Weekly Lecture/Comment: Lecture 7 (Learning

Units 16, 17 and 18)

The learning units in your study guide that remain, all deal with the evaluation of
evidence and will therefore be discussed together.

Learning Unit 16: The onus of proof in criminal and civil matters
Read the Orientation at the start of the learning unit carefully and study the diagram at
paragraph 16.2. The questions for self-evaluation are also very import.
When you study this learning unit, it is important to understand two things:
 The onus of proof is different in criminal and civil matters
 There is a big difference between the onus of proof and the evidentiary burden
Take note that although the onus of proof and the evidentiary burden is always on the
state at the start of a case, there are two exceptions:
Section 78(1A) of the Criminal Procedure Act states that every accused person is
presumed to be sane and criminally responsible until the contrary is proved. This places
a burden of proof on the accused to proof insanity.
Where the accused defence is not insanity, but sane automatism, there is an evidentiary
burden on the accused. In the past the accused could merely raise the defence and the
evidentiary would be on the state to prove this issue. Consult your course on the
Criminal Law of you do not know the difference between insanity and sane automatism.
Answer the following question:
Can the accused be convicted if she keeps quiet while the evidentiary burden still rests
on her and if so, how can this be reconciled with the constitutional right to silence?

Learning Unit 17: The assessment of evidence

In this learning unit the focus is on the important things that a court must consider when
it weights up all the evidence presented in the case – study the feedback at Activity
17.1.
A very difficult type of evidence to assess or evaluate, is circumstantial evidence. In the
exam your must be able to give a full explanation of how the court should go about
evaluating circumstantial evidence with reference to the facts of a possible question in
this regard. Note that a different test is applied in criminal and in civil matters. It is also
important that you understand what circumstantial evidence is, since you must be able
to identify it in the exam. The case of R v Blom provides an excellent example.
Learning Unit 18: Corroboration and the cautionary rule
Carefully read and study the Orientation to this learning unit. The concept of
corroboration is not difficult to understand. Corroboration will always be needed where
the probative or evidentiary value of certain evidence is not completely certain, and the
court must seek other evidence to confirm the trustworthiness of the evidence that
needs corroboration.
Certain types of evidence are traditionally viewed as untrustworthy or of low probative
value. Our courts have developed rules that deal with these specific situations and that
directs how corroboration must be applied or approached in those specific instances.
This is where the cautionary rules come from. A cautionary rule therefor tells the court
how to approach corroboration when the evidence of a specific type of witness stands to
be evaluated.
It is possible to get a question in the exam about the definition of corroboration and the
requirements for corroboration. A full explanation of these requirements must be
provided. It will not be enough to merely mention these requirements.
When you study the specific instances where experience has shown that corroboration
is always necessary, i.e. the cautionary rules, you must ensure that you understand the
definition of each different type of witness. What is the difference, for example, between
an accomplice and a co-accused? From your studies of the Criminal Law this should be
an easy question to answer. Also see the glossary at the back of the study guide for an
explanation.
It is further important to realise that more than one cautionary rule could be applicable to
a specific case. If there is, for example, only one person who can testify about the
identity of the accused, such a person will both be an identifying witness and a single
witness. His or her evidence must therefor be approached with caution for two reasons
and the principles that underly both rules must be mentioned and discussed in the
exam.
Answer the following question: Must the court follow a cautionary approach when it
assesses the evidence of a complainant in sexual matter? Fully explain.
It goes without saying that the feedback to all activities in this learning unit must be
studied for the exam.
This brings us to the end of the weekly comments. Please feel free to post any question
under “Discussions” on myUnisa or send me an e-mail with your question to
naudebc@unisa.ac.za.