Law of Evidence Study Guide 2020

STUDY GUIDE
[LAW OF EVIDENCE]
Bachelor of Laws [LLB]
[LPEV 3771]
Centre for Open, Distance and e-Learning

Materials Development and Instructional Design Department
Copyright
Copyright©2020 University of Namibia. All rights reserved. No part of this publication may be
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Centre for Open, Distance and e-Learning

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Acknowledgements
The Centre for Open, Distance and e-Learning Materials Development and Instructional Design
Department wishes to thank those below for their contribution to this study guide:
Eugene Lizazi Libebe Author
Dr Ndati Victoria Asheela Content Editor
Mr Godwin Murangi Instructional Designer
Ms. Karoline du Plessis Language Editor
Gabriel Uunona Quality Controller

[LAW OF EVIDENCE]
Contents
About this study guide 1
How this study guide is structured ................................................................................... 1
Course overview 3
Welcome to [Add Course title here] [Course Code] ........................................................ 3
[Add Course title here] [Course Code]—is this course for you? ..................................... 3
Exit Learning Outcomes ................................................................................................... 3
Time frame ....................................................................................................................... 4
Study skills ....................................................................................................................... 4
Need help? ........................................................................................................................ 5
Assignments...................................................................................................................... 6
Assessments ...................................................................................................................... 6
Getting around this study guide 7

Margin icons ..................................................................................................................... 7
Unit 1 8
[Add unit title here] .......................................................................................................... 1
Introduction ............................................................................................................. 8
[First topic heading] .............................................................................................. 10
[Sub-topic heading] ............................................................................................................ 1
[Second topic heading] ......................................................................................... 12
[Third topic heading] .............................................................................................. 1
Unit summary ................................................................................................................. 15
References ...................................................................................................................... 16
Unit 2 17
Introduction ........................................................................................................... 17
[First topic heading] ................................................................................................ 1
[Second topic heading] ........................................................................................... 1
Unit summary ................................................................................................................. 27
References ...................................................................................................................... 27
Unit 3 28
Introduction ........................................................................................................... 28
Unit summary ................................................................................................................. 38
References ...................................................................................................................... 38
Unit 4 40
Introduction ........................................................................................................... 40
Unit summary ................................................................................................................. 55
References ...................................................................................................................... 56
Unit 5 58
Introduction ........................................................................................................... 58
Unit summary ................................................................................................................. 65
References ...................................................................................................................... 66
Unit 6 67
Introduction ........................................................................................................... 67
Unit summary ................................................................................................................. 76
References ...................................................................................................................... 77
Unit 7 78
Introduction ........................................................................................................... 78
Unit summary ................................................................................................................. 88
References ...................................................................................................................... 89
Unit 8 90
Introduction ........................................................................................................... 90
Unit summary ............................................................................................................... 104
References .................................................................................................................... 105
Unit 9 106
Introduction ......................................................................................................... 106
Unit summary ............................................................................................................... 113
References .................................................................................................................... 113
Unit 10 114
Introduction ......................................................................................................... 114
Unit summary ............................................................................................................... 120
References .................................................................................................................... 121
Unit 11 122
Introduction ......................................................................................................... 122
Unit summary ............................................................................................................... 130
References .................................................................................................................... 131
Unit 12 132
Introduction ......................................................................................................... 132
Unit summary ............................................................................................................... 147
References .................................................................................................................... 147
Unit 13 149
Introduction ......................................................................................................... 149
Unit summary ............................................................................................................... 182
References .................................................................................................................... 182
Unit 14 184
Introduction ......................................................................................................... 184
Unit summary ............................................................................................................... 193
References .................................................................................................................... 194
[LAW OF EVIDENCE]
About this study guide

[LAW OF EVIDENCE] [LPEV 3771] has been produced by the Centre
for Open, Distance and e-Learning. All study guides produced by the
Centre for Open, Distance and e-Learning are structured in the same way,
as outlined below.
How this study guide is structured

The course overview
The course overview gives you a general introduction to the course.
Information contained in the course overview will help you determine:
▪ If the course is suitable for you.
▪ What you will already need to know.
▪ What you can expect from the course.
▪ How much time you will need to invest to complete the course.
The overview also provides guidance on:
▪ Study skills.
▪ Where to get help.
▪ Course assignments and assessments.
▪ Activity icons.
▪ Units.
We strongly recommend that you read the overview carefully before

starting your study.
The course content

The course is broken down into units. Each unit comprises:
▪ An introduction to the unit content.
1
About this study guide Introduction to Law of Evidence
▪ Unit outcomes.
▪ New terminology.
▪ Core content of the unit with a variety of learning activities.
▪ A unit summary.
▪ Assignments and/or assessments, as applicable.
▪ Answers to Assignment and/or assessment, as applicable
Resources
For those interested in learning more on this subject, we provide you with
a list of additional resources at the end of this study guide; these may be
books, articles or web sites.
Your comments
After completing [LAW OF EVIDENCE] we would appreciate it if you
would take a few moments to give us your feedback on any aspect of this
course. Your feedback might include comments on:
▪ Course content and structure.
▪ Course reading materials and resources.
▪ Course assignments.
▪ Course assessments.
▪ Course duration.
▪ Course support (assigned tutors, technical help, etc.)
Your constructive feedback will help us to improve and enhance this

course.
2
[LAW OF EVIDENCE]
Course overview
Welcome to [LAW OF EVIDENCE]

[LPEV 3771]
The course is designed to provide students with a detailed understanding
of the general principles of the law of evidence. The primary objectives of
the course are therefore to develop a thorough understanding of these
concepts and how they are applied in practice to everyday situations. The
scope of the course consists mainly of case law and relevant Namibian and
applicable South African legislation. Course materials are provided
consisting of cases and general principles from various sources.
[LAW OF EVIDENCE] [LPEV

3771]—is this course for you?
At the University of Namibia the Law of Evidence is taught in the Third
year of the Bachelor of Laws (LLB) programme. It is a semester course
and is offered as a double module comprising four hours of lectures per
week.
Exit Learning Outcomes

The exit learning outcomes for this course are:
▪ Discuss the historical development, the nature, the scope, and the
sources of the law of evidence in Namibia
▪ Explain the concepts of relevance, admissibility, and the process of

proof;
Exit Learning Outcomes
▪ Critique the inquisitorial and accusatorial (adversarial) systems of
evidence;
▪ Discuss the processes and standards of proof in civil proceedings
and criminal proceedings;
▪ Explain the “Exclusionary Rules” as applied by our courts;
▪ Explain the evidential rules related to the protection of an accused in
criminal proceedings;
▪ Evaluate the competence and compellability of witnesses in court
proceedings;
3
Course overview Introduction to Law of Evidence
▪ Classify the various forms of evidence;

▪ Explain the course of a trial.
▪ Analyse law of evidence in the lens of decolonization and the 4th
Industrial Revolution.
Time frame
This is a semester Course. This means it will take you 14 weeks of study
to complete this course
We expect you to spend at least 8 hours per week studying this course.
How long?
Study skills
As an adult learner your approach to learning will be different to that from
your school days: you will choose what you want to study, you will have
professional and/or personal motivation for doing so and you will most
likely be fitting your study activities around other professional or domestic
responsibilities .
Essentially you will be taking control of your learning environment. As a

consequence, you will need to consider performance issues related to time
management, goal setting, stress management, etc. Perhaps you will also
need to reacquaint yourself in areas such as essay planning, coping with
exams and using the web as a learning resource.
Your most significant considerations will be time and space i.e. the time
you dedicate to your learning and the environment in which you engage in
that learning.
4
[LAW OF EVIDENCE]
We recommend that you take time now—before starting your self-study—

to familiarize yourself with these issues. There are a number of excellent
resources on the web. A few suggested links are:
▪ http://www.how-to-study.com/
The “How to study” web site is dedicated to study skills resources. You
will find links to study preparation (a list of nine essentials for a good
study place), taking notes, strategies for reading text books, using
reference sources, test anxiety.
▪ http://www.ucc.vt.edu/stdysk/stdyhlp.html
This is the web site of the Virginia Tech, Division of Student Affairs.
You will find links to time scheduling (including a “where does time
go?” link), a study skill checklist, basic concentration techniques,
control of the study environment, note taking, how to read essays for
analysis, memory skills (“remembering”).
▪ http://www.howtostudy.org/resources.php
Another “How to study” web site with useful links to time management,
efficient reading, questioning/listening/observing skills, getting the
most out of doing (“hands-on” learning), memory building, tips for
staying motivated, developing a learning plan.
The above links are our suggestions to start you on your way. At the time
of writing these web links were active. If you want to look for more go to
www.google.com and type “self-study basics”, “self-study tips”, “self-
study skills” or similar.
Need help?
For routine enquiries please contact the Student Support Department at
+264 61 206 3416.
For further assistance you can go to your nearest Regional UNAM Centre.
Help
5
Course overview Introduction to Law of Evidence
Assignments
Please see tutorial letter for instructions on the submission of
assignments.
Assignments
Assessments
Course materials may have activities and/or self-assessment exercises to
check your own understanding of the material, but there are also tutor-
marked assignments/tests which you have to submit. Please see tutorial
letter for more details.
Assessments
6
[LAW OF EVIDENCE]
Getting around this study guide
Margin icons
While working through this study guide you will notice the frequent use of
margin icons. These icons serve to “signpost” a particular piece of text, a
new task or change in activity; they have been included to help you to find
your way around this study guide.
A complete icon set is shown below. We suggest that you familiarize

yourself with the icons and their meaning before starting your study.
Activity Additional Answers to Assessment

reading Assessments
Assignment Audio Case study Discussion
Exit Learning Feedback Group Activity Help

Outcomes
Prescribed Recommended
Note it!/Warning Outcomes Reading website
References Reflection Study skills Summary
Terminology Tip Video
7
Unit 1 Introduction to Law of Evidence
Unit 1
Introduction to Law of Evidence
Introduction
Law of evidence, like criminal procedure and civil procedure, forms part
of adjective law or procedural law. While substantive law provides for
rights and duties; adjective law on the other hand provides procedural
mechanisms whereby rights and duties are enforced, and the law of
evidence forms part of the latter. This unit briefly introduces the law of
evidence including: the historical background, the scope and functions of
the law of evidence, the sources of law of evidence in Namibia, the two
systems of evidence, and the relationship between law of evidence and
substantive law.
The law of evidence is essentially a practical subject that can only be

properly understood within the context of practical application of civil and
criminal procedure. This study guide therefore provides students with clear
explanations and descriptions of the basic principles that they need to
master in order to have a fundamental understanding of the law of
evidence.
Our law of evidence is based on English law, but this is subject to the
Constitution, which is the supreme law of Namibia.1 Our courts in the past
received all admissible evidence, no matter whether it was obtained
lawfully or properly or not, except where the probative value of the
evidence was outweighed by its prejudicial effect (the traditional
approach). With the enactment of the Constitution, Namibia has joined a
number of countries that tend to exclude evidence where its admission
would violate the constitutional rights of the accused (for example, not to
incriminate himself/herself, the right to a fair trial etc.).
1
Article 1(6) of the Namibian Constitution.
8
[LAW OF EVIDENCE]
Upon completion of this unit you should be able to:
▪ Discuss the historical development of the law of evidence.

▪ Discuss the scope and functions of the law of evidence.
▪ Discuss the sources of the law of evidence in Namibia.
Outcomes ▪ Critique the two trial systems of evidence.

▪ Explain the relationship between law of evidence and substantive law.
Schwikkard, PJ & Van Der Merwe, SE. 2016. Principles of Evidence,

Fourth Edition. Juta: Cape Town.
Prescribed reading
Zeffertt, DT & Paizes, AP. 2009. The South African Law of Evidence, 2nd
Edition. LexisNexis Butterworths: Durban.
Bellengere, A., Theophilopoulos, C., & Palmer, R (Eds.). 2019. The Law
of Evidence in South Africa, Second edition. Oxford University Press;
South Africa.
Additional reading
Corrin, J. 2017. ‘Searching for appropriate criminal evidence laws in the
South Pacific’, The International Journal of Evidence and Proof, 21(3)
230-241.
William, C. 1999. ‘Advantages and disadvantages of the adversarial

system in criminal proceedings’, Law Faculty Publications, Paper 224.
Available at http://epublications.bond.edu.au/law_pubs/224.
Mapaure, C. et al. 2014. The law of pre-trial criminal procedure in

Namibia. University of Namibia Press: Windhoek.
Van der Merwe, DP., Naude, BC., & Moodley, K. 2013. The Law of
Evidence: Cases and Statues. Juta & Company Ltd: Cape Town.
Hoffmann, LH & Zeffertt, DT. 1988. The South African Law of Evidence,
Fourth edition. Butterworths: Cape Town.
Zeffert, DT., Paizes, AP & Skeen, AQ. 2003. The South African Law of
Evidence. LexisNexus Butterworths: Durban.
9
1 The Historical Development of the Law of Evidence

The early history and the evolution of English law of evidence can be
divided into three basic, successive stages discussed below.2
The religious (primitive) stage

During the religious stage one man could not sit in judgment upon another.
Trial by ordeal e.g. swallowing the dry morsel of bread and prayer or trial
by battle or duel was considered the perfect aid in fact-finding. It was really
an appeal to God or gods to decide the factual dispute as the fact finder for
human disputes. It is suggested that the roots of the present accusatorial
2
See Schwikkard, PJ & Van Der Merwe, SE. 2016. Principles of Evidence,
Fourth Edition. Juta: Cape Town, pp. 4-7.
10
[LAW OF EVIDENCE]
trial system can be traced to the trial by battle - physical confrontation

gradually developed into verbal confrontation.3
The formal stage

During this stage the oath was the primary mode of proof and mistakes in
form were considered fatal. In 1215 Pope Innocent III forbade priests to
administer ordeals. In England the use of oath-helpers, later called
compurgators became popular.4 Compurgators were not eye witnesses but
people prepared to state under oath that the oath of one of the parties must
be believed. The party who summoned a large number of compurgators
won the case. In trials by compurgation the oath and number of oaths were
decisive, there was no weighing of evidence.
Even today the oath plays an important role in the law of evidence, for
example, a witness in criminal proceedings must make an oath or
affirmation to tell the whole truth and nothing but the truth before leading
evidence. The oath is thought to provide the strongest hold on the
consciousness of men.5
The rationale stage

During the rationale stage compurgators were called to act as adjudicators
because of their knowledge of events. This is where the crude form of trial
by jury developed. 6 As populations increased and everyday activities
became complex it is then that the calling of witnesses (receipt of oral
testimony or the principle of orality) developed. Some statutory reforms in
the 19th and 20th century abolished the trial by jury, including in South
Africa. However, the jury system was a significant factor to shaping the
law of evidence.7
What is the law of evidence and why is it significant?

Activity
3
Ibid.
4
Ibid at 6.
5
Ibid.
6
Ibid at 6-7.
7
Schwikkard & Van Der Merwe, 2016.
11
Law of evidence is a branch of law that forms part of adjective law or

procedural law as opposed to substantive law. While substantive law
provides for rights and duties; adjective law on the other hand provides
procedural mechanisms whereby rights and duties are enforced, and the
Feedback
law of evidence forms part of procedural law. It mainly regulates the rules,
procedures and processes pertaining to the presentation, admissibility and
evaluation of evidence in the courts and quasi-judicial settings.
In essence, evidence may be broadly defined as any information that a court

has formally admitted in civil or criminal proceedings, or at administrative
or quasi-judicial hearings.
See Bellengere, A., Theophilopoulos, C., & Palmer, R (Eds.). 2019. The
Law of Evidence in South Africa, Second Edition. Oxford University Press;
South Africa, p. 2.
2 Scope and Functions of the Law of Evidence

The law of evidence governs the proof of facts in a court of law. It is part
of the procedural machinery or procedural law that gives practical meaning
and effect to rules of substantive law. The scope of law of evidence can be
determined with reference to specific functions. The main functions of the
law of evidence include:8
1) to determine what facts are legally relevant, receivable or

admissible to prove facts in issue;
2) to determine the manner in which evidence must or may be

adduced; and what evidence may be lawfully withheld from court;
3) To set rules for assessing the weight or cogency of evidence and

standards of proof to be satisfied.
3 The Main Sources of Law of Evidence in Namibia
1) The Constitution of the Republic of Namibia.
8
Ibid.
12
[LAW OF EVIDENCE]
2) English common-law.
3) The Criminal Procedure Act, 51 of 1977.
4) The Civil Proceedings Evidence Act, 25 of 1965.
5) The Foreign Courts Evidence Act, 2 of 1995.
6) Case law.
4 The Two Trial Systems of Evidence: the accusatorial (adversarial) and

the inquisitorial trial systems
The ultimate difference between adversarial and inquisitorial system lies
in the functions of the parties in vowed in the criminal proceedings, namely
the prosecution, the presiding officer/judge and the investigation officer.
The accusatorial (adversarial) trial procedure or system is rooted in the

early ritual of trial by battle and has three leading features: parties are
responsible for the presentation of evidence to support own case; the
adjudicator is required to play a passive role; and much emphasis is placed
on the oral presentation of evidence and the cross-examination of witnesses
(considered the greatest legal engine for discovery of truth). 9 The
adversarial system is structured in a way that the prosecution is dominus
litis in the the two-sided structure under which criminal trial courts operate
that pits the prosecution against the defense. Justice is done when the most
effective adversary is able to convince the court beyond a reasonable doubt
that an accused who is presumed innocent before proven guilty is either
guilty or innocent.
The inquisitorial model or trial procedure on the other hand is judge-

centered – the presiding judge is dominus litis. It proceeds from the premise
that a trial is an inquiry in establishing truth and not a contest of opposing
parties.10 In this system judicial examination is a pivotal mechanism in the
process of fact-finding. There is no cross-examination of witnesses, hence
it puts the written word as means of receiving evidence.11
Namibia subscribes to the accusatorial/adversarial trial system; whereas

the inquisitorial trial system is common in continental Europe. However,
the Namibian system is often said to be a ‘hybrid’ embracing both elements
of the accusatorial and inquisitorial trial system. For example, the Family
Courts in the Magistrates’ or High Court is more inquisitorial in nature,
9
Ibid: see also William, C. 1999. ‘Advantages and disadvantages of the
adversarial system in criminal proceedings’, Law Faculty Publications, Paper
224. Available at http://epublications.bond.edu.au/law_pubs/224; Mapaure, C. et
al. 2014. The law of pre-trial criminal procedure in Namibia. University of
Namibia Press: Windhoek, pp. 77-88.
10
Ibid.
11
Ibid.
13
and the application of section 167 of the CPA. Namibia therefore operate
under an adversarial legal system where the prosecution does the
questioning , although the presiding officer may question the accused in
matters of uncertainty and the presiding officer may also direct the court.
Below is a brief contrast between the accusatorial and inquisitorial

models.12
The Accusatorial System The Inquisitorial System
▪ Truth becomes too ▪ The judge can find out

often the view of the what he or she wants to
powerful party. know (he or she is in
charge of the inquiry
▪ The judge does not from the start).
pose questions and
seek answers, he or ▪ The inquisitor is not
she is to a certain confined.
extent confined.
▪ It is referred to as a
▪ It is in essence the natural system of fact-
notion of opponents finding.
engaged in a forensic
duel. This can ▪ It dispenses with
generate unnecessary technical rules, and it is
conflict to the also applied in our
dispute. everyday activities.
▪ The outcome of a ▪ The system is

case depends on the accompanied by the free
ability, wit, energy, or system of evidence.
ruthlessness the
cross-examiner ▪ It is said to be used by
displays. genuine seekers of truth.
▪ Procedural or formal
truth can be promoted
at the expense of
material truth.
▪ The system is
concomitant of the
12
Schwikkard & Van Der Merwe (2016), pp. 11-13; Bellengere, A.,
Theophilopoulos, C., & Palmer, R (Eds.). 2019. The Law of Evidence in South
Africa, second edition. Oxford University Press; South Africa, pp. 11-13.
14
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strict system of
evidence.
5 Law of Evidence and Substantive Law

Substantive law is often distinguished from adjective law which the law of
evidence forms part of. Substantive law provides for rights and duties,
whereas adjective law provides the procedural mechanisms whereby those
rights and duties are enforced.13
However, adjective law also provides rights and duties. For example, the
right of a party in a trial to cross-examine, rules relating to discovery of
documents, and the calling of expert witnesses. The question then arises
whether the distinction between substantive law and adjective law has any
practical significance. In this context see the views on the distinctions with
regards to the burden of proof, irrebuttable presumptions, estoppel, and
parole evidence.14
Unit summary
In this unit you learned:
▪ The historical development of the law of evidence
▪ The meaning, significance, scope and functions of law of evidence.

Summary
▪ The sources of law of evidence in Namibia.
▪ The two systems of evidence (the accusatorial and inquisitorial

trial procedure).
▪ The relationship between substantive law and adjective law or the

law of evidence.
13
Schwikkard & Van Der Merwe (2016).
14
Ibid at 34-45.
15
References

References
Edition. LexisNexis Butterworths: Durban
William, C. 1999. ‘Advantages and disadvantages of the adversarial

system in criminal proceedings’. Law Faculty Publications.Paper 224.
Available at http://epublications.bond.edu.au/law_pubs/224.
of Evidence in South Africa, Second Edition. Oxford University Press;
South Africa.
Corrin, J. 2017. ‘Searching for appropriate criminal evidence laws in the

South Pacific’, The International Journal of Evidence and Proof, 21(3)
230-241.
Fourth Edition. Butterworths: Cape Town.
Zeffert, DT., Paizes, AP., & Skeen, AQ. 2003. The South African Law of
16
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Unit 2
Basic Concepts and Distinctions
Introduction
This unit provides an overview of the basic concepts and distinctions used
in the law of evidence. This overview enables students to understand the
common various terminologies used in this subject. More importantly, the
unit will also focus on the important concepts of relevance and
admissibility. The concepts covered herein will be encountered again in
the rest of this study guide.
▪ Define and explain some general conceptual narratives or

terminologies used in the law of evidence.
▪ Describe and explain the concepts of relevance and admissibility.
Outcomes
▪ Explain the cogency or quantum of proof in civil and criminal
proceedings.
Schwikkard, PJ., & Van Der Merwe, SE. 2016. Principles of Evidence,
Prescribed reading
Zeffertt, DT., & Paizes, AP. 2009. The South African Law of Evidence, 2nd
17
Unit 2 Basic Concepts and Distinctions
of Evidence in South Africa, second edition. Oxford University Press;
South Africa.
Additional Reading
Hoffmann, LH., & Zeffertt. 1988. The South African Law of Evidence,
1 Important terminology and concepts
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 to succeed. The facts relevant to the facts in issue (facta probantia)
are those facts which tend to prove or disapprove the facts in issue.15
For example in a paternity case the identity of the father will be the fact
in issue (factum probandum), and sexual intercourse with alleged father
will be a fact relevant to the fact in issue (factum probans).
Evidence and probative material

Evidence consists of oral statements made under oath or affirmation in
court (oral evidence), documents (documentary evidence), and objects
(real evidence) produced and received in court. Admissions of an accused
in terms of Section 115 plea of Criminal Procedure Act cannot be
classified as evidence but probative material.16
15
Schwikkard & Van Der Merwe, 2016, p. 19.
16
See S v Mjoli 1981 3 SA 1233 (A) @ 1247-8; and S v Mokgeledi 1968 4 SA
335 (A) @ 337.
18
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Argument
Arguments in court are persuasive comments made by the parties or their
legal representative on questions of fact or law. In addition, legal
representatives have the right, before judgment, to make submissions on
cogency of evidence received during the trial. Their comments however
do not amount to evidence.17 Parties also have the right to make
objections and arguments with regard to admissibility of certain evidence.
But these comments too do not constitute evidence.
Proof
Proof of a fact means the court has received probative material with
regard to such fact and has accepted such fact as truth.18 Evidence of fact
is not yet proof of such fact unless the court decides whether or not a fact
is proved. Facts are proved in accordance with certain standards both in
criminal and civil cases. In criminal proceedings the standard of proof is
proof beyond a reasonable doubt. In a civil case the standard of proof is
proof upon a balance of probability.
Conclusive proof and prima facie proof

The term conclusive means that a rebuttal is no longer possible, the proof
is taken as decisive and final. Prima facie is a Latin term (first face or
based on first impression) which implies that proof to the contrary still
possible.19 In absence of proof to the contrary, prima facie proof becomes
conclusive proof. Prima facie proof is sometimes used as synonym with
prima facie evidence but others argue that there is no such thing as
‘prima facie evidence’.
Admissibility of evidence
Admissibility refers to acceptability, adequateness, allowableness, or
permissibility of evidence in either civil or criminal proceedings. There
are no degrees of admissibility, evidence is either admissible or
inadmissible. Admissible evidence may either carry less or more weight,
there is no more or less admissible evidence. Admissibility of evidence is
in principle determined with reference to its relevance or weight.20
17
See Schwikkard & Van Der Merwe, 2016, pp. 19-25.
18
Ibid.
19
For example the test in Section 174 of the Criminal Procedure Act.
20
Schwikkard & Van Der Merwe, 2016, pp. 19-25.
19
Conditional admissibility
Conditional admissibility of evidence refers to evidence admitted on
condition. There are sometimes basic defects that render evidence
inadmissible but the defects may be cured during course of trial, for
example in cases involving the authenticity of documents, hearsay etc.21
Circumstantial and direct evidence

Sometimes the court is induced in drawing of inferences especially where
a witness has made no direct assertions with regard to the fact in issue.
Circumstantial evidence furnishes indirect proof or evidence.22 Inferences
should, however, be logical.
Primary and secondary evidence

Primary evidence does not by its nature suggest that better evidence may
be available. Secondary evidence does suggest that better evidence may
be available. The distinction between primary and secondary evidence is
mainly of importance in connection with documents.23 The original of a
document is primary evidence, a copy secondary evidence.
Hearsay
Hearsay implies information received from other people which cannot be
substantiated such as rumor. Hearsay is evidence, whether oral or in
writing, the probative value of which depends upon the credibility of any
other person other than the person giving such evidence.
Relevance
Relevance is a matter of degree and is easier to identify in practice. The
term ‘relevant’ means any two facts to which it is applied are so related
to each other that according to common course of events either one or both
facts proves the existence or non-existence of the other. In R v Randall24
it was stated that ‘a judge ruling on a point of admissibility involving an
21
Ibid.
22
Ibid.
23
Ibid.
24
[2004] 1 WLR 56 at 20.
20
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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’.
Privilege
Privilege refers to the right or duty of a witness or party to lawfully
withhold evidence from a court of law.25 We shall discuss two types of
privilege in this course, namely state privilege (public interest immunity)
and private privilege. Both these privileges can be claimed or waivered.
Admissions
For purposes of a trial a party may formally admit one or more facts.26
Admissions are classified into informal admissions and formal
admissions. The distinction between these two forms of admissions will
be discussed later in this work.
Confessions
A confession is a comprehensive out of court informal admission by the
accused person in respect of all the elements of the alleged crime.27 It is
an unequivocal acknowledgement of guilty. It is equivalent to a plea of
guilty.
Judicial notice
Judicial notice implies facts of general knowledge or facts which are of
local knowledge. A court may accept certain facts as proved even though
no evidence was led to prove such facts.
Presumptions
The so-called presumptions of fact merely draw an inference from
evidence. But the so-called rebuttable presumptions, which are rules of
substantive law, in terms of which an assumption which is demanded by
law, must be accepted in the absence or proof to the contrary.28
25
26
Ibid.
27
Ibid.
28
Ibid; presumptions are also discussed under proof without evidence in Unit 13.
21
Corroborative evidence
Corroborative evidence implies other evidence which supports evidence
of a complaint and renders evidence of the accused less probable. A
witness cannot corroborate himself or herself (the rule against self-
corroboration).
Credibility
Credibility refers to the general quality of the witness’s testimony or
evidence. Factors that determine credibility include consistency,
objectivity, integrity, and candour. Some factors that affect credibility of
evidence may include: age, capacity, opportunity or personal interest,
conflict of interest, temperament, personality and levels of intellect.29
Identify some words you are not familiar with from the photo below and
attempt to find their meaning in the context of the law of evidence.
Some terms used in the law of evidence – available online.
29
Ibid.
22
[LAW OF EVIDENCE]
2 Relevance and Admissibility

The concepts of relevance and admissibility are central to the law of
evidence or presentation of evidence. These concepts have been referred
to above, but this part further describes relevance and admissibility of
evidence in more detail. The rule is that irrelevant evidence is
inadmissible and relevant evidence is admissible e.g. evidence obtained
in violation of constitutional rights. However, not all relevant evidence is
admissible.
The table below contrasts relevance and admissibility in a nutshell.
RELEVANCE ADMISSIBILITY
▪ Criterion of admissibility ▪ Matter of law
▪ Matter of fact ▪ Acceptability,

adequateness,
▪ Matter of reason and allowableness,
common sense permissibility of
evidence
▪ Evidence having any
tendency in reason to ▪ No degrees of
prove a material matter admissibility, either
admissible or
▪ Facts relevant to the issue inadmissible
▪ Section 210 of the CPA ▪ Admissibility of

“irrelevant evidence evidence is in
inadmissible” principle determined
with reference to its
▪ Section 2 of CPEA is relevance/weight
substantially a similar
provision to section 210 ▪ Not all relevant
of CPA. evidence is
necessarily
admissible
▪ Relevance not sole

test for admissibility.
Rationale for the exclusion of irrelevant evidence:
1) The purpose of evidence is to establish the probability of facts

in law;
23
2) Evidence should be confined to the proof of facts;
3) Considerations of time, costs and inconvenience;
4) Limitations of the human mind;
5) Risk that real issues might become clouded;
6) Prejudice that can be caused to the other party;
7) To promote fair trials.30
In S v Zuma,31 it was stated that “the question of relevancy can never be

divorced from the facts of a particular case before court”. In determining
relevance and admissibility the nature and extent of the factual and legal
dispute must be considered. The first question in deciding admissibility is
-“what are the issues?”. Relevance finds concrete application in primary
facta probantia and also secondary facta probanda. ‘It is not in the interest
of justice that relevant material should be excluded from court, where it is
relevant to the issue’.32
The admissibility of evidence is interlocutory and subject to re-

assessment. In R v Solomon 1case the court explained 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’.33
Facts are relevant if from their existence inferences may properly be

drawn as to the existence of a fact in dispute.34 In R v Trupedo35it was
held that - no proper inference could be drawn from the behavior of a
police dog in its identification of a suspect – the evidence of a police dog
was excluded as being irrelevant. But evidence of an animal’s instinctive
behavior as opposed to acquired behavior may be admissible.36 In S v
Shabalala37 it was advanced that if the weight of the evidence is so
inconsequential and the relevance accordingly so problematical, there can
be little point in receiving the evidence…of identification by a police dog
trained for purposes of identifying suspects by scenting. But it should be
noted that circumstances might be such that in appropriate cases
30
See Article 12 of the Namibian Constitution; see Schwikkard & Van Der
Merwe, 2016, p. 50.
30
Ibid.
31
2006 2 SACR 191 (W).
32
S v Mayo 1990 SACR 659 (E) 661f-662e.
33
R v Solomon 1959 2 SA 352 (A) 362.
34
R v Mpanza 1915 AD 348 at 352.
35
1920 AD 58.
36
Ibid.
37
1986 4 SA 734 (A).
24
[LAW OF EVIDENCE]
reasonable inferences can be drawn from the behavior of police dogs.38

It is inadmissible because it is considered hearsay evidence or hearsay is
involved and its probative value too tenuous. What about evidence of a
polygraph test (a lie-detector test) or; psychiatric evidence? Can it be
accepted? Why or why not?
Prejudicial effect
Evidence which is logically probative or disapprobative can be excluded
because of its prejudicial effect on the party concerned.39 Evidence is
relevant if its probative value outweighs its prejudicial effect.40
Doctrine of judicial precedent

Judicial precedent can determine the relevance or admissibility – but not
the final weight of certain types of evidence. It however requires a
cautious approach as facts differ from case to case, but it provides useful
guidelines.
The principle of completeness

A court should not exclude harmless irrelevant evidence. A witness
should be allowed within limits to tell a coherent story and give court a
general background to the dispute or facts in issue. The need for having a
complete picture may require the reception of facts neither in issue nor
relevant.41
Constitutional imperatives and the accused

Some constitutional rights pertaining to the presentation and processes of
evidence are enshrined in Article 12 of the Namibian constitution. Article
12 provides for the right to a fair trial which includes the right to adduce
and challenge evidence. There is no unqualified right to adduce irrelevant
evidence or challenge admissible evidence with irrelevant evidence.
1. In your own words, explain the meaning and difference between

facts in issue and facts relevant to the facts in issue?
Activity 2. Is the codification of principles governing relevance possible?
38
Ibid.
39
see R v Khumalo and Nkosi 1918 AD 500; R v Dhlamini 1960 1 SA 880 (N).
40
S v Mavuso 1987 (3) SA 499 (A).
41
Palmer v Minister of Safety & Security 2002 1 SA 110 (W).
25
1. The facts in issue (facta probanda) are those facts which a party
must prove to succeed. The facts relevant to the facts in issue (facta
probantia) are those facts which tend to prove or disapprove the
facts in issue.
Feedback
2. See Schwikkard, PJ & Van Der Merwe, SE. 2016. Principles of
Evidence, Fourth Edition. Juta: Cape Town, p. 62.
3 Burden and onus of proof
The terms ‘burden of proof’ or ‘onus of proof’ are often used

interchangeably. The burden of proof refers to the obligation of a party in
a case to persuade the trier of facts by the end of the case of truth of
certain propositions.42
Criminal proceedings
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. Therefore the prosecution or state carries the burden of
proof.
Civil proceedings
In civil trials or 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’. He or she who alleges, carries the burden of
proof in civil cases, this can be the plaintiff or the applicant.
42
26
[LAW OF EVIDENCE]
Unit summary
In this unit you learned basic concepts used in the law of evidence. These
concepts enables you to understand the various terminologies used in this
subject. More importantly, the unit also describes the important concepts
of relevance and admissibility in more detail. Lastly, this unit explains the
Summary burdens of proof or onus of proof in both criminal and civil proceedings.
References
References Zeffertt, DT., & Paizes, AP. 2009. The South African Law of Evidence, 2nd
South Africa.
Hoffmann, LH., & Zeffertt, DT. 1988. The South African Law of Evidence,
27
Unit 3
Character Evidence and Similar

Fact Evidence
Introduction
‘Character’ in modern usage means a tendency to behave in a particular

way. Character evidence is concerned with what evidence pertaining to
character and disposition may be adduced in a court of law. There are two
categories: the general reputation in the community you live in (moral or
actual character); and a person’s disposition to think or act in a
particular way (traits). Similar fact evidence on the other hand 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 essence similar to the conduct on the occasion which forms the issue or
subject-matter of the dispute’. Rules pertaining to character evidence in
criminal and civil cases are explained below, and thereafter similar fact
evidence.
▪ explain and apply the rules pertaining to character evidence;
▪ apply the rules pertaining to similar fact evidence.
Outcomes
28
[LAW OF EVIDENCE]
Prescribed reading Edition. LexisNexis Butterworths: Durban.
The Criminal Procedure Act 51 of 1977.
The Civil Proceedings Evidence Act 25 of 1965.
South Africa.
Additional reading
1 Character Evidence
1.1 Character evidence in criminal cases
The general rule of character evidence
The general rule is that an accused may adduce evidence of his or her
own good character but the prosecution is prohibited to adduce evidence
of his bad character, subject to exceptions.
29
In a dictum in R v Rowton43 (on evidence of accused’s good character),

the court said “such evidence is admissible because it renders it less
probable that what the prosecution have averred is true. It is strictly
relevant to the issue”.
Evidence of the accused’s bad character is considered disproportionate

and irrelevant in English law (and also the basis for South African and
Namibian law). Some posit that past behavior is a good indicator of likely
future behavior, and disposition evidence may be logically relevant in
establishing the likelihood of a particular behavior occurring. Others
argue that the generalized application of social psychology and accuracy
of past behavior as predictor of future behavior is prejudicial.
The ways in which an accused may establish good character include:

testifying herself; calling witnesses or by cross-examination of
prosecution witnesses. The prosecution can respond by introducing
evidence of bad character and an accused may render himself liable to
cross-examination as to his bad character in terms of Section 197 of the
CPA. There are three ways in which the prosecution may respond, either
by:
i adducing evidence of bad reputation
ii Cross-examining character witnesses
iii Cross-examining the accused
If the accused attacks the character of the prosecution witness but does
not adduce evidence as to her own good character, the prosecution may
not adduce evidence of accused’s bad character.44 In R v Rutterwasser45
the appeal court held that the defense’s cross-examination of a state
witness 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 reasoning of the court was that the attack on the prosecution witness
was directed at putting their character in issue and not the character of the
accused.
Section 197 of the CPA and Character evidence
Section 197 of the CPA provides for ‘privileges of accused when giving
evidence’. In a nutshell the section stipulates that:
43
1865 Le & CA 520 540, 169 ER 1497 1506.
44
R v Paluszak 1938 TPD 427.
45
1948 1 KB 4, 1947 2 ALL ER 415.
30
[LAW OF EVIDENCE]
An accused who gives evidence at a criminal proceedings shall not be

asked or required to answer any question tending to show…..that he is of
bad character…unless:
(a) he or his legal representative asks any question of any witness with a
view of establishing his own good character…;
(b) he gives evidence against any another person charged with the same
offence or an offence in respect of the same facts;
(c) the proceedings against him are such as described in section 240 or
241 of the CPA;
(d) the proof that he has committed or has been convicted of such offence
is admissible evidence to show that he is guilty of the offence with which
he is charged”.
Section 197 of the CPA does not permit evidence of bad character to be
adduced by the prosecution, it only makes provision for cross-examination
of the accused.
In particular, Section 197(a) protects an accused against cross-examination
directed at showing bad character or a previous criminal record of accused.
However, the accused will lose this protection or shield by: adducing
evidence as to his own good character; attacking the character of a
prosecution witness; or by testifying against any other person charged with
the same offence or in respect in respect of the same facts. Section 197(a)
complements the common law rule which permits the prosecution to
adduce evidence of bad character in such circumstances. Once an accused
puts his character in issue his whole character will be subject to cross-
examination.
In Stirland v DDP,46 the court held that “an 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”. If an accused is led by the prosecution into
making assertions as to his good character, this will not put accused’s
character in issue.47
Furthermore, Section 197(b) makes an accused liable to cross-

examination as to his or her character if he or she gives evidence against
any other accused charged with the same offence or an offence in respect
of the same facts. However, the person who has been charged with the
same offence, convicted and sentenced prior to testifying will not be
considered an accused.48 This is because evidence against a co-accused
supports the prosecution case in a material respect and undermines the
46
1944 AC 315 326-7.
47
See R v Beecham 1921 3 KB 464.
48
S v Dlamini 2008 1 SACR 501 (N).
31
defence of a co-accused. An accused’s intention in giving such evidence

is not relevant.49 However, if one accused merely denies that he took part
in a joint venture, it does not constitute giving evidence against a co-
accused unless it implies that his co-accused did participate in it.
The wording of Section 197(b) confers no discretion to restrict cross-

examination on grounds of irrelevancy.50 However, in S v Pietersen51 it
was stated that ‘… the court has a discretion to restrict and control the
ambit of cross-examination in Section 197(b). The discretion must be
exercised in light of principles governing relevance. The cross-
examination must be relevant to the issue of credibility and 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 compromised or undermined’.
Further, 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. The rationale is to allow the prosecution in
a receiving charge to cross-examine on matters which they could be
entitled to prove under section 240 and 241 of the CPA.52
Lastly, Section 197(d) provides that an accused may be cross-examined

as to his previous offences if the purpose of such evidence is to show that
he is guilty of the offence with which he is presently charged. The courts
hold that the section 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.53 Thus it
can be said that this section merely confirms the similar fact rule.
Character of the complainant
A complainant in criminal cases will be subject to cross-examination if he

or she testifies, and the cross-examiner may ask questions that are
pertinent to exposing the witness’s credibility or lack thereof. The cross-
examination is aimed to expose the witness’s credibility or lack thereof.
However, character or disposition of complainant is not relevant to
credibility. Generally, evidence solely directed at establishing a
complainant’s good character and bad character is prohibited.54
49
Murdoch v Taylor 1965 AC 574.
50
S v Mazibuko 1988 3 SA 190 (A) 197.
51
2002 1 SACR 330 (C) at 334i.
52
See Zeffert, Paizes & Skeen at 243.
53
S v Mokoena 1967 1 SA 440; S v Mavuso 1987 SA 499 (A).
54
R v Wood 1951 2 AII ER 112.
32
[LAW OF EVIDENCE]
Nevertheless, in a few exceptional categories the complainant’s character

is viewed relevant. In rape, assault and crimen iniuria cases the common
law rule is that an accused may adduce evidence of complainant’s bad
reputation for lack of chastity and the defence may question the
complainant as to her previous sexual relations with the accused. The
common law was criticized on grounds that:
(a) cross-examination of prior sexual history traumatizes and humiliates

the victim and evidence it elicits is irrelevant (establishes propensity);
(b) evidence of this nature is inadmissible in other cases;
(c) possibility of such cross-examination deters victims from reporting

the offence.
Section 227 of CPA was amended in South Africa in 2007 to provide for
sexual history evidence, for gender-neutrality and leave of court.55
Subsection (7) requires the court to provide reasons for allowing or
refusing an application to lead prior sexual history evidence. In Namibia,
Section 227 of the CPA was amended by section 17 of the Combating of
Rape Act.56
Lastly, in order to obtain a conviction on a charge of crimen iniuria the

prosecution must prove insult to the complainant’s dignity. Evidence
establishing that complainant is not the type of person who would have
been insulted in the circumstances, will be regarded as relevant.57
1.2 Character evidence in civil cases

In civil cases the characters of the parties are generally considered
irrelevant. However, character evidence is relevant in specific cases in
respect of an issue or in the quantification of damages. For example, in an
action of seduction the virginity of plaintiff is an essential element, so
evidence which shows that the plaintiff has a permissive disposition will
be regarded relevant.58 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.59 Evidence of character may also be admitted in
terms of the “similar fact rule” which will be discussed below.
55
See the approach taken by the court in S v M 2002 2 SACR 411 (SCA); S v
Zuma 2006 2 SACR 664 (C).
56
Act 8 of 2000.
57
R v van Tonder 1932 TPD 90.
58
see Van Staden v Rudy 1908 EDC 7.
59
See Sengke v Bredenkamp 1948 1 SA 1145 (O).
33
1. What is the general rule with regard to character evidence?
2. Is Section 227 of the Criminal Procedure Act amended? If so,

Activity how?
1. The general rule is that an accused may adduce evidence of his or

her own good character but the prosecution is prohibited to adduce
evidence of his or her bad character, subject to exceptions. Further,
you must read and understand section 197(a)-(d) of the Criminal
Feedback
Procedure Act 51 of 1977.
2. See Section 17 of the Combating of Rape Act 8 of 2000 and section

227A of the CPA which amends and affects section 227 of the
Criminal Procedure Act 51 of 1977.
2 Similar Fact Evidence
2.1 Introduction
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
nature/character that it is pertinent to or in essence similar to the conduct
on the occasion which forms the issue or subject-matter of the dispute’ as
per Friedman ACJ in S v M. 60 Similar facts are often relevant and
admissible for purposes of proving character.
60
1995 1 SACR 667 (BA) at 684.
34
[LAW OF EVIDENCE]
Basically, similar facts are directed to show that a party to proceedings

has behaved on other occasions in the same way as he is alleged to have
behaved in the circumstances presently considered by court. Similar fact
evidence is generally inadmissible because it is irrelevant, and it is
admissible only when both logically and legally relevant.61
2.2 The rationales for exclusion of similar fact evidence
▪ It is generally irrelevant because its prejudicial effect outweighs its

probative value.
▪ It may result in procedural inconvenience due to litigation of collateral
issues making the trial length, costly and placing additional demand
on judicial resources.
▪ It has a potential to undermine the proper administration of justice e.g.
sloppy investigation techniques and discourages rehabilitation of
offenders.
▪ A fair trial is put in jeopardy if irrelevant similar fact evidence is
admitted compromising on Article 12 the Namibian Constitution.
2.3 The formulation in Makin v Attorney-General for New

South Wales62
This is the most influential formulation. It was held in this case that it is
not competent for the prosecution to adduce similar fact evidence for
purposes of leading to a conclusion that accused committed the offence
he is being tried. Further, similar fact evidence is not inadmissible if it is
relevant to the issue and may also be relevant if it has a bearing on 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.63
In Makin case a husband and wife were charged with murder of a child in
their foster care with allegations that the murder was for purposes of
gaining maintenance money. The prosecution also adduced evidence that
skeletal remains of other babies has been found in the gardens of homes
previously occupied by the accused and that four other women have
given their babies to them and that these babies have varnished. It was
found that this evidence was correctly admitted to negate the possibility
61
S v Jones 2004 1 SACR 420 (c).
62
1984 AC 57 (PC) 65
63
Ibid.
35
that the child’s death resulted from accident or natural causes. It was not
admitted to show that accused had a propensity to kill babies and that
they were therefore guilty as charged. The formulation in Makin case
therefore stressed that similar fact evidence may not be admitted if it is
used only to establish propensity and that an accused is guilty because he
has a propensity to act in a particular way.
2.4 Inadequacies of the Makin case formulation
The inadequacies of the Makin case formulation is that it fails to explain

several cases. In many cases, propensity itself is so highly relevant to the
issue in a particular case, that evidence of propensity itself is admitted. In
R v Straffen64 it was held that: “…was 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. It was this peculiar propensity that was highly relevant to an
issue, namely the identity of the killer, which made the evidence
admissible”.
Similarly, in S v Moti65 the court held that evidence of a common modus

operandi and the appellant’s direct involvement similar cases of robbery
was relevant in that it corroborated evidence identifying the appellant.
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.
In R v Bond66 it stated that ‘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”. In the nexus
requirement - there must be a link between the facts in issue (the
probandum) and the similar fact (the probans). You cannot draw
inferences from one transaction to the other 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 inferences. The “nexus requirement” can
determine the relevance of evidence and its probative value in that it can
give rise to reasonable inferences in deciding the facts in issue.
64
1952 2 QB 911.
65
1998 2 SACR 245 (SCA).
66
1906 2 KB 389 @ 424.
36
[LAW OF EVIDENCE]
The Makin case is interpreted by many lawyers as establishing rigid

categories in which similar fact evidence will be regarded as relevant.
The danger of categorization is that it may lead to casuistry, 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.
2.5 The formulation in DDP v Boardman67
In DDP v Boardman case the court stressed that it was the application of
principle that was of prime importance, the principle being that similar
fact evidence is admissible only where its probative value exceeds its
prejudicial effect. The Makin rule was not rejected, rather, it was
applauded, and therefore Boardmann must simply be read as revealing
the underlying principle in Makin case.
The Boardman case clearly demonstrates that in similar fact cases it is

the degree of relevance that is important, not the kind of relevance.
2.6 The requirement of similarity
The probative value or force of similar fact evidence is largely

determined by the degree of similarity of a person’s conduct on other
occasions and on the occasion which is the subject of the court’s inquiry.
When striking similarity – it should be judged by experience and
common sense – either all be true or coincidence. Read more on the test
for coincidence; coincidence and a nexus; and degree of similarity.
2.7 Other evidence
The question must always be whether the similar fact evidence taken
together with other evidence would do more than raise or strengthen a
suspicion that the accused committed the offence with which he is
67
1975 AC 421.
37
charged.68 The relevance of similar fact evidence can also be determined

by the strength of other available evidence.69
Unit summary
In this unit you learned the meaning of character as well as similar fact
evidence. With reference to various authorities, the rules pertaining to the
admissibility of character evidence and similar fact evidence were
discussed. For character evidence always refer to Section 197 of the
Summary Criminal Procedure Act 51 of 1977 and related case law. For similar fact
evidence always borrow from the leading cases discussed herein.
References
References Zeffertt, DT., & Paizes, AP. 2009. The South African Law of Evidence,
2nd Edition. LexisNexis Butterworths: Durban.
South Africa.
68
See also DDP v Boardman case supra.
69
See the following cases R v Ball 1911 AC 47 HL; S v D 1991 2 SACR 543
(A). For examples of the exclusion of similar fact evidence see Laubscher v
National Food Ltd 1986 1 SA 553 (ZS) S v Mavuso 1987 3 SA 499 (A).
38
[LAW OF EVIDENCE]
Hoffmann, LH & Zeffertt. 1988. The South African Law of Evidence,

39
Unit 4
Opinion Evidence and Previous

Consistent Statements
Introduction
In this unit we shall discuss exclusionary rules vis-à-vis opinion evidence
and previous consistent statements. An opinion is your feelings or thoughts
rather than a fact or an inference, conclusion, impression, or belief.
Previous consistent statements are written or oral statements made by a
witness on some occasion prior to testifying and which correspond with or
are substantially similar to her testimony in court. Both opinion evidence
and evidence of previous consistent statements are covered in this unit.
▪ distinguish between fact and opinion;

▪ explain the basis of the opinion rule;
▪ describe lay person and expert opinion evidence;
Outcomes ▪ explain the meaning and general rules of previous consistent

statements;
▪ explain the rationale for exclusion of previous consistent statements;
▪ describe the exceptions to the general rule of previous consistent
statements.
40
[LAW OF EVIDENCE]
Prescribed reading
Minister of Basic Education, Sports and Culture v Vivier NO and Another

2012 (2) NR 613 (SC).
Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty) Ltd 2011 (1) NR
298 (HC).
South Africa.
Additional reading
The Civil Proceedings Evidence Act of 1965.
S v Appelgrein 1995 NR 118 (H).
41
1 Opinion Evidence
1.1.Introduction
An opinion is your feelings or thoughts rather than a fact or an inference,
conclusion, impression, or belief. Relevance remains the fundamental test
for admissibility of opinion evidence. The first and vital question is what
are the issues. If the issue is of such a nature that the opinion of an expert
or layperson can assist the court in deciding the issue, the opinion
evidence is relevant and admissible (and vice versa), except hearsay
(general rule).
The leading case of Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty)

Ltd70 provides a good example of the difficulties in applying above rule
and distinguishing fact and opinion. In this case the plaintiff contended
that advertisements of the defendant’s toothpaste were calculated to
mislead customers that it possessed certain qualities to remove plaque
and tartar on teeth which it did not. The plaintiff sought to lead evidence
of a lay person (a manager of an insurance company) to show how he
understood the advertisement. The defendant objected that the testimony
was nothing but an opinion of a lay person on a question that the court
could decide – the witness was not better qualified than the court to make
an informed opinion. The admission of the evidence has effect of
usurping the court’s function.
Further, the plaintiff submitted that the evidence was relevant and
admissible as its purpose was not to persuade court to adopt the opinion
of the witness but that the purpose was to prove the deception. The court
agreed, opinion could not preclude the evidence if its purpose is to show
that as a result of his interpretation of the advertisement he was misled (
the issue cannot be proved without personal conclusions/opinions). The
70
1989 3 SA 759 (W).
42
[LAW OF EVIDENCE]
witness acted as an aid to interpretation; but the court stressed we should

refuse to hear evidence where the witness seeks to give evidence which in
its essence does no more than that which the court is itself called to do.
In Stewarts & Lloyds of SA Ltd v Croydon Engineering 71 the court declined

the invitation to look at the document through the microscope. It opined
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, does not
know whether its observations are reliable or not. The court declines the
opportunity of qualifying itself in this branch of science’.
In addition, and on a different footing from the Colgate case, in R v

Makeip72 and S v Mkhabela73 it was held that the court need not be guided
by opinion evidence in respect of matters which can be assessed on the
basis of ordinary knowledge or skill.
1.2 Fact and opinion

Sometimes in terms of the opinion rule a witness must give evidence of
facts and may not express an opinion unless he is an expert, if not an
expert, his opinion may be received as an exception to the general rule
excluding opinion evidence.74 In a sense all testimony to matter of fact is
opinion evidence, it is a conclusion formed from phenomena and
impressions.
▪ For example, a matter of identification constitutes evidence of an
inference, drawn from comparison with prior experience.
▪ Rape cases (perpetrator stranger or of close acquaintance).
▪ Distinction a fallacious one not borne out by scientific analysis.
Opinion is a matter on which doubt can exist. When one prefaces an

assertion with, ‘in my opinion..’, one is indicating that it is a personal
belief. Facts simply are; opinions are variable in that differing opinions
on the same matter may without absurdity be held by different people.75
71
1979 1 SA 1018 (W).
72
1948 1 SA 947 (A).
73
1984 1 SA 947 (A).
74
75
Ibid.
43
Legal proceedings are concerned with facts, not with the beliefs of
witnesses as to the existence of facts. A fact in issue may be proved by
the direct evidence of a witness with personal knowledge or may be
proved by way of an inference from other facts which tend to logically
prove the fact in issue. As used in the law of evidence: ‘Opinion’ has the
meaning of an inference or conclusion of fact drawn from other facts.76
1.3 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 inadmissible because of its irrelevance.77 Why? Such evidence
is considered unnecessary, it is superfluous or supererogatory evidence -
not to protect or preserve the fact-finding duty of the court, but because
such evidence makes no probative contribution, it creates the risk of
confusion of the main issues and can lead to prolongation of trials.78
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 - the opinion has probative value and is no longer
superfluous because it can assist the court in determining the issue.
The theory that the opinion rule preserves and protects the fact-finding
function of the court is rejected by others. Wigmore rejects the theory on
the basis that the tribunal of fact is not and cannot be obliged to substitute
the opinion of the witness for its own.79 According to the ‘ultimate issue’
doctrine – a witness may not express an opinion on the ultimate issue
which the court must decide because – ‘the risk of usurpation by the
witness of the function of the trier of fact is often greatest if the witness
expresses an opinion on the ‘ultimate issue’ or ‘very question’ which the
trier of fact finally has to decide’.80 However, the ‘ultimate issue
doctrine’ fails to explain why courts often permit experts and lay persons
to express an opinion on the very issue the court has to decide. For
example, in drunken driving cases, experienced police man may be called
to testify or express their opinion in court.
76
Ibid.
77
2012 (2) NR 613 (SC).
78
Ibid at 92.
79
Ibid.
80
Ibid.
44
[LAW OF EVIDENCE]
Association of Amusement & Novelty Machine Operators v Minister of Justice 81

involved the meaning of certain words in a statute. The opinion of a
language expert was held irrelevant and inadmissible because the words
in dispute were often 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

& Excise82 the court held that…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. Further, the witness should not be permitted to express an
opinion which entails a conclusion of law or which requires the
application of a standard of law to the facts or which relates to the
meaning of words in a statute.
1.4.Lay persons and experts

It is important to distinguish between lay opinion and expert opinion;
however, admissibility is not dependent on this distinction. The general
rule is always whether the opinion of a witness in the circumstances of
the case can assist the court in determination of the issue. However, for
procedural purposes, distinction is necessary. In civil cases the parties
should give notice of their intention to rely on expert opinion evidence. In
criminal cases the prosecution is required to disclose expert opinion
evidence to the accused before trial (constitutional requirement).83
The Opinion of a Lay Person

The inability to provide reasons for the opinion should in principle affect
the weight and not the admissibility of the opinion. A lay witness may
express an opinion on the appropriate age of a person, the state of sobriety
of a person, the general condition of a thing, and the appropriate speed at
which a vehicle was travelling.
81
1980 2 SA 636 (A).
82
1985 4 SA 852 (A) 874A-B.
83
45
The compendious mode
This is a convenient term to use in instances where a witness offers an

opinion as a brief summary of factual data perceived by him.84 It’s in
instances where a witness will not be able to testify meaningfully if the
law of evidence were to persist on the distinction between fact and
opinion for purposes of admitting fact and excluding opinion. For
example, a witness permitted to say the complainant was ‘angry’, the
victim tried to ‘protect’ himself or defendant looked ‘surprised’. The
compendious mode is permitted for convenience and a witness is better
placed by the court; admissibility depends on the issues, circumstances
and discretion of the court.
The compendious mode is common in cases of identification, mental and

physical conditions, age, speed, value, character and handwriting.
It is not wholly possible to separate opinion from fact because more

direct and positive evidence is often unobtainable, therefore opinions and
beliefs of witnesses who are not experts are in certain cases admissible.
Probative value of lay opinion
It is generally accepted that the admissible opinion of a lay person

provides prima facie evidence, and if it is not challenged it may be
accepted. If it is challenged you may require expert opinion. Much
depends on the issues and reasons the witness will advance in support of
his or her conclusion.
In S v Faltein85 the issue was whether the substance in question was

dagga. 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. What’s the value of a policeman’s
opinion that a substance is dagga?86
Handwriting
Opinion evidence of handwriting must be approached with caution.

Section 4 of the CPEA provides that the comparison of disputed
handwriting may be made by witnesses. Section 228 of the CPA contains
a similar provision. On the basis of these provisions and common law
principles, a lay witness is permitted to identify handwriting and an
expert may also express an opinion on handwriting.
84
See Herbst v R 1925 SWA 77 80.
85
1990 2 PH H105 (E) 291.
86
See S v Ndaba 1981 3 SA 782 (N) 784B-785A.
46
[LAW OF EVIDENCE]
The Expert Witness
Some issues cannot be decided without expert guidance, for example

ballistics, chemistry, engineering, medicine, accounting, psychiatry etc.
including intoxication and handwriting cases. In Gentiruco AG v
Firestone SA (Pty) Ltd87 the court held that the ‘..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 issue’.
When the issue is one of science or skill the expert can be asked the very
question which the court has to decide.88
The need to lay a foundation: the party seeking to adduce expert opinion
must satisfy the court that the opinion is not supererogatory or irrelevant.
The court must be satisfied that:
▪ A witness must have special knowledge, training, skill or experience
and assist the court in deciding the issue;
▪ The witness is indeed an expert for the purpose for which he is called
upon to express an opinion;
▪ The witness must not express an opinion on hypothetical facts (facts
with no bearing on the case).89
Formal qualifications are not always essential, and in many instances

practical experience of a witness may be decisive. The fundamental test
still remains whether evidence can assist the court in resolving the facts in
issue.
1.5 Reasons for the opinion and probative value of the

opinion
Experts are required to support their opinions with valid reasons. If proper
reasons are advanced in support of an opinion, the probative value of such
an opinion will be strengthened. There are however extreme cases where
expert evidence is so technical that the court may not follow the exact
reasoning. The general repute of the witness’s profession and absence or
87
1972 1 SA 589 (A) 616H.
88
see Ruto Flour Mills v Adelson (1) 1958 4 SA 235 (T); In S v Melrose 1985 1
SA 720 (Z) 7241 it was held that viva voce evidence of medical practitioners is
very relevant e.g. in cases involving rape, homicide, and serious assaults.; see
also Holtzhauzen v Roodt 1997 4 SA 766 (W) and S v M 1999 2 SACR 548
(SCA).
89
S v Mponda 2007 2 SACR 245 (C) at 49; See also Menday v Protea Assurance
Co. Ltd 1976 1 SA 565 (E); Mohamed v Shaik 1978 4 SA 523 (N).
47
presence of bias therefore vital, for example, in cases involving inter alia
fingerprints, experiments, and blood-alcohol level determination tests.90
Beware that experts can also make mistakes, can’t they? An expert witness
should remain objective - to be helpful he must be neutral.91
1.6 Hearsay and expert opinion92

An expert witness may not base his opinion on statements made by a
person not called as a witness. The expert who relies on information
contained in a textbook written by someone who is not called as a witness,
does make use of hearsay subject to exceptions.93
1.7 Procedural aspects - civil cases

In civil proceedings the calling of expert witnesses is provided in the
court rules. A notice of intention to call an expert witness and a summary
of such expert’s opinion and his reasons thereof within specified times
should be supplied.94 The court may permit expert evidence by way of
affidavit (also in criminal cases). Further, an expert should for
convenience be permitted to read out his or her report, but in principle,
expert witness should confirm the correctness of his or her report.
1.8 The rule in Hollington Case 1943 2 All ER 35

According to the ruling in the Hollington case, criminal convictions of a
party are inadmissible for purposes of subsequent civil proceedings. The
court stressed that the opinion of the previous tribunal is irrelevant (this is
an English common law rule). The English Civil Evidence Act 1968 have
made previous judgments admissible in specified instances. In Namibia
and South Africa we are still bound by the English common law rule.
90
See R v Nksatlala 1960 3 SA 543 (A) & S v Blom 1992 1 SACR 649 (E).
91
See Schwikkard & Van Der Merwe, 2016, p. 103.
92
Ibid at 107.
93
See Menday v Protea Assurance CO Ltd 1976 1 SA 565 (E) at 569H.
94
See Rule 24(9) of the Magistrates Court Rules; in criminal cases the
prosecution will often provide disclosure to the accused.
48
[LAW OF EVIDENCE]
Attempt the following questions:
Critically analyse the decision in Hollington v F Hewthorn & Co Ltd 1943

Activity 2 AII ER 35.
Analyse this rule in light of section 42 of the CPEA, and section 211 and
197(d) of the CPA.
The case raises questions whether a fact of a conviction by a criminal court

is not evidence in a subsequent civil case and whether the opinion of
another court is irrelevant?
Are previous convictions proof of admissible similar fact evidence?
Is the rule irrational and needs statutory repeal?
49
See Bellengere, A., Theophilopoulos, C., & Palmer, R (Eds.). 2019. The
Law of Evidence in South Africa, Second Edition. Oxford University
Press; South Africa, p. 218-19; and
Feedback
Fourth Edition. Juta: Cape Town, p. 109.
2 Previous Consistent Statements
2.1 Meaning and General Rule

Previous consistent statements are written or oral statements made by a
witness on some occasion prior to testifying and which correspond with
or are substantially similar to her testimony in court.95
The general rule is that a witness is not allowed to testify that on a

previous occasion she made an oral or written statement consistent with
her evidence in court.96
Previous consistent statements are not allowed during evidence-in-chief

and re-examination, nor may they be proved by calling another witness.
Previous consistent statements are excluded on grounds of irrelevance
and lack of probative value. Previously consistent statements are also
referred to as the rule against narrative or rule against self-serving
statements and rule against self-corroboration. Proof of previous
inconsistent statements is admissible, it is considered relevant to
credibility.
95
96
Ibid.
50
[LAW OF EVIDENCE]
2.2 The rationale for exclusion of previous consistent

statements
The following are some of the rationales for excluding evidence of
previous consistent statements:97
1. It has insufficient probative force, for example a lie can be repeated
as often as the truth.
2. There are dangers of easy fabrication or risks of self-made evidence
which affects relevance and admissibility.
3. Evidence of previous consistent statements is considered superfluous
in most cases.
4. Proof of previous consistent statements can be time-consuming and
may pave way for numerous collateral enquiries during trial. It is
duplication of evidence with no probative contribution.
5. The rule against self-corroboration limits and excludes probative
value of previous consistent statements.
An example from case law: In R v Roberts98 an accused charged with

murder testified that the killing of his girlfriend was an accident.
However, the witness was 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 irrelevance. It was further
held that a party is not permitted to make evidence for himself either in
civil or criminal proceedings. In criminal cases the witness is not allowed
to call evidence to show that after being charged he told a number of
persons what his defence was going to be. The evidence does not assist in
the elucidation of the matters in dispute – it is irrelevant.
2.3 Exceptions to the general rule of previous consistent

statements
To rebut a suggestion of recent fabrication

If it is suggested that the witness has fabricated his or her evidence, he or
she may rebut the suggestion by showing that prior to the time alleged, he
or she made a statement consistent with his evidence in court.99
97
Ibid at 113.
98
1942 28 Cr App R 102.
99
51
For example, in the case of Menday v Protea Assurance Co Ltd100 the

previous consistent statement was being 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 on the ultimate cogency of the evidence of the previous consistent
statement.
General cross-examination to show untruthfulness will not open door for

admissibility of previous consistent statements. Previous consistent
statements may be admitted because of its relevance or when it has
potential to rebut attack on the credibility of witness. The content of a
statement is not truth nor corroboration of the witness’s evidence; its
value is to show that the story of the witness has not been concocted at a
later date.101
Complaints in sexual cases

Under the common law evidence may be given of a voluntary complaint
made by the victim within a reasonable time after the commission of
alleged sexual offence.102 Modern common law provides that the absence
of a complaint made within a reasonable time after the event is not fatal
or detrimental to the state’s case. The common law requirement
governing admissibility of the complaint (the previous consistent
statements) is the following: the complaint must have been a voluntary
complaint; the complainant must testify; the complaint must have been
made at the first reasonable opportunity; the complainant must have been
a victim of a sexual offence and the complaint can only be admitted for
the limited purpose of proving consistency.103
Severe criticism of the above rule is that it has no rational basis and is
prejudicial to the complainant or the accused. For example, it fails to take
into account research confirming ‘that silence is part of post-traumatic
responses caused by sexual crimes like rape’ and absence of a complaint
made within a reasonable time risks the court to draw an adverse
inference on the credibility of a complainant.
The Combating of Rape Act 8 of 2000

Section 6 provides that evidence to all previous consistent statements by a
complainant shall be admissible or where the accused is charged with an
100
1976 1 SA 565(E).
101
102
Ibid at 116.
103
Ibid.
52
[LAW OF EVIDENCE]
offence of a sexual or indecent nature, provided no inference may be

drawn only from the fact that no such previous consistent statements have
been made.104
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’.105
Identification
Usually identification in court or dock identification is of little probative
value, whereas prior identification carries more weight.106 Evidence of
previous identification should be relevant for purposes of showing the
person giving evidence is not identifying the accused for the first time but
has identified him on some previous occasion – to give real weight to his
identification.
Part VI of the CPEA

It is in certain circumstances permissible to hand in signed statements
which witnesses giving oral evidence made after the incident under
investigation. This principle also applie in criminal proceedings in terms
of Section 222 of the CPA. Section 32(2) CPEA provides that the
previous written statement cannot corroborate the evidence of the witness
who made the statement.
Res Gestae
Res gestae is a blanket phrase applied to the admissibility of statements
and roughly denotes relevance through contemporaneity (part of the
story).107 Res gestae implies that the – facts are very closely connected in
time, place and circumstances of the transaction at issue.108 But the
previous consistent statements cannot corroborate the witness.
Refreshing memory
A witness’s earlier statements are sometimes used to refresh his memory
whilst in the witness box. The evidential value of statements used to
104
See Combating of Rape Act 8 of 2000.
105
See also the South African Criminal Law (Sexual Offences and Related
Matters Amendment Act 32 of 2007 and the Canadian Criminal Code.
106
R v Rassool 1932 NPD 112 118.
107
108
Ibid.
53
refresh the memory of a witness depends on whether ‘present recollection

revived’ or ‘past recollection recorded’.109
Statements made at arrest or on discovery of incriminating articles
Statements made during arrests or on discovery of incriminating may be

used to prove consistency.110
Section 213 of the CPA

A witness (written) statement may be proved by consent of the parties
without calling a witness to testify. The witness can be called to show
consistency, but it cannot corroborate the witness.111
2.4 Supplementary cases

S v Moolman 1996 1 SACR 267 (A).
S v Mkohle 1990 1 SACR 95 (A).
S v Winnaar 1997 2 SACR 352 (O).
S v Cornick 2007 2 SACR (SCA).
S v T 1963 1 SA 484 (A).
R v Kgaladi 1943 AD 255.
S v R 1965 2 SA 463 (W).
S v De Villiers 1999 1 SACR 297 (O).
R v Gannon 1906 TS 114.
Activity
Read the case of S v Cornick 2007 2 SACR (SCA) and discuss the modern
common law rule of complaints in sexual cases – where absence of a
109
Ibid.
110
Ibid.
111
Ibid.
54
[LAW OF EVIDENCE]
complaint made within a reasonable time after the event, is not fatal to
the prosecution’s case.
In S v Cornick the court confirmed the rape convictions of the two

appellants even though the complainant, who was fourteen years old at
the time of the rape, had laid charges only nineteen years later.
Unit summary
In this unit you learned about the basis of the opinion evidence rule
including evidence of lay persons and expert witnesses, procedural aspects
of opinion evidence and the rule in the Hollington case. The unit further
explains the rules pertaining to evidence of previous consistent statement
Summary and importantly describes the exceptions thereto.
55
References
56
[LAW OF EVIDENCE]
South Africa.
References
Zeffertt, DT & Paizes, AP. 2009. The South African Law of Evidence,
The Civil Proceedings Evidence Act of 1965.
Hoffmann, LH & Zeffertt. 1988. The South African Law of Evidence,

57
Unit 5 Hearsay Evidence
Unit 5
Hearsay Evidence
Introduction
If Y is charged with murdering Z, and a witness, W, testifies that a friend

of his, X, told him that he saw Y shoot Z on the day in question, should
this evidence be received?
Hearsay evidence refers to evidence, whether oral or written, the

probative value of which depends upon the credibility of any person other
than the person giving such evidence. Reception of this evidence raises a
number of serious problems.
In S v Chanda112 the High Court of Namibia defined hearsay evidence in

the following terms: “oral or written statements by persons who are not a
party to the proceedings or who are not witnesses in the proceedings, and
who are not called, cannot be tendered as evidence for the truth of what
those oral or written statements say”.
▪ explain the rationale for the exclusion of hearsay evidence.
▪ explain some common law exceptions to hearsay evidence.
Outcomes ▪ explain statutory exceptions to hearsay evidence.
112
2005 NR 644 at 401J-402B.
58
[LAW OF EVIDENCE]
Namandje, S. 2016. The Law of Hearsay Evidence in Namibia, simplified

Prescribed reading for all. PPC Press: Windhoek.
S v Chanda 2005 NR 398 (HC).
Zeffertt, DT., & Paizes, AP. 2009. The South African Law of Evidence,
Additional reading
South Africa.
Jordaan v Snyman and Another 2008 (2) NR 729 (HC) 730.
Mahamat v First National Bank of Namibia 1995 NR 199.
Theart v Namibia Development Corporation 2005 NR 136 at 137.
Hailulu v Director of the Anti-Corruption Commission and Others 2014

(1) NR 62 (HC).
Immanuel Shilongo v Church Council of the Evangelical Lutheran

Church in the Republic of Namibia 2014 (1) NR 166 (SC).
Rally for Democracy and Progress and Others v Electoral Commissio0n

for Namibia and Others 2013 (3) NR 644 (SC) at p. 695 para. 61.
59
1 The rationale for exclusion of hearsay evidence
Procedural context
The dominant and partisan role of the parties in adversarial proceedings
increase the possibility of misleading evidence being introduced. 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.113 The presentation of hearsay
evidence is often something of surprise for the 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 a hearsay declarant.114 The principle of
orality believes that the 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. A witness who testifies in open
court is reinforced by potential liability for perjury, and the court is has a
chance to observe the demeanour which contributes to assessment of
credibility. Further when hearsay is admitted it compromises the
fundamental right to cross-examine provided in Article 12 of the
Namibian Constitution. Consequently, dangers of faulty perception,
erroneous memory, insincerity, and ambiguity in narration are inherent in
the admission of hearsay. This is tantamount to the fact-finding process
and proper administration of justice.
Cost effectiveness
It may require lots of time in courts which may lead to lengthy and costly
trials. This also applies to academic institutions, as a disproportionate
amount of time is spent teaching and writing about hearsay evidence.
Best evidence rule

Another justification for the exclusion of hearsay evidence is that it is
necessary to encourage parties to call the original declarant. It can 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.115
113
Schwikkard & Van Der Merwe, 2016, pp. 288-289.
114
Ibid.
115
Ibid, p. 290.
60
[LAW OF EVIDENCE]
Complexity and prejudicial effect

Zeffertt, Paizes and Skeen argue that hearsay attracts prejudicial qualities
and challenges. It can be admitted when its probative value exceeds the
prejudicial effect in order to advance the truth-seeking function of the
court.116
Socially necessary
The hearsay rule has a societal dimension centred on an accusatorial
relationship between the accused and a witness who testifies against the
accused, and that between the accused and the state. In a civil context the
latter relationship is absent. The societal dimension of confrontation
strengthens the legitimacy and the integrity of the adversarial systems and
participation in decision making is critical to the perception of procedural
justice.117
Safeguard against the abuse of power

The hearsay rule can also be viewed as a way of protecting individual
rights from intrusion of government or as a way of influencing conduct of
the police and prosecutors in the process of preparing or preserving
evidence.118
A constitutional requirement
Article 12 of the Namibian constitution includes the right to challenge
evidence (cross-examine) as a component of the right to a fair trial.119
Therefore, admission of hearsay evidence may infringe the right to
challenge evidence.
2 Some common law exceptions to the hearsay rule

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.120
Evidence is hearsay and inadmissible when the object of the evidence is

to establish the truth of what is contained in a statement, and not when
proposed to establish the truth of the statement but the fact that it was
116
Ibid; see also S v Ramavhale 1996 1 SACR 639 (A) and S v Ndlovu 2002 2
SACR 325 (SCA).
117
Ibid at 291.
118
Ibid at 292.
119
Article 12(1)(d).
120
Tapper. 2007. Cross & Tapper on Evidence, 11th edition, p. 588.
61
made.121 The problem is that the common law rule excluded relevant
and reliable evidence, as a result a number of ad hoc exceptions
developed.
Res gestae statements

Evidence of facts may be admissible as part of the res gestae if the
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. The various categories of res gestae evolved to
facilitate the admission of hearsay evidence include: spontaneous
statements, composite acts, and declarations of state of mind and
physical sensations.122
Dying declarations
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 could otherwise have been a competent witness;
d At the time of making the statement the declarant was under a
‘settled hopeless expectation of death’.
The rationale underlying this exception is necessity and reliability.
There are a number of well-established common law exceptions.
3 Selected statutory exceptions
Civil cases
Section 17 of the Criminal Proceedings Evidence Act provides for proof
of trial and conviction or acquittal of any person – read section 17 CPEA
and remember the common law rule in the Hollington case. Further,
section 22(1) provides for proof of certain facts by affidavit – these
affidavits may not be classified as hearsay evidence. For example, section
22(5) of the CPEA provides that if an order presuming the death of a
soldier is sought, an official report will be admissible as proof of the facts
121
Subramaniam v Public Prosecutor [1956] 1 WLR @ 969.
122
See Schwikkard & Van Der Merwe, 2016, p. 306-308.
62
[LAW OF EVIDENCE]
stated in it, provided it is accompanied by an affidavit by the Chief of the

Namibian Defence Force.
Further, evidence of times of sunset and sunrise may in terms of section

26 be admitted as evidence of such times, provided it is approved by the
relevant Minister in the Government Gazette – a similar provision to
section 229 of the CPA.
Section 28 of the CPEA also provides that bankers books shall be

admissible as prima facie evidence of the matters, transactions and
accounts therein recorded, on proof being given in writing of a manager
or officer of such bank, provided the bank is not party to the proceedings.
Section 33 to 38 of the CPEA also provides the framework for

admissibility of documentary evidence as to the facts in issue. A
document includes book, map, plan, drawing, and photograph. The
requirements for documentary evidence apply.
Criminal cases
An affidavit that meets the requirements of section 212(1) of the CPA
(proof of certain facts by affidavit) – will constitute prima facie proof of
the matters stated in it. Section 212 of the CPA relates to evidence of a
hearsay nature pertaining to: official acts; facts requiring specialised
skills; precious metals and stones; fingerprints and palm prints; dead
bodies; and chains of custody.
Does the ambit of Section 212 infringe the accused’s constitutional right
to challenge evidence? It is often argued that alternative forms of
evidence, do not necessarily deprive the accused of the opportunity to
cross-examine or infringe his right to challenge evidence. A fair trial does
not require that evidence only be given orally as was stated in S v Van der
Sandt.123 The court or accused has a discretion to call for oral evidence in
terms of section 212(12) of the CPA.
Further, on admission of written statements by consent – Section 213 of

CPA permits written witness statements to be admitted into evidence in
lieu of oral evidence at trial, provided the parties consent. However, the
courts attach less weight to it.
123
1997 2 SACR 116 (w).
63
Other relevant provisions in the CPA include section 214(a) on evidence

recorded at a preparatory examination or former trial; section 221 on the
admissibility of certain trade or business records; Part IV of the CPEA
and Section 222 of the CPA; Section 236 on accounting records and
documentation of banks.124
Section 3 of the Law of Evidence Act 45 of 1988 (RSA)

According to the South African Law of Evidence Act - hearsay evidence
shall not be admitted as evidence at any civil or criminal proceedings
unless:
▪ A party agrees to the admission thereof.
▪ The original declarant testifies at the same proceedings; and it will be
provisionally or conditionally admitted.
▪ The nature of evidence or proceedings; purpose of the evidence; its
probative value; the reason why the evidence is not given by the
original declarant; prejudicial effect or any other factor in the opinion
of the court is in the interest of justice.
The Act relaxes rigidity and clears uncertainties of common law but the
factors may cause confusion when applied in practice.125
4 Hearsay evidence in bail applications

There is a misconception by some, especially in lower courts, that hearsay
evidence is admissible in a bail application. However, this misconception
was dealt with in by a full bench judgement in the High Court in the case
of Charlotte Helena Botha v The State.126 In this case the Court stated that
‘although hearsay can be admitted in bail applications, such hearsay can
carry little weight, if any, and should not be relied on when disputed’. This
means that if hearsay evidence is disputed in bail applications it is
inadmissible.
124
See Schwikkard & Van Der Merwe, 2016, p. 317-324.
125
Ibid.
126
Unreported case number CA70/1995, judgement delivered 20 October 1995.
64
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Does evidence of an agent of a party to proceedings constitute inadmissible

Activity hearsay if the agent’s principal is a party to the proceedings?
See Hailulu v Director of the Anti-Corruption Commission and Others

2014 (1) NR 62 (HC).
Feedback
Unit summary
In this unit you learned the meaning of hearsay evidence and the reasons
why hearsay evidence is excluded by the courts. We also discussed the
common law and some statutory exceptions to hearsay evidence. Lastly,
we briefly looked at the admissibility of hearsay evidence in formal bail
Summary applications.
65
References
References Zeffertt, DT., & Paizes, AP. 2009. The South African Law of Evidence, 2nd
Namandje, S. 2016. The Law of Hearsay Evidence in Namibia, simplified

for all. PPC Press: Windhoek.
South Africa.
S v Chanda 2005 NR 398 (HC).
Jordaan v Snyman and Another 2008 (2) NR 729 (HC) 730.
Mahamat v First National Bank of Namibia 1995 NR 199.
Theart v Namibia Development Corporation 2005 NR 136 at 137.
Hailulu v Director of the Anti-Corruption Commission and Others 2014

(1) NR 62 (HC).
Immanuel Shilongo v Church Council of the Evangelical Lutheran Church

in the Republic of Namibia 2014 (1) NR 166 (SC).
Rally for Democracy and Progress and Others v Electoral Commissio0n

for Namibia and Others 2013 (3) NR 644 (SC) at p. 695 para. 61.
66
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Unit 6
Unconstitutionally Obtained
Evidence
Introduction
Unconstitutionally obtained evidence is also referred to as ‘improperly or

unlawfully’ or ‘illegally obtained evidence’. The general rule is that
unconstitutionally obtained evidence is inadmissible or will be excluded
if obtained in an unlawful manner or derogatory to the spirit of the
constitution. The exclusionary rule originates from USA jurisprudence (in
a rigid form). The central idea was to protect rights guaranteed in the
American bill of rights and promote substantive and procedural due
process.127 This American exclusionary rule seeped into evidential
systems of many national and intercontinental jurisdictions and even
criminal tribunals.
The exclusion of unconstitutionally or unlawfully obtained evidence is

based on the need to enforce or protect fundamental human rights,
promote legality, conserve and enhance judicial integrity. There are
consequences for the admissibility and for the exclusion of
unconstitutionally obtained evidence. If a court admits this evidence it
will be seen as condoning the malpractice of law enforcement agencies, if
it excludes it, it will be seen to abandon its duty to protect us from crime.
Unlike South Africa, Namibia does not directly incorporate

unconstitutionally obtained evidence in the Bill of Rights or specifically
Article 12 as a medium addressing issues concerning the admissibility of
unconstitutionally obtained evidence – but the courts developed their own
exclusionary rules away from the common law inclusionary approach and
the rigid or absolute American exclusionary rule.128
127
See Weeks v United States 232 US 383 393 (1914).
128
See Section 35(5) of RSA Constitution and Section 24(2) of the Canadian
Charter of Rights and Freedoms.
67
Unit 6 Unconstitutionally Obtained Evidence
▪ explain the approach of our courts vis-a-vis admissibility and

exclusion of unconstitutionally obtained evidence.
▪ explain the evidential rules related to the protection of an accused in

Outcomes criminal proceedings.
▪ explain the theoretical basis and practical purpose of excluding

unconstitutionally obtained evidence.
Mujuzi, JD. 2016. ‘The admissibility in Namibia of evidence obtained

through human rights violations’, African Human Rights Law Journal,
Vol. 16 p. 407-434.
Van der Merwe, SE. 1992. Unconstitutionally obtained evidence: towards
Prescribed reading
a compromise between the common law and the exclusionary rule,
Stellenbosch Law Review, Vol. 2, p. 173.
The Constitution of the Republic of Namibia.
S v Minnies and Another 1990 NR 177 (HC).
S v Shikunga and Another 1997 NR 156 (SC).
S v Malumo & 111 Others (2) 2012 1 NR 244 (HC).
S v Malumo and Others (CC 32/2001) [2011] NAHC 220 (19 July 2011).
Gomes v Prosecutor-General of the Republic of Namibia & Others
(A61/2012) [2013] NAHCMD 240 (9 August 2013).
S v Sankwansa 2013 JDR 1977 (Nm).
S v Kapia
Ex parte Attorney-General, In Re: Corporal Punishment by Organs of

State.
68
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South Africa.
Additional reading
1 Competing interests
Exclusion of reliable and highly incriminating evidence might result in an

acquittal of an accused who is factually guilty of a serious crime like
murder or rape. Is this in the public interest? Whose interests and what
interests are protected by the exclusion? In Lawrie v Muir129 it was stated
that it is ‘ultimately a matter of reconciling competing interests of the
citizen and the state’. The primary protection of excluding
unconstitutionally obtained evidence is for the innocent citizen not the
guilty citizen.
Read the judgement of S v Minnies and Another 1990 NR 177 (HC).
What was the Court’s reasoning in the High Court judgement of S v

Activity Minnies and Another with regard to improperly or unconstitutionally
obtained evidence?
129
1950 SC (J) 19 26-7
69
Read S v Minnies and Another 1990 NR 177 (HC).

Feedback
2 The theoretical basis and practical purpose of the exclusionary

approach
The ‘preventative effect’ argument
The purpose of the exclusionary rules is to deter – to compel respect for
constitutional guaranty and removing incentives to disregard it. But it is
argued that deterrence must not be viewed in a narrow traditional sense
and that is its ‘educative role’ and ultimate preventive effect are more
vital than immediate deterrence.130
Due process in the context of the Bill of Rights

The exclusionary rule is founded in the concept of due process.
Unconstitutionally obtained evidence must be excluded because its
admission compromises other important values.
The exclusionary rule is concerned with legality in the criminal process

ranging from search, seizure, and arrest through to trial proceedings and
final appeal or review. The police and prosecution are required to operate
within a system in which civil liberties and due process are
constitutionally guaranteed.131
The doctrine of ‘legal guilty’

The exclusionary rule ensures the notion of legality is retained in the
criminal justice system supported by the due process doctrine of legal
guilt. According to this doctrine ‘a person is not to be held guilty of a
crime merely on 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’.
130
131
See Article 12 of the Namibian Constitution.
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Judicial integrity
The imperative of judicial integrity is an important rationale of the
exclusionary rule.132 By admitting unconstitutionally obtained evidence
(a) courts themselves will violate the constitution (b) courts will act
contrary to their oath to uphold the constitution (c) courts will indirectly
encourage violation of the constitution and (d) courts will somehow
create the impression that they sanction or condone unconstitutional
conduct by government officials.
The principle of self-correction

According to this principle, an effective due process system must have
the inherent ability to correct abuses within the system. The exclusionary
rule is not primarily aimed at discouraging unconstitutionally official
conduct: its true purpose is to serve an effective internal tool for
maintaining and protecting the value system as a whole.
3 The rule in Mapp v Ohio 367 US 643 (1961)

The Fourth Amendment to the Constitution of United States provides
that:
‘rights of people to be secure in their persons, houses, papers and effects,

against unreasonable searches & seizures, shall not be violated… ’
It was held in Mapp v Ohio that evidence obtained by federal agents in

breach of the fourth amendment had to be excluded in a federal
prosecution.133 The exclusionary rule also applies in state trials and to all
evidence obtained by law enforcement officers in violation of the Fourth
Amendment. See the general principles limiting the ambit of the rule in
Mapp case.134
4 The Miranda warnings (Miranda v Arizona 384 US 436 (1966))

The Miranda warnings are usually described as ‘prophylactic standards or
procedures’ or ‘preventative medicine’. Unless and until such warnings
and waivers are demonstrated by the prosecution at trial, no evidence
obtained as a result of the interrogation can be used against accused. The
132
See Elkins v United States 364 US 206 217 (1960).
133
See also Weeks v United States 232 US 383 (1914).
134
See also Schwikkard & Van Der Merwe, 2016, p. 209.
71
warnings were designed to protect the privilege against self-

incrimination.
The warnings are prerequisites to the admissibility of any statement made

by an accused. However, Miranda warnings confined to ‘custodial
interrogation’.135
Miranda v Arizona is the leading case for the rule that any evidence
obtained without an accused being informed of his or her right to silence
and his or her right to legal representation during the interrogation by the
police, is inadmissible. An accused can waive these rights, but the waiver
must be made voluntarily, knowingly and intelligently.
5 The Namibian context

Constitutional provisions
Our law of evidence is English law, but this is subject to the Constitution,
which is the supreme law of Namibia. Our courts in the past received all
admissible evidence, no matter whether it was obtained lawfully or
properly or not, except where the probative value of the evidence was
outweighed by its prejudicial effect (the traditional approach). With the
enactment of the Namibian constitution, Namibia has joined a number of
countries that tend to exclude evidence where its admission would violate
the constitutional rights of the accused (for example, not to incriminate
himself/herself, the right to a fair trial etc.).
There are various constitutional provisions which may be relevant to this

topic. For example Article 11 provides for freedom from arbitrary arrest
and detention and that an accused be informed in a language he/she
understands of the grounds for the arrest. Further Article 12(1)(a),
provides for the right to a fair trial. All persons shall be presumed
innocent and it provides for the right to call witnesses and to cross-
examine those called against them (12(1)d)).
Article 12(1)(e) provides for the right to be defended by a legal

practitioner of the accused’s choice. Article 12(1)(f) provides that
persons shall not be compelled to give testimony against themselves or
their spouses and that “no court shall admit in evidence against such
persons testimony which has been obtained from such person in violation
of article 8(2)(b)”.
Article 8(2)(b) is of wide-ranging effect - see the judgment of Mahomed

AJA in Ex parte Attorney-General, Namibia: In re Corporal Punishment
135
Ibid at 213.
72
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by Organs of State136, and provides that “no persons shall be subjected to

torture or to cruel, inhuman or degrading treatment or punishment.”
Article 13 provides that:
“(1) No persons shall be subject to interference with the privacy of their

homes, correspondence or communications save as in accordance with law
and as is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
protection of health or morals, for the prevention of disorder or crime or
for the protection of the rights or freedoms of others.
(2) Searches of the person or the homes of individuals shall only be

justified:
(a) where these are authorised by a competent judicial officer;
(b) in cases where delay in obtaining such judicial authority carries

with it the danger of prejudicing the objects of the search or the public
interest, and such procedures as are prescribed by Act of Parliament to
preclude abuse are properly satisfied.”
Case Law
The Namibian Constitution does not provide for the criteria courts have to
invoke to decide whether or not to exclude unconstitutionally-obtained
evidence. Namibian courts have adopted the South African criteria
regarding whether the admission of such evidence would render the trial
unfair or be detrimental to the administration of justice. 137 The issue
whether a violation of any right in the Bill of Rights would vitiate the
accused’s trial was addressed by the Supreme Court in S v Shikunga &
Another. 138 The Court held that the proper approach to dealing with
evidence obtained irregularly is the following:139
Even if it is assumed that the breach of every constitutional right has the same
effect on a conviction which is attacked on appeal, it does not follow that in all
cases that consequence should be to set aside the conviction. I am not
persuaded that there is justification for setting aside on appeal all convictions
following upon a constitutional irregularity committed by a trial court. It would
appear to me that the test proposed by our common law is adequate in relation
to both constitutional and non-constitutional errors. Where the irregularity is so
fundamental that it can be said that in effect there was no tr ial at all, the
conviction should be set aside. Where one is dealing with an irregularity of a less
136
1991 (3) SA 76 (NmS).
137
See Mujuzi, JD. 2016. ‘The admissibility in Namibia of evidence obtained
through human rights violations’, African Human Rights Law Journal, Vol. 16
pp. 407-434.
138
1997 NR 156 (SC).
139
Ibid at 171-2.
73
severe nature then, depending on the impact of the irregularity on the verdict,
the conviction should either stand or be substituted with an acquittal on th e
merits. Essentially the question that one is asking in respect of constitutional and
non-constitutional irregularities is whether the verdict has been tainted by such
irregularity. Where this question is answered in the negative the verdict should
stand. What one is doing is attempting to balance two equally compelling claims
– the claim that society has that a guilty person should be convicted, and the
claim that the integrity of the judicial process should be upheld. Where the
irregularity is of a fundamental nature and where the irregularity, though less
fundamental, taints the conviction the latter interest prevails. Where however the
irregularity is such that it is not of a fundamental nature and it does not taint the
verdict the former interest prevails. This does not detract from the caution which
a court of appeal would ordinarily adopt in accepting the submission that a clearly
established constitutional irregularity did not prejudice the accused in any way
or taint the conviction which followed thereupon.
In this case, the Supreme Court held that not every human rights violation
annuls the proceedings. The judicial officer has to consider the seriousness
of the violation. The more serious the violation, the more compelling the
reason for excluding such evidence. In a subsequent decision, the High
Court explained why the record of bail proceedings in which the accused
had incriminated themselves without being informed of the right to remain
silent was inadmissible at their trial. This is because it would have rendered
the trial unfair.
In S v Malumo & 111 Others140 the Court held:141
The failure to inform the accused persons of the privilege against self -
incrimination (in terms of the provisions of s 203) or their right not to be
compelled to give evidence against themselves (in terms of art 12(1)(f) of the
Namibian Constitution) will in my view render this trial unfair since to allow it
would expose the accused persons to cross-examination by the state on the
contents of the record of the bail proceedings in circumstances where a
fundamental right of the accused persons had been violated.
In S v Kapika and Others142 Mtambanengwe J ruled that four “warning”

statements i.e. statements made after the accused had been warned of their
right to silence in terms of the Judges Rules were inadmissible. One of the
grounds was that the statements were actually confessions and therefore
inadmissible because they were made to constables in the Namibian Police.
This aspect has been discussed in the lecture on admissions and
confessions.
The court rejected the evidence of the Namibian Police officers that they
had informed the accused of their right to be legally represented before
making the statements. Mtambanengwe then went on to refer to the
140
(2) 2012 (1) NR 244 (HC).
141
Ibid para 34.
142
Unreported judgment of the High Court of 2 December 1997.
74
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judgment of S v Melani and Others,143 where Froneman J recognised the

importance of informing an accused of his/her right to consult with a
legal representative, so that the accused (particularly the “uneducated, the
unsophisticated and the poor”) is not deprived of their right to remain
silent and not to incriminate themselves.
The High Court held in Gomes v Prosecutor-General of the Republic of

Namibia & Others,144 held that ‘the right to remain silent after arrest and
during trial is nowhere specifically mentioned in article 12 of the
Constitution, but it undoubtedly is an important component of a fair
trial’.145
In a leading Namibian case of S v Minnies and another146 Du Toit AJ

excluded the fact that Minnies pointed out various incriminating items,
because the court found that Minnies had been assaulted before the
pointing out. The court considered that section 218(2) of the CPA had to
be ‘interpreted in the light of the provisions of the Constitution. A
pointing out which results from an interrogation conducted in a manner in
conflict with article 8(2)(b) of the Constitution cannot be used in
evidence against the accused’.147
In the result, the items pointed out by Minnies were admitted into
evidence (i.e. the diamond-bearing gravel, bolt-cutter etc.), but not the
fact that the items had been pointed out by Minnies. The conclusion to be
drawn from the decision is that the physical facts or evidence discovered
will be admitted into evidence, but not any evidence connecting the
discovery of such facts with the accused, where the pointing out was
unlawfully or unconstitutionally compelled.
In S v Sankwasa148 the Court had to decide whether to admit real

evidence (diamonds) obtained from the accused at a time when he was
not a suspect. After examining the circumstances in which the evidence
had been obtained from the accused, the Court held: ‘I am satisfied that
the admission of the 12 unpolished diamonds in evidence … would not
render the trial unfair and bring the administration of justice into
disrepute.’149 Here the Court sets a test different from that of the cases
discussed above, to the effect that evidence obtained through human
rights violations has to be excluded if its admission would render the trial
unfair or would otherwise be detrimental to the administration of justice.
The Court in S v Sankwasa appears to suggest that, for evidence obtained
through violating a constitutional right to be inadmissible, it has to be
143
1996 (1) SACR 335 (E) at 347E– H.
144
(A61/2012) [2013] NAHCMD 240 (9 August 2013).
145
Para. 9.
146
147
Ibid at 374G.
148
2013 JDR 1977 (Nm).
149
Para 42.
75
satisfied that the admission of such evidence would render the trial unfair
and bring the administration of justice into disrepute. In other words, both
of the two requirements must be met.150
5. International law
The following international law instruments are directly relevant to
unlawfully or improperly obtained evidence:
▪ United Nations (UN) Convention against Torture (CAT).
▪ International Covenant on Civil and Political Rights (ICCPR).
▪ The African Charter on Human and Peoples’ Rights (African Charter).
Unit summary
In this unit you learned about unconstitutionally obtained evidence. We
also learned the theoretical basis and rationales behind the exclusion of
such evidence. Most importantly we also learned the principles and
approaches that have been developed by the courts in Namibia and
Summary elsewhere, vis-à-vis the admissibility of unconstitutionally obtained
evidence.
150
Mujuzi, JD. 2016, p. 416.
76
[LAW OF EVIDENCE]
References
Mujuzi, JD. 2016. ‘The admissibility in Namibia of evidence obtained
through human rights violations’, African Human Rights Law Journal,
Vol. 16 p. 407-434.
References
S E van der Merwe, Unconstitutionally obtained evidence: towards a
compromise between the common law and the exclusionary rule,
Stellenbosch Law Review, 1992, Vol. 2, p. 173
S v Shikunga and Another 1997 NR 156 (SC).
S v Malumo & 111 Others (2) 2012 1 NR 244 (HC).
S v Malumo and Others (CC 32/2001) [2011] NAHC 220 (19 July 2011).
Ex parte Attorney-General, Namibia: In re Corporal Punishment by

Organs of State 1991 (3) SA 76 (NmS)
Gomes v Prosecutor-General of the Republic of Namibia & Others

(A61/2012) [2013] NAHCMD 240 (9 August 2013).
S v Sankwansa 2013 JDR 1977 (Nm).
South Africa.


77
Unit 7 Private Privilege and State Privilege (Public Policy)
Unit 7
Private Privilege and State

Privilege (Public Policy)
Introduction
In certain cases relevant evidence will be excluded on grounds of privilege.

In this unit we will discuss the rationale of the privilege against self-
incrimination; the rationale for and requirements of the legal professional
privilege; explain the rationale and scope of state privilege (also public
interest immunity or public policy); the difference between private
privilege and state privilege; and discuss any other privileges recognised
in our law such as marital privilege.
▪ discuss the rationale of the privilege against self-incrimination;
▪ explain the rationale for and requirements of the legal professional

privilege;
Outcomes
▪ explain the rationale and scope of state privilege (public interest
immunity);
▪ differentiate between private privilege and state privilege;
▪ discuss any other privileges recognised in our law.
78
[LAW OF EVIDENCE]
Prescribed reading
Alexander v Minister of Home Affairs and Others 2010 (1) NR 226 (HC).
S v Campbell and others 1990 NR 310 (HC).
S v Malumo 2006 (2) NR 629 (HC).
S v Malumo and 116 others (2) 2008 NR 335 (HC).
S v Kandovazu 1998 NR 1 (SC).
S v Nassar 1994 NR 233 (HC).
S v Scholtz 1998 NR 207 (SC).
Additional reading
South Africa.
79
1 Private Privilege
Private privilege is directed at protecting interests of individuals such as
an accused or a witnesses in civil or criminal proceedings. Private
privilege exists when a witness is not obliged to answer a question or
supply information that is relevant to the issue in court.151 A witness is
required to enter the witness-box and claim private privilege. A claim of
privilege may or can be waived. No negative inference may be drawn
from the claim of privilege.
It is important that you distinguish privilege from non-competence or

non-compellability of a witness which will be discussed later in this
work. You must also be able to distinguish private privilege from state
privilege. Also note that secondary or circumstantial evidence can be
admitted to prove matters protected by a privilege.
The effect of private privilege is to deprive the court of relevant evidence

(exclusion of relevant evidence). Some synonyms to privilege include: an
advantage, a special right, a prerogative, a benefit, or an entitlement.
1.1 Privilege against self-incrimination

The Accused
The privilege against self-incrimination prohibits a person being

compelled to give evidence that incriminates him- or herself.152 This
rule is part of our common law and enjoys constitutional protection in
terms of Article 12(1)(f) of the Namibian Constitution.
Further, the right to remain silence gives effect to the privilege against
self-incrimination. The privilege against self-incrimination and the right
to remain silent are a natural consequence of the presumption of
innocence which implies that the burden on the prosecution is to prove
the accused’s guilty beyond a reasonable doubt.153 The privilege against
self-incrimination also promotes the right to privacy and dignity, and
encourage people to testify freely. These are some of the theoretical basis
and rationales for the privilege against self-incrimination.
151
152
Ibid; R v Camane 1925 AD 570 @ 577.
153
Article 12(1)(d) of the Namibian Constitution.
80
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In Miranda v Arizona154 it was stated that:

‘..The constitutional foundation underlying the privilege is the respect a
government accord to the dignity and integrity of its citizens. To 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 labours, rather than by the cruel
simple expedient of compelling it from his own mouth..’
The privilege against self-incrimination and the right to remain silent are
viewed as enhancing the truth-seeking function of the court. Application
of the privilege against self-incrimination and the right to remain silent is
applied differently in criminal and civil proceedings.
Witness in Criminal Cases

In terms of Section 203 of the CPA a witness is excused from answering
incriminating questions. The court further has a duty to warn an accused
of Section 203, failure to do so will render such incriminating evidence
inadmissible in a prosecution against the witness.
In S v Lwane155 it was stated that: ‘..in his testimony the appellant confessed to
have participated in a murder and was subsequently charged and convicted on
the basis of his confession. On appeal it was held that his testimony in the earlier
hearing was inadmissible because he was not warned of his right.’
The extent of the privilege in section 203 is modified in section 204 of

the CPA (on incriminating evidence by witness for the prosecution).
Section 204 encourages accomplices to testify as state witnesses against
co-offenders by providing an avenue for indemnity. This must however
be applied cautiously. In terms of section 204, if a witness answers
questions frankly and honestly he will be discharged from prosecution. If
a discharge of a co-accused is refused, the witness still enjoys protection.
In S v Maunye156 the court noted obiter that section 204 is a justifiable
limitation on the constitutional right not to give self-incriminating
evidence, it affords a criminal suspect a very fair and reasonable bargain.
154
384 US 436 (1966).
155
1966 2 SA 433(A).
156
S v Maunye 2002 1 SACR 266(T).
81
See also Judges Rules; Section 73 of the CPA (on assistance to accused
at arrest and criminal proceedings); and the Miranda judgement on
procedural safeguards.157
Furthermore, Section 37(1) of the CPA provides for ascertainment of

bodily features (fingerprints, palm prints, footprints, and blood samples).
So, is this not contrary to privilege against self-incrimination? The
privilege against self-incrimination relates only to the testimonial or
communicative acts of an accused and not to non-communicative acts
e.g. submission to blood test and the taking of fingerprints. This position
was stated in the case of S v Huma.158 Similarly, in S v Orrie159 the
court held that the: ‘...Involuntary taking of a blood sample for the purposes
of DNA profiling infringed the right to privacy and bodily security and integrity
but that the infringement justifiable’.
In addition, the privilege against self-incrimination is applicable in bail

proceeding. Where an accused gives evidence in a bail application he
retains the privilege.
The witness in civil proceedings
Section 14 reads with section 42 of the Civil Proceedings Evidence Act

(CPEA) provides that a witness may not refuse to answer a question
relevant to the issue, the answering of which has no tendency to
incriminate herself or expose her to a penalty or forfeiture of any nay
nature whatsoever… The effect of these provisions is to give a wider
ambit to the privilege against self-incrimination in civil cases than in
criminal cases, where it is not limited to the witness’s answers only but
exposure to penalties or forfeitures. So, the ambit of the privilege is wider
in civil cases.
Attempt to answer the following questions:

Activity
1. Does the taking of blood samples of a suspect for purposes of DNA

analysis or for blood alcohol level examination amount to self-
incriminating evidence?
2. Can an accused be allowed to testify against a co-accused? If so,

in what circumstances, and does the procedure infringe an
accused’s right against self-incrimination?
157
Schwikkard & Van Der Merwe, 2016, p. 135-8.
158
S v Huma (2) SA 1995 2 SACR 411 (W) at 419.
159
2004 1 SACR 162 (C).
82
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Where to find out your answers:

Feedback
1. S v Huma (2) SA 1995 2 SACR 411 (W) at 419; and Article

12(1)(f) of the Namibian Constitution.
2. Section 204 of the CPA; and S v Orrie 2004 1 SACR 162 (C).
1.2 Legal Professional Privilege

Rationale
In both civil and criminal proceedings the communication between a

lawyer and a client may not be disclosed without the client’s consent. This
is to promote confidentiality and public interest for attainment of justice
especially in an adversarial legal system. Legal professional privilege is a
fundamental right derived from the requirement of procedural justice and
it is not merely an evidential rule.160
The requirements for the existence of the privilege
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 purposes of pending litigation or purposes of
obtaining professional advice. Another important requirement is that the
client must claim the privilege or the legal representative. The legal
professional privilege applies in both private and public practice.
Scope of the rule
A witness may be asked whether she told her legal adviser or representative
about some facts but not what she told the legal representative. In S v
Mushimba161 the court held that legal professional privilege is extended to
interpreters, court clerks, secretaries and other employees in the law firm.
Legal professional privilege can also be claimed to prevent seizure by
warrant of a privileged document.
160
See S v Safatsa 1988 1 SA 686 (A) 886; Bennett v Minister of Safety and
Security 2006 1 SACR 523 (T).
161
1977 2 SA 829 (A).
83
Waiver
Legal professional privilege may be waived by the client. The waiver can
be expressed or implied e.g. through disclosure or publication.
Privilege attaching to a witness statement
When refreshing the memory of a witness in the witness box, the privilege
falls away.
1.3 Other privileges

See Section 236(4) of CPA and Section 31 of the CPEA on bankers.
There is no legal recognition for doctor-patient relationship; priests;
insurers and accountants; journalists and their informers.
Marital privilege: see Section 198 of the CPA and Section 10 of the
CPEA; and Article 12(1)(f) of the Namibian Constitution – applies to
communications during marriage and persists after divorce.
Parent-child privilege: Section 192 of the CPA provides that parents or

guardians can be compelled to testify against their children or wards and
vice versa. The absence of privilege also prevails where a parent attends
criminal proceedings in order to provide assistance to a child in terms of
section 73(3) of the CPA.
1.4 Some Namibian case law
S v Malumo 2006 (2) NR 629 (HC).
2 State Privilege (public interest immunity)

State privilege is also called public interest immunity or public privilege.
Relevant and admissible evidence may be excluded if its production and
84
[LAW OF EVIDENCE]
admission is against public policy or harmful to public interest. This is an

English common law rule. This rule is usually applied to documents but
can also cover oral and real evidence.
In Duncan v Cammell Laird & Co Ltd 162 the Plaintiff sought discovery of
documents which could disclose the design of a new submarine. The
admiralty claimed 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 because it assists the
nation’s enemies in understanding the design of the submarine.
In Makanjuola v Commissioner of Police the court held that163: by asserting

that documents are immune from disclosure on public interest grounds you
do not claim a right but observe a duty. The privilege is not a trump card
to play as when and as you wish. It is an exclusionary rule imposed, even
where it is to your disadvantage in litigation.
It is generally accepted that waiver is not possible where public interest

demands exclusion for the fundamental reasons of state security and
protection of the administration of justice.
The decision in Van der Linde v Calitz 164 the House of Lords decided that a
ministerial objection, if taken in proper form, was final and binding.
Swissborough Diamond Mines (Pty) Ltd v Govt. of the Rep. of South Africa –
suggested an approach to a claim of state privilege:165 (a) the court should
not be bound of any cabinet minister or bureaucrat; (b) the court is entitled
to scrutinise the evidence in order to determine the strength of the public
interest; (c) the court must balance between public interest and non-
disclosure; (d) court can call for oral evidence in camera and even allow
cross-examination; (e) and the onus should be on the state to show why it
is necessary for the information to remain hidden.
I agree with the above approach. The courts of law should always have the
final say and determination.
2.1 Informer’s privilege

The informer’s privilege protects communications which tend to reveal
the identity of informers and expose channels of the investigation of a
crime.
162
1942 1All ER 587.
163
1992 3 All ER 617 623.
164
1967 2 SA 239.
165
1999 2 SA 279 (T) 343-4
85
This privilege, being an aspect of state privilege, is governed by Section

202 of the CPA. This privilege promotes efficient detection of crime.
In R v Abelson166 it was held that: ‘The whole business of crime is

conducted in secret and devious ways against the interest of the state, and
the work of defeating the operations of criminals must also be conducted,
obviously by similar methods’.
Some reasons for the informer’s privilege

▪ To protect the informer and his family from those against whom he
informs.
▪ To ensure that the informer can be used in future.
▪ To encourage the public to come forward with information about
crimes.
RULE: No question may be asked or document may be received in

evidence that tends to reveal identity of the informer – the court also has a
duty to uphold the privilege if it is not claimed.
RELAXATION OF THE RULE: is when the material or evidence is

crucial to ends of justice or to show the accused’s innocence and the reason
for secrecy no longer exists.167
The Constitutionality of the informer’s privilege
In McCray v Illinois168it was accepted that non-disclosure of the informer’s

identity amounts to no due process violation. In criminal proceedings this
means that an accused would have no opportunity to cross-examine the
informer. The Constitution in Article 12(1)(d) of the Constitution to
provides for the right to cross-examine.
The informer’s privilege is per se not unconstitutional, but the

constitutional right to a fair trial must be considered in deciding whether
the privilege must give away. This approach confirms and expands the
common law principles governing the relaxation of this privilege.
Financial intelligence and terrorism legislation usually excludes evidence

of persons who have a statutory duty to report.
166
1933 TPD 227 231.
167
Ex parte Minister of Justice: re R v Pillay 1945 AD 653 658.
168
386 US 300 (1967).
86
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2.2 The police docket

Prior to the advent of the constitutional order, the state had the so-called
‘blanket docket privilege’ – some statements for a criminal or civil trial
were privileged from disclosure. State privilege covers the informer’s and
police investigation methods privilege.
The blanket docket privilege did not survive the Bill of Rights of the
Constitution.169 In S v Kandovazu170 the High Court of Namibia held
that an accused has the right to have access to a police docket. The effect
of denying the accused such access results in a breach of the fundamental
right to a fair trial stipulated in Article 12(1) of the Constitution.
In S v Nassar 171 the High Court further stressed that an accused has a
right of access to information in a police docket as it gives effect to the
right to a fair trial in terms of Article 12(1)(e) of the Constitution. But the
state is still entitled to object to the production of certain information on
grounds of true or classical privilege.
In S v Malumo & 116 Others (2)172 it was held that the court must
balance the interest of the accused and the interest of the state when
dealing with privilege attaching to witness statements. The onus is on the
state to prove that the refusal of disclosure is justifiable. Additionally, in
S v Scholtz 173 it was held that witness statements are not privileged and
should be made available to the defence subject to exclusions based on
grounds that such disclosure may impede the ends of justice or otherwise
be against public interest.
3 The difference between private privilege and state privilege
Private privilege State privilege
Secondary and circumstantial Secondary and circumstantial

evidence is admissible to prove evidence is inadmissible to prove
matters that are protected. matters protected.
169
See Shabalala v Attorney-General of Transvaal & Another 1995 2 SACR 761
(CC); Article 12(1)(e) of the Namibian Constitution.
170
1998 NR 1 (HC).
171
1994 NR 233 (HC).
172
2008 (1) NR 335 (HC).
173
1998 NR 207 (SC).
87
A party may waive a private Waiver of the privilege is only

privilege (provided it is done possible on clear authority of a
voluntary and knowingly). ministerial head.
The private privilege must be The court may in appropriate

claimed by the holder. circumstances uphold the
privilege mero motu e.g. on issues
of national security or the
informer's privilege.
Unit summary
In this unit you learned the rationales, essence of state privilege and
private privilege, and other forms of state privilege. We also discussed
the reasons and constitutionality of informers and police docket
disclosure with reference to leading Namibian case law. Lastly, we
Summary briefly looked at the difference between private privilege and state
privilege.
88
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References
South Africa.
References
S v Malumo 2006 (2) NR 629 (HC).
89
Unit 8 Admissions and Confessions
Unit 8
Admissions and Confessions
Introduction
In this Unit we shall review informal admissions and confessions. This is
mainly a subject of criminal procedure, therefore, it shall not be extensively
covered here as you will encounter it in criminal procedure. However, it is
vital to understand the rules of evidence pertaining to admissions and
confessions.
▪ define and explain the meaning of an admission.
▪ define and explain the meaning of a confession.
Outcomes ▪ describe and explain the requirements for admissibility of

admissions.
▪ describe and explain the requirements for admissibility of

confessions.
90
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Prescribed reading Edition. LexisNexis Butterworths: Durban.
South Africa.
Additional reading
R v Barlin 1926 AD 459.
Botes v Van Deventer 1966 (3) SA 182 (A).
S v Sheehama 1991 (2) 860 (A).
S v Minnies 1991 (1) SACR 355 (Nm); 1990 NR 177 (HC).
S v January; Prokureur-Generaal, Natal v Khumalo 1994 (2) SACR 801

(A).
S v Grove-Mitchell 1975 (3) SA 417 (A).
S v Somseb 1991 NR 339 (HC).
S v Yende 1987 (3) SA 367 (A).
S v Mpetha and others (2) 1983 (1) SA 576 (C).
1 Admissions
An admission is the confirmation of an unfavourable fact. Formal
admissions will be dealt with later, but the effect of a formal admission is
91
to place the fact admitted beyond dispute. An example would be admitting

a fact in a pleading in a civil matter. A formal admission could also be
made orally in court.
2. Informal admissions
Informal admissions are normally made out of court, but may be made in
court. Unlike a formal admission, which is made by or on behalf of the
party, an informal admission is proved by an opposing witness who heard
or saw the admission. It is not necessary to call the person who made the
admission (would usually be either the other party or a witness for the
other party).
The right to silence and admissions by silence under a bill

of rights
An accused has the right to a fair trial under article 12(1) of the
Constitution. An accused is presumed to be innocent until proven guilty
according to law, after a trial - article 12(1)(d). In particular, no person
can be compelled to give evidence against themselves - article 12(1)(f).
This right could also be described as the right not to incriminate oneself,
and it follows from this that one has a right to silence so as not to give
evidence incriminating oneself.
The situation where a person has been warned that he/she need not say
anything that will tend to incriminate himself/herself is clear. It is logical
that if an accused is properly warned that he/she need not incriminate
himself and the accused then exercises his/her right to silence, this should
not constitute an admission by silence. It has long been the position under
the common law that silence on the part of the accused after a warning
under the Judges' Rules cannot be taken as an inference of guilt.174
In Namibia, the right to silence would not only be based on the Judges’
Rules, but also, arguably, on a constitutional right to silence. Let us now
examine the position in countries where a bill of rights applies. In Doyle
v Ohio175, the US Supreme Court held that a state prosecutor was not
entitled to attack the credibility of the accused on the basis that they had
failed to tell their version (that they had been framed) to the police after
they had received Miranda warnings. An assurance that silence carried
no penalty was implicit in a Miranda warning. It would be fundamentally
unfair and a deprivation of due process to allow the arrested person's
174
See R v Patel 1946 AD 903 at p. 908 and S v Maritz 1974 (1) SA 266 (NC) at
p. 267G.
175
426 US 610 (1976).
92
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silence to be used to impeach an explanation subsequently offered at the

trial.176
Admission by conduct
In S v Sheehama' s case,177 the accused, presumably a PLAN combatant,
was convicted of five counts of murder and three counts of sabotage, by
the court a quo, and sentenced to death on each of the five counts of
murder. The charges arose out of the bombing of the Atlantic Meat
Market in Walvis Bay during August 1986, in which five people died and
two further bomb explosions at the Walvis Bay post office and the
municipal offices at Kuisebmund in November 1987.
The evidence disclosed that the accused was assaulted at various places in
Namibia by members of the SADF and Koevoet. He was brought to
Walvis Bay where he made certain pointing-outs. It is interesting that in
this case, a video recording was made of the pointing-outs, and also the
warning to the accused as to his rights at the pointing-out. The court
could therefore establish what the interpreter had actually told the
accused. The interpretation from Afrikaans to OshiWambo was however
so poor that it failed to convey the elements of the warning at all to the
accused.
The court held that because of the poor interpretation, the accused did not
understand his rights, the pointing-outs were not made freely and
voluntarily and were therefore inadmissible. The court went on, obiter it
would seem (but this does not reduce the correctness of the judgment), to
reconsider the admissibility of pointing-outs made under duress. In
Shezi's case and in S v Tsotsobe178, the courts rejected the argument that
a pointing-out was an admission by conduct and should therefore also be
proved to be freely and voluntarily made in compliance with section 219
of the CPA.
Admissions by a third person (vicarious admissions)

As a general rule, a statement made by a third person, is not admissible
against a party to litigation. So, for example, a confession made by an
accused is not admissible against the co-accused. Also, an admission of
adultery by a spouse is not admissible against the person with whom the
relationship was conducted. An admission made by an officer of a
176
Ibid.
177
S v Sheehama 1991 (2) 860 (A).
178
1983 (1) SA 856 (A).
93
company is not admissible against the company cf Simmons NO v

Gilbert Hamer and Co Ltd.179
There are three exceptions to this rule -
(a) Where the third party is authorised to speak on behalf of the

party;
(b) Where the party adopts the third party’s statement or ratifies it;
(c) Where because of an identity or privity of interests, the third

party’s statement can be seen as the equivalent of the party’s.
See Botes v Van Deventer180, where Williamson JA referred to these

three categories of Wigmore with approval.
Admissibility requirements
The specific requirements are explained above, but an admission cannot be

excluded because it is confidential or because a person was speaking to
himself/herself, or if someone overheard a conversation. The Constitution
may have an effect in criminal cases - the guiding principle will be whether
the accused will receive a fair trial. Consider for example the facts in S v
Hammer and Others181, where the state wished to prove against the accused
a letter written by him from a police cell to his mother. The letter was
excluded by the court exercising a common law discretion but, if it is
submitted, the same considerations of fairness will apply under article 12
of the Constitution.
(a) Civil proceedings
Unlawful duress must not be placed on the person making the admission.
An admission must be voluntary to be admissible.
(b) Criminal proceedings
As is the case with all forms of evidence in criminal trials, the state must
prove that an admission was made by the accused and that it is admissible
beyond a reasonable doubt. A trial-within-a-trial will be held if the
admissibility of the admission is contested on the basis that the admission
was not made voluntarily. If an admission is contained in a document with
inadmissible evidence, the inadmissible part should be concealed. The
accused may not for that reason insist that the document as a whole is
179
1963 (1) SA 897 (N).
180
1966 (3) SA 182 (A) at 198C – D.
181
1994 (2) SACR 496 (C).
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inadmissible. An accused may however insist that the exculpatory part of

a statement be placed before the court.182
The requirements for the admissibility of a confession are contained in

section 217 and for an admission in 219A of the CPA. Section 219A was
inserted by section 14 of Act 56 of 1979, which came into operation during
June 1979. The transfer proclamation transferring the administration of
legislation falling under the Ministry of Justice to the South West African
Administration took place during November 1979. It would therefore
appear that the amendment is applicable in Namibia. Section 219A
provides that:
"(1) 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 of that offence and is proved to have been voluntarily
made by that person, be admissible in evidence against him at criminal
proceedings relating to that offence: Provided 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 or
confirmed in the presence of a magistrate through an interpreter, if a certificate
by the interpreter appears on such document to the effect t hat 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.
(2) The prosecution may lead evidence in rebuttal of evidence adduced by
an accused in rebuttal of the presumption under subsection (1)."
It should be noted at this point that the requirements for the admissibility
of an admission are not as strict as a confession. An admission made to a
peace officer need not be reduced to writing, and confirmed before a
magistrate or justice of the peace, which are admissibility requirements
for a confession. An admission can be oral. A person could even be
drunk when making an admission. This only affects the probative value
of the evidence.183
Voluntary
182
See S v Cele 1985 (4) SA 767 (A).
183
See S v Grove-Mitchell 1975 (3) SA 417 (A) at p. 420C.
95
The basic requirement for admissibility is that the admission be made

voluntarily. This was a requirement under the common law, so cases
decided before section 219A was inserted are still applicable. The
Appellate Division held in S v Yolelo184, that the requirement of
voluntariness under section 219A was a codification of the common law
and referred to the formulation in Barlin's case at p. 462, with approval,
where Innes CJ held:
"The common law allows no statement made by an accused person to be given
in evidence against himself unless it is shown by the prosecution to have been
freely and voluntarily made - in the sense that it has not been induced by any
promise or threat proceeding from a person in authority... That is a principle
covering all admissions or statements made by the accused..."
Admissions made to a magistrate
Two different situations are envisaged by section 219A i.e. an admission

made to any person and an admission made to a magistrate.
In the first case, the state must prove that the admission was voluntary. In
the second case, if it appears from the document that the admission was
made voluntarily, then the admission is presumed to have been made
voluntarily. The accused then has to prove on a balance of probabilities
that the admission was not made voluntarily.
Facts discovered as a result of an inadmissible confession or

admission
An accused may either accompany the police to a point at which

something is discovered, for example, the murder weapon, or the accused
may accompany the police to the scene of the crime. Both instances are
"pointing outs" by the accused. A pointing out is "an overt act whereby
the accused indicates physically to the inquisitor the presence or location
of some thing or place actually visible to the inquisitor." See S v
Nkwanyana185, per Hoexter J. To just name a place would not be a
pointing out.
In the first instance, something is discovered which is unknown to

everyone except the accused and in this way the accused incriminates
himself/herself. In the second instance, the accused may also incriminate
himself/herself by showing that he/she has knowledge of where the
offence was committed.
184
1981 (1) SA 1002 (A) at 1009C.
185
1978 (3) SA 404 (N) at 405H.
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The accused may also provide information, which could be contained in

an admission or confession by the accused, from which a fact or object
may be discovered, without actually pointing out the object. The
question is whether the fact or thing discovered, and/or the fact that the
accused provided information or pointed it out, as a result of an
inadmissible confession or admission is admissible in evidence.
Section 218 of the CPA provides that:

"(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."
The interpretation by Schmidt of the meaning of section 218(1) is that a fact

discovered as a result of the information contained in an inadmissible admission
or confession is admissible. Nothing is however mentioned in the section that a
compelled pointing out by the accused is admissible (at p. 492). In other words,
section 218(1) does not authorise the connection of the fact discovered with
knowledge by the accused of the location or existence of the fact (cf the
conclusion in Minnies' case and the conclusion in S v January; Prokureur -
Generaal, Natal v Khumalo.186 The constitutional validity of section 218(1) has
to date not been considered by a Namibian court. If a strictly "fruits of the
poisoned tree" is followed, such is the law in the USA, then even the objects
discovered would be inadmissible, and not only the connection to the accused.
Section 218(2) however expressly authorises the admission of (a) a pointing out
by the accused and (b) the fact that the accused provided information and as a
consequence of which a fact or thing was discovered. Evidence may be given
of this, notwithstanding the fact that the pointing out or information forms part of
an inadmissible statement (i.e. an admission) or a confession i.e. that it was
compelled. This section has lost any efficacy due to the decisions in Minnies'
case, Sheehama's case and January's case.
In S v Minnies and another 187, a case discussed under unconstitutionally

obtained evidencce, Du Toit AJ excluded the fact that Minnies pointed out
various incriminating items, because the court found that Minnies had been
assaulted before the pointing out. The court considered that section 218(2)
186
1994 (2) SACR 801 (A).
187
1991 (1) SACR 355 (Nm) 1990 NR 177 (HC).
97
had to be "interpreted in the light of the provisions of the Constitution. A

pointing out which results from an interrogation conducted in a manner in
conflict with article 8(2)(b) of the Constitution cannot be used in evidence
against the accused" (at 374g). As a result, the items pointed out by
Minnies were admitted into evidence (i.e. the diamond-bearing gravel,
bolt-cutter etc.), but not the fact that the items had been pointed out by
Minnies (at 374g-h). The conclusion to be drawn from the decision is that
the physical facts or evidence discovered will be admitted into evidence,
but not any evidence connecting the discovery of such facts with the
accused, where the pointing out was unlawfully or unconstitutionally
compelled.
3 Confessions
As has already been referred to above, a confession is a particular form of
admission. A confession must comply with the requirements of section
217(1) of the CPA to be admissible. If it is a confession, but does not meet
one or more of the requirements, then it inadmissible, and may not be used
for any purpose, for example, as an admission or as a previous inconsistent
statement.
In R v Becker188, the court held that a confession was an acknowledgement

of guilt on the part of the accused that, "if made in a court of law, it would
have amounted to a plea of guilty." This definition has been followed in
numerous decisions, including by the High Court in S v Eiseb and
Another.189
The statement in R v Blyth190, where the accused said that she murdered her
husband by poisoning him with arsenic, was however held to be a
confession, because no possible defences were open to the accused. The
statement also covered both the actus reus element and the mens rea i.e.
having the intention to kill another human being. Kill would have only
embraced the actus reus.
Admissibility requirements
Except where a confession is made to a magistrate, the onus is on the state
to prove beyond reasonable doubt, that the confession was "freely and
voluntarily made by such person in his sound and sober senses and without
having been unduly influenced thereto", for the confession to be
admissible. A confession is only admissible against the maker and not
against a co-accused.
188
1929 AD 167 at 172.
189
1991 (1) SACR 650 (Nm) at p. 652j; 1990 NR 142 (HC) at p. 145D.
190
1940 AD 335.
98
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Proof of admissibility - a trial-within-a-trial
As already mentioned, the state is generally required to prove the

admissibility of the confession. Where a factual dispute arises regarding
the admissibility of any evidence, including a confession, then a trial-
within-a-trial is held. A trial-within-a-trial is frequently held where a
confession is in dispute, because of the prejudicial effect the admission of
a confession has on the defence of an accused.
When the admissibility of evidence has to be determined factually a

“trial-within-a-trial” is held. If the admissibility of the evidence is only a
legal question, then the presiding officer hears argument and makes a
ruling. The judge must give reasons for his/her ruling or decision if the
trial is held in the High Court, because of the provisions of section 146 of
the CPA. The most common situation where a trial-within-a-trial is held
is when the accused disputes the admissibility of a confession. Evidence
will then be led by the state regarding the making of the confession, and
usually the truth or the content of the confession is irrelevant. A trial-
within-a-trial is otherwise conducted like the main trial.
The accused should be able to go into the witness box “without being
exposed to general cross-examination on the issue of his guilt.”191 It has
been emphasised that the facts presented during the trial-within-a-trial
should be separated from the trial. In S v Gquma and Others (2)192,
Ackermann J held that a defence witness could be cross-examined on
evidence given during the trial-within-a-trial, if the confession was found
to be admissible. The purpose of the cross-examination is to test the
accused’s credibility and not to prove the contents of the statement.193
The decision given at the conclusion of a trial-within-a-trial is

interlocutory or is a preliminary finding, and if other relevant facts come
to light, it is the duty of the court to consider the matter again. See S v
Mkwanazi194, followed in S v Tjiho(1)195. In Tjiho's case, Strydom
AJP held that the reconsideration could take place at any time, and not
only at the end of the main trial (at p. 246H). Quite sensibly, the court
reconsidered the admissibility of a confession, before the accused
testified and could be cross-examined on it in the main trial.
Statutory requirements
Section 217 of the CPA regulates the admission of confessions:
191
See S v De Vries 1989 (1) SA 228 (A) at 233I.
192
1994 (2) SACR 182 (C).
193
See S v Lebone 1965 (2) SA 837 (A) at 842A, S v Motlhabakwe 1985 (3) SA
188 (NC) at 200C and S v Talane 1986 (3) SA 196 (A) at 205I.
194
1966 (1) SA 736 (A) at p. 742H - 743A.
195
1990 NR 242 (HC).
99
"(1) 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 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 a
magistrate through an interpreter, if a certificate by the interpreter ap pears on
such documents 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.
(2) The prosecution may lead evidence in rebuttal of evidence adduced by
an accused in rebuttal of the presumption under proviso (b) to subsection (1).
(3) 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 the judicial officer
presiding at such proceedings, favourable to such person."
Freely and voluntarily
The requirement that a confession be made "freely and voluntarily" has

been interpreted as the same as the common law requirement that an
admission be voluntary. The formulation in Barlin's case is therefore also
adopted, i.e. that the statement must “have been freely and voluntarily
100
[LAW OF EVIDENCE]
made - in the sense that it has not been induced by any promise or threat
proceeding from a person in authority.”
Sound and sober senses
In S v Masia196 the Appellate Division held that this requirement meant

that the accused must be sufficiently compos mentis to know and
appreciate what he was saying at the time he made the confession. The
mere fact that the accused was drunk at the time or mentally disturbed did
not mean that the confession would be inadmissible. A person may be
acting in a state of nervous excitement, great temper or pain, but it is not
necessary to show that the accused ‘was in a state of quiet serenity free of
mental or mental discomfort’.
Without having been unduly influenced thereto
The absence of undue influence requirement is broader than the

requirement that the statement be made voluntarily. Undue influence can
be brought to bear by anyone, and not only a person in authority cf. the
requirement of voluntariness. It may include not only threats or
promises, but also less tangible factors such as lengthy interrogation,
confrontation, fatigue and youthfulness. See S v Mpetha and Others
(2).197
In Tjiho's case the High Court accepted the law laid down in S v
Kearney198 as the test for determining whether the influence was undue.
In Tjiho, the accused had made an oral statement to an Inspector Dorn-
Shnirring, who had assured the accused that the oral statement was
inadmissible against him. The accused had previously declined to make a
written statement. The inspector said that he believed at the time that an
oral statement was inadmissible unless it was reduced to writing. The
inspector was a justice of the peace, being a commissioned officer, and an
oral statement did not therefore have to be reduced to writing for it to be
admissible.
Even though the inspector was acting bona fide, this will not mean that
the influence was not undue. See Tjiho's case at p. 247F - G. The court
also held that the statement was not made voluntarily, because the
accused had been erroneously assured that the statement would be
inadmissible in evidence against him and was not therefore acting
voluntarily (at p. 249D).
The first proviso - confessions to a peace officer
196
1962 (2) SA 541 (A), at 544H.
197
1983 (1) SA 576 (C) at 587H.
198
1964 (2) SA 495 (A).
101
The first proviso to section 217(1) provides that if a confession is made to

a peace officer, other than a justice or a magistrate, then it is inadmissible
unless it is confirmed and reduced to writing in the presence of a
magistrate or a justice.
A peace officer is defined in section 1 of the CPA as:

“peace officer' includes any magistrate, justice, police official, member of the
prisons service as defined in section 1 of the Prisons Act, 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), any person who is a peace officer under
that section”.
The facts of S v Somseb199 provide a depressing illustration of the low

level of education of the magistracy in Namibia. The magistrate in this
case failed to appreciate that a confession made to a peace officer i.e. a
sergeant, not being a justice of the peace, was inadmissible. The
magistrate allowed a sergeant to testify that the accused had confessed to
him that he had stolen a battery charger and sold it to another person.
The prosecutor joined in the fray, by cross-examining the accused on this
inadmissible confession. On review before Hannah J, the magistrate in
furnishing reasons for his decision, still failed to appreciate that the
confession was inadmissible and stated that the confession was one of the
reasons why he found the accused guilty. The magistrate also seemed not
to appreciate that the onus was on the state to prove the guilt of the
accused beyond reasonable doubt, commencing his reasons with the
statement "there is a reasonable possibility that the accused is the one
who stole the battery charger machine because ..." (my emphasis).
The confession must actually be made to a peace officer and not only in
his/her presence to be subject to the proviso. Where the policeman is
present and a possible intimidating influence, this may be sufficient to
make the confession subject to the proviso. The onus is on the state to
prove that the confession was not made to a peace officer, to escape the
application of the section.
A commissioned officer is a justice of the peace, but also in terms of the

definition a peace officer. Our courts, with some justification, view
confessions taken by a commissioned officer, particularly one attached to
the same unit investigating the offence, with some suspicion. These
confessions are nevertheless admissible.200
Paizes, Commentary on the Criminal Procedure Act, at pp. 24-61 - 62, writes
that the purpose of the section is to ensure that the accused is given a
measure of protection by requiring that a confession be made to a neutral
person (or more senior person). This protection has been negated by
confessions often being taken by police officers, even attached to the
199
1991 NR 339.
200
See S v Mavela 1990 (1) SACR 582 (A).
102
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same unit. Confessions before magistrates place a veil between the

treatment of the accused by the police and the confession subsequently
taken by the magistrate, which could have been induced by irregular
treatment. The confession is given a suspect "aura of respectability and
admissibility."
Confessions made to magistrates and justices
Confessions made to magistrates and justices are not subject to the

proviso and are therefore admissible if the requirements of section 217(1)
are met. If section 217(1)(a) is read closely, it becomes apparent that a
confession to a magistrate or justice need not be reduced to writing to be
admissible. This was the basis for the court's finding in Tjiho's case that
an oral confession made to an inspector was admissible, but inadmissible
because the requirements of without undue influence and voluntariness
were not met.
The second proviso - confessions made to magistrates
Confessions made to magistrates and reduced to writing or confirmed in

the presence of the magistrate and reduced to writing, are admissible
against the accused by the production of the confession in court by the
prosecution, if the provisions of section 217(b)(i) are complied with.
This means that the confession need not be proved - see the discussion
under documentary evidence, for the proving of documents.
Section 217(1)(b)(ii) contains a presumption that a confession is

presumed to have been voluntarily made, by a person in his/her sober
senses, and without having been unduly influenced to make the
confession, if:
(a) the confession is made to a magistrate in writing or confirmed

and reduced to writing in the presence of a magistrate; and
(b) it appears from the document that the confession was made freely
and voluntarily, by a person in his/her sound and sober senses, without
the person having been unduly influenced to make the confession.
This presumption was struck down as unconstitutional by the Supreme

Court in S v Shikunga and Another,201 which will be discussed under
presumptions.
201
1997 (2) SACR 470 (Nm SC).
103
Unit summary
In this unit you learned about informal admissions and confessions. We
learned the meaning of these concepts, and more importantly the
requirements or circumstances in which admissions and confessions may
be admitted in court as evidence with reference to numerous decided
Summary cases.
104
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References
South Africa.
References
R v Barlin 1926 AD 459.
Botes v Van Deventer 1966 (3) SA 182 (A).
S v Sheehama 1991 (2) 860 (A).
S v Minnies 1991 (1) SACR 355 (Nm); 1990 NR 177 (HC).
S v January; Prokureur-Generaal, Natal v Khumalo 1994 (2) SACR 801

(A).
S v Grove-Mitchell 1975 (3) SA 417 (A).
S v Somseb 1991 NR 339 (HC).
S v Yende 1987 (3) SA 367 (A).
S v Mpetha and others (2) 1983 (1) SA 576 (C).
105
Unit 9 Oral evidence and real evidence
Unit 9
Oral evidence and real evidence
Introduction
In this unit we shall focus on oral evidence and real evidence as forms of
evidence recognised in our law. The unit will also explore and explain the
rules pertaining to the process and presentation of these forms of evidence.
▪ discuss oral and real evidence as kinds of evidence.
▪ explain the rules relating to the presentation of oral evidence.
Outcomes ▪ explain the rules relating to the presentation of real evidence.
106
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Prescribed reading
South Africa.
Additional reading
1 Oral evidence
Evidence of either party in both civil and criminal proceedings must be
given orally in the presence of the parties. Section 161 of the CPA
provides that a witness must give evidence viva voce except where the
CPA or any other law provide otherwise.202
202
See also Section 42 of the CPEA.
107
Further, evidence must be given on oath or affirmation203 administered

by the presiding officer.204. Unsworn evidence is allowed if a witness is
found not to understand the nature and import of the oath or affirmation.
The rational of this practice of orality is cross-examination and the

demeanour of the witness for purposes of assessing his or her credibility.
Below is the discussion of the stages of a trial in which oral evidence is
primarily applied.
Examination in chief
The purpose of examination in chief is to present or lead evidence
favourable to the version of the party calling the witness.205 It is a method
of question-and-answer technique. The person leading the evidence has
control of the witness to prevent introduction of inadmissible evidence.
Leading questions are generally prohibited mainly because they suggest

the answer, assume existence of certain facts, and a witness may adopt the
suggested answer. Leading questions are allowed with regard to
introductory or uncontested matters.206
Cross-examination
Cross-examination is a fundamental procedural right and essential
component of the accusatorial trial. It is a natural and integral part of our
trial system. Cross-examination is a name given to the questioning of an
opponent’s witness, it succeeds examination in chief.207
Failure to cross-examine amounts to a gross irregularity in terms of

Article 12(1)(d) of the Namibian Constitution. The cross-examiner is not
restricted to only matters covered by the witness in examination in chief,
and leading questions are allowed but they carry less weight.
An accused may also be cross-examined by another accused or a co-

accused. You may not cross-examine your own witness except in
exceptional cases. A party has a duty to cross-examine on disputed facts
or aspects. Failure to cross-examine may lead the court to draw negative
inferences, however it should not do so.208 The court has a duty to assist
illiterate and undefended persons.
The limits of cross-examination
203
Section 162 and 163 of the CPA.
204
See also Section 39 and 40 of the CPEA.
205
206
Ibid.
207
Ibid at 392.
208
Ibid.
108
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▪ Curial courtesy – vexations, abusive, oppressive or discourteous

questions may be disallowed.
▪ Harassing, rude, unreasonable, unfair and abusive cross-examination
is not allowed, you need not always be aggressive to be effective.
▪ Inadmissible evidence may not be put nor elicited from a witness
during cross-examination.
▪ Avoid setting out on a ‘fishing expedition’. There ought to be some
latent relevance in cross-examination.
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.209
Its purpose is to clear up any point or misunderstanding which might

have occurred during cross-examination, or to correct wrong impressions
or false perception. It also gives a witness a fair opportunity to explain
answers given in cross-examination or to correct patent mistakes during
cross-examination.210
Re-examination is an important mechanism of presenting a full picture

and arriving at the truth. New evidence or issues cannot be introduced or
allowed as leading questions are not permitted.
Examination by the court
The court has a right to question the witness at any stage of the
proceedings and the rule against leading questions does not apply but
should be avoided. In most cases this preferably often takes place after re-
examination.211
The main purpose of examination by the court should be to clear up any

points which are still obscure. Given the nature of our accusatorial
system, the court should play a limited role in this regard. In criminal
cases a judge has more latitude to intervene to see that justice is done and
the truth is ascertained.212
Activity
209
210
Ibid.
211
Ibid.
212
Ibid.
109
Find the relevant provisions in the Criminal Procedure Act dealing with
the following:
Examination-in-chief
Cross-examination
Re-examination
Examination by the court.
See: Section 150, 151, 166 and 167.
2 Real Evidence
Real evidence refers to an object which, upon proper identification,
becomes, of itself, evidence - such as a knife, panga, photograph, drug,
voice recording, pistol, document, letter or even the appearance of a
witness in the witness box.213
In the absence of a formal admission of the object by the opponent during

proceedings, you call a witness who can identify the object (the real
evidence). If an object is admissible, it will be received as an exhibit, duly
labelled and numbered and available for inspection by the court.214
Appearance of persons
A person’s physical appearance and characteristics are real evidence. For
example, the court may examine wounds sustained by a person.
Identity may be established by a person’s physical characteristics. His size,

strength, dexterity, and other physical peculiarities may be relevant to the
issues of guilt or innocence. Is the resemblance of a child to a reputed father
evidence of parentage?
Tape recordings
Tape recordings may be admissible as real evidence. The dangers of this
evidence is the possibility of editing or alteration of tapes. The court must
be satisfied that it is shown prima facie that the recording is original and
213
S v M 2002 (2) SACR 411 (SCA) at 31; Schwikkard & Van Der Merwe,
2016, p. 421.
214
Ibid.
110
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authentic.215 This applies to transcription of recordings and even cell

phone recordings.
Fingerprints
Fingerprints as real evidence has strong probative value in linking an
accused to the commission or scene of a crime. Section 37 of the CPA
provides for ascertainment of bodily features including fingerprints.
Evidence of fingerprints may be presented orally or by affidavit.
Fingerprints are unique to each person, no persons have the same
fingerprints, which makes this form evidence unique.
Photographs, films and video recordings

Photographs, films and video recordings may be produced as real
evidence during proceedings. For example, in such matters as injuries or
accident damage. Section 232 of the CPA expressly allows for production
of photographs. These are considered documents in terms of Part VI
section 33 of the CPEA. The photographer must acknowledge in writing
that he is responsible for its accuracy.
Video recording – document or real evidence?
In S v Mpumlo216 the court stated that there is no difference in principle

between admission of audio tapes and video recordings. The State must
prove: originality; that no interference took place; they relate to the
incidence in question; the recording is faithful; and that the identity of the
speaker and the recording is sufficiently intelligible.217
S v Baleka218 the court held that ‘sound recordings and video recordings
are real evidence to which rules relating to documentary evidence are not
applicable’.
Inspections In Loco
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 within the discretion of the
court.
Section 169 of the CPA; the Magistrates’ Court Rules and the High Court
Rules both provide for inspections in loco.
215
Schwikkard & Van Der Merwe, 2016, p. 424-5.
216
1986 3 SA 485.
217
See also S v Ramgobin 1986 4 SA 1005 (T); S v Koralev 2006 2 SACR 298
(N) at 305f-6g.
218
1986 4 SA 192.
111
Inspections in loco allows the court to follow oral evidence more clearly
and may enable it to observe some real evidence. The observation must be
recorded and should be held in the presence of both parties.
Handwriting
Comparisons of disputed handwriting with any writing proved to be
genuine may be made by a witness in terms of Section 228 of CPA and
Section 4 of CPEA.
The writing submitted for comparison is real evidence. An expert in the

comparison of handwriting is known as a ‘questioned-document
examiner’.219 A Layman may give evidence concerning the comparison
of writing that he knows. The court is not bound by expert or layman’s
opinion. The court may draw its own conclusions from its own
comparisons.
Blood Tests and DNA Identification

Blood tests and DNA maybe used in litigation, for example in cases of
driving under the influence of alcohol (drinking and driving); paternity
tests, and rape.
DNA of each individual is unique, except for identical twins. DNA can
be extracted from cells taken from the skin, bone, blood, hair follicles and
even semen. DNA can be used to link a suspect to a crime, identify the
identity of a deceased person and solve paternity disputes. In S v R220 it
was stressed that there are substantial benefits to be derived from
harnessing the advances in modern science to the law.
Activity
Fingerprint and body-print evidence is admissible because of its high
probative value. Do be admissible what requirements needs to be met?
See: Bellengere, A., Theophilopoulos, C., & Palmer, R (Eds.). 2019. The
Law of Evidence in South Africa, second edition. Oxford University
Press; South Africa, pp. 165-7.
219
220
2000 1 SACR 33 (W).
112
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Unit summary
In this unit you focused on oral evidence and real evidence as forms of
evidence recognised in our law. The unit also explored and explained
some of the rules pertaining to the process and presentation of these
forms of evidence.
Summary
References
South Africa.
References
Evidence. Lexis Nexus Butterworths: Durban.
113
Unit 10 Documentary and Electronic Evidence
Unit 10
Documentary and Electronic

Evidence
Introduction
In this unit we will learn about documentary evidence and electronic

evidence as forms of evidence. The first part will look at documentary
evidence, thereafter we will discuss electronic evidence.
▪ explain the rules pertaining to the presentation and admissibility

documentary evidence as a form of evidence.
▪ explain the admissibility requirements and exceptions thereto of

Outcomes documentary evidence.
▪ discuss the rules pertaining to the presentation and admissibility of

electronic evidence.
114
[LAW OF EVIDENCE]
South Africa.
Prescribed reading Schwikkard, PJ., & Van Der Merwe, SE. 2016. Principles of Evidence,
Leroux, O. 2004. Legal admissibility of electronic evidence, International

Review of Law, Computers & amp; Technology, 18:2, 193-220.
Additional reading Paciocco, D.M. Proof and Progress: Coping with the Law of Evidence in
a Technological Age – available online.
South African Electronic Communications and Transactions Act 25 of

2002.
United Nations Commission on International Trade Law (UNCITRAL) –

the Model Law on Electronic Commence.
115
1 Documentary Evidence
Documentary evidence is another form of evidence. It is evidence is of a

hearsay nature, but included in the exceptions to the hearsay rule. There
is no single common law definition for documentary evidence, it is a
wide concept. In R v Daye221 it was stated that ‘a document is ‘any
written thing capable of being evidence’ and it does not matter what it is
written on’.
Section 33 of the CPEA defines a document as including ‘any book, map,

plan, drawing or photograph. Section 221 of the CPA defines a document
as including ‘any device by means of which information is recorded or
stored. See and compare also with the Republic of South Africa’s
Electronic Communications & Transactions Act 25 of 2002, which
accommodates developments in technology.
Admissibility requirements (subject to exceptions)

The original document
The original document must be produced, as to avoid errors or falsification.

The rationale underlying this requirement is associated with the best
evidence rule – “the original of a document is the best evidence of its
contents”. 222 If secondary evidence is the only means of proving the
document, it may be admitted.223
Authenticity
The document must be authenticated. In regard to private documents - the

document must be produced by a witness who is either (i) the writer or
signatory thereof (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.224 See also
Section 36 of the CPEA and Section 37 and 222 of the CPA with regard to
authentication.
221
[1908] 2 KB 333 at 340.
222
see Welz v Hall 1996 4 SA 1073 (C); See also Singh v Govender Brothers
Construction 1986 3 SA 613 (N).
223
Ibid.
224
Howard & Decker Witkoppen Agencies and Fourways Estates (Pty) Ltd v De
Sousa 1971 (3) SA 937 (T).
116
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Stamp Duty
In terms of Section 12 of the Stamp Duties Act225 certain documents need

to be stamped in order to be used in civil proceedings. This requirement is
not applicable to documents submitted in criminal proceedings. In civil
proceedings the failure to have a document stamped will not constitute an
absolute bar to admissibility.
The rationale of this requirement is to protect the interests of the fiscus as

was stated in Buyers Guide (Pty) Ltd v Dada Motors Pty Ltd.226
Civil Discovery
In civil proceedings parties in litigation may be called upon to ‘discover’

all documents they have in their position except those covered by privilege.
Activity
Mention five examples of documents that would qualify as documentary
evidence in the courts?
See the examples below.
225
77 of 1968.
226
1990 4 SA 55 (BG).
117
2 .Electronic Evidence
The terms ‘electronic’ and ‘digital’ are often used interchangeably to
refer to data created by electronic means. You must know the difference
between analogue and digital data.227
Examples of digital or electronic data include: digital photographs,

electronic documents, broadcast radio, CDs, DVDs, MP3s, etc.
Analogue data is more difficult to manipulate than electronic data.

Analogue data may be converted into digital format, and then be treated
as digital evidence. The requirements of admissibility attaching to
documentary and hearsay apply to electronic evidence.
Electronic evidence must be generally relevant and admissible, but must

also overcome the rules relating to authenticity and the production of the
original version. In South Africa the Electronic Communications and
Transactions Act228 drew heavily on the United Nations Commission on
International Trade Law (UNCITRAL) – the Model Law on Electronic
Commence is now the specific electronic evidence legislation. The South
African Act repeals the Computer Evidence Act229, which is to date still
applied in Namibia.
Civil proceedings
See Narlis v South African Bank of Athens230 and Section 34 of the CPEA.
In terms of the Computer Evidence Act, an authenticated computer

printout is admissible as evidence of any fact recorded in it where direct
oral evidence of the fact would be admissible. The printout must be
accompanied by an authenticating or supplementary affidavit to establish
the reliability thereof by a deponent. The Act requires that the deponent
must be a qualified person, with knowledge and experience with
computers, and the operation of the computer, data and instructions
supplied to it.
227
228
Act 25 of 2002.
229
Act 57 of 1983.
230
1976 2 SA 573 (A).
118
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The Computer Evidence Act is outdated. South Africa repealed it and

enacted the Electronic Communications and Transaction Act based on the
UNCITRAL Model Law on Electronic Commerce.
The admissibility of computer printouts in criminal proceedings is based
on Section 221 of the CPA (relating to trade or business records), and
Section 236 of the CPA (relating to banking records) - these can be
admitted into evidence as proof of their contents.
In S v Harper231 the question was whether computer printouts are

documents within the meaning of section 221 of the CPA. The court held
that the extended definition of a document in the CPA was not wide
enough to cover a computer.
The decision in S v Harper was also applied in S v Mashiyi and

Another232 where section 221 of the CPA was also read to exclude
printouts. They noted that there is a lacuna in our law and new legislation
relating specifically to computer evidence in criminal cases, the South
African Act, was passed and came into operation soon after this
judgement.
Gathering and Presentation of Electronic Evidence

The gathering and presentation of electronic presents unique challenges:233
▪ It is vital that evidence be expertly collected and preserved in a
manner that renders it useful for trial purposes.
▪ This requires forensic experts and adherence to procedures which
ensure that the chain of evidence is intact.
▪ Territorial jurisdiction – laws are territorial in nature but not the
internet. This may lead to jurisdictional issues.
Activity 1
Discuss the Namibian law on cybercrimes and cybersecurity, search and
seizure of electronic evidence including data messages.
231
1981 1 SA 88 (D).
232
2002 (2) SACR 387 (Tk).
233
See Schwikkard & Van Der Merwe, 2016.
119
Unit summary
In this unit you learned about documentary evidence and electronic
evidence as forms of evidence. The first part looked at documentary
evidence, thereafter we read about electronic evidence. It is important
to be able to explain the presentation and admissibility requirements of
Summary these forms of evidence.
120
[LAW OF EVIDENCE]
References
South Africa.
References
Edition. LexisNexus Butterworths: Durban.
Leroux, O. 2004. Legal admissibility of electronic evidence ,International

Review of Law, Computers & amp; Technology, 18:2, 193-220.
Paciocco, D.M. Proof and Progress: Coping with the Law of Evidence in
a Technological Age – available online.
121
Unit 11 Competence and Compellability of Witnesses
Unit 11
Competence and Compellability of

Witnesses
Introduction
In this unit we will focus on and evaluate the competence and

compellability of witnesses. We will look at the general rules regarding
competence and compellability of witnesses, and analyse such
competence and compellability of some categories of persons.
▪ evaluate the competence of witnesses in court proceedings.
▪ evaluate the compellability of witnesses in court proceedings.
Outcomes ▪ distinguish between a competent and compellable witness for court

proceedings.
122
[LAW OF EVIDENCE]
of Evidence in South Africa, Second edition. Oxford University Press;
Prescribed reading South Africa.
Additional reading
123
1 Competence and compellability of witnesses

A witness is competent if he or she may lawfully give evidence. A
witness is compellable if he/she may be obliged (i.e. forced) to give
evidence. A witness who has a privilege not to answer certain questions,
must be sworn in and must then claim the privilege when asked to reply
to the questions. A witness who is not compellable can refuse to be
sworn in. A witness who is not competent may not testify and any
testimony given is inadmissible.
Put differently, a competent witness is a person whom the law allows a

party to ask, but not to compel, to give evidence. On the other hand, a
compellable witness is a person whom the law allows a party to compel
to give evidence.234
The general rule

In both civil and criminal proceedings the general rule is that every
person is presumed to be competent and compellable to give evidence
unless the matter of competence and compellability is regulated by
statutory provisions.
“Every person not expressly excluded by this Act from giving evidence shall,
subject to the provisions of section 206, be competent and compellable to give
evidence in criminal proceedings.”
Section 8 of the CPEA also provides that every person shall be competent
and compellable to give evidence in civil proceedings.
Refusing to testify
In civil proceedings, a witness who refuses to take the oath or affirmation
or who, without a valid claim of privilege refuses to answer particular
questions, may be committed to prison for contempt of court.
In criminal proceedings, under section 189 of the CPA, it is a criminal

offence for a witness to refuse to give evidence without a “just excuse.”
Many of the reported cases in which witnesses refuse to give evidence
arose from a political context, where for ideological reasons, persons
refuse to give evidence which would have disclosed their sources or
234
See Schwikkard & Van Der Merwe, 2016.
124
[LAW OF EVIDENCE]
exposed their friends or adherents to the same political ideas or

movements.
In Attorney-General, Transvaal v Kader235, Kader was to be a state witness

in a prosecution under the Internal Security Act. He was sworn in, but
refused to testify, after having spoken to his legal adviser. Kader then
testified in a prosecution under section 189 of the CPA that he feared for
his mental health, having been in solitary confinement for some time, and
that he received psychiatric treatment after his ordeal. He also feared
ostracism from his community if he testified. He was sentenced to two
years’ imprisonment.
Incompetent or non-compellable witnesses

Mentally ill/drugs or alcohol
“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 reason, shall be competent
to give evidence while so afflicted or disabled.”
The wording of section 9 of the CPEA is more old-fashioned and provides

that:
“No person appearing or proved to be afflicted with idiocy, lunacy or insanity, or

to be labouring under any imbecility of mind arising from intoxication or
otherwise, whereby he is deprived of the proper use of reason, shall be
competent to give evidence while so afflicted or disabled.”
In both civil and criminal matters, once a drunk has sobered up or a person
is not under the influence of drugs, then the person may give evidence. In
R v Vilbro,236 discussed in the context of opinion evidence, the evidence of
a state witness who was later found to be suffering from a physical
condition that affected his mental faculties and who later died, was struck
out, except where it was not contested by the accused.
In S v Thurston,237 the trial judge admitted the evidence of a man who

had escaped from a mental institution and said that records spoke to him
and that he saw elephants at night. The trial judge did not think it
necessary to inquire into whether he was a competent witness. The AD
held that this was an irregularity. The court also recognised that the test
to determine competency was whether the mental illness would render
the evidence “totally worthless.” This would vary from case to case.
235
1991 (4) SA 727 (A).
236
1957 (3) SA 223 (A).
237
1968 (3) SA 284 (A).
125
The practice is for the judge/magistrate to question the witness to

determine his/her competence and to hear evidence if necessary (also if
necessary, within a trial-within-a-trial) concerning the witness’ condition,
before the witness is sworn in. A witness can however always later be
declared incompetent should this subsequently emerge from the
testimony given.
S v Zenzile238 represents an interesting example of a witness that having

been sworn in, apparently starts off quite well (although hard of hearing)
and it then becomes clearer to the court from the answers to simple
questions, that she is severely mentally deficient. The court decided that
even if she could observe and remember events (which the court
doubted), she could certainly not understand and answer simple questions
(at 446g). The court also stated that the witness’ incompetence to give
evidence was so clear that it was not necessary to have a trial-within-a-
trial to determine whether her evidence would be admissible. Her
evidence was accordingly struck from the record.
Children
The test here is whether in the opinion of the court, the child understands
what it means to tell the truth.
The general rule is that every witness must give his or her evidence under
oath. The court therefore first has to determine whether the witness
understands the meaning of an oath. No particular age can be applied as
a rule.
Section 164(1) of the CPA provides that:
“Any person who, from ignorance arising from youth, defective education, or
other cause, is found not to understand the nature and import of the oath or the
affirmation, may be admitted to give evidence in criminal proceedings without
taking the oath or making the affirmation: Provided that such person shall, in
lieu of the oath or affirmation, be admonished by the presiding judge or ju dicial
officer to speak the truth, the whole truth and nothing but the truth.”
Section 39(1) of the CPEA provides that:
“No person other than a person referred to in section forty or forty-one

shall be examined as a witness otherwise than upon oath.”
Section 40 of the CPEA provides that a person may make an affirmation

in lieu of an oath. Section 41 of the CPEA provides that when “any
person, who from ignorance arising from youth, defective education or
other cause” is unable to take the oath or affirmation, because they will
238
1992 (1) SACR 444 (C).
126
[LAW OF EVIDENCE]
be unable to understand it, then that person may be admonished (i.e.

warned) to speak the truth.
If it is determined that a child does therefore not understand the nature of

an oath, then the court will determine if the child can give unsworn
testimony (i.e. just under warning). If the child does not understand the
difference between truth and lies and the danger of telling lies, then the
child cannot give evidence.
In S v Mashava ,239 a girl aged 12 was allowed by a magistrate to give

unsworn testimony. The court held that while it was permissible to give
unsworn testimony, the requirements of section 164 must be complied
with. Firstly, there must be an enquiry to see if the witness understands
the nature of taking an oath (only then will section 164 become
applicable - she may understand the nature of an oath). Secondly, there
must be a sufficient warning to speak the truth. The magistrate only
warned the witness to repeat what she knew and not what others had told
her (at 228f - j). Her evidence was accordingly struck from the record
and the conviction and sentence set aside.
Persons involved in legal proceedings
It is self-evident that a person trying a case should not give evidence in

that trial. Besides the impression created, a presiding officer would also
not be in a position to determine his/her own credibility.240 In a number
of cases, the courts have held this to be irregular.
A summons or subpoena against a judge can only be issued in a civil

matter after leave has been granted to do so. Leave is granted on
application to the High Court in the case of a High Court judge and to the
Chief Justice (or the next available senior Supreme Court judge) in the
case of a Supreme Court judge.241 A prosecutor is a competent witness.
It is however undesirable that he/she should give evidence in a matter in
which he/she is involved. A prosecutor also has a duty of fairness
towards an accused and not only to ensure that the State’s evidence is
properly presented.
An attorney or advocate in a particular matter is a competent witness. It

is however undesirable for either to give evidence in a trial in which they
are appearing for one of the parties. Most bar counsel’s rules (i.e. the
advocate’s profession) prohibit counsel giving evidence in such a
situation. The reason for this is because at the conclusion of the case, the
credibility of the legal representative as witness will have to be
determined by the court. This is undesirable, because the legal
239
1994 (1) SACR 224 (T).
240
See Ex parte Minister of Justice: Re R v Demingo 1951 (1) SA 36 (A) at 43.
241
See section 21 of the High Court Act, Act No. 16 of 1990 and section 12 of
the Supreme Court Act, Act No. 15 of 1990 respectively.
127
representative should be above the issues in the case and his/her role
should rather be to represent the parties.
The accused
The effect of section 196(1) of the CPA is to make the accused a

competent witness for the defence, but not a compellable witness. Article
12(1)(f) of the Constitution also provides that an accused cannot be
compelled to give testimony against himself/herself. In other words, the
accused can only give evidence at his/her own request. Once the accused
chooses to give evidence, then of course he/she can be cross-examined by
the prosecution.
This was not always the position. Until 1898 in England, an accused
could not give evidence, but only make an unsworn statement from the
dock. The making of an unsworn statement by the accused was omitted
from the 1977 CPA. Section 196(3) expressly provides that an accused
“may not make an unsworn statement at his trial in lieu of evidence.”
The co-accused
An accused cannot be compelled to give evidence against his co-accused

on behalf of the state, because he/she is also an accused (i.e. the position
is regulated by section 196(1) of the CPA).
An accused person may give evidence on behalf of his/her co-accused,

but then becomes liable to be cross-examined on his/her own role, by
both the co-accused and the prosecution. The accused is therefore a
competent but not a compellable witness for a co-accused.
If the accused gives evidence against a co-accused, this evidence is

admissible against the other accused. He can also be cross-examined by
both the state and the other accused.
An accused can however only be called on behalf of the state against

his/her co-accused in the following cases:
a When the charges have been withdrawn (should be given
an immunity from prosecution under section 204);
b When the accused has been found not guilty;
c When the accused pleads guilty. As soon as the accused
pleads guilty, there is no longer a lis (dispute) between
him/her and the state. It is customary to separate the trials and
to first convict the accused and then to sentence him/her. This
is because the accused’s evidence will not have much value,
because he/she may colour his testimony in order to obtain a
lighter sentence;
d When the trials have been separated. It is customary to
complete the trial first against the accused who will testify
against the co-accused.
128
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The accused’s spouse
Article 12(1)(f) of the Constitution provides that:

“No persons shall be compelled to give testimony against themselves or their
spouses, who shall include partners in a marriage by customary law .. .”
In criminal matters, the accused’s spouse is a competent witness for the

defence on the application of the accused (section 196(1)(b)). The
accused’s spouse is generally not a competent and compellable witness
for the prosecution. In certain specified situations under section 195 of
the CPA, a spouse is both a competent and compellable witness for the
prosecution. The situations envisaged by section 195 consist of a number
of “family” crimes such as incest, bigamy, various sexual offences,
offences against their children, offences against the person of each other
etc.
Whether a spouse is still a compellable witness against the other spouse,

in a prosecution for one of the offences listed in section 195, in the light
of article 12(1)(f) is an open question. It does seem that on a literal
reading of article 12(1)(f), the spouse is a competent witness, but is not a
compellable witness against their spouse, irrespective of the offence.
Section 195 may therefore be unconstitutional and invalid to the extent
that it makes a spouse a compellable witness against the other spouse in
respect of the specified offences. This is surely a consequence not
intended by the Constitution’s drafters.
One possible argument against the invalidity of section 195 is that a court
would be required to balance article 14(3) i.e. “the family is the natural
and fundamental group unit of society and is entitled to protection by
society and the state”, with article 12(1)(f).
It should be noted that section 195 has since been amended in South
Africa by the Law of Evidence Amendment Act to make the accused’s
spouse a competent, but not a compellable witness for the prosecution,
except in the specified instances.
In civil matters, a spouse is a competent and compellable witness against

the other spouse for a party. Section 8 of the CPEA provides that every
person is a competent and compellable witness, except as provided
elsewhere in the CPEA or another law. It is at least arguable that article
12(1)(f) also applies to civil proceedings. There is no mention in the
article (as there is in some of the other sub-articles of article 12) that it
applies only to criminal proceedings.
Heads of state
It is submitted that the President is a competent and compellable witness.

This is because there is no mention of an immunity in the Constitution,
where only his/her immunity from civil and criminal proceedings (as a
129
party except in his/her official capacity) is mentioned (Article 31). Also,

in our constitutional structure everyone is equal before the law.242 The
position in the United Kingdom is that the Queen is a competent witness,
but cannot be compelled to give evidence, because the Queen enjoys a
prerogative.243
In Guzana v Council of State, Republic of Ciskei244, the Ciskeian

Appellate Division held that everyone was equal before the law and set
aside a law declaring the head of state not to be a compellable witness as
unconstitutional. Brigadier Oupa Gqozo (the then ruler of Ciskei) had
rather transparently passed a law giving him such immunity, after he had
been subpoenaed to give evidence in an inquest, in which he was directly
implicated as having given the instruction to have two persons murdered.
In the judgment of the US Supreme Court in William Jefferson Clinton v

Paula Corbin Jones (27 May 1997), the Supreme Court held that an
incumbent president did not have an immunity for civil damages
litigation for unofficial acts, but only for official acts. President Clinton
was sued by a former employee of the state of Arizona, who claimed that
while he was state governor he made certain sexual advances in a hotel
bedroom. The action was instituted before Clinton’s second term of
office. President Clinton asked for a stay of proceedings, until he was no
longer the president.
The Supreme Court held that an incumbent president did not have an
immunity because he was the president. He would only have such an
immunity for official conduct. The immunity did not attach to the office,
but rather to the particular function performed. The litigation arose both
before he became president, and was unrelated to his functions as the
president. The president of Namibia therefore enjoys greater protection
under the Constitution, than the president of the United States of
America.
Unit summary
In this unit you learned about the competence and compellability of
witnesses. We looked at the general rules regarding competence and
242
Article 10.
243
See Schmidt at pp. 219 - 220 and Hoffmann at p. 388.
244
1993 (2) SA 445 (CK AD).
130
[LAW OF EVIDENCE]
compellability of witnesses, and evaluated the competence and

Summary
compellability of some categories of persons.
References
South Africa.
References
131
Unit 12 The Calling of Witnesses (Viva voce evidence)
Unit 12
The Calling of Witnesses (Viva

voce evidence)
Introduction
This unit deals with the calling of witnesses. Normally witnesses are
called to give oral testimony or viva voce evidence in court. There are
various rules and procedures that need to be followed when calling
witnesses and pertaining to oral evidence. Remember that oral evidence
as a form of evidence was already presented in an earlier unit, so some of
the principles we read about will be emphasized in this unit too.
▪ explain the rules pertaining to the calling of witnesses in court

proceedings.
▪ explain the rules pertaining to the presentation of viva voce evidence

Outcomes in court proceedings.
▪ describe the rules relating to refreshing the memory of a witness and

impeaching the credibility of a witness.
▪ explain the course of a trial.
132
[LAW OF EVIDENCE]
Van der Merwe. 1991. Refreshing the memory of a witness, Stellenbosch

Law Review, No. 1, p. 62.
Prescribed reading
South Africa.
2nd Edition. LexisNexus Butterworths: Durban.
Additional reading
133
1.The calling of witnesses

The right to testify and to call witnesses
It is the right of each party to testify and to call witnesses. In the past,
convictions have been set aside in criminal cases because the accused was
not given sufficient assistance to call witnesses (for example, where the
accused in particular is in custody or unrepresented, witnesses mentioned
by the accused should be subpoenaed by the court).
In S v Haita245 an appeal from a magistrate’s court, the magistrate had

refused to call witnesses at the request of an accused. The witness would
have testified on matters relevant to the accused’s defence. The accused
’s conviction was set aside.
The fact that a witness sat through the trial in court and heard all the
evidence, and the accused only decided later to call him, was not a valid
reason for the court to refuse to call him.246 The weight of the witness’
evidence may be affected however.
Sequence of witnesses
The state always starts in criminal trials, except if an accused raises a
special plea such as autrefois convict or acquit. In civil trials, the
procedure is regulated by rule 29 in the Magistrates’ Courts and rule 40 in
the High Court. As previously explained, the party bearing the onus
usually starts. If from the pleadings, the Defendant has made certain
admissions so that an evidentiary burden or weerleggingslas now rests on
him or her, then the Defendant will start. For example, if a Defendant has
admitted an assault and the amount of damages have been agreed, but the
Defendant has pleaded a justification ground for the assault, then the
Defendant will start.
The rule is that the party that begins, leads all his/her evidence and then
closes his or her case. If the accused is not discharged (criminal cases) or
the court does not order absolution from the instance (civil cases), then
the other party presents all his or her evidence.
A party can choose to call his or her witnesses in any sequence. In

criminal cases, however, the accused is required to testify before any
other witnesses called by him or her.247 This is so that the accused
cannot change his or her evidence to match the evidence of the other
witnesses. A court may allow a witness to testify before an accused, for
245
1993 NR 368 (HC).
246
See S v Manaka 1978 (1) SA 287 (T) and S v Ntanjana 1972 (4) SA 635 (E).
247
See Section 151(1)(b) of the CPA.
134
[LAW OF EVIDENCE]
example, for the convenience of that witness. If an accused testifies after

hearing the earlier testimony, it may affect his or her credibility.
Witnesses called by the court

Only in exceptional cases, should a magistrate or judge depart from his or
her position as an arbitrator and call a witness. In our adversarial system,
it is considered undesirable for the presiding officer to descend into the
arena.
In terms of section 167 of the CPA:
“The court may at any stage of criminal proceedings examine any person,
other than an accused, who has been subpoenaed to attend such
proceedings or who is in attendance at such proceedings, and may recall
and re-examine any person, including an accused, already examined at
the proceedings, and the court shall examine, or recall and re-examine,
the person concerned if his evidence appears to the court essential to the
just decision of the case” (my emphasis).
A court therefore has a discretion to examine witnesses generally, but

shall examine a witness if the evidence of the witness is “essential to the
just decision of the case.” Schmidt points out that these words tend to
mean that the evidence is “desirable”, rather than only necessary.248
In terms of section 186 of the CPA, the court may also subpoena any
witness whose evidence is essential to the determination of the case. One
must bear in mind that our system is accusatorial not inquisitorial, and
that if this section is used frequently, it would run counter to the
adversarial system. The court cannot take the place of the prosecutor, for
example, and start building up a case which the prosecution has failed to
establish.
The judge/magistrate then leads the witness, without using leading

questions. This is a fairly unusual procedure - usually the presiding
officer “hints” that a certain witness should be called.
Civil proceedings
In civil proceedings, it is an irregularity for a court to call a witness. The
court may, however, call a witness with the consent of all the parties. A
248
At 241.
135
magistrate may recall a witness.249 A judge may do so at the request of a

party, but possibly not mero motu.250
Consultation with witnesses

In civil matters, it is permissible to interview the other party’s witness
and take a statement from him/her. This is despite the fact that the
witness has been subpoenaed or that a statement has been taken from the
witness on behalf of the other party or that the witness has testified. The
ethical rule is, however, that the other party should be notified of the
interview before it takes place. However, permission is not necessary.
“Such an interview should be held only for the purpose of deciding

whether to call that person as a witness or to obtain information which
may lead to the obtaining of other evidence. It should not be used to
obtain material for cross-examination of the witness should he be called
by the opposing party.”
The Constitutional Court in Shabalala and Others v Attorney-General of

Transvaal and Another251, struck down the ethical rule as
unconstitutional, because it violated the accused’s right to a fair trial.
The accused nevertheless has to approach the Attorney-General or his/her
representative to consent to the interview. If the Attorney-General
consents to the interview, then it may take place in the presence of a state
advocate. If the consent is refused, then the accused may approach the
court for permission to consult with the witness.
There were various public policy considerations, such as that state

witnesses may be intimidated, tampering with state witnesses, the identity
of informers may be disclosed etc. which supported the rule.
A public prosecutor or a police officer should not interview a witness

who is going to be called by the defence, i.e. at a stage when it is clear
that that witness has been subpoenaed and/or will be called.252
It is improper to speak to any witness about the case during an

adjournment, while he or she is giving evidence.
249
see Rule 29(12).
250
See Heinze v Friedrich 1927 SWA 106 (extremely short decision and no
authorities referred to), Pauley v Marine and Trade Insurance Co. Ltd 1964 (3)
SA 657 (W), followed in Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA
398 (D).
251
1996 (1) SA 725 (CC).
252
see R v Manda 1951 (3) SA 158 (A) and S v Schreuder 1985 (1) SA 48
(SWA).
136
[LAW OF EVIDENCE]
It is an irregularity (and in any event unwise) to interview a number of

witnesses together, because they may influence each other.253 In this case
the prosecutor was probably refreshing the witnesses’ memories together,
and the impropriety is that a witness may be persuaded to “remember”
what another witness may say during the consultation.
Evidence out of time

As a general rule, once a party has closed his or her case, it cannot be re-
opened. Evidence in rebuttal may be allowed in a number of situations.
Examples of where a party may be allowed to re-open his or her case are
where there has been an unexpected new issue or something in the nature
of a surprise. In a criminal trial, the State will have to show quite
convincingly that the issue could not have been ascertained from the
charge sheet and the plea.254
Late evidence may be allowed in the discretion of the court. The

evidence should be relevant and “material and likely to be weighty”. The
court is more likely to exercise this discretion favourably at an earlier
stage following closure, rather than later. The applicant should not have
been negligent in failing to present the evidence earlier - this is however
not an inflexible rule. The tendency is to a more liberal, flexible
interpretation of the rule.
2 .Testimony
Generally, evidence is presented (i) viva voce, (ii) under oath, (iii) in
public and, (iv) subject to examination. There are some exceptions to
these rules.
General rule and exceptions

Testimony is usually given orally in court. A witness cannot therefore
write down a statement and then hand this in as testimony. Medical
evidence is, however, often given by a doctor, who hands in a report.
The report is not testimony and the doctor must at least confirm the
correctness of the report, but preferably explain the report in evidence.
253
See S v De Lange 1983 (4) SA 621 (ZH).
254
See the discussion by Hoffmann and Zeffertt at pp. 476-7.
137
An affidavit is deposed to before a commissioner of oaths. There are

various rules, both procedural and ethical, concerning the taking of an
oath. Affidavits are largely important in civil matters in applications and
not in trials.
There are a large number of areas (usually expert and scientific) where a
fact can be proved on behalf of the state under section 212 of the CPA by
affidavit. The affidavit is then prima facie proof of the facts, but a court
can call the person making the affidavit to give evidence.
There are some provisions in the High Court rules and in the CPEA for
the admission of affidavit evidence during trials, but these are not used
very often.
The oath
As discussed under competency and compellability, as a general rule
evidence is given under oath or affirmation. The most important effect of
the oath is that a person can only be convicted of perjury if they have
taken the oath. Another important effect is that a person who has not
taken an oath, or an affirmation, or been warned to speak the truth, does
not give evidence, i.e. the evidence is inadmissible.
If viva voce evidence is not given under oath, it is not evidence - except
for the exceptions discussed under compellability and competency. In S
v Ndlela255, the magistrate had required witnesses to give evidence
under affirmation (section 163 of the CPA), because he believed that
many witnesses commit the blasphemy of perjury under oath (an oath is
taken under section 162). A witness should, however, decide to make an
affirmation instead of an oath and not the presiding officer for the
witness.
In S v Hendricks en ‘n ander256, a magistrate had not sworn in the

second accused, apparently in error, despite the fact that he wanted to
give evidence under oath. His evidence therefore had considerably less
probative value than it would have had if it had been given under oath.
An interpreter is a kind of witness. Interpreters take a general oath to
interpret truly and are not sworn in in every case. In Tshabalala v Lekoa
City Council257, although it was only necessary to decide the matter so
as to determine the liability for costs, the court held that an appellant
would have been entitled to lead evidence on the interpretation of a
Southern Sotho word which could mean “detain” and “arrest”, and not
just “detain” as interpreted. This was based on the acceptance that an
interpreter could be seen as a type of witness.
255
1984 (1) SA 223 (N).
256
1995 (1) SACR 37 (C).
257
1992 (3) SA 21 ((A).
138
[LAW OF EVIDENCE]
In S v Ndala 258, an accused was convicted after a trial in which the

interpreter was neither properly appointed as an interpreter nor sworn in
as an interpreter. The court held that an interpreter who is not properly
sworn in cannot administer an oath. Any testimony was therefore not
given under oath and is not therefore evidence properly before the
court.259 The accused’s right to a fair trial had also been violated,
because of the poor interpretation.
Presence of the public and of the parties

Article 12(1)(a) of the Constitution provides that all persons are “...
entitled to a fair and public hearing ...”. This follows the old expression
that justice should not only be done, it should also be seen to be done.
There are, however, certain exceptions to this principle aimed in

particular at protecting certain witnesses, such as children. Interests of
the security of state, public morals, good order or administration of
justice are further grounds listed under section 153(1) of the CPA.
Testimony (see also principles discussed under oral evidence)
Witnesses usually give evidence from the witness box, but an accused
can give evidence from the dock. This would be unusual, but also
uncomfortable in many courts, where the dock is behind counsels’
benches.
There are three stages in the testimony of a witness (stages of a trial):

▪ Examination-in-chief;
▪ Cross-examination;
▪ Re-examination.
Examination-in-chief
Examination-in-chief usually takes the form of the representative asking
questions with answers from the witness. This is to ensure that the
evidence is given in logical order and also that inadmissible evidence
(such as hearsay evidence) or irrelevant matters are not introduced.
Evidence is presented in this way to the court by the party calling the
witness. Unlike under cross-examination, a party’s own witness cannot
be asked leading questions, nor can the credibility of his/her witness be
attacked.
258
1996 (2) SACR 218 (C).
259
At 223D-E.
139
(i) Leading questions
The most important rule during examination-in-chief is that a witness

may not be asked a leading question. A leading question is a question
which suggests the answer or assumes the existence of facts that may be
in issue. This rule is relaxed in practice while reaching the events in
dispute. They can also be used to connect the witness to a person or
object - “do you see the person in court?”, “is this the bag?”.
A convenient form of the rule is that if a question has a yes or no answer,

then it is usually a leading question. There are some exceptions. “Did
you notice anything unusual”, is in Hoffmann’s view not a leading
question, although it can only be answered yes or no. I think that the
point is that at that stage of the testimony, the answer is not really in
dispute. If there was not anything unusual, there would not be a court
case.
Counsel is prohibited from putting leading questions to his own witness

because of the risk that the witness may perhaps think that such questions
are an invitation, suggestion, or even instruction to him to answer them,
not unbiasedly or truthfully, but in a way that favours the party calling
him.260
Leading questions can be asked in cross-examination. They can be

extremely useful in obtaining agreement or concessions once the cross-
examiner has gained control of the witness.
Hostile witnesses
It does happen during evidence in chief that a witness turns into a hostile
witness. This presumably happens more often to the prosecution than the
defence. One is not allowed to cross-examine one’s own witness. In
terms of section 190(2) of the CPA, one can however prove a previous
inconsistent statement against a witness. This is before a witness is
declared a hostile witness.
How does one have a witness declared hostile? We follow the English
rule because of section 190(1) read with section 286 of the CPA, i.e. the
residual English law section. A witness is hostile if he is “not desirous of
telling the truth to the court at the instance of the party calling him.”261
A previous inconsistent statement is helpful, as is a ridiculous answer to

the question why his/her evidence has deviated from the statement. The
demeanour test plays an important role.
260
Wigmore para 769; R v Ngcobo 1925 AD 561 at 564; R v A 1952 (3) SA 212
(A) at 222 C-D.
261
See Stephen Digest of Evidence, 12th ed.
140
[LAW OF EVIDENCE]
There is a general rule in criminal proceedings that a prosecutor should

hand a witness’ statement to the defence where a state witness deviates in
a material respect from his or her testimony during examination-in-
chief.262 This rule is not of much importance in Namibia today, with the
loss of docket privilege following the Scholz decision in the Supreme
Court. In S v Ncaphayi en andere,263 the court reiterated the importance of
the rule that the prosecution is required to hand the statements of the
prosecution witness to the defence where his/her testimony deviates from
the statement in a “material respect.” To fail to do so would be an
irregularity.
Cross-examination
The right to cross-examine is fundamental to the fairness of civil and
criminal trials and is a cornerstone of our adversarial system. The right to
cross-examine is guaranteed in criminal trials by Article 12(1)(d) of the
Constitution, providing that all persons shall have the opportunity to
cross-examine witnesses called against them.
The purposes of cross-examination are to obtain evidence which supports

the cross-examiner’s case and to cast doubt on the witness’ credibility
(i.e. that he/she is untruthful) or reliability (i.e. that the testimony is
inaccurate). In practice, a very wide latitude is allowed in cross-
examination, the two key areas being relevance and credibility.
It is now clear that a co-accused can cross-examine an accused that gives

evidence, even though his/her evidence does no damage to the other,
although there was initially some doubt. There can be no doubt about
this in Namibia in the light of the Namibian decision of S v Lesias en ‘n
ander.264
As a general rule, a court may control cross-examination to ensure that

the questions asked are not unfair, that cross-examination is not unduly
prolonged, etc. It is not, however, necessary; in fact, it would defeat the
purpose of cross-examination, if the cross-examiner had to explain the
purpose of the questions to the presiding officer. A judge may, however,
disallow, or as is more commonly the case, allow limited questioning on
a topic which appears to be irrelevant, on the basis that the relevance may
become apparent after a few questions. The questions are then usually
only relevant to credibility.
It is an irregularity to refuse to allow cross-examination.
262
See R v Steyn 1954 (1) SA 324 (A).
263
1990 (1) SACR 472 (A).
264
1974 (1) SA 135 (SWA).
141
In S v Wellington265, the High Court considered the conviction of an

unrepresented accused on review. After reviewing the South African
authorities, the court concluded that the failure by the court to inform the
accused of his right to cross-examine the state witnesses was an
irregularity. This was so, even though the accused was a motor car
salesman and therefore apparently literate. The point was, however, that
the accused was not a trained lawyer. The purpose of cross-examination
should also be explained to the accused. The court also held that the
irregularity also ensured that the accused did not receive a fair trial, in
contravention of article 12 of the constitution.
In Namib Wood Industries (Pty) Ltd v Mutiltha NO and another266, the

accused was a company. Its rights to cross-examine were not properly
explained. The court held that it was not prepared to extend the test in
Wellington’s case to the present. It was a commercial entity - it could
afford to employ an attorney or an advocate.
S v Khambule267 goes further than Wellington’s case. Not only must the
court explain to the accused that he or she has a right to cross-examine
and what this entails, the court must also assist the accused in his/her
cross-examination. The court must put questions to the witness in the
light of the defence given by the accused.
In general, one should cross-examine a witness if he or she testifies

contrary to your case. One should also cross-examine the witness on
those aspects that contradict your own case. Failure to do so, may mean
that you will not be able to argue that the witness should not be believed
at a later stage. This may not always be the consequence, particularly in
the case of an unrepresented accused or an inexperienced legal
practitioner. A witness may be an obvious liar, but it would almost
invariably be safer to cross-examine such a witness.
A cross-examiner should put his client’s case to the witness and request
him/her to comment on it. In S v Van As268 the court said that it was a
cornerstone of our legal system that an advocate must put his version to
the opposing witnesses (at 108c). The Namibian decision in Small v
Smith269 was referred to with approval, in which the court said: “It is, in
my opinion, elementary and standard practice for a party to put to each
opposing witness so much of his own case or defence as concerns that
witness and if need be to inform him, if he has not been given notice
thereof, that other witnesses will contradict him, so as to give him fair
warning and an opportunity of explaining the contradiction and defending
his own character. It is grossly unfair and improper to let a witness's
265
1991 (1) SACR 144 (Nm).
266
1992 (1) SACR 381 (Nm).
267
1991 (2) SACR 277 (W).
268
1991 (2) SACR 74 (W).
269
1954 (3) SA 434 (SWA).
142
[LAW OF EVIDENCE]
evidence go unchallenged in cross-examination and afterwards argue that

he must be disbelieved”.
Small v Smith was also followed in S v Noraseb and another270. In this

case, the conviction of the second accused, who was not cross-examined
by the state prosecutor, was set aside.
Re-examination
The purpose of re-examination is to explain misleading answers given
during cross-examination. It may also be used to clear up confusion or
doubts. Questions must be confined to answers given under cross-
examination. New matter may not be introduced without the permission
of the court.
In S v Ramalope271, Olivier AJA, held that a party had “a statutory right

to re-examine on 'any matter' if it is raised during the cross-examination”,
under section 166(1) of the CPA. “Secondly, the right to re-examine a
witness on 'any matter' is only limited to the extent that it was a matter '. .
. raised during the cross-examination of that witness”272. This right is
not limited to matters raised for the first time during cross-examination.
Olivier AJA then went on.273
Generally, the object of re-examination is to clear up any point or

misunderstanding which may have occurred during cross-examination; to
correct wrong impressions or false perceptions which may 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 fact elicited during cross-examination; or to give the witness
an opportunity to correct patent mistakes made under cross-
examination.274
All these objectives are covered by section 166(1). The examples quoted
above are not intended to be a numerus clausus. Re-examination can be,
and frequently is, a very important mechanism for presenting a full and
fair picture of the evidence of a witness and, thus, of arriving at the truth.
Of course, if counsel wishes to deal with new matter (ie not arising from
the cross-examination), he requires the leave of the court to do so.
270
1990 NR 346 (HC).
271
1995 (1) SACR 616 (A).
272
At 619G.
273
Ibid.
274
See Du Toit, De Jager, Paizes, Skeen and Van der Merwe Commentary on the
Criminal Procedure Act (1994) paras 22-25; Hiemstra Suid-Afrikaanse
Strafproses 5th ed 427.
143
3. Refreshing the memory of a witness
A document can be used to refresh one’s memory in the witness box.

The statement can, however, not be simply handed in, without any
testimony. As Hoffmann points out , this is really a fictional situation, if
the witness has no recollection of the events, then he/she is really just
testifying from the document.275 A witness can be asked by either party
to refresh his or her memory.
There are two different situations:

a A person has no recollection of an event and really gives
evidence from the document. Wigmore describes this as “past
recollection recorded”;
b A person’s memory is refreshed and he/she gives testimony
from what he/she remembers. Wigmore describes this as
“present recollection revived”.
In our law, in the former case, we have the fiction of orality, i.e. the
document is actually being proved (because the witness has no memory
of the events), but we hold that he or she is giving oral testimony and that
his or her memory has been refreshed in both cases. Wigmore’s
distinction has not been adopted in our law. Van der Merwe276 writes
that the English courts used the expression refreshing of memory, and as
a result of this, the distinction was lost.
It is clear from Ex parte Minister of Justice: in re S v Wagner277, that a

document used for refreshing a witness’ memory before giving evidence
need not be made available to the other side.
The situation is different if the witness has no independent recollection of

the events (past recollection recorded). Schwikkard278 notes that where
the witness has no independent recollection of the events, then the
document on which the testimony is based should be produced. If
privilege is claimed in respect of the document, for example, that it is a
witness’ statement, then the evidence given is inadmissible.
275
At 446.
276
Van der Merwe. 1991. Refreshing the memory of a witness, Stellenbosch Law
Review, No. 1, p. 62 at p. 66.
277
1965 (4) SA 507 (A).
278
144
[LAW OF EVIDENCE]
During an adjournment - if the reading of the statement merely led to

“present recollection revived” then the document does not have to be
produced.279 If the witness has no independent recollection, then it should
be produced.
There are four conditions necessary before a witness can use a document
in the witness box:280
a The document must be authentic. The witness must either
have made it himself/herself, or it must have been made on
his/her instructions to someone else (in which event the
original recorder should also testify), or he/she must have read
it at a time when the recollection of the events was still fresh
in his/her mind and accepted its accuracy.
b Fresh in the maker’s memory. The document must have been
made at a time or read when it was still fresh in the maker’s
memory. Contemporaneity is no longer a requirement.
c Original document. Must be produced in the case of past
recollection recorded. If not, a copy can be proved, where
there is no objection or where the original has been lost or
destroyed. If present recollection is revived then a copy need
only “substantially reproduce what was said in the
original”.281
d Production. If used in the witness box, it must be made
available to the opposition and to the court.282 If privileged
(which it will be in most cases), then it may not be used unless
privilege is waived.
The document itself is not however evidence. To admit it as such would

offend against the previous consistent statement rule and also that
testimony must be oral. The most effect that it has is to show consistency
or reliability, similar to a previous consistent statement. See however
Part VI of the CPEA (explained under hearsay evidence), which makes
considerable changes to the common law.
Experts are permitted to read their report/document, confirm it and then

hand it in. Reading the report is not however compulsory.283 This
decision, followed in S v Joubert284, requires the witness to confirm the
279
See Van den Berg v Streeklandros, Vanderbijlpark 1985 (3) SA 960 (T) at
967F.
280
Van der Merwe. 1991. Refreshing the memory of a witness, Stellenbosch Law
Review, No. 1, p. 62 at pp. 70-76.
281
Ibid.
282
See Ex parte Minister of Justice: in re S v Wagner 1965 (4) SA 507 (A).
283
See R v Birch-Moncrieff 1960 (4) SA 425 (T) at 427E.
284
1971 (3) SA 924 (E).
145
report as correct. As explained under opinion evidence, to just hand in a

report without explaining it will render the opinion and report of little
value, even though it is probably admissible. As Schmidt points out, the
fine dividing line between refreshing memory and proving a document is
crossed in the case of experts, who have no independent recollection of
the events.
Neutrality of the presiding officer

The role of the magistrate or judge is to see that justice is done. The
presiding officer is not therefore only an umpire, i.e. to see that rules are
observed, but has the broader function of administering justice. The
presiding officer should, however, avoid any conduct which could create
an impression of bias, partisanship or partiality, so that it could be said
that he/she has “descended into the arena”.
A presiding officer must guard against becoming a cross-examiner at any

stage of a trial. In S v Greyling285, the magistrate started putting “yes”
or “no” questions to the accused. This was not only unfair, but it also
seemed that the court was biased in favour of the State. In this case, the
court, however, decided that on a reading of the entire evidence, the
accused had been fairly tried.
In S v Maseko,286 the court said that a judge was entitled to put

questions to witnesses to clear up uncertainties, etc. As a result of these
questions, however, and the irritated way in which they had been put, an
application for the recusal of the judge had been made.
See also IMPEACHING THE CREDIBILITY OF A WITNESS 287
285
1991 (2) SACR 233 (N).
286
1990 (1) SACR 107 (A).
287
See Schwikkard & Van Der Merwe, 2016, p. 481-498; Section 190 of the
CPA and Section 42 of the CPEA.
146
[LAW OF EVIDENCE]
Unit summary
In this unit you learned about the calling of witnesses. Normally
witnesses are called to give oral testimony or viva voce evidence in court,
and there are various rules and procedures that need to be followed when
calling witnesses and pertaining to oral evidence. We also learnt about
Summary refreshing the memory of a witness and impeaching the credibility of a
witness.
References
Van der Merwe. 1991. Refreshing the memory of a witness, Stellenbosch
Law Review, No. 1, p. 62 at p. 66.
South Africa.
Hoffmann, LH., & Zeffertt, DT. 1988. The South African Law of
Evidence, Fourth Edition. Butterworths: Cape Town.
147
148
[LAW OF EVIDENCE]
Unit 13
Proof Without Evidence

Introduction
This unit primarily focuses on proof without evidence. In certain
instances one need not produce evidence to prove the facts in issue, for
example, where a court takes judicial notice of a fact, or where a party
formally admits to the allegations against him or her.
▪ describe the admissibility of formal admissions as proof without

evidence
▪ explain the admissibility of presumptions as proof without evidence.

Outcomes
▪ explain the admissibility of evidence through judicial notice.
149
Unit 13 Proof Without Evidence
South Africa.
Mpasi NO and Another v Master of the High court and Others 2018 (4)
NR 909 (SC).
Additional reading
150
[LAW OF EVIDENCE]
1. Formal Admissions
A formal admission is made to place a fact beyond dispute. In so doing,

time, and possibly, expense is saved. It is one of the ways in which a fact
can be proved, without evidence being given.
A formal admission admits a fact alleged by the opponent. It cannot be

used to prove a fact only alleged by the party making the admission.
In civil matters, a formal admission can be made both in pleadings and

orally by a party or by his/her legal representative in court. In the former
case, it is usually made in a plea by the defendant. In the latter case, it is
noted down by the judge and so becomes part of the record. It can also
be made by implication or expressly. An implied admission must be
clear and unambiguous.
If during cross-examination, an assertion of fact is deliberately and

specifically put to the witness on behalf of the accused/party (for
example, “I put it to you that the accused will say that he gave you
N$50”), these assertions will be treated as admissions. The admission is
apparently also a formal admission and requires no “additional formal
proof before they can be used” against the party (S v W 1963 (3) SA 516
(A) at 523D per Ogilvie Thompson JA).
Differences between formal and informal admissions
Formal admission Informal admission
Is usually made in court or in pleadings. Is usually made out of court - i.e. extra curially.
Is either sufficient or conclusive proof, so that Is not conclusive or sufficient proof of a fact, but
evidence need not be led about the fact admitted. only an item of evidence. Weight will vary
depending on the surrounding circumstances.
151
Is binding against the maker, and cannot be Can be contradicted or explained away by the
withdrawn or contradicted unless leave is granted maker and evidence can be led to rebut the
to withdraw the admission. admission.
Party must intend to and be aware of making an Can be made unintentionally and without being
admission. aware of making an admission.
Tends to shorten litigation, because a fact need Frequently becomes a cause of dispute as to
not be proved. whether the admission was made or not.
Civil proceedings
Section 15 of the CPEA provides that:
“It shall not be necessary for any party in any civil

proceedings to prove any fact nor shall it be competent for
any such party to disprove any fact admitted on the record
of such proceedings.”
There is a dispute in our law whether a court is bound to decide the matter
on an admitted fact, even though it is incorrect. Dinath v Breedt288, is the
authority for the view that, unless a party applies for leave to withdraw the
admission, the court will not be entitled to disregard the admission and
must decide the case based on the (incorrect) fact. The contrary view is,
however, stated in Frosso Shipping Corporation v Richmond Maritime
Corporation 289 , where Berman AJ held in the context of facts in an
affidavit at 485D that:
“in these circumstances it is proper to reject as untrue that one of the two
contradictory facts which is manifestly incorrect and the Court may, as
GREENBERG J said in Canaric NO v Shevil's Garage 1932 TPD 196 at
199:
‘... 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.’”
An admission in a pleading may be withdrawn on application by the party

seeking to amend the pleading. The court must be satisfied that:
288
1966 (3) SA 712 (T).
289
1985 (2) 476 (C).
152
[LAW OF EVIDENCE]
(a) the applicant has given a reasonable explanation for the

making of the admission and why it is now being
withdrawn. This should indicate a bona fide mistake and
can even include a mistake of judgment;
(b) the admission will not prejudice the other party, which
cannot be remedied by an appropriate costs order. This is
because the other party has until then thought that they do
not need to prove the fact, so they may need a
postponement to call witnesses, gather evidence etc.
Prejudice would mean, for example, a lost opportunity (because of

prescription) to issue summons against the correct defendant.
II Criminal proceedings
(a) Introduction
In criminal proceedings, formal admissions by the accused are regulated

by section 220 of the CPA:
“An accused or his legal adviser may in criminal proceedings admit any
fact placed in issue at such proceedings and any such admission shall be
sufficient proof of that fact.”
It was not possible for an accused to make a formal admission under

common law. A formal admission can however be made by the state
under common law. Admissions by the state are not regulated by statute.
An admission can be made at any stage, but is usually made during plea
proceedings. If during a guilty plea in terms of Section 112, the accused
admits all the elements of the charge, there are therefore no disputes
between the state and the accused. It is therefore unlikely that formal
admissions will be made during a not guilty plea.
In Section 115 proceedings (a not guilty plea), the accused may make
admissions of any matter that has not been placed in issue by a not guilty
plea. These are then noted in terms of section 220 of the CPA, if the
153
accused consents to this. If not, then the admissions may nevertheless be

used as informal admissions.
Courts should guard against eliciting formal admissions from

unrepresented accused who are not in a position to understand what the
effect is of an admission. An accused should be warned that he/she is
under no obligation to make a formal admission.
(b) Admission of secondary facta probanda
In S v Sesetse 290, the Appellate Division held that an accused can only
formally admit those primary facta probanda that are placed in issue by a
not guilty plea. Secondary facts not placed in issue cannot be made formal
admissions.
(c) Conclusive and sufficient proof
In terms of section 220, a formal admission is not conclusive proof, but

sufficient proof of a fact.
“Formal admissions are admissions that dispense with proof.” 291 The
wording is “sufficient proof” and not “conclusive proof.” The effect of an
admission was considered in S v Seleke en ‘n ander292. One of the accused
formally admitted that he had throttled the deceased so causing his death,
but then added that he did not intend to kill him, but only to frighten him,
so that he could obtain his money. In so doing, the accused would place
mens rea beyond dispute, so that the state would not be able to prove the
intention to commit murder and the accused would only be guilty of
culpable homicide. Rumpff CJ held that an accused can decrease the
number of issues arising from a plea of not guilty, by making admissions
under section 115 that are deemed to be admissions under section 220. If
the accused admitted that he did not have the intention to murder the
deceased, but did so negligently, then the state could still lead evidence
about the accused’s mens rea. This was because the form of mens rea was
still in issue (at 754D).
In Rumpff CJ's view, sufficient proof is not conclusive proof and the
accused can try to withdraw or rebut the formal admission, by evidence
that the making of the admission was not voluntary, etc.
Schmidt criticises this decision stating that section 220 has always had the
effect that an issue in dispute is eliminated and that this was the intention
290
1981 (3) SA 353 (A).
291
See Hoffmann at p. 431.
292
1980 (3) SA 745 (A).
154
[LAW OF EVIDENCE]
of the legislature in using the words “sufficient proof”. Schmidt prefers

the later decision of Viljoen JA in S v Mjoli:293
“I do not think, though, that the Legislature, when it

formulated the provision, had in mind the distinction or
meant to distinguish between prima facie and conclusive
proof ..., It simply intended, in my view, to provide for an
admission formally made to be proof in the sense that no
further or better proof is required. In other words, the
Legislature simply meant it to have the status of proof.”
In S v Sesetse 294 Wessels JA held (obiter) that if the formal admission

remains at the end of the trial, it becomes conclusive proof of the fact
admitted.
Marais JA in S v Hendricks295 dealt with an argument by counsel for the

Appellant that admissions made by the accused (Appellant) under section
115, was evidence led (and therefore, that the addition of a charge of rape
had resulted after evidence was led, which was irregular), Marais JA held
at 183f - i:
“It is trite that the effect of such admissions is to relieve the State of the
burden of adducing evidence to prove the admitted allegations. S v Sesetse
en ’n Ander 1981 (3) SA 353(A) at 374A. The admissions are statutorily
ordained by s 220 to be ‘sufficient proof’ of such facts. Even if the accused
declines to consent to what has been said during the process being
recorded as an admission, to the extent that what has been said is adverse
to his or her interests, it constitutes evidential material which may be used
against the accused in considering whether or not guilt has been proved.
S v Daniëls en ‘n Ander 1983 (3) SA 275 (A) at 300E-F; S v Sesetse en ’n
Ander (supra at 375H-376D). The short point is that what is said by the
accused when pleading to the charge, may, depending on the
circumstances, yield material upon which the prosecution will be entitled
to rely in discharging the burden of proof which rests upon it.”
Marais JA concluded that an admission made under section 115, which is

deemed to be an admission under section 220, is not evidence within the
meaning of the term in section 81(1), i.e. once evidence has been led, then
there may be no additional joinder of charges. The meaning of evidence
in section 81(1) is in the context of viva voce evidence led during a trial.
293
1981 (3) SA 1233 (A) at 1247.
294
At 374A – B.
295
1995 (2) SACR 177 (A).
155
A formal admission can nevertheless be withdrawn on the grounds of

compulsion (force), mistake or an irregularity. 296 It was pointed out by
Botha JA in the same case that it was always open to the accused to rebut
the admission and that the court could not close its mind to this evidence
simply because the admission had been made.
The facts of S v Nzuza297 are illuminating and are a useful lesson. Counsel
for the defence on a charge of murder admitted all the facts stated by the
prosecution in the record of the preparatory examination. No evidence was
led by the prosecution or the defence. The appeal court held that there had
not been a proper trial. The fact that the admissions constituted sufficient
proof, did not mean that they amounted to evidence. Section 156(1) of the
CPA requires witnesses to give their evidence in open court, in the
presence of the accused. This right could not be validly waived by the
accused. No evidence had been led, therefore the accused had been
convicted on no evidence at all. Section 141(3) (b) (the record can now be
admitted) alters the position with regard to preparatory examinations, but
it does not alter the basic principle.
2 Judicial Notice
In our adversarial system, a judge or magistrate is required to be removed
from the arena. Evidence is placed before him/her so that he/she can make
a decision. Even though a judge may know all about the issues, for
example how to play golf, or sail a boat, evidence has to be led about these
facts, where relevant and necessary. An exception to this approach is
where the court takes judicial notice of a fact.
A court may take judicial notice of a well-established fact, otherwise, a fact

has to be proved. A court will, for example, take judicial notice of the date
of Christmas.
It is generally accepted that in English law, a judicially noticed fact cannot

be rebutted by contrary evidence. Taking judicial notice also deprives the
party of an opportunity to cross-examine, so courts tend to be cautious
before taking notice of a fact without evidence.
Notorious facts
Notorious means well known. These are facts which are either general
knowledge or facts well known within the area of jurisdiction of the court.
296
See S v Daniels en ‘n ander 1983 (3) SA 275 (A) at 298F - H.
297
1963 (3) SA 635 (A).
156
[LAW OF EVIDENCE]
Schmidt points out that judicial notice is commonly taken of a variety of

facts without any awareness that judicial notice has been taken. For
example, what a motor car is, what tyres are, that rain may make a road
wet and so be dangerous, etc.
The test is whether the fact is so well known that it cannot be disputed by
persons who are reasonably informed and educated. In R v Tager298, the
leading case, the accused appealed against his conviction on a charge of
selling adulterated ice-cream, in that it contained less than 10% milk-fat
and of selling as milk shakes two glasses of a liquid which were not up to
the standard demanded by a purchaser. In quite an amusing judgment,
Watermeyer CJ, mentioned that “a milk bar, and the milk shakes produced
in it, are comparative new comers to South Africa, almost intruders in a
field which had previously known only bars of a more robust stamp”.299
The judges in the Transvaal Provincial Division had displayed a

knowledge of how to mix a milk shake. Watermeyer CJ held (at pp. 343-
4):
“The doctrine of judicial notice is, by all the authorities on the law of
evidence which I have consulted, e.g. Wigmore secs. 2565 - 2570; Phipson,
7th ed. pp. 19 et seq.; Taylor, 12th ed. secs. 4 - 21; Best, 10th ed., paras.
253 and 254; still to-day rightly confined within very narrow limits. Thus
Phipson says that Judges and juries can only take notice of matters `so
notoriously or clearly established that evidence of their existence is
unnecessary . . . Although, however, Judges and juries may, in arriving at
decisions, use their general information and that knowledge of the common
affairs of life which men of ordinary intelligence possess . They may not .
. . act on their own private knowledge or belief regarding the facts of the
particular case'. I may pause here to remark that, though it is hoped that
the Judges of this Division conform to the standard of intelligence set by
Phipson, they, to their regret, do not share the knowledge which the Judges
who decided the case in the Provincial Division seem to possess as to the
ingredients of the no doubt pleasant and innocuous beverage in issue in
this case. Wigmore in sec. 2569 (a) draws the same distinction: `It is
therefore plainly accepted that the Judge is not to use on the Bench, under
the guise of judicial knowledge, that which he knows as an individual
observer. The former is in truth `known' to him merely in the peculiar sense
that it is known and notorious to all men, and the dilemma is only the result
of using the term knowledge in two senses. Where to draw the line between
knowledge by notoriety and knowledge by personal observation may
sometimes be difficult but the principle is plain.' I cannot help thinking that
any knowledge used by the learned Judges in this case was knowledge
which they possessed as the result of personal observation and not of
notoriety.”
298
1944 AD 339.
299
At 343.
157
Here the court would not take judicial notice of how to make a milkshake.
R v African Canning Co (SWA) Ltd300 also illustrates the principle (at 199F-
G):
“It is clear that a public company can be incorporated for any lawful
purpose whatsoever. I take judicial notice of the fact that public companies
in this Territory are generally incorporated with the object of carrying on
business with a view to making a profit from income. This is such a
notorious fact that proof is not required. I am also entitled to take judicial
notice of elemental experience in human nature, commercial affairs and
everyday life. See Rowe v Assistant Magistrate Pretoria and Another, 1925
T.P.D. 361 at p. 368. See Wigmore, sec. 2571, and R v Tager, 1944 A.D.
339 at p. 343. It does not necessarily follow that every company is
incorporated with the object of making a profit. The facts on record must
be examined to see whether the inference that this company is carrying on
business for the purposes of trade can be drawn in accordance with the
principles laid down in R v Blom, 1939 A.D. 188.”
Judicial notice has not been upheld for example, where the judicial officer
assessed the age of animals or the linguistic ability of a colleague.
A further illustration of the boundaries of judicial notice is the judgment in

S v L 301 , a judgment of the full bench of the Eastern Cape Provincial
Division. The respondent in the appeal (applicant in the court a quo) had
brought an application to compel a mother (the appellant) and her child to
undergo blood tests to determine whether he was the father of the child.
No expert evidence, in fact no evidence at all was placed before the trial
court in respect of the accuracy and nature of the tests. The court had used
text books and earlier decisions to determine the accuracy of the tests.
Mullin J held (at 716A - C):
“I have my doubts whether the learned Judge a quo was correct in taking
judicial notice of the fact that there has been such development in the
technique of blood testing that blood tests can now exclude a man as the
father of a child with a 99,85% probability of correctness, and the
corollary that, if he is not excluded as the father, he probably is the father.
While such evidence may well have been adduced in other cases, or have
appeared in legal or scientific articles, I am doubtful whether such
technique has 'advanced to a certain degree of general recognition (that
its) trustworthiness may be judicially noticed as too notorious to need
comment'. Wigmore on Evidence 3rd ed vol III at 190; S v Mthimkulu 1975
(4) SA 759 (A) at 763H-765B. That the results of blood tests are admissible
in evidence is clear. But details of the whole process of the taking of the
samples, the process of testing such samples, the potential results of such
300
1954 (1) SA 197 (SWA).
301
1992 (3) SA 713 (E).
158
[LAW OF EVIDENCE]
tests, and the conclusions to be drawn therefrom, should in my view be

properly proved in each specific case.”
A similar instance of judicial “research” is S v Heilig302. A magistrate had

taken judicial notice that the export of drugs had an impact on the local
market by creating “drug wars” and also of statistics that drug offences had
increased at Johannesburg International Airport. Cloete J held that the
magistrate was not entitled to take judicial notice of either fact because
these facts were not notorious. The accuracy and interpretation of statistics
also required expert evidence. In addition, the magistrate had not informed
the accused that she was taking judicial notice of these facts, so that he
would be in a position to lead evidence to the contrary or make submissions
to the court on the evidence.
In S v Shiini303, Teek J (Hannah J concurring) considered an appeal from

the magistrate's court at Oshakati, where the appellant had been convicted
of possessing a machine gun and some ammunition. The appellant was
found in possession of an AK-47. The state led the evidence of a police
officer, but failed to prove his qualifications to give evidence about
firearms. He also did not give any reasons for his opinion that an AK-47
was a firearm, so his opinion evidence was either inadmissible or of no
value.304
The state argued on appeal that the court could take judicial notice that an
AK-47 was a machine gun. Teek J held that this fact was not "so well
known or so notorious that judicial notice may be taken thereof" (at p.
215b). The conviction on the count of possession of a machine gun was
set aside, while the conviction on the count of possession of the
ammunition was upheld.
Interestingly, the opposite conclusion was reached by Schutz JA in S v

Metu305. The court held that it would be unrealistic for it not to take judicial
notice that an AK 47 (“that notorious murder weapon”) could function as
a machine gun. The State may not, however, with impunity be careless
about proving the qualities of possibly less well known weapons.
This is precisely what happened in S v Ratte306, where on appeal from a

magistrate’s court, the court held that a magistrate could take judicial
notice that a round of AK 47 could be fired from the gun as a machine gun.
It was, however, wrong for the magistrate to take judicial notice of the
functioning of R1, R4 and R5 firearms, which were not as well known.
302
1999 (1) SACR 379 (W).
303
1997 (1) SACR 212 (Nm HC); 1993 NR 393 (HC).
304
At 215A.
305
1995 (2) SACR 681 (A) at 684E.
306
1998 (1) SACR 323 (T).
159
The sentence quoted above from the Metu judgment, i.e. that the State
could not with impunity be careless about proving the qualities of possibly
less well known weapons, was particularly appropriate in the judgment of
the court.
The same approach to judicial notice is adopted in both civil and criminal
matters. Where a fact in a criminal trial is vital or material judicial notice
should not be taken of it. “That the utmost caution must be exercised by a
Court before taking judicial notice of a vital or material factum probandum
in a criminal case is manifest from R v Tager 1944 AD 339” per Trollip
JA in S v Imene307. Trollip JA (in the majority decision) went on to hold
that the expression that the trial judge erred in taking judicial notice that
the expression “manne in die bos” (as translated into Afrikaans from the
“Ondangwa” language) meant “terrorists”, let alone “terrorists” as defined
in the Terrorism Act, Act No. 83 of 1967.308 This was so, even though the
judge was entitled to take into account the knowledge available in the then
South West Africa. The conviction was however upheld on other grounds.
There is no hard-and-fast rule with regard to the reception of notorious

facts. Courts are however more conservative than liberal when taking
judicial notice of facts.
A notorious example of racism dressed up as judicial notice is that of

Rumpff CJ in S v Augustine:309
“Blykbaar het die advokaat vir die verdediging en die Verhoorhof nog nie
die ondervinding opgedoen nie dat inderdaad Kleurlinge en Swartmans
soms mense steek sonder enige rede, behalwe oenskynlike steeklus.”
Some other instances of racist judicial notice (although all overturned on

appeal to a superior court), are that ‘natives’ can see in the dark, that
"native" witnesses who give evidence in support of an alibi, may be
assumed to be liars and that "Bantu" women submit to rape without protest.
Courts can also take judicial notice of facts that are notorious within the
general area of the court. In R v De Necker310, the accused was convicted
of inter alia using obscene language “to the annoyance of the inhabitants
of St George’s Street.” The appeal was based on the point that there was
no evidence in the record to prove that the offence was committed within
the jurisdiction of the magistrate’s court. The court held that there was
sufficient evidence on the record from which the court could conclude that
St George’s Street was in Cape Town, but Gardiner J held (at pp. 658 -
569):
307
1979 (2) SA 710 (A) at 714H.
308
At 715A-B.
309
1980 (1) SA 503 (A) at (506A - B).
310
1921 CPD 567.
160
[LAW OF EVIDENCE]
“It would be absurd for the members of the Court who heard the appeal to
pretend that in their personal capacities they do not know where St
George’s Street is. It is one of the principal streets in Cape Town, a street
which we traverse hundreds of times a year on our way to and from the
building in which the Supreme Court sits.”
Hoffmann’s view is that there may be a St George’s Street elsewhere. It is

however unlikely that there would be a street with the same name near the
area of the district of Cape Town.
In S v Mantini311, the magistrate sought to justify a heavy sentence for the

cultivation of one dagga plant. He stated that he knew the area and that
dagga thrives there. After a year, the plant would become a big tree and
produce a great deal of dagga. The Supreme Court held on review that the
magistrate could not use personal knowledge of growing dagga plants
when sentencing the accused. The sentence imposed was set aside and a
lighter sentence imposed.
Facts readily ascertainable
Where the court can ascertain facts “which are capable of immediate and
accurate demonstration by resort to sources of indisputable accuracy easily
accessible to him”, then the court may take judicial notice of these facts.
There are a few well-defined areas where judicial notice is permissible.
(a) Political matters
Courts in the United Kingdom take judicial notice of for example, the
existence of a state of war between countries or whether a country’s
government has been recognised etc. Proof can also be provided by way
of a certificate from the Foreign Secretary, in which case it is regarded as
an indisputable fact. The rationale for this is that it would not be in the
public interest for the Ministry of Foreign Affairs to certify, for example,
that Namibia is at war with a particular country and for a court to find
otherwise. English decisions are reflected in South African decisions.
(b) Historical facts
Judicial notice may be taken of various historical or sociological facts and

courts are also entitled to consult works of reference. In Consolidated
Diamond Mines of SWA Ltd v Administrator, SWA 312 , the court took
judicial notice of various historical facts that were relevant to the
interpretation of a proclamation.
(c) Maps
311
1990 (2) SACR 236 (E).
312
1958 (4) SA 572 (A) at 609.
161
Maps can be used to establish a fact that would then be beyond reasonable
doubt. The map must be authoritative, “such as are issued under
Government or other reliable authority.”313 In R v Erasmus314, a witness
was asked to point out Koosa on a map of Namibia, which he then did
indicating that it was in the Kaokofeld. There was no evidence that the
map was a “public map generally offered for public sale” as required by
Phipson. The map was, however, drawn in the Surveyor-General’s Office,
Windhoek and on that basis judicial notice was taken of the map.
(d) Calendars and tables
In England and the USA, calendars are used, for example, to determine
time periods or to see if a day was a Saturday. Calendars have been used
to determine the time of sundown.315 In S v Sibuyi316, the court in a well-
reasoned judgment after reference to English authorities, disapproved of
the use of a calendar for anything other than determining days and months.
The court disapproved of the decision in S v Mphaharu en ‘n ander317, in
which the court had used a calendar diary to determine the phases of the
moon.
Statutory provision is made for the admission of sundown and sunrise

tables prepared by an observatory in section 229 of the CPA and section
26 of the CPEA. The tables are admissible in evidence to prove their
contents. Unless the previously approved South African tables are still
applicable in Namibia, it is doubtful whether there are any tables approved
by the Minister of Justice in the Gazette.
(e) Books
A court may not refer to, for example medical textbooks, to determine a
factual situation. This evidence should be proved through expert evidence.
It is a common occurrence, however, for courts to refer to dictionaries to

establish the meaning of a word. It seems that reference to books may go
a bit further than dictionaries, because in Grgin v Grgin 318 , the court
referred to The Statesman’s Year-Book - 1958 to establish that three
languages were spoken in Yugoslavia. It may however be noted that this
fact was not in issue, the fact was just a bit of “colour” to add to the rest of
a judgment.
313
See R v Pretoria Timber Co (Pty) Ltd 1950 (3) SA 163 (A) at 172F.
314
1932 SWA 17.
315
See R v Magwaza 1939 2 PH O64 (N).
316
1988 (4) SA 879 (T).
317
1981 (2) SA 464 (NC).
318
1961 (2) SA 84 (W) at 88D.
162
[LAW OF EVIDENCE]
Legal matters
Common law
Judicial notice is taken of the common law. As is generally known, it is

not necessary in a court to prove what the common law is on a point of law.
This is established by the court, usually after hearing arguments where the
interpretation of the law is contested.
Statutes
Judicial notice is taken of Acts of Parliament. Article 65(1) of the

Constitution provides that the secretary of the National Assembly shall
cause two copies of an act of Parliament to be enrolled in the office of the
Registrar of the Supreme Court and “such copies shall be conclusive
evidence of the provisions of the act.” Evidence cannot be led to prove
either the common or statute law.
Public international law
Public international law that has acquired the status of custom is applied as
part of the common law. This is the position at common law and also by
virtue of Article 144 of the Constitution which provides that the ‘general
rules of public international law and international agreements binding on
Namibia under this Constitution shall form part of the law of Namibia’.
Judicial notice is also taken of a treaty or convention, which form part of
the law of Namibia.
Foreign law
Our courts do not take judicial notice of foreign law. The law of a foreign
country has to be proved by leading expert evidence. An expert is usually
a person who has practised in the particular country. It may also be
possible, depending on the situation, to prove foreign law by way of
evidence from persons who have studied in that country. “To a South
African Court each aspect of foreign law is a factual question and any
evidence on that aspect must emanate from someone with the necessary
expertise. 319 Harnischfeger Corporation and another v Appleton and
another320 also restates the position that there is a presumption that foreign
law is the same as our law. The party who wishes the court to find that
there is a difference between the two legal systems, bears the onus.
319
Schlesinger v Commissioner for Inland Revenue 1964 (3) SA 389 (A) at
396G.
320
Harnischfeger Corporation and another v Appleton and another 1993 (4) SA
479 (W) at p. 485H.
163
In Westdeutsche Landesbank Girozentrale v Horsch321, Levy J, dismissed

an application for provisional sentence for a number of reasons, one of
which was that the applicant had failed to prove German law. This
evidence could be given by affidavit by a person qualified to give it.
We have a somewhat peculiar situation in Namibia, because it is most

unrealistic at present to assume that South African law would have to be
proved in our courts, because it is so well known and the sources are so
readily available.
Roman law and Roman-Dutch law do not have to be proved, because these
systems form part of our common law. The practice is that our courts
readily refer to foreign cases, to assist them in deciding issues according to
our law. This is particularly common in constitutional matters. The law is
not proved by expert evidence.
The situation in South Africa has now changed with the enactment of the
Law of Evidence Amendment Act, Act No. 45 of 1988, section 1 of which
provides that a court may take judicial notice of foreign law when such law
can be ascertained readily and with sufficient certainty. In Holz v
Harksen322, Farlam J examined German law directly to establish whether a
prozeßvergleich (settlement agreement) was a final judgment for the
purposes of obtaining provisional sentence. Both sides adduced the
evidence (on affidavit) of German experts to prove German law. Farlam J
concluded that a prozeßvergleich was not a judgment.
Customary law
This topic should not really be discussed under this heading, because
judicial notice cannot be taken of customary law. In my view, this
position has not been altered by Article 66 of the Constitution (customary
law and common law of Namibia in force shall remain valid).
Customary law must be proved and the onus rests on the party relying on
it. Customary law is proved like any other custom. Evidence will
therefore have to be led to prove what the custom is at a particular place
as practised by a particular group. Persons can give evidence about the
custom. Experts can also be used to prove the custom. Judicial notice
cannot be taken of it, except that where a custom has been ascertained in
an earlier decision, that decision can be applied in a later case, i.e. as
judicial precedent.323
321
1993 (2) SA 342 (Nm HC).
322
1995 (3) SA 521 (C).
323
Benett has a good discussion of the topic in Application of Customary Law in
Southern Africa at pp. 25 to 33 and Sourcebook of African Customary Law at pp.
137 to 143. See also Rowe v Assistant Magistrate, Pretoria 1925 TPD 361; Ex
part Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A); Sigcau v
Sigcau 1944 AD 67; Mosii v Motseoakhumo 1954 (3) SA 919 (A); Masenya v
Seleka Tribal Authority 1981 (1) SA 522 (T).
164
[LAW OF EVIDENCE]
Some argue that the judgment by Bethune J in Kaputuaza and another v

Executive Committee of the Administration for the Hereros and others
1984 (4) 295 (SWA), in which he held (at p. 301F) that the court could
take judicial notice of Herero customary law, is incorrect. No authority
was referred to in support of this view, and it is not supported by South
African authority.
Substantial changes have been introduced in South Africa by section 1 of

the Law of Evidence Amendment Act, Act No. 45 of 1988. It is now
possible for a court to apply customary law (i.e. to take judicial notice of
it, like the common law) without proof, if the law is sufficiently clear and
is not contrary to public policy or natural justice.324
3. Rebuttable Presumptions of Law

A presumption is an assumption, and in a technical legal sense, it is an
assumption that a court makes about a fact that is not proved by direct
evidence of that fact. It is therefore an analytic device by which proof is
provided without evidence being given of such fact.
“The usual effect of a presumption is either to assist one party in
discharging an onus, or else to place an onus or duty to adduce evidence
upon his opponent.”
We have inherited the following division of presumptions from the

glossators:
a Irrebuttable presumptions of law;
b Rebuttable presumptions of law;
c Presumptions of fact.
Presumptions can arise once a basic fact is proved. Presumptions can also
arise without proof of any particular fact, for example where the law
provides that something shall be presumed until the contrary is proved.
I The irrebutable presumption of law

An irrebutable presumption of law requires a particular conclusion, if
particular facts are present. As Schmidt and Hoffmann point out, an
irrebuttable presumption of law is really a rule of substantive law
expressed (incorrectly) as a presumption. The source of law is therefore
324
See Thibela v Minister van Wet en Orde en andere 1995 (3) SA 147 (T), in
which the court took judicial notice of Pedi customary law, although expert
evidence was also led.
165
Roman-Dutch law and not English law (as it would be if it were a rule of
evidence). An irrebuttable presumption of law is conclusive proof of the
fact, and cannot be rebutted by contrary evidence.
An example of this form of “presumption” is the rule that a child that is

under the age of seven, is doli incapax. This is really a substantive rule
that such a child is “ontoerekeningsvatbaar”.
II The rebuttable presumption of law

A rebuttable presumption of law is a rule of law compelling the trier of
fact to accept that a contested fact exists, until evidence is led that denies
or negates such fact.325 This fact is assumed to exist until evidence in
rebuttal is led. Then the evidence in rebuttal must be weighed up against
the presumed fact.
In some cases, a fact must first be proved before the presumption comes
into operation. In other cases, the presumption comes into operation as
soon as it represents a point in issue.
A rebuttable presumption of law may either place an onus (also referred

to as the burden of proof or the persuasive burden), or an evidentiary
burden (or weerleggingslas) on the other party to disprove the fact.
For example, section 212 of the Criminal Procedure Act, Act No. 51 of
1977 contains a number of provisions that make certain kinds of evidence
prima facie proof of a fact. This formulation casts an evidentiary burden
on the other party to adduce contrary evidence, i.e. it is an evidentiary
burden and is not an onus. If the accused establishes a reasonable doubt
he/she must be acquitted. “In the absence of evidence to the contrary”
has a similar effect.
By contrast, a phrase in a statute such as "it shall be presumed until the

contrary is proved" would usually cast an onus on a party to rebut the
presumption. A deeming provision usually has a similar effect. In a
criminal case, the accused must discharge this onus on the civil standard,
i.e. on a balance of probabilities (preponderance of probability or
preponderance of evidence) and not on the criminal standard, i.e. beyond
a reasonable doubt. This form of presumption in a criminal prosecution,
where it has the effect of placing an onus on an accused is referred to
particularly in Canadian law (as adopted in South African cases) as a
reverse onus.
325
Schmidt at p. 134
166
[LAW OF EVIDENCE]
A third alternative formulation is the requirement that an accused give a

“satisfactory account”, usually of possession of an object. For example,
section 2 of the Stock Theft Act, Act No. 12 of 1990, provides that:
“Any person who is found in possession of stock or produce in regard to
which there is reasonable suspicion that it has been stolen and is unable
to give a satisfactory account of such possession, shall be guilty of an
offence.”
The State must prove beyond a reasonable doubt that:
the accused was in possession of the goods;
the person finding the goods had a reasonable suspicion that the goods were
stolen;
the accused was unable to give a satisfactory account of the possession.
Once this is proved, then an accused need only show that his/her
explanation is reasonably possibly true, and which, if true, would give a
satisfactory account of his/her possession. The account may be given at
any time, even at the trial. It does not create an onus to be discharged on a
balance of probabilities by the accused. The State must prove beyond a
reasonable doubt that the account given by the accused could not be
reasonably possibly true.326
Even if the accused does not give any account of possession, the court
might still find itself unable to say that his/her failure to give an account
proves beyond reasonable doubt that he/she was unable to give a
satisfactory account of possession. For example, the accused’s refusal to
give an account may have been due to stubbornness or ignorance. Or, the
326 The mojor case is S v Mojaki 1993 (1) SACR 591 (O) at 493h, which follows
S v Kajee 1965 (4) SA 274 (T) at 275H - 276D, which in turn follows S v Khumalo
1964 (1) SA 498 (N) at 500 - 501. See also R v Armugan 1956 (4) SA 43 (N) at
46E, following R v Zulu 1951 (3) SA 44 (N). See also Hoffmann and Zeffert, at
564 - 565 and Schmidt, at 167 - 168. At 64, Schmidt writes that this formulation
does not place an onus on the accused. In S v Elliot 1963 (1) SA 371 (GW) at
374B - 375B, the court held to the contrary in interpreting a similarly worded
section that the accused was required to give a satisfactory account of his
possession of diamonds, and that he must do this on a balance of probabilities.
While this case was not considered by the Supreme Court of Appeal in S v Shakane
1998 (2) SACR 218 (SCA), Scott JA approached section 36 of the General Law
Amendment Act, Act No. 62 of 1955 on the basis that the State was required to
prove that the accused’s explanation for being in possession of goods reasonably
suspected of being stolen was unsatisfactory (at 222i). In Namibia the statutory
offences are created by sections 6 to 8 of the General Law Amendment Ordinance,
Ordinance No. 12 of 1956.
167
accused may lead sufficient evidence to show that he/she acquired the
property legally. 327
Some assorted rebuttable presumptions are the following:
(a) Paternity
The presumption that a child is legitimate, i.e. that the child was born of
the marriage and not of an extra-marital relationship, is expressed in the
maxim pater est quem nuptiae demonstrant - the father is the person
indicated by the marriage. The person claiming that the husband is not the
father of the child must establish this on a balance of probabilities. The
best way to prove this would be to prove that the parties had no opportunity
for intercourse at the time of conception.
A presumption arises if a man admits that he had intercourse at any time

with the mother. The man must then prove on a balance of probabilities
that he is not the father of the child, i.e. the presumption places an onus on
him. See S v Swart328, even if the admission does not relate to a time at
which it was possible that the child could have been conceived. The Court,
however, left open the question whether the presumption also operates if
sexual intercourse is established by evidence other than an admission by
the man.
See also the Child Care and Protection Act 3 of 2015.
(b) Marriage
There is a rebuttable presumption that a marriage is valid, following proof

of the marriage by producing the marriage certificate, the evidence of the
marriage officer or witnesses and even circumstantial evidence to prove
that the parties lived together as husband and wife.329 That the presumption
cannot have any effect where the court is aware that the marriage is invalid
because the marriage officer was not duly appointed is clear from Ex parte
L (also known as A).330
There is also a presumption that every marriage is presumed to be in

community of property. Where a deponent in an affidavit simply states
that he was married out of community of property, his mere say-so is not
sufficient to rebut the presumption.331 In that case, it also emerged quite
clearly from the marriage certificate, which was produced at the request of
327 See Khumalo’s case, and the useful analysis of the law by McCreath J in
Osman and Another v Attorney-General of Transvaal 1998 (1) SACR 28 (T).
328
1965 (3) SA 454 (A).
329
Read further in Schmidt at pp. 138 - 142 and Hoffmann at pp. 537 - 540.
330
1947 (3) SA 50 (C).
331
See Brummond v Brummond’s Estate 1993 (3) SA 494 (Nm HC); 1992 NR
306 (HC).
168
[LAW OF EVIDENCE]
the court because it was not annexed to the affidavit, that Brummond was
married in community of property.
(c) Contractual capacity
There is a strong element of common-sense in some of the presumptions.

As Schmidt points out, this presumption and others really fall under the
heading of the presumption in favour of regularity. Under this
presumption, it is not necessary for the party relying on a contract to allege
and prove that he/she had the necessary contractual capacity. Similarly,
locus standi is also presumed.
III Presumptions of fact
The difference between this category and the preceding categories of

presumptions is that these presumptions are not rules of law. These
presumptions merely result in the court drawing an inference from the
facts. The court does not, however, have to draw such an inference by
applying the presumption, it is in its discretion to apply the presumption or
not.
Hoffmann quotes the definition of Mattheus, who said that a presumption

of fact was “nothing other than an inference of common sense, based upon
what usually happens or is assumed to happen”.
A presumption could therefore be based on any set of facts, and

presumptions of fact are nothing other than conclusions drawn often in the
past based on these sets of facts. Presumptions of fact do not cast an onus
on the other party, but rather an evidentiary burden.
Some presumptions of fact are the following:
(a) Presumption of continuation
If a marriage existed a few years ago, it is likely that it still exists. The
court does however look at all the facts to see if it is likely that the state of
affairs continued to exist.
(b) Presumption of regularity
The rule is expressed in Latin as omnia praesumuntur rite esse acta, i.e. -
all (official) acts are presumed to have been lawfully done. This
presumption can be expressed both in the form of a rebuttable presumption
of law and as a factual presumption. Some instances of this presumption
are as follows:
(i) Validity of official acts
When an official performs an act in the execution of his/her duties, it is

presumed that he was duly appointed when he/she performed the
act/function.
169
Schmidt details a few instances where this presumption has been applied
to the acts of private persons, based on the solemnity of the act (e.g. the
execution of a will). The few cases in which it has been applied, appear to
relate to the acts of attorneys.332
A few examples are that the Chief Justice was duly appointed to act in the
place of the Governor General333, that a commissioner of oaths had been
duly appointed334, and that “any condition precedent to the validity of the
performance by the authorised public official” has been complied
with. 335 The presumption does not however mean that any official act,
irrespective of the particular circumstances, is presumed to be regular or
that it is valid. An arrest is today not assumed to be lawful, as appeared to
be the case from certain older authorities. The onus rests on the police to
justify the lawfulness of the arrest, without the assistance of a presumption.
Perhaps a useful comment is that by Millin J in Kellerman v Minister of

Interior336 - that the presumption omnia praesumuntur rite esse acta is “a
presumption with regard to matters of form rather than substance.” The
presumption otherwise has the effect that it relieves the state from proving
substantive issues, such as whether a Minister had good cause for believing
that a certain set of facts existed when revoking the naturalisation
certificate of an alien cf Kellerman’s case.
Wigmore, quoted with approval in Byers v Chinn 337 , lays down four
requirements for the existence of the presumption in a particular case
(although it should be appreciated that this area is not susceptible to rigid
classification):
a “the matter is more or less in the past, and incapable of easily
procured evidence”;
b “it involves a mere formality, or detail of required procedure,
in the routine of litigation or of a public officer’s action”;
c “it involves to some extent the security of apparently vested
rights, so that the presumption will serve to prevent an
unwholesome uncertainty”;
d “the circumstances of a particular case add some element of
probability”.
(ii) Correspondence
332
. See also Hoffmann at pp 550 - 551, although he does not think much of this
usage of the presumption.
333
Bhendili v Attorney-General, Transvaal 1961 (3) SA 232 (T).
334
R v Suliman 1923 AD 659.
335
R v Magana 1961 (2) SA 654 (T) at 656H.
336
1945 TPD 179 at 193.
337
1928 AD 322 at 332.
170
[LAW OF EVIDENCE]
Where it is proved that an official letter was addressed to a person and a

copy filed, it is presumed that the letter was posted and received by that
person.338
With private correspondence a presumption applies that a letter was

posted on proof of a routine of posting letters (i.e. the office practice) and
that the same routine was applied in this case.339 There is, however, no
presumption in private correspondence that a letter was received,
although the court will draw an inference from the fact that it was posted.
The court must consider all the probabilities to see whether the letter was
in fact received.
Section 7 of the Interpretation of Laws Proclamation, Proclamation No. 37

of 1920 provides that:
“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.”
Schwikkard340 writes that the section casts an onus on the receiving

party to prove that the letter was not received. Section 7 is in fact a
rebuttable presumption of law.
(iii) Onus
It is not yet clear in our law whether there is an onus on the other party in
the case of the presumption of regularity (for example, to prove on a
balance of probabilities that an official was not formally appointed) or
whether it is only an evidentiary burden, i.e. an onus of rebuttal or
weerleggingslas. The preferable view appears to be that it only places an
evidentiary burden or weerleggingslas on the other party and not a full
onus.341
(c) Documents
There are numerous presumptions relating to documentary evidence. A

few are mentioned.
338
Cape Coast Exploration Ltd v Scholtz 1933 AD 56.
339
Barclays National Bank Ltd v Wall 1983 (1) SA 149 (A).
340
At 538.
341
See Hoffmann at pp. 549 - 550 and Schmidt at p. 155.
171
A will that appears to be regularly executed is presumed to be valid. A

notarially executed document is presumed not only to have been executed
in compliance with the formalities, but also that the contents are true.
“When a document is executed before a notary, the presumption is that

every statement contained in the document is true and that all the proper
solemnities have been observed by the notary public”.342 In Hymie
Tucker Finance Co (Pty) Ltd v Alloyex (Pty) Ltd343, per Didcott J, the
court gave a narrower meaning to the presumption, holding that it only
applied to statements in the document emanating from the notary
himself/herself.
The substantive law rule of caveat subscriptor results in a person signing

a document being bound by its contents, even if he/she is illiterate or did
not read it, unless the other party misled him/her about the document’s
contents.344 The person signing then has a weerleggingslas to prove that
he/she was unaware of the document’s contents.
(d) Defamation and presumption of death
The rules regarding the various onuses and defences in a defamation

action are complicated requiring careful study and fall outside the scope
of this course. It should be noted that Schmidt and Hoffmann are now
somewhat out of date in the light of the decisions in Neethling v The
Weekly Mail and others345 and Holomisa v Argus Newspapers Ltd.346
(e) Res ipsa loquitur
Res ipsa loquitur means that the "matter speaks for itself". It is almost
exclusively applied where negligence is in issue. Some examples are
where an unattended motor car runs down a hill, a swab is left in a
patient’s body after an operation and a milk delivery person rode through
a window on his bicycle. It will be seen from these examples that the
presumption applies in situations where negligence is the usual reason for
the particular occurrence.
The presumption can only be applied if the facts from which the
negligence is to be inferred are to be found in the events themselves. A
summary of the application of the maxim res ipsa loquitur is given by
Holmes JA in Sardi and others v Standard General Insurance Co. Ltd:347
“In this Court, in seeking to establish negligence of the driver of the
insured vehicle, counsel for the appellant referred to the fact that he
342
Silver Garbus and Co. (Pty) Ltd v Teichert 1954 (2) SA 98 (N) at 108B.
343
1981 (4) SA 175 (N) at 178C – F.
344
See Knocker v Standard Bank 1933 AD 128.
345
1994 (1) SA 708 (A).
346
1996 (2) SA 588 (W).
347
1977 (3) SA 776 (A) at 780D – H.
172
[LAW OF EVIDENCE]
swerved across the road. Wherefore counsel relied on the maxi m res ipsa
loquitur (the thing speaks for itself). He submitted that it was for the respondent
to adduce sufficient evidence to overcome the prima facie effect of the evidence
that Coxon drove on to the incorrect side of the road. The maxim has no bearing
on the incidence of the onus of proof on the pleadings. It is invoked where the
only known facts, relating to negligence, consist of the occurrence itself; see
Groenewald v Conradie: Groenewald en Andere v Auto Protection Insurance Co.
Ltd., 1965 (1) SA 184 (A.D.) at p. 187F. The occurrence may be of such a nature
as to warrant an inference of negligence. As INNES, C.J., pertinently insisted in
Van Wyk v Lewis, 1924 AD 438 at p. 445, lines 8 - 9, "It is really a question of
inference". It is perhaps better to leave the question in the realm of inference
than to become enmeshed in the evolved mystique of the maxim. The person,
against whom the inference of negligence is so 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; see Rankisson & Son v Springfield Omnibus
Services (Pty.) Ltd., 1964 (1) SA 609 (N) at p. 616D. At the end of the case, the
Court has to decide whether, on all of 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 defendant's explanation.”
The presumption only applies where there is uncertainty about the cause of
an event. Ogilvie Thompson JA in Administrator, Natal v Stanley
Motors348, agreed with Lord Porter’s speech in Barkway v South Wales
Transport Co.349 that:
“If the facts are sufficiently known, the question ceases to be one where the facts
speak for themselves, and the solution is to be found by determining whether,
on the facts as established, negligence is to be inferred or not.”
In Arthur v Bezuidenhout and Mieny350, two lorries were involved in a

head-on collision. There were no eye-witnesses to the collision and both
drivers were killed. The court applied the maxim res ipsa loquitur to the
situation where the defendant’s lorry for no apparent reason swerved onto
the incorrect side of the road. Once plaintiff proved that defendant’s
lorry had moved onto the other side of the road, then the presumption was
operational. Negligence is, however, only determined at the end of the
case. The presumption only gives rise to an evidentiary burden on
defendant and not to an onus. The court assesses all the evidence at the
end of the trial (including the presumption) to determine whether the
defendant’s conduct was negligent.
348
1960 (1) SA 690 (A) at 700H.
349
1948 (2) All ER 460 (HL).
350
1962 (2) SA 566 (A).
173
It should be noted that English law differs from our law. In English law,
the presumption res ipsa loquitur gives rise to an onus on the defendant to
prove on a balance of probabilities that he/she was not negligent. In our
law it only creates an evidentiary burden.351
It appears that the presumption can also be applied in the field of criminal
law. The position is, however, not certain at present.352
See further Bock v Motor Vehicle Accident fund of Namibia 2008 (2) NR
722 (HC).
IV Presumptions and the Constitution
Bearing in mind that the wording of a presumption gives rise to differing

evidentiary results, the question arises whether the inclusion of any form
of a presumption in a statutory provision may infringe a person’s rights
under Chapter Three of the Constitution. Similarly, could a presumption
be worded in such a way that it falls within the provisions of the
Constitution?
The rights which are particularly relevant are the right to a fair trial (article
12(1)(a)), the presumption of innocence (article 12(1)(d)) and the right not
to be compelled to give testimony against oneself or one’s spouse (article
12(1)(f)).
It should be noted that unlike the constitutions of some countries, such as

Canada or South Africa, the infringement of any of these rights (with the
exception of article 7) cannot be justified as a reasonable limitation of the
right. Once the High Court finds an infringement of the right, it will
declare the section invalid or the court may refer the section to Parliament
to correct the defect.
The judgments of the Namibian courts on the constitutionality of

presumptions, until the judgment of the Supreme Court in S v Shikunga
and Another353, were all delivered before the seminal judgment of the
South African Constitutional Court in S v Zuma and Others.354 It is
noteworthy that when the Supreme Court was called upon to decide on
the constitutionality of a presumption for the first time, it did so simply
by following Zuma’s case and overruling the earlier High Court judgment
351
See Madyosi and another v SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A)
at 445E.
352
See S v Mudoti 1986 (4) SA 278 (ZSC) and S v Maqashalala 1992 (1) SACR
620 (Tk).
353
1997 (2) SACR 470 (Nm SC); 1997 (9) BCLR 1321 (Nm S).
354
1995 (2) SA 642 (CC).
174
[LAW OF EVIDENCE]
in S v Titus.355 All three of these cases concerned the constitutionality of

the presumption in section 217(b)(ii) of the Criminal Procedure Act.
Section 217 regulates the admission of confessions.
In Titus’ case, Frank J (O’Linn J concurring) had upheld the

constitutionality of section 217(b)(ii) of the Criminal Procedure Act.
Section 217(b) provides that:
“(b) … 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 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 t o 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 sob er 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.”
It was argued that in placing an onus on the accused, the section violated
Article 12(1)(d), i.e. the right to be presumed innocent and Article
12(1)(f) of the Constitution i.e. the right not to be compelled to give
evidence against oneself.
The court relied on a South African decision, S v Marwane356 (relying

on the Boputhatswana Bill of Rights) and a decision of the U-S Supreme
Court, Tot v United States357 in reaching its conclusion. Frank J
referred to the following passage in the Tot case, with approval (at 321E):
“Under our decisions, a statutory presumption cannot be sustained if there
be no rational connection between the fact proved and the ultimate fact
presumed, if the inference of the one from proof of the other is arbitrary
because of lack of connection between the two in common experience.”
Frank J concluded (at 321I - 322A):

“In my view, the onus placed upon an accused person in section 217 of the
Criminal Procedure Act does not ‘impose upon the defendant the burden
355
1991 NR 318 (HC).
356
1982 (3) SA 717 (A).
357
319 US (1943) 453.
175
of proving his innocence’ nor is there ‘no rational connection between the
fact proved and the ultimate fact presumed.’ For the presumption to
operate the requirements set out above in (a)-(c) must be met, i.e. the
prosecution must make out a prima facie case.”
The requirements referred to by Frank J are that it must appear ex facie the
confession i.e. from the face of the confession that (a) the confession is that
of the accused i.e. the name of the person in the confession must be the
same as the accused’s, (b) certain requirements are met in respect of an
interpreter who interpreted the confession, and (c) the confession was made
freely and voluntarily by such person in his sound and sober senses and
without having been unduly influenced thereto.
The court went on to hold that there was a rational connection between the
confession and the crime perpetrated because of the provisions of section
209 of the Criminal Procedure Act. Section 209 provides that a confession
is admissible if it is confirmed in a material respect, or if the offence is
proved by evidence, other than the confession, to have been actually
committed.358
In S v Pineiro359, Levy J (Strydom JP concurring) the constitutionality of

presumptions under sections 18(2) and (3) of the Sea Fisheries Act, Act
No. 58 of 1973, was challenged on the grounds that the provisions violated
the presumption of innocence in article 12(1)(d). The presumption in
section 18(2) deemed any person on board a fishing boat at the time the
offence was committed to be guilty of an offence, unless he/she proves that
he/she did not commit an offence under the Act and did not take part in
and could not prevent the commission of the offence. The presumption in
section 18(3)(a) required a person to prove that any act did not take place
in the area where it was alleged to have taken place. The presumption in
section 18(3)(b) deemed as correct “any information obtained by means of
any instrument or chart used to determine any distance or depth.”
The court had little hesitation in striking down section 18(3)(a) as

unconstitutional because it was in direct conflict with article 12(1)(d).360
358 Mahomed CJ criticised this conclusion in Shikunga at 478B-E: “Section 209

simply provides that an accused could only be convicted on the basis of a
confession if the confession was confirmed in a material respect or if the offence
was proved by evidence other than the confession to have been actually committed.
In my view s 209 cannot assist the prosecution to rescue s 217(1)(b)(ii). Section
209 does not necessarily require any evidence to support any admission in the
confession to the effect that the relevant offence was committed by the person
making the confession.”
359
1993 (2) SACR 412 (Nm); 1991 NR 424 (HC).
360 At 415g. The objection to the constitutional validity of section
18(3)(b) was abandoned by the accused, at 414e.
176
[LAW OF EVIDENCE]
In respect of the presumption in section 18(2), Levy J concluded after an

analysis of South African, Namibian and US decisions:
“If the 'rational connection' test is' applicable, inasmuch as the facts
proven, namely that an offence has already been committed and that the
persons concerned were all on board the vessel at the time of commission,
the presumed fact, ie the guilt of all concerned, is a fact sufficiently closely
connected with the proven facts, that is, rationally connected, to justify the
presumption. If the test in the Marwane case is applicable, the
presumption is a factor which is only invoked after many other factors have
been proven beyond reasonable doubt, in this instance particularly that the
person in charge of the vessel has committed the offence on a vessel on
which the person concerned is at the relevant time. The fact that the
accused is therefore required to prove that he did not commit the offence
or take part therein does not mean that he is, when charged with the offence
presumed guilty of the offence, and must prove his innocence. However,
he must prove in addition to the other requirements that 'he could not
prevent the commission of the crime.’”361
The court went on to consider the constitutionality of the words in italics

i.e. “he could not prevent the commission of the crime.” The court held
that the ambit of the provision was too wide and accordingly held that the
phrase in section 18(2) reading “and could not prevent the” was
unconstitutional and was therefore struck out. The objection to the rest of
the presumption was dismissed.
With respect, this conclusion is not particularly convincing when measured

against the Canadian decisions, or the decisions of the South African
Constitutional Court (discussed below). Any presumption which requires
a person to prove or disprove, on a balance of probabilities, a fact, places
a reverse onus on an accused. The question is whether that reverse onus is
constitutional. While the presumption itself does not mean that the person
is automatically guilty, it does require the accused to prove an element of
the offence, which if he/she fails to do so may result in his/her conviction,
despite the existence of a reasonable doubt as to his/her guilt.
In Freiremar SA v Prosecutor-General of Namibia and Another 1994 (6)

BCLR 73 (NmH), application was made for the setting aside of a
confiscation order in respect of a fishing vessel, following the conviction
of the master of the vessel, one Carlos Redondo. The application was
based on the main ground that the second part of the proviso to section
17(1) of the Sea Fisheries Act, Act No. 58 of 1973, was in conflict with
article 12(1)(d) of the Constitution. Section 17(1) provides that:
“The Court convicting any person of any offence in terms of this Act may,
in addition to any other penalty it may impose declare any fish, seaweed,
361 At 418e - g.
177
shells or implement or any fishing boat or other vessel or vehicle in respect

of which the offence was committed or which was used in connection with
the commission thereof, or any rights of the convicted person thereto, to be
forfeited to the State ... Provided that such a declaration of forfeiture shall
not affect any rights which any person other than the convicted person may
have to such implement, boat, vessel or vehicle, if it is proved that such
other person took all reasonable steps to prevent the use thereof in
connection with the offence.”
The proviso therefore means that any person, other than the convicted
person, who held any rights in the vessel, could retain his/her rights if
he/she could prove that he/she “took all reasonable steps to prevent the use
thereof in connection with the offence.” The offence of which Redondo
was convicted was wrongfully and unlawfully fishing within the Namibian
exclusive economic zone (EEZ).
However, although the court was not concerned with a criminal conviction,
it accepted that the proceedings were quasi-criminal because a penalty in
the form of the confiscation of the vessel applied and that therefore the
presumption of innocence guaranteed by article 12(1)(d) of the
Constitution applied.362
The court then went on to consider Namibian, US and the Canadian

jurisprudence on ‘reverse onus provisions’. Most notably, in R v Oakes 26
DLR (4th) 200 (1986). Strydom JP concluded at (at 79F - G) that:
“In my opinion the test as applied in these cases is a practical one which
would require an accused to speak up in circumstances where an
explanation would be required because of the presumption raised by the
proved facts and because of the personal knowledge of the accused.
However where the proven facts are not such that an explanation is readily
required the placing, in those circumstances, of an inverted onus on an
accused will require an accused to prove his innocence which will be
contrary to the Constitution containing a provision as that set out in Article
12(1)(d) of the Namibian Constitution.”
The presumption would have been saved if it referred only to owners of

fishing vessels. There would have then been a rational connection between
the fact of fishing in Namibian waters and the fact that the employees were
ostensibly acting in the interests of the owner of the vessel or on the
owner’s instructions. The presumption was, however, phrased too broadly,
affecting all persons with an interest in the vessel, such as a lien holder.
Strydom JP held at 82B - E:
“Looking at the rights which may attach to a boat or vessel, and I have
only set out the examples above, it is immediately clear that any of those
right holders will also be subject to the provisions of section 17(1).
362 At 78E - G.
178
[LAW OF EVIDENCE]
Consequently, if a boat or vessel in which such a lien holder has a real right, is
forfeited by a court in terms of the provisions of section 17(1) the proviso to the
section will require of such a lien holder to prove that he took all reasonable
steps to prevent the use thereof in connection with the offence in order to avoid
or set aside the forfeiture order. A lien holder in respect of damage caused by
the vessel, or for salvage or master's disbursements, has nothing to do with
illegal fishing and usually has no control over the boat. There is in my opinion no
rational connection between such fact, that is the illegal fishing, and the
presumed fact, that is the complicity of such a right holder in the illegal fishing,
so as to tend to prove the existence of such presumed fact in order to cast an
onus on him to explain. The proved fact of illegal fishing simply does, in these
instances, not raise a presumption that those holders of real rights in the vessel
knew or could have taken reasonable steps to prevent it. In the case of such
holders of rights the statutory inroad made into the presumption of innocence is
arbitrary and unreasonable and therefore unconstitutional. To saddle them in
these circumstances with a reverse onus will require of them to prove their
innocence.”
The court effectively ruled the presumption unconstitutional, by striking

out the phrase “if it is proved that such other person took all reasonable
steps to prevent the use thereof in connection with the offence”, in the
proviso to section 17(1).
In S v Van den Berg363 the court dealt with a challenge to the validity of the
presumptions in section 35A of the Diamond Industry Proclamation,
Proclamation No. 17 of 1939. The section provides that:
“Whenever in any proceedings for a contravention of any provision of
this proclamation -
(a) it is necessary to ascertain whether the person charged is or was
the holder of any licence, permit or authority or otherwise entitled to be
in possession of or authorised to buy, receive, sell, offer for sale, deal in,
barter, pledge, or otherwise dispose of or deliver, or to import or export
any diamond; or
(b) the person charged contends that any article or substance the
subject of the charge, is not a rough or uncut diamond, the burden of
proving that he is or was the holder of such licence, permit or authority
or that he is or was otherwise entitled or authorised as aforesaid, or that
such article or substance is not a rough or uncut diamond, as the case
may be shall lie upon the person charged.”
After a lengthy examination of Canadian, US and Namibian decisions,

O’Linn J concluded at 62e - j:
“When such approach, tests and guidelines are applied to the presumption
contained in s 35A of Proc 17 of 1939, the result is a foregone conclusion.
The said presumption cannot survive the rational connection test, because
363
1996 (1) SACR 19 (Nm).
179
the presumption fails to mount the first leg in that there is no provision for
a fact to be proved by the State with which the presumed fact can be
connected. There is therefore no rational connection. The provision places
the onus squarely on the accused to prove an element of the offence, being
that the diamonds bought, sold or possessed, are rough and uncut
diamonds. This provision also violates subarticle (a) of article 22, in that it
negates the essential content of the presumption of innocence contained in
art 11(1)(d) [Note: this should be 12(1)(d)].
The provision in s 35A is also ambiguous, arbitrary, unreasonable and

unnecessary. It cannot be read, as Mr Small contends, as merely placing
an evidentiary burden' on an accused. The presumption contained in
subpara (b) of s 35A of Proc 17 of 1939 is therefore declared
unconstitutional and, as such, of no force and effect.
It may be noted that article 22 cannot apply to article 12(1)(d) because no

limitation of the right by law is authorised in article 12(1)(d) i.e. article 22
only applies where in terms of the Constitution a right may be limited by
law. The court relied essentially on the US decisions for its conclusion that
the presumption in section 35A(b) was unconstitutional i.e. the rational
connection test.
In S v Shikunga364, the Supreme Court made no mention of the rational

connection test. Instead, the court referred to articles 7 (although article 7
is not mentioned in Mahomed CJ’s conclusion), 12(1)(a), 12(1)(d) and
12(1)(f) of the Constitution and concluded that:
“… section 217 (1) (b) (ii) of Act 51 of 1977 offends these provisions of the
Constitution because it permits a court, in certain circumstances, to convict an
accused person whose guilt has not been established beyond reasonable doubt.
A person convicted of an offence in these circumstances cannot be said to have
had a 'fair trial' in which he or she was ‘presumed innocent until proven guilty’.
At common law, a confession made by an accused person is not admissible

against him or her unless it is established that it was freely and voluntarily
made, and that he or she was in sound and sober senses and not unduly
influenced thereto. This is a crucial requirement in a fair system of justice.
It goes to the heart of the rights expressly protected by art 12 of the
Constitution. A statute which invades that right subverts the very essence
of the right to a 'fair trial' and the incidents of that right articulated in art
12(1)(a), (d) and (f). Section 217(1)(b)(ii) constitutes such an invasion.365
The objection to which I have previously referred [i.e. that an accused

person can be convicted without guilt being established beyond a
reasonable doubt] remains intact: the only evidence connecting the accused
person with the offence involved could be the confession, and if the
prosecution had failed to establish that that confession was freely and
364
1997 (2) SACR 470 (Nm SC).
365
S v Zuma and Others 1995 (2) SA 642 (CC) at para [33] at 659.
180
[LAW OF EVIDENCE]
voluntarily made, a conviction of the accused could result notwithstanding

the fact that his or her guilt was not established beyond a reasonable doubt.
In my view such an accused could not be said to have received a fair
hearing within the meaning of art 12 of the Constitution. The accused has
the right to require the State to prove his or her guilt beyond a reasonable
doubt. The effect of s 217(1) (b) (ii) is to imperil that right.”366
As will be seen in the discussion of Zuma’s case below, the conclusion that
by relying on the presumption an accused could be convicted
“notwithstanding the fact that his or her guilt was not established beyond a
reasonable doubt”367 is based on Canadian jurisprudence and not on the US
rational connection test, which was hitherto the dominant approach in the
High Court.
Unfortunately, the Supreme Court apparently believed that such a

complete answer had been given to the validity of the presumption in
section 217(b)(ii) by Kentridge AJ in Zuma’s case, that it was content to
rely on a reference to paragraph 33 in the Zuma judgment, where that court
held that:
“[33] The conclusion which I reach, as a result of this survey, is that t he common-
law rule in regard to the burden of proving that a confession was voluntary has
been not a fortuitous but an integral and essential part of the right to remain
silent after arrest, the right not to be compelled to make a confession, and the
right not to be a compellable witness against oneself. These rights, in turn, are
the necessary reinforcement of Viscount Sankey's 'golden thread' - that it is for
the prosecution to prove the guilt of the accused beyond reasonable doubt
(Woolmington's case supra). Reverse the burden of proof and all these rights
are seriously compromised and undermined. I therefore consider that the
common-law rule on the burden of proof is inherent in the rights specifically
mentioned in s 25(2) and (3)(c) and (d), and forms part of the right to a fair trial.
In so interpreting these provisions of the Constitution I have taken account of the
historical background, and comparable foreign case law. I believe too that this
interpretation promotes the values which underlie an open and democratic
society and is entirely consistent with the language of s 25. It follows that s
217(1)(b)(ii) violates these provisions of the Constitution.”
366 At 477H – 478E.

367 At 478D.
181
Unit summary
In this unit you learned about proof without evidence. In certain instances
one need not produce evidence to prove the facts in issue before court, for
example where a court takes judicial notice of a fact, or where a party
formally admits to the allegations against him or her. We mainly focused
Summary on principles and rules relating to judicial notice, formal admissions and
presumptions of law as forms of proof without evidence.
References
South Africa.
References

182
[LAW OF EVIDENCE]
183
Unit 14 Evaluation of Evidence and Standards/Burdens of Proof
Unit 14
Evaluation of Evidence and

Standards/Burdens of Proof
Introduction
The process of evaluating all the probative material admitted during the
course of the trial determines the factual basis of a case. In the
Stellenbosch Farmer’s Winery Group Ltd v Martell et Cie case368 the
court provided informative guidelines and principle in resolving disputes,
inter alia:
(a) Credibility of witnesses: candour and demeanour in the witness box;

bias; contradictions; probability or improbability of versions; calibre and
cogency compared to other witnesses testifying about same event.
(b) Reliability of witnesses: bias, interest, consistency, inconsistency.
(c) Probabilities: reasonableness, likelihood, inferences.
(d) Analysing and assessing the weight/cogency of evidence at close of a

case by a judge; magistrate or assessors against the burden of proof.
(e) Court must give reasons for judgment or its decision.
(f) The mental task of sifting truth from falsehood; common sense, logic
and experience.
discuss and explain the rules and concepts relating to the evaluation of
evidence after trial.
368
2003 1 SA 11 (SCA) at 5.
184
[LAW OF EVIDENCE]
Outcomes
South Africa.
Shikale NO v Universal distributors of Nevada South Africa (Pty) and

others 2015 (4) NR 1065 (SC).

Additional reading
Caltex Oil (Namibia) (Pty) Ltd v Tjikune 1997 NR 360 (HC)
Ostriches Namibia (Pty) Ltd v African Black Ostriches (Pty) Ltd 1996 NR
139 (HC).
185
1.Basic principles
These basic principles should be kept in mind whenever evidence is
evaluated:369
1) Evidence must be weighed in totality.
2) Avoid piecemeal processes of adjudication.
3) Probabilities and inferences must be distinguished from conjecture

or speculation.
4) During processes of evaluation evidence inferences may be drawn,

probabilities may be considered.
5) The rule against self-corroboration.370
Credibility
1) The impact of demeanour [manner of testifying, their behaviour in
the witness box, character and personality, and the impression they
create] and mendacity assist in determining credibility.
2) Veracity of witness determines credibility.
3) Some factors to determine credibility include: quality of

testimony; consistency in content and structure of evidence;
objectivity; candour, age, capacity, personal interest in outcome of
litigation, intellect, personality; temperament; effective
communication; weight or relevance of his version.
4) Also determine whether the witness was candid or evasive, ready

or reluctant? Did she hesitate in responding to questions,
especially under cross-examination? Was she too bold or timid?
369
370
Ibid.
186
[LAW OF EVIDENCE]
Were there nervous fidgeting and facial twitches in response to

straightforward questions?
Circumstantial evidence
1. Circumstantial evidence is not weaker than direct evidence.
2. Inferences are drawn from circumstantial evidence.
3. A Court must always consider the cumulative effects of all the
circumstances evidence, and when this evidence is taken as a whole it
must be beyond a reasonable doubt.
4. Cardinal rules of logic cannot be ignored when considering this
evidence.
5. Inferences drawn must be reasonable in both civil and criminal
proceedings.
Credibility of a witness: previous experience of the

court
In S v Sinam371, 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. The court remarked that the previous experience an
adjudicator of facts may have of a witness qua witness was of limited
value and operate very unfairly and led to an injustice being perpetrated.
It was further held that a magistrate’s previous experience of the witness

was insufficient justification for his credibility findings.
2.Presence in court before testifying

1. Witnesses should as a rule wait outside the court room until they are
called upon to testify.
2. To ensure a witness is not influenced by what he hears from other
witnesses who testify in his presence he must wait outside –the
presence has detrimental effect on his credibility.
3. Accused has the right to be present at his trial.372
371
1990 2 SACR 308 (E).
372
See Section 151 of the CPA.
187
Failure to cross-examine
1. It 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 a particular witness available for cross-
examination.
2. The Prosecutor’s failure to cross-examine is often of decisive
importance in deciding whether the guilt of accused was established
beyond a reasonable doubt.
3. Failure to cross-examine may not be held against an illiterate and
unrepresented accused.
Failure of a party to testify

1. Do we have a constitutional right to refuse to testify?
2. See Article 12(1)(f) of the Namibian Constitution.
3. Where there is direct prima facie evidence implicating the accused in
the commission of the offence, his failure to give evidence, ipso facto
tends to strengthen the state case, because there is then nothing to
gainsay it, therefore less reason for doubting its reliability or
credibility.373
4. In S v Brown374, it was held that: no adverse inference can be drawn
against an accused merely by virtue of the fact that he has exercised
his constitutional right to silence; the silence of the accused has no
probative value; court must only decide whether the uncontradicted
prima facie case must harden into proof beyond a reasonable doubt;
the accused’s constitutional right to silence cannot prevent logical
inferences…
Failure to call available witness

1. May lead to adverse inferences being drawn –depends on the
circumstance of each case.
2. Court must consider that failure may be a result of an erroneous
prima facie impression that s/he has proved his case; or possibility
that the potential witness is biased, hostile or unreliable.
373
S v Mthetwa 1972 3 SA 766 (A) 769A-E.
374
1996 2 SACR 49 (NC).
188
[LAW OF EVIDENCE]
3.The cautionary rule

1. It is a rule of practice and serves as a constant reminder to courts that
the facile acceptancy of the credibility of certain witnesses may prove
dangerous.
2. Court must consciously remind itself to be careful when considering
evidence, which practice has taught should be viewed with suspicion.
3. However, the exercise of caution, should not be allowed to displace
the exercise of common sense.
4. Courts must be cautious in instances of false evidence (special
motives, evidence of accomplice).
4.Evidence of identification
Evidence of identification must be approached with caution; experience
shows that it is easy for the identifying witness to be mistaken. In S v
Mthetwa 375 it was held that ‘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 in time and situation; extent
of prior knowledge of 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 the evidence by or on behalf of the
accused’. The list is not exhaustive. It includes formal identification
parades; photographic identification parades; and voice identification.
In S v Maradu 376, Blieden J said that it was dangerous to attach much

weight to dock identifications, because it was something akin to a leading
question - “can you see the perpetrator in court?” as asked by the public
prosecutor. The answer is obviously that it is the accused standing in the
dock. In this case, it appears that Blieden J actually ruled the dock
identification evidence inadmissible.
In S v Daba377, Kroon J followed Maradu’s case. In this case, the witness

had identified the accused before on an identification parade. Yet no
evidence was led as to “the circumstances under which the identification
375
1972 3 SA 766.
376
1994 (2) SACR 410 (W).
377
1996 (1) SACR 243 (E).
189
took place and therefore whether it was reliable”. 378 Under these
circumstances both identifications had no value. Namibian authority for
the cautionary rule is S v Ndikwetepo and Others.379
3.Evidence in sexual cases

The cautionary rule has its origins in the view that the complainant was a
“participant” in the offence and it is therefore easy for her to falsify the
evidence. According to some writers, the victim of a sexual assault was to
be treated virtually as an accomplice. Women were said to suffer from a
vivid fantasy life, easily falsified consensual intercourse as forced for
various reasons, including revenge or after discovery, etc.380 Our courts
have slowly changed their attitude, although the position at present is by
no means uniform.
According to Hubbard, a US survey which found that the rate of false

reporting of rape was the same as for other felonies, i.e. approximately
2%.381
In civil proceedings, in Mayer v Williams 382 , the court abolished the

requirement that the evidence of a plaintiff in a paternity action must be
corroborated. The plaintiff would of course always be a woman. The
requirement of corroboration has been changed to a cautionary rule.
In criminal proceedings, there is a cautionary rule in a variety of sexual

offences and the requirement is applied to both male and female
complainants, although of course, its most common application is in the
area of rape. This rule is still in operation in South Africa as is illustrated
by the Appellate Division decisions in S v F383 and S v S384. There is a
requirement of corroboration if the complainant may have had a motive to
implicate the wrong person. There must be corroboration to connect the
accused to the offence.
In S v D (or Damaseb)385, the High Court held that the cautionary rule had
no rational basis and was likely to be unconstitutional, because it violated
the right of women to equality before the law under Article 10 of the
Constitution. The cautionary rule was also premised on a view that women
378
At 249E.
379
1992 NR 232 (HC) at p. 251C - I.
380
See Schmidt at p. 126.
381
Hubbard, D. 1991. A critical discussion of the law on rape in Namibia,
NISER, p. 34.
382
1981 (3) SA 348 (A).
383
1989 (3) SA 847 (A).
384
1990 (1) SACR 5 (A).
385
1992 (1) SACR 143 (Nm); 1991 NR 371 (HC).
190
[LAW OF EVIDENCE]
are deceitful, while men are incorruptible.386 This decision was criticised
in S v M387, the court holding that the rule was a necessary admonition to
apply common sense when approaching the evidence of complainants in
sexual cases. D or Damaseb’s case was criticised by Mtambanengwe J in
a High Court judgment during 1998, who decided not to follow it.
The Cape Provincial Division in S v M388 and the Supreme Court of Appeal
in S v Jackson 389 have held that the cautionary rule in sexual offences
should no longer apply, because it stereotypes women as particularly
unreliable and is in violation of the right to gender equality.
5.Children
1. Evidence of young children should be treated with caution…
2. Do not approach the evidence of a child on the basis of assumptions
that all children make false allegations, have poor memories and are
highly suggestible or vice versa.
3. The court must consider the age of the child witness, and his or her
mental ability and development.
4. See Minister of Basic Education, Sports and Culture v Vivier NO and
Another 2012 (2) NR 613 (SC).
6.The single witness

1. Section 208 of the CPA provides that an accused can be convicted of
any offence on single evidence of any competent witness. This also
applies in civil cases judgements.
2. There is no test or formula to apply in consideration of the credibility
of a single witness.
3. Court must weigh the merits and demerits, and decide whether it is
satisfied that the truth has been told.
4. See S v Mwanyekele 2014 (3) NR 405 HC.
7.Handwriting
1. Lay and expert opinion evidence on handwriting; must be approached
with caution.
2. Court may make its own comparisons, but must be careful.
386
At 146.
387
1992 (2) SACR 188 (W).
388
1997 (2) SACR 682 (C).
389
1998 (1) SACR 470 (SCA).
191
8.Corroboration
Corroboration is confirmatory evidentiary material derived from a source
independent of the evidence to be corroborated. Corroboration can be
provided not only by testimony, but also by fingerprints or documentary
proof etc. It could even be provided by the answers given in a plea
explanation under section 115 of the CPA, so it is advisable to speak of
evidentiary or probative material and not testimony or evidence (i.e. the
narrow view of evidence).
In S v Mjoli390, the Appellate Division held by a two to one majority

(Jansen JA dissenting), that statements made under section 115 of the
CPA, even though not recorded as formal admissions under section 220,
are evidential or probative material. Viljoen JA went on to hold that
statements made under section 115 can provide confirmation in a material
respect of a confession.391 Rumpff CJ found that the intention in enacting
section 209 was to prevent false confessions. This danger could be
minimised if an accused’s answers confirming the offence in court can be
taken into account.
The evidence must be admissible. A witness cannot corroborate him or

herself. The evidence must come from an independent source. This is
similar to the rule on the exclusion of previous consistent statements, but
even if the statement should become admissible, it cannot corroborate the
witness. Similarly, a statement admissible under Chapter VI of the CPEA
cannot be used to corroborate a witness.392
The quantum of proof is not affected by the requirement of corroboration.

Rather, the party has to provide more proof, but not to a higher degree of
proof.
9.Burden and onus of proof
The terms ‘burden of proof’ or ‘onus of proof’ are often used

interchangeably. The burden of proof refers to the obligation of a party in
390
1981 (3) SA 1233 (A).
391
Ibid at 1248C.
392
Section 35(2).
192
[LAW OF EVIDENCE]
a case to persuade the trier of facts by the end of the case of truth of
certain propositions.393
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. Therefore, the prosecution or state carries the burden
of proof.
Civil proceedings
In civil trials or 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’. He or she who alleges, carries the burden of
proof in civil cases, this can be the plaintiff or the applicant.
Unit summary
In this unit you learned about the evaluation of evidence after trial and the
burdens of proof applicable in civil and criminal proceedings. We also
looked at the various concepts and principles that are fundamental to take
into account when evaluating the cogency or weight of evidence.
Summary
393
See also Schwikkard & Van Der Merwe, 2016, p. 25 and pp. 601-627; see
Caltex Oil (Namibia) (Pty) Ltd v Tjikune 1997 NR 360 (HC) and Ostriches
Namibia (Pty) Ltd v African Black Ostriches (Pty) Ltd 1996 NR 139 (HC).
193
References
South Africa.
References
Shikale NO v Universal distributors of Nevada South Africa (Pty) and

others 2015 (4) NR 1065 (SC).

2012 (2) NR 613 (SC).
Caltex Oil (Namibia) (Pty) Ltd v Tjikune 1997 NR 360 (HC)
Ostriches Namibia (Pty) Ltd v African Black Ostriches (Pty) Ltd 1996 NR
139 (HC).
194

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STUDY GUIDE

Centre for Open, Distance and e-Learning

Edited and Published by Centre for Open, Distance and e-Learning

University of Namibia, Windhoek

Centre for Open, Distance and e-Learning

Eugene Lizazi Libebe Author

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Getting around this study guide 7

About this study guide

How this study guide is structured

▪ If the course is suitable for you.

▪ What you will already need to know.

▪ What you can expect from the course.

The overview also provides guidance on:

▪ Where to get help.

▪ Course assignments and assessments.

We strongly recommend that you read the overview carefully before

The course content

▪ An introduction to the unit content.

▪ Core content of the unit with a variety of learning activities.

▪ Assignments and/or assessments, as applicable.

▪ Answers to Assignment and/or assessment, as applicable

▪ Course content and structure.

▪ Course reading materials and resources.

▪ Course support (assigned tutors, technical help, etc.)

Your constructive feedback will help us to improve and enhance this

Welcome to [LAW OF EVIDENCE]

[LAW OF EVIDENCE] [LPEV

Exit Learning Outcomes

▪ Explain the concepts of relevance, admissibility, and the process of

▪ Classify the various forms of evidence;

Essentially you will be taking control of your learning environment. As a

We recommend that you take time now—before starting your self-study—

Getting around this study guide

A complete icon set is shown below. We suggest that you familiarize

Activity Additional Answers to Assessment

Assignment Audio Case study Discussion

Exit Learning Feedback Group Activity Help

References Reflection Study skills Summary

Terminology Tip Video

Introduction to Law of Evidence

The law of evidence is essentially a practical subject that can only be

Upon completion of this unit you should be able to:

▪ Discuss the historical development of the law of evidence.

Outcomes ▪ Critique the two trial systems of evidence.

Schwikkard, PJ & Van Der Merwe, SE. 2016. Principles of Evidence,

William, C. 1999. ‘Advantages and disadvantages of the adversarial

Mapaure, C. et al. 2014. The law of pre-trial criminal procedure in

1 The Historical Development of the Law of Evidence

The religious (primitive) stage

trial system can be traced to the trial by battle - physical confrontation

The formal stage

The rationale stage

What is the law of evidence and why is it significant?

Law of evidence is a branch of law that forms part of adjective law or

In essence, evidence may be broadly defined as any information that a court

2 Scope and Functions of the Law of Evidence

1) to determine what facts are legally relevant, receivable or

2) to determine the manner in which evidence must or may be

3) To set rules for assessing the weight or cogency of evidence and