FACULTY OF COMMERCE, MANAGEMENT AND LAW

SCHOOL OF LAW

COURSE CODE: PEV3771 COURSE TITLE: LAW OF EVIDENCE

PROGRAMME: Bachelor of Laws (LL B) (Honors) Degree

EMAIL:
COURSE LECTURER: Eugene Libebe
Tel: 061 206
STUDENT NAME/S: STUDENT NUMBER/S:
1. JESAYA MUKWAMBI 1. 221079157
2. 2.
3. 3.
4. 4.
5. 5.
6. 6.

ASSIGNMENT 1/2024

1
TABLE OF CONTENTS

1. Question 1………………………………………………………………….3
2. Question 2…………………………………………………………………4
3. Reference list………………………………………………………………6

2
Question1

Introduction

African constitutions from the 1990s prioritized the accused's right to a fair trial.1 Some
nations had already ratified human rights treaties that addressed the right to a fair trial at
the time, which might explain this. Examples are the International Covenant on Civil and
Political Rights (ICCPR)2 and the African Charter on Human and Peoples' Rights (African
Charter).3 Certain nations' constitutions, including Cape Verde, Ethiopia, Guinea-Bissau,
Liberia, Mozambique, Somalia, and Sudan, compel courts to dismiss evidence gathered
via human rights violations.4

South Africa

The constitutions of South Africa, Kenya, and Zimbabwe address how evidence gathered
via human rights breaches might affect the fairness of trials and justice administration.
Courts in these nations must exclude evidence gained through a violation of a Bill of
Rights if it would be unfair or damaging to the administration of justice or its interests. For
instance, in Shamduth Singh & Others v The State, the South African Supreme Court
of Appeal ruled:10

Section 35(5) of the Constitution does not automatically exclude unconstitutionally

obtained evidence. Evidence can only be omitted if it (a) causes an unfair trial or (b) harms
the administration of justice. Courts assess different elements to determine if admitting
unconstitutionally obtained evidence would be unfair or harm the administration of
justice.11 To exclude unconstitutionally obtained evidence, a value judgment must be
made first.12

Namibia

Namibia's Constitution13 does not address how courts should handle evidence gained
via human rights violations. Article 12(1)(f) of the Constitution states: No one can be
forced to testify against themselves or their spouses, including customary law partners,
and no court can admit testimony gained in contravention of article 8(2)(b). Article 8(2)(b)
states that no one should be subjected to torture or cruel, barbaric, or degrading treatment

3
or punishment. Namibian courts have begun to build jurisprudence on articles 12(1)(f)
and 8(2)(b). This article aims to highlight and suggest ways to strengthen the court's
jurisprudence and amend the Constitution to strike a balance in the fight against crime
between obtaining evidence in violation of human rights and ensuring admissibility of
evidence that does not violate the accused's right to a fair trial or harm the administration
of justice.

The Namibian Constitution does not require courts to exclude evidence obtained through
human rights violations. Courts use relevant constitutional and legislative provisions to
determine admissibility. The first case to address this issue was S v Minnies and
Others.14. The Court applied section 218 of the Criminal Procedure Act to address a
case where the accused was tortured by police to point out stolen items and their burial
location (15). In S v Malumo & 111 Others, the Court held: Failure to inform the accused
of their right to self-incrimination (Section 203) and the right not to be compelled to give
evidence against themselves (Article 12(1)(f) of the Namibian Constitution) would make
the trial unfair. This would expose the accused to cross-examination by the state on the
contents of the bail proceedings record.

Conclusion

The Namibian Constitution's Bill of Rights should explicitly protect the rights of suspects,
arrestees, detained individuals, and accused individuals. Article 12(1)(f) should be
amended to align with equivalent constitutional provisions in Kenya, Zimbabwe, and
South Africa regarding evidence gathered via human rights breaches.

Question 2

Section 1 of the Electronic Transaction Act No.4, 2019 defines data messages as
electronic mail, web pages, SMS messages, audio or video recordings, telegrams, and
other data created, sent, received, or stored in a similar manner, whether electronically,
optically, or otherwise.

4
South Africa

Real evidence is defined as evidence that, when correctly recognized, stands alone as
evidence and is physically available to the court for review.2 If evidence is important and
does not fall within the exclusion criterion, it is not considered hearsay. However, witness
testimony is often necessary to support the validity of evidence. Data messages cannot
be entered as evidence in court due to the hearsay exception, which requires the court to
give proper weight to the evidence itself. As a result, subjecting genuine evidence to
hearsay standards is fundamentally erroneous.3 Section 33 of the Civil Proceedings
Evidence Act, which applies to criminal proceedings under section 222 of the Criminal
Procedure Act 51 of 1977 (hereafter referred to as the CPA), defines "document" as "any
book, map, plan, drawing, or photograph." Section 221(5) of the CPA defines a document
as any instrument used to record or keep information. Section 246 expands this definition
to include books, pamphlets, letters, circular letters, lists, records, placards, and posters.
Section 247 of the CPA also defines newspapers and magazines as documents.
Seccombe v. Attorney-General (2002 (2) All SA 185 (Ck)) said that the term
"document" refers to any written or visual confirmation of anything. It doesn't matter what
material is used. A document would therefore comprise electronic data.

Namibia

In Ipinge v Lukas (I 1833/2011) [2018] NAHCMD 106 (23 April 2018)

Section 18 of the Civil Proceeding Evidence Act allows for the inclusion of public
documents into evidence without requiring the public official to testify to their substance.
A certified copy from a public officer is admissible as evidence. Section 20 of the Act
allows for the admissibility of official records without requiring the official to testify about
the document's content. A copy of an official document can be produced as evidence if
certified by the head of the department or an authorized officer in the state service. Failure
to properly certify and authenticate documented evidence might significantly
disadvantage both sides. Documentary evidence can be beneficial for both parties and
the court, and may be the strongest evidence available in the case.

5
References

Books

Schmidt and Rademeyer (2006), Law of Evidence (Durban: Butterworths).

Cases

Seccombe v. Attorney-General (2002 (2) All SA 185 (Ck))

Ipinge v Lukas (I 1833/2011) [2018] NAHCMD 106 (23 April 2018)

S v Minnies and Others

S v Malumo & 111 Others

Statutes

Civil Proceedings Evidence Act 25 of 1965, ss. 33, 34.

Electronic Transaction Act No.4, 2019