA) at [20]-[22]; S v Mavinini 2009 (1) SACR
523 (SCA) at [23]; S v Hlapezula and Others 1965 (4) SA 439 (A) at [37]. See further Paizes (2014) 27 SACJ 272 at
284 for an argument that the SCA tends to take a much broader approach than the one applied by the Constitutional
Court in S v Boesak supra. See also the comments on S v Monyane and Others supra by Schwikkard “Arrested,
Detained and Accused Persons” in Currie & De Waal The Bill of Rights Handbook 6 ed (2013) at 766.
[112] S v Brown en ’n Ander supra 64i-65g.
[113] In Osman and Another v Attorney-General, Transvaal 1998 (2) SACR 493 (CC) at [22] it was said: “Our
legal system is an adversarial one. Once the prosecution has produced evidence sufficient to establish a prima facie
case, an accused who fails to produce evidence to rebut that case is at risk. The failure to testify does not relieve the
prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however, always runs the risk that,
absent any rebuttal, the prosecution’s case may be sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach of the right to silence. If the right to silence were to be so
interpreted, it would destroy the fundamental nature of our adversarial system of criminal justice.” See also S v
Boesak 2000 (1) SACR 633 (SCA) at [47] and S v Le Roux and Others 2010 (2) SACR 11 (SCA) at [33].
[114] This quotation is from the headnote in S v Makhubo 1990 (2) SACR 320 (O) and is an accurate translation of
the phrase which appears at 322g of the report.
[115] See generally S v Hlongwane 1992 (2) SACR 484 (N) 487h-i.
[116] At 65f-g: “Volgens my oordeel moet die beskuldigde ten opsigte van sy swygreg in ’n saak soos die
onderhawige dus ingelig word dat hy ’n grondwetlike reg het om stil te bly en dat geen nadelige afleiding bloot uit sy
stilswye gemaak kan word nie. Die gevolg egter van sy stilswye is dat die Staat se prima facie saak dat hy die
misdaad gepleeg het, onweerspreek staan. Die saak moet dus beslis word op die Staat se weergawe alleen in die
afwesigheid van sy weergawe van die gebeure en dit kan vir hom nadelig wees.” See also generally S v Khomunala
and Another 1998 (1) SACR 362 (V) and cf S v Hlongwa 2002 (2) SACR 37 (T) at [46]-[58].
[117] See Chinner 1993 SACJ 255 264-6 for an in-depth discussion of this matter.
[118] Elgin Fireclays Limited v Webb 1947 (4) SA 744 (A); R v Phiri 1958 (3) SA 161 (A) 165; S v Crossberg 2008
(2) SACR 317 (SCA) at [152]; S v Cornick and Another 2007 (2) SACR 115 (SCA) at [39]. In S v Ngxumza and
Another 2001 (1) SACR 408 (Tk) it was held that the mere statement from the bar by counsel for the state that a
potential witness for the state was not a credible witness, could not neutralise the long established rule that in
appropriate circumstances an adverse inference could be drawn from the failure to call a witness.
[119] S v Teixeira 1980 (3) SA 755 (A) 764; Durban City Council v SA Board Mills Ltd 1961 (3) SA 397 (A).
Application of the rule must not be such that it amounts to requiring a party to call all available witnesses. Much will
depend on the facts of the case and the nature of the dispute. It has been held that a prosecutor is not obliged to
call all available witnesses to an occurrence. See R v Heilbron 1922 TPD 99. A prosecutor is, furthermore, not obliged
to call witnesses whom he on reasonable grounds believes to be untruthful or hostile to the prosecution’s case or in
league with the accused. See S v Van der Westhuizen 2011 (2) SACR 26 (SCA) at [13]. These witnesses must be
made available to the defence.
[120] See R v Bezuidenhout 1954 (3) SA 188 (A) 197C-D as followed in S v Ramroop 1991 (1) SACR 555 (N)
559e-g; Olivier v Minister of Safety and Security and Another 2008 (2) SACR 387 (W) 393c-f.
[121] Rand Cold Storage & Supply Co Ltd v Alligianes 1968 (2) SA 122 (T).
[122] R v Juva 1931 TPD 89 92-3; S v Beahan 1990 (3) SA 18 (ZS) 22.
[124] S v Snyman 1968 (2) SA 582 (A) 585.
[125] R v J 1966 (1) SA 88 (SR) 585.
[126] Rex v Ncanana 1948 (4) SA 399 (A).
[127] Rex v Gumede 1949 (3) SA 749 (A).
[128] 1969 (2) SA 375 (N) 375-7. See also S v Eyssen 2009 (1) SACR 406 (SCA); S v Ndawonde 2013 (2) SACR
192 (KZD) at [70]; S v Hlapezula and Others 1965 (4) SA 439 (A); S v Hlongwa 1991 (1) SACR 583 (A); S v Francis
1991 (1) SACR 198 (A); S v Khumalo 1998 (1) SACR 672 (N). For an example of a case where the evidence of the
accomplice (“an admitted . . . liar, fraudster”) was accepted, see S v Mshumpa and Another 2008 (1) SACR 126 (E).
There was “a credible consistency in his story” (at [41]) and corroboration of his version by other evidence which
showed that the opposing witness was dishonest and untruthful (at [45]). See also S v Letsedi 1963 (2) SA 471 (A);
S v Ndawonde 2013 (2) SACR 192 (KZD).
[129] R v Nhleko 1960 (4) SA 712 (A).
[130] 1980 (1) SA 526 (A) 529.
[131] See also S v Johannes 1980 (1) SA 531 (A).
[132] S v Mabaso 1978 (3) SA 5 (O); S v Ramroop 1991 (1) SACR 555 (N). See also § 12 12 above. The need for
caution is even greater where the trap also happens to be a single witness. See S v Mahlangu and Another 2011 (2)
SACR 164 (SCA) at [23]-[24].
[133] Mayer v Williams 1981 (3) SA 348 (A). This rule will not survive constitutional scrutiny.
[134] Preen v Preen 1935 NPD 138.
[135] Borcherds v Estate Naidoo 1955 (3) SA 78 (A). See also S v Zitha 1993 (1) SACR 718 (A).
[136] See generally S v Letsedi 1963 (2) SA 471 (A); S v Malinga and Others 1963 (1) SA 692 (A) 693-4; S v
Chouhan 1987 (2) SA 315 (ZS) 317I-J.
[137] See generally Stone Proof of Fact in Criminal Trials (1984) 190-213; Gooderson Alibi (1977) 186; S v
Ngcobo 1986 (1) SA 905 (N); S v Zitha 1993 (1) SACR 718 (A); S v Ngcina 2007 (1) SACR 19 (SCA); S v Thebus
and Another 2002 (2) SACR 566 (SCA) 576f; S v Frazenburg and Others 2004 (1) SACR 182 (E) 188d-g.
[138] 1972 (3) SA 766 (A) 768. See also S v De Vries and Others 2012 (1) SACR 186 (SCA) at [14]-[16]; S v
Kolea 2013 (1) SACR 409 (SCA); S v Ngcamu and Another 2011 (1) SACR 1 (SCA) at [10].
[139] See generally Tapper Cross & Tapper on Evidence 11 ed (2007) at 761-2.
[140] It is, however, not inadmissible evidence. See the remarks of the full bench in S v Bailey 2007 (2) SACR 1
(C) at [24] where certain obiter dicta made in S v Maradu 1994 (2) SACR 410 (W) 413j-414a were rejected. See also
generally Ebrahim v Minister of Justice 2000 (2) SACR 173 (W) 175c-f and S v Daba 1996 (1) SACR 243 (E) 249c-e
as well as S v Tandwa and Others 2008 (1) SACR 613 (SCA) at [129]. There is no rule of law which requires that a
dock identification must be completely ignored. See S v Mdlongwa 2010 (2) SACR 419 (SCA) at [10]. See also S v
Ramabokela and Another 2011 (1) SACR 122 (GNP).
[141] Paragraph 5 2 of the official report Identification Procedure under Scottish Criminal Law, Cmnd 7096 (1978).
See also S v Tandwa and Others supra at [130]. S v T 2005 (2) SACR 318 (E) is an example of a case where the
cumulative effect of various factors deprived two dock identifications of all probative value (at [35]).
[142] For a discussion of the rules of practice which ought to govern a formal identification parade, see Van der
Merwe in Du Toit et al Commentary 3-22A to 3-37.
[143] Rex v Masemang 1950 (2) SA 488 (A) 493-4; S v Mlati 1984 (4) SA 629 (A) 635.
[144] Van der Merwe 1998 Stell LR 129 130. Our courts have on several occasions criticised the police for the
latter’s failure to hold a parade. See, eg, S v Matwa 2002 (2) SACR 350 (E) at 356h; S v May 2005 (2) SACR 331
(SCA) at [51] and S v Carolus 2008 (2) SACR 207 (SCA) at [19] and [20].
[145] S v Monyane and Others 2001 (1) SACR 115 (T) 129f. But a “less than perfect” parade affects weight and
not admissibility. See S v Bailey supra at [44]. In S v Chabalala 2003 (1) SACR 134 (SCA) it was concluded (at
142b-d) that the shortcomings in the parade had created no danger of an impression which was false as to the
ability of the witness to identify the accused. The fairness of the parade had also not been challenged seriously (at
142c) and the accused, by not testifying in his own defence, had “left the prima facie case to speak for itself” (at
142h).
[146] 1996 (1) SACR 243 (E).
[147] 2000 (2) SACR 530 (SCA) 541d-e.
[148] 1949 1 PH H100 (A). See also S v T 2005 (2) SACR 318 (E) at [12].
[149] See generally Van der Merwe in Du Toit et al Commentary 3-51 to 3-54 and Rust and Tredoux 1998 SACJ
196 210-1.
[150] 1998 (2) SACR 245 (SCA).
[151] At 255c-256a Nienaber JA observed as follows (emphasis added): “’n Uitkenning aan die hand van foto’s
geskied uiteraard in die afwesigheid van die beskuldigde. Die omstandighede waaronder dit plaasgevind het, is dus
moeilik om agterna te kontroleer. Steeds moet ’n hof bedag wees op die gevaar van bewuste samespanning of
onbewuste beïnvloeding. Twee vrae ontstaan: Was die uitkenning behoorlik? Is die getuienis betroubaar?. . .
Onbehoorlik sou dit wees om foto-uitkenning te reël, eerder as uitkenningsparade, nadat die beskuldigde reeds in
hegtenis geneem is; so ook indien ’n foto van ’n verdagte kort voor ’n ooggetuie se identifikasie, hetsy tydens ’n
uitkenningsparade, hetsy vanuit die getuiebank, aan so ’n getuie getoon word . . . Betroubaarheid hang weer van ’n
verskeidenheid ander faktore af. Relevant sou wees: die geloofwaardigheid van die ooggetuie self en van enigiemand
anders wat die foto-identifikasie-sessie bygewoon het; of laasgenoemde die ondersoekbeampte of deel van die
ondersoekspan was; die geleentheid wat die ooggetuie gehad het om die verdagte tydens die pleging van die
misdaad waar te neem; of hy vooraf ’n beskrywing van die verdagte aan die polisie gegee het wat met die foto
ooreenstem; waar, deur wie en onder welke omstandighede die foto van die verdagte aan die ooggetuie getoon is;
wat sy instruksie was en in die besonder of hy vooraf meegedeel is dat ’n foto van die verdagte óf beslis óf dalk glad
nie op die foto-parade sal wees nie; of die getuie alleen was toe hy sy uitkenning gemaak het dan wel in die
teenwoordigheid van ander potensiële ooggetuies; die aard en duidelikheid van die foto van die verdagte; of slegs
die foto van die verdagte aan die getuie getoon is en indien nie, die aantal ander foto’s wat ook aan hom getoon is;
die vergelykbaarheid van die ander foto’s wat aan die ooggetuie getoon is met dié van die verdagte; en of die foto’s
wat aan die ooggetuie getoon is (van die verdagte en van ander persone) steeds beskikbaar is en aan die hof
voorgelê word sodat die hof sy eie indruk en oordeel oor die vergelykbaarheid daarvan kan vorm. Dit is maar
sommige van die omstandighede wat by so ’n ondersoek in ag geneem moet word . . . Ten slotte is daar die
moontlikheid dat die vroeëre identifikasie by wyse van ’n foto afbreuk kan doen aan die ooggetuie se latere
identifikasie by wyse van ’n uitkenningsparade of getuienis in die hof: (Vgl S v Shandu 1990 (1) SACR 80 (N); S v
Nkomo 1990 (1) SACR 682 (ZS).) Die ooggetuie se identifikasie van die verdagte mag dermate deur die foto wat hy
vroeër gesien het beïnvloed kon gewees het dat hy oor die foto eerder as oor die gebeure getuig.”
[152] 2002 (1) SACR 250 (SCA) 257h.
[153] 1998 (1) SACR 127 (W) 158a-e.
[154] S v Mhlongo 1991 (2) SACR 207 (A) 210d; S v Zwayi 1997 (2) SACR 772 (Ck); S v Tandwa and Others 2008
(1) SACR 613 (SCA) at 655b.
[155] S v Khumalo en Andere 1991 (4) SA 310 (A) 327H; S v Ntsele 1998 (2) SACR 178 (SCA) 187g-188f. It must
be appreciated that an alibi defence is not a separate issue to the issue of identification: it “is essentially a denial of
the prosecution’s case on the issue of identification” (S v Ngcina 2007 (1) SACR 19 (SCA) at [18]). See also S v
Abader 2010 (2) SACR 558 (WCC) at [11]-[12].
[156] S v Malefo en Andere supra 158c. See also R v Hlongwane 1959 (3) SA 337 (A) 341A.
[157] S v Malefo en Andere supra 158d. See also S v Jochems 1991 (1) SACR 208 (A) 212a.
[158] S v Nkombani and Another 1963 (4) SA 877 (A) 893G. Where the accused fails to testify in support of his
alibi, the question will be whether the uncontroverted evidence of the prosecution can harden into proof beyond
reasonable doubt. See § 30 9 above.
[159] See generally Gooderson Alibi (1977) 82-134.
[160] In S v Zwayi 1997 (2) SACR 772 (Ck) 778h-j Ebrahim AJ said: “It should be apparent that if the Court is
properly to assess whether there is a reasonable possibility of the alibi being true, the details thereof should be
provided since in its absence the accused’s defence is simply a bare denial. In my view, if these details are only
disclosed, as in the present instance, at the late stage when the accused testifies, the value to be accorded to the
alibi may be adversely affected. I cannot see on what basis an accused can claim that he would be prejudiced in the
presentation of his defence if he had to disclose the details of his alibi defence during the cross-examination of the
State’s witnesses. On the other hand, if he withholds same until he testifies there is prejudice to the State since the
State will not have been provided with the opportunity of leading evidence which could expose the alibi as being
false.” See also Rex v Mashelele and Another 1944 AD 571 585. However, cf also S v Hlangabezo and Others 2008
(1) SACR 218 (E).
[161] 2003 (2) SACR 319 (CC).
[162] S v M 1972 (4) SA 361 (T) 364F.
[163] R v Mavuso 1969 2 PH H168 (Swaziland).
[165] See generally Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A); Rex v S 1948 (4) SA 419 (GW); Rex v
W 1949 (3) SA 772 (A); S v Ngxumza and Another 2001 (1) SACR 408 (Tk) 412b-d.
[166] 1951 (3) SA 158 (A) 163.
[167] 1995 (1) SACR 50 (ZS). See especially 54g-60c, where Ebrahim J refers to and relies upon Spencer & Flin
The Evidence of Children (1990) 238. For a discussion of S v S supra, see Watney 1995 THRHR 715 as well as
Combrinck 1995 SACJ 326 and Schwikkard 1995 SACJ 90 93.
[168] S v V 2000 (1) SACR 453 (SCA) at [2]. See also S v Raghubar 2013 (1) SACR 398 (SCA); S v Dyira 2010
(1) SACR 78 (ECG); S v Hanekom 2011 (1) SACR 430 (WCC); S v SMM 2013 (2) SACR 292 (SCA).
[169] Discussion Paper 102, Project 107, Sexual Offences: Process and Procedure (2002) para 31 3 4 7. See also
generally Müller The Child Witness in the Accusatorial System (unpubl PhD thesis, Univ of Rhodes, 1997) 283-6.
Section 164(4) of Namibian Criminal Procedure Act states that a court “shall not regard the evidence of a child as
inherently unreliable and shall. . .not treat such evidence with special caution only because that witness is a child.”
For a critical comment on this section, see Paizes in Du Toit et al Commentary 24-11.
[170] Director of Public Prosecutions v S 2000 (2) SA 711 (T). In S v Maswanganyi 2014 (1) SACR 622 (GP) at
[15] Bam AJ held that a cautionary rule need not be applied to a complainant who was already 17 years old at the
time of the incident.
[171] See S v Vumazonke 2000 (1) SACR 619 (C) 625e-h.
[172] See R v Makoena 1932 OPD 79 80; R v Bellingham 1955 (2) SA 566 (A) 569G-H; Swanepoel v S [2008] 4
All SA 389 (SCA) at [14]; S v Mahlangu and Another 2011 (2) SACR 164 (SCA).
[173] Section 16 of the CPEA.
[174] 1981 (3) SA 172 (A) 180.
[175] 1971 (3) SA 754 (A). The SA Law Commission has recommended that the cautionary rule in respect of single
witnesses should be abolished for purposes of sexual offences. See para 31 4 3 2 of Discussion Paper 102, Project
107, Sexual Offences: Process and Procedure (2002).
[176] On the application of this former rule, see generally Rex v W 1949 (3) SA 772 (A); Rex v M 1947 (4) SA 489
(N); S v S 1990 (1) SACR 5 (A) 8; S v De Graaff 1992 1 PH H23 (A); Rex v Rautenbach 1949 (1) SA 135 (A) 143; S
v F 1989 (3) SA 847 (A); S v Balhuber 1987 1 PH H22 (A); R v O 1964 (4) SA 245 (SR); S v Mayiya 1997 3 BCLR
386 (C); S v M 1992 (2) SACR 188 (W).
[177] S v C 1965 (3) SA 105 (N) 108.
[178] Some of the reasons for the former rule were set out in para 3 55 of the SA Law Commission’s Project 45:
Report on Women and Sexual Offences: “A cautionary rule is applied to evidence of rape (and other sexual
misconduct) because experience has shown that it is dangerous to rely on the uncorroborated evidence of the
complainant in such circumstances. The reasons for this are that as rape usually takes place in secret and the
complainant was involved, it is easy to lay a false charge and difficult to refute it. Furthermore a complaint could be
motivated by an emotional reaction or spite, an innocent man might be falsely accused because of his wealth, the
complainant might be forced by circumstances to admit that she had intercourse and represent willing intercourse as
rape.” At that stage the SA Law Commission recommended retention of the cautionary rule in sexual offences. But
their recommendations and the continued existence of the rule, were severely criticised. See, eg, Schwikkard and
Jagwanth 1998 SACJ 88; Fryer 1994 SACJ 60; Bronstein 1992 SAJHR 558; Schwikkard in Jagwanth et al (eds)
Women and the Law (1994) 198. At one stage there were indications that the demise of the rule in SA, would be on
constitutional grounds. See generally the remarks made by Davis J in S v M 1997 (2) SACR 682 (C) 685h-i. See also
generally S v Chapman 1997 (2) SACR 3 (SCA) 4f. In S v D and Another 1992 (1) SACR 143 (Nm) the Namibian
High Court took a critical view of the rule under discussion and pointed out that “[w]hile it is true that different
motives may exist for laying false charges, this surely applies to any offence and not only to offences of a sexual
nature” (at 146b). In S v D and Another supra Frank J also pointed out that the cautionary rule applies to male
complainants as well. But he noted that in most cases of this nature the complainant is female. He came to the
conclusion that the rule had no other purpose than to discriminate against women and that the rule was “probably
also contrary to art 10 of the Namibian Constitution, which provides for the equality of all persons before the law
regardless of sex” (at 146f-g). S v D and Another supra was criticised in S v M 1992 (2) SACR 188 (W), where it was
held that the cautionary approach in sexual offences did not discriminate and was not a legal rule but an admonition
for the cautious application of common sense. For further discussions of S v D and Another supra, see Wilmot 1992
SACJ 211 and Viljoen 1992 TSAR 543.
[179] Schwikkard 1993 SALJ 46 49.
[180] 1998 (1) SACR 470 (SCA). For a brief and valid criticism of the law as it stood prior to the decision in
Jackson, see the comments of Cameron J in S v M 2006 (1) SACR 135 (SCA) at [272].
[181] At 476e-f. The Constitutional court has made the following brief comment on the decision in S v Jackson
supra: “The recent radical revision of the so-called cautionary rule in sexual assault cases . . . is a reminder that
today’s perceived wisdom regarding human behaviour and the ability of the lay person to correctly interpret it, may
tomorrow be discarded as irrational and out of date.” See President of the Republic of South Africa and Others v
South African Rugby Football Union and Others 2000 (1) SA 1 (CC) in n 57 at [79].
[182] See the authorities and legislation referred to by Olivier JA in S v Jackson supra 476b.
[183] S v Katamba 2000 (1) SACR 162 (NmS), where it was pointed out that the observations made in S v D and
Another 1992 (1) SACR 143 (Nm) were obiter. The Namibian legislature has for good measure also abolished the
cautionary rule in offences of a sexual or indecent nature. Section 5 of the Namibian Combating of Rape Act 8 of
2000 provides as follows: “No court shall treat the evidence of any complainant in criminal proceedings at which an
accused is charged with an offence of a sexual or indecent nature with special caution because the accused is
charged with any such offence.”
[184] S v Banana 2000 (2) SACR 1 (ZS).
[185] S v Jackson supra 477c.
[186] 1995 3 All ER 730 (CA).
[187] R v Makanjuola, R v Easton supra 733c-d (with emphasis added by Olivier JA in S v Jackson supra at
477c-b).
[188] 2000 (1) SACR 484 (W) 501f.
[189] S v M supra 500h. In S v M 2006 (1) SACR 135 (SCA) at [272] Cameron JA (in his dissenting judgment on
the facts) observed — correctly, it is submitted — that the abolition of the cautionary rule means that in determining
the presence or absence of reasonable doubt it is neither necessary nor permissible “for motives to be freely imputed
to sexual offence complainants at appellate level when these were not fairly and properly explored in their
testimony.” It should be noted that in this case the majority (Streicher and Nugent JJA) said nothing to the contrary
and did not impute such motives, but simply found that on all the available evidence rape was not proved beyond a
reasonable doubt.
[190] See paras 31 2 4 5–31 2 4 9 of Discussion Paper 102, Project 107, Sexual Offences: Process and Procedure
(2002) — hereafter cited as “Discussion Paper 102”: “[T]he Supreme Court of Appeal has removed the obligation to
treat evidence of victims of sexual offences with caution, though the discretion to do so remains. The guideline given
for the exercise of the discretion, taken from the Makanjuola judgment, is that there need to be an evidential basis
for suggesting that the evidence of the witness may be unreliable (thus requiring a cautionary approach). This
approach holds the danger that the requirement of an ‘evidential basis’ for suggesting unreliability may serve to
broaden the issues in dispute, leaving room for the introduction of evidence, for instance, on the previous sexual
history of the complainant. Such evidence, which might otherwise have been irrelevant, would be saved from
inadmissibility because of its potential utility in establishing that the evidence of the witness should be approached
with caution. Olivier JA’s suggestion that the evidence in a ‘particular case’ may call for a cautionary approach is
somewhat unclear, since it is not immediately apparent from the judgment whether this specifically refers to sexual
offence matters (which appears to be the case from the context), or whether this is a broader rule applying in all
criminal cases. The latter interpretation implies that in any criminal matter there may be aspects which suggest that
caution is advisable (for example, that the witness is a single witness, or that the quality of evidence is not
satisfactory). This general approach is followed in the evaluation of evidence . . . However, the alternative which
becomes apparent from the reading of Judge Olivier’s dictum is that there are certain sexual offence cases where
caution should apply because of the nature of the case. This version is, with respect, problematic, since it leaves
judges or magistrates with a very broad discretion as to whether or not a particular case warrants this cautionary
approach. In essence, this implies that a ‘residual’ cautionary rule may still apply in sexual offence matters . . . It is
unclear whether the intention in S v Jackson was to ‘abolish’ the cautionary rule or to redefine it. Following a careful
reading of the judgment it seems to merely reformulate the existing rule. In effect, in certain circumstances victims
of sexual offences will be treated with caution in the same way as accomplices to the crime itself are . . . The
cautionary rule in sexual cases is confusing in itself, and therefore leads to uneven interpretation. The court is first
required to believe the complainant, and then to search for reasons not to believe the complainant. The cautionary
rule, in effect, places a victim of sexual assault in an unequal position in that their evidence is viewed as suspect and
the offender’s evidence is viewed with an open mind. No scientific, reasonable or justifiable basis for the retention of
the cautionary rule could be found.” See also paras 31 2 4 10 and 31 4 3 2 of Discussion Paper 102.
[191] Steyn Witnesses in South Africa, The Stepchildren of the Criminal Justice System (unpubl LLM thesis, UCT,
1999) 111 correctly summarises the impact of S v Jackson in the following terms: “Presiding officers no longer have
to apply the cautionary rule in evaluating the evidence of complainants on the sole basis that complainants in sexual
offences have a motive for falsely incriminating the accused. What is required of presiding officers is that in
determining the credibility of a witness they evaluate the testimony of such witnesses within the context of all the
evidence available to the court. Any treatment of sexual complainants as witnesses, other than that meted out to
ordinary witnesses, is no longer justified. To ensure that complainants in sexual cases receive equal treament is an
approach that is rational, sound and justifiable in terms of the protections guaranteed in the Constitution. The
Court’s decision in [S v Jackson] heralds a new era in South African law of evidence pertaining to the testimony of
victims of sexual assault. In future accused persons in sexual offence cases will receive the same protection against
false evidence as accused people in all other cases; the difference will be that complainants, who were treated with
unjustified suspicion through the application of this rule in the past, will now receive proper and fair treatment.” See
also S v M 1999 (2) SACR 548 (SCA) 555b-c where Melunsky AJA observed, with reference to S v Jackson supra,
that he was free to “proceed to consider the evidence without the restraints imposed by the cautionary rule”.
[192] See para 31 2 4 7 of Discussion Paper 102.
[193] S v Jackson supra 476e-f. Emphasis added.
[194] S v Jackson supra 476f. See also S v Gentle 2005 (1) SACR 420 (SCA) at [17]; S v Jones 2004 (1) SACR
420 (C) at 427e-f; S v Hammond 2004 (2) SACR 303 (SCA) at [25]; S v Zuma 2006 (2) SACR 191 (W) at 212h. The
fact of the matter is that any cautionary approach to the evidence of a witness must be triggered by some evidential
basis. See generally S v MN 2010 (2) SACR 225 (KZP) and S v MG 2010 (2) SACR 66 (ECG) at [9]. See also
Schwikkard in Smythe & Pithey (eds) Sexual Offences Commentary: Act 32 of 2007 (2011) at 23-10. In Cele v S
[2012] 4 All SA 182 (KZP) it was the tender age (and not the nature of the offence) that required caution. See
further S v GS 2010 (2) SACR 467 (SCA) and Van der Watt v S [2010] 3 All SA 483 (SCA). In both these cases the
improbabilities and inconsistencies (and not the old cautionary rule in sexual offences) made it unsafe to confirm the
convictions.
[195] S v M 1999 (2) SACR 548 (SCA) 555b-c and 557g-i. In S v Van Der Ross 2002 (2) SACR 362 (C) it was said
that the judgment in S v Jackson does not mean that courts are free to convict in an indiscriminate and reckless
manner where the charge is of a sexual nature. In S v Gentle supra at [30] Cloete JA said: “The natural sympathy
that one has for a woman who says that she has been raped, cannot be allowed to play any role in deciding whether
the onus of proof in a criminal case has been satisfied.” See also the remarks made by Yekiso J in S v K 2008 (1)
SACR 84 (C) at [6].
[196] S v Van Dyk 1998 (2) SACR 363 (W) 375g-h; Annama v Chetty and Others 1946 AD 142 154.
[197] S v Boesak 2000 (1) SACR 633 (SCA) at [57] and [58].
[198] 1945 AD 826 835. See also S v Felix and Another 1980 (4) SA 604 (A) 609H-610A; S v Khoza 1982 (3) SA
1019 (A) 1039A-B; S v Musingadi and Others 2005 (1) SACR 395 (SCA) at [44].
[199] See also R v Vather and Another 1961 (1) SA 350 (A).
[200] 1993 (2) SACR 501 (A) 505g. See also S v Maelangwe 1999 (1) SACR 133 (NC) 144i-145c.
[201] S v Yelani 1989 (2) SA 43 (A) 50.
[202] S v Motloba 1992 (2) SACR 634 (BA) 639d-e.
[203] S v Cloete 1994 (1) SACR 420 (A). See also generally S v Shikunga and Another 1997 (2) SACR 470 (NmS)
490f-g and S v Shikongo and Others 2000 (1) SACR 190 (NmS) 200a.
[204] See generally Commissioner, South African Revenue Service v Sprigg Investment 117 CC t/a Global
Investment 2011 (4) SA 551 (SCA) at [28]-[30]; Mphahlele v First National Bank of SA Ltd 1999 (2) SA 667 (CC) at
[12]; Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC) at [15]; S v Maake 2011 (1) SACR
263 (SCA) at [12]; S v Ngabase and Another 2011 (1) SACR 456 (ECG) at [4]; S v Maake 2011 (1) SACR 263 (SCA)
at [24]; S v Mcoseli 2012 (2) SACR 82 (ECG); S v Carter 2014 (1) SACR 517 (NCK) at [3]; S v Van Der Berg and
Another 2009 (1) SACR 661 (C); S v Frazenburg and Others 2004 (1) SACR 182 (E); S v Calitz en ’n Ander 2003 (1)
SACR 116 (SCA). See also s 146 of the CPA and s 93ter(3)(c) to (e) of the Magistrates’ Courts Act 32 of 1944. In
civil cases a rule of practice requires that reasons be given. See S v Maake supra [19] and Botes and Another v
Nedbank Ltd 1983 (3) SA 27 (A).
[205] See generally Van der Merwe in Joubert (ed) Criminal Procedure Handbook 11 ed (2014) at 312; Paizes in
Du Toit et al Commentary at 22-131 to 22-132.
[206] In S v Maake supra at [20] Navsa and Tshiqi JJA said: “A statement of reasons gives some assurance that
the court gave due consideration to the matter and did not act arbitrarily”.
[207] 1911 TPD 397 at 401.
[208] S v Bhengu 1998 (2) SACR 231 (N) 234h-i.
[209] S v Van Der Meyden 1999 (1) SACR 447 (W) 450b.
[210] S v Bhengu supra 234i.
[211] S v Ngabase and Another 2011 (1) SACR 456 (ECG) at [4].
[212] S v Mokela supra at [12].
[213] 2011 (1) SACR 336 (SCA) at [18].
[214] Rex v Dhlumayo and Another 1948 (2) SA 677 (A) at 705-706; S v Hadebe and Others 1997 (2) SACR 641
(SCA) at 645e-f.
[215] S v Carter 2014 (1) SACR 517 (NCK) at [6].
Page 601
Chapter 31
The Standard and Burden of Proof and Evidential
Duties in Criminal Trials
31 1 Introduction
31 2 The Onus (“Bewyslas”) and Evidentiary Burden (“Weerleggingslas”)
31 3 3 Issues concerning the mental illness or mental defect of the accused
31 3 3 1 Criminal non-responsibility (incapacity) on account of mental
illness or mental defect (s 78(1) of the CPA)
31 3 3 2 Non-triability on account of mental illness or mental defect (s 77
of the CPA)
31 5 Application for Discharge
31 1 Introduction
The burden of proof functions to assist decision-makers in conditions of uncertainty. [1]
An accused is in terms of ss 106(4) and 108 of the CPA entitled to a verdict once she has
pleaded. This principle of finality requires presiding officers to make an affirmative finding in
every case irrespective of deficiencies in the evidence. Furthermore, the decision must
accord with “certain abstract notions of justice and fairness”. [2] Allen notes even though
“burdens of proof and presumptions . . . are tools which the legal system employs to
advance its objective of accurate fact-finding,” [3] they are tempered by considerations of
policy. For example, the allocation of the burden of proof in criminal trials is a product of a
society’s preference that innocent people be protected from erroneous conviction. [4] If we
adopt the language of decision theory, burdens of
Page 602
proof “maximise the expected utility of legal proceedings”. [5] Although maximum utility can
frequently be equated with the most accurate outcome, policy sometimes dictates otherwise.
For example, when we require the prosecution to bear the burden of proving guilt beyond
|
reasonable doubt it is
“because the disutility of convicting an innocent person far exceeds the disutility of finding a guilty
person to be not guilty: better that ten guilty persons go free than one innocent person be
convicted”. [6]
The burden of proof allocates the risk of non-persuasion: the person who bears the burden
of proof will lose if she does not satisfy the court that she is entitled to succeed in her claim
or defence. [7] A proper understanding of the burden of proof requires a clear distinction to
be drawn between the onus (burden of proof) and an evidentiary burden.
31 2 The Onus (“Bewyslas”) and Evidentiary Burden

(“Weerleggingslas”)
The burden of proof or true onus “refers to the obligation of a party to persuade the trier of
facts by the end of the case of the truth of certain propositions”. [8] But the evidentiary
burden “refers to one party’s duty to produce sufficient evidence for a judge to call on the
other party to answer” [9] and it also encompasses “the duty cast upon a litigant to adduce
evidence in order to combat a prima facie case made by his opponent”. [10]
It is a fundamental principle of our law that in a criminal trial the burden of proof rests on
the prosecution to prove the accused’s guilt beyond a reasonable doubt. This burden will rest
on the prosecution throughout the trial. At the outset of the trial, in tandem with the burden
of proof, the state must also discharge an evidential burden. It will do this by establishing a
prima facie case against the accused. Once a prima facie case is established the evidential
burden will shift to the accused to adduce evidence in order to escape conviction.
Page 603
However, the burden of proof will remain with the prosecution. It is possible that even if the
accused does not adduce evidence, he will not be convicted if the court is satisfied that the
prosecution has not proved guilt beyond a reasonable doubt. [11]
In S v Alex Carriers (Pty) Ltd en ’n Ander [12] the court contrasted the burden of proof
resting on the prosecution and the accused’s “evidentiary” burden in the following terms:
“Conviction beyond reasonable doubt is what the State must achieve before it succeeds in making ‘the
wall of guilt fall on the accused’; it is unnecessary for the accused to push any part of that wall over
onto the side of the State. An accused will accordingly be discharged if the State’s case is not strong
enough and, according to principle, it will sometimes be sufficient if the accused does nothing at all
and sometimes it will be sufficient if he relies on pointing out the weaknesses in the State case (by,
eg, cross-examination which exposes the unreliability of a witness). The practical effect of the State
producing a stronger case might well be that such limited counters to the State case might transpire
to be insufficient and that active rebuttal of the State case is necessary to counter the strength of that
case. Even then there is no onus of proof on the accused. (As there still appears to be confusion, it
might promote clarity to say that an accused experiences a necessity of rebuttal
[“weerleggingsnoodsaak”] rather than he bears a burden of rebuttal.) The quantity and strength of
the rebutting considerations required by the accused to prevent the State producing a convincing case
depends, in the nature of things, on the strength of the State case. The accused has to do nothing
more than to cause the court, when reaching its decision, to have a reasonable doubt concerning the
guilt of the accused.” [13]

The constitutional and common-law presumption of innocence [14] and the principle that the
burden of proof rests on a party seeking to change the status quo, cast on the state the
burden of proving everything necessary to establish criminal liability: the accused as the
perpetrator, [15] the required mens rea, the commission of the act charged, [16] and its
unlawfulness. [17] The state is required to prove the absence of any defence raised by the
accused, for example, the absence of compulsion, [18] private defence, [19] consent, sane
automatism, [20] the right to chastise or necessity. [21] The incidence of the onus of proof with
regard to mens rea and actus reus
Page 604
is also in no way altered by a defence of voluntary or involuntary intoxication. [22] Where an
alibi is raised the state bears the onus of proving that it was the accused who committed the
crime. [23]
There are several exceptions to the general rule that the burden of proof rests on the state
to prove guilt beyond reasonable doubt. These exceptions are obviously an infringement of
the constitutional rights to be presumed innocent and to remain silent. Such infringements
will be tolerated only if they meet the requirements of the limitations clause. [24] The
constitutionality of statutory presumptions that have the effect of placing a burden of proof
on the accused is more fully considered in chapter 29 above.
31 3 3 Issues concerning the mental illness or mental defect of the

accused
A distinction must be drawn between two situations, namely mental illness or mental defect
as a substantive law defence (see § 31 3 3 1 below) and mental illness or mental defect as a
procedural issue (see § 31 3 3 2 below).
31 3 3 1 Criminal non-responsibility (incapacity) on account of mental illness or
mental defect (s 78(1) of the CPA)
An accused is criminally non-responsible if at the time of the alleged offence he was — on
account of mental illness or mental defect — unable to appreciate the wrongfulness of his
act, or to act in accordance with such an appreciation. This is a substantive law defence as
provided for in s 78(1) of the CPA. It is sometimes called the “then” question, [25] referring to
the situation as it was at the time of the commission of the alleged offence.
Section 78(1A) of the CPA provides as follows in respect of the above defence: “Every
accused person is presumed not to suffer from a mental illness or mental defect so as not to
be criminally responsible in terms of s 78(1), until the contrary is proved on a balance of
probabilities”. Section 78(1A) codifies the common law and must be read with s 78(1B). [26]
The latter section provides as follows: “Whenever the criminal responsibility of an accused
with reference to the commission of an act or an omission which constitutes an offence is in
issue, the burden of proof with reference to the criminal responsibility of the
Page 605
accused shall be on the party who raises the issue”. The burden of proof is therefore on the
accused should he raise the issue by relying on the defence of mental illness or mental
defect as provided for in s 78(1). He will be successful if he can discharge this burden on a
balance of probabilities, that is, the civil standard of proof as explained in § 32 7 below. And
in those (very rare) instances where the prosecution and not the accused, raises the issue,
the prosecution will have the burden of proving its allegation on a balance of
probabilities. [27] This is the combined effect of s 78(1A) and 78(1B). It should be noted that
s 78(1B) regulates the s 78(1) defence and does not apply to a defence of non-pathological
incapacity. [28]
Is the common-law and statutory presumption of sanity (and its concomitant rule that an
accused must prove his or her s 78(1) defence on a balance of probabilities) constitutionally
tenable? In R v Chaulk [29] the Canadian Supreme Court held that although the presumption
of sanity infringed the constitutional right to be presumed innocent, it was a reasonable
limitation. The underlying rationale of this conclusion was that to require the state to prove
sanity would place an almost impossible burden on the prosecution. In a minority judgment
Wilson J held that the presumption of sanity could not be viewed as a reasonable limitation
in that it did not impair as little as possible the accused’s right to be presumed innocent as
the same objectives could be met by merely placing an evidentiary burden
(“weerleggingslas”) on the accused. It should be noted that in Canadian law there appear to
be no provisions in terms of which the court can order an investigation into the accused’s
mental state. [30]
In the South African context it is clear that insanity excludes the element of capacity
which is a fundamental aspect of liability. Placing an onus of proving insanity on the accused
relieves the prosecution of establishing this element of liability and, therefore, infringes the
presumption of innocence. Burchell & Milton’s solution is to restrict the effect of the
presumption of sanity to the creation of an evidentiary burden. [31] Although this distinction
between the
Page 606
burden of proof and the evidentiary burden does not necessarily cure the prima facie
unconstitutionality of the presumption of sanity, [32] it certainly strengthens the argument
that it meets the requirements of the limitations clause. [33]
31 3 3 2 Non-triability on account of mental illness or mental defect (s 77 of the
CPA)
An accused “may not be tried while he or she is incapable of understanding the
proceedings”. [34] Section 77 of the CPA covers this situation and sets the following test: Is
the accused “by reason of mental illness or mental defect not capable of understanding the
proceedings so as to make a proper defence”? This is the so-called “now” question, [35]
referring to the accused’s mental state at the time of the trial. [36] It concerns mental fitness
to stand trial and raises the fundamental procedural issue of “triability”. It is not a
substantive law defence and does not give rise to issues pertaining to criminal responsibility
as identified in § 13 3 above. The provisions of s 78(1A) and 78(1B) as cited in § 31 3 3 1,
therefore do not apply. Where an accused who indeed suffers from a mental defect or
mental illness relies on s 77 (he or she has raised the matter of non-triability), the state
(who did not raise the matter but wishes to contest non-triability) has the burden of proving
that, notwithstanding the mental illness or mental defect, the accused is capable of
understanding the proceedings so as to make a proper defence. [37]

In § 31 4 2 below it is argued that there is a general common-law duty that a defence must
at the latest be introduced during the course of cross-examination (see also §§ 18 6 4
and 30 8 above). However, there is at least one statutory provision requiring an accused to
state his substantive law defence when he is called upon to plead: In terms of s 107 of the
CPA an accused who is charged with criminal defamation and “who sets up a defence that
the defamatory matter is true and that it was for the public benefit that the matter should be
published, shall plead such defence specially.” But this is merely a procedural requirement
and does not relieve the state of its burden of proving unlawfulness, namely that truth and
public benefit did not require publication.
Page 607

An accused has a duty to introduce his defence. [38] This should be done by putting his
defence to state witnesses who are being cross-examined. [39] The defence may also be
introduced during the explanation of plea in terms of s 115 of the CPA. The duty to introduce
a defence does not mean that there is an onus of proof upon the accused. It merely means
that the accused has a procedural duty to raise the issue during the trial so that the state is
able to concentrate upon the real issue. Lansdown & Campbell observe as follows: [40]
“Apart from this special case of allegations of insanity, where the onus of proof is upon the State it
must disprove any defence raised by the accused. This does not mean that the prosecution must lead
evidence on all possible issues to negative in advance all possible defences. The prosecution witnesses
are not required to recite in every case that the accused acted without provocation, not in self-
defence, under no mistake or duress, and so forth. Rather, if the defence wishes to rely on such a
defence and put the prosecution to the disproof thereof, it must raise the particular issue.”
The duty to introduce a defence is also not the equivalent of putting an evidentiary burden
on the accused, which would require him to raise a reasonable doubt to secure an acquittal.
But the great circumspection [41] with which the courts approach the defence of non-
pathological criminal incapacity [42] due to emotional stress or anger, requires the accused to
do more than merely introducing a triable issue. In S v Eadie [43] Navsa JA — referring to
earlier Supreme Court of Appeal decisions like S v Potgieter [44] and S v Francis [45] — said:
“It is well established that when an accused person raises a defence of temporary non-pathological
criminal incapacity, the State bears the onus to prove that he or she had criminal capacity at the
relevant time. It has repeatedly been stated by this Court that:
(i) in discharging the onus the State is assisted by the natural inference that in the absence of
exceptional circumstances a sane person who engages in conduct which would ordinarily
give rise to criminal liability, does so consciously and voluntarily;
(ii) an accused person who raises such a defence is required to lay a foundation for it, sufficient
at least to create a reasonable doubt on the point;
(iii) evidence in support of such a defence must be carefully scrutinized;
(iv) it is for the Court to decide the question of the accused’s criminal capacity, having regard to
the expert evidence and all the facts of the case, including the nature of the accused’s
actions during the relevant period.” [46]
Page 608
Paragraph (ii) above makes it clear that mere introduction of the defence concerned is
inadequate and that an evidentiary burden arises because of the natural inference identified
in para (i). In S v Cunningham [47] — one of the cases applied in S v Eadie — Scott JA put
the matter even more forcefully:
“Criminal responsibility presupposes a voluntary act (or omission) on the part of the wrongdoer.
Automatism therefore necessarily precludes criminal responsibility . . . In discharging the onus upon it
the State, however, is assisted by the natural inference that in the absence of exceptional
circumstances a sane person who engages in conduct which would ordinarily give rise to criminal
liability does so consciously and voluntarily. Common sense dictates that before this inference will be
disturbed a proper basis must be laid which is sufficiently cogent and compelling to raise a reasonable
doubt as to the voluntary nature of the alleged actus reus and, if involuntary, that this was
attributable to some cause other than mental pathology.” [48]
31 5 Application for Discharge [49]

“If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no
evidence that the accused committed the offence referred to in the charge or any offence of which he
may be convicted on the charge, it may return a verdict of not guilty.”
The discretion conferred by the word “may” enabled the courts to invoke the following test in
applying s 174:
“At the close of the State case, when discharge is considered, the first question is: (i) is there
evidence on which a reasonable man might convict; if not (ii) is there a reasonable possibility that the
defence evidence might supplement the State case? If the answer to either question is yes, there
should be no discharge and the accused should be placed on his defence.” [50]
In Rex v Kritzinger and Others [51] the court held that it had an absolute discretion to refuse
discharge even where there was no evidence against the accused. [52] This approach which
allowed the court to refuse discharge if there is a reasonable possibility that the accused
might supplement the state’s case, has
Page 609
been criticised in numerous divisions of the High Court. [53] These decisions were rendered
prior to the new constitutional dispensation. S v Mathebula and Another [54] was the first
case to consider s 174 in light of the interim Constitution. In this case Claassen J noted that
ss 11(1) and 25(3)(c) & (d) of the Interim Constitution curtailed the discretion conferred by
s 174 “possibly even to the extent of it being non-existent”. [55] He reasoned as follows:
“The duty to prove an accused’s guilt rests fairly and squarely on the shoulders of the State. As I said
previously the accused need not assist the State in any way in discharging this onus. If the State
cannot prove any evidence against the accused at the end of the state’s case, why should the accused
be detained any longer and not be afforded his constitutional rights of being regarded innocent and
thus be acquitted and accorded his freedom? Can it be said that he was given a fair trial if, at the
close of the State’s case wherein no evidence was tendered to implicate him in the alleged crimes, the
trial is then continued due to the exercise of a discretion in the hope that some evidence implicating
him might be forthcoming from the accused himself or his co-accused? To my mind such a
discretionary power to continue the trial would fly in the face of the accused’s right to freedom, his
right to be presumed innocent and remain silent, not to testify and not to be a compellable witness.
To my mind it would constitute a gross unfairness to take into consideration possible future evidence
which may or may not be tendered against the accused either by himself or his co-accused or by
other co-accused and for that reason decide not to set him free after the State had failed to prove any
evidence against him.” [56]
However, Claassen J attached the caveat that his judgment only pertained to cases where
there was no evidence tendered against the accused and did not lay down a general rule
“when there is scant evidence against the accused”. [57] He concluded that where there was
no evidence against the accused it would render the trial unfair not to grant discharge, and a
discretion to refuse discharge could not be said to constitute a justifiable limitation on the
basis that it would be “grossly unreasonable that an accused, vested with all the higher
order rights, should be put on his defence when no incriminating evidence came from the
mouth of the State”. [58] Further, it would negate the accused’s rights to freedom, to be
presumed innocent and not to be a compellable witness. [59]
In support of this conclusion he drew on the reasoning of the Canadian Supreme Court in
Du Bois v R. [60] In this case, Lamer J held that the standard required to avoid discharge, ie
the “case to meet” was an essential component
Page 610
of the presumption of innocence. He stated that the presumption of innocence required the
prosecution to prove the “accused’s guilt beyond a reasonable doubt as well as that of
making out the case against the accused before he or she need respond, either by testifying
or by calling other evidence”. [61]
Mathebula was approved and applied by Nicholson J, Niles-Duner J concurring, in S v
Jama and Another. [62] And Willis J, in S v Ndlangamandla and Another, [63] was unequivocal
in holding that the discretion to refuse discharge in the absence of evidence to support a
conviction no longer applied. [64]
However, there have also been judgments rejecting the approach adopted in
Mathebula. [65] In S v Makofane, [66] Mynhardt J was prepared to follow Mathebula only in so
far as it applied to a single accused against whom no evidence had been adduced. To not
discharge an accused in such circumstance, he held, would be unfair and any subsequent
conviction would inevitably be a consequence of self-incrimination. However, he found that
the court retained a discretion to refuse discharge where some evidence had been adduced
against the single accused although not sufficient to constitute a prima facie case.
Mynhardt J (Swart J concurring) rejected the reasoning of Claassen J on the basis that the
only change brought about by the interim Constitution in relation to s 174 is that the court
must now, in exercising its discretion, ask whether the accused has been accorded a fair
trial. Referring to Key v Attorney-General, Cape Provincial Division, and Another [67] and
Khan v S [68] as authority for the proposition that the decision as to what constitutes a fair
trial is discretionary, Mynhardt J appears to take the approach that the specific rights
guaranteed in relation to the right to a fair trial are also subject to the court’s discretion. And
on this basis he makes no attempt to deal with Claassen J’s contention that the broad
discretion exercised under s 174 infringes the right to remain silent and the right to be
presumed innocent. Mynhardt J’s approach is not sustainable. The passages referred to in
Key and Khan clearly apply to the discretion to exclude or include unconstitutionally obtained
evidence in accordance with the right to a fair trial. Both cases were decided in terms of the
interim Constitution which, unlike the present Constitution, had no explicit provision
regarding the admissibility of unconstitutionally obtained evidence. Both cases are consistent
with the finding of the court in S v Zuma and Others [69] that the right to a fair trial is
broader than the specific rights guaranteed in s 25(3) of the Interim Constitution (s 35(3) of
the present
Page 611
Constitution). However, they cannot be read as conferring a discretion on the court to

disregard those rights specified in s 35(3) in determining whether the requirements for the
right to a fair trial have been met.
Subsequent to the above decisions the Supreme Court of Appeal has begun to clarify the
limits of judicial discretion in the application of s 174. In S v Legote en ’n Ander [70] Harms JA
held that it was clear that a court had a duty to ensure that an unrepresented accused
against whom the state had not made out a prima facie case was discharged and the
principle of equality required that this duty be extended to the represented accused. In S v
Lubaxa [71] Nugent AJA held as follows:
“I have no doubt that an accused person (whether or not he is represented) is entitled to be
discharged at the close of the case for the prosecution if there is no possibility of a conviction other
than if he enters the witness box and incriminates himself. The failure to discharge an accused in
those circumstances, if necessary mero motu, is in my view a breach of the rights that are guaranteed
by the Constitution and will ordinarily vitiate a conviction based exclusively upon his self-incriminatory
evidence.” [72]
While it is possible that Legote could be interpreted as requiring the prosecution to adduce
evidence sufficient to sustain a prima facie case in order to avoid discharge, the dictum of
Nugent AJA, albeit obiter, casts some doubt as to whether the relevant threshold is a prima
facie case and clearly advocates a different approach in respect of co-accused. Nugent AJA
found that the right to be discharged did not necessarily arise from the right to be presumed
innocent, to remain silent or not to testify but rather the constitutional rights to dignity and
personal freedom which require the existence of “a ‘reasonable and probable’ cause to
believe that the accused is guilty”. [73] Unfortunately, Nugent AJA does not elaborate on why
in this context the rights to dignity and personal freedom have greater application than the
accused’s fair trial rights referred to above.
The courts’ difficulty in drawing a clear line between the constitutional rights to dignity,
personal freedom and a fair trial is illustrated by Nugent AJA’s conclusion that the protection
afforded by the rights to dignity and personal freedom will be “pre-eminently” eroded “where
the prosecution has exhausted the evidence and a conviction is no longer possible except by
self-incrimination”. And presumably it is the privilege against self-incrimination which
underlies the Nugent AJA’s finding that “[t]he same considerations do not necessarily
arise . . . where the prosecution’s case against one accused might be supplemented by the
evidence of a co-accused”. [74] The express reason given by Nugent AJA is that as “[t]he
prosecution is ordinarily entitled to rely upon
Page 612
the evidence of an accomplice . . . it is not self-evident why it should necessarily be

precluded from doing so merely because it has chosen to prosecute more than one person
jointly”. However, it is equally not self-evident why the rights to privacy and freedom of
person cease to be infringed merely because the prosecution has chosen to prosecute more
than one person jointly. However, it could be argued that the latter scenario is somewhat
more palatable in that the refusal of discharge need not necessarily be premised on the
possibility that the accused will incriminate himself but rather that the co-accused will
complete the prosecution task.
The uncertainties raised by Lubaxa were partially addressed by the Supreme Court of
Appeal in S v Nkosi and Another. [75] In Nkosi it was common cause that in the court a quo
the state had failed to establish “any evidence against the first appellant on which a
reasonable man could convict him at the end of the case”. [76] (This wording would suggest
that for the state to avoid discharge it is required to establish a prima facie case.) The court
a quo refused to hear the application for discharge on the basis that there were multiple
accused therefore such an application would be inappropriate. This the appeal court held in
Nkosi was not a proper application of Lubaxa which foresaw the possibility that in certain
circumstances the failure to discharge a co-accused might amount to the infringement of a
right to a fair trial. [77] It concluded that the first appellants right to a fair trial had been
compromised through the court a quo’s refusal to even hear the application for discharge as
there was no “reasonable basis, for an expectation that his co-accused might incriminate
him”. [78] It is now clear that Lubaxa may not be evoked as a blanket precedent for refusing
discharge on the application of a co-accused.
So it would appear that we can conclude with some confidence that if there is no evidence
against an accused at the close of the state case the court must, mero motu if necessary,
discharge the accused whether represented or not. Further, that the weight of authority
favours discharge in the absence of a prima facie case.
It is clear from R v P (MB) [79] and R v Noble [80] that in the Canadian context, the
prosecution must establish a prima facie case in order to avoid discharge. A prima facie case
is
“one in which the prosecution case is complete on all inculpatory elements of the offence and
sufficient in the sense that a reasonable trier of fact could find that the evidence comes up to proof
beyond a reasonable doubt.”
McLachlin J, in Noble, [81] explained the distinction between the application of the
presumption of innocence at the close of the state case and at the end of the trial, as
follows: at the close of the state case the question to be asked is whether the evidence, if
believed, established proof beyond a reasonable doubt.
Page 613
At the end of the trial the presiding officer must then consider whether he believes the
prosecution evidence. However, South African precedent makes it clear that it is possible for
credibility, to play a role (albeit limited) in the determination of a prima facie case. In S v
Swartz and Another [82] the court referred with approval to the following passage from S v
Mpetha and Others: [83]
“In my view Nortje, Bauer and Naidoo correctly held that credibility is a factor that can be considered
at this stage. It must be remembered that it is only a very limited role that can be played by
credibility at this stage of the proceedings. If a witness gives evidence which is relevant to the
charges being considered by the court, then that evidence can only be ignored if it is of such poor
quality that no reasonable person could possibly accept it.” [84]
The criminal standard of proof, is proof beyond a reasonable doubt and the courts have
articulated its meaning in a number of different ways. In S v Glegg [85] it was said that proof
beyond reasonable doubt cannot be put on the same level as proof beyond the slightest
doubt, because the burden of adducing proof as high as that would in practice lead to
defeating the ends of criminal justice. It was also held that the words “reasonable doubt” in
the phrase “proof beyond reasonable doubt” cannot be precisely defined, but it can well be
said that it is a doubt which exists because of probabilities or possibilities which can be
regarded as reasonable on the ground of generally accepted human knowledge and
experience. [86] Where there are no probabilities either way and it cannot be said that the
innocent version of the accused is not reasonably true, then the evidence does not constitute
proof beyond reasonable doubt. [87] In Rex v M [88] it was said that it is not a prerequisite for
an acquittal that the court should believe the innocent account of the accused: it is sufficient
that it might be substantially true. The accused is not required to prove her innocence. [89]
But fanciful possibilities should not be allowed to deflect the course of justice. [90] In Rex v
Difford [91] the following remarks of the trial court were approved by the Appellate
Division: [92]
“It is not disputed on behalf of the defence that in the absence of some explanation the Court would
be entitled to convict the accused. It is not a question of throwing any onus
Page 614
on the accused, but in these circumstances it would be a conclusion which the Court could draw if no
explanation were given. It is equally clear that no onus rests on the accused to convince the Court of
the truth of any explanation he gives. If he gives an explanation, even if the explanation is
improbable, the Court is not entitled to convict unless it is satisfied, not only that the explanation is
improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of
his explanation being true, then he is entitled to his acquittal . . .” [93]
Nugent J in S v Van Der Meyden [94] elaborates as follows:
“The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of
the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is
reasonably possible that he might be innocent . . . These are not separate and independent tests, but
the expression of the same test when viewed from opposite perspectives. In order to convict, the
evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if
there is at the same time no reasonable possibility that an innocent explanation which has been put
forward may be true. The two are inseparable, each being the logical corollary of the other . . . In
whichever form the test is expressed, it must be satisfied upon consideration of all the evidence. A
court does not look at the evidence implicating the accused in isolation in order to determine whether
there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in
isolation in order to determine whether it is reasonably possible that it might be true. . . .” [95]
In S v Magano [96] the court set aside a conviction on the basis that the trial magistrate had
misunderstood the required standard of proof in criminal cases when he found that “the
evidence of the State was reasonably possibly true against that of the defence”.
Cameron JA in S v Mavinini [97] articulated the relationship between proof beyond
reasonable doubt and legal guilt:
“It is sometimes said that proof beyond reasonable doubt requires the decision-maker to have ‘moral
certainty’ of the guilt of the accused. Though the notion of ‘moral certainty’ has been criticised as
importing potential confusion in jury trials, it may be helpful in providing a contrast with mathematical
or logical or ‘complete’ certainty. It comes down to this: even if there is some measure of doubt, the
decision-maker must be prepared not only to take moral responsibility on the evidence and inferences
for convicting the accused, but to vouch that the integrity of the system that has produced the
conviction — in our case, the rules of evidence interpreted within the precepts of the Bill of Rights —
remains intact. Differently put, subjective moral satisfaction of guilt is not enough: it must be
subjective satisfaction attained through proper application of the rules of the system.”
The standard of proof is not affected by the serious or trivial nature of the charge. [98]
Page 615
In those exceptional circumstances where statutes place the burden of proof on the
accused the civil standard of proof applies. If a statute merely places an evidentiary burden
on the accused, the state will still carry the burden of proving its case beyond reasonable
doubt. [99]
[1] Solum 1994 Harvard Journal of Law and Public Policy 691. See generally RH Gaskins Burdens of Proof in
Modern Discourse (1992).
[2] Morton & Hutchison Presumption of Innocence (1987) 11.
[3] Allen “Burdens of Proof, Uncertainty, and Ambiguity in Modern Legal Discourse” 1994 17 Harvard Journal of
Law and Public Policy 627 at 632. See also Winick “Presumptions and Burdens of Proof in Determining Competency
to Stand Trial: An Analysis of Medina v California and the Supreme Court’s New Due Process Methodology in Criminal
Cases” 1993 47 University of Miami Law Review 817.
[4] Allen 1994 Harvard Journal of Law and Public Policy 627 at 634.
[5] Solum “You Prove It! Why Should I!” 1994 17 Harvard Journal of Law and Public Policy 691 at 701. See also
Stein “From Blackstone to Woolmington: On the Development of Legal Doctrine” 1993 14 Journal of Legal History 14.
[6] Solum 1994 Harvard Journal of Law and Public Policy 691 at 701. See also Bell “Decision Theory and Due
Process: A Critique of the Supreme Court’s Lawmaking for Burdens of Proof” 1987 Journal of Criminal Law and
Criminology 575. See also Dworkin A Matter of Principle (1986) 83, who states: “[A] society that submits questions
of criminal procedure to ordinary utilitarian calculus does not recognize the independence or importance of moral
harm, or, if it does, does not recognize that even an accidental conviction of an innocent person is an occasion of
moral harm.” In S v Kubeka 1982 (1) SA 534 (W) 538G Slomowitz AJ noted: “The rule that the State is required to
prove guilt beyond a reasonable doubt has on occasion been criticized as being anomalous. On the other hand, the
vast majority of lawyers (myself included) subscribe to the view that in the search for truth it is better that guilty
men should go free than an innocent man should be punished”.
[7] Pillay v Krishna and Another 1946 AD 946 at 952, discussed more fully in § 32 3 below. See Thayer Preliminary
Treatise on Evidence at Common Law (1898) 353.
[8] Heydon & Ockelton Evidence: Cases & Materials 4 ed (1996) 15, where it is also noted that “[w]hat these
propositions are depends on the substantive rules of law and pleadings”.
[10] South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) 548.
See also Pillay v Krishna and Another 1946 AD 946 952-3; S v Ndlovu 1986 (1) SA 510 (N); S v De Blom 1977 (3)
SA 513 (A) 532.
[11] See generally Heydon & Ockelton Evidence 15.
[12] 1985 (3) SA 79 (T). See also S v Carstens 2012 (1) SACR 485 (WCC) at [13].
[13] Headnote; see 88I-89D for original text.
[14] Rex v Ndhlovu 1945 AD 369.
[15] Rex v Blom 1939 AD 188 at 210; R v Hlongwane 1959 (3) SA 337 (A).
[16] R v Nhleko 1960 (4) SA 712 (A) 721. See also S v Tembani 1999 (1) SACR 192 (W).
[17] Rex v Ndhlovu supra.
[18] S v Mtewtwa 1977 (3) SA 628 (E).
[19] Rex v Ndhlovu supra; S v Ngomane 1979 (3) SA 859 (A).
[20] S v Van Rensburg 1987 (3) SA 35 (T); S v Viljoen 1992 (1) SACR 601 (T); S v Potgieter 1994 (1) SACR 61
(A). See also § 31 4 1 below.
[21] S v Adams S v Werner 1981 (1) SA 187 (A).
[22] S v Chretien 1981 (1) SA 1097 (A). Note that in terms of s 1 of the Criminal Law Amendment Act persons will
be guilty of an offence if they consume or use any substance: (a) which impairs their faculties to appreciate the
wrongfulness of their acts or ability to act in accordance with such appreciation; (b) knowing that such substance has
that effect; and (c), while their faculties are so impaired, commit an act prohibited by law (for which they would not
be liable because of the impairment to their faculties).
[23] R v Hlongwane 1959 (3) SA 337 (A). See further § 30 11 2 4 above as well as S v Liebenberg 2005 (2) SACR
355 (SCA). An alibi is not a separate issue to the issue of identification, but “is essentially a denial of the
prosecution’s case on the issue of identification”. See S v Ngcina 2007 (1) SACR 19 (SCA) at [18]. See also S v
Abader 2010 (2) SACR 558 (WCC) at [11].
[24] S v Zuma and Others 1995 (1) SACR 568 (CC). See generally ch 29 above.
[25] Kruger Hiemstra’s Criminal Procedure (2008) at 13-3. See also generally the remarks made by Griessel J in
De Vos No and Another v Minister of Justice and Constitutional Development and Others 2015 (1) SACR 18 (WCC) at
[7].
[26] These two subsections were inserted in the CPA by s 5 of Criminal Matters Amendment Act but only came into
operation 28 Feb 2002.
[27] Snyman Criminal Law 5 ed (2008) 175.
[28] Burchell Principles of Criminal Law 4 ed (2013) 291; Meintjes-Van der Walt 2002 SACJ 242 at 245. See also
generally S v Volkman 2005 (2) SACR 402 (C) at [8]. It should be noted that issues concerning the presence or
absence of criminal capacity not related to mental illness but youthfulness, are governed by ss 7(2) and 11(1) of the
Child Justice Act 75 of 2008. In terms of s 7(2) a child who is 10 years or older but under the age of 14 years, is
presumed to lack criminal capacity. Section 11(1), however, provides for the rebuttal of this presumption if the state
can prove “beyond reasonable doubt” that at the time of the alleged offence the child concerned could appreciate the
difference between right and wrong and, furthermore, was able to act in accordance with this appreciation. See
further § 4 4 above and S v TS 2015 (1) SACR 489 (WCC) at [11].
[29] 1991 1 CRR (2d) 1.
[30] In contrast the South African courts can order such an investigation in terms of ss 78 and 79 of the CPA. See
S v Mokie 1992 (1) SACR 430 (T); S v Mphela 1994 (1) SACR 488 (A).
[31] Burchell & Milton Principles of Criminal Law 253. Their viewpoint is supported by Snyman Criminal Law 5 ed
(2008) at 175, who states: “It has been argued that it would be better to burden the state with the onus of proving
that X was not mentally ill at the time of the conduct in question, but to place a duty on an accused who raises this
defence to place evidence before the court which would be sufficient to create at least a reasonable doubt as to
whether he was mentally sound. Such a rule would accord with the general rule relating to the onus in criminal
matters as well as the presumption of innocence. Such a rule would also accord with the rule relating to the onus of
proof in the defence of automatism. It is submitted that this argument has merit, especially if one bears in mind that
a mentally ill person is, of all persons, the least capable of proving his incapacity.”
[32] See chs 28 and 29 above.
[33] See R v Chaulk supra. See also Schwikkard “Insanity: The Tenacious Reverse Onus” in Hoctor and Schwikkard
(eds) The Exemplary Scholar: Essays in Honour of John Milton (2007) 80.
[34] See S v Mabena and Another 2007 (1) SACR 482 (SCA) at [12].
[35] Kruger Hiemstra’s Criminal Procedure (2008) at 13-3. See also the remarks of Griesel J in De Vos No and
Another v Minister of Justice and Constitutional Development and Others 2015 (1) SACR 18 (WCC) at [7].
[36] Snyman Criminal Law 5 ed (2008) at 178.
[37] R v Mashimbi 1958 (1) SA 390 (T) at 392D-H.
[38] See, for example, S v Kok 1998 (1) SACR 532 (N) and S v Magagula 2001 (2) SACR 123 (T) 157d-159d. See
also S v Abader 2008 (1) SACR 347 (W) at 352h-j.
[39] S v Nkomo 1975 (3) SA 598 (N). See § 18 6 4 above as well S v Abader supra at 354h-j and § 30 8 above.
[40] At 910. The failure to introduce a defence may result in no burden being on the state to negative a specific
defence. For example, in S v Trickett 1973 (3) SA 526 (T) it was held that although the prosecution has a burden of
disproving a defence of automatism not caused by mental illness or mental defect, this burden is not activated until
the defence has been put in issue. Similarly, in S v Delport 1968 PH H127 (A) it was said that the state need not
negative provocation unless evidence indicates it is a possible factor in the case.
[41] See generally Burchell Principles of Criminal Law 4 ed (2013) 325-327.
[42] See generally Snyman Criminal Law 5 ed (2008) at 162-3.
[43] 2002 (1) SACR 663 (SCA).
[44] 1994 (1) SACR 61 (A).
[45] 1999 (1) SACR 650 (SCA).
[46] S v Eadie supra at [2].
[47] 1996 (1) SACR 631 (A).
[48] At 635g-636a. See also S v Potgieter 1994 (1) SACR 61 (A); S v Kalogoropoulos 1993 (1) SACR 12 (A).
[49] The following discussion is also to be found in Schwikkard Presumption of Innocence 125 et seq.
[50] S v Shuping and Others 1983 (2) SA 119 (B) 120. See also S v Zimmerie en ’n Ander 1989 (3) SA 484 (C); S
v Campbell and Others 1991 (1) SACR 435 (Nm); S v Rittmann 1992 (2) SACR 110 (Nm). The discharge of an
accused at the end of the state’s case, is treated as a question of law. See Van der Merwe in Joubert (ed) Criminal
Procedure Handbook 11 ed (2014) at 305. The result is that assessors (who are finders of fact as explained in § 1 6
above) are not entitled to decide with the judge or magistrate, as the case may be, whether a discharge in terms of
s 174 should be granted. See S v Magxwalisa and Others 1984 (2) SA 314 (N). It was also pointed out in § 30 5 2
above that the rules of logic governing inferences drawn from circumstantial evidence for purposes of a conviction,
do not apply for purposes of an application for discharge in terms of s 174.
[51] 1952 (2) SA 401 (W).
[52] See also R v Herholdt and Others (3) 1956 (2) SA 722 (W); S v Ostilly and Others 1977 (2) SA 104 (D); S v
Mpetha and Others 1983 (4) SA 262 (C).
[53] See S v Phuravhatha and Others 1992 (2) SACR 544 (V) 551-2; S v Qozo 1994 1 BCLR 10 (Ck); S v Becket
1987 (4) SA 8 (C); S v Amerika 1990 (2) SACR 480 (C); S v Heller and Another (2) 1964 (1) SA 524 (W). In a
number of earlier cases the court held that a presiding officer has a duty to acquit the accused where there is no
evidence that he committed the offence. See Rex v Louw 1918 AD 344; Rex v Thielke 1918 AD 373; R v Machinini
(2) 1944 WLD 91.
[54] 1997 (1) SACR 10 (W).
[55] At 146j.
[56] At 126I-147D.
[57] At 147D.
[58] At 147I.
[59] At 148C.
[60] 1986 23 DLR 4th 503.
[61] At 521-522. In light of S v Manamela and Another (Director-General of Justice Intervening) 2000 (1) SACR
414 (CC), discussed in § 29 2 1 above, a South African court may view the allocation of the burden of proof as a
component of the right to remain silent rather than the presumption of innocence. See also S v Singo 2002 (2) SACR
160 (CC).
[62] 1998 (2) SACR 237 (N).
[63] 1999 (1) SACR 391 (W).
[64] At 393h-i.
[65] 1997 1 BCLR 123 (W).
[66] 1998 (1) SACR 603 (T). See also S v Hudson and Others 1998 (2) SACR 359 (W), in which Blieden J held that
the court in Mathebula was clearly wrong.
[67] 1996 (4) SA 187 (CC); 1996 (2) SACR 113 (CC).
[68] 1997 4 All SA 435 (A).
[69] 1995 (1) SACR 568 (CC).
[70] 2001 (2) SACR 179 (SCA). For a further discussion of this case see Schwikkard 2001 SACJ 426. See also S v
Agliotti 2011 (2) SACR 437 (GSJ).
[71] 2001 (2) SACR 703 (SCA).
[72] At [18].
[73] At [19].
[74] At [20]. Similarly in S v Makofane supra Mynhardt J held that where there was more than one accused even if
no evidence had been adduced against one or more of them, the court could exercise its discretion to refuse
discharge if there was a reasonable possibility that such an accused would be implicated by his co-accused.
Conviction on the basis of evidence given by a co-accused did not violate the principle that it is unreasonable and
unfair to convict an accused solely on his own evidence.
[75] 2011 (2) SACR 482 (SCA).
[76] At [24].
[77] At [25] and [26].
[78] At [26].
[79] 1994 1 SCR 555.
[80] (1997) 1 SCR 874 (SCC).
[81] Supra [119].
[82] 2001 (1) SACR 334 (W).
[83] 1983 (4) SA 262 (C) at 264D.
[84] See also S v Ndlangamandla and Another 1999 (1) SACR 391 (W); S v Naidoo 1996 1 PH H104 (W); S v Qozo
1994 1 BCLR 10 (Ck); R v Nortje 1961 2 PH H166.
[85] 1973 (1) SA 34 (A). See also S v Phallo and Others 1999 (2) SACR 558 (SCA).
[86] See Dlamini 1998 SACJ 423 for a critical comment on the undefined context of the reasonable doubt
standard.
[87] S v Molautsi 1980 (3) SA 1041a (B).
[88] 1946 AD 1023.
[89] See, for example, S v Lesito 1996 (2) SACR 682 (O), as read with S v M 2006 (1) SACR 67 (SCA) at [11] and
[12]; S v Mkhize and Others 1998 (2) SACR 478 (W), in which the court held that the accused bore no onus to
undertake at their own expense, expert ballistic investigations.
[90] Miller v Minister of Pensions 1947 2 All ER 372 373. Referred to with approval by the Supreme Court of Appeal
in S v Ntsele 1998 (2) SACR 178 (SCA).
[91] 1937 AD 370 272.
[92] See also S v Alex Carriers (Pty) Ltd en ’n Ander supra, where the court noted that a court is not required to
consider every conceivable possibility when these are not suggested by the facts.
[93] See also S v V 2000 (1) SACR 453 (SCA).
[94] 1999 (1) SACR 447 (W) 448f-g.
[95] See also S v Sithole and Others 1999 (1) SACR 585 (W); S v Trainor 2003 (1) SACR 35 (SCA); S v Gentle
2005 (1) SACR 420 (SCA) 433h-i; S v Isaacs and Another 2007 (1) SACR 43 (C) at [21]; S v Cornick and Another
2007 (2) SACR 115 (SCA) at [41]; S v Fortuin 2008 (1) SACR 511 (C) at [18]; S v Crossberg 2008 (2) SACR 317
(SCA). See also De Villiers 2003 THRHR 634.
[96] 1990 2 PH H135 (B). See also S v Janse Van Rensburg and Another 2009 (2) SACR 216 (C); Dreyer and
Another NNO v Axzs Industries (Pty) Ltd 2006 (5) SA 548 (SCA).
[97] 2009 (1) SACR 523 (SCA) at [26].
[98] S v Sinkankanka and Another 1963 (2) SA 531 (A). The burden and standard of proof remain “static
throughout” the proceedings. See S v Toubie 2004 (1) SACR 530 (W) at 543b.
[99] See also §§ 28 4 and 28 5 2 above.
Page 616
Chapter 32
The Standard and Burden of Proof and Evidential
Duties in Civil Trials
P J Schwikkard [*]
32 1 Introduction
32 4 The Duty to Begin
32 1 Introduction
As discussed in § 31 1 above the burden of proof allocates the risk of non-persuasion. [1] It
determines which of the parties to an action will fail in the event that, at the end of the trial,
the facts that are necessary to establish the claim or the defence, as the case may be, have
not been proved. In this chapter the rules which determine who bears the burden of proof
will be considered as well as the degree of proof required to discharge the allocated burden.

“Onus in the context of civil law depends on considerations of policy, practice and
fairness.” [2] The terms “burden of proof”, “onus of proof” or “overall onus” are often used
interchangeably to refer to the same concept. What they refer to is the duty that is cast
|upon a litigant to adduce evidence that is sufficient to persuade a court, at the end of the
trial, that the claim or the defence, as the case may be, should succeed. In Pillay v Krishna
and Another [3] it was described by Davis AJA as follows:
Page 617
“[T]he only correct use of the word ‘onus’ is that which I believe to be its true and original sense (cf
D.31.22), namely, the duty which is cast on the particular litigant, in order to be successful, of finally
satisfying the Court that he is entitled to succeed on his claim, or defence, as the case may be . . . .”
The burden of proof is sometimes called the “risk of non-persuasion” because it determines
who bears the risk of failure if the evidence on a particular point is lacking. The burden of
proof is to be distinguished from what has been referred to as the “evidential burden” (or the
“weerleggingslas”) which is discussed in § 32 3 below: for the moment we are referring only
to the burden of proof in its true sense, as it has been described above.
The incidence of the burden of proof (ie which party bears the burden of proof) is
determined as a matter of substantive law from the nature of the particular rule of law that
is sought to be enforced. [4] As pointed out in Zeffertt & Paizes: “Any rule of law which
annexes legal consequences to a fact, such as negligence, or the making of a contract, must,
as a necessary corollary, provide for which party is supposed to prove that fact.” [5] Thus the
substantive rule of law to the effect that contracts are enforceable at the same time
determines that a party seeking to enforce a contract must prove the existence of the
contract. In many cases the particular rule of law, and the concomitant burden of proof, is
well established in precedent, but in other cases one may need to resort to general principles
to establish upon whom the burden of proof lies.
Where the incidence of the burden of proof in relation to a particular rule of law has not
been authoritatively settled it is necessary to refer to the following general approach set out
in Pillay v Krishna and Another: [6]
Page 618
“If one person claims something from another in a Court of law, then he has to satisfy the Court that
he is entitled to it. But there is a second principle which must always be read with it: Where the
person against whom the claim is made is not content with a mere denial of that claim, but sets up a
special defence, then he is regarded quoad that defence, as being the claimant: for his defence to be
upheld he must satisfy the Court that he is entitled to succeed on it . . . But there is a third rule,
which Voet states. . .as follows: ‘He who asserts, proves and not he who denies, since a denial of a
fact cannot naturally be proved provided that it is fact that is denied and that the denial is
absolute’ . . . The onus is on the person who alleges something and not on his opponent who merely
denies it.”
It follows that the burden of proof in an action will not necessarily fall on one party alone,
but each of the parties may bear a burden of proof in relation to different issues. Davis AJA
put the matter as follows in Pillay v Krishna and Another: [7]
“[W]here there are several and distinct issues, for instance a claim and a special defence, then there
are several and distinct burdens of proof, which have nothing to do with each other, save of course
that the second will not arise until the first has been discharged.”
Thus, in a claim for recovery of a loan it is for the plaintiff to prove that the loan was made,
but a defendant who alleges that the loan has been repaid bears the burden of proving that
fact in order for the defence to succeed. If at the end of the trial it is established that the
loan was made, but it is unclear whether it was repaid, the plaintiff will succeed.
In such cases it may appear that the burden of proof shifts from one party to another. But
that is not so. The incidence of the burden of proof, once established, never shifts — what
might occur is only that each of the parties might bear the burden of proof in relation to
separate issues in the trial, with the result that once the burden in relation to one of the
issues has been discharged the inquiry will shift to whether the burden of proof has been
discharged in relation to the other issue.
The test for determining who bears the burden of proof as set out in Pillay v Krishna and
Another supra, is beguiling, for it rather begs the question which of the parties can properly
be said to be “asserting” or “denying” as the case may be. [8] Nevertheless, it usefully
encapsulates the guiding principle, which is that
Page 619
the person who makes a positive assertion is generally called upon to prove it, with the
effect that the burden of proof lies generally on the person who seeks to alter the status
quo. Most often that will be the plaintiff, and the defendant will bear the burden of proof only
in relation to a special defence. However, as pointed out in Pillay v Krishna and Another, all
rules dealing with the subject of the burden of proof rest “for their ultimate basis upon broad
and undefined reasons of experience and fairness”. [9]
The question of “fairness” as alluded to in Pillay v Krishna and Another supra has also
given rise to the following issue: Should the burden of proof be on a party who has exclusive
knowledge of the facts? In Gericke v Sack it was said: [10]
“It is not a principle of our law that the onus of proof of a fact lies on the party who has a peculiar or
intimate knowledge or means of that fact. The incidence of the burden of proof cannot be altered
merely because the facts happen to be within the knowledge of the other party . . . However, the
courts take cognizance of the handicap under which a litigant may labour where the facts are within
the exclusive knowledge of his opponent and they have in consequence held . . . that less evidence
will suffice to establish a prima facie case where the matter is peculiarly within the knowledge of the
opposite party than would under other circumstances be required.” [11]
The burden of proof cannot be avoided merely by framing what is in truth a positive
assertion in the form of a negative statement. In Nieuwoudt v Joubert [12] Mullins J said the
following:
“A litigant is not entitled to conceal material allegations in order to obtain the advantage of placing the
onus on his opponent. The onus must be determined on genuine and not artificial allegations in the
pleadings, and if the onus should be on a particular party, he must accept it. Litigation is not a game
where a party may seek tactical advantages by concealing facts from his opponents and thereby
occasioning unnecessary costs. Nor in my view is a party entitled to plead in such a manner as to
place the onus on his opponent, if the facts as known to such party place the onus on him . . . If he
has to bear the onus of proof, he must accept it, and not seek by devious pleadings to obtain an
advantage to which he is not entitled.”

An argument can be made that at common law the incidence of the burden of proof was
influenced by the nature of “the right” in issue. Mabaso v Felix [13] concerned a claim based
on bodily injuries. The plaintiff alleged that the defendant had assaulted him. The defendant
relied on private defence (self-defence). It was held that the burden of proof was on the
defendant because “in civil law . . . considerations of policy, practice
Page 620
and fairness inter partes may require that the defendant should bear the . . . onus of . . .
proving an excuse or justification for his otherwise wrongful conduct.” [14] In Minister of
Justice v Hofmeyr [15] the following was said in respect of a claim for damages based on
unlawful deprivation of liberty: “The plain and fundamental rule is that every individual’s
person in inviolable. In actions for damages for wrongful arrest or imprisonment our Courts
have adopted the rule that such infractions are prima facie illegal. Once the arrest or
imprisonment has been proved it is for the defendant . . . to prove the existence of grounds
in justification of the infraction”. According to the court “considerations of legal policy and
justice” demand that this approach should be adopted. It is submitted that neither the
decision in Hofmeyr nor the decision in Mabaso can really be satisfactorily explained with
reference to the basic rule (he who alleges must prove) or its qualification (a special defence
must be proved). However, both decisions can be supported on the basis that protection of
fundamental rights (personal freedom in Hofmeyr and bodily integrity in Mabaso) requires
that the defendants should bear the burden of proving their respective defences. [16]
However, post-constitutional decisions have not been entirely clear as to the extent to
which the imperative to protect fundamental rights will determine the incidence of the
burden of proof. In Minister of Safety and Security v Sekhoto and Another [17] the court
examined the allocation of the onus when establishing the lawfulness (or not) of an arrest
without a warrant in terms of s 40(1)(b) of the CPA. Harms DP noted that it was “trite that
the onus rests on the defendant to justify an arrest.” However, the issue of the onus
nevertheless arose due to the introduction of a fifth jurisdictional fact by Bertelsmann J in
Louw and Another v Minister of Safety and Security and Others, [18] namely, that arrest
without a warrant must also be constitutionally justifiable. This requirement according to the
court in Louw requires the arrestor to consider whether there is a less invasive manner in
which to bring the suspect before a court. [19]
Harms DP after a careful consideration of the constitutional directive in s 39(2) to
interpret legislation in a manner that promotes the spirit, purport and objects of the Bill of
Rights concluded that a number of High Courts had erred in following Louw by reading into
s 40(1)(b) this fifth jurisdictional fact. The Supreme Court of Appeal held that absent a
finding of unconstitutionality the courts “were not entitled to read anything into” the clear
text of s 40(1)(b). Further, an arrest in terms of s 40(1)(b) could not be said to be arbitrary
or without just cause; consequently, there appeared to be no grounds for a constitutional
challenge. [20] The court, making a careful distinction between
Page 621
jurisdictional fact and discretion, noted that a peace officer was not obliged to effect an
arrest when the circumstances set out in s 40(1)(b) arose; he or she had a discretion
whether or not to do so. This discretion, the court [21] held, is required to be exercised in a
manner that is objectively rational. The court found that in the circumstances of the
particular case (and noting the seriousness of the offence) the peace officer had exercised
his discretion rationally.
The court obiter then went on to consider the appropriate allocation of the onus in respect
of establishing the rational exercise of a peace officer’s discretion. Harms DP applying past
precedent held this was an instance where the pleadings might give rise to two separate
onuses. Once the arrestor has established the jurisdictional facts justifying an arrest in terms
of s 10(1)(b), the party alleging an irrational exercise of an arrestor’s s 40(1)(b) discretion
bears the onus of establishing the absence of rationality. Taking into account that a party
alleging an infringement of a right in the Bill of Right bears the burden of proving such
infringement, the court held that the common law in requiring the arrestee to prove
irrationality on the part of the arrestor was not inconsistent with the Constitution. The Court,
noting that a person challenging a parole decision or the refusal of presidential pardon bore
the burden of proof, concluded that it was irrelevant whether it was the right to freedom
which was at stake. However, these two examples can also be distinguished from arrest
without a warrant as a person seeking parole or a presidential pardon has already been
deprived of their freedom by a court after guilt beyond a reasonable doubt was established.
The court also held that as the allocation of the onus took place in the context of civil
proceedings, consideration “of policy, practice and fairness” dictated that the arrestee bear
the burden of proving rationality that this was an additional indicator of constitutionality. It
would be impractical and unfair to expect an arrestor to negate all possible grounds for
unreasonableness without them having been specifically pleaded by the claimant. However,
it is unclear why this should not be discharged by an evidentiary burden which unlike the
true onus can shift between the parties. The imposition of an evidentiary burden on the
arrestee would seem to align with the dictates of a policy shaped by the constitutional
directive to promote the spirit, purport and objects of the Bill of Rights.
The incidence of the burden of proof in civil trials was considered by the Constitutional
Court in Prinsloo v Van der Linde and Another [22] in the context of s 84 of the Forest Act 122
of 1984, which provided as follows:
“When in any action by virtue of the provisions of this Act or the common law the question of
negligence in respect of a veld, forest or mountain fire which occurred on land situated outside of a
fire control area arises, negligence is presumed, until the contrary is proved.”
Page 622
The question before the court was whether the presumption in the now-repealed s 84 was in
conflict either with the right to be presumed innocent under s 25(3)(c) of the Interim
Constitution, and/or the equality rights guaranteed in s 8(1) and (2) of the Interim
Constitution. The court construed s 84 as applying only in civil actions and thus held that
s 25(3)(c) had no application. Furthermore, even if such an interpretation of s 84 was not
possible the section would be inconsistent with s 25(3)(c) only to the extent that it applied in
criminal proceedings. In either event, the section was not in conflict with the presumption of
innocence, which applies only in the context of a criminal trial. [23]
It was also argued, inter alia, that the section infringes the right to equality in that there
was no rational basis for differentiating between defendants in veld fire cases and those in
other delictual actions. The court held that the differentiation, in itself, was not
constitutionally impermissible as it was rational, in that the state has a legitimate interest in
preventing veld fires, and there was a rational relationship between the purpose sought to
be achieved in s 84 and the means chosen to do so. The court concluded that as long as the
imposition of the onus is not arbitrary the equality provisions will not be breached. But it
nevertheless noted that “[i]n rare circumstances, it may be that the allocation of onus will
impair other constitutional rights and a challenge will then arise”. [24]

The distinction between the burden of proof properly so called and the evidential burden was
expressed by Corbett JA in South Cape Corporation (Pty) Ltd v Engineering Management
Services (Pty) Ltd [25] as follows:
“As was pointed out by Davis AJA in Pillay v Krishna and Another 1946 AD at 952-3, the word onus
has often been used to denote, inter alia, two distinct concepts: (i) the duty which is cast on the
particular litigant, in order to be successful, of finally satisfying the court that he is entitled to succeed
on his claim or defence, as the case may be; and (ii) the duty cast upon a litigant to adduce evidence
in order to combat a prima facie case made by his opponent. Only the first of these concepts
represents the onus in its true and original sense. In Brand v Minister of Justice and Another 1959 (4)
SA 712 (A) at 715 Ogilvie-Thompson JA called it ‘the overall onus’. In this sense the onus can never
shift from the party upon whom it originally rested. The second concept may be termed, in order to
avoid confusion, the burden of adducing evidence in rebuttal (‘weerleggingslas’). This may shift, or be
transferred in the course of the case, depending upon the measure of proof furnished by the one party
or the other. (See also Tregea and Another v Godart and Another 1939 AD 16 at 28; Marine & Trade
Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 378-9.)”
Page 623
The above passage was cited with approval by Van Heerden AJ in the Constitutional Court
case Mohunram and Another v National Director of Public Prosecutions and Another (Law
Review Project as Amicus Curiae). [26]
Often considered as a species of evidential burden is the duty to adduce some evidence in
order to give rise to a triable issue in the case. It is not a burden of proof in any real sense
of the word as the party under the duty is not required to prove anything — she is only
under a duty to adduce evidence such as to give rise to a triable issue which is to be
excluded by the other party. If no evidence at all is adduced in relation to the issue, it simply
will not arise as an issue in the case. If on the other hand, the party does adduce evidence
such as to raise the particular matter as an issue in the trial, it will be for the opposing
party, who bears the burden of proof, to disprove the existence of those facts in order to
discharge the overall burden of proof.
32 4 The Duty to Begin [27]
Depending on the particular circumstances, considerable advantage, or disadvantage, may

accrue to a party to a trial from first adducing evidence, and it may thus be a matter of
considerable importance in a trial to determine who has the right (or the duty) to do so. The
Rules of both the High Court and the Magistrates’ Court provide for who should have that
right (or duty) and allow the court to rule upon the issue at the commencement of the trial.
Rules 39(5) and (9), read together, provide that the party who bears the burden of proof
has the right to adduce evidence first. Rule 39(11) permits either party, at the opening of
the trial, to apply for a ruling by the court “upon the onus of adducing evidence”. [28]
Rule 39(13), on the other hand, deals with the situation in which the parties may each
have a duty to adduce evidence first in relation to different issues in the trial. It reads:
“Where the onus of adducing evidence on one or more of the issues is on the plaintiff and that of
adducing evidence on any other issue is on the defendant, the plaintiff shall first call his evidence on
any issues in respect of which the onus is upon him, and may then close his case. The defendant, if
absolution from the instance is not granted, shall, if he does not close his case, thereupon call his
evidence on all issues in respect of which such onus is upon him.”
The “onus to adduce evidence” as it is used in Rules 39(11) and (13) is no more than the
duty to adduce evidence and does not necessarily coincide with the burden of proof. Indeed,
while the incidence of the duty to adduce evidence will often coincide with the incidence of
the burden of proof, or with the incidence of the evidential burden, what is referred to in the
Rules is
Page 624
something that is conceptually quite different. Unlike the burden of proof, or the evidentiary
burden, the “onus to adduce evidence” has no bearing upon the evaluation of the evidence.
It is merely a procedural duty that is imposed upon one or other of the parties to enable the
trial to be conducted effectively.
Generally, and as a matter of logic, the party who bears the burden of proof will have a
duty to adduce evidence first on those issues upon which she bears that burden, but the
pleadings may alter the position. For example, where the plaintiff claims the repayment of
moneys that were loaned, she will bear the burden of proving that the loan was made. She
will also have the duty to adduce evidence first in support of her claim. However, if the
defendant admits in the pleadings that the loan was made, but alleges that the loan was
repaid, the admission in the pleadings will absolve the plaintiff of the duty to adduce
evidence: it will be for the defendant to adduce evidence to support the defence that the
loan was repaid. Similarly, if the defendant admits the allegations made by the plaintiff but
relies upon a defence that casts an evidential burden upon her to rebut the plaintiff’s prima
facie case, she will have a duty to adduce some evidence if she is to avoid the matter being
determined in favour of the plaintiff.
Thus the duty to adduce evidence, though logically linked to the burden of proof and the
evidential burden, is not the same thing at all. [29] The incidence of the duty to adduce
evidence, however, will be determined, as a matter of both practicality and logic, with
reference to not only the incidence of the burden proof and any evidential burden that the
defendant might bear, but also with reference to the extent to which issues have been
placed in dispute in the pleadings.

Rule 29 of the Magistrates’ Courts Rules purports to equate the duty to adduce evidence and
the “burden of proof”. The relevant rules read as follows:
“(7) (a) If on the pleadings the burden of proof is on the plaintiff he shall first adduce his evidence.
(b) If absolution from the instance is not decreed, the defendant shall then adduce his evidence.
(8) Where such burden of proof is on the defendant, the defendant shall first adduce his evidence,
and if necessary the plaintiff shall thereafter adduce his evidence.
(9) (a) Where the burden of proving one or more of the issues is on the plaintiff and that of proving
others is on the defendant, the plaintiff shall first call his evidence on any issues proof whereof is upon
him, and may then close his case, and the defendant shall then call his evidence on all the issues.
(b) If the plaintiff has not called any evidence (other than that necessitated by his evidence on the
issues proof whereof is on him) on any issues proof whereof is on the defendant, he shall have the
right to do so after the defendant has closed his case. If he has called any such evidence, he shall
have no such right.
(10) In a case of dispute as to the party upon whom the burden of proof rests, the court shall direct
which party shall first adduce evidence.”
Page 625
Although the Rule refers throughout to the burden of proof, it was held in H A Millard & Son
(Pty), Ltd v Enzenhofer [30] that the phrase, seen in its context, means no more than the
duty to adduce evidence (which may or may not coincide with the burden of proof). In those
circumstances the Rule will operate no differently to High Court Rule 39, notwithstanding
that the language is not quite the same.
It must be borne in mind in relation to the Rules of both the High Court and the
Magistrates’ Court that they do not purport to determine the manner in which the factual
findings of the court are to be made (ie, whether or to what extent the burden of proof has
been discharged). They do no more than to confer power upon the court to determine the
manner in which the trial should be conducted.
While they have a logical connection to the burden of proof and the evidential burden,
they are concerned with the practical and fair conduct of the trial rather than the process of
fact-finding itself.

A prima facie case has been made out when there is “evidence upon which a court, applying
its mind reasonably, could or might find for the plaintiff”. [31] In order for a prima facie case
to exist there must be evidence in respect of each essential element of the claim [32] on
which a court would find in favour of a party if it believed the evidence to be true. [33] A
prima facie case calls for an explanation from the defendant [34] — if an explanation is not
forthcoming, a court would be entitled to conclude that there is not one, and the “prima facie
case” might become conclusive. However, a prima facie case does not inevitably become
conclusive should the defendant fail to respond: it is capable of becoming conclusive but
whether it does so will depend upon whether, in all the circumstances, that is the correct
finding to make.

The term “absolution from the instance” is used to describe the finding that may be made at
either of two distinct stages of the trial. In both cases it means that evidence is insufficient
for a finding to be made against the defendant.
At the close of the case, when both parties have had the opportunity to present whatever
evidence they consider to be relevant, the defendant will be “absolved from the instance” if,
upon an evaluation of the evidence as a whole, the plaintiff’s burden of proof has not been
discharged. [35] It means that the plaintiff has not proved her claim against the defendant. It
is not a bar to the
Page 626
plaintiff reinstituting the action (provided the claim has not by then prescribed) and in that
respect it is to be distinguished from a positive finding that no claim exists against the
defendant. Absolution from the instance is the proper order when after all the evidence the
plaintiff has failed to discharge the normal burden of proof.
Absolution from the instance might also be granted at the close of the plaintiff’s case. If,
at that stage, there is no evidence to support the plaintiff’s claim, or insufficient evidence
upon which a court, acting reasonably, might find for the plaintiff, the court is entitled to
absolve the defendant from the instance. In effect, the court brings the proceedings to an
end at that stage because there is no prospect that the plaintiff’s claim might succeed, and
in those circumstances the defendant should be spared the trouble and expense of
continuing to mount a defence to a hopeless claim.
The test for determining whether absolution from the instance should be granted at the
close of the plaintiff’s case was set out by the Appellate Division in Claude Neon Lights (SA)
Ltd v Daniel [36] in the following terms:
“. . . [W]hen absolution from the instance is sought at the close of the plaintiff’s case, the test to be
applied is not whether the evidence led by the plaintiff establishes what would finally be required to
be established, but whether there is evidence upon which a Court, applying its mind reasonably to
such evidence, could or might (not should, nor ought to) find for the plaintiff.”
In Gordon Lloyd Page & Associates v Rivera and Another [37] it was held that this requires the
court to find that there is evidence relating to all the elements of the claim. Harms JA held
that it was not necessarily correct for the court to require “evidence upon which a reasonable
man might find for the plaintiff”. [38] He pointed out that this formulation originated from the
jury system and that a court “ought not to be concerned with what someone else might
think; it should rather be concerned with its own judgment and not that of another
‘reasonable’ person or court”. [39]
Because the inquiry at that stage of the trial requires the court to determine whether it
might convict if the evidence was believed, not whether it does believe the evidence,
credibility is usually not considered except in a case where the evidence is so vague,
contradictory or improbable that no court could accept it. [40]
The test for absolution from the instance is applied somewhat differently where a plaintiff
has sued two defendants in the alternative. In Mazibuko v Santam Insurance Co Ltd and
Another [41] Corbett JA held that in these circumstances,
“if at the end of the plaintiff’s case there is evidence upon which a court, applying its mind reasonably,
could hold that it had been established that either one defendant or
Page 627
the other defendant or both of them were legally liable (it being nevertheless uncertain as to which of
the alternatives was the correct one), the Court should not grant an application for absolution at the
suit of either defendant. In such a case, which is in effect a tripartite suit between three adversaries,
it is, in my opinion, in the interests of justice that the case should be decided on the evidence which
all the parties might choose to place before the Court, provided, as I say, that the plaintiff, when
presenting his case, has laid the necessary foundation of showing, prima facie, that one or other or
both of the defendants are legally liable. To hold otherwise would, in many instances, defeat the
object of the Rule which permits a plaintiff who is uncertain as to the legal responsibility of two
defendants to sue them both in the alternative and, in the further alternative, jointly and
severally.” [42]
In Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd [43] the court
noted that there was nothing inconsistent in a court refusing absolution at the close of the
plaintiff’s case but granting it when the defendant then closes her case without leading any
further evidence. This is so because the test applied at the close of the plaintiff’s case is
“what might a reasonable court do”, whereas the test applied at the close of the defendant’s
case is “what ought a reasonable court do”. [44] The court also noted that as a consequence
of the different standards of proof applied in criminal and civil cases “evidence which in a
criminal case would be insufficient to justify refusing an application for the discharge of an
accused, might well in a civil case be sufficient to justify refusing an application for
absolution from the instance”. [45]
In civil cases the burden of proof is discharged as a matter of probability. The standard is
often expressed as requiring proof on a “balance of probabilities” but that should not be
understood as requiring that the probabilities should do no more than favour one party in
preference to the other. What is required is that the probabilities in the case be such that, on
a preponderance, it is probable that the particular state of affairs existed. In Miller v Minister
of Pensions, [46] Lord Denning expressed the civil standard of proof as follows: “It must carry
a reasonable degree of probability but not so high as is required in a criminal case. If the
evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is
discharged, but if the probabilities are equal it is not.” Miller v Minister of Pensions was
adopted by the Appellate Division in Ocean Accident and Guarantee Corporation Ltd v
Koch. [47] The civil standard of proof on a balance of probabilities is applied consistently
irrespective of the cause of action. It has been suggested at times, particularly in
Page 628
relation to fraud, that there might be “degrees of probability” depending upon the nature of
the matter in issue, as illustrated by the following remarks of Lord Denning in Bater v
Bater: [48]
“It is of course true that by our law a higher standard of proof is required in criminal cases than in
civil cases. But this is subject to the qualification that there is no absolute standard in either case. In
criminal cases the charge must be proved beyond a reasonable doubt, but there may be degrees of
proof within that standard . . . so also in civil cases the case must be proved by a preponderance of
probability but there may be degrees of probability within that standard. The degree depends on the
subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a
higher degree of probability than that which it would require when asking if negligence is established.
It does not adopt so high a degree as a criminal court, even when it is considering a charge of a
criminal nature; but still it does require a degree of probability which is commensurate with the
occasion.” [49]
The suggestion that there might be different degrees, or standards of proof, depending upon
the nature of the facts in issue, is not correct, and has been rejected in South African law. It
is submitted that what is sought to be conveyed by statements to that effect is rather that
more might be required to overcome the inherent improbability that certain conduct (for
example fraud, or other immoral conduct) has occurred. Ultimately, however, the standard
of proof remains the same, in that the state of affairs must be established as no more than a
matter of probability, albeit that the existence of such a state of affairs is inherently unlikely.
As stated by Centlivres CJ in Ley v Ley’s Executors and Others, [50] after reviewing the
decided cases on the point: “All those cases show that, no matter how serious an allegation
of fact may be, the onus of proving the fact is in civil cases, discharged on a preponderance
of probability.” [51] However, it should be noted that the same set of facts can give rise to
different standards of proof depending on the nature of the proceedings. For example, when
civil contempt of court is sought to be proved for the purposes of imposing a criminal
sanction then the criminal standard of proof will apply; however where “enforcement of a
court order is sought civilly without any criminal sanction, proof of contempt of court may be
established on a preponderance of probability.” [52]
[*] The comments and criticisms of Nugent JA, who was kind enough to peruse this chapter when it was prepared
for the previous edition of this book, have continued to play a significant role in shaping the contents of this chapter.
[1] Zeffertt & Paizes at 45 et seq provide a challenging and illuminating discourse on the burden of proof.
Interesting discussions on the allocation of the burden proof in South African labour discrimination can also be found
in the following: Landman 2002 ILJ 1133; Dupper 2002 ILJ 1143; Manley 2002 ILJ 1156.
[2] Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA) at [50].
[3] 1946 AD 946 at 952-3.
[4] Tregea and Another v Godart and Another 1939 AD 16. See also S v Baloyi 2000 (1) SACR 81 (CC); Woerman
and Schutte NNO v Masondo and Others 2002 (1) SA 811 (SCA) 819A. See also § 4 3 above. The following provides
a good example of how a rule of substantive law determines the burden of proof: There is a substantive common-law
rule (pertaining to landlord and tenant) that a landlord (the plaintiff) whose premises have been damaged will
succeed in an action for damages against the tenant (defendant) unless the tenant (defendant) can prove on a
balance of probabilities that the damage was not caused as a result of an act or omission on his part: “[W]anneer ’n
huurder ’n huis teruggee in ’n beskadigde toestand [is] die bewyslas [burden of proof] op die huurder . . . om te toon
dat die skade nie veroorsaak is deur homself of deur iemand vir wie hy aanspreeklik is [nie] . . . Die bewyslas is op
die verweerder dat so iets nie deur sy nalatigheid of deur iemand vir wie hy aanspreeklik is gebeur het nie” (Brand v
Kotze 1948 (3) SA 769 (C) 770-771). Cooper Landlord and Tenant 2 ed (1994) 232-233 puts the rule in the
following context: “The onus of proving lack of fault flows from the lessee’s twofold obligation to use the premises
with care and to redeliver them in the condition he received them, and he can escape liability only if he proves that
destruction was not caused through his fault”. Of course, the required standard of proof would be on a balance of
probabilities — it is the burden of proof which is on the defendant.
[6] Supra 951-2. The basic rule (he who alleges, must prove) and its qualification (the ‘‘special defence’’ as
referred to in Pillay v Krishna and Another supra) lead to the following results in litigation concerning contracts (see
Schmidt & Rademeyer (2007) 2-14 to 2-17): P (the plaintiff) must prove the existence and relevant terms of the
contract, as well as any prerequisites (if not admitted) in respect of D’s (the defendant’s) liability, eg, that he (P)
suffered damages or that he (P) had performed his own contractual obligations. If D denies the existence of a
contract between him and P, the latter will carry the burden of proving the contract because D’s defence is a flat
denial of P’s allegations. The same approach would be followed if D were to allege that P never suffered any damages
or had failed to perform his own contractual obligations. However, on the basis of the cause of action criterion (the
special defence criterion) D would indeed carry the burden of proof should he, for example, plead one of the
following: (a) that P had released him from the amount due; (b) that P’s claim has prescribed; or (c) that the
contract was unlawful. It should be noted that whereas prescription must be proved by the defendant (Gericke v
Sack 1978 (1) SA 821 (A)), interruption of prescription must be proved by the plaintiff (Kapeller v Rondalia
Versekeringskorporasie Van Suid-Afrika Bpk 1964 (4) SA 722 (T)).
[7] Supra 953.
[8] It should be noted that the fact that a negative must be proved, eg the absence of an alleged term in a
contract, does not affect the normal incidence of the burden of proof. It was stated in Topaz Kitchens (Pty) Ltd v
Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A) that where the plaintiff relies on a contract the burden of proof would
rest upon him to prove the terms of the contract, even if this were to mean that the plaintiff would need to prove the
absence of terms that the defendant alleges were in the contract. In Dave v Birrell 1936 TPD 192 a motor mechanic
(P, the plaintiff) did repair work on a vehicle which belonged to the defendant (D). P sued D for what was alleged to
be fair and reasonable payment for repair work, done to D’s car at D’s request. D admitted these allegations, but
added that P stated that he would do the repair work free of charge. The trial court found that the burden of proof
was on D to prove that the plaintiff had undertaken to do the work free of charge. However, on appeal the following
was decided: first, a material element of P’s legal action was based on the fact that he was entitled to payment (a
fact opposed by D, the defendant); second, D’s defence that the work would be done free of charge was not a special
defence (he did not admit all grounds of P’s case and in fact challenged P’s claim that reasonable and fair payment
was due); third, the fact that P, the plaintiff, had to prove a negative (that there was no such agreement as alleged
by the defendant) could not release P from the burden of proof. Schmidt & Rademeyer (2007) at 2-14 explain that in
Dave v Birrell supra the defendant’s plea ‘‘cut through the plaintiff’s cause of action’’ and that the latter ‘‘was
accordingly required to prove all the terms of his contract, including the disputed implied term’’.
[9] Supra at 954. See also H L & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd 2001 (4) SA 814
(SCA) at 831H-J.
[10] 1978 (1) SA 821 (A) 827E-G (emphasis added).
[11] See further Mabaso v Felix supra at 873E; Chonco and Others v Minister of Justice and Constitutional
Development and Another 2008 (2) SACR 39 (T) at 46c-d and Mohunram and Another v National Director of Public
Prosecutions and Another (Law Review Project as Amicus Curiae) 2007 (2) SACR 145 (CC) (CC) at [75].
[12] 1988 (3) SA 84 (SE) 91B-D. See also Chonco and Others v Minister of Justice and Constitutional Development
and Another supra at 46d-e.
[13] 1981 (3) SA 865 (A).
[14] At 872G-H.
[15] 1993 (3) SA 131 (A) 153D-E.
[16] See generally Olivier v Minister of Safety and Security and Another 2008 (2) SACR 387 (W) at 393e-f.
[17] 2011 (1) SACR 315 (SCA).
[18] 2006 (2) SACR 178 (T).
[19] At 187f. See also Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (T); Gellman v Minister of
Safety and Security 2008 (1) SACR 446 (W); Le Roux v Minister of Safety and Security and Another 2009 (2) SACR
252 (KZP); Le Roux v Minister of Safety and Security and Another 2009 (2) SACR 252 (KZP); Mvu v Minister of
Safety and Security and Another 2009 (2) SACR 291 (GSJ).
[20] At [25].
[21] Referring to Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of
South Africa 2000 (2) SA 674 (CC).
[22] 1997 (3) SA 1012 (CC). See now the presumption in s 34 of the National Veld and Forest Fire Act 101 of
1998.
[23] In Mabaso v Felix 1981 (3) SA 865 (A) at 872G-H the court described the difference between the incidence of
the onus of proof in civil and criminal cases as follows: ’In its anxiety that no accused should be punished for a crime
without proof of his guilt our common law deliberately places the burden of proving every disputed issue, save
insanity, on the prosecution. But in civil law . . . considerations of policy, practice, and fairness inter partes may
require that the defendant should bear the overall onus of averring and proving an excuse or justification for his
otherwise wrongful conduct.’’
[24] At [36].
[25] 1977 (3) SA 534 (A) at 548. Emphasis added.
[26] 2007 (2) SACR 145 (CC) at [75] n 99.
[27] See also § 23 5 1 above.
[28] In Intramed (Pty) Ltd v Standard Bank of South Africa Ltd 2004 (6) SA 252 (W) Claassen J held that the rule
allowed the court to rule at the commencement of the trial on both the duty to begin and the onus of proof.
[29] Cf Intramed (Pty) Ltd v Standard Bank of South Africa Ltd 2004 (6) SA 252 (W).
[30] 1968 (1) SA 330 (T).
[31] Mazibuko v Santam Insurance Co Ltd and Another 1982 (3) SA 125 (A) at 133.
[32] Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA).
[33] Lindhaven Meat Market CC v Reyneke 2001 (1) SA 454 (W).
[34] Venter and Others v Credit Guarantee Insurance Corporation of Africa Ltd and Another 1996 (3) SA 966 (A) at
980.
[35] See Machewane v Road Accident Fund 2005 (6) SA 72 (T).
[36] 1976 (4) SA 403 (A) at 409G-H.
[37] 2001 (1) SA 88 (SCA).
[38] This is how the test was formulated in Gascoyne v Paul & Hunter 1917 TPD 170 at 173. See also Ruto Flour
Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).
[39] At 92I-J.
[40] Katz v Bloom field 1914 TPD 379; Shenker Brothers v Bester 1952 (3) SA 664 (A).
[41] 1982 (3) SA 125 (A).
[42] At 135. The court applied and approved the dictum in Hummerstone v Leary 1921 2 KB 664. See also Putter v
Provincial Insurance Co Ltd and Another 1963 (4) SA 771 (W).
[43] 1963 (4) SA 771 (W).
[44] At 92.
[45] At 92.
[46] 1947 2 All ER 372 374.
[47] 1963 (4) SA 147 (A). See also Peregrine Group (Pty) Ltd and Others v Peregrine Holdings Ltd and Others
2001 (3) SA 1268 (SCA), in which the court held (at [10]) “that in determining a ‘likelihood’ a party must prove its
case on a balance of probability”.
[48] 1950 2 All ER 458.
[49] See generally Tapper Cross & Tapper on Evidence 12 ed (2010) 154-7.
[50] 1951 (3) SA 186 (A).
[51] However, it may be possible for the legislature to impose a heavier or other burden of proof in relation to a
specified action. See Oudebaaskraal (Edms) Bpk en Andere v Jansen Van Vuuren en Andere 2001 (2) SA 806 (SCA)
at 813C-G.
[52] Mthimkulu and Another v Mahomed and Others 2011 (6) SA 147 (GSJ).
Page 629
Appendices
A Constitution of the Republic of South Africa, 1996: Chapter 2 Bill of Rights (ss 7–39)
B Judges’ Rules
C Section 252A of the Criminal Procedure Act
Page 631
Appendix A
Constitution of the Republic of South Africa, 1996:
Chapter 2 Bill of Rights (ss 7–39)
Chapter 2
Bill of Rights (ss 7-39)
7 Rights
(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights
of all people in our country and affirms the democratic values of human dignity, equality and
freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in
section 36, or elsewhere in the Bill.
8 Application
(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent
that, it is applicable, taking into account the nature of the right and the nature of any duty
imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms
of subsection (2), a court-
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop,
the common law to the extent that legislation does not give effect to that right;
and
(b) may develop rules of the common law to limit the right, provided that the
limitation is in accordance with section 36 (1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by
the nature of the rights and the nature of that juristic person.
9 Equality
(1) Everyone is equal before the law and has the right to equal protection and benefit of
the law.
Page 632
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and
birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it
is established that the discrimination is fair.
10 Human dignity
Everyone has inherent dignity and the right to have their dignity respected and protected.
11 Life
Everyone has the right to life.
12 Freedom and security of the person
(1) Everyone has the right to freedom and security of the person, which includes the
right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the right—
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed
consent.
13 Slavery, servitude and forced labour
No one may be subjected to slavery, servitude or forced labour.
14 Privacy
Everyone has the right to privacy, which includes the right not to have—
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
15 Freedom of religion, belief and opinion
(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
Page 633
(2) Religious observances may be conducted at state or state-aided institutions, provided

that—
(a) those observances follow rules made by the appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent legislation recognising—
(i) marriages concluded under any tradition, or a system of religious, personal or
family law; or
(ii) systems of personal and family law under any tradition, or adhered to by
persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with this section and the
other provisions of the Constitution.
16 Freedom of expression
(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.
17 Assembly, demonstration picket and petition
Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket
and to present petitions.
18 Freedom of association
Everyone has the right to freedom of association.
19 Political rights
(1) Every citizen is free to make political choices, which includes the right—
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has the right—
(a) to vote in elections for any legislative body established in terms of the
Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.
20 Citizenship
No citizen may be deprived of citizenship.
Page 634
21 Freedom of movement and residence

(1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain in and to reside anywhere in, the
Republic.
(4) Every citizen has the right to a passport.
22 Freedom of trade, occupation and profession
Every citizen has the right to choose their trade, occupation or profession freely. The
practice of a trade, occupation or profession may be regulated by law.
23 Labour relations
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right—
(a) to form and join an employers’ organisation; and
(b) to participate in the activities and programmes of an employers’ organisation.
(4) Every trade union and every employers’ organisation has the right—
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer has the right to engage in
collective bargaining. National legislation may be enacted to regulate collective bargaining.
To the extent that the legislation may limit a right in this Chapter, the limitation must
comply with section 36 (1).
(6) National legislation may recognise union security arrangements contained in collective
agreements. To the extent that the legislation may limit a right in this Chapter the limitation
must comply with section 36 (1).
24 Environment
Everyone has the right—
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future
generations, through reasonable legislative and other measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.
25 Property
(1) No one may be deprived of property except in terms of law of general application, and
no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application—
(a) for a public purpose or in the public interest; and
Page 635
(b) subject to compensation, the amount of which and the time and manner of
payment of which have either been agreed to by those affected or decided or
approved by a court.
(3) The amount of the compensation and the time and manner of payment must be just
and equitable, reflecting an equitable balance between the public interest and the interests
of those affected, having regard to all relevant circumstances, including—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial
capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section—
(a) the public interest includes the nation’s commitment to land reform, and to
reforms to bring about equitable access to all South Africa’s natural resources;
and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available
resources, to foster conditions which enable citizens to gain access to land on an equitable
basis.
(6) A person or community whose tenure of land is legally insecure as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other
measures to achieve land, water and related reform, in order to redress the results of past
racial discrimination, provided that any departure from the provisions of this section is in
accordance with the provisions of section 36 (1).
(9) Parliament must enact the legislation referred to in subsection (6).
26 Housing
(1) Everyone has the right to have access to adequate housing.
resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an
order of court made after considering all the relevant circumstances. No legislation may
permit arbitrary evictions.
27 Health care, food, water and social security
(1) Everyone has the right to have access to—
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their
dependents, appropriate social assistance.
Page 636
resources, to achieve the progressive realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
28 Children
(1) Every child has the right—
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when removed
from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that—
(i) are inappropriate for a person of that child’s age; or
(ii) place at risk the child’s well-being, education, physical or mental health or
spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in addition
to the rights a child enjoys under sections 12 and 35, the child may be detained
only for the shortest appropriate period of time, and has the right to be—
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child’s
age;
(h) to have a legal practitioner assigned to the child by the state, and at state
expense, in civil proceedings affecting the child, if substantial injustice would
otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in times of armed
conflict.
(2) A child’s best interests are of paramount importance in every matter concerning the
child.
(3) In this section ‘child’ means a person under the age of 18 years.
29 Education
(1) Everyone has the right—
(a) to a basic education, including adult basic education; and
(b) to further education, which the state, through reasonable measures, must make
progressively available and accessible.
(2) Everyone has the right to receive education in the official language or languages of
their choice in public educational institutions where that education is reasonably practicable.
In order to ensure the effective access to, and implementation of, this right, the state must
consider all reasonable educational alternatives, including single medium institutions, taking
into account—
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws and practices.
(3) Everyone has the right to establish and maintain, at their own expense, independent
educational institutions that—
(a) do not discriminate on the basis of race;
(b) are registered with the state; and
Page 637
(c) maintain standards that are not inferior to standards at comparable public
educational institutions.
(4) Subsection (3) does not preclude state subsidies for independent educational
institutions.
30 Language and culture
Everyone has the right to use the language and to participate in the cultural life of their
choice, but no one exercising these rights may do so in a manner inconsistent with any
provision of the Bill of Rights.
31 Cultural, religious and linguistic communities
(1) Persons belonging to a cultural, religious or linguistic community may not be denied
the right, with other members of that community—
(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain cultural, religious and linguistic associations and other
organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any
provision of the Bill of Rights.
32 Access to information
(1) Everyone has the right of access to—
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the
exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for
reasonable measures to alleviate the administrative and financial burden on the state.
33 Just administrative action
(1) Everyone has the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the
right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must—
(a) provide for the review of administrative action by a court or, where appropriate,
an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2);
and
(c) promote an efficient administration.
34 Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent
and impartial tribunal or forum.
35 Arrested, detained and accused persons
(1) Everyone who is arrested for allegedly committing an offence has the right—
(a) to remain silent;
(b) to be informed promptly—
Page 638
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used in
evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48
hours expire outside ordinary court hours or on a day which is not an
ordinary court day;
(e) at the first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue, or to be released; and
(f) to be released from detention if the interests of justice permit, subject to
reasonable conditions.
(2) Everyone who is detained, including every sentenced prisoner, has the right—
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of this
right promptly;
(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;
(d) to challenge the lawfulness of the detention in person before a court and, if the
detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including at
least exercise and the provision, at state expense, of adequate accommodation,
nutrition, reading material and medical treatment; and
(f) to communicate with, and be visited by, that person’s—
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of this
right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at
state expense, if substantial injustice would otherwise result, and to be informed
of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the
proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not
practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either
national or international law at the time it was committed or omitted;
Page 639
(m) not to be tried for an offence in respect of an act or omission for which that
person has previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence
was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that information
must be given in a language that the person understands.
(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence would render the trial unfair or otherwise be
detrimental to the administration of justice.
36 Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account all
relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.
(6) Whenever anyone is detained without trial in consequence of a derogation of rights
resulting from a declaration of a state of emergency, the following conditions must be
observed:
(a) An adult family member or friend of the detainee must be contacted as soon as
reasonably possible, and informed that the person has been detained.
(b) A notice must be published in the national Government Gazette within five days
of the person being detained, stating the detainee’s name and place of detention
and referring to the emergency measure in terms of which that person has been
detained.
(c) The detainee must be allowed to choose, and be visited at any reasonable time
by, a medical practitioner.
(d) The detainee must be allowed to choose, and be visited at any reasonable time
by, a legal representative.
(e) A court must review the detention as soon as reasonably possible, but no later
than 10 days after the date the person was detained, and the court must release
the detainee unless it is necessary to continue the detention to restore peace and
order.
(f) A detainee who is not released in terms of a review under paragraph (e), or who
is not released in terms of a review under this paragraph, may apply to a court
for a further review of the detention at any time after 10 days have passed since
the previous review, and the court must release the detainee unless it is still
necessary to continue the detention to restore peace and order.
(g) The detainee must be allowed to appear in person before any court considering
the detention, to be represented by a legal practitioner at those hearings, and to
make representations against continued detention.
Page 640
(h) The state must present written reasons to the court to justify the continued
detention of the detainee, and must give a copy of those reasons to the detainee
at least two days before the court reviews the detention.
(7) If a court releases a detainee, that person may not be detained again on the same
grounds unless the state first shows a court good cause for re-detaining that person.
(8) Subsections (6) and (7) do not apply to persons who are not South African citizens
and who are detained in consequence of an international armed conflict. Instead, the state
must comply with the standards binding on the Republic under international humanitarian
law in respect of the detention of such persons.
37 States of emergency
(1) A state of emergency may be declared only in terms of an Act of Parliament, and only
when—
(a) the life of the nation is threatened by war, invasion, general insurrection,
disorder, natural disaster or other public emergency; and
(b) the declaration is necessary to restore peace and order.
(2) A declaration of a state of emergency, and any legislation enacted or other action
taken in consequence of that declaration, may be effective only—
(a) prospectively; and
(b) for no more than 21 days from the date of the declaration, unless the National
Assembly resolves to extend the declaration. The Assembly may extend a
declaration of a state of emergency for no more than three months at a time. The
first extension of the state of emergency must be by a resolution adopted with a
supporting vote of a majority of the members of the Assembly. Any subsequent
extension must be by a resolution adopted with a supporting vote of at least 60
per cent of the members of the Assembly. A resolution in terms of this paragraph
may be adopted only following a public debate in the Assembly.
(3) Any competent court may decide on the validity of—
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a declaration of
a state of emergency.
(4) Any legislation enacted in consequence of a declaration of a state of emergency may
derogate from the Bill of Rights only to the extent that—
(a) the derogation is strictly required by the emergency; and
(b) the legislation—
(i) is consistent with the Republic’s obligations under international law
applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as reasonably
possible after being enacted.
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no
legislation enacted or other action taken in consequence of a declaration, may permit or
authorise—
(a) indemnifying the state, or any person, in respect of any unlawful act;
(b) any derogation from this section; or
Page 641
(c) any derogation from a section mentioned in column 1 of the Table of Non-
Derogable Rights, to the extent indicated opposite that section in column 3 of the
Table.
Table of Non-Derogable Rights

1 2 3
Section Section title Extent to which the right is non-derogable
number
9 Equality With respect to unfair discrimination solely on the grounds of
race, colour, ethnic or social origin, sex, religion or language
10 Human dignity Entirely
11 Life Entirely
12 Freedom and security With respect to subsections (1) (d) and (e) and 2 (c)
of the person
13 Slavery, servitude and With respect to slavery and servitude
forced labour
28 Children With respect to:
– subsection (1) (d) and (e);
– the rights in subparagraphs (i) and (ii) of subsection (1) (g);
and
– subsection (1) (i) in respect of children of 15 years and
younger.
35 Arrested, detained and With respect to:
accused persons – subsections (1) (a), (b) and (c) and (2) (d);
– the rights in paragraphs (a) to (o) of subsection (3),
excluding paragraph (d);
– subsection (4); and
– subsection (5) with respect to the exclusion of evidence if
the admission of that evidence would render the trial unfair.
38 Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a
right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons who may approach a court
are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
Page 642
(e) an association acting in the interest of its members.

39 Interpretation of Bill of Rights
(1) When interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and democratic society based on
human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or customary
law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights.
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are
recognised or conferred by common law, customary law or legislation, to the extent that
they are consistent with the Bill.
Page 643
Appendix B
Judges’ Rules
Questions may be put by policemen to a person whom they do not suspect of being
concerned in the commission of the crime under investigation, without any caution being
first administered.
Questions may be put to a person whom the police have decided to arrest or who is under
suspicion where it is possible that the person by his answers may afford information which
may tend to establish his innocence, as, for instance, where he has been found in the
possession of property suspected to have been stolen, or of an instrument suspected to have
been used in the commission of the crime, or where he was seen in the vicinity about the
time when a crime was committed. In such a case a caution should first be administered.
Questions, the sole purpose of which is that the answers may afford evidence against the
person suspected, should not be put.
The caution to be administered in terms of rule 2 should be to the following effect: “’I am
a police officer. I am making inquiries (into so and so) and I want to know anything you can
tell me about it. It is a serious matter and I must warn you to be careful what you say.”
Where there is any special matter as to which an explanation is desired, the officer should
add words such as; “You have been found in possession of . . . unless you can explain this I
may have to arrest you . . .”
Questions should not be put to a person in custody with the exception of questions put in
terms of rule 6.
Where a person in custody wishes to volunteer a statement, he should be allowed to make
it, but he should be first cautioned.
A statement made by a prisoner before there is time to caution is not rendered
inadmissible in evidence, merely by reason of no caution having been given prior to the
commencement of his statement, but in such a case he should be cautioned as soon as
possible.
A prisoner making a voluntary statement must not be cross-examined, but questions may
be put to him solely for the purpose of removing elementary or obvious ambiguities in
voluntary statements. For instance, if he has mentioned an hour without saying whether it
was morning or evening or has given a day of the week and day of the month which do not
agree, or has not made clear to
Page 644
what individual or what place he intended to refer in some part of his statement, he may be
questioned sufficiently to clear up the point.
The caution to be administered to a person in custody should be to the following effect:
(a) Where he is formally charged: “Do you wish to say anything in answer to the charge?
You are not obliged to do so, but whatever you say will be taken down in writing and
may be given in evidence.”
(b) Where a prisoner volunteers a statement otherwise than on a charge: “Before you say
anything (or, if he has already commenced his statement, ‘anything further’), I must
tell you that you are not obligated to do so, but whatever you say will be taken down in
writing and be given in evidence.”
Any statement made in accordance with the above rules should, whenever possible be taken
down in writing and in the language in which it was made. It should be read over to the
person making it and he should be given full opportunity for making any corrections therein
that he may wish to, and he should then be invited to sign it.
When two or more persons are charged with the same offence, and a voluntary statement
is made by any one of them, the police, if they consider it desirable, may furnish the other
person with a copy of such statement but nothing should be said or done by the police to
invite a reply. The police should not read such statement to a person furnished, unless such
person is unable to read it and desires that it be read over to him. If a person so furnished
wishes to make a voluntary statement in reply, the usual caution should be administered.’
Page 645
Appendix C
Section 252A of the Criminal Procedure Act
252A Authority to make use of traps and undercover operations and admissibility
of evidence so obtained
(1) Any law enforcement officer, official of the State or any other person authorised
thereto for such purpose (hereinafter referred to in this section as an official or his or her
agent) may make use of a trap or engage in an undercover operation in order to detect,
investigate or uncover the commission of an offence, or to prevent the commission of any
offence, and the evidence so obtained shall be admissible if that conduct does not go beyond
providing an opportunity to commit an offence: Provided that where the conduct goes
beyond providing an opportunity to commit an offence a court may admit evidence so
obtained subject to subsection (3).
(2) In considering the question whether the conduct goes beyond providing an opportunity
to commit an offence, the court shall have regard to the following factors:
(a) Whether, prior to the setting of a trap or the use of an undercover operation,
approval, if it was required, was obtained from the attorney-general to engage
such investigation methods and the extent to which the instructions or guidelines
issued by the attorney-general were adhered to;
(b) the nature of the offence under investigation, including—
(i) whether the security of the State, the safety of the public, the maintenance
of public order or the national economy is seriously threatened thereby;
(ii) the prevalence of the offence in the area concerned; and
(iii) the seriousness of such offence;
(c) the availability of other techniques for the detection, investigation or uncovering
of the commission of the offence or the prevention thereof in the particular
circumstances of the case and in the area concerned;
(d) whether an average person who was in the position of the accused, would have
been induced into the commission of an offence by the kind of conduct employed
by the official or his or her agent concerned;
(e) the degree of persistence and number of attempts made by the official or his or
her agent before the accused succumbed and committed the offence;
(f) the type of inducement used, including the degree of deceit, trickery,
misrepresentation or reward;
Page 646
(g) the timing of the conduct, in particular whether the official or his or her agent
instigated the commission of the offence or became involved in an existing
unlawful activity;
(h) whether the conduct involved an exploitation of human characteristics such as
emotions, sympathy or friendship or an exploitation of the accused’s personal,
professional or economic circumstances in order to increase the probability of the
commission of the offence;
(i) whether the official or his or her agent has exploited a particular vulnerability of
the accused such as a mental handicap or a substance addiction;
(j) the proportionality between the involvement of the official or his or her agent as
compared to that of the accused, including an assessment of the extent of the
harm caused or risked by the official or his or her agent as compared to that of
the accused, and the commission of any illegal acts by the official or his or her
agent;
(k) any threats, implied or expressed, by the official or his or her agent against the
accused;
(l) whether, before the trap was set or the undercover operation was used, there
existed any suspicion, entertained upon reasonable grounds, that the accused
had committed an offence similar to that to which the charge relates;
(m) whether the official or his or her agent acted in good or bad faith; or
(n) any other factor which in the opinion of the court has a bearing on the question.
(3) (a) If a court in any criminal proceedings finds that in the setting of a trap or the
engaging in an undercover operation the conduct goes beyond providing an opportunity to
commit an offence, the court may refuse to allow such evidence to be tendered or may
refuse to allow such evidence already tendered, to stand, if the evidence was obtained in an
improper or unfair manner and that the admission of such evidence would render the trial
unfair or would otherwise be detrimental to the administration of justice.
(b) When considering the admissibility of the evidence the court shall weigh up the
public interest against the personal interest of the accused, having regard to the following
factors, if applicable:
(i) The nature and seriousness of the offence, including—
(aa) whether it is of such a nature and of such an extent that the security of
the State, the safety of the public, the maintenance of public order or the
national economy is seriously threatened thereby;
(bb) whether, in the absence of the use of a trap or an undercover operation,
it would be difficult to detect, investigate, uncover or prevent its
commission;
(cc) whether it is so frequently committed that special measures are required
to detect, investigate or uncover it or to prevent its commission; or
(dd) whether it is so indecent or serious that the setting of a trap or the
engaging of an undercover operation was justified;
(ii) the extent of the effect of the trap or undercover operation upon the interests
of the accused, if regard is had to—
(aa) the deliberate disregard, if at all, of the accused’s rights or any applicable
legal and statutory requirements;
Page 647
(bb) the facility, or otherwise, with which such requirements could have been
complied with, having regard to the circumstances in which the offence
was committed; or
(cc) the prejudice to the accused resulting from any improper or unfair
conduct;
(iii) the nature and seriousness of any infringement of any fundamental right
contained in the Constitution;
(iv) whether in the setting of a trap or the engagement of an undercover operation
the means used was proportional to the seriousness of the offence; and
(v) any other factor which in the opinion of the court ought to be taken into
account.
(4) An attorney-general may issue general or specific guidelines regarding the supervision
and control of traps and undercover operations, and may require any official or his or her
agent to obtain his or her written approval in order to set a trap or to engage in an
undercover operation at any place within his or her area of jurisdiction, and in connection
therewith to comply with his or her instructions, written or otherwise.
(5) (a) An official or his or her agent who sets or participates in a trap or an undercover
operation to detect, investigate or uncover or to obtain evidence of or to prevent the
commission of an offence, shall not be criminally liable in respect of any act which
constitutes an offence and which relates to the trap or undercover operation if it was
performed in good faith.
(b) No prosecution for an offence contemplated in paragraph (a) shall be instituted
against an official or his or her agent without the written authority of the attorney-general.
(6) If at any stage of the proceedings the question is raised whether evidence should be
excluded in terms of subsection (3) the burden of proof to show, on a balance of
probabilities, that the evidence is admissible, shall rest on the prosecution: Provided that the
accused shall furnish the grounds on which the admissibility of the evidence is challenged:
Provided further that if the accused is not represented the court shall raise the question of
the admissibility of the evidence.
(7) The question whether evidence should be excluded in terms of subsection (3) may, on
application by the accused or the prosecution, or by order of the court of its own accord be
adjudicated as a separate issue in dispute.
[S. 252A inserted by s. 1 of Act 85 of 1996.]
Page 649
Table of Cases
A
A Company and Others v Commissioner, South African Revenue Service 2014 (4) SA 549
(WCC)
— 161, 164
A Sweidan and King (Pty) Ltd and Others v Zim Israel Navigation Co Ltd 1986 (1) SA 515
(D)
— 29
A-G (Rudely) v Kenny 1960 94 ILT 185
— 94
AA Mutual Insurance Association Ltd v Biddulph and Another 1976 (1) SA 725 (A)
— 507
AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A)
— 98, 579
Abdo NO v Senator Insurance Co Ltd and Another 1983 (4) SA 721 (E)
— 107, 569
ABSA Bank Bpk h/a Volkskas Bank v Retief 1999 (3) SA 322 (NC)
— 523
ABSA Bank Ltd v Blumberg and Wilkinson 1995 (4) SA 403 (W)
— 508
ABSA Bank Ltd v Chopdat 2000 (2) SA 1088 (W)
— 347
ABSA Bank Ltd v Le Roux and Others 2014 (1) SA 475 (WCC)
— 444
Acar v Pierce and Other Like Applications 1986 (2) SA 827 (W)
— 542
Adams v NY 192 US 585 (1904)
— 210
Aetiology Today CC t/a Somerset Schools v Van Aswegen and Another 1992 (1) SA 807 (W)
— 298
Air Canada v Secretary of State and Trade 1983 2 AC 394
— 175
Alderson v Clay (1816) 1 Stark 405, 171 ER 511
— 433
Allen v Casey NO and Another 1991 (3) SA 480 (D)
— 549
Allie v Foodworld Stores Distribution Centre (Pty) Ltd and Others 2004 (2) SA 433 (SCA)
— 575-576
Amod v S [2001] 4 All SA 13 (E)
— 280
Anderson v Whalley 1952 3 Car and Kir 54
— 475
Andresen v Minister of Justice 1954 (2) SA 473 (W)
— 163
Annama v Chetty and Others 1946 AD 142
— 428, 598
Arizona v Evans 514 US 1 (1995)
— 212
Aronegary v Vaigalie 1881 6 App Cas 364
— 541-542
Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A)
— 539, 551-552, 580
Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd 1916 1 KB 822
— 172
Association of Amusement and Novelty Machine Operators and Another v Minister of Justice
and Another 1980 (2) SA 636 (A)
— 95, 525-526
Attorney-General Transvaal v Additional Magistrate for Johannesburg 1924 AD 421
— 37
Attorney-General v Hitchcock 1847 1 Exch 91
— 483
Attorney-General v Moagi 1981 Botswana LR 1
— 585
Attorney-General, Transvaal v Botha 1993 (2) SACR 587 (A)
— 511
Avis v Verseput 1943 AD 331
— 41, 43
Avontuur & Associates Inc and Another v Chief Magistrate, Oudtshoorn, and Others 2013 (1)
SACR 615 (WCC)
— 165
AXZS Industries v A F Dreyer (Pty) Ltd and Others 2004 (4) SA 186 (W)
— 43, 45
B
Bagwandeen and Others v City of Pietermaritzburg 1977 (3) SA 727 (N)
— 162
Baker v Campbell 1983 49 ALR 385
— 174
Balfour v Foreign Office 1994 2 All ER 588
— 175
Page 650
Bangindawo and Others v Head of the Nyanda Regional Authority and Another; Hlantlalala v
Head of the Western Tembuland Regional Authority and Others 1998 (2) SACR 16 (Tk)
— 224
Bank of Lisbon v Optichem Kunsmis (Edms) Bpk 1970 (1) SA 447 (W)
— 529
Barclays Bank of Swaziland Ltd v Mnyeketi 1992 (3) SA 425 (W)
— 523
Barclays National Bank Ltd v Serfontein 1981 (3) SA 244 (W)
— 42
Barclays National Bank Ltd v Wall 1983 (1) SA 149 (A)
— 548
Barkway v South Wales Transport Co Ltd 1949 1 KB 54; 1948 2 All ER 460
— 315-316
Barnicott v Minister of Justice 1913 TPD 691
— 171
Barrie v R 1959 1 PH H22 (O)
— 102
Bater v Bater 1950 2 All ER 458
— 628
Bates & Lloyd Aviation (Pty) Ltd and Another v Aviation Insurance Co; Bates & Lloyd Aviation
(Pty) Ltd v Aviation Insurance Co 1985 (3) SA 916 (A)
— 568
Bayer South Africa (Pty) Ltd and Another v Viljoen 1990 (2) SA 647 (A)
— 427
Beatson v Skene 2 LT 378
— 175
Ben McDonald Inc and Another v Rudolph and Another 1997 (4) SA 252 (T)
— 297
Benjamin v Gurewitz 1973 (1) SA 418 (A)
— 44
Bennett and Others v Minister of Safety and Security and Others 2006 (1) SACR 523 (T)
— 159
Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC)
— 156, 242
Birgin Bower Investments (Pty) Ltd v Marketing International 2003 (3) SA 382 (W)
— 509
Black and Others v Joseph 1931 AD 132
— 75
Blake and Austin v Director of Public Prosecutions 1993 Crim LR 283
— 182
Blue Chip Consultants (Pty) Ltd v Shamrock 2002 (3) SA 231 (W)
— 159
Body Corporate of Dumbarton Oaks v Faiga 1999 (1) SA 975 (SCA)
— 575
Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v Director, Office for Serious
Economic Offences, and Others 1996 (1) SA 785 (A)
— 162-163
Boon v Vaughan & Co Ltd 1919 TPD 77
— 434
Borcherds v Estate Naidoo 1955 (3) SA 78 (A)
— 589
Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A)
— 165
Bosasa Operations (Pty) Ltd v Basson and Another 2013 (2) SA 570 (GSJ)
— 167
Boshoff v Nel 1983 (2) SA 41 (NC)
— 316
Botes and Another v Nedbank Ltd 1983 (3) SA 27 (A)
— 599
Botes v Van Deventer 1966 (3) SA 182 (A)
— 4, 35, 339, 342, 345
Botha v Botha 1972 (2) SA 559 (N)
— 167, 281
Bowes v Friedlander NO and Others 1982 (2) SA 504 (C)
— 473-474, 478
Bowskill v Dawson [1954] 1 QB 288
— 314
Boyd v United States 116 US 616 (1886)
— 210
Brand v Kotze 1948 (3) SA 769 (C)
— 617
Brand v Minister of Justice and Another 1959 (4) SA 712 (A)
— 584, 622
Braswell v United States 108 S Ct 2284 (1988)
— 137
Brauer v Markaw 1946 TPD 344
— 346-347
Brewer v Williams 430 US 387 (1977)
— 214, 216
Brinegar v United States 338 US 160 (1949)
— 203
Bristow v Lycett 1971 (4) SA 223 (RA)
— 520
British Steel Corporation v Granada Television Ltd [1981] AC 1096
— 137
Brits v Van Heerden 2001 (3) SA 257 (C)
— 165
Brooks v Tennessee 406 US 605 (1972)
— 463
Brown v Allen 344 US 443
— 351
Brummund v Brummund’s Estate 1993 (2) SA 494 (Nm)
— 343, 509, 542
Bryant v Foot 1868 LR 3 QB 497
— 523
Page 651
Burdeau v McDowell 256 US 465 (1921)

— 210
Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980] AC 1090
— 175
Burrough v Martin 1809 2 Camp 112
— 475
Burton v Plummer (1934) 2 A & E 341; 11 ER 132
— 477
Buthelezi v Ndaba 2013 (5) SA 437 (SCA)
— 551
Buyers Guide (Pty) Ltd v Dada Motors (Mafikeng) Pty Ltd 1990 (4) SA 55 (BG)
— 435
Byers v Chinn and Another 1928 AD 322
— 550
C
C Hoare & Co v Runewitsch and Another 1997 (1) SA 338 (W)
— 529
Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA
499 (SCA)
— 39
California v Green 399 US 149 (1970)
— 406
Canaric NO v Shevil’s Garage 1932 TPD 196
— 507
Cape Coast Exploration Ltd v Scholtz and Another 1933 AD 56
— 548
Carroll v Carroll 1947 (4) SA 37 (D)
— 392
Cassiem v Standard Bank of South Africa Ltd 1930 AD 366
— 41-42
Caswell v Powell Duffryn Associated Collieries Ltd 1939 3 All ER 722
— 568
Cele v S [2012] 4 All SA 182 (KZP)
— 451, 598
Chambers v Mississippi 410 US 284 (1973)
— 486, 490
Chantrey Martin v Martin 1953 2 All ER 691
— 167
Chonco and Others v Minister of Justice and Constitutional Development and Another 2008
(2) SACR 39 (T)
— 619
Chopra v Sparks Cinemas (Pty) Ltd and Another 1973 (2) SA 352 (D)
— 435
City Panel Beaters v Bhana and Sons 1985 (2) SA 155 (D)
— 489-490
Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A)
— 626
Clifford v Clifford 1961 3 All ER 231
— 484
Clinton v Jones 137 L Ed 2d 945 (US)
— 459
Cloete v Birch 1993 (2) PH F17 (E)
— 575-576, 578
Cmc Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD)
— 437
Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding
Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC)
— 156, 553, 561
Coetzee v Government of the Republic of South Africa 1995 10 BCLR 1382 (CC)
— 553
Coetzee v Union Government 1941 TPD 1
— 347
Coetzee v Union Periodicals Ltd 1931 WLD 37
— 467
Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd 1989 (3) SA 759 (W)
— 90
Colgate-Palmolive (Pty) Ltd v Elida-Gibbs (Pty) Ltd 1990 (2) SA 516 (W)
— 316
Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A)
— 337
Commissioner for Inland Revenue v Whitfield 1993 (2) SA 236 (E)
— 339
Commissioner, South African Revenue Service v Sprigg Investment 117 CC t/a Global
Investment 2011 (4) SA 551 (SCA)
— 599
Commissioners of Customs and Excise v Harz 1967 AC 760; 1967 1 All ER 177
— 349
Competition Commission v Arcelormittal South Africa Ltd and Others 2013 (5) SA 538 (SCA)
— 160-161
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another (2) 2005 (6) SA 23
(C)
— 39
Consolidated Diamond Mines of South West Africa Ltd v Administrator, Swa and Another
1958 (4) SA 572 (A)
— 525
Conway v Rimmer 1968 1 All ER 874
— 174-176
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämfung MBH
1976 (3) SA 352 (A)
— 103
Page 652
Corke v Corke and Cook 1958 2 WLR 110

— 113
Coy v Iowa 487 US 1012, 101 LEd 2d 857 (1988)
— 406-408, 411
Crankshaw v Galloway 1887 5 SC 202
— 485
Crow v McMynn 1991 49 CRR 290
— 429
Customs Tariff Consultants CC v Mustek Ltd 2002 (6) SA 403 (W)
— 109
D
D v K 1997 2 BCLR 209 (N)
— 429
Danielz NO v De Wet and Another 2009 (6) SA 42 (C)
— 109
Danzfuss v Additional Magistrate, Bloemfontein, and Another 1981 (1) SA 115 (O)
— 161
Dave v Birrell 1936 TPD 192
— 618-619
Davenport v Davenport 1930 WLD 202
— 347
Davis v Additional Magistrate, Johannesburg, and Others 1989 (4) SA 299 (W)
— 167
Davis v Tip NO and Others 1996 (1) SA 1152 (W)
— 368
De Bruin v Rex 1945 2 PH H255 (T)
— 477, 479
De Klerk v Old Mutual Insurance Co Ltd 1990 (3) SA 34 (E)
— 41-43
De Klerk v Scheepers and Others 2005 (5) SA 244 (T)
— 527
De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 (C)
— 300
De Vos No and Another v Minister of Justice and Constitutional Development and Others
2015 (1) SACR 18 (WCC)
— 604, 606
De Wet and Another v President Versekeringsmaatskappy Bpk 1978 (3) SA 495 (C)
— 569
Delew v Town Council of Springs 1945 TPD 128
— 77-78
Derby & Co Ltd v Weldon 1990 3 All ER 762
— 281
Die Staat v V 1961 (4) SA 201 (O)
— 121
Digby v Stedman 1 Esp 328 (1795)
— 475
Dinath v Breedt 1966 (3) SA 712 (T)
— 507, 509
Director of Public Prosecutions v Kilbourne 1973 1 All ER 440
— 570
Director of Public Prosecutions v S 2000 (2) SA 711 (T)
— 594
Director of Public Prosecutions, Natal v Magidela and Another 2000 (1) SACR 458 (SCA)
— 154
Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional
Development, and Others 2009 (2) SACR 130 (CC)
— 409, 412-413
Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217 (SCA)
— 464
Director of Public Prosecutions, Transvaal v Viljoen 2005 (1) SACR 505 (SCA)
— 154, 198, 276, 372
Distillers Korporasie (SA) Bpk v Kotze 1956 (1) SA 357 (A)
— 392-393
Dlakela v Transkei Electricity Supply Commission 1997 (4) SA 523 (TkS)
— 584
Dlamini v Minister of Law and Order and Another 1986 (4) SA 342 (D)
— 343
Doe d Church & Phillips v Perkins 1790 3 Term Rep 749 753; 100 ER 838
— 476-477
Dongwe v Assistant Magistrate, Durban unreported judgment, NPD; dated 10 Dec 1951
— 397
Dowdle’s Estate v Dowdle and Others 1947 (3) SA 340 (T)
— 44
Doyle v Sentraboer (Co-Operative) Ltd 1993 (3) SA 176 (SE)
— 108
DPP v A & BC Chewing Gum Co Ltd 1968 AC 159
— 94
DPP v Boardman 1975 AC 421
— 81
DPP v Kilbourne 1973 AC 729
— 51
DPP v P [1991] 2 AC 447 HL
— 81
Dreyer and Another NNO v Axzs Industries (Pty) Ltd 2006 (5) SA 548 (SCA)
— 566, 614
Druker v Timmerman 1939 SWA 42
— 475-476
Du Bois v R 1986 23 DLR 4th 503
— 609
Du Plessis v Nel 1952 (1) SA 513 (A)
— 43
Page 653
Du Toit en Andere v Direkteur Van Openbare Vervolging, Transvaal: In Re S v Du Toit en

Andere 2004 (2) SACR 584 (T)
— 187
Duncan v Cammell Laird & Co Ltd 1942 1 All ER 587
— 171, 175-176
Durban City Council v SA Board Mills Ltd 1961 (3) SA 397 (A)
— 587
During NO v Boesak and Another 1990 (3) SA 661 (A)
— 36
Dyer v Best 1866 4 H and C 189; 1866 LR 1 Exch 152
— 475
E
E v E 1940 TPD 333
— 429
East London Municipality v Van Zyl 1959 (2) SA 514 (E)
— 427
Ebrahim v Georgoulas 1992 (2) SA 151 (B)
— 44
Ebrahim v Minister of Justice 2000 (2) SACR 173 (W)
— 590
Edcon Ltd v Pillemer NO & others (2008) 29 ILJ 614 (LAC)
— 297
Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A)
— 542
Ehrlich v Ceo, Legal Aid Board, and Another 2006 (1) SACR 346 (E)
— 140
Elgin Engineering Co (Pty) Ltd v Hillview Motor Transport 1961 (4) SA 450 (N)
— 454
Elgin Fireclays Limited v Webb 1947 (4) SA 744 (A)
— 587
Elkins v United States 364 US 206 (1960)
— 205, 207, 210, 238
Ellish en Andere v Prokureur-Generaal, Witwatersrandse Plaaslike Afdeling 1994 (4) SA 835
(W)
— 297
Els v Minister of Safety and Security 1998 (2) SACR 93 (N)
— 181, 183
Engles v Hofmann and Another 1992 (2) SA 650 (C)
— 400
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
— 137
Equisec (Pty) Ltd v Rodriques and Another 1999 (3) SA 113 (W)
— 156
Escobedo v Illinois 378 US 478 (1964)
— 139
Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A)
— 36
Estate Kaluza v Braeuer 1926 AD 243
— 575
Estate Parry v Murray 1961 (3) SA 487 (T)
— 471, 479
Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and Marketing and
Others 1979 (1) SA 637 (C)
— 161
Ewer v Ambrose 1825 3 B & C 746
— 487
Ex Parte Chodos 1948 (4) SA 221 (N)
— 547-548
Ex Parte Graham 1963 (4) SA 145 (D)
— 547-548
Ex Parte Institute for Security Studies: In Re S v Basson 2006 (2) SACR 350 (CC)
— 530
Ex Parte L (Also Known as A) 1947 (3) SA 50 (C)
— 541
Ex Parte Minister of Justice: In Re Rex v Demingo and Others 1951 (1) SA 36 (A)
— 30, 450, 455
Ex Parte Minister of Justice: In Re Rex v Matemba 1941 AD 75
— 146, 253
Ex Parte Minister of Justice: In Re Rex v Pillay and Others 1945 AD 653
— 31, 180
Ex Parte Minister Van Justisie: In Re S v Concalves 1976 (3) SA 629 (A)
— 519
Ex Parte Minister van Justisie: In Re S v Wagner 1965 (4) SA 507 (A)
— 29, 165-166, 473
Ex Parte Roche Et Uxor 1947 (3) SA 678 (D)
— 432
Ex Parte Rosch [1998] 1 All SA 319 (W)
— 440, 445
Ex Parte the Minister of Justice: In Re Rex v Jacobson & Levy 1931 AD 466
— 540
F
Fedbond Participation Mortgage Bond Managers (Pty) Ltd v Investec Employee Benefits Ltd
and Others [2010] 4 All SA 467 (SCA)
— 41
Federated Insurance Co Ltd v Britz and Another 1981 (4) SA 74 (T)
— 419
Fedics Group (Pty) Ltd and Another v Matus and Others Fedics Group (Pty) Ltd and Another
v Murphy and Others 1998 (2) SA 617 (C)
— 282
Fernandes v Fittinghoff & Fihrer CC 1993 (2) SA 704 (W)
— 419
Page 654
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA
984 (CC)
— 81, 142, 155, 220, 224, 241, 244, 257, 265, 277, 367, 526, 530, 533
Ferreira v Levin NO; Vryenhoek v Powell NO 1966 1 SA 984 (CC)
— 257-259
Firstrand Bank v Venter [2012] JOL 29436 (SCA)
— 443-444
Fitzgerald v Green 1911 EDL 432
— 541
Fleet Motors (Pty) Ltd v Epsom Motors (Pty) Ltd 1960 (3) SA 401 (N)
— 508
Fletcher and Another v S [2010] 2 All SA 205 (SCA)
— 125
Fourie v Sentrasure Bpk 1997 (4) SA 950 (NC)
— 507
Fraser and Another v Viljoen 2008 (4) SA 106 (SCA)
— 45
Friend v Friend 1962 (4) SA 115 (E)
— 435
Frosso Shipping Corporation v Richmond Maritime Corporation (Ideomar SA Intervening)
1985 (2) SA 476 (C)
— 507
G
Galante v Dickinson 1950 (2) SA 460 (A)
— 584
Gascoyne v Paul & Hunter 1917 TPD 170
— 626
Gcabashe v Nene 1975 (3) SA 912 (D)
— 346-347
Geldenhuys v Pretorius 1971 (2) SA 277 (O)
— 176
Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W)
— 620
Gemeenskapsontwikkelingsraad v Williams and Others (1) 1977 (2) SA 692 (W)
— 432
General Accident, Fire & Life Assurance Corporation Ltd v Goldberg 1912 TPD 494
— 162
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)
— 29, 99
Gericke v Sack 1978 (1) SA 821 (A)
— 618-619
Geuking v President of the Republic of South Africa and Others 2003 (1) SACR 404 (CC)
— 152
Geuking v President of the Republic of South Africa and Others 2003 (3) SA 34 (CC)
— 156
Gilbey v Great Western Railway Co (1910) 102 LT 202
— 308
Gillingham v Gillingham 1904 TS 126
— 397
Giovagnoli v Di Meo 1960 (3) SA 393 (D)
— 161
Gleeson v Durheim 1869 Buch 244
— 75
Goldberg v Director of Public Prosecutions, Western Cape 2014 (2) SACR 57 (WCC)
— 275
Golden Fried Chicken(Pty) Ltd v Yum Restaurants International (Pty) Ltd 2005 BIP 269 (T)
— 444
Goldfields Confectionery and Bakery (Pty), Ltd v Norman Adam (Pty), Ltd 1950 (2) SA 763
(T)
— 548-549
Goldstuck v Mappin & Webb Ltd 1927 TPD 723
— 427
Goliath v Fedgen Insurance Company Ltd 1994 2 PH F31 (E)
— 102
Gomes v Visser 1971 (1) SA 276 (T)
— 524
Goodrich v Goodrich 1946 AD 390
— 577-578
Goorpurshad v R 1914 35 NLR 87
— 146
Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA)
— 625-626
Gordon v Tarnow 1947 (3) SA 525 (A)
— 507
Gosschalk v Rossouw 1966 (2) SA 476 (C)
— 330
Govan v Skidmore 1952 (1) SA 732 (N)
— 579
Government of the Republic of South Africa v “Sunday Times” Newspaper and Another 1995
(2) SA 221 (T)
— 167
Graham v Park Mews Body Corporate and Another 2012 (1) SA 355 (WCC)
— 110
Grant v SA National Trust and Assurance Co, Ltd & Others 1948 (3) SA 59 (W)
— 482
Gregory v Tavernor 1833 6 Car and P 280; 172 ER 1241
— 479
Grgin v Grgin 1961 (2) SA 84 (W)
— 521
Griffin v California 380 US 609 (1965)
— 463, 585-586
Page 655
Groenewald NO and Another v Swanepoel 2002 (6) SA 724 (E)

— 311
Groenewald v Conradie; Groenewald en Andere v Auto Protection Insurance Co Ltd 1965 (1)
SA 184 (A)
— 551
Groves v Redbart 1975 Crim LR 158
— 475-476
GS Fouche Vervoer BK v Intercape Bus Service [2006] 1 All SA 24 (C)
— 102, 107
Gumede v Daines, NO and the Attorney-General 1952 (2) SA 315 (T)
— 399
Guzana v Council of State, Republic of Ciskei 1993 (2) SA 445 (CkA)
— 458
H
H A Millard & Son (Pty), Ltd v Enzenhofer 1968 (1) SA 330 (T)
— 625
H L & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd 2001 (4) SA 814 (SCA)
— 619
Hall v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 195 (C)
— 466
Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee,
and Others 2002 (5) SA 449 (SCA)
— 140
Hamman v Moolman 1968 (4) SA 340 (A)
— 401, 465
Harksen v Attorney-General, Cape, and Others 1999 (1) SA 718 (C)
— 162, 165, 300-301
Harnischfeger Corporation and Another v Appleton and Another 1993 (4) SA 479 (W)
— 529
Harris v DPP 1952 AC 694
— 81
Harris v Mayer 1911 AD 260
— 475
Harris v New York 401 US 222 (1971)
— 139, 215, 498-500
Harris v Tippett 1811 2 Camp 637
— 483
Hassan v Hassan 1998 (2) SA 589 (D)
— 529
Hassim (Also Known as Essack) v Incorporated Law Society of Natal 1977 (2) SA 757 (A)
— 110, 311
Hassim v Naik 1952 (3) SA 331 (A)
— 434, 521
Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd And others 2006 BIP 317
(SCA)
— 445
Head v Du Toit 1932 CPD 287
— 345
Hees v Nel 1994 1 PH F11 (T)
— 574
Helen Suzman Foundation v President of the Republic of South Africa and Others 2015 (2)
SA 1 (CC)
— 89
Hendricks v S [2010] 4 All SA 184 (SCA)
— 586
Herbst v R 1925 SWA 77
— 97
Herring v United States 555 US 135 (2009)
— 210
Herstigte Nasionale Party Van Suid-Afrika v Sekretaris Van Binnelandse Sake en Immigrasie
1979 (4) SA 274 (T)
— 432
Hewan v Kourie NO and Another 1993 (3) SA 233 (T)
— 297-298, 302, 304
Heystek v Alge and Paiken 1925 TPD 1
— 397
Hladhla v President Insurance Co Ltd 1965 (1) SA 614 (A)
— 315
Hlantlalala and Others v Dyantyi NO and Another 1999 (2) SACR 541 (SCA)
— 153
Hlatshwayo and Others v Hein 1999 (2) SA 834 (LCC)
— 525
Hlongwane and Others v Rector, St Francis College, and Others 1989 (3) SA 318 (D)
— 297-299
Hlophe v Mahlalela and Another 1998 (1) SA 449 (T)
— 530
Hobbs v Tinling 1929 2 KB 1
— 396, 482
Hoffend v Elgeti 1949 (3) SA 91 (A)
— 347
Hoffmann v South African Airways 2001 (1) SA 1 (CC)
— 535
Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35
— 109-110, 311
Holtzhauzen v Roodt 1997 (4) SA 766 (W)
— 50, 54, 90, 100, 102, 114-115, 123
Holz v Harksen 1995 (3) SA 521 (C)
— 528
Hopes v HM Advocate 1960 SC (J) 106
— 425
Page 656
Howard & Decker Witkoppen Agencies and Fourways Estates (Pty) Ltd v De Sousa 1971 (3)
SA 937 (T)
— 434
Howe v Mabuya 1961 (2) SA 635 (N)
— 167
Howe v Malkin (1878) 40 LT 196
— 307
Hummerstone v Leary 1921 2 KB 664
— 627
I
Illinois v Krull 480 US 340 (1987)
— 211
In re A & M 61 AD 2d 426; 403 NYS 2d 375 (1978)
— 169
In Re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action
Campaign and Others 2002 (5) SA 713 (CC)
— 535
Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In Re Masetlha v
President of the Republic of South Africa and Another 2008 (5) SA 31 (CC)
— 178
Industrial Development Corporation of SA (Pty) Ltd v Silver 2003 (1) SA 365 (SCA)
— 43
Institut National des Appellations d’Origine v Schmidt [2003] JOL 11095 (T)
— 529
Inter-Science Research and Development Services (Pty) Ltd v Republica Popular De
Mocambique 1980 (2) SA 111 (T)
— 521, 528
International Business Machines SA (Pty) Ltd v Commissioner for Customs and Excise 1985
(4) SA 852 (A)
— 96
International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1) 1955 (2) SA 1 (W)
— 133, 493
International Tobacco Co (SA) Ltd v United Tobacco Cos (South) Ltd (2) 1953 (3) SA 879
(W)
— 185
Intramed (Pty) Ltd v Standard Bank of South Africa Ltd 2004 (6) SA 252 (W)
— 623-624
Isparta v Richter and Another 2013 (6) SA 529 (GNP)
— 437
Israelsohn v Power, NO and Ruskin, NO (1) 1953 (2) SA 499 (W)
— 395
J
Jabaar v South African Railways and Harbours 1982 (4) SA 552 (C)
— 489-490
Jackson v Jackson 2002 (2) SA 303 (SCA)
— 107, 576
Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015 (1) SA 139 (SCA)
— 99, 106
Jacobs v Henning 1927 TPD 324
— 329
Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC)
— 437, 444
Janis v United States
— 207
Janis v United States 428 US 443 (1966)
— 207
Janit and Another v Motor Industry Fund Administrators (Pty) Ltd and Another 1995 (4) SA
293 (A)
— 281
Janse Van Rensburg and Others NNO v Steenkamp and Another; Janse Van Rensburg and
Others NNO v Myburgh and Others 2010 (1) SA 649 (SCA)
— 39
Jarman v Lambert and Cooker (Contractors) Ltd 1951 2 KB 937
— 316
Jarrosson Estates (Edms) Bpk v Oosthuizen 1985 (3) SA 550 (NC)
— 45
Jeeva and Others v Receiver of Revenue, Port Elizabeth, and Others 1995 (2) SA 433 (SE)
— 164
Jesse v Pratt NO 2001 8 BCLR 814 (Z)
— 68
Jili v South African Eagle Insurance Co Ltd 1995 (3) SA 269 (N)
— 346
John and Another v Road Accident Fund 2000 (1) SA 459 (T)
— 548
Johnston v Leal 1980 (3) SA 927 (A)
— 41, 43, 45
Johnstone v Earle 313 F 2d 686 (9th Cir 1962)
— 471
Jones v S 1970 2 PH H129 (A)
— 80
K
K v the Regional Court Magistrate NO, and Others 1996 (1) SACR 434 (E)
— 409
Kakuva en ’n Ander v Minister Van Polisie 1983 (2) SA 684 (SWA)
— 547
Page 657
Kapeller v Rondalia Versekeringskorporasie Van Suid-Afrika Bpk 1964 (4) SA 722 (T)
— 618
Katz v Bloom field 1914 TPD 379
— 626
Katz v Katz 2004 4 All SA 545 (C)
— 566, 568, 579
Katz v United States 389 US 347 (1967)
— 210
Kellogg Co and Another v Bokomo Co-Operative Ltd 1997 (2) SA 725 (C)
— 519
Kelly v Pickering and Another (1) 1980 (2) SA 753 (R)
— 161
Kerkhoff v Minister of Justice and Constitutional Development and Others 2011 (2) SACR
109 (GNP)
— 188
Kerr v California 374 US 23 (1963)
— 210
Kevin and Lasia Property Investment CC and Another v Roos NO and Others 2004 (4) SA
103 (SCA)
— 508-509
Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC); 1996
(2) SACR 113 (CC)
— 156, 202, 224, 241-243, 610
Khala v Minister of Safety and Security 1994 (4) SA 218 (W); 1994 (2) SACR 361 (W); 1994
2 BCLR 89 (W)
— 178
Khan v S 1997 4 All SA 435 (A)
— 610
Khumalo and Others v Holomisa 2002 (5) SA 401 (CC)
— 553
Kirkstall Brewery Co v Furness Railway Co Ltd 1874 LR 9 QB
— 342
Klein v Attorney-General, Witwatersrand Local Division, and Another 1995 (2) SACR 210 (W)
— 160, 164
Knocker v Standard Bank of SA Ltd 1933 AD 128
— 550
Knouwds v Administrateur, Kaap 1981 (1) SA 544 (C)
— 345
Koekemoer v Marais 1934 1 PH J27 (C)
— 576
Kok v Osborne and Another 1993 (4) SA 788 (SE)
— 43
Kommissaris Van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A)
— 39
Kommissaris Van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051 (SCA)
— 162, 165
Kourie v Bean 1949 (2) SA 567 (T)
— 44
KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA)
— 40
Kroon v J L Clark Cotton Co (Pty) Ltd 1983 (2) SA 197 (E)
— 344
Kruger v Ludick 1947 (3) SA 23 (A)
— 427
Kuruma, Son of Kaniu v R 1955 AC 197
— 220
Kwikspace Modular Buildings Ltd v Sabodala Mining Co Sarl and Another 2010 (6) SA 477
(SCA)
— 528
L
La Consortium & Vending CC t/a La Enterprises v MTN Service Provider (Pty) Ltd 2011 (4)
SA 577 (GSJ)
— 443
Land Securities plc v Westminster City Council 1993 4 All ER 124
— 110
Lane and Another NNO v Magistrate, Wynberg 1997 (2) SA 869 (C)
— 161
Lau Pak Ngam v The Queen 1966 Crim LR 443-4
— 472-473
Laubscher and Another v Commercial Union Assurance Co of SA Ltd 1976 (1) SA 908 (E)
— 316
Laubscher v National Foods Ltd 1986 (1) SA 553 (ZS)
— 77, 82, 87
Lawrie v Muir 1950 SC (J) 19
— 202
Laws v Rutherfurd 1924 AD 261
— 165
LB v YD 2009 (5) SA 463 (T)
— 544
Le Grange v Pretorius 1943 TPD 223
— 43
Le Roux v Minister of Safety and Security and Another 2009 (2) SACR 252 (KZP)
— 620
Lee v Minister for Correctional Services 2013 (2) SA 144 (CC)
— 535
Lenco Holdings Ltd and Others v Eckstein and Others 1996 (2) SA 693 (N)
— 281
Lenssen v R 1906 TS 154
— 470
Page 658
Lenz Township Co (Pty) Ltd v Munnick and Others 1959 (4) SA 567 (T)
— 163
Levack and Others v Regional Magistrate, Wynberg, and Another 2003 (1) SACR 187 (SCA)
— 146-147
Levack and Others v the Regional Magistrate, Wynberg and Another 1999 (2) SACR 151 (C)
— 254
Ley v Ley’s Executors and Others 1951 (3) SA 186 (A)
— 628
Leyland (SA) (Pty) Ltd v Rex Evans Motors (Pty) Ltd 1980 (4) SA 271 (W)
— 45
Lindhaven Meat Market CC v Reyneke 2001 (1) SA 454 (W)
— 625
Line v Taylor (1862) 3 F & F 731
— 421
Lloyd v Powell Duffryn Steam Coal Co Ltd 1914 AC 733
— 51
Lotter v Arlow and Another 2002 (6) SA 60 (T)
— 283
Louw and Another v Minister of Safety and Security and Others 2006 (2) SACR 178 (T)
— 620
Louwrens v Oldwage 2006 (2) SA 161 (SCA)
— 107, 566
Lowery v The Queen 1973 3 All ER 662
— 54
Lynes v International Trade Developer Inc 1922 NPD 301
— 432
Lynn & Main Inc v Naidoo and Another 2006 (1) SA 59 (N)
— 346-347
M
M v R 1989 (1) SA 416 (O)
— 429
Mabaso v Felix 1981 (3) SA 865 (A)
— 619, 622
Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC)
— 535
Mabena v Letsoalo 1998 (2) SA 1068 (T)
— 530
Macdonald v Stander 1935 AD 325
— 544
MacDuff & Co (in Liquidation) v Johannesburg Consolidated Co Ltd 1923 TPD 318
— 477
Machewane v Road Accident Fund 2005 (6) SA 72 (T)
— 625
Macleod v Rens 1997 (3) SA 1039 (E)
— 517, 551, 579
Madyosi and Another v SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A)
— 550-551
Magmoed v Janse Van Rensburg and Others 1993 (1) SA 777 (A)
— 136
Magmoed v Janse Van Rensburg and Others 1993 (1) SACR 67 (A)
— 17, 31, 136-137
Magoulaane v S 2007 3 All SA 627 (NC)
— 245, 252
Magwanyana and Others v Standard General Insurance Co Ltd 1996 (1) SA 254 (D)
— 298, 311
Mahomed v Attorney-General of Natal and Others 1996 (1) SACR 139 (N)
— 294
Mahomed v Shaik 1978 (4) SA 523 (N)
— 103, 544
Maisela v Kgolane NO 2000 (2) SA 370 (T)
— 530
Maize Board v Hart 2005 (5) SA 480 (O)
— 311, 340, 434
Makanjuola v Commissioner of Police of the Metropolis 1992 3 All ER 617
— 173
Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA)
— 298, 339-340
Makin v Attorney-General for New South Wales 1894 AC 57 (PC) 65
— 78
Man Truck & Bus (SA) (Pty) Ltd v Dusbus Leasing CC and Others 2004 (1) SA 454 (W)
— 39
Mandela v Minister of Prisons 1983 (1) SA 938 (A)
— 163
Mapota v Santam Versekeringsmaatskappy Bpk 1977 (4) SA 515 (A)
— 106, 569
Mapp v Ohio 367 US 643 (1961)
— 203, 206, 210, 238
Marais v Lombard 1958 (4) SA 224 (E)
— 182
Mardone v United States 308 US 338 (1939)
— 211
Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A)
— 622
Maritime & General Insurance Co Ltd v Sky Unit Engineering (Pty) Ltd 1989 (1) SA 867 (T)
— 104
Marks v Beyfus 1890 25 QBD 494
— 179
Maron v Mulbarton Gardens (Pty) Ltd 1975 (4) SA 123 (W)
— 549
Martin Johnson Properties CC v Mutual and Federal Insurance Co Ltd [2010] 1 All SA 495
(KZP)
— 44
Page 659
Maryland v Craig 497 US 836 (1990)

— 408
Maschinen Frommer Gmbh & Co Kg v Trisave Engineering & Machinery Supplies (Pty) Ltd
2003 (6) SA 69 (C)
— 435
Masokanye v Additional Magistrate, Stellenbosch and Others 1994 (1) SACR 21 (C)
— 136
Massachusetts v Sheppard 468 US 981 (1984)
— 211
Master of the High Court v Deedat and Others 1999 11 BCLR 1285 (N)
— 453
Mathobanyane v Vrystaatse Drankraad en ’n Ander 2000 (4) SA 342 (O)
— 523
Matshivha v The State [2013] ZASCA 124
— 452
Maugham v Hubbard 108 ER 948
— 475
Maxwell v White 1936 SR 59
— 397
Mayer v Williams 1981 (3) SA 348 (A)
— 589
Mazibuko v Santam Insurance Co Ltd and Another 1982 (3) SA 125 (A)
— 625-626
McCray v Illinois 386 US 300 (1967)
— 182
McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and Another; McDonald’s
Corporation v Dax Prop CC and Another; McDonald’s Corporation v Joburgers Drive-Inn
Restaurant (Pty) Ltd and Dax Prop CC 1997 (1) SA 1 (A)
— 296
McQuaker v Goddard 1940 1 KB 687; 1940 All ER 471
— 516
Mcunu v R 1938 NPD 229
— 520
Mcwilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A)
— 337
Mdani v Allianz Insurance Ltd 1991 (1) SA 184 (A)
— 294, 338
Medi-Clinic Ltd v Vermeulen 2015 (1) SA 241 (SCA) ([2014] ZASCA 150)
— 107
Media Workers Association of SA on behalf of Mvemve v Kathorus Community Radio (2010)
31 ILJ 2217 (CCMA)
— 437
Medscheme Holdings (Pty) Ltd and Another v Bhamjee 2005 (5) SA 339 (SCA)
— 575-576
Meevis v Sheriff, Pretoria East 1999 (2) SA 389 (T)
— 316
Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E)
— 102, 108, 115
Mendes and Another v Kitching NO and Another 1995 (2) SACR 634 (E)
— 279
Metedad v National Employers’ General Insurance Co Ltd 1992 (1) SA 494 (W)
— 296, 298-300
Metro Transport (Pty) Ltd v National Transport Commission 1981 (3) SA 114 (W)
— 95
Meyer v Director of Public Prosecutions, KwaZulu-Natal [2006] 4 All SA 598 (N)
— 392
Meyer v Merchants’ Trust Ltd 1942 AD 244
— 44
Meyerson v Health Beverages (Pty) Ltd 1989 (4) SA 667 (C)
— 419
Mgcina v Regional Magistrate, Lenasia and Another 1997 (2) SACR 711 (W)
— 144, 152-153
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA)
— 106-107
Michael v Additional Magistrate of Johannesburg & Attorney-General 1926 TPD 331
— 478
Michigan v Tucker 417 US 433 (1974)
— 213, 215, 233, 245
Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5)
SA 540 (SCA)
— 167
Miller v Minister of Pensions 1947 2 All ER 372
— 613, 627
Mills v Oddy (1834) 6 C & P 728, 172 ER 1438
— 434
Millward v Glaser 1950 (3) SA 547 (W)
— 346
Minister of Basic Education, Sport and Culture v Vivier NO and Another 2012 (2) NR 613
(SC)
— 93
Minister of Community Development v Saloojee and Another 1963 (4) SA 65 (T)
— 174
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A)
— 620
Minister of Justice v Ntuli 1997 (3) SA 772 (CC)
— 242
Minister of Law and Order v Kader 1991 (1) SA 41 (A)
— 140
Minister of Safety and Security and Another v Gaqa 2002 (1) SACR 654 (C)
— 148, 254
Minister of Safety and Security and Another v Xaba 2004 (1) SACR 149 (D)
— 148
Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA)
— 553, 620
Page 660
Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA)
— 616
Minister Van Justisie v Alexander 1975 (4) SA 530 (A)
— 171
Minister Van Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA)
— 575
Miranda v Arizona 384 US 436 (1966)
— 135, 139, 213-214, 247
Mitchell and Another v Hodes and Others NNO 2003 (1) SACR 524 (C)
— 156
Mitchell v Mitchell and Another 1963 (2) SA 505 (D)
— 522
Mkhize v Lourens and Another 2003 (3) SA 292 (T)
— 102
Mnyama v Gxalaba and Another 1990 (1) SA 650 (C)
— 287, 297, 302, 305
Mohamed NO and Others v National Director of Public Prosecutions and Another 2003 (1)
SACR 286 (W)
— 156
Mohamed v President of the Republic of South Africa and Others 2001 (2) SA 1145 (C)
— 160, 163-164
Mohlomi v Minister of Defence 1997 (1) SA 124 (CC)
— 526
Mohunram and Another v National Director of Public Prosecutions and Another (Law Review
Project as Amicus Curiae) 2007 (2) SACR 145 (CC)
— 619, 623
Mokonoto and Others v Reynolds NO and Another 2009 (1) SACR 311 (T)
— 511
Molapo v Director of Public Prosecutions 1997 (8) BCLR 1154
— 185
Momoniat v Minister of Law and Order and Others; Naidoo and Others v Minister of Law and
Order and Others 1986 (2) SA 264 (W)
— 163
Mood Music Publishing Co Ltd v De Wolfe Ltd 1976 1 All ER 763 (CA)
— 77
Moodley v Moodley and Another 1991 (1) SA 358 (D)
— 43
Moran v Burbine 475 US 412 (1986)
— 215, 253, 352
Moskowitz and Another v the Master and Others 1976 (1) SA 22 (C)
— 42
Mostert v S 1973 2 PH H67 (C)
— 37
Motata v Nair NO and Another 2009 (1) SACR 263 (T)
— 426
Motor Industry Fund Administrators (Pty) Ltd and Another v Janit and Another 1994 (3) SA
56 (W)
— 281
Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E)
— 106, 569
Motswai v Road Accident Fund 2013 (3) SA 8 (GSJ)
— 106
Mphahlele v First National Bank of SA Ltd 1999 (2) SA 667 (CC)
— 566, 599
Msila v Government of the RSA 1996 3 BCLR 362 (C)
— 145
Msimang v Durban City Council and Others 1972 (4) SA 333 (D)
— 165
Msomi v Attorney-General of Natal 1996 8 BCLR 1109 (W)
— 147, 254
Msunduzi Municipality v Natal Joint Municipal pension/provident Fund and Others 2007 (1)
SA 142 (N)
— 110, 311
MT Tigr Owners of the MT Tigr and Another v Transnet Ltd t/a Portnet (Bouygues Offshore
SA and Another Intervening) 1998 (3) SA 861 (SCA)
— 297
Mthembu v Letsela and Another 2000 (3) SA 867 (SCA)
— 530
Mthimkulu and Another v Mahomed and Others 2011 (6) SA 147 (GSJ)
— 628
MTN Service Provider (Pty) Ltd v La Consortium & Vending CC t/a La Enterprises, and Others
2011 (4) SA 562 (W)
— 445
Mtyhida v S [2013] 2 All SA 335 (ECG)
— 143, 252
Muller v Boe Bank Ltd and Others 2011 (1) SA 252 (WCC)
— 314, 316
Muller v Oregon 208 US 412 (1908)
— 532
Munusamy v Hefer NO and Others (Freedom of Expression Institute and Others as Amici
Curiae) 2004 (5) SA 112 (O)
— 167
Murdoch v Taylor [1965] AC 574
— 69
Murray v United States 487 US 533 (1988)
— 212
MV Alam Tenggiri Golden Seabird Maritime Inc and Another v Alam Tenggiri Sdn Bhd and
Another 2001 (4) SA 1329 (SCA)
— 529
MV Banglar Mookh Owners of MV Banglar Mookh v Transnet Ltd 2012 (4) SA 300 (SCA)
— 105
Mvu v Minister of Safety and Security and Another 2009 (2) SACR 291 (GSJ)
— 620
Page 661
N
Naidoo and Another v De Freitas and Others 2013 (1) SACR 284 (KZP)
— 511
Naidoo v Marine & Trade Insurance Co Ltd 1978 (3) SA 666 (A)
— 29, 346
Naidoo v R 1909 TS 43
— 550
Naik v Pillay’s Trustee 1923 AD 471
— 506
Narlis v South African Bank of Athens 1976 (2) SA 573 (A)
— 439-440
Nasopie (Edms) Bpk en Andere v Minister Van Justisie en Andere 1979 (3) SA 1228 (NC)
— 521
Natal Estates Ltd v Secretary for Inland Revenue 1975 (4) SA 177 (A)
— 550
Natal Fertilizers Ltd v Van Dam 1922 NPD 157
— 181
National Board (Pretoria) (Pty) Ltd and Another v Estate Swanepoel 1975 (3) SA 16 (A)
— 40
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and
Others 2000 (2) SA 1 (CC)
— 151, 534
National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA)
— 188
National Director of Public Prosecutions v Mcasa and Another 2000 (1) SACR 263 (TkH)
— 526
National Director of Public Prosecutions v Mohamed and Others 2003 (2) SACR 258 (C)
— 156
National Director of Public Prosecutions v Naidoo and Others 2011 (1) SACR 336 (SCA)
— 600
National Director of Public Prosecutions v Phillips and Others 2001 (2) SACR 542 (W)
— 553
Naylor v Wheeler 1947 (2) SA 681 (D)
— 180
Ndlovu v The Minister of Correctional Services And Another [2006] 4 All SA 165 (W)
— 442
Nduli and Another v Minister of Justice and Others 1978 (1) SA 893 (A)
— 528
Nel v Law Society, Cape of Good Hope 2010 (6) SA 263 (ECG)
— 110
Nel v Le Roux NO and Others 1996 (1) SACR 572 (CC)
— 138, 155, 367
Nel v Le Roux NO and Others 1996 (3) SA 562 (CC)
— 156
Nel v Le Roux 2006 (3) SA 56 (E)
— 157
Nell v Nell 1990 (3) SA 889 (T)
— 429
Nepgen NO v Van Dyk NO 1940 EDL 123
— 547
New York v Harris 495 US 14 (1990)
— 211
New York v Quarles 467 US 649 (1984)
— 139, 215, 247, 272
Newell v Cronje and Another 1985 (4) SA 692 (E)
— 421
Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern Cape, and
Another 2001 (2) SA 609 (E)
— 527
Nhlabathi v Adjunk Prokureur-Generaal, Transvaal, en Andere 1978 (3) SA 620 (W)
— 140
Nieuwoudt v Joubert 1988 (3) SA 84 (SE)
— 619
Nix v Williams 467 US 431 (1984)
— 216
Nkosi v Barlow NO en Andere 1984 (3) SA 148 (T)
— 146
Nomandela v S [2007] 1 All SA 506 (E)
— 50
Nominal Defendant v Clement 1961 104 CLR 476
— 116
Northern Mounted Rifles v O’Callaghan 1909 TS 174
— 434
Nortje and Another v Attorney-General, Cape, and Another 1995 (2) SA 460 (C)
— 187
Novick and Another v Comair Holdings Ltd and Others 1978 (3) SA 333 (W)
— 393
Nyadeni v Road Accident Fund (unreported WLD decision, case no 06/26259, 27 Nov 2007)
— 489
Nyangeni v Minister of Bantu Administration and Development and Another 1961 (1) SA 547
(E)
— 174
Nyokana v Nyokana 1925 NPD 227
— 542
Page 662
O
O’Shea NO v Van Zyl and Others NNO 2012 (1) SA 90 (SCA)
— 340-341
O v O 1992 (4) SA 137 (C)
— 429
Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A)
— 627
Ochberg v Ochberg’s Estate 1941 CPD 15
— 541
Oelofse v Grundling 1952 (1) SA 338 (C)
— 343
Ohio v Roberts 448 US 56 (1980)
— 301
Olivier v Minister of Safety and Security and Another 2008 (2) SACR 387 (W)
— 584, 587, 620
Olmstead v United States 277 US 438 (1928)
— 202, 207
Omega, Louis Brandt et Frere SA and Another v African Textile Distributors 1982 (1) SA 951
(T)
— 84
Onassis v Vergottis 1968 2 Lloyd’s Rep 403
— 574
Oosthuizen v Stanley 1938 AD 322
— 492
Opper v United States 348 US 84
— 351
Oregon v Elstad 470 US 298 (1985)
— 213-215, 236
Oregon v Hass 420 US 714 (1975)
— 215
Osborne Panama SA v Shell & Bp South African Petroleum Refineries (Pty) Ltd and Others
1982 (4) SA 890 (A)
— 551
Osman and Another v Attorney-General, Transvaal 1998 (2) SACR 493 (CC)
— 330, 557, 587
Osman and Another v Attorney-General, Transvaal 1998 (4) SA 1224 (CC)
— 134
Oudebaaskraal (Edms) Bpk en Andere v Jansen Van Vuuren en Andere 2001 (2) SA 806
(SCA)
— 628
Owner v Bee Hive Spinning Co Ltd 1914 (1) KB 105
— 434
P
P v P 2007 (5) SA 94 (SCA)
— 106
Palmer v Minister of Safety and Security 2002 (1) SA 110 (W)
— 60
Papenfus v Transvaal Board for the Development of Peri-Urban Areas 1969 (2) SA 66 (T)
— 31
Parbhoo and Others v Getz NO and Another 1997 (4) SA 1095 (CC)
— 534
Park-Ross and Another v Director: Office for Serious Economic Offences 1995 (1) SACR 530
(C)
— 155, 367
Park-Ross v Director: Office for Serious Economic Offences 1997 (2) SACR 401 (C)
— 188
Parker v Reed 1904 SC 496
— 520
Patel v Patel 1946 CPD 46
— 576
Patlansky v Patlansky 1917 WLD 10
— 346-347
Peacock v SA Eagle Insurance Co Ltd 1991 (1) SA 589 (C)
— 165
Pelser v Smith 1979 (3) SA 687 (T)
— 43
Pennington v Minister of Justice and Others 1995 (3) BCLR 270 (C)
— 145
People v Atchley 53 Cal 2d 160, 346 P2d 764, cert dismd 366 US 207
— 351
People v Defore 150 NE 585 (1926)
— 203
People v Fitzgerald 101 Misc 2d 712; 422 NYS 2d 309
— 169
Peregrine Group (Pty) Ltd and Others v Peregrine Holdings Ltd and Others 2001 (3) SA 1268
(SCA)
— 627
Philmatt (Pty) Ltd v Mosselbank Developments CC 1996 (2) SA 15 (A)
— 41, 43, 45
Pillay v Krishna and Another 1946 AD 946
— 602, 616-619, 622
Pincus v Solomon 1942 WLD 237
— 115-116
Podlas v Cohen and Bryden NNO and Others 1994 (4) SA 662 (T)
— 367
Polverini v General Accident Insurance Co South Africa Ltd 1998 (3) SA 546 (W)
— 347
Popovic v Derks 1961 VR 413
— 569
Porterstraat 69 Eiendomme (Pty) Ltd v P a Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C)
— 467
Page 663
Postmasburg Motors (Edms) Bpk v Peens en Andere 1970 (2) SA 35 (NC)

— 42
Poswa v Christie 1934 NPD 178
— 53
Potter v South British Insurance Co Ltd and Another 1963 (3) SA 5 (W)
— 162
Preen v Preen 1935 NPD 138
— 589
President of the Republic of South Africa and Others v M & G Media Ltd 2011 (2) SA 1 (SCA)
— 164, 178
President of the Republic of South Africa and Others v South African Rugby Football Union
and Others 2000 (1) SA 1 (CC)
— 394, 458, 576, 583, 595
President-Versekeringsmaatskappy Bpk v Moodley 1964 (4) SA 109 (T)
— 508
Pretoria City Council v Buchanan and Another 1952 (1) SA 236 (T)
— 42
Pretorius v Niehaus en ’n Ander 1960 (3) SA 109 (O)
— 580
PricewaterhouseCoopers Incorporated and Others v National Potato Co-operative Ltd and
Another [2015] 2 All SA 403 (SCA)
— 99, 102, 106
Prince v President of the Law Society of the Cape of Good Hope 2002 (1) SACR 431 (CC)
— 535
Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC)
— 534-535
Prince v President, Law Society, Cape of Good Hope and Others 2001 (1) SACR 217 (CC)
— 534
Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC)
— 553, 621
Prophet v National Director of Public Prosecutions 2006 (2) SACR 525 (CC)
— 109
Protea Technology Ltd & another v Wainer & others 1997 (9) BCLR 1225 (W)
— 198, 282
Purchase v De Huizemark Alberton (Pty) Ltd t/a Bob Percival Estates 1994 (1) SA 281 (W)
— 40-41, 43
Putter v Provincial Insurance Co Ltd and Another 1963 (3) SA 145 (W)
— 315
Putter v Provincial Insurance Co Ltd and Another 1963 (4) SA 771 (W)
— 627
Pyneboard Pty Ltd v Trade Practices Commission 1983 152 CLR 328
— 135
Q
Q v Boyes 1861 LJR 301
— 136
Qoko v La Grange NO and Others 2004 (2) SACR 521 (E)
— 511, 553
Qozeleni v Minister of Law and Order and Another 1994 (3) SA 625 (E)
— 164
R
R v A 1952 (3) SA 212 (A)
— 520
R v Abelson 1933 TPD 227
— 179
R v Adamstein 1937 CPD 331
— 71, 486
R v African Canning Co (Swa) Ltd and Others 1954 (1) SA 197 (SWA)
— 519, 523
R v Ahmed 1958 (3) SA 313 (T)
— 279
R v Akoon 1926 NPD 306
— 428
R v Alward 1976 32 CCC 2nd 416
— 477-478
R v Amod & Co (Pty) Ltd and Another 1947 (3) SA 32 (A)
— 433
R v Amod and Another 1958 (2) SA 658 (N)
— 393
R v Amway Corp [1989] 1 SCR 21
— 137
R v B (KG) [1993] 1 SCR 740
— 496
R v B 1933 OPD 139
— 146
R v Baartman and Others 1960 (3) SA 535 (A)
— 383, 402, 462
R v Bakes 1986 26 DLR (4th) 200
— 536
R v Ball 1911 AC 47 (HL)
— 79, 85
R v Bartle 1994 23 CRR (2d) 193 (SCC)
— 232
R v Bass 1953 1 All ER 1064
— 478
R v Beecham 1921 3 KB 464
— 68
R v Behrman 1957 (1) SA 433 (T)
— 425
Page 664
R v Bellingham 1955 (2) SA 566 (A)

— 594
R v Bellis [1966] 1 All ER 552 (CCA)
— 65
R v Bereng 1949 AC 253
— 428
R v Bezuidenhout 1954 (3) SA 188 (A)
— 587
R v Bhoola 1960 (4) SA 895 (T)
— 323
R v Bikitsha 1960 (4) SA 181 (E)
— 518
R v Birch-Monchrieff 1960 (4) SA 425 (T)
— 109
R v Birch 1924 18 Cr App R 172
— 485
R v Black (1922) 16 Cr App R 118
— 308
R v Black 1989 47 CRR 171 (SCC)
— 260, 275
R v Blake and Tye 1844 6 QB 126
— 344
R v Bliss (1837) Ad & E 550; 112 ER 577
— 307
R v Bond 1954 (4) SA 121 (N)
— 80, 82
R v Britton 1987 1 WLR 539
— 479
R v Brown & Daley 1988 Crim LR 426
— 182
R v Bryant; R v Dickson 1946 31 Cr App R 146
— 475
R v Bryant; R v Dicksonn 1946 31 Cr App R 1436
— 476
R v Bunana 1958 (1) SA 573 (E)
— 520
R v Burgess 1927 TPD 14
— 116
R v Burlingham 1995 28 CRR 2d 244 (SCC)
— 258
R v Butelezi 1959 (1) SA 191 (N)
— 520
R v Butterwasser 1948 1 KB 4; 1947 2 All ER 415
— 66
R v C 1955 (4) SA 40 (N)
— 118, 120-121
R v C 1961 (3) SA 675 (SR)
— 119
R v Calder 1996 46 CR 4th 133 (SCC)
— 500-501
R v Camelleri 1922 2 KB 122
— 116
R v Carelse 1943 CPD 242
— 427
R v Cargill 1913 2 KB 271
— 71
R v Chaulk 1990 2 CR 4th 1 (SCC)
— 561
R v Chaulk 1991 1 CRR (2d) 1
— 605-606
R v Chizah 1960 (1) SA 435 (A)
— 319
R v Christiaans 1925 TPD 868
— 59
R v Clarkson 1986 19 CRR 209 (SCC)
— 252
R v Cockcroft 1870 11 Cox CC 410
— 71
R v Collins 1987 28 CRR 122 (SCC)
— 225, 228, 254-255, 264, 266, 273-274, 278
R v Collins [1987] 1 SCR 265
— 217, 220
R v Cook [1959] 2 QB 340 (CA)
— 230
R v Creinhold 1926 OPD 151
— 452
R v Cross 1970 1 CCC 216
— 570
R v D 1958 (4) SA 364 (A)
— 423
R v Da Silva 1990 1 All ER 29
— 474
R v Davies and Another 1956 (3) SA 52 (A)
— 161
R v Davies 1962 1 WLR 1111
— 94
R v Daye [1908] 2 KB 333
— 431
R v De Bruyn and Another 1957 (4) SA 408 (C)
— 393
R v De Souza 1955 (1) SA 32 (T)
— 98
R v Deale & others 1929 TPD 259
— 492
R v Debele 1956 (4) SA 570 (A)
— 368-369
R v Debot 1989 45 CRR 49 (SCC)
— 232
R v Dhlamini 1960 (1) SA 880 (N)
— 51, 59
Page 665
R v Dodson 1984 (1) CLR 489 (CA)

— 446
R v Downey 1992 13 CR 4th 129 (SCC)
— 539, 554, 560
R v Duguay 1989 1 SCR 93
— 270
R v Dwernychuk 1992 12 CRR 2d 175
— 249
R v Edwards 1994 22 CRR (2d) 29 (SCC)
— 236
R v Elijah 1963 (3) SA 86 (SR)
— 477-479
R v Ellis 1936 SWA 10
— 116
R v Esposito (1985) 49 CR (3d) 193
— 330
R v Esposito (1985) 53 OR (2d) 356
— 141
R v Farden and White 1982 (1) CLR 588 (CA)
— 446
R v Feeney 1997 44 CRR 2d 1 (SCC)
— 273, 275
R v Fenlon 1980 71 Cr App Rep 307
— 479
R v Foster 1922 EDL 166
— 527
R v Fotheringham 1975 Crim LR 710
— 477
R v Fouche 1953 (1) SA 440 (W)
— 160-161
R v Fouche 1958 (3) SA 767 (T)
— 511
R v Frederick JS 56/38 (SWA)
— 80
R v Funderburk 1990 2 All ER 482
— 483
R v Gannon 1906 TS 114
— 121
R v Gannon 1911 TPD 270
— 121
R v Gericke 1941 CPD 211
— 254
R v Gilfoyle 2001 2 Cr App R 57
— 54
R v Gimingham 1946 EDL 156
— 65
R v Gloose 1936 2 PH F155 (SWA)
— 124
R v Goliath 1941 CPD 3
— 361
R v Goliath 1946 EDL 310
— 420
R v Goodwin [1993] 2 NZLR 153 (CA)
— 141, 201
R v Governor of Gloucester: Ex parte Miller 1979 2 All ER 1103
— 476
R v Grant [2009] 2 SCR 353
— 228-229, 254, 257, 259, 273-275
R v Grant [2009] 2 SCR 553
— 217-220
R v Guney 1998 2 Cr App Rep 242
— 63
R v Guttenberg 1907 TS 207
— 116
R v Haefele 1938 SWA 21
— 575
R v Hans Veren 1918 TPD 218
— 359, 369
R v Harris 1927 NPD 330
— 181
R v Harvey 1869 11 Cox CC 546
— 477
R v Harvey 1969 (2) SA 193 (RA)
— 522
R v Hedges 1909 3 Cr App Rep 262
— 121
R v Heilbron 1922 TPD 99
— 587
R v Hendrickz 1933 TPD 451
— 31, 68
R v Herholdt and Others (3) 1956 (2) SA 722 (W)
— 608
R v Herholdt and Others (4) 1956 (3) SA 313 (W)
— 399
R v Hewitt & Davis 1992 Crim LR 650
— 182
R v Heyne en Andere (2) 1958 (1) SA 612 (W)
— 68
R v Hlongwane 1959 (3) SA 337 (A)
— 578, 592, 603-604
R v Horwood 1970 1 QB 133
— 84
R v Hoskisson 1906 TS 502
— 492
R v I (LR) 1993 19 CRR (2d) 156 (SCC)
— 235
R v Isaacs 1916 TPD 390
— 475-477, 479
R v Ismail 1943 CPD 418
— 393
Page 666
R v J 1966 (1) SA 88 (SR)

— 588
R v Jacobs 1954 (2) SA 320 (A)
— 363, 369
R v Jacoy 1988 38 CRR 290 (SCC)
— 254, 274
R v Jass 1939 EDL 249
— 580
R v Jenkins 1945 (3) SA 560 (C)
— 550
R v Johnson 1988 Crim LR 831
— 182
R v Jonathan 1947 1 PH K4 (C)
— 477
R v Jones; R v Sullivan 1978 2 All ER 718
— 322
R v Juva 1931 TPD 89
— 588
R v K 1956 (3) SA 353 (A)
— 38
R v Kant 1933 WLD 128
— 360
R v Kautumundu 1936 2 PH F154 (SWA)
— 120, 123
R v Keegstra 1990 3 CRR 2d 193
— 555
R v Kelsey 1982 74 Cr App R 213
— 475-476
R v Knight 1966 1 WLR 230
— 571
R v Kokesch 1990 50 CRR 285 (SCC)
— 274
R v Kokesch [1990] 3 SCR 3
— 219
R v Kola 1949 1 PH H100 (A)
— 591
R v Kolisi 1960 (2) SA 374 (E)
— 98
R v Komsame 1928 EDL 423
— 124
R v Kotcho 1918 EDL
— 52
R v Kruger 1941 OPD 33
— 428
R v Kukubula 1958 (3) SA 698 (SR)
— 307
R v Kumalo 1952 (3) SA 223 (T)
— 402
R v Kupeka and Others 1957 (1) SA 399 (A)
— 492
R v L 1955 (1) SA 575 (T)
— 581
R v Laba 1995 34 CR 4th 360 (SCC)
— 561
R v Leatham 1861 Cox CC 498 501
— 200
R v Levitt 1933 CPD 411
— 519
R v Levogiannis 1993 18 CRR (2d) 242 (SCC)
— 411
R v Lourie (1892) 9 SC 432
— 37, 538
R v Louw 1930 CPD 368
— 93
R v Lukas 1923 CPD 508
— 467
R v Luttrell 2004 2 Cr App R 520 CA
— 422
R v M 1959 (1) SA 352 (A)
— 125
R v M 1959 (1) SA 434 (A)
— 113
R v Mabuya 1927 CPD 181
— 204, 223
R v Machinini (2) 1944 WLD 91
— 609
R v Mack 1989 44 CCC 3d 513 (SCC)
— 281
R v Maduna 1946 EDL 334
— 520
R v Magoetie 1959 (2) SA 322 (A)
— 348
R v Majosi and Others 1956 (1) SA 167 (N)
— 402
R v Makanjuola, R v Easton 1995 3 All ER 730 (CA)
— 596
R v Makoena 1932 OPD 79
— 594
R v Maleke 1925 TPD 491
— 146
R v Malindi 1966 (4) SA 123 (PC)
— 67
R v Mansfield 1978 1 All ER 134
— 82
R v Marsh 1986 83 Cr App R 165
— 483
R v Marshall-Graham 1967 2 QB 406
— 349
R v Masebe 1972 2 PH H127 (BAC)
— 59
Page 667
R v Mashimbi 1958 (1) SA 390 (T)

— 606
R v Masinyana 1958 (1) SA 616 (A)
— 363
R v Matthews and Others 1960 (1) SA 752 (A)
— 52
R v Matyeni 1958 (2) SA 573 (E)
— 420
R v Mavuso 1969 2 PH H168
— 593
R v Mawena 1961 (3) SA 362 (SR)
— 475
R v Mayahle 1968 (2) SA 801 (RA)
— 428
R v Mayet 1957 (1) SA 492 (A)
— 344
R v Mazweinzini and Another 1964 (4) SA 201 (SR)
— 520
R v Mcwilliam 1958 (2) SA 243 (E)
— 511
R v Melozani 1952 (3) SA 639 (A)
— 373
R v Mendy 1976 64 Cr App R 17
— 484
R v Michael George 1945 (2) PH H255 (N)
— 492
R v Mills 1962 3 All ER 298
— 470
R v Mkwanazi 1935 TPD 129
— 420
R v Mlambo 1957 (4) SA 727 (A)
— 578
R v Mohafa 1950 2 PH H103 (E)
— 477
R v Moiloa 1956 (4) SA 824 (A)
— 348, 366
R v Mokwena 1940 OPD 130
— 575
R v Momekela & Commandant 1936 OPD 24
— 576
R v Mouton 1934 TPD 101
— 428
R v Mtabela 1958 (1) SA 264 (A)
— 363
R v Mukuma 1934 TPD 134
— 581
R v Mullins 1848 12 JP 776
— 475
R v Mzimsha 1942 WLD 82
— 374
R v Ndawo and Others 1961 (1) SA 16 (N)
— 392
R v Ndenxa 1919 EDL 199 200
— 38
R v Ndimangele 1913 CPD 708
— 278
R v Nel 1946 WLD 406
— 577
R v Nhamo 1956 1 PH H28 (SR)
— 38
R v Nhlanhla 1960 (3) SA 568 (T)
— 432
R v Nhleko 1960 (4) SA 712 (A)
— 348, 363, 377, 589, 603
R v Nicholas (1846) 2 Car & Kir 246
— 308
R v Nksatlala 1960 (3) SA 543 (A)
— 104, 426
R v NM Paterson & Sons Ltd [1980] 2 SCR 679
— 137
R v Noble (1997) 1 SCR 874 (SCC)
— 585, 612
R v Norcott 1917 1 KB 347
— 118
R v O’Linn 1960 (1) SA 545 (N)
— 475
R v O 1964 (4) SA 245 (SR)
— 595
R v Oakes 1986 50 CR 3d 1 (SCC)
— 554
R v Olifant 1937 2 PH H191 (T)
— 180-181
R v Osborne 1905 1 KB 551
— 116, 118-119
R v Oyesikuz 1972 56 Cr App R 240
— 115
R v P (MB) 1994 1 SCR 555
— 612
R v P 1955 (2) SA 561 (A)
— 581
R v P 1957 (3) SA 444 (A)
— 423, 570
R v P 1991 3 All ER 337 (HL)
— 59, 84
R v Paluszak 1938 TPD 427
— 66
R v Persutam 1934 TPD 253
— 68
R v Philip 1960 (2) SA 267 (N)
— 511
Page 668
R v Phillips 1936 26 Cr App R 17

— 484
R v Phiri 1958 (3) SA 161 (A)
— 587
R v Pretorius 1934 TPD 76
— 520
R v Radebe 1960 (4) SA 131 (T)
— 98
R v Rahn [1985] 1 SCR 659
— 141
R v Ramsamy 1954 (2) SA 491 (A)
— 363
R v Randall [2004] 1 WLR 56
— 50, 55
R v Ranikolo 1954 (3) SA 255 (O)
— 453
R v Rankine 1986 Crim LR 464
— 182
R v Rassool 1932 NPD 112
— 128
R v Ratner 1910 TPD 1327
— 487
R v Redpath 1962 46 Cr App R 319
— 571
R v Refanis 1929 OPD 195
— 518
R v Regan (1887) 16 Cox CC
— 432
R v Richardson & Longman 1968 2 All ER 761
— 486
R v Richardson 1971 (2) All ER 773
— 472
R v Riley 1887 18 QBD 481
— 71
R v Roberson 1958 (1) SA 676 (A)
— 427
R v Roberts 1942 28 Cr App R 102
— 114
R v Roets and Another 1954 (3) SA 512 (A)
— 81, 83
R v Roopsingh 1956 (4) SA 509 (A)
— 402
R v Ross 1987 37 CRR 369 (SCC)
— 263
R v Rowton 1865 Le & CA 520; 169 All ER 1497
— 64-66
R v S 1954 (3) SA 522 (A)
— 423
R v S 1956 (4) SA 118 (N)
— 98
R v Sacco 1958 (2) SA 349 (N)
— 579
R v Sacks 1931 TPD 188
— 397
R v Sang 1979 2 All ER 1222
— 220
R v Schaube-Kuffler 1969 (2) SA 40 (RA)
— 49
R v Scoble 1958 (3) SA 667 (N)
— 478
R v Seaboyer; R v Gayme 83 DLR (4th) 193
— 72
R v Seaboyer [1991] 2 SCR 577
— 74
R v Sephanyane 1955 2 PH H223 (A)
— 572
R v Sewgoolam 1961 (3) SA 79 (N)
— 522
R v Sherrin 1913 TPD 474
— 470
R v Silveira [1995] 2 SCR 297
— 219
R v Silverlock 1894 2 QB 766
— 98
R v Simelane 1958 (2) SA 302 (N)
— 464, 467
R v Simmons 1967 51 Cr App R 316
— 476
R v Small 1968 (3) SA 561 (RA)
— 279
R v Smit 1952 (3) SA 447 (A)
— 428
R v Smith (No 2) 1938 71 CCC 394
— 478
R v Smith (1915) 11 Cr App Rep 229
— 83
R v Smith 1989 41 CRR 1 (SCC)
— 253
R v Smuk 1971 3 CCC (2d) 457
— 583
R v Sole 2004 (2) SACR 599 (Les)
— 52, 94, 578, 585
R v Solomons 1959 (2) SA 352 (A)
— 16, 52, 85, 400
R v Sombana 1939 EDL 71
— 520
R v South Ribble Magistrates, ex p Cochrane 1996 2 Cr App R 544
— 474
R v Southall 1921 TPD 403
— 434
Page 669
R v Steyn 1954 (1) SA 324 (A)

— 185, 190
R v Stillman 1997 42 CRR (2d) 189 (SCC)
— 229, 254-257, 260, 275
R v Stillman [1997] 1 SCR 607
— 217, 219-220
R v Stinchcombe 1992 LRC (Crim) 68
— 185, 188
R v Stolz 1925 WLD 38
— 420
R v Strachan 1988 37 CRR 335 (SCC)
— 232
R v Straffen 1952 2 QB 911
— 79
R v T (E) 109 DLR (4th) 141
— 365
R v T 1937 TPD 398
— 121
R v Tebetha 1959 (2) SA 337 (A)
— 377
R v Therens 1985 13 CRR 193 (SCC)
— 230
R v Therens [1985] 1 SCR 613
— 141
R v Thomsen [1988] 1 SCR 640
— 141
R v Thornhill 1838 8 C & P 575; 173 ER 624
— 509
R v Tladi 1924 CPD 545
— 492
R v Tom 1914 TPD 318
— 450
R v Trask [1985] 1 SCR 655
— 141
R v Trigg 1963 1 All ER 490
— 571
R v Trochym [2007] 1 SCR 239
— 62
R v Tshetaundzi 1960 (4) SA 569 (A)
— 369
R v Turner 1975 1 All ER 70
— 54
R v Tusini and Another 1953 (4) SA 406 (A)
— 520
R v V 1958 (3) SA 474 (GW)
— 21
R v Valentine 1996 2 Cr App R 213
— 121, 123
R v Van Heerden en Andere 1960 (2) SA 405 (T)
— 581
R v Van Tonder 1929 TPD 365
— 93, 95
R v Van Tonder 1932 TPD 90
— 75
R v Vather and Another 1961 (1) SA 350 (A)
— 328, 599
R v Vilbro and Another 1957 (3) SA 223 (A)
— 93
R v Virgo 1978 67 Cr App R 323
— 479
R v Vlok and Vlok 1954 (1) SA 203 (SWA)
— 278
R v Wallwork 1958 42 Cr App Rep 153
— 120
R v Warickshall 1783 1 Leach 263
— 358, 378
R v Wellers 1918 TPD 234
— 487, 490
R v West 1939 CPD 393
— 337
R v Westermeyer 1911 32 NLR 197
— 124
R v Weyer 1958 (3) SA 467 (GW)
— 330
R v Whitehead 1929 1 KB 99
— 121, 570
R v Wholesale Travel Inc 1992 8 CR (4th) 145
— 556
R v Whyte 1989 51 DLR 4th 481 (SCC)
— 555
R v Wilken 1939 EDL 151
— 479
R v Wilson 1966 (1) SA 388 (SR)
— 349
R v Wong Kam-ming 1980 AC 247 (PC); 1979 1 All ER 939
— 358, 362
R v Wood 1951 2 All ER 112
— 71
R v Woodcock 1963 Crim LR 273
— 476
R v Wray 1970 11 DLR (3d) 673
— 217
R v Xulu 1956 (2) SA 288 (A)
— 351, 360
R v Zonele and Others 1959 (3) SA 319 (A)
— 455
R v Zulu 1947 2 PH H302 (N)
— 452
R v Zungu 1953 (4) SA 660 (N)
— 434
Page 670
Rademeyer v Steyn 1968 1 PH F30 (A)

— 581
Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (No 1) 2003
(5) SA 518 (C)
— 110
Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2)
SA 359 (CC)
— 535
Rakas v Illinois 439 US 128 (1978)
— 236
Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (T)
— 620
Ramaite v S [2015] 1 All SA 35 (SCA)
— 394
Rance v Union Mercantile Co Ltd 1922 AD 312
— 507
Rand Cold Storage & Supply Co Ltd v Alligianes 1968 (2) SA 122 (T)
— 588
Randfontein Transitional Local Council v ABSA Bank Ltd 2000 (2) SA 1040 (W)
— 328
Rawoot v Marine & Trade Insurance Co Ltd 1980 (1) SA 260 (C)
— 314, 470
Reckitt & Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A)
— 92
Redelinghuys v Geidel 1963 (2) SA 274 (W)
— 174
Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1962 (2) SA 408 (C)
— 161
Rex v Abel 1948 (1) SA 654 (A)
— 540
Rex v Ahmed and Another 1940 AD 333
— 361
Rex v Andrews 1920 AD 290
— 420
Rex v Barlin 1926 AD 459
— 139, 328, 330, 347, 350
Rex v Becker 1929 AD 167
— 359
Rex v Beukman 1950 (4) SA 261 (O)
— 492
Rex v Black 1923 AD 388
— 23, 395
Rex v Blom 1939 AD 188
— 577-580, 603
Rex v Blyth 1940 AD 355
— 363, 572
Rex v Bosch 1949 (1) SA 548 (A)
— 70, 375, 396
Rex v C 1949 (2) SA 438 (SR)
— 22, 60
Rex v Camane and Others 1925 AD 570
— 134, 142, 146, 378
Rex v Carr 1949 (4) SA 132 (T)
— 477
Rex v Carson 1926 AD 419
— 365-366
Rex v Cilliers 1937 AD 278
— 344
Rex v Dart (2) 1951 (1) SA 483 (W)
— 115
Rex v De Villiers 1944 AD 493
— 578
Rex v Debati 1951 (1) SA 421 (T)
— 426
Rex v Dhlamini 1949 (3) SA 976 (N)
— 348
Rex v Dhlumayo and Another 1948 (2) SA 677 (A)
— 575, 600
Rex v Difford 1937 AD 370
— 613
Rex v Dray 1925 AD 553
— 124
Rex v Duetsimi 1950 (3) SA 674 (A)
— 358, 379
Rex v Dunga 1934 AD 223
— 372
Rex v Fourie and Another 1937 AD 31
— 538, 580
Rex v Grieve 1947 (2) SA 264 (T)
— 478
Rex v Gumede and Another 1942 AD 398
— 371
Rex v Gumede 1949 (3) SA 749 (A)
— 576, 588
Rex v Holtzhausen 1947 (1) SA 567 (A)
— 139
Rex v Ismail 1952 (1) SA 204 (A)
— 336, 584
Rex v Jackelson 1917 AD 556
— 338
Rex v Jamba 1947 (4) SA 228 (C)
— 465
Rex v Jaspan and Another 1940 AD 9
— 343
Rex v K 1951 (3) SA 180 (SWA)
— 109
Rex v Kalkiwich and Kruger 1942 AD 79
— 82
Page 671
Rex v Katz and Another 1946 AD 71

— 81
Rex v Keller & Parker 1915 AD 98
— 582
Rex v Kgaladi 1943 AD 255
— 120
Rex v Kizi 1950 (4) SA 532 (A)
— 115
Rex v Kritzinger and Others 1952 (2) SA 401 (W)
— 608
Rex v Kumalo and Another 1930 AD 193
— 510
Rex v Kumalo and Nkosi 1918 AD 500
— 56-59
Rex v Kumalo 1949 (1) SA 620 (A)
— 359
Rex v Kuzwayo 1949 (3) SA 761 (A)
— 139, 141, 362-363
Rex v Levy and Others 1929 AD 312
— 344, 418
Rex v Lipschitz 1921 AD 282
— 467
Rex v Louw 1918 AD 344
— 609
Rex v M and Another 1950 (4) SA 101 (T)
— 37
Rex v M 1946 AD 1023
— 394, 583, 613
Rex v M 1947 (4) SA 489 (N)
— 595
Rex v Makeip 1948 (1) SA 947 (A)
— 91, 422, 426
Rex v Manda 1951 (3) SA 158 (A)
— 593
Rex v Masemang 1950 (2) SA 488 (A)
— 575, 590
Rex v Mashelele and Another 1944 AD 571
— 330, 593
Rex v Mazibuko 1947 (4) SA 821 (N)
— 511
Rex v McDonald 1927 AD 110
— 420
Rex v Milne and Erleigh (7) 1951 (1) SA 791 (A)
— 393
Rex v Modesa 1948 (1) SA 1157 (T)
— 98
Rex v Moore 1948 (2) SA 227 (C)
— 70
Rex v Morela 1947 (3) SA 147 (A)
— 522
Rex v Mpanza 1915 AD 348
— 52
Rex v Mtembu 1950 (1) SA 670 (A)
— 578
Rex v Naran Samy 1945 AD 618
— 550
Rex v Ncanana 1948 (4) SA 399 (A)
— 588
Rex v Ndhlovu 1945 AD 369
— 554, 603
Rex v Ndhlovu 1950 (4) SA 574 (N)
— 470
Rex v Nigrini 1948 (4) SA 995 (C)
— 454
Rex v Pelunsky 1914 AD 360
— 432
Rex v Perkins 1920 AD 307
— 374, 396
Rex v Pharenque 1927 AD 57
— 77, 83
Rex v Pretoria Timber Co (Pty) Ltd and Another 1950 (3) SA 163 (A)
— 519
Rex v Rautenbach 1949 (1) SA 135 (A)
— 595
Rex v Rose 1937 AD 467
— 112-113, 470, 479, 570
Rex v S 1948 (4) SA 419 (GW)
— 120, 593
Rex v Samhando 1943 AD 608
— 358, 378-379
Rex v Seaward 1950 (2) SA 704 (N)
— 94
Rex v Sewpaul 1949 (4) SA 978 (N)
— 427
Rex v Sibia 1947 (2) SA 50 (A)
— 462
Rex v Smit and Another 1946 AD 862
— 477
Rex v Stephen Jood 1949 (1) SA 298 (GW)
— 423
Rex v Tager 1944 AD 339
— 516, 518
Rex v Theunissen 1948 (4) SA 43 (C)
— 94
Rex v Thielke 1918 AD 373
— 609
Rex v Trupedo 1920 AD 58
— 49, 52, 60
Rex v Valachia and Another 1945 AD 826
— 328, 353-354, 374, 599
Page 672
Rex v Van der Merwe 1950 (4) SA 17 (O)

— 428
Rex v Van der Merwe 1952 (1) SA 143 (SWA)
— 507
Rex v Van der Merwe 1952 (1) SA 647 (O)
— 543
Rex v Van Schalkwyk 1938 AD 543
— 180-181
Rex v Van Schalkwyk 1948 (2) SA 1000 (O)
— 109
Rex v Varachia and Another 1947 (4) SA 267 (T)
— 475
Rex v Velekaze 1947 (1) SA 162 (W)
— 128
Rex v Viljoen 1941 AD 366
— 359
Rex v Viljoen 1947 (2) SA 56 (A)
— 83
Rex v Vlok 1951 (1) SA 26 (C)
— 115
Rex v W 1949 (3) SA 772 (A)
— 570, 593, 595
Rex v Weinberg 1939 AD 71
— 577
Rex v Zawels and Another 1937 AD 342
— 77, 85, 338
Rhode Island v Innis 446 US 291 (1980)
— 139, 214
Rhodesian Corporation Ltd v Globe and Phoenix Gold Mining Co Ltd 1934 AD 292
— 341
Richtersveld Community and Others v Alexkor Ltd and Another 2001 (3) SA 1293 (LCC)
— 525
Richtersveld Community v Alexkor Ltd and Another 2000 (1) SA 337 (LCC)
— 297
Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434
— 137
Robinson v Benson & Simpson 1918 WLD 1
— 181
Robinson v Randfontein Estates Gm Co Ltd 1925 AD 173
— 508
Robinson v Randfontein Estates Gold Mining Co Ltd 1918 TPD 420
— 419
Robinson v State of South Australia (No 2) 1931 AC 704
— 176
Rochin v California 342 US 165 (1952)
— 210
Rock v Arkansas 107 S Ct 2704 (1987)
— 61-62
Rock v State 708 SW 2d 78 (1986)
— 61
Rofdo (Pty) Ltd t/a Castle Crane Hire v B & E Quarries (Pty) Ltd 2002 (1) SA 632 (E)
— 87
Rogers v Secretary of State for the Home Department 1973 AC 388
— 173
Ross and Another v Silberman and Others 1963 (2) SA 296 (W)
— 420
Roviaro v United States 353 US 53 (1957)
— 183
Rowe and Davis v UK (2000) 30 EHRR 1
— 185
Rowe v Assistant Magistrate, Pretoria 1925 TPD 361
— 519, 528
Rumping v DPP 1962 3 All ER 256 (HL)
— 169
Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd 1975 (4) SA 626 (W)
— 29
Russel v Russel and Mayer 1924 AC 687
— 543
Russel v Russel 1923 129 LT 151
— 423
Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)
— 626
Ruto Flour Mills Ltd v Adelson (1) 1958 (4) SA 235 (T)
— 93, 99-100, 102
S
S A I Investments v Van der Schyff NO and Others 1999 (3) SA 340 (N)
— 43
S v A R Wholesalers (Pty) Ltd and Another 1975 (1) SA 551 (NC)
— 21
S v Abader 2008 (1) SACR 347 (W)
— 583, 607
S v Abader 2010 (2) SACR 558 (WCC)
— 105, 592, 604
S v Abbott 1999 (1) SACR 489 (SCA)
— 378
S v Abel 1990 (2) SACR 367 (C)
— 104
S v Abrahams 1979 (1) SA 203 (A)
— 567
S v Adams en Tien Ander Soortgelyke Sake 1986 (3) SA 733 (C)
— 513
S v Adams S v Werner 1981 (1) SA 187 (A)
— 603
S v Adams 1983 (2) SA 577 (A)
— 94
Page 673
S v Adams 2001 (1) SACR 59 (C)

— 16
S v Adams 2009 (1) SACR 394 (C)
— 430
S v Adendorff 2004 (2) SACR 185 (SCA)
— 17, 388, 433
S v African Bank of South Africa Ltd and Others 1990 (2) SACR 585 (W)
— 366
S v Agliotti 2011 (2) SACR 437 (GSJ)
— 611
S v Agnew and Another 1996 (2) SACR 535 (C)
— 141, 224, 350
S v Aimes and Another 1998 (1) SACR 343 (C)
— 152-153, 199, 239, 376, 501
S v Alex Carriers (Pty) Ltd en ’n Ander 1985 (3) SA 79 (T)
— 603, 613
S v Alexander and Others (2) 1965 (2) SA 818 (C)
— 324
S v AM 2014 (1) SACR 48 (FB)
— 570
S v Ambros 2005 (2) SACR 211 (C)
— 145
S v Amerika 1990 (2) SACR 480 (C)
— 462, 609
S v Aspeling 1998 (1) SACR 561 (C)
— 294
S v Augustine 1980 (1) SA 503 (A)
— 520
S v Azov 1974 (1) SA 808 (T)
— 278
S v B and Another 1980 (2) SA 946 (A)
— 167, 465
S v B 1976 (2) SA 54 (C)
— 569
S v B 1980 (2) SA 964 (A)
— 185
S v B 1996 (2) SACR 543 (C)
— 390
S v Bailey 2007 (2) SACR 1 (C)
— 263, 276, 391, 590-591
S v Bakos 2010 (1) SACR 523 (GSJ)
— 450, 462
S v Balatseng 2005 (2) SACR 28 (B)
— 153, 402
S v Baleka and Others (1) 1986 (4) SA 192 (T)
— 427
— 107, 427
— 171, 397
S v Balhuber 1987 1 PH H22 (A)
— 571, 595
S v Balkwell and Another 2006 (1) SACR 60 (N)
— 428
S v Baloyi 2000 (1) SACR 81 (CC)
— 17, 36, 553, 617
S v Banana 2000 (2) SACR 1 (ZS)
— 84, 596
S v Banda and Others 1990 (2) SACR 44 (B)
— 418
S v Bashing and Others 1997 (2) SACR 390 (W)
— 486
S v Basil Simons (unreported, DCLD; case no 84/88; 13/6/88)
— 410
S v Basson 2000 (2) SACR 188 (T)
— 418
— 418
— 400
S v Basson 2007 (1) SACR 566 (CC)
— 151
S v Beahan 1990 (3) SA 18 (ZS)
— 588
S v Becket 1987 (4) SA 8 (C)
— 609
S v Bengu 1965 (1) SA 298 (N)
— 574
S v Bergh 1976 (4) SA 857 (A)
— 109, 112, 115, 472, 477-478, 570
S v Bergh 2006 (2) SACR 225 (N)
— 115
S v Bertrand 1975 (4) SA 142 (C)
— 99
S v Bester 2004 (2) SACR 59 (C)
— 522
S v Bezuidenhout 1991 (1) SACR 43 (A)
— 389
S v Bhengu 1998 (2) SACR 231 (N)
— 600
S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC)
— 540, 554
S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC)
— 554, 558-560
S v Bierman 2002 (2) SACR 219 (CC)
— 167
S v Binta 1993 (2) SACR 553 (C)
— 147, 253
S v Blank 1995 (1) SACR 62 (A)
— 526
Page 674
S v Blom 1992 (1) SACR 649 (E)

— 104, 362, 426, 571, 573
S v BM 2014 (2) SACR 23 (SCA)
— 395
S v Boeck 2000 (2) SACR 185 (T)
— 322
S v Boesak 2000 (1) SACR 633 (SCA)
— 428, 587, 598
S v Boesak 2001 (1) SA 912 (CC)
— 336, 554
S v Boesak 2001 (1) SACR 1 (CC)
— 338, 394, 428, 583, 586
S v Boesman and Others 1990 (2) SACR 389 (E)
— 165, 220, 449
S v Bongani 2001 (1) SACR 670 (C)
— 415
S v Booi and Another 2005 (1) SACR 599 (B)
— 415
S v Botha and Others (2) 1995 (2) SACR 605 (W)
— 136, 149-150, 368
S v Botha en ’n Ander 2002 (1) SACR 222 (SCA)
— 70
S v Bothma 1971 (1) SA 332 (C)
— 6, 389
S v Boyce 1990 (1) SACR 13 (T)
— 104, 106
S v Brand 1998 (1) SACR 296 (C)
— 526
S v Britz 1963 (1) SA 394 (T)
— 511
S v Britz 1994 (2) SACR 687 (W)
— 148
S v Brophy and Another 2007 (2) SACR 56 (W)
— 526
S v Brown en ’n Ander 1996 (2) SACR 49 (NC)
— 252, 277, 335, 462-463, 585-587
S v Bruinders 2012 (1) SACR 25 (WCC)
— 70
S v Bruiners en ’n Ander 1998 (2) SACR 432 (SE)
— 493
S v Brumpton 1976 (3) SA 236 (T)
— 403
S v Buda and Others 2004 (1) SACR 9 (T)
— 252, 348, 350
S v Burger and Others 2010 (2) SACR 1 (SCA)
— 23, 577
S v Buys 1988 (2) SA 201 (O)
— 549
S v C 1965 (3) SA 105 (N)
— 595
S v Calitz en ’n Ander 2003 (1) SACR 116 (SCA)
— 599
S v Camane 1964 (2) SA 596 (N)
— 379
S v Campbell and Others 1991 (1) SACR 435 (Nm)
— 608
S v Carolus 2008 (2) SACR 207 (SCA)
— 590
S v Carstens 2012 (1) SACR 485 (WCC)
— 295, 568, 603
S v Carter 2014 (1) SACR 517 (NCK)
— 599-600
S v Cekiso and Another 1990 (4) SA 20 (E)
— 297-298
S v Cele 1965 (1) SA 82 (A)
— 347, 355, 397
S v Cele 1985 (4) SA 767 (A)
— 374
S v Chabalala 2003 (1) SACR 134 (SCA)
— 585-586, 591
S v Chapman 1997 (2) SACR 3 (SCA)
— 595
S v Chinamasa 2001 (1) SACR 278 (ZS)
— 553
S v Chipape 2010 (1) SACR 245 (GNP)
— 518
S v Chouhan 1987 (2) SA 315 (ZS)
— 589
S v Chretien 1981 (1) SA 1097 (A)
— 604
S v Christie 1982 (1) SA 464 (A)
— 364
S v Civa 1974 (3) SA 844 (T)
— 568, 575
S v Claassen 1976 (2) SA 281 (O)
— 103
S v Cloete and Another 1999 (2) SACR 137 (C)
— 243, 264
S v Cloete 1994 (1) SACR 420 (A)
— 328, 353, 599
S v Coetzee and Others 1997 (3) SA 527 (CC)
— 540, 554, 557-561
S v Collop 1981 (1) SA 150 (A)
— 108
S v Colt and Others 1992 (2) SACR 120 (E)
— 138, 363, 371
S v Congola 2002 (2) SACR 383 (T)
— 294
S v Cooper and Others 1976 (2) SA 875 (T)
— 579
Page 675
S v Cornelissen; Cornelissen v Zeelie NO en Andere 1994 (2) SACR 41 (W)

— 167
S v Cornelius and Another 2008 (1) SACR 96 (C)
— 145
S v Cornick and Another 2007 (2) SACR 115 (SCA)
— 116, 122, 587, 614
S v Cronje 1983 (3) SA 739 (W)
— 567
S v Crossberg 2008 (2) SACR 317 (SCA)
— 568, 576, 587, 614
S v CT 2012 (2) SACR 517 (GNP)
— 415
S v Cunningham 1996 (1) SACR 631 (A)
— 608
S v Cwele and Another 2011 (1) SACR 409 (KZP)
— 205, 209, 222, 268
S v D and Another 1992 (1) SACR 143 (Nm)
— 595-596
S v D 1991 (2) SACR 543 (A)
— 81, 86
S v D 1999 (1) SACR 122 (NC)
— 82, 88
S v Daba 1996 (1) SACR 243 (E)
— 590-591
S v Damalis 1984 (2) SA 105 (T)
— 71, 397, 482
S v Damons and Others 1997 (2) SACR 218 (W)
— 154
S v Daniels en ’n Ander 1983 (3) SA 275 (A)
— 154, 505, 507, 510
S v Danster (unreported EC decision, case no CA 392/2005, 6 Dec 2007)
— 261
S v Davidson 1964 (1) SA 192 (T)
— 509
S v DD 2015 (1) SACR 165 (NCK)
— 399
S v De Blom 1977 (3) SA 513 (A)
— 602
S v De Grandhomme unreported CPD decision, case no ss 18/97, 4 Dec 1997
— 416
S v De Jager 1965 (2) SA 612 (A)
— 468
S v De Kock 1995 (1) SACR 299 (T)
— 18
S v De Leeuw 1990 (2) SACR 165 (NC)
— 104
S v De Ruiter 2004 (1) SACR 332 (W)
— 586
S v De Villiers en ’n Ander 1999 (1) SACR 297 (O)
— 120, 122, 376
S v De Vries and Others 2012 (1) SACR 186 (SCA)
— 590
S v De Vries 1989 (1) SA 228 (A)
— 356, 358, 372-373
S v De Vries 1995 (1) SACR 662 (T)
— 277
S v Delange 1972 (1) SA 139 (C)
— 524
S v Delport 1968 PH H127 (A)
— 607
S v Deppe & another [2013] ZASCA 4
— 577
S v Desai 1997 (1) SACR 38 (W)
— 26, 220, 279
S v Devoy 1971 (3) SA 899 (A)
— 521
S v Dhlamini and Another 1971 (1) SA 807 (A)
— 370
S v Dhlamini 1966 (4) SA 149 (N)
— 457
S v Dhlaminien Andere 1981 (3) SA 1105 (W)
— 355-356
S v Dial 2006 (1) SACR 395 (E)
— 424
S v Dickenson 1982 (3) SA 84 (A)
— 446
S v Dingoos 1980 (1) SA 595 (O)
— 509
S v Dipholo 1983 (4) SA 757 (T)
— 394
S v Dippenaar en ’n Ander 1990 (1) SACR 208 (T)
— 428
S v Dladla 1965 (3) SA 146 (T)
— 18
S v Dladla 1980 (1) SA 526 (A)
— 589
S v Dladla 2011 (1) SACR 80 (KZP)
— 152, 451, 453
S v Dlamini and Another 2008 (1) SACR 501 (N)
— 69-70
S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC)
— 18, 150, 152, 190, 297, 367
S v Dlamini 1968 (3) SA 316 (N)
— 18
S v Dlamini 1973 (1) SA 144 (A)
— 141
Page 676
S v Dlamini 2014 (1) SACR 530 (GP)

— 152
S v Domingo 2002 (1) SACR 641 (C)
— 281
S v Domingo 2005 (1) SACR 193 (C)
— 417
S v Dos Santos and Another 2010 (2) SACR 382 (SCA)
— 264, 275, 578
S v Douglas 1993 1 PH F14 (C)
— 428
S v Du Toit en Andere 2004 (1) SACR 341 (T)
— 160
S v Dube 2000 (1) SACR 53 (N)
— 237-238, 279, 427
S v Duna and Others 1984 (2) SA 591 (CkS)
— 146, 254, 378, 381
S v Dyani 2004 (2) SACR 365 (E)
— 153
S v Dyira 2010 (1) SACR 78 (ECG)
— 593
S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC)
— 18, 242, 553
S v Eadie 2002 (1) SACR 663 (SCA)
— 607-608
S v Edley 1970 (2) SA 223 (N)
— 94
S v Engelbrecht 2005 (2) SACR 41 (W)
— 107
S v Erasmus 1995 (2) SACR 373 (E)
— 358, 572-573
S v Essack and Another 1974 (1) SA 1 (A)
— 568
S v Essop 2014 (2) SACR 495 (KZP)
— 394
S v Evans 1981 (4) SA 52 (C)
— 134, 154, 512
S v Eyssen 2009 (1) SACR 406 (SCA)
— 588
S v F and Others 1967 (4) SA 639 (W)
— 361
S v F 1989 (3) SA 847 (A)
— 595
S v F 1999 (1) SACR 571 (C)
— 412, 415-417
S v Faltein 1990 2 PH H105 (E)
— 98
S v Fani and Others 1994 (1) SACR 635 (E)
— 78
S v Felix and Another 1980 (4) SA 604 (A)
— 599
S v Ferreira and Others 2004 (2) SACR 454 (SCA)
— 99
S v Ffrench-Beytagh (2) 1971 (4) SA 426 (T)
— 418
S v Ffrench-Beytagh (3) 1971 (4) SA 571 (T)
— 397, 482
S v Ffrench-Beytagh 1972 (3) SA 430 (A)
— 344
S v Fikizolo 1978 (2) SA 676 (NC)
— 512
S v Filani 2012 (1) SACR 508 (ECG)
— 95
S v Forbes and Another 1970 (2) SA 594 (C)
— 220, 227
S v Fortuin 2008 (1) SACR 511 (C)
— 614
S v Fourie en ’n Ander 1972 (1) SA 341 (T)
— 165
S v Fourie 1973 (1) SA 100 (D)
— 15, 22
S v Francis 1991 (1) SACR 198 (A)
— 377, 576, 584, 588
S v Francis 1999 (1) SACR 650 (SCA)
— 607
S v Fransman 2000 (1) SACR 99 (W)
— 557
S v Fraser and Others [2005] 2 All SA 209 (N)
— 146
S v Frazenburg and Others 2004 (1) SACR 182 (E)
— 590, 599
S v Fuhri 1994 (2) SACR 829 (A)
— 426-427, 446, 522
S v Gaba 1985 (4) SA 734 (A)
— 356, 372-373
S v Gabaatlhole 2013 (1) SACR 471 (NCK)
— 577
S v Gabaatlholwe and Another 2003 (1) SACR 313 (SCA)
— 465
S v Gambushe 1997 (1) SACR 638 (N)
— 16-17
S v Gasa and Others 1998 (1) SACR 446 (D)
— 142, 225-226, 244, 252
S v Gcaba 1965 (4) SA 325 (N)
— 361
S v Gcali 1992 (1) SACR 372 (Tk)
— 171
S v Gentle 1983 (3) SA 45 (N)
— 98
S v Gentle 2005 (1) SACR 420 (SCA)
— 125, 570, 597-598, 614
Page 677
S v Gerbers 1997 (2) SACR 601 (SCA)

— 401, 427
S v Gidi and Another 1984 (4) SA 537 (C)
— 395
S v Gk 2013 (2) SACR 505 (WCC)
— 37-38
S v Glegg 1973 (1) SA 34 (A)
— 613
S v Gobozi 1975 (3) SA 88 (E)
— 394, 583
S v Gokool 1965 (3) SA 461 (N)
— 49
S v Gope and Others 1993 (2) SACR 92 (Ck)
— 343, 514
S v Gouws 1967 (4) SA 527 (E)
— 99
S v Gouws 1968 (4) SA 354 (GW)
— 343
S v Govazela 1987 (4) SA 297 (O)
— 394
S v Govender and Others 2006 (1) SACR 322 (E)
— 494
S v Gquma and Others (2) 1994 (2) SACR 182 (C)
— 373
S v Green and Another 2006 (1) SACR 603 (SCA)
— 191
S v Green 1992 (1) SACR 326 (W)
— 81
S v Groenewald 2005 (2) SACR 597 (SCA)
— 505-506
S v Groesbeek en ’n Ander (1) 1969 (4) SA 383 (O)
— 458
S v Grove-Mitchell 1975 (3) SA 417 (A)
— 328, 350, 359
S v GS 2010 (2) SACR 467 (SCA)
— 121, 128, 598
S v Gumede 1978 1 PH H81 (N)
— 402
S v Gumede 1998 5 BCLR 530 (D)
— 143, 199, 201, 224-225, 276-277
S v Gwenya 1995 (2) SACR 522 (E)
— 402
S v Gxokwe and Others 1992 (2) SACR 355 (C)
— 372-373
S v H 1981 (2) SA 586 (SWA)
— 93
S v Haasbroek 1969 (2) SA 624 (A)
— 95
S v Hadebe and Others 1997 (2) SACR 641 (SCA)
— 600
S v Halgryn 2002 (2) SACR 211 (SCA)
— 145
S v Hammer and Others 1994 (2) SACR 496 (C)
— 169, 221-223, 227, 278
S v Hammond 2004 (2) SACR 303 (SCA)
— 125, 570-571, 597
S v Hammond 2008 (1) SACR 476 (SCA)
— 125, 279
S v Hancock 1969 (3) SA 602 (N)
— 475, 489
S v Hanekom 2011 (1) SACR 430 (WCC)
— 114, 570, 593
S v Harper and Another 1981 (1) SA 88 (D)
— 343, 440-441
S v Harris 1965 (2) SA 340 (A)
— 106, 108
S v Hassen and Another 1997 (1) SACR 247 (T)
— 279
S v Hassim and Others 1972 (1) SA 200 (N)
— 189
S v Hassim and Others 1973 (3) SA 443 (A)
— 418
S v Hayes en ’n Ander 1998 (1) SACR 625 (O)
— 279
S v Heilig 1999 (1) SACR 379 (W)
— 518, 523
S v Heller and Another (1) 1964 (1) SA 520 (W)
— 109
S v Heller and Another (2) 1964 (1) SA 524 (W)
— 609
S v Hena and Another 2006 (2) SACR 33 (SE)
— 208, 218, 238, 269, 273, 276, 336
S v Heslop 2007 (1) SACR 461 (SCA)
— 576
S v Heyman and Another 1966 (4) SA 598 (A)
— 136, 138
S v Hlalikaya and Others 1997 (1) SACR 613 (SE)
— 149, 263, 276
S v Hlangabezo and Others 2008 (1) SACR 218 (E)
— 593
S v Hlapezula and Others 1965 (4) SA 439 (A)
— 586, 588
S v Hlati 2000 (2) SACR 325 (N)
— 70
S v Hlekani 1964 (4) SA 429 (E)
— 366
S v Hlongwa 1979 (4) SA 112 (D)
— 18, 70
S v Hlongwa 1991 (1) SACR 583 (A)
— 588
Page 678
S v Hlongwa 2002 (2) SACR 37 (T)

— 318, 335, 463, 585-587
S v Hlongwane 1992 (2) SACR 484 (N)
— 587
S v Hoare and Others 1982 (3) SA 306 (N)
— 418
S v Hoho 1999 (2) SACR 159 (C)
— 151, 380
S v Hoho 2009 (1) SACR 276 (SCA)
— 380
S v Holshausen 1984 (4) SA 852 (A)
— 328
S v Howells 1999 (1) SACR 675 (C)
— 526
S v Hudson and Others 1998 (2) SACR 359 (W)
— 610
S v Huma and Another (2) 1995 (2) SACR 411 (W)
— 142, 147, 254
S v Imene 1979 (2) SA 710 (A)
— 516
S v Ipeleng 1993 (2) SACR 185 (T)
— 395
S v Isaacs and Another 2007 (1) SACR 43 (C)
— 614
S v Isaacs 2002 (1) SACR 176 (C)
— 429
S v Ismail and Others (1) 1965 (1) SA 446 (N)
— 379, 381
S v Ismail 2006 (1) SACR 593 (C)
— 392
S v J 1990 (1) SACR 639 (C)
— 185
S v Jackson 1998 (1) SACR 470 (SCA)
— 595-598
S v Jacobs 1978 (1) SA 1176 (C)
— 402
S v Jaipal 2005 (1) SACR 215 (CC)
— 17
S v Jama and Another 1998 (2) SACR 237 (N)
— 610
S v Jama and Others 1989 (3) SA 427 (A)
— 568
S v Janse Van Rensburg and Another 2009 (2) SACR 216 (C)
— 614
S v Jantjie and Others 1992 (1) SACR 24 (SE)
— 370
S v Jantjies 1999 (1) SACR 32 (C)
— 539
S v Januarie and Another 1980 (2) SA 598 (C)
— 98
S v Januarie en Andere 1991 (2) SACR 682 (SE)
— 364
S v January; Prokureur-Generaal, Natal v Khumalo 1994 (2) SACR 801 (A)
— 358, 378-380
S v January 1995 (1) SACR 202 (O)
— 87
S v Jeniker en ’n Ander 1994 (1) SACR 141 (A)
— 239, 376
S v Jija and Others 1991 (2) SA 52 (E)
— 185
S v Jika and Others 1991 (2) SACR 489 (E)
— 369, 371
S v Jili 1989 (4) SA 921 (N)
— 383
S v Jochems 1991 (1) SACR 208 (A)
— 576, 592
S v Johannes 1980 (1) SA 531 (A)
— 589
S v Jones 2004 (1) SACR 420 (C)
— 77, 108, 597
S v Joors 2004 (1) SACR 494 (C)
— 401
S v Jordaan 1992 (2) SACR 498 (A)
— 379
S v Josephs 2001 (1) SACR 659 (C)
— 190
S v Joubert 1971 (3) SA 924 (E)
— 109
S v Joubert 1998 (2) SACR 718 (C)
— 18, 152
S v Julies 1996 (4) SA 313 (CC)
— 559
S v K and Another 1999 (2) SACR 388 (C)
— 356, 371
S v K 2008 (1) SACR 84 (C)
— 598
S v Kalogoropoulos 1993 (1) SACR 12 (A)
— 608
S v Kampher 1997 (2) SACR 418 (C)
— 526
S v Katamba 2000 (1) SACR 162 (NmS)
— 394, 533, 596
S v Katoo 2005 (1) SACR 522 (SCA)
— 394, 424, 451-452
S v Kearney 1964 (2) SA 495 (A)
— 161, 571
S v Kekana 2014 JDR 2139 (SCA)
— 511
S v Kekane and Others 1986 (4) SA 466 (W)
— 369
Page 679
S v Kelly 1980 (3) SA 301 (A)

— 409, 575
S v Khan 1997 (2) SACR 611 (SCA)
— 142, 364
S v Khan 2010 (2) SACR 476 (KZP)
— 143-144
S v Khanyapa 1979 (1) SA 824 (A)
— 110
S v Khanyile and Another 1988 (3) SA 795 (N)
— 145
S v Khomunala and Another 1998 (1) SACR 362 (V)
— 463, 587
S v Khoza en Andere 1984 (1) SA 57 (A)
— 370
S v Khoza 1982 (3) SA 1019 (A)
— 599
S v Khumalo en Andere 1991 (4) SA 310 (A)
— 592
S v Khumalo 1992 (1) SACR 28 (C)
— 364
S v Khumalo 1992 (2) SACR 411 (N)
— 142, 379
S v Khumalo 1998 (1) SACR 672 (N)
— 588
S v Khumalo 2013 (1) SACR 96 (KZP)
— 511
S v Khuzwayo 1969 (1) SA 70 (N)
— 522
S v Khuzwayo 1990 (1) SACR 365 (A)
— 356, 372
S v Kibido 1988 (1) SA 802 (C)
— 394
S v Kidson 1999 (1) SACR 338 (W)
— 221-222, 225, 231, 238, 276, 427
S v Kimimbi 1963 (3) SA 250 (C)
— 107, 426
S v Kleynhans 2005 (2) SACR 582 (W)
— 99
S v Kok 1998 (1) SACR 532 (N)
— 607
S v Kolea 2013 (1) SACR 409 (SCA)
— 590
S v Kondile en Andere 1995 (1) SACR 394 (SE)
— 365
S v Kondo 2012 (2) NR 415 (NLD)
— 511
S v Koralev and Another 2006 (2) SACR 298 (N)
— 427, 578
S v Kotzè 2010 (1) SACR 100 (SCA)
— 279-280
S v Kotze 1994 (2) SACR 214 (O)
— 103, 106
S v Kruger en Andere 1987 (4) SA 326 (T)
— 529
S v Kubeka 1982 (1) SA 534 (W)
— 395, 602
S v Kumalo 1983 (2) SA 379 (A)
— 571-572
S v Kuzwayo 1964 (3) SA 55 (N)
— 506
S v Kwezi 2007 (2) SACR 612 (E)
— 318-319
S v L 1992 (3) SA 713 (E)
— 429
S v Lachman 2010 (2) SACR 52 (SCA)
— 279
S v Lalamani 1981 (1) SA 999 (V)
— 361
S v Langa and Others 1998 (1) SACR 21 (T)
— 144, 225, 248
S v Langa 2010 (1) SACR 47 (GNP)
— 143
S v Lange and Others 1998 (1) SACR 1 (SCA)
— 585
S v Latha and Another 1994 (1) SACR 447 (A)
— 370
S v Latha and Another 2012 (2) SACR 30 (ECG)
— 511
S v Lavhengwa 1996 (2) SACR 453 (W)
— 153, 335, 585
S v Lawrence; S v Negal; S v Solberg 1997 (2) SACR 540 (CC)
— 533
S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC)
— 561
S v Le Roux and Others 2010 (2) SACR 11 (SCA)
— 587
S v Lebone 1965 (2) SA 837 (A)
— 362, 372-373
S v Leepile and Others (3) 1986 (2) SA 352 (W)
— 456
S v Legote en ’n Ander 2001 (2) SACR 179 (SCA)
— 465, 611
S v Lekhetho 2002 (2) SACR 13 (O)
— 153, 394
S v Lemtongthai 2014 (1) SACR 495 (GJ)
— 526
S v Leonards 1997 (1) SACR 307 (C)
— 518
S v Lesito 1996 (2) SACR 682 (O)
— 395, 613
Page 680
S v Letimela 1979 (2) SA 332 (B)

— 99
S v Letoba 1993 (2) SACR 614 (W)
— 581
S v Letsedi 1963 (2) SA 471 (A)
— 588-589
S v Letsoko and Others 1964 (4) SA 768 (A)
— 77, 80-81, 336, 371, 584
S v Libazi and Another 2010 (2) SACR 233 (SCA)
— 301
S v Liebenberg 2005 (2) SACR 355 (SCA)
— 604
S v Lin [2010] 1 All SA 358 (W)
— 389
S v Lindhorst 2000 (2) SACR 161 (E)
— 511, 513
S v Litako and Others 2014 (2) SACR 431 (SCA)
— 295, 341
S v Long 1988 (1) SA 216 (NC)
— 510
S v Lotter 2008 (2) SACR 595 (C)
— 395
S v Lottering 1999 12 BCLR 1478 (N)
— 139, 230, 241, 243, 245-246, 267, 272, 277
S v Loubscher 1979 (3) SA 47 (A)
— 106
S v Lourens 2000 (2) SACR 164 (E)
— 511, 513, 518
S v Louw and Others 1996 (2) SACR 563 (W)
— 372
S v Louw 2000 (2) SACR 714 (T)
— 456
S v Lubaxa 2001 (2) SACR 703 (SCA)
— 611
S v Lubbe 1966 (2) SA 70 (O)
— 403
S v Lukas and Others 1991 (2) SACR 429 (E)
— 18
S v Lukhandile 1999 (1) SACR 568 (C)
— 460, 582
S v Lund 1987 (4) SA 548 (N)
— 517, 524
S v Lungile and Another 1999 (2) SACR 597 (SCA)
— 455
S v Lwane 1966 (2) SA 433 (A)
— 134-136, 141, 174, 207
S v M and Another 1979 (4) SA 564 (B)
— 38
S v M and Others 1995 (1) SACR 667 (BA)
— 76-77, 82-83
S v M 1965 (4) SA 577 (N)
— 520
S v M 1967 (1) SA 70 (N)
— 512
S v M 1972 (4) SA 361 (T)
— 593
S v M 1980 (1) SA 586 (B)
— 125
S v M 1985 (1) SA 1 (A)
— 82
S v M 1989 (4) SA 421 (T)
— 394
S v M 1991 (1) SACR 91 (T)
— 105
S v M 1992 (2) SACR 188 (W)
— 595
S v M 1993 (2) SACR 487 (A)
— 169, 365
S v M 1997 (2) SACR 682 (C)
— 595
S v M 1999 (1) SACR 664 (C)
— 74, 121
S v M 1999 (2) SACR 548 (SCA)
— 102, 597-598
S v M 2000 (1) SACR 484 (W)
— 518
S v M 2000 (2) SACR 474 (N)
— 162, 243
S v M 2002 (2) SACR 411 (SCA)
— 72, 74, 198, 221, 243, 254, 274, 421
S v M 2006 (1) SACR 67 (SCA)
— 570, 613
S v M 2006 (1) SACR 135 (SCA)
— 576-577, 595-596
S v M 2007 (2) SACR 60 (W)
— 72, 77-78, 81-82, 399
S v Maake 2001 (2) SACR 288 (W)
— 373, 379
S v Maake 2011 (1) SACR 263 (SCA)
— 16, 566, 599-600
S v Maasdorp 2008 (2) SACR 296 (NC)
— 371
S v Mabaso and Another 1990 (3) SA 185 (A)
— 139, 154
S v Mabaso 1978 (3) SA 5 (O)
— 589
S v Mabena and Another 2007 (1) SACR 482 (SCA)
— 606
Page 681
S v Mabona 1973 (2) SA 614 (A)

— 389
S v Madiba 1998 1 BCLR 38 (D)
— 199, 241, 270, 272
S v Madonsela 2012 (2) SACR 456 (GSJ)
— 539, 580
S v Maelangwe 1999 (1) SACR 133 (NC)
— 526, 572, 599
S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA)
— 493
S v Mafuya and Others (1) 1992 (2) SACR 370 (W)
— 363
S v Mafuya and Others (2) 1992 (2) SACR 381 (W)
— 373
S v Magagula 1981 (1) SA 771 (T)
— 375
S v Magagula 2001 (2) SACR 123 (T)
— 607
S v Magalane 1999 (1) SACR 627 (W)
— 402
S v Magano 1990 2 PH H135 (B)
— 614
S v Magubane 1975 (3) SA 288 (N)
— 513
S v Magwaza 1985 (3) SA 29 (A)
— 370, 377
S v Magxwalisa and Others 1984 (2) SA 314 (N)
— 608
S v Mahlabane 1990 (2) SACR 558 (A)
— 370, 378
S v Mahlangu and Another 2011 (2) SACR 164 (SCA)
— 589, 594
S v Mahlangu 1985 (4) SA 447 (W)
— 512
S v Mahlangu 2000 (1) SACR 565 (W)
— 157
S v Mahlasela 2005 (1) SACR 269 (N)
— 402
S v Majikazana 2012 (2) SACR 107 (SCA)
— 70
S v Makathini (unreported decision of the DCLD, case no CC 73/97, dated 21 Nov 1997)
— 499
S v Makeba and Another 2003 (2) SACR 128 (SCA)
— 383
S v Makhandela 2007 (2) SACR 620 (W)
— 153
S v Makhanya and Another 2002 (3) SA 201 (N)
— 279
S v Makhubo 1990 (2) SACR 320 (O)
— 463, 582-583, 587
S v Makofane 1998 (1) SACR 603 (T)
— 610-611
S v Makwanyane and Another 1995 (2) SACR 1 (CC)
— 528, 533
S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (2) SACR 1 (CC)
— 266, 450
S v Malatji and Another 1998 (2) SACR 622 (W)
— 152-153
S v Malcolm 1999 (1) SACR 49 (SE)
— 453
S v Malebo en Andere 1979 (2) SA 636 (B)
— 353, 510
S v Malefane 1974 (4) SA 613 (O)
— 99
S v Malefo en Andere 1998 (1) SACR 127 (W)
— 143, 220, 225-226, 228, 592
S v Maleka 2005 (2) SACR 284 (SCA)
— 338, 507
S v Malele 1975 (4) SA 128 (T)
— 394
S v Malepane and Another 1979 (1) SA 1009 (W)
— 575
S v Malindi 1983 (4) SA 99 (T)
— 426
S v Malinga and Others 1963 (1) SA 692 (A)
— 278, 589
S v Malinga 1962 (3) SA 174 (D)
— 70
S v Malinga 1992 (1) SACR 138 (A)
— 373
S v Malinga 2002 (1) SACR 615 (N)
— 106, 389
S v Mamabolo (E Tv and Others Intervening) 2001 (1) SACR 686 (CC)
— 553
S v Manale 2000 (2) SACR 666 (NC)
— 153
S v Manamela and Another (Director-General of Justice Intervening) 2000 (1) SACR 414
(CC)
— 556, 610
S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC)
— 134, 330
S v Mangena and Another 2012 (2) SACR 170 (GSJ)
— 344, 351
Page 682
S v Manicum 1998 (2) SACR 400 (N)
— 394
S v Manqaba 2005 (2) SACR 489 (W)
— 392, 395
S v Mantini 1990 (2) SACR 236 (E)
— 518
S v Manuel en Andere 1997 (2) SACR 505 (C)
— 169, 225-226, 365
S v Manzi 2004 (2) SA 133 (N)
— 405
S v Manzini 2007 (2) SACR 107 (W)
— 389
S v Maphanga 2001 (2) SACR 371 (W)
— 16-17
S v Maphanga 2004 (1) SA 615 (N)
— 17
S v Maphumulo 1996 (2) SACR 84 (N)
— 147, 254
S v Maputle and Another 2003 (2) SACR 15 (SCA)
— 278
S v Maqashalala 1992 (1) SACR 620 (Tk)
— 580
S v Maqhina 2001 (1) SACR 241 (T)
— 430
S v Maradu 1994 (2) SACR 410 (W)
— 590
S v Marais 2010 (2) SACR 606 (CC)
— 468
S v Mark and Another 2001 (1) SACR 572 (C)
— 233-234, 236, 240, 273
S v Martin 1996 (1) SACR 172 (W)
— 511
S v Marx and Another 1996 (2) SACR 140 (W)
— 142, 225, 248, 252, 271
S v Marx 2009 (2) SACR 562 (ECG)
— 142
S v Masakale and Another 2009 (1) SACR 295 (W)
— 372-373
S v Maseko 1996 (2) SACR 91 (W)
— 154
S v Mashiane en Andere 1998 (2) SACR 664 (NC)
— 578
S v Mashile 1993 (2) SACR 67 (A)
— 91, 427
S v Mashiyi and Another 2002 (2) SACR 387 (Tk)
— 441
S v Masilela and Another 1968 (2) SA 558 (A)
— 528-529
S v Masilela en ’n Ander 1987 (4) SA 1 (A)
— 377
S v Masuku and Another 1969 (2) SA 375 (N)
— 588
S v Maswanganyi 2014 (1) SACR 622 (GP)
— 594
S v Mataboge and Others 1991 (1) SACR 539 (B)
— 521
S v Mathabathe 2003 (2) SACR 28 (T)
— 401
S v Mathebula and Another 1997 (1) SACR 10 (W)
— 141-142, 149, 224-225, 239, 252, 262, 276, 381, 609
S v Mathebula 1991 (1) SACR 306 (T)
— 377
S v Mathebula 1996 (2) SACR 231 (T)
— 414-415
S v Mathebula 2010 (1) SACR 55 (SCA)
— 142, 145
S v Mathlare 2000 (2) SACR 515 (SCA)
— 338, 430, 514
S v Mathole and Another 2002 (2) SACR 484 (T)
— 153
S v Mathonsi 2012 (1) SACR 335 (KZP)
— 296, 492, 495-496
S v Matladi 2002 (2) SACR 447 (T)
— 153
S v Matlou and Another 2010 (2) SACR 342 (SCA)
— 380
S v Matshiba 2012 (1) SACR 577 (ECG)
— 518
S v Matthys 1999 (1) SACR 117 (C)
— 402, 465
S v Matwa 2002 (2) SACR 350 (E)
— 590
S v Mauk 1999 (2) SACR 479 (W)
— 190
S v Maunye and Others 2002 (1) SACR 266 (T)
— 138
S v Mavela 1990 (1) SACR 582 (A)
— 370
S v Mavhungu 1988 (3) SA 67 (V)
— 424
S v Mavinini 2009 (1) SACR 523 (SCA)
— 115, 335, 394, 586, 614
S v Mavundla and Another; S v Sibisi 1976 (2) SA 162 (N)
— 423
S v Mavundla 1976 (4) SA 731 (N)
— 423, 507, 513
S v Mavuso 1987 (3) SA 499 (A)
— 52, 69, 87, 110
S v Maweke and Others 1971 (2) SA 327 (A)
— 506
Page 683
S v May 2005 (2) SACR 331 (SCA)

— 590
S v Mayekiso en Andere 1996 (2) SACR 298 (C)
— 223-224, 227, 276-277
S v Mayiya 1997 3 BCLR 386 (C)
— 595
S v Mayo and Another 1990 (1) SACR 659 (E)
— 51
S v Mazibuko and Others 1988 (3) SA 190 (A)
— 69
S v Mbambeli and Others 1993 (2) SACR 388 (E)
— 146, 364
S v Mbambo 1975 (2) SA 549 (A)
— 571
S v Mbambo 1999 (2) SACR 421 (W)
— 153
S v Mbanjwa and Another 2000 (2) SACR 100 (D)
— 302, 308
S v Mbata en Andere 1977 (1) SA 379 (O)
— 461
S v Mbatha en Andere 1987 (2) SA 272 (A)
— 370
S v Mbatha; S v Prinsloo 1996 (1) SACR 371 (CC)
— 554, 558-561
S v Mbatha 1985 (2) SA 26 (D)
— 220
S v Mbathsha 2014 (2) SACR 143 (ECG)
— 512
S v Mbebe 2004 (2) SACR 537 (Ck)
— 402
S v Mbele and Another 1996 (1) SACR 212 (W)
— 297
S v Mbele 1981 (2) SA 738 (A)
— 370, 377-378
S v Mbelo 2003 (1) SACR 84 (NC)
— 508
S v Mbothoma en ’n Ander 1978 (2) SA 530 (O)
— 508
S v Mcasa and Another 2005 (1) SACR 388 (SCA)
— 143, 369, 578
S v Mckenna 1998 (1) SACR 106 (C)
— 140
S v Mcolweni 1973 (3) SA 106 (E)
— 392
S v Mcoseli 2012 (2) SACR 82 (ECG)
— 577, 599
S v Mdali 2009 (1) SACR 259 (C)
— 582
S v Mdladla 1972 (3) SA 53 (N)
— 512
S v Mdlongwa 2010 (2) SACR 419 (SCA)
— 103, 335, 422, 426-427, 590
S v Mdluli and Others 1972 (2) SA 839 (A)
— 370
S v Mdyogolo 2006 (1) SACR 257 (E)
— 372
S v Meaker 1998 (2) SACR 73 (W)
— 558-560
S v Melani and Others 1996 (1) SACR 335 (E)
— 141-142, 223, 225, 252, 364, 380
S v Melani en Andere 1995 (2) SACR 141 (E)
— 223, 380
S v Mello and Another 1999 (2) SACR 255 (CC)
— 554
S v Melrose 1985 (1) SA 720 (ZS)
— 99
S v Mfene 1998 9 BCLR 115 (N)
— 143
S v MG 2010 (2) SACR 66 (ECG)
— 118, 121, 125, 598
S v Mgcina 2007 (1) SACR 82 (T)
— 252, 277
S v Mgibelo 2013 (2) SACR 559 (GSJ)
— 518
S v Mgudu 2008 (1) SACR 71 (N)
— 392, 394, 399, 583
S v Mhetoa 1968 (2) SA 773 (O)
— 94
S v Mhlakaza en Andere 1996 (2) SACR 187 (C)
— 149, 261-262, 276
S v Mhlakaza 1996 (6) BCLR 814 (C)
— 142
S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC)
— 341
S v Mhlongo; S v Nkosi [2015] ZACC 19
— 295
S v Mhlongo 1991 (2) SACR 207 (A)
— 592
S v Mhlungu and Others 1995 (2) SACR 277 (CC)
— 370
S v Mika & others 1973 (2) PH H68 (R)
— 492
S v Miles 1978 (3) SA 407 (N)
— 433-434
S v Minnie 1986 (4) SA 30 (E)
— 375
S v Minnies and Another 1991 (1) SACR 355 (Nm)
— 33, 200
S v Mirirai 1995 (2) SACR 134 (T)
— 519
Page 684
S v Mjikwa 1993 (1) SACR 507 (A)

— 380
S v Mjoli and Another 1981 (3) SA 1233 (A)
— 21, 352, 510, 514, 572
S v Mkhabela 1984 (1) SA 556 (A)
— 91
S v Mkhize and Others 1998 (2) SACR 478 (W)
— 103, 318, 613
S v Mkhize 1978 (2) SA 249 (N)
— 354
S v Mkhize 1999 (2) SACR 632 (W)
— 254, 267-268, 270, 274-275
S v Mkhize 2011 (1) SACR 554 (KZD)
— 365
S v Mkhize 2012 (2) SACR 90 (KZD)
— 74
S v Mkhwanazi 1989 (2) SA 802 (T)
— 523, 525
S v Mkize 1992 (2) SACR 347 (A)
— 328, 369
S v Mkohle 1990 (1) SACR 95 (A)
— 102, 106, 112-113, 427
S v Mkwanazi 1966 (1) SA 736 (A)
— 363-364, 373-374
S v Mlati 1984 (4) SA 629 (A)
— 590
S v Mlimo 2008 (2) SACR 48 (SCA)
— 103
S v Mlomo 1993 (2) SACR 123 (A)
— 373
S v MM 2012 (2) SACR 18 (SCA)
— 389, 577
S v Mmonwa 1990 (1) SA 81 (T)
— 377
S v MN 2010 (2) SACR 225 (KZP)
— 598
S v Mncube en ’n Ander 1991 (3) SA 132 (A)
— 377
S v Mndebele 1995 (1) SACR 278 (A)
— 372
S v Mngeni 2013 (1) SACR 583 (WCC)
— 140
S v Mngogula 1979 (1) SA 525 (T)
— 393
S v Mngomezulu 1972 (1) SA 797 (A)
— 106
S v Mngomezulu 1983 (1) SA 1152 (N)
— 394
S v Mnguni 2014 (2) SACR 595 (GP)
— 424
S v Mnyaka and Others 1990 (4) SA 299 (SE)
— 163
S v Mofokeng 1992 (2) SACR 261 (O)
— 372
S v Mofokeng 1998 (1) SACR 57 (O)
— 585
S v Mogale en ’n Ander 1980 (1) SA 457 (T)
— 369
S v Mogoregi 1978 (3) SA 13 (O)
— 21
S v Mohase 1998 (1) SACR 185 (O)
— 402
S v Mohlathe 2000 (2) SACR 530 (SCA)
— 591
S v Moilwa 1997 (1) SACR 188 (NC)
— 394
S v Mokahtsa 1993 (1) SACR 408 (O)
— 382
S v Mokela 2012 (1) SACR 431 (SCA)
— 16, 600
S v Mokgeledi 1968 (4) SA 335 (A)
— 21
S v Mokgiba 1999 (1) SACR 534 (O)
— 103, 568
S v Mokie 1992 (1) SACR 430 (T)
— 605
S v Mokoena and Others 2006 (1) SACR 29 (W)
— 292, 336, 372
S v Mokoena en Ander 1998 (2) SACR 642 (W)
— 149, 261, 276, 411
S v Mokoena; S v Phaswane 2008 (2) SACR 216 (T)
— 410-412, 416
S v Mokoena 1978 (1) SA 229 (O)
— 375
S v Molautsi 1980 (3) SA 1041a (B)
— 613
S v Molawa; S v Mpengesi 2011 (1) SACR 350 (GSJ)
— 16
S v Molefe and Others 1991 (4) SA 266 (E)
— 364
S v Molefe 1975 (3) SA 495 (T)
— 469, 472
S v Molimi and Another 2006 (2) SACR 8 (SCA)
— 304
S v Molimi 2008 (2) SACR 76 (CC)
— 304, 341, 352, 358, 372, 383
S v Molimi 2008 (3) SA 608 (CC)
— 304
S v Monyane and Others 2001 (1) SACR 115 (T)
— 149, 153, 261, 263, 276, 379, 591
Page 685
S v Monyane and Others 2008 (1) SACR 543 (SCA)

— 336, 568, 586
S v Moolman 1996 (1) SACR 267 (A)
— 112, 115, 129
S v Moos 1998 (1) SACR 372 (C)
— 145, 152-153
S v Morgan and Others 1993 (2) SACR 134 (A)
— 579
S v Moroney 1978 (4) SA 389 (A)
— 22
S v Mosala 1968 (3) SA 523 (T)
— 519
S v Mosendu 1981 (1) SA 323 (O)
— 567
S v Mosoinyane 1998 (1) SACR 583 (T)
— 402, 422
S v Mostert 2006 (1) SACR 560 (N)
— 493
S v Moswathupa 2012 (1) SACR 259 (SCA)
— 518
S v Motara 1963 (2) SA 579 (T)
— 359
S v Motaung 2007 (1) SACR 476 (SE)
— 415
S v Mothlaping en ’n Ander 1988 (3) SA 757 (NC)
— 354
S v Moti 1998 (2) SACR 245 (SCA)
— 79-80, 591
S v Motlhabane and Others 1995 (2) SACR 528 (B)
— 400
S v Motloba 1992 (2) SACR 634 (BA)
— 360, 599
S v Motloutsi 1996 (1) SACR 78 (C)
— 223-224, 226-228, 268
S v Motsepe 1971 (2) SA 475 (T)
— 581
S v Moya 1968 1 PH H148 (GW)
— 53
S v Moyo and Others 2014 (1) SACR 82 (GNP)
— 146, 148
S v Mpetha and Others (1) 1982 (2) SA 253 (C)
— 185
— 464
— 138, 141, 225, 348-349, 356, 363
S v Mpetha and Others 1983 (4) SA 262 (C)
— 608, 613
S v Mpetha 1985 (3) SA 702 (A)
— 139
S v Mphala and Another 1998 (1) SACR 388 (W)
— 205, 215, 224, 240, 246, 253, 264, 269, 352
S v Mphala and Another 1998 (1) SACR 654 (W)
— 149, 217, 261-262, 264, 276
S v Mpharu en ’n Ander 1981 (2) SA 464 (NC)
— 519
S v Mphela 1994 (1) SACR 488 (A)
— 605
S v Mpofu 1993 (2) SACR 109 (N)
— 298, 302, 476, 582
S v Mponda 2007 (2) SACR 245 (C)
— 102, 389, 415
S v Mpumlo and Others 1986 (3) SA 485 (E)
— 426
S v Mriba and Others 1995 (2) SACR 585 (E)
— 372
S v Msane 1977 (4) SA 758 (N)
— 422-423
S v Mseleku and Others 2006 (2) SACR 237 (N)
— 401-402, 464
S v Mseleku 2006 (2) SACR 574 (D)
— 518
S v Mshengu 2009 (2) SACR 316 (SCA)
— 511
S v Mshumpa and Another 2008 (1) SACR 126 (E)
— 167, 364, 588
S v Msimango and Another 2010 (1) SACR 544 (GSJ)
— 302, 392, 400
S v Msithing 2006 (1) SACR 266 (N)
— 401
S v Mtewtwa 1977 (3) SA 628 (E)
— 603
S v Mthembu and Others 1988 (1) SA 145 (A)
— 70
S v Mthembu 2008 (2) SACR 407 (SCA)
— 198, 206, 208, 218, 220, 233-234, 236, 273, 275
S v Mthethwa 2004 (1) SACR 449 (E)
— 144, 248
S v Mthetwa 1972 (3) SA 766 (A)
— 23, 336, 584, 590
S v Mthimkulu 1975 (4) SA 759 (A)
— 103, 522
S v Mtsweni 1985 (1) SA 590 (A)
— 23, 568, 577
S v Muchindu and Others 1994 (2) SACR 467 (W)
— 379
S v Muchindu 2000 (2) SACR 313 (W)
— 373
S v Mudoti 1986 (4) SA 278 (ZS)
— 580
Page 686
S v Muhlaba and Others 1973 (3) SA 141 (R)

— 492
S v Munn 1973 (3) SA 734 (NC)
— 6
S v Mushimba en Andere 1977 (2) SA 829 (A)
— 162, 164, 207, 220, 281
S v Musingadi and Others 2005 (1) SACR 395 (SCA)
— 578, 599
S v Mvambo 1995 (1) SACR 180 (W)
— 187, 375
S v Mvelase 1997 (2) SACR 445 (N)
— 370
S v Mwanyekanga 1993 2 PH H54 (C)
— 576
S v Mzinyathi 1982 (4) SA 118 (T)
— 418
S v N 1979 (4) SA 632 (O)
— 493
S v N 1997 (1) SACR 84 (Tk)
— 169
S v Naidoo and Another 1998 (1) SACR 479 (N)
— 199, 209, 221-222, 229-230, 236, 239-240, 250-251, 264, 268, 276
S v Naidoo 1985 (2) SA 32 (N)
— 317
S v Naidoo 2010 (1) SACR 369 (KZP)
— 280, 583
S v Nala 1965 (4) SA 360 (A)
— 426
S v Nango 1990 (2) SACR 450 (A)
— 579
S v Nangutuuala en ’n Ander 1974 (2) SA 165 (SWA)
— 102
S v Naryan 1998 (2) SACR 345 (W)
— 80, 87
S v Nassar 1995 (1) SACR 212 (Nm)
— 188
S v Ncube and Others 2011 (2) SACR 471 (GSJ)
— 106
S v Ndaba 1981 (3) SA 782 (N)
— 98
S v Ndawonde 2013 (2) SACR 192 (KZD)
— 588
S v Ndhlovu and Others 2001 (1) SACR 85 (W)
— 225, 295
S v Ndhlovu and Others 2002 (2) SACR 325 (SCA)
— 17, 289, 292, 295, 297-300, 303, 321, 341, 495
S v Ndika and Others 2002 (1) SACR 250 (SCA)
— 363, 591-592
S v Ndiki and Others 2008 (2) SACR 252 (Ck)
— 446
S v Ndlangamandla and Another 1999 (1) SACR 391 (W)
— 610, 613
S v Ndlela; S v Janjie; S v Jonas; S v Macgregor; S v Soobramoney; S v Mazeka; S v Naidoo
1984 (4) SA 131 (N)
— 513
S v Ndlela 1984 (1) SA 223 (N)
— 6
S v Ndlovu and Another 1993 (2) SACR 69 (A)
— 303
S v Ndlovu 1986 (1) SA 510 (N)
— 602
S v Ndlovu 1987 (3) SA 827 (N)
— 512
S v Ndlovu 1987 1 PH H37 (A)
— 569
S v Ndlovu 1997 (12) BCLR 1785 (N)
— 143-144, 248
S v Ndlovu 2001 (1) SACR 204 (W)
— 153
S v Ndou 2006 (2) SACR 497 (T)
— 153, 394
S v Nduku 2000 (2) SACR 382 (Tk)
— 554
S v Nduli and Others 1993 (2) SACR 501 (A)
— 599
S v Nduna 2011 (1) SACR 115 (SCA)
— 78, 83
S v Nedzamba 2013 (2) SACR 333 (SCA)
— 415
S v Nel 1987 (4) SA 950 (W)
— 220
S v Nel 1990 (2) SACR 136 (C)
— 54, 90, 93, 487
S v Nel 2013 (1) SACR 155 (GSJ)
— 55
S v Nell 2009 (2) SACR 37 (C)
— 245, 274
S v Nelushi 2006 (1) SACR 462 (V)
— 154
S v Nene and Others (1) 1979 (2) SA 520 (D)
— 463
S v Ngabase and Another 2011 (1) SACR 456 (ECG)
— 599-600
S v Ngcamu and Another 2011 (1) SACR 1 (SCA)
— 590
S v Ngcina 2007 (1) SACR 19 (SCA)
— 590, 592, 604
Page 687
S v Ngcobo 1986 (1) SA 905 (N)

— 590
S v Ngcobo 1998 10 BCLR 1248 (N)
— 143, 243, 265, 276
S v Ngesi 1986 (2) SA 244 (E)
— 42
S v Nglengethwa 1996 (1) SACR 737 (A)
— 373
S v Ngobeni 1981 (1) SA 506 (B)
— 464
S v Ngomane 1979 (3) SA 859 (A)
— 603
S v Ngwani 1990 (1) SACR 449 (N)
— 294, 303
S v Ngwenya and Others 1998 (2) SACR 503 (W)
— 141, 149, 225, 262
S v Ngxumza and Another 2001 (1) SACR 408 (Tk)
— 587, 593
S v Nhlapo and Others 1988 (3) SA 481 (T)
— 165
S v Nieuwoudt (4) 1985 (4) SA 519 (C)
— 180
S v Nieuwoudt 1986 1 PH H3 (C)
— 115
S v Nieuwoudt 1990 (4) SA 217 (A)
— 93-94, 374, 424
S v Nisani en Andere 1987 (2) SA 671 (O)
— 395
S v Njikaza 2002 (2) SACR 481 (C)
— 153
S v Nkabinde 1998 8 BCLR 996 (N)
— 203
S v Nkata and Others 1990 (4) SA 250 (A)
— 162, 164, 372, 374
S v Nkhumeleni 1986 (3) SA 102 (V)
— 318
S v Nkibane 1989 (2) SA 421 (NC)
— 395
S v Nkombani and Another 1963 (4) SA 877 (A)
— 592
S v Nkomo 1975 (3) SA 598 (N)
— 392, 463, 607
S v Nkomo 1990 (1) SACR 682 (ZS)
— 381, 592
S v Nkondo 2000 (1) SACR 358 (W)
— 153
S v Nkosi and Another 2011 (2) SACR 482 (SCA)
— 612
S v Nkosi 2010 (1) SACR 60 (GNP)
— 395
S v Nkuna 2013 (2) SACR 541 (GNP)
— 70
S v Nkunkuma and Others 2014 (2) SACR 168 (SCA)
— 526
S v Nkwanyana and Others 1990 (4) SA 735 (A)
— 462
S v Nkwanyana 1978 (3) SA 404 (N)
— 377, 395
S v Nombewu 1996 (2) SACR 396 (E)
— 140, 143, 225-227, 245, 265, 277-278
S v Nomzaza 1996 (2) SACR 14 (A)
— 150
S v Nortjé 1996 (2) SACR 308 (C)
— 279
S v Nqula 2005 (1) SACR 283 (E)
— 452
S v Nqwakuzayo 2003 (1) SACR 253 (Tk)
— 402
S v Ntanjana 1972 (4) SA 635 (E)
— 582
S v Nthati en ’n Ander 1997 (1) SACR 90 (O)
— 105
S v Ntsele 1997 (2) SACR 740 (CC)
— 554, 558-559
S v Ntsele 1998 (2) SACR 178 (SCA)
— 578, 592, 613
S v Ntuli en ’n Ander 1995 (1) SACR 158 (T)
— 372
S v Ntuli 1993 (2) SACR 599 (W)
— 22, 373
S v Ntuli 1996 (1) SACR 94 (CC)
— 533
S v Ntzweli 2001 (2) SACR 361 (C)
— 276
S v Nyanga 2004 (1) SACR 198 (C)
— 402
S v Nyathe 1988 (2) SA 211 (O)
— 426
S v Nyathi 1978 (2) SA 20 (B)
— 424
S v Nyembe 1982 (1) SA 835 (A)
— 378
S v Nzama and Another 1997 (1) SACR 542 (D)
— 299
S v Nzama and Another 2009 (2) SACR 326 (KZP)
— 370
S v Nzima and Another 2001 (2) SACR 354 (C)
— 153
S v October 1991 (1) SACR 455 (C)
— 353
Page 688
S v Odugo 2001 (1) SACR 560 (W)

— 278, 280
S v Ohlenschlager 1992 (1) SACR 695 (T)
— 278
S v Olifant en ’n Ander 1982 (4) SA 52 (NC)
— 375
S v Olyn 1990 2 PH H107 (B)
— 520
S v Omar 1982 (2) SA 357 (N)
— 395
S v Oosthuizen 1982 (3) SA 571 (T)
— 576
S v Ori 1963 2 PH H165 (D)
— 361
S v Orphanou and Others 1990 (2) SACR 429 (W)
— 389
S v Orrie and Another 2004 (1) SACR 162 (C)
— 148
S v Orrie and Another 2005 (1) SACR 63 (C)
— 139, 143, 248
S v Ostilly and Others 1977 (2) SA 104 (D)
— 608
S v Papiyana 1986 2 PH H115 (A)
— 56
S v Parrow 1973 (1) SA 603 (A)
— 580
S v Patel 1970 (3) SA 565 (W)
— 18
S v Petane 1988 (3) SA 51 (C)
— 528
S v Peters 1992 (1) SACR 292 (E)
— 349
S v Petkar 1988 (3) SA 571 (A)
— 278
S v Peyani 2014 (2) SACR 127 (GP)
— 415
S v Phallo and Others 1999 (2) SACR 558 (SCA)
— 613
S v Phetshwa 1982 (3) SA 404 (E)
— 426
S v Phiri 2014 (1) SACR 211 (GNP)
— 522
S v Phongoma 1976 (1) SA 367 (O)
— 511
S v Phuravhatha and Others 1992 (2) SACR 544 (V)
— 609
S v Pietersen and Others 1987 (4) SA 98 (C)
— 363
S v Pietersen 2002 (1) SACR 330 (C)
— 69
S v Pillay and Others 2004 (2) SACR 419 (SCA)
— 198, 201, 205, 209, 216, 221, 224, 229-230, 245, 251, 258, 261, 264, 266, 273-275
S v Pillay 2011 (2) SACR 409 (SCA)
— 201
S v Pistorius 2014 (2) SACR 314 (SCA)
— 394
S v Pitout 2005 (1) SACR 571 (B)
— 578
S v Pitso 2002 (2) SACR 586 (O)
— 153
S v Post 2001 (1) SACR 326 (W)
— 373, 380
S v Potgieter 1994 (1) SACR 61 (A)
— 603, 607-608
S v Potwana and Others 1994 (1) SACR 159 (A)
— 356, 369, 373
S v Pretorius en ’n Ander 1991 (2) SACR 601 (A)
— 92
S v QN 2012 (1) SACR 380 (KZP)
— 415
S v Qozo 1994 1 BCLR 10 (Ck)
— 609
S v R and Others 2000 (1) SACR 33 (W)
— 149, 254
S v R 1965 (2) SA 463 (W)
— 120
S v R 1990 (1) SACR 413 (ZS)
— 83
S v R 1998 (1) SACR 166 (W)
— 430
S v Radebe and Another 1968 (4) SA 410 (A)
— 348, 358, 362
S v Radebe; S v Mbonani 1988 (1) SA 191 (T)
— 153
S v Raghubar 2013 (1) SACR 398 (SCA)
— 593
S v Rall 1982 (1) SA 828 (A)
— 390, 401
S v Ramabokela and Another 2011 (1) SACR 122 (GNP)
— 590
S v Ramaligela en ’n Ander 1983 (2) SA 424 (V)
— 136
S v Ramalope 1995 (1) SACR 616 (A)
— 401
S v Ramavhale 1996 (1) SACR 639 (A)
— 298, 300, 303
S v Ramgobin and Others 1986 (4) SA 117 (N)
— 103, 109, 220, 424, 427
Page 689
S v Ramroop 1991 (1) SACR 555 (N)

— 587, 589
S v Ramulifho 2013 (1) SACR 388 (SCA)
— 140
S v Ramuongiwa 1997 2 BCLR 268 (V)
— 153, 242
S v Rathumbu 2012 (2) SACR 219 (SCA)
— 295-296, 494-495
S v Ratte 1998 (1) SACR 323 (T)
— 522
S v Rautenbach 2014 (1) SACR 1 (GSJ)
— 299, 399
S v Reddy and Others 1996 (2) SACR 1 (A)
— 578-579
S v Reeding and Another 2005 (2) SACR 631 (C)
— 280
S v Ressel 1968 (4) SA 224 (A)
— 578
S v Rittmann 1992 (2) SACR 110 (Nm)
— 608
S v Roberts and Others 2013 (1) SACR 369 (ECP)
— 268, 394
S v Robertson en Andere 1981 (1) SA 460 (C)
— 348
S v Ross 2013 (1) SACR 77 (WCC)
— 320
S v Rossouw en ’n Ander 1973 (4) SA 608 (SWA)
— 180-181
S v Rossouw 1994 (1) SACR 626 (E)
— 572
S v Roux 2007 (1) SACR 379 (C)
— 389
S v Rowand and Another 2009 (2) SACR 450 (W)
— 188
S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A)
— 144, 242
S v Rululu 2013 (1) SACR 117 (ECG)
— 319, 430
S v S 1990 (1) SACR 5 (A)
— 125, 127, 571, 595
S v S 1995 (1) SACR 50 (ZS)
— 121, 593
S v S [2011] ZASCA 214
— 89-90, 100
S v Saat 2004 (1) SA 593 (W)
— 297-299, 311
S v Sabisa 1993 (2) SACR 525 (TKA)
— 139, 373
S v Safatsa and Others 1988 (1) SA 868 (A)
— 49, 159, 163-164, 174
S v Saloman and Others 2014 (1) SACR 93 (WCC)
— 145, 199, 365
S v Sampson and Another 1989 (3) SA 239 (A)
— 138
S v Sauls and Others 1981 (3) SA 172 (A)
— 594
S v SB 2014 (1) SACR 66 (SCA)
— 430
S v Schietekat 1999 (1) SACR 100 (C)
— 18, 152
S v Scholtz 1996 (2) SACR 40 (NC)
— 335, 463, 585
S v Scholtz 1996 (2) SACR 426 (NmS)
— 172, 185, 188
S v Schultz and Another 1989 (1) SA 465 (T)
— 348-349
S v Schwartz 1989 66 CR 3d 251 (SCC)
— 555
S v Scott-Crossley 2008 (1) SACR 223 (SCA)
— 56, 113, 394, 521, 570, 583
S v Seabi and Another 2003 (1) SACR 620 (T)
— 154
S v Sebatana 1983 (1) SA 809 (O)
— 394
S v Sebejan and Others 1997 (1) SACR 626 (W)
— 141, 143, 225, 248, 276, 485
S v Seboko 1975 (3) SA 343 (O)
— 99
S v Segai 1981 (4) SA 906 (O)
— 426
S v Sejaphale 2000 (1) SACR 603 (T)
— 151
S v Seleke en ’n Ander 1980 (3) SA 745 (A)
— 402, 508, 510
S v Sellem 1992 (2) SACR 19 (A)
— 279
S v Sello 1993 (1) SACR 497 (O)
— 395
S v Serobe and Another 1968 (4) SA 420 (A)
— 383
S v Seseane 2000 (2) SACR 225 (O)
— 139, 142, 243, 246, 273
S v Sesetse en ’n Ander 1981 (3) SA 353 (A)
— 352, 508, 510, 579
S v Sewela 2007 (1) SACR 123 (W)
— 354
S v Sewnarain 2013 (1) SACR 543 (KZP)
— 52, 77, 84
S v Shaba en ’n Ander 1998 (1) SACR 16 (T)
— 142, 225, 252
Page 690
S v Shabalala 1966 (2) SA 297 (A)

— 578
S v Shabalala 1986 (4) SA 734 (A)
— 52, 60, 510
S v Shaik and Others 2007 (1) SACR 142 (D)
— 303, 311
S v Shaik and Others 2008 (1) SACR 1 (CC)
— 535
S v Shandu 1990 (1) SACR 80 (N)
— 592
S v Shangase and Another 1994 (2) SACR 659 (D)
— 356, 383
S v Sheehama 1991 (2) SA 860 (A)
— 138, 147, 358, 378
S v Shepard and Others 1966 (4) SA 530 (W)
— 329
S v Shezi 1987 (1) SA 552 (N)
— 389
S v Shezi 1994 (1) SACR 575 (A)
— 373, 465
S v Shiburi 2004 (2) SACR 314 (W)
— 153, 187
S v Shiini 1997 (1) SACR 212 (Nm)
— 102, 522
S v Shikongo and Others 2000 (1) SACR 190 (NmS)
— 353, 599
S v Shikunga and Another 1997 (2) SACR 470 (NmS)
— 370, 599
S v Shongwe en Andere 1998 (2) SACR 321 (T)
— 143, 199, 201, 209, 224-225, 228, 265
S v Shuping and Others 1983 (2) SA 119 (B)
— 608
S v Sibanda 1993 (1) SACR 691 (ZS)
— 344
S v Sibisi 1998 (1) SACR 248 (SCA)
— 526
S v Sibuyi and Others 1988 (4) SA 879 (T)
— 519
S v Sidziya 1995 12 BCLR 1626 (Tk)
— 585
S v Sigwahla 1967 (4) SA 566 (A)
— 568, 579
S v Sihlani and Another 1966 (3) SA 148 (E)
— 520
S v Sikhipha 2006 (2) SACR 439 (SCA)
— 153
S v Simxadi and Others 1997 (1) SACR 169 (C)
— 394
S v Sinam 1990 (2) SACR 308 (E)
— 98, 581
S v Singh and Another 1975 (1) SA 330 (N)
— 425
S v Singo 2002 (1) SACR 576 (V)
— 553
S v Singo 2002 (2) SACR 160 (CC)
— 610
S v Sinkankanka and Another 1963 (2) SA 531 (A)
— 482, 614
S v Sithebe 1992 (1) SACR 347 (A)
— 373
S v Sithole and Others 1999 (1) SACR 585 (W)
— 614
S v Sithole 1980 (4) SA 148 (D)
— 56
S v Sithole 2005 (2) SACR 504 (SCA)
— 331, 336
S v Sithole 2013 (1) SACR 298 (GNP)
— 320-321
S v Skeal 1990 (1) SACR 162 (ZS)
— 94
S v Skweyiya 1984 (4) SA 712 (A)
— 539, 580
S v Slabbert en Andere 1985 (4) SA 248 (C)
— 21
S v Smile and Another 1998 (1) SACR 688 (SCA)
— 185, 187
S v Smit 1966 (1) SA 638 (O)
— 323
S v Smith en Andere 1978 (3) SA 749 (A)
— 98, 428
S v SMM 2013 (2) SACR 292 (SCA)
— 430, 523, 593
S v Smuts 1972 (4) SA 358 (T)
— 475
S v Snyman 1968 (2) SA 582 (A)
— 336, 568, 584, 588
S v Snyman 1999 8 BCLR 931 (C)
— 151
S v Soci 1998 (2) SACR 275 (E)
— 143, 199, 205, 230, 234-235, 243-245, 247-248, 251, 265, 271, 277-278
S v Soko and Another 1963 (2) SA 248 (T)
— 520
S v Solani en Andere 1987 (4) SA 203 (NC)
— 427
S v Solomons 2004 (1) SACR 137 (C)
— 153
S v Solomons 2005 (2) SACR 432 (C)
— 153
S v Spies and Another 2000 (1) SACR 312 (SCA)
— 280
Page 691
S v Staggie and Another 2003 (1) SACR 232 (C)

— 297, 417
S v Steenberg 1979 (3) SA 513 (B)
— 91, 520
S v Stefaans 1999 (1) SACR 182 (C)
— 413-414
S v Steyn en Andere 1987 (1) SA 353 (W)
— 489-490
S v Steynberg 1983 (3) SA 140 (A)
— 578-579
S v Swanepoel en ’n Ander 1980 (1) SA 144 (NC)
— 23
S v Swanepoel en ’n Ander 1980 (2) SA 81 (NC)
— 464
S v Swart 1965 (3) SA 454 (A)
— 544
S v Swartz and Another 2001 (1) SACR 334 (W)
— 613
S v Swartz 2014 (1) SACR 461 (NCK)
— 511, 544
S v Swato 1977 (3) SA 992 (O)
— 424
S v Sydow 2003 (2) SACR 302 (C)
— 389
S v T 1963 (1) SA 484 (A)
— 118
S v T 2000 (2) SACR 658 (Ck)
— 404, 415
S v T 2005 (2) SACR 318 (E)
— 118, 208, 590-591
S v Talane 1986 (3) SA 196 (A)
— 356, 373
S v Talie 1979 (2) SA 1003 (C)
— 571
S v Tandimali 1998 (1) SACR 119 (C)
— 580
S v Tandwa and Others 2008 (1) SACR 613 (SCA)
— 145, 165, 198, 201, 206, 230, 235, 242-244, 246, 259-260, 263-265, 273, 275, 336,
586, 590, 592
S v Taylor 1991 (2) SACR 69 (C)
— 26, 457
S v Taylor 2006 (1) SACR 51 (C)
— 30
S v Teixeira 1980 (3) SA 755 (A)
— 587
S v Tembani 1999 (1) SACR 192 (W)
— 603
S v Thapedi 2002 (1) SACR 598 (T)
— 149, 261-262
S v Thebus and Another 2002 (2) SACR 566 (SCA)
— 590
S v Thebus and Another 2003 (2) SACR 319 (CC)
— 330-331, 336, 463, 593
S v Thebus and Another 2003 (6) SA 505 (CC)
— 134
S v Thinta and Another 2006 (1) SACR 4 (E)
— 279
S v Thobakgale 2007 (1) SACR 395 (T)
— 153
S v Thole 2012 (2) SACR 306 (FB)
— 511
S v Thomo and Others 1969 (1) SA 385 (A)
— 3
S v Thornhill 1997 (2) SACR 626 (C)
— 550
S v Thurston en ’n Ander 1968 (3) SA 284 (A)
— 54, 451, 453
S v Thusi 2000 4 BCLR 433 (N)
— 70
S v Thusi 2002 12 BCLR 1274 (N)
— 153
S v Thwala 1991 (1) SACR 494 (N)
— 348
S v Thwala 2014 (1) SACR 414 (KZP)
— 539, 580
S v Thys 1974 2 PH H82 (C)
— 124
S v Tilo 2006 (2) SACR 266 (NC)
— 395
S v Toba and Another 2008 (1) SACR 415 (E)
— 468
S v Toka en Andere 1990 (2) SACR 225 (T)
— 166
S v Toubie 2004 (1) SACR 530 (W)
— 614
S v Trainor 2003 (1) SACR 35 (SCA)
— 567, 614
S v Trickett 1973 (3) SA 526 (T)
— 607
S v TS 2015 (1) SACR 489 (WCC)
— 37, 605
S v Tshabalala 1998 (2) SACR 259 (C)
— 18, 297
S v Tshabalala 1999 (1) SACR 163 (T)
— 186, 188-189, 493
S v Tshabalala 2011 (1) SACR 497 (GNP)
— 154, 188-189, 319, 433
S v Tshidiso 2002 (1) SACR 207 (W)
— 153
Page 692
S v Tshomi and Another 1983 (1) SA 1159 (C)

— 166
S v Tshomi en ’n Ander 1983 (3) SA 662 (A)
— 166
S v Tsotetsi and Others (1) 2003 (2) SACR 623 (W)
— 143, 252, 278, 356
S v Tsotetsi and Others (3) 2003 (2) SACR 648 (W)
— 144, 252, 278, 373
S v Tsotsobe and Others 1983 (1) SA 856 (A)
— 379
S v Tswai 1988 (1) SA 851 (C)
— 395
S v Tuge 1966 (4) SA 565 (A)
— 306
S v Tyebela 1989 (2) SA 22 (A)
— 394
S v V 1998 (2) SACR 651 (C)
— 389, 452
S v V 2000 (1) SACR 453 (SCA)
— 576, 593, 614
S v Van As 1991 (2) SACR 74 (W)
— 104, 579
S v Van Aswegen 2001 (2) SACR 97 (SCA)
— 568
S v Van De Venter 2011 (1) SACR 238 (SCA)
— 568
S v Van Den Berg 1996 (1) SACR 19 (Nm)
— 519, 523
S v Van Der Berg and Another 2009 (1) SACR 661 (C)
— 599
S v Van der Merwe and Others 2011 (2) SACR 509 (FB)
— 511
S v Van der Merwe 1997 10 BCLR 1470 (O)
— 249
S v Van der Merwe 1998 (1) SACR 194 (O)
— 138, 143, 226
S v Van Der Meyden 1999 (1) SACR 447 (W)
— 568, 600, 614
S v Van Der Ross 2002 (2) SACR 362 (C)
— 598
S v Van Der Sandt 1997 (2) SACR 116 (W)
— 317-319, 321, 522
S v Van Der Vyver 2007 (1) SACR 69 (C)
— 467
S v Van der Westhuizen 2011 (2) SACR 26 (SCA)
— 510, 587
S v Van Deventer and Another 2012 (2) SACR 263 (WCC)
— 275
S v Van Dyk 1998 (2) SACR 363 (W)
— 598
S v Van Heerden en Ander Sake 2002 (1) SACR 409 (T)
— 153
S v Van Nell 1998 4 BCLR 605 (NC)
— 559
S v Van Rensburg 1987 (3) SA 35 (T)
— 603
S v Van Schoor 1993 (1) SACR 202 (E)
— 136
S v Van Tonder 1971 (1) SA 310 (T)
— 475-476
S v Van Vreden 1969 (2) SA 524 (N)
— 174
S v Van Wyk 1977 (1) SA 412 (NC)
— 567
S v Van Wyk 1982 (2) SA 148 (NC)
— 426
S v Van Wyk 1992 (1) SACR 147 (NmS)
— 584
S v Vause 1997 (2) SACR 395 (N)
— 99
S v Veldthuizen 1982 (3) SA 413 (A)
— 319, 540
S v Vengetsamy 1972 (4) SA 351 (D)
— 456
S v Venter 1996 (1) SACR 664 (A)
— 105
S v Vermaas (2) 1994 (2) SACR 622 (T)
— 366
S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC)
— 145
S v Vilakazi en ’n Ander 1996 (1) SACR 425 (T)
— 276
S v Viljoen 1992 (1) SACR 601 (T)
— 603
S v Viljoen 2003 4 BCLR 450 (T)
— 276
S v Visser 2001 (1) SACR 401 (C)
— 153
S v Volkman 2005 (2) SACR 402 (C)
— 605
S v Vorster and Four Similar Cases 2002 (1) SACR 379 (N)
— 511, 513
S v Vorster en ’n Ander 2006 (1) SACR 611 (T)
— 422
S v Vries 1996 (2) SACR 638 (Nm)
— 521
S v Vumase 2000 (2) SACR 579 (W)
— 140, 253
S v Vumazonke 2000 (1) SACR 619 (C)
— 594
Page 693
S v W 1963 (3) SA 516 (A)

— 363, 373, 514
S v Waldeck 2006 (2) SACR 120 (NC)
— 303, 396
S v Wanna and Others 1993 (1) SACR 582 (Tk)
— 364
S v Webber 1971 (3) SA 754 (A)
— 594
S v Wellem 1993 (2) SACR 18 (E)
— 521
S v Wellington 1991 (1) SACR 144 (Nm)
— 394
S v Williams and Others 1991 (1) SACR 1 (C)
— 349, 363, 460, 582
S v Williams en Andere 1985 (1) SA 750 (C)
— 92
S v Williams 2008 (1) SACR 65 (C)
— 154, 402
S v Wilmot 2002 (2) SACR 145 (SCA)
— 76-77, 468
S v Winnaar 1997 (2) SACR 352 (O)
— 81, 85, 116
S v Xaba en ’n Ander 1978 (1) SA 646 (O)
— 21
S v Xaba 1997 (1) SACR 194 (W)
— 375, 396
S v Yanta 2000 (1) SACR 237 (Tk)
— 297, 400
S v Yawa and Another 1994 (2) SACR 709 (SE)
— 364, 380
S v Yelani 1989 (2) SA 43 (A)
— 328, 599
S v Yende 1987 (3) SA 367 (A)
— 359-360
S v Yengeni and Others (1) 1991 (1) SACR 322 (C)
— 52
S v Yengeni and Others (2) 1990 (4) SA 429 (C)
— 371
— 77
— 372
S v Yolelo 1981 (1) SA 1002 (A)
— 348-349, 355
S v Zenzile 1992 (1) SACR 444 (C)
— 451-452
S v Zimmerie en ’n Ander 1989 (3) SA 484 (C)
— 303, 380, 608
S v Zitha and Others 1999 (2) SACR 404 (W)
— 526
S v Zitha 1993 (1) SACR 718 (A)
— 568, 589-590
S v Zulu and Another 1998 (1) SACR 7 (SCA)
— 364, 374
S v Zuma and Others 1995 (1) SACR 568 (CC)
— 242, 356, 370, 540, 554, 558, 560, 604, 610
S v Zuma and Others 2006 (2) SACR 69 (D)
— 418
S v Zuma 2006 (2) SACR 191 (W)
— 51, 73, 76-77, 81, 103, 370, 578, 597
S v Zwane and Others (3) 1989 (3) SA 253 (W)
— 107
S v Zwane and Others 1993 (1) SACR 748 (W)
— 397, 482-483
S v Zwane and Others 1993 (3) SA 393 (W)
— 397
S v Zwayi 1997 (2) SACR 772 (Ck)
— 149, 263, 330, 592-593
Saayman v Road Accident Fund 2011 (1) SA 106 (SCA)
— 508
Salisbury Bottling Co (Pvt) Ltd v Arista Bakery (Pvt.) Ltd 1973 (3) SA 132 (RA)
— 580
Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC)
— 242
Santam Bpk v Biddulph 2004 (5) SA 586 (SCA)
— 566, 576
Sardi and Others v Standard and General Insurance Co Ltd 1977 (3) SA 776 (A)
— 551, 580
Sasol III (Edms) Bpk v Minister van Wet en Orde en ’n Ander 1991 (3) SA 766 (T)
— 159, 163
Sati v Kitsile 1998 (3) SA 602 (E)
— 528
Saunders v United Kingdom 1996 23 EHRR 313
— 199
Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545
(CC)
— 26, 28, 56, 78, 84, 88, 302
Savoi and Others v National Director of Public Prosecutions and Another 2014 (5) SA 317
(CC)
— 28
Sayed and Another v Levitt NO and Another 2012 (2) SACR 294 (KZP)
— 389
Scagell and Others v Attorney-General of the Western Cape and Others 1997 (2) SA 368
(CC); 1996 (2) SACR 579 (CC)
— 37, 538, 540, 555, 558-561
Scheepers v S 1971 2 PH H101 (NC)
— 180
Page 694
Schimper and Another v Monastery Diamond Mining Corporation (Pty) Ltd and Another 1982
(1) SA 612 (O)
— 315
Schlesinger v Commissioner for Inland Revenue 1964 (3) SA 389 (A)
— 529
Schmerber v California 384 US 757 (1966)
— 147, 253
Schmidt and Another v Jack Brillard Printing Services CC 2000 (3) SA 824 (W)
— 523
Schneider and London v Chapman 1971 TPD 497
— 523
Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC)
— 106
Schoonwinkel v Swart’s Trustee 1911 TPD 397
— 600
Schoultz v Voorsitter, Personeel-Advieskomitee Van Die Munisipale Raad Van George, en ’n
Ander 1983 (4) SA 689 (C)
— 68
Schroeder v Vakansieburo (Edms) Bpk 1970 (3) SA 240 (T)
— 42
Sealed Africa (Pty) Ltd v Kelly and Another 2006 (3) SA 65 (W)
— 43
Seapoint Computer Bureau (Pty) Ltd v Mcloughlin and De Wet NNO 1997 (2) SA 636 (W)
— 368
Sedick & another v Krisray (Pty) Ltd (2011) 32 ILJ 752 (CCMA)
— 437
Seetal v Pravitha and Another NO 1983 (3) SA 827 (D)
— 429
Seguar v United States 468 US 796 (1984)
— 212
Selvey v DPP 1970 AC 304
— 68
Senat v Senat 1965 2 All ER 505
— 479
Senkge v Bredenkamp 1948 (1) SA 1145 (O)
— 75
Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SACR 761 (CC)
— 96, 108, 183, 185, 189-190, 478, 533
Shabalala v Attorney-General, Transvaal and Another; Gumede and Others v Attorney-
General, Transvaal 1995 (1) SACR 88 (T)
— 188, 528
Shabalala v S 1994 4 All SA 583 (N)
— 249-250
Shabalala v S 1999 4 All SA 583 (N)
— 143
Shaik v Minister of Justice and Constitutional Development and Others 2004 (1) SACR 105
(CC)
— 156
Shell SA (Edms) Bpk en Andere v Voorsitter, Dorperaad Van Die Oranje-Vrystaat, en Andere
1992 (1) SA 906 (O)
— 281
Shenker Brothers v Bester 1952 (3) SA 664 (A)
— 626
Sher and Others NNO v Administrator, Transvaal 1990 (4) SA 545 (A)
— 505
Sheriff of Cape Town v Mt Argun, her owners and all persons interested in her and Others
[2001] 4 All SA 302 (A)
— 34
Sherman v United States 356 US 369 (1958)
— 279
Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC)
— 437
Simpson v Lever 1962 3 All ER 870
— 315
Singh v Govender Brothers Construction 1986 (3) SA 613 (N)
— 432-433
Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting 2002 (3) SA 765 (T)
— 297, 303-304, 311, 316, 529, 568
Slabbert, Verster & Malherbe (Bloemfontein) Bpk v De Wet 1963 (1) SA 835 (O)
— 42
Sliom v Couzyn 1927 TPD 438
— 509
Small v Smith 1954 (3) SA 434 (SWA)
— 394
Smit & Maritz Attorneys and Another v Lourens NO and Others 2002 (1) SACR 152 (W)
— 161
Smit v Van Niekerk, NO en ’n Ander 1976 (4) SA 293 (A)
— 29, 167
Smith v Malete 1907 TH 235
— 120
Smith v Porritt and Others 2008 (6) SA 303 (SCA)
— 39
Smitham v De Luca 1977 (2) SA 582 (W)
— 419
Society of Advocates of South Africa (Witwatersrand Division) v Rottanburg 1984 (4) SA 35
(T)
— 311
Socout Ally v R 1907 TS 336
— 37
Page 695
Sos Kinderdorf International v Effie Lentin Architects 1993 (2) SA 481 (Nm)
— 343, 508
South African Broadcasting Corporation v Avusa Ltd and Another 2010 (1) SA 280 (GSJ)
— 167
South African Rugby Football Union and Others v President of the Republic of South Africa
and Others 1998 (4) SA 296 (T)
— 163, 176
South Atlantic Islands Development Corporation Ltd v Buchan 1971 (1) SA 234 (C)
— 528
South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA
534 (A)
— 602, 622
South Dakota v Neville 459 US 553 (1983)
— 147
Southern Africa Litigation Centre v Minister of Justice and Constitutional Development &
others [2015] 3 All SA 505 (GP)
— 459
Southern Sun Hotels (Pty) Ltd v South African Commercial Catering & Allied Workers Union
& another (2000) 21 ILJ 1315 (LAC)
— 297
Southern Transvaal Buildings (Pty) Ltd v Johannesburg City Council 1979 (1) SA 949 (W)
— 107
Spencer v R 1946 NPD 696
— 68
Stacey v Kent 1995 (3) SA 344 (E)
— 551
Standard Bank of SA Ltd v Cohen (1) 1993 (3) SA 846 (SE)
— 40-41, 43-44
Standard Bank of SA Ltd v Cohen (2) 1993 (3) SA 854 (SE)
— 43, 45
Standard Bank of SA Ltd v Minister of Bantu Education 1966 (1) SA 229 (N)
— 508
Standard Bank of South Africa Ltd and Another v Ocean Commodities Inc and Others 1983
(1) SA 276 (A)
— 528
Standard Merchant Bank Ltd v Rowe and Others 1982 (4) SA 671 (W)
— 432, 434
Stanfield v Commissioner, South African Revenue Service 2002 (1) SA 726 (C)
— 311, 315
State v Carter 449 A 2d 1280 (1982)
— 471
State v Contreras 253 A 2d 612 (1969)
— 471
State v Henson 234 SW 832 (1921)
— 473
State v Reed 627 A 2d 630 (1993)
— 215
Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A)
— 551
Stelco Inc v Canada (AG) 68 DLR (4th) 518
— 367
Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and Others 2003 (1)
SA 11 (SCA)
— 566
Stewarts & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty) Ltd and Others
1979 (1) SA 1018 (W)
— 90, 422
Steyn v Gagiano en ’n Ander 1982 (3) SA 562 (NC)
— 436
Stiglingh v Theron 1907 TS 998
— 44
Stirland v DPP 1944 AC 315
— 67
Stock v Stock 1981 (3) SA 1280 (A)
— 106-107, 576
Stone v Powell 428 US 465 (1976)
— 202, 205
Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC)
— 16, 599
Subramaniam v Public Prosecutor [1956] 1 WLR 965
— 305
Suliman v Hansa 1971 (2) SA 437 (D)
— 180
Suliman v Hansa 1971 (4) SA 69 (D)
— 181
Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (4) SA 90
(RA)
— 627
Swanepoel v Minister van Veiligheid en Sekuriteit 1999 (2) SACR 284 (T)
— 173, 180
Swanepoel v S [2008] 4 All SA 389 (SCA)
— 594
Swart v Janse van Rensburg and Another (688/06) [2008] ZASCA 2
— 43
Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South
Africa and Others 1999 (2) SA 279 (T)
— 178, 297
Page 696
T
Take and Save Trading CC and Others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA)
— 401
Talbut v Cuzack 1864 17 Ir CL 213
— 471
Tap Wine Trading CC and Another v Cape Classic Wines (Western Cape) CC and Another
1999 (4) SA 194 (C)
— 281
Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional
Development and Another 2014 (2) SA 168 (CC)
— 37
Terry v Ohio 392 US 1 (1968)
— 212-213
Tesven CC and Another v South African Bank of Athens 2000 (1) SA 268 (SCA); [1999] 4 All
SA 396 (A)
— 44-45
Thatcher v Minister of Justice and Constitutional Development and Others 2005 (4) SA 543
(C)
— 156
The People (Attorney General) v O’Brien 1965 IR 142
— 201, 227, 229, 273
The People v Madden 1977 IR 336
— 201
The People v Shaw 1928 IR 1
— 268
The People v Walsh 1980 IR 294
— 201
The State v A 1962 (4) SA 679 (E)
— 38
The State v Carneson 1962 (3) SA 437 (T)
— 136
The State v Green 1962 (3) SA 886 (A)
— 80, 83
The State v Matsiepe 1962 (4) SA 708 (A)
— 324
The State v Naidoo 1962 (2) SA 625 (A)
— 389, 453
The State v Ngwanya 1962 (3) SA 690 (T)
— 98
The State v Peake 1962 (4) SA 288 (C)
— 179, 425
The State v Pogrund 1961 (3) SA 868 (T)
— 167
The State v V 1962 (3) SA 365 (E)
— 68
The Statue of Liberty: Owners of the Motorship Sapporo Maro v Owner of Steam Tanker,
Statue of Liberty [1968] 2 All ER 195 (PDA)
— 446
Thiart v Kraukamp 1967 (3) SA 219 (T)
— 44
Thibela v Minister Van Wet en Orde en Andere 1995 (3) SA 147 (T)
— 528
Thole and Another v Minister of Justice and Others 1967 (3) SA 531 (D)
— 75
Thomas v David 1836 7 C & P 350
— 484
Thompson v R 1918 AC 221 (HL)
— 79
Thompson v R 1918 All ER 521
— 85
Thompson v United States 342 F 2d 137 (5th Cir 1965)
— 471
Thoroughbred Breeders Association of South Africa v Price Waterhouse 1999 (4) SA 968 (W)
— 294
Thrasyvoulos Ioannou v Papa Christoforos Demetriou 1952 AC 84; 1952 1 All ER 179
— 315
Tijmstra NO v Blunt-Mackenzie NO and Others 2002 (1) SA 459 (T)
— 290
Toohey v Metropolitan Police Commissioner 1965 1 All ER 506
— 54-55, 488
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A)
— 618
Topham v McGregor (1844) 1 Car & Kir 320; 174 ER 829
— 475, 477
Tranter v Attorney-General and the First Criminal Magistrate of Johannesburg 1907 TS 415
— 171, 180
Traynor Mapp v Ohio at Large in the 50 States 1962 Duke LJ 319
— 203
Tregea and Another v Godart and Another 1939 AD 16
— 35-36, 617, 622
Trend Finance (Pty) Ltd v Commissioner for South African Revenue Services [2005] 4 All SA
657 (C)
— 316
Trichardt v Muller 1915 TPD 175
— 523
Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 All ER 613
— 137
Trust Sentrum (Kaapstad) (Edms) Bpk and Another v Zevenberg and Another 1989 (1) SA
145 (C)
— 167
Tselentis Mining (Pty) Ltd and Another v Mdlalose and Others 1998 (1) SA 411 (N)
— 434
Page 697
Tshabalala v President Versekeringsmaatskappy Bpk 1987 (4) SA 72 (T)

— 346
Tshikomba v Mutual & Federal Insurance Co Ltd 1995 (2) SA 124 (T)
— 162
Tshivhase Royal Council and Another v Tshivhase and Another 1990 (3) SA 828 (V)
— 550
Tshona v Regional Court Magistrate, Uitenhage 2001 8 BCLR 860 (E)
— 395
Turbo Prop Service Centre CC v Croock t/a Honest Air 1997 (4) SA 758 (W)
— 507
U
Uncedo Taxi Service Association v Maninjwa and Others 1998 (2) SACR 166 (E)
— 553
Union and South West Africa Insurance Co Ltd v Quntana NO 1977 (4) SA 410 (A)
— 338-339
Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43
— 41
Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another 2002 (4) SA 408
(SCA)
— 548
United States v Calandra 444 US 338 (1974)
— 211
United States v Gilbert 388 US 263 (1967)
— 262
United States v Goings 377 F 2d 753
— 475
United States v Havens 446 US 620 (1980)
— 211
United States v Janis 428 US 433 (1976)
— 210
United States v Landof 591 F 2d 36 (9th Cir 1978)
— 471
United States v Leon 468 US 897 (1984)
— 211
United States v Rappy 157 F 2d 964 (2d Cir 1946)
— 471
United States v Ricardi 174 F 2d 883 (3d Cir 1949)
— 471-472
United States v Verdugo-Urquidez 1990 110 S Ct 1056
— 211
United States v Wade 388 US 218 (1967)
— 142, 262
United States v White 322 US 694 (1944)
— 137
United Tobacco Co Ltd v Goncalves 1996 (1) SA 209 (W)
— 316
Universal City Studios Inc and Others v Network Video (Pty) Ltd 1986 (2) SA 734 (A)
— 34
US v Wade 228 US 214
— 149
V
Van den Berg en ’n Ander v Streeklanddros, Vanderbijlpark en Andere 1985 (3) SA 960 (T)
— 166, 474
Van der Burgh v Guardian National Insurance Co Ltd 1997 (2) SA 187 (E)
— 482
Van der Harst v Viljoen 1977 (1) SA 795 (C)
— 428-429
Van der Heever v Die Meester en Andere 1997 (3) SA 93 (T)
— 160
Van der Linde v Calitz 1967 (2) SA 239 (A)
— 30-31, 163, 174
Van der Watt v S [2010] 3 All SA 483 (SCA)
— 598
Van Graan v Naudé 1966 1 PH J12 (O)
— 103
Van Heerden v SA Pulp and Paper Industries Ltd 1945 2 PH J14 (W)
— 103
Van Huyssteen and Others NNO v Minister of Environmental Affairs and Tourism and Others
1996 (1) SA 283 (C)
— 523
Van Lill v S 1969 2 PH H219 (T)
— 134
Van Rooyen v Humphrey 1953 (3) SA 392 (A)
— 344
Van Staden v Rudy 1908 EDC 7
— 75
Van Tonder v Kilian NO en ’n Ander 1992 (1) SA 67 (T)
— 22
Van Wyk v Lewis 1924 AD 438
— 551, 580
Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC)
— 157, 299, 340
Van Zyl and Another v Jonathan Ball Publishers (Pty) Ltd and Others 1999 (4) SA 571 (W)
— 110, 300
Van Zyl NO v Maarman 2001 (1) SA 957 (LCC)
— 526
Veenstra v Collins 1938 TPD 458
— 43
Venter and Others v Credit Guarantee Insurance Corporation of Africa Ltd and Another 1996
(3) SA 966 (A)
— 625
Page 698
Venter v Birchholtz 1972 (1) SA 276 (A)

— 41-43
Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA)
— 42
Vigario v Afrox Ltd 1996 (3) SA 450 (W)
— 297
Visagie v Gerryts en ’n Ander 2000 (3) SA 670 (C)
— 94, 107
Vumendlini v Boardman 1946 EDL 165
— 474
W
Walder v United States 347 US 62 (1954)
— 211
Walter v Lewis (1836) 7 C & P 344
— 307
Waste Products Utilisation (Pty) Ltd v Wilkes and Another 2003 (2) SA 515 (W)
— 282
Waste-Tech (Pty) Ltd v Van Zyl and Glanville NNO and Another 2000 (2) SA 400 (SE)
— 347
Waste-Tech (Pty) Ltd v Van Zyl and Glanville NNO 2002 (1) SA 841 (E)
— 346
Waterhouse v Shields 1924 CPD 155
— 389
Watersmeet (Pty) Ltd v De Kock 1960 (4) SA 734 (E)
— 509
Waymark NO v Commercial Union Assurance Co Ltd 1992 (3) SA 779 (Tk)
— 159
Weeks v United States 232 US 383 (1914)
— 199, 206, 210, 238
Weinerlein v Goch Buildings Ltd 1925 AD 282
— 44
Welz and Another v Hall and Others 1996 (4) SA 1073 (C)
— 300, 432
Wesso and Another v Director of Public Prosecutions, Western Cape 2001 (1) SACR 674 (C)
— 500
Whittaker v Roos; Morant v Roos 1911 TPD 1092
— 507
Williams v Deputy Superintendent of Insurance 1993 18 CRR (2d) 315
— 368
Williams v United States 365 F 2d 21 22 (7th Cir 1966)
— 471
Woerman and Schutte NNO v Masondo and Others 2002 (1) SA 811 (SCA)
— 36, 617
Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A)
— 593
Wolf v Colorado 338 US 25 (1949)
— 203, 210
Wong Sun v United States 371 US 471 (1963)
— 211
Wood v Van Rensburg 1921 CPD 36
— 397, 483
Worldwide Vehicle Supplies Ltd v Auto Elegance (Pty) Ltd and Others 1998 (2) SA 1075 (W)
— 530
Wright v Tatham 1885 Cl & Fin 670
— 97
Y
YD v LB (A) 2009 (5) SA 479 (GNP)
— 545
Young v Workmen’s Compensation Commissioner and Another 1998 (3) SA 1085 (T)
— 297
Yskor Utiliteitswinkel (Edms) Bpk v Maia 1985 2 PH F32 (A)
— 473
Yuill v Yuill 1945 1 All ER 183
— 401
Yusaf v Bailey and Others 1964 (4) SA 117 (W)
— 110
Z
Zarug v Parvathie, NO 1962 (3) SA 872 (D)
— 508
Zebediah v R 1962 1 PH F6 (SR)
— 583
Zoneff v R [2000] 200 CLR 234
— 577
ZS-SVN Syndicate v 43 Air School (Pty) Ltd and Another 2007 (6) SA 389 (E)
— 94
Zuka v S [2009] 4 All SA 89 (E)
— 238
Zuma and Others v National Director of Public Prosecutions 2008 (1) SACR 298 (SCA)
— 418
Zungu NO v Minister of Safety and Security 2003 (4) SA 87 (D)
— 340
Page 699
Table of Statutes
A
Abolition of Juries Act 34 of 1969
— 8
Administration of Justice (Further Amendment) Act 11 of 1927
— 8
s3 — 8
Admiralty Jurisdiction Regulation Act 105 of 1983
— 297
s 6(3) & (4) — 297
Alienation of Land Act 68 of 1981
— 43, 45
s 2(1) — 45
Arms and Ammunition Act 75 of 1969
— 270, 554
s 40(1) — 554
s 41 — 270
B
Banks Act 94 of 1990
— 155
s 6 — 155
C
Child Care Act 74 of 1983
— 456
Chapter 8 — 456
Child Justice Act 75 of 2008
— 37-38, 538, 605
s 7 — 37, 538
s 7(2) — 605
s 8 — 37
s 11 — 38
s 11(1) — 605
Children’s Act 38 of 2005
— 38, 429, 543-545
s 1 — 38
s 17 — 38
s 26 — 545
s 36 — 543, 545
s 37 — 429, 544, 545
Children’s Status Act 82 of 1987
— 544
s 2 — 544
Civil Proceedings Evidence Act 25 of 1965
— 6, 29-30, 49, 62, 97, 108, 110, 128-129, 134, 158, 167-168, 171, 311-313, 316-
317, 323, 329, 389-390, 420, 426, 428, 431, 434-435, 438-440, 450, 452, 469-470, 482,
484, 488-489, 507, 519, 527, 543, 594
Part VI — 128, 313, 316, 323, 426, 431, 469-470
s 2 — 49, 62
s 3 — 543
s 4 — 97, 428
s 5 — 485
s 5(1) — 527
s 5(2) — 527
s 7 — 488-489
s 8 — 450
s 9 — 452
s 10 — 168
s 10(2) — 168
s 10A — 168
s 14 — 134, 158
s 15 — 507
s 16 — 594
s 17 — 311-312
s 18 — 435
s 18(1) — 434
s 19 — 434
s 20 — 434
s 22 — 108, 420
s 22(1) — 312, 317
Page 700
s 23 — 312
s 23(1) — 420
s 24 — 312
s 25 — 312
s 26 — 312, 519
s 28 — 313, 439
s 29 — 313
s 30 — 313
s 30(2) — 313
s 31 — 167
s 32 — 313
s 33 — 313, 426, 431
s 34 — 313, 439-440
s 34(1) — 314, 316
s 34(2)(b) — 314
s 34(3) — 316
s 35 — 314
s 35(1) — 316
s 35(2) — 129, 316, 470
s 36 — 435, 560
s 37 — 435
s 38 — 313
s 39 — 6, 389
s 40 — 6, 389
s 41 — 6, 389, 390
s 42 — 29-30, 110, 158, 171, 329, 389, 450, 482, 484-485
s 212(4) — 317-319
s 212(12) — 318
Civil Union Act 17 of 2006
— 455
s 13(2)(b) — 455
Page 701
Close Corporations Act 69 of 1984

— 155
s 66(1) — 155
Companies Act 61 of 1973
— 155, 157, 367
s 415 — 155
s 417 — 155, 157
s 417(2)(b) — 367
s 417(2)(c) — 367
s 418 — 157
Companies Act 71 of 2008
— 156
s 176(4) & (5) — 156
s 179(5) & (6) — 156
s 215(2)(e) — 156
Computer Evidence Act 57 of 1983
— 438-439
s 2(3) — 439
s 2(4)(a) — 440
s 2(4)(b) — 440
s 2(5) — 440
s 4 — 439
Constitution of the Republic of South Africa 108 of 1996
— 17-18, 31-33, 38-39, 49, 61, 63, 119, 134, 137, 139-140, 143-146, 148-149, 152,
155-157, 164, 168-169, 177, 180, 185-186, 191-192, 198, 201, 205, 207-209, 212-213,
215, 217, 220-221, 224-225, 229, 233, 236-237, 240-244, 247, 252, 255-258, 260-262,
264-266, 280-282, 292, 301, 320, 330, 332, 341-342, 350, 352, 358, 365, 368, 392,
398, 409, 411-412, 424, 429, 458, 460, 462-463, 490, 498-501, 528, 545, 553, 558,
560, 611
Chapter 2 — 252, 367, 528
s 1(d) — 137
s 8(4) — 137
s 9(1) — 341-342
s 10 — 237
s 12, 10 & 14 — 256
s 12(1) — 156, 237
s 12(1)(c) — 148
s 12(2)(b) — 148
s 14 — 168-169, 367, 429
s 14(d) — 168
s 16 — 553
s 28 — 38, 411, 424, 429
s 28(2) — 410-412
s 28(3) — 411
s 32 — 33, 177, 185
s 32(1) — 164
s 32(1)(a) — 192
s 32(1)(b) — 192
s 32(2) — 192
s 33(1) — 157
s 34 — 33, 177, 185-186, 191, 281
s 35 — 139-144, 365, 499-500
Page 702
s 35(1) — 32, 144, 155, 191

s 35(1)(a) — 32, 134, 140, 213, 244, 330, 333-334, 380
s 35(1)(b) — 134, 140, 213, 244
s 35(1)(c) — 134, 140, 146, 244, 350, 358, 380
s 35(2) — 144, 156
s 35(2)(b) — 32, 140, 213, 244, 365
s 35(2)(c) — 140, 144, 213, 244
s 35(3) — 32, 152, 155-156, 144, 185, 242, 333, 350, 368, 392, 398, 498, 610-611
s 35(3)(b) — 473
s 35(3)(f) — 140, 152
s 35(3)(g) — 140, 144, 152
s 35(3)(h) — 18, 32, 134, 140, 152, 244, 330, 333-334, 367, 454, 462, 553
s 35(3)(i) — 17, 32, 61, 177, 292, 301, 320, 392, 460, 462, 490
s 35(3)(j) — 32, 134, 140-141, 152, 244, 358, 367, 380, 454
s 35(3)(m) — 39
s 35(5) — 33, 49, 119, 139, 145, 148-149, 156, 180, 198-199, 201, 205, 207-209, 212-
213, 215, 217-218, 220-221, 224-225, 229-245, 247-249, 251, 253-258, 260-272, 275-
278, 280-281, 333-334, 352, 364, 498, 500-501
s 36 — 61, 145, 149, 168, 192, 239, 301, 342, 409, 463, 558, 560
s 36(1) — 32, 145, 239, 247, 409
s 37 — 240
s 37(1) — 240
s 37(1)(b) — 263
s 37(4)(a) — 240
s 39(1) — 209
s 39(1)(a) — 237
s 39(1)(b) — 528
s 39(1)(c) — 33, 229, 528
s 39(2) — 31, 221, 282, 530, 620
s 151(1)(b) — 463
s 165 — 177
s 170A — 414, 416
s 204 — 234
s 232 — 528
Schedule 6 — 185
Constitution of the Republic of South Africa 200 of 1993
— 32, 78, 139, 142-144, 154, 157, 164, 169, 177, 185-186, 223-226, 228-229, 244,
252, 262, 276, 279, 301, 367, 370, 381, 409, 530, 533, 560, 609-610, 622
Chapter 3 — 185, 229, 252
Page 703
s 7(4) — 223
s 8(1) — 157, 622
s 8(1)(2) — 622
s 11(1) — 157, 609
s 11(2) — 157
s 13 — 157
s 14 — 169
s 15(1) — 157
s 22 — 186
s 23 — 157, 164, 185
s 24 — 157
s 25 — 139, 142-144, 224, 381
s 25(1)(c) — 225-226, 381
s 25(2) — 142, 225, 370
s 25(2)(a) — 225
s 25(3) — 141-142, 157, 185, 224-225, 279, 367, 370, 610
s 25(3)(a) — 157
s 25(3)(c) — 157, 609, 622
s 25(3)(d) — 157, 301, 609
s 25(3)(e) — 262
s 33 — 558, 560
s 33(1) — 164, 409
Schedule 4 — 530
Consumer Affairs (Unfair Business Practices) Act 71 of 1988
— 155
s 5, 7 & 14 — 155
Conventional Penalties Act 15 of 1962
s 1(1) — 528, 530
s 1(4) — 529
s 224(b) — 527
Correctional Services Act 8 of 1959
— 368
s 1 — 368
Criminal and Magistrates’ Courts Procedure (Amendment Act) 39 of 1926
— 146
s 2 & 3 — 146
Criminal Law (Forensic Procedures) Amendment Act 6 of 2010
— 145, 319
s 4(b) — 319
Criminal Law (Forensic Procedures) Amendment Act 37 of 2013
— 145, 319
s 3(a) — 319
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
— 37, 72, 117-120, 124-125, 127, 456, 598
Chapter 2 — 124
Chapter 3 — 124
Chapter 4 — 124
s 1(1) — 37, 118, 124
s 3 — 124
s 4 — 124
s 5 — 124
s 7 — 124
s 8 — 124
s 11 — 124
Page 704
s 12 — 124, 456
s 13 — 124-125
s 14 — 124-125
s 17 — 456
s 23 — 456
s 55 — 124
s 57(1) — 37
s 57(2) — 37
s 58 — 117-120, 122-125, 127-128
s 59 — 117, 123-124, 127-128
s 60 — 598
s 68 — 456
s 71 — 125
s 71(1), (2) & (6) — 124
s 72 — 117
s 227 — 72
Criminal Law Amendment Act 1 of 1988
— 604
s 1 — 604
— 153
s 52(3) — 153
— 403
s 3 — 403
Criminal Law and Criminal Procedure Act Amendment Act 39 of 1989
— 72
s 2 — 72
Criminal Law Second Amendment Act 126 of 1992
— 155
Chapter V — 155
s 18(1) — 155
s 20 — 155
s 20(4)(b)(i) — 155
s 24(1) — 155
Criminal Matters Amendment Act 68 of 1998
— 604
s 5 — 604
Criminal Procedure Act 51 of 1977
— 6, 16, 20-21, 28-30, 39, 49, 61-62, 65-67, 69-71, 73-74, 97, 108, 110, 116, 123-
124, 129, 134-135, 137-138, 140-141, 145-146, 148-150, 153-155, 157-158, 167-169,
171, 179, 185-188, 190-191, 220, 226, 233, 261, 274, 279-280, 291, 310-312, 317-323,
342-343, 347-348, 350, 352, 354-356, 358, 361, 366, 369, 372-374, 376, 379, 381,
388-390, 392-393, 396-397, 399, 402-405, 408-409, 416-418, 420, 422-424, 426-429,
431, 434-435, 438, 440, 450-458, 460-465, 467-469, 482, 484, 486, 488-490, 495, 501,
509-512, 519, 527, 542-543, 554, 566, 571-573, 579, 582, 594, 599, 601, 604-608, 620
Chapter 3 — 157, 429
s 6(b) — 454
s 6(3) — 555
s 10(1)(b) — 621
s 15(1) — 443
s 15(2) — 443
s 15(3) — 443-444
s 22 — 451
s 22(b) — 274
s 25(3)(c) — 622
s 27 — 148
s 32 — 360
s 36A — 145, 148
s 36A(1) — 429
s 36B — 145, 148
s 36C — 145, 148
s 36D — 148
s 36E — 148
s 37 — 145-146, 148-149
s 37(1)(c) — 146, 261
Page 705
s 37(2)(a) — 146
s 39 — 140
s 39(3) — 141
s 40(1)(b) — 620-621
s 60(3) — 190-191
s 60(5)(d), (e) & (g) — 70
s 60(10) — 191
s 60(11) — 150, 190
s 60(11)(a) — 150
s 60(11B) — 151
s 60(11B)(a) — 70
s 60(11B)(c) — 150-151
s 60(14) — 150, 190-192
s 73 — 140
s 73(1) — 169
s 73(2) — 169
s 73(3) — 169
s 73(2A)(a) — 140
s 77 — 167, 606
s 78 — 167, 605
s 78(1) — 604-605
s 78(1A) — 604-606
s 78(1B) — 604-606
s 79 — 167, 605
s 79(7) — 167, 220
s 84 — 622
s 87 — 186-188
s 87(2) — 186
s 106(1)(c) & (d) — 39
s 106(4) — 601
s 107 — 606
s 108 — 601
s 112 — 153-154, 354-355, 511
s 112(1)(b) — 154, 402, 511
s 112(2) — 354-355, 511
s 113 — 354-355, 511-512
s 113(1) — 511
s 115 — 20-21, 154-155, 352-354, 402, 512, 572, 599, 607
s 115(1) — 154, 512
s 115(2)(a) — 154, 512
s 115(2)(b) — 20, 154, 512, 572
s 119 — 154, 353
s 121(1) — 154
s 145 — 16
s 145(4) — 356, 372
s 145(4)(a) — 16
s 146 — 566, 599
Page 706
s 146(b) — 16
s 146(d) — 16
s 150(1) — 461
s 150(2)(a) — 461
s 151 — 462, 464
s 151(1)(a) — 463
s 151(1)(b) — 463-464, 582
s 151(1)(b)(i) — 463-464
s 151(1)(b)(ii) — 463
s 153 — 416
s 157(2) — 455, 501
s 158 — 413, 417, 582
s 158(2) — 416-417
s 158(2)(a) — 416
s 158(2)(b) — 416
s 158(3) — 416-417
s 158(3)(a) — 416
s 158(3)(b) — 416
s 158(3)(c) — 416
s 158(3)(d) — 416
s 158(3)(e) — 416
s 158(4) — 417
s 158(5) — 413, 418
s 159 — 582
s 161 — 388
s 161(2) — 389, 453
s 162 — 6, 389, 462
s 162–165 — 157
s 163 — 6, 389, 450, 462
s 163(1)(a)-(c) — 390
s 163(1)(d) — 390
s 164 — 390
s 164(1) — 451-452
s 166(1) — 462
s 166(2) — 465
s 166(3) — 74, 393, 397-398
s 166(3)(a) — 398
s 166(3)(b) — 398
s 167 — 454, 465
s 169 — 427
s 170 — 451
s 170(2) — 451
s 170A — 291, 392, 403, 405, 408-410, 412-415, 417
Page 707
s 170A(1) — 403-404, 411-412, 414-415

s 170A(2)(a) — 403
s 170A(2)(b) — 403
s 170A(3) — 404
s 170A(3)(b) — 404, 409
s 170A(3)(c) — 404-405, 415
s 170A(4)(a) — 404
s 170A(5) — 415
s 170A(6) — 415
s 170A(7) — 412-413
s 171 — 418
s 171(1)(a) — 418
s 171(1)(b) — 418
s 171(2)(b) — 418-419
s 172 — 418
s 173 — 419
s 174 — 399, 419, 462, 579, 608-611
s 179–181 — 157
s 186 — 464-465
s 187 — 460
s 187–189 — 157
s 188 — 451
s 189 — 157, 451
s 189(1) — 157, 456
s 190 — 391, 495
s 190(1) — 28, 116, 123, 482, 484-485
s 190(2) — 488-489
s 191 — 157
s 192 — 169, 450
s 193 — 451
s 194 — 452
s 195 — 457-458
s 195(1) — 456-457
s 195(1)(a)-(i) — 456
s 195(2) — 168, 456
Page 708
s 196 — 457
s 196(1) — 454-457, 462
s 196(1)(a) — 454, 465
s 196(1)(b) — 457
s 196(2) — 458
s 196(3) — 354
s 197 — 66-70, 396, 484
s 197(a) — 66-68
s 197(b) — 67-69
s 197(c) — 69
s 197(d) — 69, 110
s 198 — 168
s 198(2) — 168
s 199 — 168
s 200 — 135
s 201 — 28, 158
s 202 — 28, 171, 179
s 203 — 28, 134-135, 137, 392
s 204 — 137-138, 157, 233, 454, 490
s 204(1) — 137
s 204(2) — 137, 157
s 204(2)(a) — 137
s 204(3) — 137
s 204(4) — 138, 157
s 205 — 138, 157
s 205(1) — 138
s 205(4) — 157
s 206 — 29-30, 169, 450
s 208 — 594
s 209 — 358, 571-574
s 210 — 49, 61-62, 124
s 211 — 70, 110, 396
s 212 — 108, 317, 320-321, 420
s 212(1) — 317
s 212(2) — 317
s 212(3) — 317
s 212(4) — 317, 320-321, 426
s 212(6) — 319, 426
s 212(5) — 319
s 212(7) — 319
s 217(1)(b)(ii) — 356, 369-370, 554
Page 709
s 217(3) — 374-375, 396

s 218 — 261, 376, 381-382
s 218(1) — 381-382
s 218(2) — 261, 376-379, 381
s 219 — 383
s 219A — 134, 226, 342, 347-348, 356, 379, 383
s 219A(1) — 355-356, 379
s 219A(1)(a) — 355
s 219A(1)(b) — 356
s 220 — 20, 318, 352, 509-510, 512, 572
s 221 — 322-323, 431, 440-441
s 221(5) — 322, 440
s 222 — 129, 323, 426, 435, 440, 469
s 223 — 29, 310
s 224(a) — 527
s 225 — 146
s 225(2) — 148, 382
s 226 — 543
s 227 — 71-74
s 227(1) — 28-29, 65, 73
s 227(2) — 72-74
s 227(4) — 29
s 228 — 97, 428
s 229 — 312, 519
s 230 — 29
s 231 — 369
s 232 — 422, 426
s 233 — 434-435
s 235 — 150, 322
s 236 — 323, 440
s 236(1) — 323
s 236(2) — 323
s 236(4) — 167
s 237 — 323, 542
s 238 — 323
s 240 — 67, 69-70
s 240(1) — 30
s 241 — 67, 69-70
s 245 — 381
s 246 — 323
s 246(b) — 324
s 246(c) — 324
Page 710
s 246(d) — 324
s 247 — 323
s 248(1) — 467
s 248(2) — 467
s 252 — 29-30, 70, 220, 486
s 252A — 279-280
s 252A(1) — 279
s 252A(2) — 279
s 252A(3)(a) — 279-280
s 252A(3)(b) — 280
s 252A(3)(b)(i)–(vi) — 280
s 252A(3)(b)(iii) — 280
s 252A(5)(b) — 281
s 252A(6) — 280
s 252A(7) — 280
s 256-70 — 461
s 271 — 70
s 273 — 70
s 304(2)(b) — 468
s 316 — 468
s 332(3) — 343
s 332(5) — 554-555
s 334 — 361
s 334(1) — 368
s 335 — 185, 191
s 337 — 423-424
s 337(b) — 424
Criminal Procedure Act 56 of 1955
— 28, 146, 321, 354, 594
s 164(4) — 594
s 169(5) — 354
s 174 — 610
s 212(8) — 321
s 289 — 146
s 291 — 146
s 319(3) — 28
s 384 — 28
Criminal Procedure Amendment Act 86 of 1996
— 140, 397, 416, 509
s 2 — 140
s 7 — 416
Page 711
s 8 — 397
s 12 — 509
Criminal Procedure Amendment Act 92 of 1963
— 28
Criminal Procedure and Evidence Act 31 of 1917
— 28, 366
s 273 — 366
Criminal Procedure and Evidence Amendment Act 29 of 1955
— 378
s 218(2) — 378
s 245(2) — 378-379
Criminal Procedure Second Amendment Act 85 of 1996
— 279
s 1 — 279
s 105A — 346
s 105A(10) — 346
s 196(3) — 354
s 236A — 323
D
Diplomatic Immunities and Privileges Act 37 of 2001
— 459
s 3 — 459
Dissolution of Marriages on Presumption of Death Act 23 of 1979
— 547
s 1 — 547
s 2 — 547
Drugs and Drug Trafficking Act 140 of 1992
— 554
s 20 — 554
s 21(1)(a)(i) — 554
s 21(1)(b) — 554
Dutch Reformed Church In South Africa (Repeal of Laws) (Private) Act 22 of 1961
s 6(3) — 555-556
E
Electronic Communications and Transactions Act 25 of 2002
— 431, 438, 441-442, 444
s 1 — 441-443
s 13 — 442
s 14 — 441
s 14(1)(b) — 441
s 14(2) — 441
s 15 — 441-443
s 15(1) — 442
s 15(1)(b) — 442
s 15(2) — 443
s 15(3) — 443-444
s 15(4) — 443-445
s 17(1) — 441
s 17(2) — 441
s 18 — 442
s 19(3) — 442
s 37 — 442
Evidence Proclamation 16 of 1902
— 28, 171
s 45 — 28
s 47 — 171
F
Financial Intelligence Centre Act 38 of 2001
— 184, 450
s 28 — 184
s 29 — 184
Page 712
s 31 — 184
s 38(2) — 184
s 38(3) — 184, 450
Firearms Control Act 60 of 2000
— 95
Forest Act 122 of 1984
— 621
s 84 — 621
G
Gambling Act 51 of 1965
— 555
s 6(3) — 555-556
General Law Amendment Act 46 of 1935
— 488
s 57 — 488
— 44
s 6 — 44
— 556
s 37 — 556-557
s 37(1) — 557
— 176-177
s 29 — 176-177
s 29(1) — 176
— 177
s 25 — 177
H
Housing Amendment Act 47 of 1967
— 297
I
Inquests Act 58 of 1959
— 545
s 16(1) — 545
s 18(1) — 545
s 18(2) & (2A) — 545
Insolvency Act 24 of 1936
— 155, 343, 366
s 55 — 366
s 65 — 155, 366
s 65(2A)(a) — 366
s 65(2A)(b) — 366
s 273 — 366
Insolvency Act 32 of 1916
— 365
s 55 — 365
Inspection of Financial Institutions Act 38 of 1984
— 155
s 3, 4, 6, 8 & 9 — 155
Interception and Monitoring Prohibition Act 127 of 1992
— 222, 268-269, 282
Internal Security Act 74 of 1982
— 177
s 66 — 177
s 66(1) — 177
s 66(2) — 177
Page 713
International Co-Operation In Criminal Matters Act 75 of 1996

— 418
s 2(1) — 418
s 36 — 418
s 171(2)(a) — 418
Interpretation Act 33 of 1957
— 549
s 7 — 549
Investigation of Serious Economic Offences Act 117 of 1991
— 151
s 5(8) — 151
s 5(6) — 151
s 60(11B)(c) — 151
J
Justice Laws Rationalisation Act 18 of 1996
— 456, 529
s 4 — 456, 529
s 195(2) — 456
Schedule III — 529
L
Law of Evidence Amendment Act 45 of 1988
— 8, 18, 23-24, 29, 32, 107, 120, 287, 292-295, 297, 302, 304-305, 308-310, 328,
339-341, 431, 442-443, 445, 457, 495-497, 517, 528
s 1 — 528
s 1(3) — 517
s 3 — 107, 292, 296-297, 301-303, 308, 310-311, 328, 340-341, 431, 442-443, 445,
495
s 3(1) — 297, 328, 339-340
s 3(1)(a) — 294-295
s 3(1)(b) — 23, 294-295
s 3(1)(c) — 18, 120, 295-296, 298, 302, 304, 342, 495-497
s 3(1)(c)(iv) & (vi) — 299
s 3(1)(c)(vii) — 328
s 3(2) — 339
s 3(3) — 23, 295
s 3(4) — 24, 293, 328, 495
s 6 — 457
s 9 — 29, 310
s 15(4) — 445
Law of Evidence and The Criminal Procedure Act Amendment Act 103 of 1987
— 38
s 1 — 38
Legal Aid South Africa Act 39 of 2014
— 166
s 19(1) — 166
s 19(2) — 166
Liquor Products Act 60 of 1989
— 533
M
Magistrates’ Courts Act 32 of 1944
— 15-16, 406, 419, 451, 468, 566, 599
s 51 — 451
s 52 — 419
s 53 — 419
s 87(b) — 468
s 93ter — 15, 406
s 93ter(1)(b) — 16
Page 714
s 93ter(3)(c) — 566
s 93ter(3)(c)-(e) — 16, 599
s 93ter(3)(e) — 16, 566
Maintenance Act 99 of 1998
— 456
s 31(1) — 456
Maintenance and Promotion of Competition Act 96 of 1979
— 155
s 7, 9 & 17 — 155
Matrimonial Property Act 88 of 1984
— 343
Medical, Dental and Pharmacy Act 13 of 1928
— 360
s 90 — 360
N
National Ports Act 12 of 2005
— 155
s 51 — 155
National Prosecuting Authority Act 32 of 1998
— 156
s 28 — 156
s 28(b) — 156
National Road Traffic Act 93 of 1996
— 147, 558-559
s 73(1) — 558-559
s 65(9) — 147
National Veld and Forest Fire Act 101 of 1998
— 621
s 34 — 621
O
Orange Free State Ordinance 4 of 1902
— 28
P
Post and Telecommunication-Related Matters Act 44 of 1958
— 221
s 118A — 221
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004
— 458
s 9 — 458
Prevention of Organised Crime Act 121 of 1998
— 78, 297, 302, 553
Chapter 5 — 553
s 2(1) — 78, 298
s 2(2) — 78, 297, 302
Privy Council Appeals Act 16 of 1950
— 31
Promotion of Access to Information Act 2 of 2000
— 192-193
s 7 — 193
s 7(1) — 192-193
s 7(2) — 193
s 39 — 192
s 40 — 192
s 41 — 192
s 67 — 192
Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of
2004
— 184, 450
s 4 — 184
s 12(1) — 184
s 17(8) — 184
s 17(9) — 184, 450
Page 715
R
Recognition of Customary Marriages Act 120 of 1998
— 456
s 2(1) — 456
Regulation of Interception of Communications and Provision of Communication-Related
Information Act 70 of 2002
— 222, 268
Restitution of Land Rights Act 22 of 1994
— 297, 525
s 30(2)(a) — 297
Revenue Laws Amendment Act 60 of 2008
— 435
Road Traffic Act 29 of 1989
— 558-560
s 130 — 558-560
s 130(1) — 560
S
Safety Matters Rationalisation Act 90 of 1996
— 177
s 1 — 177
Sexual Offences Act 23 of 1957
— 456, 538
s 2 — 456
s 8, 10, 11, 12, 12A, 17 or 20 — 456
s 21(3) — 538
Small Claims Courts Act 61 of 1984
— 9-10, 12, 14
Chapter 5 — 10
s 7(2) — 10
s 26 — 9
s 26(1) — 10
s 26(2) — 12
s 26(3) — 9-10, 14
s 27 — 9
s 28 — 9
Stamp Duties Act 77 of 1968
— 435
s 12 — 435
Stock Theft Act 57 of 1959
— 556
s 1 — 556
Superior Courts Act 10 of 2013
— 311, 419, 451, 453, 468
s 19 — 468
s 34 — 311
s 35 — 451
s 36 — 451
s 39 — 419
s 47 — 453
Supreme Court Act 59 of 1959
— 70
s 20 — 70
s 21 — 70
W
Workmen’s Compensation Act 30 of 1941
— 297
Page 717
Table of Rules
C
Constitutional Court Rules (Interim) GN 16204 of 1995
— 531, 533
Rule 19 — 533-534
Rule 33 — 534
Rule 34 — 531, 533-534
Rule 35 — 533
J
Judges’ Rules 1931
— 136, 138-139, 144, 226, 364, 381
R
Rules of the Constitutional Court GN R1675 of 2003
— 530-531
Rule 20 — 533-534
Rule 31 — 531-533, 535
Rule 31(1) — 530
Rule 31(1)(a) — 531
Rule 31(1)(b) — 531
Rule 31(2) — 531
Rule 32 — 533-534
Rules regulating the conduct of the proceedings of the Magistrates’ Courts of South Africa
GN R740 of 2010
— 34, 108, 311, 427, 624
Rule 23 — 436
Rule 23(10) — 436
Rule 24(9) — 34, 108, 466
Rule 29 — 624
Rule 29(7) — 465
Rule 29(9) — 466
Rule 29(9)(a) — 466
Rule 30(1)(d) — 427
Rule 61 — 311
Rules regulating the conduct of the proceedings of the several Provincial and Local divisions
of the High Court of South Africa 48 of 1965
— 34, 108, 400, 419, 427, 435-436, 507
Rule 22(2) — 507
Rule 35 — 34, 436
Rule 35(10) — 436
Rule 36(9) — 34, 108, 466
Rule 38 — 451
Rule 38(3) — 419
Rule 38(5) — 419
Rule 39(5) — 465, 623
Rule 39(8) — 400
Rule 39(9) — 465, 623
Rule 39(11) — 466, 623
Rule 39(13) — 466, 623
Rule 39(16)(d) — 427
Rule 63 — 435
Page 719
Index
A
ABSENCE FROM REPUBLIC
criminal cases, document, proof of — 323
ABSOLUTION FROM THE INSTANCE — 466, 623-626
ACCESS TO INFORMATION
bail application — 190-191
privilege against self-incrimination — 149-152
state privilege and PAIA — 192-193
ACCESSORY AFTER THE FACT — 589
ACCOMPLICE
cautionary rule — 455, 588, 596
co-accused — 454
evidence improperly obtained from — 236
false evidence of — 588-589
privilege against self-incrimination — 136
self-incrimination — 247
trap, distinguished from — 278
ACCOUNTING RECORDS — 323
ACCUSATORIAL TRIAL – see ADVERSARIAL TRIAL
ACCUSED
active defence, right of — 32, 462
admissions by – see ADMISSIONS
as witnesses — 454-455
bad character evidence of — 17, 66
burden of proof borne by – see BURDEN OF PROOF IN CRIMINAL TRIALS
character of – see CHARACTER EVIDENCE; SIMILAR FACT EVIDENCE
confessions by – see CONFESSIONS
constitutional rights of — 237-238, 492
cross-examination of – see CROSS-EXAMINATION
discharge at end of state’s case — 20-21, 454, 462, 608-613
evidence emanating from — 253
fair trial — 242
false evidence by — 577, 588-589
formal admissions — 20
passive defence, right of — 32, 462
recall by court — 465
silence of — 585-587
spouse of – see COMPETENCE AND COMPELLABILITY OF WITNESSES
ACTIVE DEFENCE RIGHT — 32, 462
ACTS OF PARLIAMENT
judicial notice of — 527
ADJECTIVAL LAW – see ADJECTIVE LAW
ADJECTIVE LAW
evidence, a part of — 4, 34
substantive law, distinguished from — 4, 34-38
ADJUDICATIVE FACTS – see JUDICIAL NOTICE
ADMINISTRATION OF JUSTICE
unconstitutionally obtained evidence and — 263-275
Page 720
ADMISSIBILITY OF EVIDENCE – see RELEVANCE

complaints about sexual offences, statutory provisions for — 117-118
conditional — 22-23
Constitution, exclusion of admissible evidence — 198-199
derivative evidence — 156, 256-261
determination by judicial precedent — 60
determination of by trial within a trial — 371-374
distinguished from probative material — 20-21
distinguished from proof — 21
documentary evidence — 313-316
dying declarations — 308
executive vs narrative statements — 344
generally — 14, 22
good or bad character — 65-66
hearsay
by consent — 294
provisionally — 294-295
hypnosis — 53, 61, 100
identification by dog scenting — 52-53, 60
informal admissions — 329
of opinions generally — 89-91
of similar fact evidence generally — 78-85
parol evidence rule — 41-42
prior written statements — 129
relevance generally — 22
reported real evidence — 422
res gestae statements — 306-308
reversal of by interlocutory decisions — 52
unconstitutionally obtained evidence – see UNCONSTITUTIONALLY OBTAINED EVIDENCE
versus weight of evidence — 52-53, 55, 59
ADMISSIONS – see CONFESSIONS; FORMAL ADMISSIONS; INFORMAL ADMISSIONS;
POINTINGS OUT; VICARIOUS ADMISSIONS
ADMONITION — 390, 461
ADVERSARIAL TRIAL
adjudicator, best to make decisions of fact — 289
criticism of — 12
cross-examination, importance of — 392
expert witness in — 102
inquisitorial trial, distinction between — 8, 11-14
participation of intermediaries – see INTERMEDIARY
principles of — 8-9
strict system of evidence — 14
use of intermediaries, assessment of — 404-405
AFFIDAVIT
evidence by — 420
proof of facts by see STATUTORY EXCEPTIONS TO HEARSAY, affidavits as proof of facts
AFFIRMATION
calling of witness — 461
perjury committed under — 577
persons with no religious beliefs — 390
re truth of oral evidence — 389-390
AGE
physical appearance as real evidence — 423
ALIBI
assessment of — 592-593
late disclosure of — 330-335, 591-593
ANALOGUE DATA — 438
ANGLO-AMERICAN SYSTEM OF EVIDENCE — 8-11, 14
Page 721
ANGLO-SOUTH AFRICAN LAW OF EVIDENCE — 8, 10

ANIMALS
evidence derived from dogs — 51, 53, 60
instinctive behaviour of dogs — 52
judicial notice of facts concerning — 520
ARGUMENT
evidence, distinguished from — 19
judicial notice — 527
ASSESSORS
jurors and, distinction between — 15-17
lay — 15-17
privileged nature of communications between presiding officer and — 171
ATTORNEY – see COUNSEL
ATTORNEY-CLIENT PRIVILEGE – see LEGAL PROFESSIONAL PRIVILEGE
AUTHORITY
express or implied — 342-344
B
BAIL APPLICATIONS
admission of hearsay — 297
court’s discretion to grant access to information — 190-191
evidence of previous convictions — 70
free system of evidence — 18
prosecutor’s discretion re access to information — 190-191
right to a fair trial — 151-152
statutory prohibition against access to docket — 190
BANKERS’ BOOKS — 313, 323
BENTHAM — 13
BEST EVIDENCE RULE — 8, 24, 290, 432
BIAS — 484-485
BIGAMY — 323, 542-543
BLANKET DOCKET PRIVILEGE
access for purposes of
bail application — 190
trial — 184-186
disclosure of contents — 186-187
further particulars of the charge distinguished — 188-189
suspects, position of — 187
unconstitutionality of — 185-187, 189, 477
undefended accused — 187-188
BLOOD-ALCOHOL TESTING — 428
BODILY SAMPLES
affidavits and — 319
unconstitutionally obtained evidence — 255
BRANDEIS BRIEF — 532
BURDEN OF PROOF IN CIVIL TRIALS
absolution from the instance — 623-627
meaning of — 625
test for determining — 626
allocation of burden between parties — 618-619
as adjectival law — 35-36
degrees of probability — 628
duty to begin — 465, 623-625
court rules — 603-604
‘onus to adduce evidence’, meaning of — 623-624
evidentiary burden, distinguished from — 25, 617, 622-624
Page 722
impact of Constitution — 619-622

incidence of — 276-278, 466, 540, 616-624
presumption of innocence not applicable — 622
prima facie case, meaning of — 625
standard of proof — 627-628
veld fires, presumption of negligence — 619
BURDEN OF PROOF IN CRIMINAL TRIALS
accused and offence placing a — 359-360
admissions before magistrate, voluntariness of — 355
alibi defence — 604
beyond a reasonable doubt
exceptions to — 604, 615
standard of proof — 613-615
defamation, criminal — 606
discharge, end of prosecutor’s case — 608-613
duty to introduce defence — 607
evidentiary burden, distinguished from — 25, 565
mental illness, during commission of crime
as a defence, burden on accused if raised — 605
constitutionality of — 605-606
mental state, at time of trial — 604-606
burden on state to prove triability — 605
statutory presumption not applicable — 605
onus on state, proof beyond reasonable doubt
constitutionality of – see CONSTITUTIONALITY OF PRESUMPTIONS
proof of the absence of any defence — 603-604
statutory exceptions to — 604
prescription, effect of on — 539-540
sanity presumption — 605
temporary non-pathological criminal incapacity
evidentiary burden on state to prove criminal capacity — 604-606
BURDEN OF PROOF, GENERALLY
onus distinguished from evidentiary burden — 25, 602
substantive law and — 35-36
unconstitutionally obtained evidence — 276-278
BUSINESS RECORDS — 322-323, 444
C
CAUTIONARY RULES
accomplice, accessory after the fact, co-accused — 588-589
children — 593-594
complainants in sexual cases, abolition of the rule — 595-598
corroboration of evidence and — 588-590, 594
deceased estates, plaintiffs against — 589
doctrine of judicial notice — 516
fallibility of human observation — 590
false evidence — 588-589
function and scope — 588
handwriting, lay and expert opinion on — 598
identification of offenders — 590-593
alibi assessment — 592-593
dock — 590
parades — 590-591
photographic — 591-592
voice — 593
police traps — 589
private detective — 589
single witness — 594-595
Page 723
CERTIFICATE – see STATUTORY EXCEPTIONS TO HEARSAY

executive — 521
CHAIN OF CUSTODY — 319
CHARACTER EVIDENCE – see SIMILAR FACT EVIDENCE
bail proceedings — 18, 70
civil cases — 75
complainant in sexual cases — 71-75
complainant, relevance of character — 71
crimen iniuria — 75
criminal proceedings — 65-70
cross-examination of accused — 67-69, 73
disposition — 64-66, 71, 75
during sentencing — 70
historical categories for — 64
of witnesses other than accused — 70
previous convictions — 66, 69
rape and indecent assault — 71-74
reputation — 64
sexual history — 71-74
CHILDREN
as complainants in sexual offence cases — 403
constitutionality of statutory separation — 408-413
statutory separation from accused persons — 408
as witnesses — 402-403
competence and compellability — 451-452
criminal capacity of — 37-38
evidence of, reasons for caution — 593-594
legitimacy of — 543
paternity — 543-545
resemblance to reputed parent — 423
undue mental stress — 403
use of intermediaries – see INTERMEDIARY
CIRCUMSTANTIAL EVIDENCE
cumulative effect, rule concerning — 578-579
inferences draw from failure to
call available witnesses — 587-588
cross-examine — 583-584
inferences drawn from, civil proceedings
consistent with all proven facts — 578
failure to give gainsaying testimony — 584
most probable inference — 579
inferences drawn from, criminal proceedings — 578-579
accused’s refusal to testify — 585-587
consistent with proven facts — 578
presence in court before testifying — 581
prosecutor’s failure to cross-examine — 583-584
proven facts, exclusion of other reasonable inferences — 578
presumptions of fact
continuance — 580
defamatory statements in telegrams and — 580
inferential reasoning drawn from circumstances — 579
res ipsa loguitur — 580
theft cases, doctrine of recent possession — 580
CIVIL DISCOVERY — 436
CIVIL UNION PARTNERSHIPS
competence and compellability of witnesses — 455
CIVIL-LAW SYSTEM – see COMMON-LAW SYSTEM OF EVIDENCE
Page 724
CLAIMS TO PROFESSIONAL PRIVILEGE OTHER THAN LEGAL PROFESSIONAL PRIVILEGE

accountants — 167
accused referred for mental observation — 167
bankers’ books — 167
constitutional right to privacy — 168
doctor-patient — 167
insurers — 167
journalists — 167
marital privilege — 168
parent-child — 169
priests — 155
CLOSED CIRCUIT TELEVISION
child complainants — 404, 408, 413, 418
evidence by means of — 416-418
statutory provision for application to use — 415-418
under USA statutes — 408
CO-ACCUSED
accused as witness in same proceedings — 454-455
fair trial right of — 239-240
spouses as — 457-458
COINCIDENCE
and nexus — 83
test of — 82-83
COLLATERAL ISSUE — 53, 57, 481-483
COMMISSION
evidence on — 418-419
COMMON-LAW EXCEPTIONS TO HEARSAY
composite acts — 307
continued relevance of — 305
definition — 305
duty, statements in the course of — 308
dying declarations — 303, 308
physical sensations declarations — 308
res gestae statements — 306
spontaneous exclamations — 303, 306-307
state of mind statements — 307
wills, statements by testators — 308
COMMON-LAW SYSTEM OF EVIDENCE
adversarial trial — 8
Anglo-American — 8-11, 14
Anglo-South African — 8, 10
common-law system of evidence — 8
Continental — 9
free system — 8, 11, 14, 18
regarding hearsay evidence — 15
COMPELLABILITY OF WITNESSES – see COMPETENCE AND COMPELLABILITY OF WITNESSES
COMPETENCE AND COMPELLABILITY OF WITNESSES
accused — 454-455
children — 451-452
co-accused
and accused in same proceeding — 454-455
spouses — 457-458
court’s observation of witness to determine — 424-425
deaf and speechless persons — 453
distinction between competence and compellability — 449
foreign heads of state and diplomats — 459
former spouses, events occurring stante matrimonio — 457
Page 725
French model — 450

general rule in criminal and civil proceedings — 450
intoxicated persons — 452-453
judicial officers — 453
legal representatives — 454
Members of Parliament — 458
mental disorder, drugs, intoxication
court’s duty to investigate — 452
mentally disordered — 452-453
court’s duty to investigate — 452
officers of the court — 454
President of Republic — 458-459
presumption of competence — 467
procedure for determination of — 451
speechless persons — 453
spouses
as co-accused — 457-458
as witness for the defence — 455-456
as witness for the prosecution — 456-457
civil cases — 455
civil union partners — 455
criminal cases — 455-457
testimony against parents — 452
trial within a trial — 451
COMPLETENESS
principle of — 60
COMPURGATORS – see OATH-HELPERS
COMPUTER-GENERATED EVIDENCE – see ELECTRONIC OR ‘DIGITAL’ EVIDENCE
CONCEPTS AND DEFINITIONS
absolution from the instance — 625
argument distinguished from evidence — 20
balance of probability — 21
beyond reasonable doubt — 613
burden of proof, distinguished from evidential burden — 602
conditional admissibility — 22-23
confession — 24, 357, 359-361
corroboration — 570
Corsnaed — 406, 575
data and data messages — 441
demeanour — 575
document — 431-432
estoppel — 38-40
examination in chief — 390
formal admissions — 24, 506
hearsay — 24, 287, 293-294, 305
hostile witness — 391
informal admissions — 327, 329, 506
integration rule — 40-42
interpretation rule — 45
judicial notice — 24, 515
leading questions — 390
onus to adduce evidence — 623-624
parol evidence — 40
past recollection recorded — 471-472
peace officers — 369
present recollection revived — 471-472
presumptions
irrebuttable — 25, 36-38, 40, 538
of fact — 25
Page 726
of law — 536
rebuttable — 25
previous consistent statements — 112
prima facie case — 602, 625
prima facie proof — 22
privilege — 24, 133
probative material — 20-21
proof — 21
re-examination — 401
real evidence — 421
record — 470
rectification — 44-45
refreshing of memory — 471
relevance — 50-51
similar fact evidence — 76
standard of proof, civil cases — 627
standard of proof, criminal cases — 613
state privilege — 171-173
statements made without prejudice — 346-347
vicarious admissions — 338
CONDITIONAL ADMISSIBILITY – see also PROVISIONAL ADMISSIBILITY — 22-23
CONFESSIONS
accused’s intention — 360
accused’s statement not confession — 359, 361
admissibility, against maker only — 383
admissibility, determination of — 371-374
failure to hold — 372
procedure and rules — 371-374
trial within a trial — 371-374
unconstitutionally obtained — 365
admissions, distinguished from confessions — 358
requirements for admission of, distinguished — 383
burden of proof
for voluntariness — 362, 369
in certain statutory offences — 359-360
conduct of police officers — 370
constitutionality of presumptions and inadmissibility of — 584
conviction arising from single confession — 358, 571-574
conviction on – see CORROBORATION (OF EVIDENCE)
cross-examination, elicited during — 375-377
defined — 24, 359
during plea proceedings — 571-572
employer’s disciplinary enquiry — 368
exculpatory statements — 360
facts discovered in consequence of information given — 381-382
facts discovered in consequence of pointing out — 376-382
factors affecting admissibility of — 378-381
statutory provision for — 374, 376
inadmissible subsequently becoming admissible — 374-376
permission to use for co-accused — 376
statutory reversal of — 375
‘unconditionally’, rules concerning — 374
voluntariness requirement — 382
incriminating statements — 360
involuntary admissions, exclusion of
privilege against self-incrimination — 358
rationale for — 358
Page 727
meaning of — 357, 359-360

offences placing burden of proof on accused — 359-360
peace officers
also justices of peace and magistrates — 369-370
confirmed in writing — 370-371
made to — 368-370
pointing out – see POINTINGS OUT
presumption re written confirmed confessions — 370-371, 383
unconstitutionality of — 383-384
undue influence — 369, 371
voluntariness — 370-371
requirements for admissibility of — 361-371
failure to advise of right to legal representation — 364
‘freely’ and voluntarily — 362
juveniles, no parental assistance — 365
‘sound’ and sober senses — 361, 369-371
statutory provision generally — 361-363
undue influence — 363-365
statements made under statutory compulsion — 365-369
Canadian Charter of Rights — 367
Constitutional protection — 366-369
unconstitutionally obtained evidence
non-coerced — 215
written, requirement for — 369-371
CONFRONT, RIGHT TO — 6, 406-408, 413, 491
CONSENT
admission by — 294, 322
CONSISTENT STATEMENTS – see PREVIOUS CONSISTENT STATEMENTS
CONSPIRATORS — 344
CONSTITUTIONAL DUE PROCESS — 61, 224, 246, 266, 271, 491
CONSTITUTIONAL MATTERS
access to information — 191
accused’s rights — 237-238, 492
burden of proof — 604-606, 609, 611, 619-622
complaints by children in sexual offences cases — 408-413
confessions — 366-367, 584
Constitutional due process – see CONSTITUTIONAL DUE PROCESS
cross-examination — 408-409
entrapment — 237, 278-281
hearsay — 292, 320-321
hostile witness rule — 490-492
hypnosis — 62
informal admissions — 350-352
informer’s privilege — 182-184
judicial notice — 521, 525-535
police dockets — 190
presumptions – see CONSTITUTIONALITY OF PRESUMPTIONS
privacy, right to — 168
relevance — 61-62, 623
reverse onus – see CONSTITUTIONALITY OF PRESUMPTIONS
right to adduce evidence — 623
self-incrimination — 148-149, 152
state privilege — 177-179
threshold test — 231
CONSTITUTIONALITY OF PRESUMPTIONS
adjudicative vs legislative tests — 561
contempt of court proceedings — 553
control of gambling devices — 555-556
Page 728
directors, non-involvement in offences — 554-556

evidentiary vs legal burden, importance of — 561
external vs internal rationality — 559-560
fair trial rights — 557
inadmissibility of confession — 584
infringements of presumption of innocence — 553-558
innocence, presumption of — 553-561
justifiable limitations — 558-561
limitation clause — 558
mental illness, during commission of crime – see BURDEN OF PROOF IN CRIMINAL TRIALS
minimal impairment test — 561
permissive versus mandatory evidentiary presumptions — 555-556
quasi-exceptions — 553
receipt of stolen goods — 557
regulatory offences — 557
reverse onus — 553-560
right to remain silent — 553, 556-557
sanity presumption — 605
traffic offences, presumption of vehicle ownership — 559-560
CONTINENTAL SYSTEM OF EVIDENCE — 8, 13-14, 450
CORROBORATION (OF EVIDENCE)
cautionary rule and — 588-590, 594
confessions, only evidence for conviction
admissibility of, statutory provision for — 571
by extra-curial confession — 573
confirmation in material respect — 572-573
evidence aliunde for — 573
made during plea proceedings — 571-572
sufficiency — 573
emotional distress — 571
injuries — 570-571
repetition of a story, not corroboration — 570
self-corroboration, rule against — 114, 116, 124-125, 316, 570-572
CORSNAED
meaning and history — 406, 575
ordeal of accursed morsel — 5, 406
COUNSEL – see LEGAL PROFESSIONAL PRIVILEGE
cross-examination by more than one — 400
CREDIBILITY – see DEMEANOUR
accused, previous convictions of – see CHARACTER EVIDENCE
assessment of — 574
child witnesses — 593-594
danger of relying on demeanour — 409
demeanour, impact of – see also DEMEANOUR — 574-575
perjury — 577
presence in court before testifying — 581-583
previous experience of the court — 581
witnesses who have lied — 576-577
CRIME
detection of – see INFORMER’S PRIVILEGE
CRIMINAL INCAPACITY / NON-RESPONSIBILITY
children — 37-38
mental illness or defect — 604-606
CROSS-EXAMINATION – see ORAL EVIDENCE
as to credit — 75, 396-397
character evidence — 66-73
Page 729
constitutional right to
child witness in adversarial trials — 407
separation of complainant from courtroom — 409
curial courtesy — 395
death of witness during — 400
duty to cross-examine — 394
failure to — 338, 394, 583-584
‘fishing expedition’ — 399
hearsay, misleading evidence, need to test — 288, 290
inadmissible evidence — 395
intermediary – see INTERMEDIARY
leading questions — 393
legal representatives
code of conduct — 398-399
more than one — 400
limits of — 394-399
memory, refreshing of, document use — 478-479
misleading statements — 395
opponent’s witness – see IMPEACHMENT OF OPPONENT’S WITNESS
origins of cross-examination — 6
own witness – see IMPEACHMENT OF OWN WITNESS
police, ‘blanket docket privilege’ — 478
previous inconsistent statement — 485-486, 488-489
procedural matters — 399-400
purpose and scope of — 392-393
refreshing of memory – see REFRESHING OF MEMORY
vexatious questions — 395
who may be — 393
CROWN PRIVILEGE – see STATE PRIVILEGE
CURIAL COURTESY — 395
CUSTODY, CHAIN OF — 319
CUSTOMARY LAW – see INDIGENOUS LAW
D
DATA OR DATA MESSAGES – see ELECTRONIC OR ‘DIGITAL’ EVIDENCE
DEAF PERSONS AS WITNESSES — 451
DEATH
presumptions relating to — 545-548
proof of by affidavit — 319
DECLARATIONS
about physical sensations — 308
about state of mind — 307
dying – see DYING DECLARATIONS
DEFAMATION — 580, 606
DEFENCE, DUTY TO INTRODUCE — 606-608
DEFINITIONS – see CONCEPTS AND DEFINITIONS
DEMEANOUR – see CREDIBILITY
assessment by trial court vs appeal court — 576
assessment of credibility — 388
guide to credibility, as — 289, 575-576
observation of accuser, right to confront – see CORSNAED
observation of child witnesses – see also INTERMEDIARY — 404
ordeal of accursed morsel — 5
Pinocchio theory — 575
right to confront – see also CORSNAED — 406-407
Page 730
DERIVATIVE EVIDENCE — 256-260

DEVELOPMENT OF LAW OF EVIDENCE – see JURY
formal stage in — 6
rational stage in — 6-8
religious (primitive) stage in — 5-6
DIGITAL DATA — 438
DIPLOMATS — 458-459
DIRECT EVIDENCE — 23
DISCHARGE
burden of proof — 608-613
Canadian jurisprudence — 609, 612
constitutional rights, effect on — 609, 611
court’s discretion to refuse — 608-611
limits of judicial discretion — 611
test for verdict of not guilty — 608
DISCOVERY
civil — 436
DISCREDITING WITNESS – see IMPEACHMENT OF OWN WITNESS; IMPEACHMENT OF
OPPONENT’S WITNESS
DISCRETION TO EXCLUDE — 151-152, 163, 200, 220-221, 226-227
DISPOSITION – see CHARACTER EVIDENCE; SIMILAR FACT EVIDENCE
DNA (DEOXYRIBONUCLEIC ACID)
as a means of identification, description of — 429-430
DNA FINGERPRINTING — 429-430
DOCK IDENTIFICATION — 128, 590
DOCTRINE OF
judicial notice — 516, 520
legal guilt — 206
precedent — 60
recent possession — 580
‘ultimate issue’ — 94-96
DOCUMENTARY EVIDENCE
admissibility of requirements — 432-436
authenticity, proof of — 434-435
civil discovery — 436
definitions of ‘document’
common law — 431
statutory differences — 431-432
general admissibility — 313-316
impossibility of producing original — 434
original document requirement — 432-434
private documents — 435
‘public’ nature of document — 434
secondary evidence — 434
stamp duty requirements — 435-436
statutory exceptions to hearsay – see STATUTORY EXCEPTIONS TO HEARSAY
DOGS
instinctive behaviour of — 53
police use of scenting — 52-53, 59-60
DUTY TO INTRODUCE DEFENCE — 606
DYING DECLARATIONS — 305, 308
E
ELECTRONIC MEDIA
evidence by means of — 413, 416-418
Page 731
ELECTRONIC OR ‘DIGITAL’ EVIDENCE

admissibility of — 442-443
application to computer printouts — 441, 445-446
business records — 444-445
civil proceedings prior to ECT Act — 439
copies, printouts or extracts from business records — 444
criminal proceedings prior to ECT Act — 440-441
‘data’ and ‘data messages’
as real evidence — 445-446
statutory definition of — 441
distinction between analogue and digital — 438
electronic signatures — 442
evidential weight of data messages — 443-444
hearsay — 442-446
requirements for ‘original form’ — 441-442
statutory provisions
ECT Act — 442-445
prior to ECT Act — 439-441
trade or business records — 444
UNICITRAL model law on electronic — 438, 444
ELECTRONIC SIGNATURES — 442
ENGLISH LAW
after 30 May 1961 — 31
pre-union period — 27-28
ENTRAPMENT
constitutional right to a fair trial — 236, 278-281
exclusion of evidence — 279-281
trap, description of — 278
ESTOPPEL
autrefois acquit — 39
autrefois convict — 39
exceptio rei judicatae — 39
meaning of — 38
nature of — 38
per rem judicatam — 39
representation, by — 39
res judicata — 39
rule of substantive law, as — 40
EVALUATION OF EVIDENCE
admissions — 599
cautionary rule – see CAUTIONARY RULES
circumstantial evidence – see CIRCUMSTANTIAL EVIDENCE
corroboration – see CORROBORATION (OF EVIDENCE)
credibility – see CREDIBILITY
factual basis — 565
failure to
call witnesses — 587-588
testify — 584-587
inferences and probabilities distinguished from conjecture — 568-569
piecemeal adjudication, avoidance of — 567-568
principles — 567-598
probative material — 566-567
reasons, court required to provide — 599-600
rule in Valachia — 599
EVIDENCE IN CHIEF – see EXAMINATION IN CHIEF
EVIDENCE IN REBUTTAL — 304, 403, 467-468, 622
Page 732
EVIDENCE ON COMMISSION
civil cases — 419
EXAMINATION IN CHIEF
hostile witness — 391
impeachment of testimony — 391
intermediary, use of – see INTERMEDIARY
leading questions — 390-391
previous consistent statement — 391-392
previous inconsistent statements – see IMPEACHMENT OF OPPONENT’S WITNESS;
IMPEACHMENT OF OWN WITNESS
question-and-answer technique — 390
refreshing of memory — 392
EXAMINATION OF WITNESSES, BY COURT — 401-403
EXCLUSIONARY RULE – see UNCONSTITUTIONALLY OBTAINED EVIDENCE
EXECUTIVE CERTIFICATES — 521
EXECUTIVE STATEMENTS — 344-345
EXPERT WITNESS – see OPINION EVIDENCE
EXPLANATION OF PLEA — 20-21, 512
duty to introduce a defence — 606-608
evaluation of evidence — 599
EXTRA-CURIAL ADMISSIONS – see INFORMAL ADMISSIONS
EXTRINSIC EVIDENCE RULE – see PAROL EVIDENCE RULE
F
FACT-FINDING
principles of — 8-9
FACTUM PROBANDUM — 19, 51, 57
FACTUM PROBANS — 19, 51
FAIR TRIAL – see RIGHT TO A FAIR TRIAL
FALSE EVIDENCE — 588-589
FALSUM IN UNO, FALSUM IN OMNIBUS — 576
FINANCIAL INTELLIGENCE — 184
FINGERPRINTS — 258, 319, 425-426
FOREIGN HEADS OF STATE — 459
FOREIGN LAW
indigenous law as — 528
interpretation of Bill of Rights and — 209, 229
judicial notice of — 528-529
not public international law — 528
presumption where foreign law not proved — 529
use of expert evidence — 529
FORMAL ADMISSIONS
ambiguity, to favour accused — 506
and informal, arising from cross-examination — 513-514
civil proceedings, pleadings
amendments, requirements for — 507-509
errors, court’s discretion — 508
made by legal representatives — 508
withdrawal of admission — 507-509
criminal proceedings
explanation of plea — 512
personal knowledge, of facts — 513
plea of guilty as admission — 510-512
proof of undisputed facts — 513
unrepresented accused — 512
Page 733
withdrawal of — 507-512
described — 19-20, 24, 327
evaluation of — 599
general rule — 505
informal admissions, distinguished from — 506
intention from maker — 507
nature and purpose of — 505-506
FOURTH LATERAN COUNCIL — 6
FREE SYSTEM OF EVIDENCE — 6, 8, 11, 14, 18
G
GAMBLING — 555-556
H
HANDWRITING — 90-91, 97-99, 253, 428, 435, 598
HEARSAY
admission of
by consent — 294
provisional — 294-296
statutory requirements — 292-293
best evidence — 290
common-law definition — 305
common-law exceptions — 302-303, 305-308
complexity — 290-291
composite acts accompanied by statements — 307
Constitution — 292
cost effectiveness — 290
cross-examination, need for — 288-289
declarations
about physical sensations — 308
about state of mind — 307
description — 24
dying declarations — 303, 308
electronic evidence and — 442-446
expert evidence, use of — 107
fair trial rights — 292
hearsay in nature — 328-329
interests of justice — 293, 295-296, 298, 300-302
judicial discretion — 287
jury, role of — 287
nature of evidence — 298
nature of proceedings — 296-298
original declarant — 290
prejudice to opponents — 300-302
principle of orality — 289
probative value of — 290-291, 296, 299-304
procedural context — 288-290, 303-304
purpose of evidence — 298-299
reasons for excluding hearsay — 287-288
safeguard against abuse of power — 292
safeguard in jury trials — 287-288
small claims court — 15
societal dimension — 291
specific prejudicial qualities of — 290
spontaneous statements — 303, 306-307
statutory definition of — 287, 293-294
statutory exceptions to – see STATUTORY EXCEPTIONS TO HEARSAY
Page 734
utilitarian basis — 290

vicarious admission of extra-curial statements — 338-340
HISTORY – see DEVELOPMENT OF LAW OF EVIDENCE
Anglo-Saxons — 5
compurgators — 6, 486, 491
Corsnaed — 5, 406, 575
jury — 6, 8
trial by battle — 5, 11, 406
HLA TEST — 428
HOEXTER COMMISSION
small claims courts — 10-11
HOLLINGTON RULE — 109-111, 311-312
HOSTILE WITNESS
antagonistic animus — 489
constitutionality of hostile witness rule — 490-492
cross-examination of own witness — 489-490
demeanour test — 490
meaning of — 391
purpose of procedure — 489-490
subjective test — 489
use of previous consistent statement — 391
use of previous inconsistent statement — 391
HYPNOSIS — 54, 61-62, 100, 470
HYPNOTICALLY INDUCED TESTIMONY — 100
HYPNOTICALLY REFRESHED MEMORY — 54, 61-62, 100, 470
Constitutional due process — 62
I
IDENTIFICATION
appearance of persons — 423-424
blood tests — 428-430
cautionary rule — 590-593
DNA — 428-430
dock identification — 590
fingerprints — 258, 318, 425-426
handwriting, by — 90-91, 97-98, 428, 435, 598
parade — 261-263, 590-591
photographic identification parade — 591-592
tissue typing — 428-430
unconstitutionally obtained evidence — 261-263
voice identification — 593
ILLEGALLY OBTAINED EVIDENCE – see UNCONSTITUTIONALLY OBTAINED EVIDENCE
IMPEACHMENT – see HOSTILE WITNESS; IMPEACHMENT OF OPPONENT’S WITNESS;
IMPEACHMENT OF OPPONENT’S WITNESS
bias — 484-485
collateral issue — 482-484
credibility explained, of — 482-484
cross-examination and finality of response — 482-484
denial, contradiction of — 484
finality of answers as to credit — 482
previous convictions — 484
previous inconsistent statement — 485-486, 492-498
probative value of previous inconsistent statement — 492-498
proof of previous inconsistent statement — 485-486
statutory provisions for — 482
substantive use of previous inconsistent statement — 494-498
Page 735
unconstitutionally obtained previous inconsistent statement — 498-501

veracity, calling a witness to testify on — 486
adversarial system — 487
adverse, witness need not be — 488
calling another witness — 487-488
historical background — 486-487
hostile witness — 391-394
previous inconsistent statement, probative value of — 492-498
previous inconsistent statement, proof of — 488-489, 492-498
previous inconsistent statement, use of in — 488-489
reasons for general rule against impeachment of own witness — 486-487
statutory provision for — 391
substantive use of previous inconsistent statement — 494-498
‘IMPEACHMENT’ EXCEPTION — 215, 240
INADMISSIBLE EVIDENCE
cross-examination — 395
INCEST — 323
INDECENT ASSAULT
character evidence of complainant — 71-74
INDIGENOUS LAW
competence and compellability of witnesses
people married according to — 455
judicial notice of — 528-530
‘INEVITABLE DISCOVERY’ EXCEPTION — 216
INFORMAL ADMISSIONS
admission made before magistrate
common law — 347
Constitutional impact on ‘voluntariness’ — 350-352
person in authority — 347, 349-350
proof of threat or promise — 347-349
statutory provision for — 348
voluntariness — 348-352, 355
conduct, by — 329-337
failure to answer letters — 337
failure to cross-examine — 338
silence, inferred from surrounding circumstances — 329-337
statements in presence of party — 337-338
cross-examination — 338, 512-513
declarations in furtherance of common purpose – see VICARIOUS ADMISSIONS
definition — 327-329
distinguished from formal admissions — 327, 506
evaluation of evidence — 599
exculpatory statements — 353
freely — 355
plea proceedings — 352-355
requirements — 347-352
right to remain silent — 329-336
spouses about each other — 343
statements without prejudice — 346-347
vicarious admissions – see VICARIOUS ADMISSIONS
INFORMER – see INFORMER’S PRIVILEGE; PRIVILEGE CONCERNING POLICE INVESTIGATION
INFORMER’S PRIVILEGE
civil action, application of rule — 181-182
Page 736
communications
exposing methods used in investigation — 179-180
revealing identity of informer — 180-182
constitutionality of privilege — 182-184
court’s duty — 180
extension of — 182
financial intelligence — 184
identity of informer
communication tending to reveal — 180-182
statutory protection of — 179
reasons for — 180
relaxation of rule — 181, 183
statutory duties to report prescribed activities — 184
terrorist activities — 184
INQUISITORIAL TRIAL
accusatorial trial versus — 11-13
free system of evidence — 8, 14-15
small claims court — 10-11
INSANITY, PRESUMPTION OF — 605-606
INSPECTION IN LOCO — 424, 427
INTEGRATION RULE — 40-42
INTELLIGENCE TEST — 55
INTERMEDIARY
adversarial trial — 403, 405-406
age of witness, biological — 405
appointment of, statutory provisions — 405
‘best interests of the child’ — 411-412
child witnesses, trauma of cross-examination — 402-404
closed circuit television — 404, 408, 413, 416-418
court’s power to refuse appointment — 412
impact on defence — 405
independence of — 405-406
judicial discretion — 412
judicial guidelines for appointment of — 412-416
limitation of rights — 409-411
not confined to sexual offences — 405, 416
observation of demeanour, child witnesses — 404-406
participation of in criminal justice system — 406
power to interfere — 405
purpose — 403-404
right to a public trial — 409
SA Law Commission recommendations — 403, 405, 415
separation of child complainant — 409
sexual offences involving children — 405-406, 414
undue mental stress or suffering — 403, 405, 409, 411-412, 414-415
USA confrontation clause — 406-409
versus public policy — 407, 411
INTERROGATION — 154-156
INTERROGATORIES — 312, 318-319, 417-420, 483
INTOXICATED PERSONS — 452-453
IRREBUTABLE PRESUMPTIONS OF LAW
irrebuttable – see IRREBUTABLE PRESUMPTIONS OF LAW
IRREBUTTABLE PRESUMPTIONS
criminal capacity of children — 36-38, 538
meaning of — 25, 35-37, 41, 538
sexual intercourse — 37-38
substantive law, as — 37-38, 538
Page 737
J
JUDGES
functions of — 7
JUDICIAL INTEGRITY — 209
JUDICIAL NOTICE
adjudicative facts — 531-532, 534
common law rule, notorious facts, or readily ascertainable
facts specific to locality of court — 519
general knowledge — 518-519
‘readily ascertainable’, not generally known — 519
Constitutional Court rules — 530-535
canvassing ‘legislative’ facts not in the record — 531
distinguished from ‘adjudicative’ facts in the record — 531-532
‘new facts’ — 534
USA equivalent, ‘Brandeis brief’ explained — 532
defined — 24
distinguished from procedure of receiving evidence — 515-517
irrefutable under English law — 517
possibility of evidence to rebutt — 517
doctrine of — 516, 520
easily ascertainable or not, examples of — 519-527
animals — 520
executive certificates — 521
financial and commercial practices — 523-524
foreign states, sovereignty, state of war — 521
functioning of traffic lights — 524-525
historical facts — 525-526
level of criminal activity — 526
political and constitutional matters — 521
racial characteristics — 520-521
scientific matters and instruments — 522-523
social conditions — 526-527
trade usage — 523-524
facts within the locality of the court — 518
general knowledge — 518-519
judge’s personal knowledge insufficient — 518
judicial officers, role in proceedings — 515
limits of — 518-519
local notoriety — 519
notice taken as a matter of law
foreign law, proved by experts — 528-529
indigenous law — 527-530
public international law, status as custom — 527-528
statutes and common law — 527
notorious facts — 518-519
‘notorious’, among all reasonably well-informed — 519
principle of impartiality — 515
procedure, notification of court’s intention — 517-518
two forms of notice
reference to authority — 516
without inquiry — 516
JUDICIAL OFFICERS AS WITNESSES — 453
JUDICIAL QUESTIONING — 402
JURORS – see JURY
JURY
abolition of, in South Africa — 8, 15
development of — 6-8
functions of judge — 7, 15-16
influence of, on rules of evidence — 8
Page 738
jurors, distinguished from assessors — 15-16

jurors, distinguished from witnesses — 6-7
rationale for exclusion of hearsay evidence — 287-288
L
LANGUAGE EXPERT — 526
LAW REFORM
proposals regarding
confessions — 383
evidence of children — 594
intermediaries — 415
previous consistent statements — 117
relevance — 62-63
LAY
assessors — 15-16, 406
opinions — 96-98
LEADING QUESTIONS — 390-391
LEGAL ADVISER – see COUNSEL; LEGAL PROFESSIONAL PRIVILEGE
LEGAL AID — 166
LEGAL GUILT — 206
LEGAL PROFESSIONAL ETHICS — 398-399
LEGAL PROFESSIONAL PRIVILEGE
access to information, effect of statutory right — 164
acting in professional capacity — 160-161
communication made in confidence — 161
legal aid — 166
other professionals — 167
privileged documents, seizure of — 159-160, 163
purpose of obtaining legal advice — 161-162
rationale for — 158-160
refreshing memory of witness — 166
relaxation of attorney-client privilege — 165
requirements for — 160-162, 165
scope of — 162-166
state witnesses, cross-examination of privileged statements — 164
waiver of right — 165-166
implied vs imputed — 165-166
witness statements, use of to refresh memory — 166
LEGAL RELEVANCE — 56, 290
LEGAL REPRESENTATIVE
vicarious admissions — 343
LEGISLATIVE FACTS – see JUDICIAL NOTICE
LEGITIMACY — 543
LETTERS, POSTING OF — 548-549
LIE-DETECTOR – see POLYGRAPH
LIMITATION CLAUSE — 145, 148, 239, 409, 558
LOGICAL RELEVANCE — 51, 55
M
MACHINE-GENERATED EVIDENCE – see ELECTRONIC OR ‘DIGITAL’ EVIDENCE
camera, speed measuring — 522
MARITAL PRIVILEGE — 168
MARRIAGE
presumptions — 541-542
Page 739
spouses as witnesses – see COMPETENCE AND COMPELLABILITY OF WITNESSES

vicarious admissions by spouses — 343
MAXIMS
falsum in uno, falsum in omnibus — 576
omnia praesumuntur rite esse acta — 548
res ipsa loquitur — 550-552, 580
semel mentitus, semper mentitus — 576
MEDICAL NEGLIGENCE — 551
MEMBERS OF PARLIAMENT — 458
MEMORY OF WITNESS – see REFRESHING OF MEMORY
MENTAL ILLNESS / DEFECT
criminal non-responsibility / incapacity — 604-606
MENTALLY DISORDERED — 452-453
MISLEADING STATEMENTS — 395
MOTIVE — 56-58
N
NARRATIVE STATEMENTS — 344
O
OATH
administration of — 389, 460
admonition as alternative — 390, 461
affirmation as alternative — 389, 461
formal stage in history — 6
oath-helpers – see OATH-HELPERS
subpoena duces tecum — 389-390, 460
unsworn evidence — 390
witness with no religious belief — 390
OATH-HELPERS
credibility of witness — 486, 490
historical role of — 6
OFFENCES
placing a burden of proof on accused — 359-360
OFFICERS OF THE COURT AS WITNESSES — 454
OFFICIAL ACTS — 317, 550
OMNIA PRAESUMUNTUR RITE ESSE ACTA — 548
ONUS – see BURDEN OF PROOF IN CIVIL TRIALS; BURDEN OF PROOF IN CRIMINAL TRIALS
OPINION EVIDENCE
admissibility of — 89-90
as a necessary aid to court — 89-90, 96, 99
certificate of criminal conviction for civil case — 109
‘compendious mode’ of testifying — 92, 96-97
distinction between fact — 90-92, 96-97
expert witness — 99-108
handwriting, genuineness of — 91, 97-98
hearsay evidence from experts — 107-108
Hollington rule — 109-111, 311-312
hypnotherapist — 100
inadmissible expert — 89-90, 92-93, 95-96
inadmissible expert opinion — 106-107
language expert — 95, 526
lay opinion — 96-98
lay persons vs experts — 89-90, 93-94, 96, 98
previous tribunal, opinion of – see HOLLINGTON RULE
Page 740
probative value of opinions — 98, 103-107

procedural requirements — 96, 108-109, 500
psychiatric evidence — 54-55, 411, 453, 487
qualification of experts — 102-103
reasons for the rule — 92-96
reference to textbooks by experts — 108
statutory requirements — 108
‘supererogatory evidence’ — 95-96, 487
‘ultimate issue’ doctrine — 94-96
usurping court’s fact-finding function — 93-94
written reports vs viva voce — 108-109
ORAL EVIDENCE – see CROSS-EXAMINATION; EXAMINATION IN CHIEF; RE-EXAMINATION
after oath or affirmation – see AFFIRMATION; OATH
by affidavit — 420
civil proceedings, medical research — 312
discretion to call for — 319-320
evidence in former proceedings — 420
evidence on commission
civil cases — 419
examination by the court — 401-402
general principle — 388
impeachment, own witness – see HOSTILE WITNESS
interrogatories — 418
leading questions
prohibition of — 390-391
when permitted — 391
perjury under oath — 389
preserved evidence — 420
principle of orality – see PRINCIPLE OF, of orality
purpose of — 388
right to confront — 406-409
subpoena duces tecum — 389
unsworn evidence in criminal proceedings — 390
viva voce evidence — 388-389
witness unable to attend, criminal proceedings — 420
ORALITY, PRINCIPLE OF
confrontation — 388
hearsay evidence and — 289
principle of — 7-8, 16, 289, 388, 469, 479
refreshing of memory — 469, 479
ORDEAL(S)
of accursed morsel — 5
trial by, generally — 4-6
P
PALMPRINTS – see FINGERPRINTS; REAL EVIDENCE
PARENT-CHILD PRIVILEGE — 169
PAROL EVIDENCE RULE
application to other jural acts — 40-44
exceptions to — 42-44
extrinsic evidence — 40-41, 43-44
integration rule — 40-42, 45
interpretation rule — 41, 45
prior oral agreement — 41, 45
rectification — 43-45
substantive law issue — 41-44
Page 741
writing required by law — 41-44

PASSIVE DEFENCE RIGHT — 32, 462
PAST RECOLLECTION RECORDED – see REFRESHING OF MEMORY
PATERNITY — 428-430, 543-545
PEACE OFFICERS
confessions to — 368-371
meaning — 368
PHOTOGRAPHIC IDENTIFICATION PARADES — 591-592
PHOTOGRAPHS — 426-427, 591-592
PINOCCHIO THEORY — 574-575
POINTINGS OUT
confessions — 364-365, 371-374, 376-383
unconstitutionally obtained evidence — 247-251, 253-254, 261, 379
voluntariness of — 351
POLICE – see INFORMER’S PRIVILEGE; POLICE DOCKET; PRIVILEGE CONCERNING POLICE
INVESTIGATION
confessions to — 370
traps used by – see ENTRAPMENT
unconstitutionally obtained evidence and conduct of — 267-272
POLICE DOCKET
access for / to
bail proceedings — 190-191
statements in — 184-191
trial — 184-189
blanket docket privilege – see BLANKET DOCKET PRIVILEGE
constitutional rights — 190
fair trial — 185
POLICE DOGS – see DOGS; ANIMALS
POLYGRAPH — 54
PRECEDENT
doctrine of — 60
PRECIOUS METALS AND STONES — 319
PRESENT RECOLLECTION REVIVED – see REFRESHING OF MEMORY
PRESERVED EVIDENCE — 420
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA — 458-459
PRESUMPTION OF INNOCENCE – see BURDEN OF PROOF IN CRIMINAL TRIALS; STANDARDS
OF PROOF
infringements of — 553-558
written confessions, admissions — 383
PRESUMPTION OF INNOCENCE NOT APPLICABLE
onus on state, proof beyond reasonable doubt — 602-606
voluntariness of confessions — 362, 371
PRESUMPTIONS – see CONSTITUTIONALITY OF PRESUMPTIONS; IRREBUTTABLE
PRESUMPTIONS; PRESUMPTIONS OF FACT; PRESUMPTION OF INNOCENCE;
PRESUMPTIONS OF LAW
PRESUMPTIONS OF FACT
circumstantial evidence and — 579-581
continuance — 580
defamatory statements in telegrams and
defamatory statements in telegrams and — 580
defined — 538-539, 579
inference of probability — 538
Page 742
PRESUMPTIONS OF LAW
bigamy — 323, 542-543
blood sample, refusal of — 544
classification of — 537-539
date of death — 547-548
death — 545-548
definition of — 536
dissolution of marriage — 547
impubes, criminal incapacity — 37-38
irrebuttable – see IRREBUTABLE PRESUMPTIONS OF LAW
legitimacy — 543
letters, posting of — 548-549
male impuberes — 38
marriage — 536, 541-542
nature of — 536
official acts, validity of — 549
omnia praesumuntur rite esse acta — 548
paternity — 543-545
‘presumed’ fact drawn from ‘basic’ fact — 536-537
reasons for — 537
rebuttable — 538
regularity — 548-550
res ipsa loquitur — 550-552
permissible inference, not presumption — 551
validity of will — 36-37
‘PREVENTIVE EFFECT’ ARGUMENT — 205
PREVIOUS CONSISTENT STATEMENTS
admissibility of — 113, 115-117, 119-120, 122-123, 125, 129
delay in making a complaint — 117, 122-123, 127-128
description of rule — 112, 114
dock identification — 128
evidential value of complaints — 125-126
exceptions to rule — 115
first reasonable opportunity rule — 120-124
inferences, statutory prohibitions against the drawing of — 126-128
leading questions prohibited — 118-119
multiplicity of complaints — 123-124
non-coerced complaints, inadmissibility of — 119
prior identification — 128
rationale for exclusion of — 113-114
rebuttal of allegation of fabrication — 115-116
refreshing memory — 129
requirements for admission of complaints — 120-126
res gestae — 129
‘rule against narrative/self-serving statements’ — 113
sexual cases
complaints — 116-128
law reform proposals — 117-118
voluntary complaint — 118-119
‘sexual offence’ requirement — 124-125
signed witness statements — 128
statements at arrest or discovery of incriminating articles — 129
statutory provisions for admission of sexual offences complaints — 117-118
use of during examination in chief — 112, 391
victims of sexual offences — 120, 124-125
witness statement proved by consent — 129
PREVIOUS INCONSISTENT STATEMENT – see HOSTILE WITNESS; IMPEACHMENT OF
OPPONENT’S WITNESS; IMPEACHMENT OF OWN WITNESS
Page 743
PRIMA FACIE EVIDENCE — 540, 555, 584

PRINCIPLE OF
completeness — 60
of impartiality — 515
of orality — 7, 388, 469, 479
PRIOR CONSISTENT STATEMENTS – see PREVIOUS CONSISTENT STATEMENTS
PRIVACY
professional privilege — 168
PRIVATE PRIVILEGE – see CLAIMS TO PROFESSIONAL PRIVILEGE OTHER THAN LEGAL
PROFESSIONAL PRIVILEGE; LEGAL PROFESSIONAL PRIVILEGE; MARITAL PRIVILEGE;
PARENT-CHILD PRIVILEGE; PRIVILEGE AGAINST SELF-INCRIMINATION
distinction between private — 24, 134
PRIVILEGE
distinguished from non-compellability and compellability — 133
private – see PRIVATE PRIVILEGE
state – see STATE PRIVILEGE
waiver of — 134-135, 154
PRIVILEGE AGAINST SELF-INCRIMINATION – see UNCONSTITUTIONALLY OBTAINED
EVIDENCE
against compelled self-incrimination — 244-251
application of privilege to
accomplices turned state witness — 137-138
‘arrested’ — 138-141, 143-144, 155
bail proceedings — 149-152
bail records — 151-155
civil proceedings — 158
juristic persons — 137
real evidence — 253-256
arising from presumption of innocence — 134
ascertainment of bodily features, impact on privilege — 145-149
blood sampling for DNA profiling — 148
bodily features vs communicative statements, constitutionality of — 148-149
constitutional imperative for privilege — 152
criminal proceedings
plea proceedings — 152-155
right to refuse to answer — 135, 157
cross-examination of statements made in bail applications — 150
distinguished from right to remain silent — 134
DPP examinations in private — 157
duties of police officers — 138-140, 143, 145
duties of presiding judicial officers — 135, 152
employer’s disciplinary enquiry — 368
fingerprints — 145-147
forced admissions — 358
history of — 134-135
inquest proceedings — 136
interrogation, other than plea or trial — 155-157
involuntary admissions / confessions — 358
Miranda rule — 135, 139
pointing out, admissions arising from — 377
pre-trial proceedings — 138-149
presumption of innocence — 134
rationale for privilege — 134-135, 137
right to a fair trial — 141-142, 149, 151-154, 156-157
right to legal representation — 139-145
right to remain silent — 134-135, 139-140, 142-143, 145, 148, 152-153, 156
scope of privilege — 138
statutory compulsion to answer — 256, 365
Page 744
unconstitutionally obtained evidence — 244-251, 253-256

unrepresented accused — 463
waiver of right to — 154
witness in criminal proceedings — 135-136
PRIVILEGE CONCERNING POLICE INVESTIGATION – see INFORMER’S PRIVILEGE
observation posts — 182
protection of methods of investigators — 179-180
PROBATIVE MATERIAL
distinguished from evidence — 20-21
evaluation of — 566-567
meaning of — 20-21
PROOF
conclusive proof — 22
prima facie proof — 22
standard of – see STANDARDS OF PROOF
PROVISIONAL ADMISSIBILITY – see CONDITIONAL ADMISSIBILITY
hearsay evidence — 294-296
PSYCHIATRIC EVIDENCE — 55, 487
PUBLIC DOCUMENTS, CHARACTERISTICS OF — 434
PUBLIC INTEREST IMMUNITY – see STATE PRIVILEGE
PUBLIC OPINION — 227-228, 263-267
PUBLIC PRIVILEGE – see STATE PRIVILEGE
PUBLIC SAFETY
exception, USA — 215
R
RACIAL CHARACTERISTICS — 520-521
RAPE
character evidence of complainant — 71-75
RE-EXAMINATION — 401
REAL EVIDENCE – see INSPECTION IN LOCO; MACHINE-GENERATED EVIDENCE
admissibility of
reported evidence — 422
unconstitutionally obtained — 254
approximate age — 423
blood tests — 428-430
blood-alcohol testing — 428
Collins test — 254
competency to testify — 424
court’s duty to describe — 422
data messages as — 445-446
DNA, forensic use of – see DNA (DEOXYRIBONUCLEIC ACID)
failure to present real evidence — 422-423
fingerprints — 425-426
handwriting — 90-91, 97-98, 253, 428, 435, 598
HLA tissue test — 428
immediate vs reported real evidence — 422
inspections in loco — 427-428
paternity testing — 428-430
photographs and films — 426-427
physical appearance of persons — 423-424
receipt of, as exhibit — 421
red blood cell test — 428
relevant real evidence not produced — 422-423
reported — 422-423
Page 745
resemblance to parents — 423

tape recordings as — 424-426
tissue typing — 428-430
unconstitutionally obtained evidence — 253-256, 274-275
video recordings — 426
weight on evidence — 422, 426
witness demeanour, Pinocchio theory — 574-576
REASONS
court required to give — 599-600
REBUTTABLE PRESUMPTIONS OF LAW – see PRESUMPTIONS OF LAW
RECUSAL — 392, 453
RED BLOOD CELL TEST — 428
REFRESHING MEMORY
recollection, past
present recollection revived — 472
REFRESHING OF MEMORY
common-law foundation requirements — 470, 474-478
contemporaneity of recording — 476-477
inability to recollect — 475
personal knowledge — 474-475
police, ‘blanket docket privilege’ — 478
requirements for witness box refreshing — 470, 474-478
use and production of original document — 477-478
verification of document used for — 475-476
document used, probative value of — 478-479
conduct of cross-examiner, ‘letting in the whole’ — 479-480
past recollection recorded, received as evidence — 478
present recollection revived, triggered — 478
during adjournment, procedural rules — 473-475
hypnosis — 61
independent oral testimony, importance of — 469
aid of earlier written record, an exception — 470
receipt of — 472
legal professional privilege — 166
meaning of ‘record’ — 470
ordinary meaning of — 471
pre-trial refreshing, no rule against — 470, 472-473
principle of orality — 469, 479
prior written statements, statutory provision for submission of — 469
receipt of documentary evidence — 472
recollection, past
distinguished from refreshing of memory — 470, 472-473
past recollection recorded — 470-472
present recollection revived — 470
time when refreshment takes place
during an adjournment — 470, 473-474
in the witness box — 470, 474-478
pre-trial refreshing — 470, 472-473
viva voce statements — 469
greater weight than earlier recorded statements — 469
written statements — 469-470, 473
memorising of — 473
RELEVANCE – see CHARACTER EVIDENCE; OPINION EVIDENCE; PREVIOUS CONSISTENT
STATEMENTS; SIMILAR FACT EVIDENCE
animal behaviour — 52-53
collateral issues — 53, 57
completeness, principle of — 60
constitutional right to adduce evidence — 623
Page 746
determination of — 24, 50-60

exclusion of irrelevant facts — 50
influence of Constitutional imperatives — 61-62
influence of facta probanda — 51, 57
intelligence tests — 55
legal relevance — 55
logical relevance — 51, 55
meaning — 50-51
motive — 56-58
multiplicity of collateral issues — 53
opinion – see OPINION EVIDENCE
potential weight of — 52-53
precedent, doctrine of — 60
prejudicial effect — 56-57, 63
probative value — 50, 53, 56-57, 59, 61-63
proliferation of collateral issues — 53
reasonable inference — 52-53
risk of manufactured evidence — 56
role of doctrine of precedent — 60
South African Law Reform Commission proposals — 62-63
REOPENING A CASE — 467-468
REPUTATION
character evidence — 64-66, 71, 75
RES GESTAE STATEMENTS — 306-308
RES IPSA LOQUITUR — 550-552
REVERSE ONUSES – see CONSTITUTIONALITY OF PRESUMPTIONS
RIGHT TO A FAIR TRIAL
accused’s right — 577, 588-589
bail proceedings — 190
co-accused — 239-240
constitutionality of presumptions — 557
entrapment — 237, 279-280
hearsay — 292
police dockets — 175
privilege against self-discrimination — 141-144, 149-153, 155-157
unconstitutionally obtained evidence – see UNCONSTITUTIONALLY OBTAINED EVIDENCE
RIGHT TO CONFRONT — 6, 406-408, 414, 491
RIGHT TO SILENCE – see PRIVILEGE AGAINST SELF-INCRIMINATION
admissions by silence and — 329-336
undefended accused — 463
RULE AGAINST
narrative statements — 113
self-serving statements — 113
RULES OF EVIDENCE
criminal and civil proceedings — 17-18
S
SCIENTIFIC MATTERS AND INSTRUMENTS — 522-523
SECONDARY EVIDENCE
description — 23-24
SELF-CORRECTION — 208
SELF-CORROBORATION – see CORROBORATION (OF EVIDENCE)
SELF-INCRIMINATION
privilege against – see PRIVILEGE AGAINST SELF-INCRIMINATION
SELF-SERVING STATEMENTS — 113
Page 747
SEMEL MENTITUS, SEMPER MENTITUS — 576

SEXUAL OFFENCES
cautionary rule abolished in — 595-598
SIMILAR FACT EVIDENCE
abolition of juries, necessity for rule — 77, 88
admissibility of similar facts — 78, 82
alternative approach to Makin formulation — 88
categorisation — 81
coincidence — 82-84
degrees of ‘strikingly similarly’ — 84
examples of exclusions — 87
facts in issue, determination of relevance — 84
Hollington rule — 109-111
Makin formulation — 78-80
nexus requirement — 80
previous convictions — 81
rationale for exclusion of — 77-78
similarity requirements — 82
test of coincidence alternative to ‘strikingly similarly’ — 82-83
SINGLE WITNESS — 594-595
SMALL CLAIMS COURTS
accusatorial vs inquisitorial procedure — 11-14
admission of evidence — 14
evidence — 9-12
free system of evidence and — 11
hearsay — 15
Hoexter Commission — 10-11
inquisitorial procedure — 9, 14
law of evidence — 10-11
legal representation — 10-11
procedural and evidential system of ordinary courts versus — 9-15
SOCIAL CONDITIONS — 526-527
SOURCES OF SOUTH AFRICAN LAW OF EVIDENCE
civil proceedings, during post-union period — 29
constitutional provisions — 32-33
criminal procedure after Union — 28-29
deviation from English law — 29-31
effect of ‘30 May 1961’ provisions — 29-31
guiding principles for identifying sources — 26-27
incorporation of English law — 27-28
Privy Council decisions — 31
rejection of English law, binding rules of practice — 31
Republic, retention of criminal procedure provisions — 28
role of English case law after 31 May 1961 — 29-31
Supreme Court of Appeal, role of — 30-31
SPEECHLESS PERSONS AS WITNESSES — 453
SPONTANEOUS STATEMENTS — 303, 306-307
SPOUSES
admissions — 343
as co-accused — 457-458
as witnesses see COMPETENCE AND COMPELLABILITY OF WITNESSES, spouses
STANDARDS OF PROOF
absolution from the instance — 625-627
civil cases — 627-628
discharge — 608-613
Page 748
STATE PRIVILEGE – see INFORMER’S PRIVILEGE; PRIVILEGE CONCERNING POLICE

INVESTIGATION
access to information and PAIA — 192-193
alternative terminology — 172-173
Appellate Division, divergence from English common law (1942) — 176
areas of application — 172
bail applications, access to information — 190-191
‘blanket docket privilege’ – see BLANKET DOCKET PRIVILEGE
common law, origin under English law — 171-172, 175-176
conflict between State — 179
Constitutional right of access to information — 191
criminal trials, exclusion of ‘late evidence’ — 187
detection of crime – see INFORMER’S PRIVILEGE
duty of State, not a right of State — 173
executive power, legislative reversal of common law — 176-177
impact of Constitutional imperatives — 177-179
‘judicial peep’ — 178, 188
principles — 177-178
private distinguished from — 24, 134, 173-174
right of access to information — 172, 186, 190, 192-193
separation of powers — 177
statements of state witnesses
right of accused to consult — 189
use in cross-examination — 188
‘waiver’ of State’s duty — 173
STATEMENTS
against interest — 308
by testators — 308
concerning pedigree — 308
exculpatory — 353, 360
in course of duty — 308
incriminating — 360-361
made without prejudice — 346-347
misleading — 395
spontaneous — 306-308
STATES OF EMERGENCY — 240
STATUTORY EXCEPTIONS TO HEARSAY
affidavits as proof of facts
by persons in foreign countries — 321
chain of custody — 319
dead bodies — 319
denial of information furnished — 317
discretion to call for oral evidence — 319-320
fingerprints — 319
official acts — 317
precious metals and stones — 319
specialised skills required — 317-319
state departments, provisional administrations, courts, banks — 317
bankers’ books
criminal proceedings — 323
Constitutionality of, right of accused to challenge — 320-322
criminal court convictions, admission in civil cases — 311-312
documentary evidence
admissibility — 313-316
bigamy, incest, absence for SA — 323
Page 749
‘continuous record’ — 315

determination of weight — 316
in possession/control of association of persons — 323
parties with an interest in the outcome — 316
presumptions pertaining — 323-324
requirements for admissibility — 314
Hollington rule explained — 311-312
measurements, provision for rebuttable evidence of — 320
medical research, affidavit confirming finding — 312
oral evidence, judicial discretion to subpoena — 319-320
preparatory examinations, recorded evidence — 322
sunset and sunrise tables — 312
trade/business records in criminal cases — 322-323
written statements from witnesses — 322
STATUTORY PRESUMPTIONS – see CONSTITUTIONALITY OF PRESUMPTIONS
STRICT SYSTEM OF EVIDENCE — 14-15
SUBORDINATE LEGISLATION
SUBPOENA DUCES TECUM — 389-390, 434-435, 460
SUBSTANTIVE LAW
adjective law, distinguished from — 4, 34-35
law of evidence and — 34-45
SUNRISE AND SUNSET EVIDENCE — 312
SYSTEMS OF EVIDENCE – see ANGLO-AMERICAN SYSTEM OF EVIDENCE; COMMON-LAW
SYSTEM OF EVIDENCE; CONTINENTAL SYSTEM OF EVIDENCE; FREE SYSTEM OF
EVIDENCE; STRICT SYSTEM OF EVIDENCE
aims — 8
T
TAPE RECORDINGS — 424
TELEPHONE CONVERSATIONS
unconstitutionally obtained evidence from — 221, 250-251, 267, 282
TERRORIST ACTIVITIES — 184
TEXTBOOKS
experts referring to — 108
THEORETICAL PRINCIPLES OF FACT-FINDING — 8-9
THRESHOLD TEST
for purposes of s 35(5) of the Constitution — 231
TISSUE TYPING — 428-430
TRADE RECORDS — 322-323, 444
TRAFFIC LIGHTS, FUNCTIONING OF — 524-525
TRAFFIC OFFENCES
presumption of vehicle ownership — 559-560
TRAP – see ENTRAPMENT
TRIAL BY BATTLE
historical origin — 5, 11
right to confront — 406
TRIAL BY ORDEAL – see ORDEAL(S); TRIAL BY BATTLE
TRIAL WITHIN A TRIAL — 151, 188, 245, 270, 276, 327, 356, 371-374, 379, 401, 451
U
‘ULTIMATE ISSUE’ DOCTRINE — 94-96
UNCONSTITUTIONALLY OBTAINED EVIDENCE
administration of justice, reputation
exclusion of real evidence — 274-275
Page 750
test to determine effect of admission on — 32-33, 263-275

administration of justice, reputation of — 266-274
exclusion of real evidence — 274-275
test to determine effect of admission on — 33, 119, 263-275
Anglo-South African common law inclusionary approach — 200, 220-222
availability of lawful means — 273-275
bodily samples — 255
Canadian Charter compromise — 211-220
Collins test, admissibility of real evidence — 254-257, 273
seriousness of infringement of — 218-219
‘causal link’ between violation — 232-236
civil cases, improperly obtained evidence — 281-283
common law approach — 199
competing interests — 201, 246
confessions
non-coerced — 215
Constitution — 198-199, 221, 225, 229
Continental jurisdictions — 199
criminal justice system, use of — 204, 206, 208
derivative evidence — 256-262
discovery on basis of independent source — 275
discretion to exclude — 226-227
DNA — 254
doctrine of legal guilt — 206
due process — 205-206, 208
entrapment — 278-281
evidence emanating from accused — 253-256
exceptions to exclusion rule, USA — 211-212, 216
exclusionary rule
basis and purpose of — 205-209
competing interests — 199-202, 246
origin of — 199-201
United States of America — 209-216
fair trial
application — 230-241
as criterion for exclusion — 241
co-accused’s right to — 239-240
content of accused’s constitutional right to — 242
court’s discretion — 242-244
derived statutorily — 256-261
identification, accused unrepresented — 261-263
impact of constitutionalization — 242
privilege against self-incrimination — 244-247, 251
protection of and Interim Constitution — 224-226
tests for admission of — 240-263
Fourth Amendment, USA — 209-211
good faith
police conduct — 267-272
identification parades — 261-263
impeachment of accused — 215, 241
‘impeachment’ exception, USA — 215, 240
inclusionary approach
arguments for — 202-204
development since constitutionalization — 220-222
historical use — 200-201
independent source
discovery on basis of — 275
Page 751

interests of society — 219
Interim Constitution — 222-228
judicial discretion — 200, 226-227, 230, 242-244
judicial integrity — 207
limitation clause — 239
Mapp rule, USA — 209-211
Miranda-warnings – see PRIVILEGE AGAINST SELF-INCRIMINATION
absence of — 244-250
ambit of — 214-216
description — 213-214
exceptions to — 215-216
‘impeachment’ exception — 215, 240
‘inevitable discovery’ exception, USA — 216
‘public’ safety exception, USA — 215
waiver of right — 214-215
nature and seriousness of violation — 273
origin of exclusionary principle, US Bill of Rights — 199
pointings out — 247, 250, 253, 261, 271
police conduct, in good faith — 267-272
police powers, regulation of — 209
‘preventive effect’ argument — 205
previous inconsistent statement — 498-501
primary rules — 209
private individuals, obtained from — 237-238
public opinion — 227-228, 263
public safety — 215, 272
real evidence — 226, 253-256, 273-275
application of rule in Collins — 273
‘inevitable discovery’ of — 275
repute of system — 227-228
secondary rules — 209
self-correction, principle of — 208
standing — 210, 217, 234, 236-237
states of emergency — 240
‘stop and frisk’ exception, USA — 212
telephone conversations — 220, 250-251, 266, 282
tests to determine admission of
detrimental to administration of justice — 263-275
fairness of trial — 240-263
threshold test for purposes of s 35(5) of the Constitution — 231-232
unfair trial, when caused by admission of
admission of real evidence — 274-275
test for — 263-264, 267
urgency — 272
United States of America — 199-209, 216
vigilantes, by — 238
violation, nature — 273
UNSWORN EVIDENCE — 390
V
VELD FIRES — 621
VERDICT
assessors, role of — 15-17
jurors, role of — 15-17
reasons for — 16
right of accused — 598, 601
Page 752
untruthful evidence — 574

VEXATIOUS QUESTIONS — 395
VICARIOUS ADMISSIONS
admission of extra-curial statements — 338-342
agents — 342
common purpose, acts in furtherance of — 344-345
common purpose, declarations in furtherance of — 344-345
conspiracy — 344
employer and employee — 345
exceptions to rule — 342-345
exclusion of as hearsay — 338
executive statements — 344
express authority — 342-344
hearsay — 338-342
implied authority — 342-344
legal representatives — 343
narrative statements — 344-345
nominal — 345
partners — 343
predecessors in title — 345
privity or identity of interest or obligation — 345
referees — 344
spouses — 343
VIDEO RECORDINGS — 426-427
VOICE IDENTIFICATION — 593
W
WEIGHT OF EVIDENCE – see BURDEN OF PROOF IN CIVIL TRIALS; BURDEN OF PROOF IN
CRIMINAL TRIALS; EVALUATION OF EVIDENCE; STANDARDS OF PROOF
admissibility of evidence versus — 52-53, 60
documentary evidence — 316
of data messages — 443-444
real evidence and — 422, 426
relevance — 52-53
viva voce statements — 469
WITHOUT PREJUDICE see STATEMENTS, made without prejudice
WITNESSES – see COMPETENCE AND COMPELLABILITY OF WITNESSES – see CROSS-
EXAMINATION; EXAMINATION IN CHIEF; RE-EXAMINATION
accused as — 454-455
active vs passive defence right — 462
adducing of evidence — 463
called first — 463
more than one accused — 453-454
calling of
by court — 402, 464-465, 467
by defence — 462-464
by state — 461-462
expert witnesses — 466
in civil proceedings — 465-467
on appeal — 468
party control — 465
presentation of evidence — 465
recalled by court — 465
right to begin — 465
sequence for examination of — 463-464
to wait outside — 460-461
use of subpoena — 460
Page 753
with documents – see SUBPOENA DUCES TECUM

cautionary rules with certain witnesses — 588-589
children as — 451-452
compellability – see COMPETENCE AND COMPELLABILITY OF WITNESSES
competence – see COMPETENCE AND COMPELLABILITY OF WITNESSES
death of during cross-examination — 400
disputed facts, resolution of — 566
examination by court — 401-403
examination of witnesses — 461
explanation of right to remain silent — 462-463, 586
failure to
call — 587-588
false testimony — 577
hearing of further evidence, requirements for
appeal, review, remittal — 468
hostile witness – see HOSTILE WITNESS
identification of offenders, evidence for — 590-593
impeachment of – see HOSTILE WITNESS; IMPEACHMENT OF OPPONENT’S WITNESS;
intoxicated persons as — 452-453
jurors distinguished from — 7
mentally disordered as witnesses — 452-453
oath by – see OATH
presence in courtroom, in criminal cases — 460-461, 581-583
previous experience of court — 581
reopening of case — 467-468
single — 594-595
spouses as — 455-458
unable to attend to proceedings — 420
unrepresented accused — 462-463, 583
not the first witness, adverse inference — 583
WRITING/WRITTEN
admission of extrinsic evidence – see PAROL EVIDENCE RULE
confessions made to peace officers — 370-371
contracts as sole memorial of agreement — 42
disputes, statutory provision for proof of veracity — 426-429
expert witness, report of — 108-109
informal admissions — 329
inquisitorial procedure — 13
statements admitted by consent — 322
statements by witnesses — 128-129

Principles of Evidence - 4th Edition

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Principles of Evidence - 4th Edition

Uploaded by

Copyright:

Available Formats

Page v

62 Character in Criminal Cases

10 2 3 1 1 Ascertainment of bodily features

11 5 1 2 Information which only becomes available after commencement

12 6 3 The interest of society in an adjudication on the merits

12 11 2 The burden of proof: incidence and standard

15 Selected Statutory Exceptions to the Hearsay Rule –P J Schwikkard

16 5 1 Express or implied authority

17 8 3 Factors affecting admissibility

18 11 5 Law reform proposals

26 4 2 Procedure for withdrawal

30 11 1 Instances of suspected deliberate false evidence

Mode of citation of principal works and sources

ASSAL Annual Survey of South African Law

S E van der Merwe

1 2 Scope and Functions of the Law of Evidence

1 3 Early History and Development of the English Law of

1 3 1 The religious (primitive) stage

1 3 2 The formal stage

1 3 3 The rational stage (and development of the jury) [26]

1 4 Procedural and Evidential Systems and Some Universal

1 5 Ordinary Courts and Small Claims Courts: An Examination of

1 5 1 Small claims courts and the inquisitorial procedure and free

1 5 2 Accusatorial versus inquisitorial procedure [53]

1 5 3 Strict versus free system of evidence [67]

1 6 Jurors and Assessors: Some Brief Comparative Remarks

1 7 Rules of Evidence in Criminal and Civil Proceedings

[1] Tapper Cross & Tapper on Evidence 12 ed (2010) 1.

S E van der Merwe

2 2 Facts in Issue and Facts Relevant to the Facts in Issue

2 3 Evidence and Argument

2 4 Evidence and Probative Material

also do not constitute evidence (see further § 2 17 below).

2 5 Evidence and Proof [17]

2 6 Conclusive Proof and Prima Facie Proof

2 7 Admissibility and Weight of Evidence

2 8 Conditional Admissibility [26]

2 9 Circumstantial and Direct Evidence [31]

Circumstantial evidence often forms an important component of the information furnished to

2 10 Primary and Secondary Evidence

2 14 Formal and Informal Admissions

2 18 The Burden of Proof (Onus of Proof, Legal Burden) and the

[1] Four definitions of the concept “relevance” are furnished in § 5 3 below.

S E van der Merwe

3 2 Original and Regional Incorporation of English Law: The

example, s 45 of Evidence Proclamation 16 of 1902). Residuary sections (see § 3 5 below)

3 3 Criminal Proceedings: The Post-Union Period

3 4 Civil Proceedings: The Post-Union Period

3 5 Interpretation of the 30 May 1961 Provision

3 5 1 English decisions considered to be incorrect

3 5 2 South African rules of practice incompatible with English law [32]

3 5 3 Rules inconsistent with constitutional provisions

3 6 Value of English Cases Decided after 30 May 1961

3 7 Value of Privy Council Decisions [37]

E van der Berg and A Govindjee

4 2 The Significance of the Distinction

4 3 The Burden of Proof [15]

4 4 Irrebuttable Presumptions [19]

4 6 4 The interpretation rule

[1] See § 1 1 above.

5 Relevance and Admissibility –S E van der Merwe

S E van der Merwe

5 2 Rationale for the Exclusion of Irrelevant Evidence

5 3 The Meaning of Relevance and the Determination of