UNAM

FACULTY OF LAW

LAW OF EVIDENCE

THIRD YEAR LLB

SEMESTER 1
2020
LECTURER: EUGENE LIZAZI LIBEBE
THE LAW OF EVIDENCE

INTRODUCTION

WHAT IS IT AND WHY IS IT IMPORTANT?

 LESSON OBJECTIVES

BY THE END OF THIS LESSON STUDENTS MUST BE ABLE TO

UNDERSTAND AND EXPLAIN:
THE HISTORICAL DEVELOPMENT OF THE LAW OF EVIDENCE
THE SCOPE AND FUNCTIONS OF THE LAW OF EVIDENCE
THE SOURCES OF THE LAW OF EVIDENCE IN NAMIBIA
THE TWO SYSTEMS OF EVIDENCE
THE LAW OF EVIDENCE AND SUBSTANTIVE LAW
 THE HISTORICAL DEVELOPMENT OF THE LAW OF
EVIDENCE

• THE RELIGIOUS (PRIMITIVE) STAGE

• THE FORMAL STAGE
• THE RATIONALE STAGE
[BASED ON EARLY AND THE EVOLUTION OF ENGLISH LAW OF EVIDENCE]
 THE HISTORICAL DEVELOPMENT CONT’..

• THE RELIGIOUS (PRIMITIVE) STAGE

 ONE MAN SHOULD NOT SIT IN JUDGMENT UPON ANOTHER
 TRIAL BY ORDEAL E.G THE DRY MORSEL OF BREAD & PRAYER/TRIAL BY BATTLE OR DUEL
 APPEAL TO GOD (AS FACT FINDER FOR HUMAN DISPUTES)
 IRRATIONAL AND ABSURD TO THE MODERN MIND?????
 THE HISTORICAL DEVELOPMENT CONT’..

• THE FORMAL STAGE

 OATH WAS PRIMARY MODE OF PROOF (COMPURGATORS)
 TRIAL BY COMPURGATION, NUMBER OF OATHS DECISIVE
 MISTAKES IN FORM WERE FATAL
 IN 1215 POPE INNOCENT III FORBADE PRIESTS TO ADMINISTER ORDEALS AS A SYSTEM OF
PROOF
 RELEVANT TODAY?????
 THE HISTORICAL DEVELOPMENT CONT’..
• THE RATIONALE STAGE
 COMPURGATORS CALLED TO ACT AS ADJUDICATORS
 CRUDE FORM OF TRIAL BY JURY DEVELOPED
 POPULATIONS INCREASED AND EVERYDAY ACTIVITIES BECAME COMPLEX
 CALLING OF WITNESSES (RECEIPT OF ORAL TESTIMONY/PRINCIPLE OF ORALITY)
 JURY-MAN OR JURORS (NO PERSONAL KNOWLEDGE & IMPARTIALITY)
 STATUTORY REFORMS IN THE 19TH AND 20TH CENTURY
 JURY – SIGNIFICANT FACTOR TO SHAPING THE LAW OF EVIDENCE
 SCOPE & FUNCTIONS OF THE LAW OF EVIDENCE
• GOVERNS THE PROOF OF FACTS IN A COURT OF LAW
• PART OF THE PROCEDURAL MACHINERY (GIVES PRACTICAL MEANING AND EFFECT TO RULES
OF SUBSTANTIVE LAW)
• SCOPE DETERMINED WITH REFERENCE TO SPECIFIC FUNCTIONS
• MAIN FUNCTION:
 TO DETERMINE WHAT FACTS ARE LEGALLY RECEIVABLE/ADMISSIBLE TO PROVE FACTS IN ISSUE

 DETERMINES THE MANNER EVIDENCE SHOULD/MAY BE ADDUCED; WHAT EVIDENCE MAY BE LAWFULLY
WITHHELD FROM COURT;
 SETS RULES FOR ASSESSING THE WEIGHT OR COGENCY OF EVIDENCE & STANDARDS OF PROOF
 THE SOURCES OF LAW OF EVIDENCE IN NAMIBIA
• THE CONSTITUTION
• ENGLISH COMMON-LAW
• THE CRIMINAL PROCEDURE ACT, 51 OF 1977
• THE CIVIL PROCEEDINGS EVIDENCE ACT, 25 OF 1965
• THE FOREIGN COURTS EVIDENCE ACT, 2 OF 1995
• CASE LAW
 THE TWO SYSTEMS OF EVIDENCE

• THE ACCUSATORIAL/ADVERSARIAL TRIAL PROCEDURE

 ROOTED IN THE EARLY RITUAL OF TRIAL BY BATTLE
 PARTIES RESPONSIBLE FOR THE PRESENTATION OF EVIDENCE TO SUPPORT OWN CASE
 ADJUDICATOR PLAYS A PASSIVE ROLE
 MUCH EMPHASIS ON ORAL PRESENTATION OF EVIDENCE &
 CROSS-EXAMINATION OF WITNESSES (GREATEST LEGAL ENGINE FOR DISCOVERY OF TRUTH)
 THE TWO SYSTEMS OF EVIDENCE

• THE INQUISITORIAL MODEL OR TRIAL PROCEDURE

 JUDGE-CENTRED
 TRIAL AN INQUIRY IN ESTABLISHING TRUTH, NOT A CONTEST OF OPPOSING PARTIES
 JUDICIAL EXAMINATION PIVOTAL MECHANISM IN THE PROCESS OF FACT-FINDING
 NO CROSS-EXAMINATION, PUTS THE WRITTEN WORD AS MEANS OF RECEIVING EVIDENCE
 THE TWO SYSTEMS OF EVIDENCE CONT’..
• THE ACCUSATORIAL • THE INQUISITORIAL
 TRUTH BECOMES TOO OFTEN THE VIEW OF THE
 JUDGE CAN FIND OUT WHAT HE WANTS TO
POWERFUL
KNOW (IN CHARGE OF INQUIRY FROM START)
 JUDGE DO NOT POSE QUESTIONS & SEEK
ANSWERS (CONFINED)  THE INQUISITOR IS NOT CONFINED
 THE DUEL, CAN GENERATE UNNECESSARY  NATURAL SYSTEM OF FACT-FINDING
CONFLICT TO THE DISPUTE
 DISPENSES WITH TECHNICAL RULES & APPLIED IN
 OUTCOME OF CASE DEPEND ON ABILITY, WIT,
OUR EVERYDAY ACTIVITIES
ENERGY, RUTHLESSNESS THE XX DISPLAY
 PROCEDURAL/FORMAL TRUTH CAN BE  ACCOMPANIED BY FREE SYSTEM OF EVIDENCE
PROMOTED AT THE EXPENSE OF MATERIAL TRUTH  USED BY GENUINE SEEKERS OF TRUTH
 CONCOMITANT OF THE STRICT SYSTEM OF
EVIDENCE.
 LAW OF EVIDENCE & SUBSTANTIVE LAW

• SUBSTANTIVE LAW - PROVIDES FOR RIGHTS & DUTIES

• ADJECTIVE LAW – PROVIDES PROCEDURAL MECHANISMS WHEREBY RIGHTS & DUTIES ARE
ENFORCED & LAW OF EVIDENCE PART OF
• IS THE DISTINCTION SIGNIFICANT???
• THE BURDEN OF PROOF – SUBSTANTIVE OR ADJECTIVAL???
• PRESUMPTIONS???
• ESTOPPEL & PAROL EVIDENCE RULE???
 CONCLUSION
• KEY POINTS
 THE SCOPE & FUNCTIONS OF LAW OF EVIDENCE
 THE SOURCES OF LAW OF EVIDENCE
 THE TWO SYSTEMS OF EVIDENCE

• NEXT CLASS
 CONCEPTUAL NARRATIVES
 THE STANDARDS OF PROOF IN CRIMINAL & CIVIL PROCEEDINGS

• QUESTIONS, COMMENTS…..!!!!!!!!!!!!!!!!!!!!