Professional Documents
Culture Documents
South Africa
The South African law of evidence forms part of the adjectival or procedural law of that country.
It is based on English common law.
There is no all-embracing statute governing the South African law of aspects: Various statutes
govern various aspects of it, but the common law is the main source. The Constitution also
features prominently.
All types of legal procedure look to the law of evidence to govern which facts they may receive,
and how: civil and criminal trials, inquests, extraditions, commissions of inquiry, etc.
The law of evidence overlaps with other branches of procedural and substantive law. It is not
vital, in the case of other branches, to decide in which branch a particular rule falls, but with
evidence it can be vital, as will be understood later, when we consider the impact of English law
on the South African system.
Admissions
The general rule is that the parties must prove their cases by evidence. Admissions constitute
an exception to this rule.
An admission is a statement by a party which is adverse to that party's case. The party in
question does not have to realise that something is adverse to his case for it to qualify as an
admission. Whether or not something is adverse to a party's case can depend on the context.
Informal admissions
Below are the requirements for the admissibility of informal admissions.
In civil cases, the only requirement is relevance. Additionally, where statements are made in the
course of settlement negotiations, they may not be received without the consent of the party
making them. See Naidoo's case.
Admissions by conduct
Silence
Common sense may indicate that the silence is in effect an admission of an accusation.[1] Note,
however, the effect of the Constitution in criminal cases.[2][3]
Failure to answer letters
The courts will not as readily conclude that failure to respond to a letter is an admission by
silence as in the case of a failure to deny orally.[4] Surrounding circumstances must permit the
reasonable inference that the failure to respond can be equated with an admission, as in
commercial practice, especially when there has been correspondence on an issue.[5]
Vicarious admissions
Previous admissions by third parties are sometimes admitted as vicarious admissions: that is,
admitted against a party even though not made by that party.
Below are some categories where vicarious admissions have been held to be admissible:
Executive statements
Statements made in execution of conspiracy or common purpose have been admitted against
co-conspirators.[9] The judgment of Squires J in S v Shaik allows an executive statement to be
received in evidence, but unfortunately does not deal in detail with the legal principles, or
reconcile the principle with constitutional values. Although it is not entirely clear, the SCA in the
Shaik appeal seems to say that executive statements which are adduced to prove the truth of
their contents should be dealt with under the statutory law relating to hearsay evidence.[10]
A threat or promise per se is insufficient to render the statement inadmissible, if it did not
influence the mind of the accused.
"Person in authority"
This term has been interpreted in two ways:
Section 219A of the CPA purports to place an onus on the accused to show that an admission
made in writing was not made freely and voluntarily if it appears ex facie the document that it
was made freely and voluntarily. The Constitutional Court has ruled, in S v Zuma, that similar
provisions for confessions are unconstitutional; almost certainly it would rule similarly in the
case of admissions.
Formal admissions
The general rule is that parties must prove their case by evidence. Formal admissions constitute
an exception to this general rule.
The rationale for formal admissions is that they save time and costs. The system encourages
people to admit facts which are not in dispute, so that the trial is not derailed and unnecessarily
delayed by extraneous and superfluous issues.
Informal admissions constitute merely an item of evidence helping to prove the other party's
case, whereas a formal admission, once made, is conclusive proof of the fact admitted.
Withdrawal of formal admission is only possible in the event of compliance with formalities. The
court will only allow withdrawal if satisfied that it was a bona fide mistake, and that there is no
prejudice to opposing party.
The party seeking withdrawal must give a full and satisfactory explanation for the withdrawal,
supported by evidence (like an affidavit).
Even after withdrawal, a formal admission may still be taken into account as an item of
evidence; it may still constitute an informal admission, in other words.
Previously statutory provision was made only for the defence to make admissions, although at
common law it was accepted as a matter of practice that the State could also make admissions.
Section 220 has now been amended to cover admissions made by either side. Section 220
provides that formal admissions are “sufficient proof” of the facts they cover.
In S v Malebo, Hiemstra CJ held that "sufficient proof" meant conclusive proof. Therefore, a
formal admission under section 220 immediately became conclusive of the fact covered
thereby.
In S v Sesetse, however, the Appellate Division held that an admission only becomes conclusive
proof at end of the trial.
Withdrawal of a formal admission in criminal trial is possible, if the formalities have been
complied with, but a withdrawn admission may still have some evidentiary value.
There is a need for clarity: Formal admissions should be worded and recorded carefully, to
eliminate ambiguity.[14] A formal admission need not necessarily be in writing, but this is
preferable, for the purposes of clarity.
If there is any ambiguity, the general principle is that the interpretation in the accused's favour is
to be applied.[15]
A formal admission by the accused does not bind the State to a meaning fundamentally at
variance with the State's case.[16]
Plea of guilty
A plea of guilty itself constitutes a type of formal admission.[17]
Once a plea of guilty is altered to one of not guilty under section 113, any admissions already
made, and not affected by the section-113 ruling, “shall stand as proof thereof.” They are
unaffected or unchanged by the conversion of the plea to one of not guilty.
Section 113 provides for the setting aside of a plea of guilty in a wider variety of situations than
those covered by the withdrawal of other formal admissions: for example, if the court thinks that
there is any valid reason why the plea of guilty should not stand.
Generally
Courts should be wary about accepting formal admissions from an unrepresented accused on
points beyond the personal knowledge of the accused. This occurs all too often in practice. The
accused's presence at the scene of the crime is within his personal knowledge; the veracity of
the blood tests is obviously not.
PJ Schwikkard and SE van der Merwe consider such admissions to be formal admissions, and
rely on AD authority.[18]
Summary
The first thing to decide is whether an admission is formal or informal. If there is no conclusive
proof in this regard, in a criminal trial one must ask if it is a confession or not. Having answered
this question, one has passed the point of no return; one cannot retrace one's steps back to this
proverbial fork in the road.
Confessions in a criminal
trial
A confession is a special type of informal admission in a criminal trial. It has been defined as an
unequivocal admission of guilt, equivalent to plea of guilty in a court of law.[19][20]
The CPA creates special rules for the admissibility of confessions. In terms of section 217, a
confession is admissible only if made
In S v Nkanyezi, Judge Luyanda Xulu held that there are secondary requirements needed to be
complied with for confessions made in terms of Section 217(1)(a) and 217(1)(b).
In addition, a confession to a peace officer, other than a justice of the peace—that is, to a police
official lower than the rank of officer (a captain or higher)—is not admissible unless it is
confirmed and reduced to writing in the presence of a magistrate.[21]
The rationale for the exclusion of confessions not complying with section 217 includes
considerations of
unreliability;
the principle that person should not be
made to incriminate himself—reasons of
policy, in other words;[22] and
the Constitution.[23]
Courts have tended to take a strict view of what a confession is. They have tended to regard a
statement as not being a confession if there is any opening for a valid defence.[24][25][20]
What if the accused intends to make an exculpatory statement, but in fact it objectively amounts
to a confession? Previously there was some debate on this issue, but now it has been decided
that such statements are to be judged objectively.[26]
Even if the statement does not constitute an unequivocal admission to the main charge alleged,
but objectively constitutes a full admission to some lesser charge (competent verdict), this will
amount to confession, and section 217 will apply.[27]
Undue influence need not emanate from person in authority. Violence, or threat of violence,
would clearly constitute undue influence.
The concept also includes subtler influences such as the promise of some benefit, or an implied
threat or promise.
Influences which come from the accused herself do not constitute undue influence: for example,
an expectation by the accused that he will receive more favourable treatment if a confession is
made.[30]
Courts have regarded this requirement as being a subjective one: Was the accused in fact
influenced?[31]
Improper threats or promises which did not in fact influence the accused will therefore not
automatically render the confession inadmissible.
Failure to advise the accused of his rights at the time of the arrest can be taken into account to
decide whether there was improper influence.[32]
A person taking a confession is not obliged to interrogate the interviewee in order to exclude the
possibility of undue influence.[33]
Statutory compulsion
Previously courts have held that statements made under statutory compulsion do not fall foul of
the requirement that statements be free of undue influence.[34]
How does this fit in with right not to incriminate oneself in s 35(3)(j) of Constitution?[35][36]
In practice this means that confessions to police officials below officer rank—that is, up to and
including the rank of inspector, and below the rank of captain—will not be admissible unless
confirmed and reduced to writing before a magistrate.
The rationale for this is the elimination of the undesirable practice of enforced confessions, and
"trial by police station" instead of trial by court.
The meaning of "peace officer" is defined in section 1 of the CPA. It includes magistrate, justice
of peace, police officials and other categories.
The proviso to section 217(1) exempts from the prohibition those peace officers who are also
magistrates or justices of peace. Police officials of commissioned-officer rank (lieutenant and
higher) are also justices of the peace, and therefore included in the exemption. In practice,
therefore, the exclusion of confessions applies to constables, sergeants and warrant officers in
the SAPS, as well as to certain categories of other officials referred to in definition of "peace
officer." For ease of reference those officials affected by the disqualification will henceforth be
called "disqualified officials."
The proviso to s 217(1) only excludes statements made to disqualified officials. The mere
presence of a disqualified official when a confession is made does not render that confession
inadmissible. For example, if a disqualified official is in the presence of a more senior police
official who is also a justice of the peace, or acting as interpreter for such more senior police
official when the confession made, or present when a confession is made to a private person,
the confession would be admissible, if other admissibility requirements have been met.[37]
The proviso to s 217(1) states that confession to a disqualified official becomes admissible if it
is subsequently confirmed and reduced to writing in the presence of a magistrate or justice of
the peace. In practice, if it is so confirmed and reduced to writing before a magistrate or justice,
it is regarded as a new confession, and the inquiry will be about whether that confession
complies with the usual admissibility requirements.[38]
In practice, it is far preferable to have the suspect taken before the magistrate if there is to be a
confession. It is especially undesirable to have the confession made to a commissioned officer
who is involved in the investigation.[39]
If the maker of the confession is unaware that the person to whom he makes the statement is a
police official, the proviso is not applicable.[40]
The effect is that common-law onus (beyond reasonable doubt) once again applies.
Procedure to prove confession admissible
A confession is proved to be admissible by way of a "trial within a trial," whereby each side leads
evidence, and then argues on its admissibility.
The content of the confession itself usually cannot be placed before court at this stage, unless
exceptional circumstances apply, as in S v Lebone, where it was necessary to refer to the
contents of the confession to refute the allegation made by the accused that he had been
coached by the police as to what to say.
Evidence at a trial within trial is not per se admissible at the main trial, whether the confession is
allowed or excluded. If the confession is ruled admissible at the trial within a trial, the evidence
to prove the confession still has to be led at the main trial.
This rationale does not give value to section 35(5) of Constitution, which clearly envisages that
improperly-obtained evidence may be excluded, even if otherwise reliable.
Previously the courts took the view that whatever led to the pointing out was irrelevant. The
pointing out itself was admissible.[42]
Now courts look to the nature of the pointing out, to see if it is in fact a disguised admission or
confession.[43][22][44]
Since the advent of constitutionalism, section 35(5) of the Constitution may lead to the
exclusion of evidence as unfair, or likely to bring the administration of justice into disrepute, even
if section 218 of CPA would allow it.[45]
Private privilege
Privilege—note the Latin etymology of the word—refers to a personal right to refuse to give or
disclose otherwise admissible evidence. A witness, otherwise compellable, is not obliged to
answer certain questions. See Ferreira v Levin.
Privilege is different from other rules that exclude evidence. Such other rules tend to exclude
because of some doubt about reliability, whereas privilege excludes evidence because it aims to
protect some higher value than the search for truth. The granting of privilege is therefore not
lightly made.[49]
The principle of privilege is aimed, for policy reasons, at protecting the rights of individuals.
Private privilege may be waived, but courts require confirmation that the person so waiving is
aware of his rights. The court must be satisfied of this before it will allow such waiving.
The courts are reluctant generally reluctant to grant privilege. The more privilege they grant, the
more hampered they are in getting to the bottom of the matter.
The privilege against self-incrimination originates in the unpopularity of the harsh Star Chamber
in England, which forced suspects to talk when interrogated under oath. This was abolished, as
a result of growing opposition (since the politically powerful aristocracy were often victims of
the Star Chamber), in 1641. The principle against self-incrimination became very important to
English system thereafter.
The United States Supreme Court, in the case of Miranda v Arizona, held that the constitutional
foundation for the privilege is the respect that government must accord to the dignity and
integrity of its citizens. This decision came after the accused had been asked and made to
answer self-incriminating questions by the police. Now suspects in the US must be "mirandised."
Criminal proceedings
Witnesses
The privilege against self-incrimination, as it applies to witnesses in criminal proceedings, is
governed by section 203 of the CPA, which refers to position in South Africa as at May 30, 1961.
What this means is that one must look to English law, as interpreted in South Africa, at the time.
A witness is privileged only against replying to questions which may criminally incriminate him,
not those which might only involve civil liability.[50]
The rule of practice in South Africa is that courts should warn or inform witnesses of the
privilege when the issue arises. In S v Lwane, the accused, and others involved in the robbery of a
training store, fled from the scene of the crime and when they had reached what they took to be
a safe distance began dividing up the loot. An argument broke out about its distribution. One of
them pulled out a knife and stabbed Lwane, who was sent to hospital. The police opened a
charge at Lwane's instance against his stabber. (At this stage the police were not yet in
possession of sufficient proof of the earlier murder and robbery; they were just concerned with
Lwane's stabbing.) At a preparatory examination (then common, now very rare) of Lwane as the
complainant, he had recounted the events of the day in question, including the fact that he and
his partners had robbed the shop. No-one had warned him of the privilege against self-
incrimination. At this point the preparatory examination was abandoned, and Lwane was sent to
trial, where evidence of his remarks at the examination was led. He was duly convicted, and
appealed to AD, which noted the absence of any warning of the privilege. The court found that
this made a crucial difference, and it would be unfair to incriminate him on the basis of
something he would not have said had he been aware of his rights. The court held that the
correct rule of practice had not been observed, and that, since the remaining evidence was not
convincing, the conviction ought to be set aside.
When the issue arises, the court is obliged to establish whether there is a proper basis for the
claim that the accused cannot answer without incriminating himself. The court must be satisfied
on reasonable grounds that the answer may incriminate the witness. In Magmoed v Janse van
Rensburg, a very important case, a policeman had been giving evidence at inquest, after a
number of people had been shot dead by the police. The policeman refused to answer the
question of whether or not he had been in charge on day in question, but his claim of privilege
was not upheld. On appeal it was held that it ought to have been.
If the witness is warned under section 204 of the CPA, the privilege falls away: The witness is
then given the right to earn an indemnity in exchange for taking away the privilege against self-
incrimination. For example, if while housebreaking one sees a murder occurring, one may be
indemnified against incriminating oneself in providing evidence of the murder. This is a question
of State strategy: The murder is obviously the more serious offence. Once the procedure in
section 204 has been correctly followed, the witness loses the privilege, but gains indemnity
against any future prosecution on that charge. This can be controversial: Glenn Agliotti was
famously called as a witness against Jackie Selebi in terms of section 204, and admitted to
having paid a bribe. It could be argued that in such circumstances the bigger crook is allowed to
get away with it.[51]
After a warning under section 204, the privilege falls away. In exchange for losing the privilege,
the witness earns the right to indemnity. Section 204 is available only to the State, not to the
defence.
The privilege falls away also if the witness has already been indemnified—he might have given
the same evidence in an earlier trial—or has already been acquitted or convicted. This is so
because the witness is not in any jeopardy; there is no increase in his risk of self-incrimination.
What applies in such circumstances is the principle of autrefois acquit or autrefois convict. There
is therefore no need for the witness to be indemnified twice.
Section 204 does not violate the right to a fair trial. In S v Suliman, it was argued that it does so
violate; the court disagreed.
Accused
At pre-trial stage, accused not obliged to say anything therefore has a right to remain silent; right
not to incriminate himself: S v Melani; S v Mathebula.
This privilege does not extend to bodily characteristics of accused, which may be obtained
under s 37 of CPA: Ex parte Minister of Justice: in re R v Matemba Levack v Regional Magistrate,
Wynberg
Bail proceedings: accused can decline to answer incriminating questions: court has duty to
inform accused of this right: s 60 (11B)(c) of CPA. What is the position if accused is not
expressly informed of this right, and incriminates himself during bail proceedings? Best view
appears to be that such evidence would not be automatically excluded: Du Toit et al:
commentary on s 60 (11B)(c): Why exclude if it is clear that accused understood the position
perfectly? Makes sense especially in the case of accuseds who already know of this right, or are
well versed in the law.
• Accused can but is not obliged to give plea explanation: s 115 of CPA • Accused not obliged to
testify, although failure to testify comes with attendant risks and disadvantages: S v Boesak.
Court might have to decide the matter on only one side’s version of events. • If accused does
elect to testify, cannot refuse to answer relevant and otherwise admissible questions.
Civil proceedings
In civil proceedings, the witness has a wider protection by virtue of privilege than in criminal
cases. He can refuse to answer questions which would incriminate, or would expose him to
“penalties or forfeiture.”[52] Under section 14 mere exposure to a civil claim is insufficient to raise
privilege. “Penalties or forfeiture” means something other than mere civil liability. For example,
you would incur a penalty in the running of your business, or be forced to forfeit your passport.
But mere civil liability or indebtedness is not covered by the privilege.
The rationale for this privilege is that society sees the need for lawyers to help resolve civil and
criminal disputes. Lawyers could not do their work properly if there were a danger that they
could be forced to disclose communications with their clients.
This is a fundamental right of procedural justice.[53] It existed even before advent of the
constitutional dispensation in South Africa, but it has even greater importance in that context.
The following are a few of the requirements for legal professional privilege to operate:
Whether or not the communication was made in confidence depends on the facts of each case.
Whether or not it was made for the purpose of legal advice, again, depends on facts of each
case.[55][56]
There will be no privilege if the statement made for the purpose of furthering some criminal
plan. In Harksen v Attorney-General, Cape, Harksen had sought advice from a lawyer so as to
further a criminal plan, asking the lawyer for the best way to avoid detection or prosecution. It
need not be the case that the lawyer is complicit, or aware of the purposes to which his advice
was to be put.
The privilege belongs to the client, not to the legal adviser, although the legal adviser would
usually raise privilege in the first place.
The privilege falls away if there is waiver, express or implied or imputed, by the client. The legal
adviser in that case must give the evidence, since his client has consented to its disclosure. S v
Tandwa is an important case on the imputed variety. Tandwa was one of a number of accused
charged with a big bank robbery. Tandwa was the bank manager, and it was contended that he
was complicit. Tandwa chose not to give evidence at the trial, and was convicted. On appeal, he
claimed that the trial had been vitiated by irregularity: Counsel had closed the case without
allowing him to give evidence, which would have been a gross dereliction of duty on part of
counsel. Counsel said that this was not so, but Tandwa contended that counsel was not allowed
to say that, owing to privilege. Judge Edwin Cameron told Tandwa that he was not permitted to
have it both ways, for policy reasons. It had therefore been imputed that Tandwa had waived his
privilege.
Privilege attaches not just to communications with legal advisers, but also to communications
with the employees of legal advisers, like clerks, secretaries and interpreters. In S v Mushimba,
such an employee had been passing on privileged information to the police. After a conviction,
this came to notice of the Appellate Division, which set aside the conviction on the basis of
gross irregularity.
The privilege also attaches to communications between legal advisers and third parties
gathering potential evidence at the instance of legal advisers for clients, for the purpose of
litigation. An example would be where a legal adviser hires a private detective to obtain certain
information for use in contemplated litigation. This is what Zeffertt et al. refer to as litigation
privilege.[57] This privilege only arises once the litigation is contemplated, unlike the ordinary type
of legal professional privilege, which can come into existence prior to the contemplation of
litigation.
Section 37 of the Financial Intelligence Centre Act expressly preserves legal professional
privilege despite the stringent reporting requirements of the Act.
There is some argument that under the new constitutional dispensation communications with
such professionals ought also to be covered by privilege.
In England, there is recent authority to the effect that professional privilege does not extend
beyond the legal profession.[58]
In South Africa the courts have on occasion given some protection to this type of situation by
applying section 189 of CPA.[59] Under this section the court may refrain from punishing a
recalcitrant witness if there is a “just excuse” for his not testifying. This development is not on all
fours with legal professional privilege: Under section 189, the court has held that a receiver of
communication is not bound to testify where it would clash with professional ethics; the court
did not say, however, that this protection covered the maker of the communication. The section-
189 situation is different from privilege in that it is not a blanket legal protection, but a decision
not to punish in a given situation.
Marital privilege
Marital privilege is covered by section 198 of the CPA and section 10 of the CPEA. It originates in
public policy.
The privilege only covers communications made during the course of the marriage.
Section 199 of CPA and section 12 of CPEA extend the privilege to a spouse who may decline to
answer any question which the other spouse may lawfully have declined to answer.
Parent/child privilege
At common law no special privilege attaches to the parent-child relationship.
If, however, a parent assists a child accused in criminal proceedings,[61] the privilege attaches, as
the parent is then in a similar position to a legal adviser.
Under section 14 of the South African Constitution (on the right to privacy), there is scope for the
development of such a right in South Africa.[62]
State privilege
Is State privilege truly a privilege? It might rather be described as an exclusion of certain
categories of evidence on the grounds of public policy, in that admission of such evidence would
be harmful to the public interest.
The English case of Duncan v Cammell Laird, which concerned sinking of HMS Thetis, is
important in this regard. It concerned litigation by widows and dependants during World War I,
the accident having occurred before the war. The plaintiffs wanted to access the plans of the
submarine so that they could prove their case. The Ministry of Defence said that this was a
sensitive matter, invoking Crown privilege and arguing, accordingly, that it could not be adduced
in court. The House of Lords (deciding the case at the darkest point of the war) held that, once
the decision to invoke Crown privilege is made in the proper form, it may not be questioned.
In South Africa, this is usually described as State privilege. In the United Kingdom it used to be
called Crown privilege, but is sometimes referred to today as "public interest immunity."
In Conway v Rimmer, twenty-five years later, the House of Lords revisited the issue and
reasserted judicial control. The court said it had been wrong in Duncan; court must always apply
its mind; must always make up its own mind as to whether the circumstances justify State
privilege. This case involved a probationary policeman who was not going to have his probation
confirmed; he wanted access to confidential staff files that the police had on his performance,
that he might make his case stronger thereby. The Minister issued a certificate invoking Crown
privilege. This was challenged. The court a quo said it was bound by Duncan, and for perhaps the
first time the House of Lords revisited an earlier decision. What could be the harm to the State, it
asked, if the performance of an individual policeman is put on table? It might be slightly
embarrassing, but it was no national security issue. It was for the court to decide, and the court
decided in casu that records should be revealed.
The context and prevailing circumstances in these two were important, especially as regards
national security; indeed, they were probably decisive.
Parliament unhappy with this decision and passed legislation in 1969 to restore the situation to
the Cammell Laird position. The executive had absolute and unquestionable power to block the
disclosure of evidence, no reasons required. The Minister’s certificate was conclusive.[63] In
1972 the legislation was relaxed somewhat, so that the ouster of the court’s power to decide
applied only where national security at stake. National security, in other words, was again the
decisive issue.
The General Law Amendment Act was replaced by section 66 of the Internal Security Act,[64]
which was repealed (on Parliament’s own initiative, without direction from the Constitutional
Court) in 1996. The situation thus effectively reverts to Van der Linde v Calitz, subject of course
to constitutional considerations.
Under the Freedom of Info Bill, 2010, section 46 leaves discretion to the court to order
disclosure.
In the constitutional era, anything in the common law which conflicts with the Constitution will
not be tolerated, unless it is a justifiable limitation.
In Independent Newspapers v Minister for Intelligence Services, the applicant had applied for the
compelled public disclosure of restricted material contained in the records of certain court
proceedings. The Minister objected to the disclosure on national-security grounds. The court
held that a fair and objective assessment required the striking of a harmonious balance between
the two competing claims—the applicant’s right to “open justice” and the constitutionally-derived
power and duty of the executive to make and implement national-security policy. Although this
case deals with sensitive state security issues, it is not about privilege as such.
Detection of crime
At common law the State is protected against disclosure of communications which would tend
to reveal the identity of an informer or otherwise expose methods of detection of crime. The
term “informer privilege” is often encountered when one species of this branch is under
discussion.[66] There are at least three reasons for the preservation of informer privilege:
The Appellate Division set certain bounds to informer privilege. In Pillay’s case, it held that the
privilege only operates where public policy requires it, and will be relaxed, at least, in the
following circumstances:
The common-law position is that hearsay evidence is generally excluded, subject to certain
exceptions. (These exceptions became frozen in the course of time.) The issue in each case was
to try to bring a situation within the ambit of a recognised exception.
The situation is now covered by statute, in section 3 of the Law of Evidence Amendment Act,[69]
which defines “hearsay” as “evidence, whether oral or in writing, the probative value of which
depends upon the credibility of any person other than the person giving evidence.”
The first question raised by this definition is this: What is meant by “depends upon?” The answer
seems to be that this phrase refers to the issue of whose credibility the probative value rests
upon primarily.
Section 3(1)(c) refers to the general power of a court to allow hearsay evidence if it is in the
interests of justice. This is the most important of the statutory exceptions, and most radical
break with the past. It is not properly called a “discretion” to admit hearsay evidence.[72] The
court must admit it.[73]
The court, in terms of section 3(1)(c), should consider six explicitly-mentioned factors as well as
“any other factor.”
Take careful note of the case of S v Ndhlovu, where the SCA laid down some very clear policy
provisions, and gave a very far-reaching decision. A gang was accused of murder and robbery;
on arrest, some of its members made admissions to the police. One such admission proved to
be particularly important. It was allowed in as evidence against its maker. On the State’s
application, the trial court decided to admit the admission also against his co-accused. This
proved decisive of the outcome of the case, which went on appeal to the SCA. Cameron JA
wrote the majority judgment and provided some pointers:
See also S v Mokoena at 45-48 for a similar example of the court’s using its power to allow
hearsay in the form of the proved statements of the co-accused.
In S v Mathonsi, the court admitted hearsay under this section in the form of a former
inconsistent statement of a witness who had been discredited.
The SCA has recently cautioned against pushing Ndhlovu too far.[80] But see the recent case of S
v Rathumbu.[81]
For an illustration of the careful application of section 3(1)(c), see S v Shaik.[82] See also S v
Ralukukwe.
In S v Mpungose, the victim of a rape was killed in a manner suggesting that the purpose was to
prevent her testimony. She had previously said something devastating, but hearsay, to the
accused, who was subsequently convicted. This conviction was overturned on appeal.
Common-law exceptions to hearsay
There are two main categories under the common law:
Spontaneous exclamations
The basis for allowing spontaneous exclamations is their reliability. There are four main
requirements:
a startling occurrence;
spontaneity;
no reconstruction of past events
permissible; and
narrative parts excluded.
Statutory exceptions to hearsay
The following are the statutory exceptions hearsay:
Previous consistent
statements
A "previous consistent statement" is a statement, written or oral, made by a witness prior to
testifying, which corresponds with or is substantially similar to his testimony in court.
The general rule is that a witness is not allowed to testify about, nor may another witness be
called to support, a previous consistent statement.
The rationale for the exclusion is the irrelevance of such statements, and their lack of probative
value, and the ease with which they can be fabricated. To allow them would be to open the door
to much time wasting and the exploration of collateral issues.
The complaint must be voluntary.[84][85] The victim must testify. The complaint must be made at
first real opportunity.
Such statements have limited evidential value. They do not constitute corroboration.[86]
Note that this issue is now governed by legislation.[87] Evidence of previous consistent
statements is admissible in sexual offence cases, but the court may not draw an adverse
inference from the failure to make a complaint.[88] Court also may not draw an adverse inference
from the length of delay in reporting such an offence.[89]
Note must be taken of expert evidence to show why people sometimes do not report such
offences immediately. In Holtzhauzen, the alleged victim had wanted to lead the evidence of a
hypnotist—this was not allowed—and an expert witness on why she had not come forward
immediately. (This was allowed.) Prior to the commencement of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, expert evidence was sometimes led to explain
the delay in reporting. It could be argued that such evidence would no longer be necessary, in
view of the explicit provisions of the new statute.
For critical discussion of this legislation, see Zeffertt et al in 2008 125 SALJ 642.
Identification
Such evidence is potentially problematic, since people make mistakes. In the case of dock
identification of the accused, the witness can testify that he had previously identified witness, at
an ID parade, for example. Others may also testify to show such prior identification by the
witness.
Refreshing memory
Note here the requirement of the "primacy of orality"—viva voce evidence—and the general rule
against proving previous consistent statements.
There are statutory exceptions,[90] but it is not necessary to go into in detail on them here.
The common law covers the many areas not covered by those provisions. The common law
allows for a quasi-exception, in the case of refreshing memory from a previous written
statement.
It is important to distinguish between refreshing one's memory prior to giving evidence (always
permitted, because this does not cause the possible privilege attaching to the statement to be
lost) and refreshing one's memory in the witness box. What follows deals with latter situation.
The following requirements must be met before a witness will be permitted to refresh his
memory from a prior written statement:
He must have personal knowledge of
the event.
He must be unable to recollect unaided.
Verification of document: must have
been created by witness, but
actual recording of particulars may
have been recorded by other
person, who will also have to be
called; or
witness must have verified
accuracy whilst still fresh in
witness's mind.
The prior statement must have been
made while the events were still fresh in
the witness's mind. Strict
contemporaneity is not required; what is
fresh will be decided on facts of each
case.
There is no need for the witness to have an independent recollection of the event or a portion of
the event.[91]
In the United States, a distinction is drawn, based on modern psychological theory, between
"present recollection revived" and "past recollection recorded." This distinction is not watertight.
The South African courts have not yet gone into this distinction in any depth.
Ideally, if the report of a witness is used, the witness should be asked to confirm and adopt it as
part of his evidence.
Similar-fact evidence
Similar facts are facts directed at showing that a party to proceedings (usually the accused) has
acted in a similar way before, and is therefore more likely to have done what is alleged against
him or her. For example, the accused has previously been convicted of shoplifting; therefore he
is more likely to be guilty of shoplifting on this occasion. The issue can also arise in the case of
people who are not the accused, as with the allegation that the police systematically tortured
suspects in order to extract confessions from them.
The policy reason for the exclusion of similar-fact evidence is that its prejudicial effect
outweighs its probative value. Evidence of a previous conviction of the accused would be highly
prejudicial, but it would have low probative value. Other possible reasons for exclusion are listed
below:
Formulation of rule
The case of Makin v Attorney General for New South Wales, decided in the Privy Council in the
1890s, is the leading case on the exceptional circumstances in which the courts will allow
similar-fact evidence:
The Makin rule has been criticised as not accurately reflecting all the situations in which courts
have allowed similar fact evidence in the past.[93][94]
See, for example, R v Straffen, where the court came close to saying the accused was guilty
because of two very similar murders he had previously committed. The court allowed evidence
that he had previously done similar deeds, even though he had done them while in a state which
excluded criminal culpability.
The better view seems to be that the Makin rule should have the following qualification added:
"In some cases evidence which proves only a disposition will be admitted if on the facts it is a
disposition highly relevant to the issue before court."
See R v Bond for a more helpful formulation than in Makin: "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."
The court in DPP v Boardman approved expressly of the Makin rule, but in fact applied a more
supple test: Similar-fact evidence is admissible where its probative value exceeds its prejudicial
effect.
For a good example of the Southern African application of these principles, see the recent case
R v Sole. There was a dam construction in Lesotho, and Sole was a highly placed official, who
oversaw contracts, etc. He started taking bribes, and was duly charged. The court said that on
some counts the evidence against him was not strong, but if regard was had to the evidence on
the other counts, it should be allowed. So the conviction followed even on the counts where the
evidence standing alone would not have been strong enough.
Note that similar fact evidence is only permissible to resolve facts in issue. What is in issue will
depend on the nature of the defence. For example, where the defence is an alibi, the presence or
absence of the accused at the particular place is crucial, and similar fact evidence could
conceivably be relevant. If the defence is self-defence, however, different considerations apply.
In the past, the courts have sometimes put cases into categories in order to decide whether
similar fact evidence is admissible. There is a danger in this method, however, as principles
cannot always be easily pigeonholed. It is nevertheless useful to note these categories.[95]
The following are some of the categories under which the exceptions were dealt with:
In the second, the similar fact evidence is already legitimately before court. The issue will be
whether the court may take it into account when considering the strength of the case on the
other count, as in DPP v Boardman.
Note that in certain jurisdictions in the United States there has been radical statutory
intervention in the common-law rule relating to certain types of crimes (especially sexual
crimes), allowing much more evidence of previous deeds.[98] A similar provision in California led
to the admission in the Michael Jackson trial of evidence of alleged prior misconduct in
circumstances where it would probably have been excluded under common-law rules.
In England the common-law rules have been repealed and replaced by recent statutory
provisions.[99] These provisions seem less radical than those in the US. Because of statutory
amendment to the English common law rules, it is likely that future English cases on the point
will be of less relevance to South African law.
In Delew v Town Council of Springs, Delew did not believe the council was right about the amount
of power he had consumed. The court excluded similar-fact evidence.
In Laubscher v National Foods, Laubscher sued the producer of animal food, since his animals,
after consuming it, had subsequently died. He wanted to lead evidence that others who had
bought food from the same source had suffered the same kinds of trouble. The court said no.
Entrapment
This issue is covered by section 252A of the CPA.
Note, however, the potential clash with section 35(5) of Constitution: Is the trial fair in such
circumstances? South Africa has chosen not to go the route of recognising a defence of
entrapment, but rather to regulate entrapment by way of legislation dealing with the admissibility
of entrapment evidence.[107]
In S v Kotze, the police received information that a diamond racket was going on in a town. They
set up a trap, using a policeman from their diamond branch. He infiltrated the group, having been
formally processed out of the police service. (This made it look as if he had been ousted.) For
the first nine months of the operation, he set himself up as part of the community; operations
started thereafter. After several more months, the police had secured many prosecutions. Kotze,
a high-profile member of the community, was caught buying diamonds from the trap, but it
turned out he was also intimately involved in the racket. On appeal to SCA, with the evidence
overwhelmingly against him, he argued that under the legislation he had been caught unfairly.
The SCA did not agree.[108]
Section 252A of the CPA, enacted in 1996, governs traps and undercover operations. Note that
the legislation does not define either of these concepts.[109]
Section 252A(1) provides that traps may be used to detect, investigate or uncover the
commission of any offence, or to prevent the commission of any offence.[104]
Section 252A(2) sets out the circumstances which will be taken into account—this is not,
however, a “brightline test”—to determine whether the evidence goes beyond a mere opportunity
to commit an offence:
whether the prior approval of the DPP
has been obtained, and whether there
has been compliance with the
guidelines or instructions laid down by
the DPP;
the nature of offence;[111]
the availability of other techniques;
whether an average person in the
position of the accused would have
been induced;[112]
the degree of persistence of the trap or
agent;
the type of inducement, since too great
and disproportionate an inducement
might constitute too great and
disproportionate a temptation;
the timing of the conduct, in particular
whether the official instigated the
offence, or became involved in an
existing offence;[113]
whether there was exploitation of
human characteristics or frailty;[114]
whether there was exploitation of a
particular vulnerability, like a mental
handicap or substance addiction;[115]
proportionality, in that the conduct must
bear some relation to the harm caused
by the crime;
any threats by the official;[116]
any prior suspicion against target;[117]
good or bad faith on part of the official
or agent; and
any other factor.
Note the illogicality of some of the criteria.
See Hammond for an example of how the listed factors are to be assessed.
See S v Reeding for consideration of the meaning of “going beyond mere opportunity of
committing offence.”
See also S v Van den Berg, but also S v Kotzè, which is less critical of the provisions.
In terms of section 252A(3), a court may exclude evidence going beyond a mere opportunity to
commit an offence if it considers
For a proper interpretation of section 252A(3), see S v Kotzè, where the prosecution conceded
that the conduct in question had gone beyond a mere furnishing of an opportunity.
Guidelines by DPP
The DPP may issue general or specific guidelines on the conduct of traps. There are two
considerations here:
There may be no prosecution, without the written authority of the DPP, of a trap who possibly
exceeds the good-faith requirement.
Onus to show admissibility
The prosecution bears onus of showing admissibility,[121] but only on a balance of
probabilities.[121] This is in contrast to the normal onus to show admissibility beyond reasonable
a doubt. The statute, in other words, has lowered the onus. This onus is of doubtful
constitutionality. In S v Kotzè, the facts of the case did not make it necessary to consider this
issue, but the court said obiter that the onus ought to be beyond reasonable doubt, and also
stressed need for compliance with section 252A(6). The accused must be given an indication of
basis of challenge. See also S v Naidoo, where the court held that the onus is beyond reasonable
doubt.
Note that there is a duty on the accused to set out the grounds of objection.
The method of determining admissibility is, generally, by way of a trial within a trial.[122]
S v Hammond;
S v Mkhonto;
S v Odugo; and
S v Makhanya.
Criticism of s 252A
There has been some criticism of section 252A, mainly on the basis that it appears to conflict
with section 35(5) of Constitution, in that it seems to apply different admissibility requirements
to those set out in that constitutional provision.[123][124][125]
Trap evidence treated with caution
It is a basic principle of the common law that the courts are to treat trap evidence with
caution.[126]
A confession to an undercover police official is not hit by the proviso to section 217 of CPA.[40]
Previously the common law did not disallow evidence in civil cases which had been secured by
entrapment. The question now is whether the court has any discretion to disallow such
evidence.
The courts have begun to develop a discretion to disallow trap and other evidence obtained in
violation of constitutional rights.[128][129][130][131]
See also
Books
Cases
Legislation
Notes
1. Jacobs v Henning.
2. ss 35 (1)(a).
3. s (3)(h).
4. R v West.
5. McWilliamss case.
6. See Mdanis case.
7. O'Shea v Van Zyl.
8. See below.
9. See R v Mayet.
10. See Topic 6.
11. Naidoos case.
12. S v Peters.
13. AA Mutual Insurance Association Ltd v
Biddulph.
14. S v Mdladla.
15. S v Maweke.
16. S v Groenewald.
17. s 112 of the CPA.
18. Principles of Evidence 477.
19. R v Becker.
20. S v Ralukukwe.
21. s 217(a).
22. S v January.
23. s 35(1)(c).
24. S v Grove-Mitchell.
25. R v Khumalo.
26. S v Yende.
27. R v Goliath.
28. See above.
29. R v Kuzwayo.
30. S v Ndika.
31. See S v Mpetha (2).
32. S v Yawa.
33. S v Mcasa.
34. See, for example, R v Carson (which
concerned an inquiry under the Insolvency
Act).
80. S v Libazi.
81. [2012] ZASCA 51.
82. 166-179.
83. Act 51 of 1992.
84. S v T.
85. S v MG.
86. See S v S.
87. s 58 and 59 of the Criminal Law (Sexual
Offences and Related Matters) Amendment
Act.
88. s 58.
89. s 59.
90. Part VI of CPEA (s 33-38), incorporated into
CPA by s 222.
91. S v Bergh.
92. R v Rose.
93. Principles of Evidence 73-74.
94. SA Law of Evidence.
95. See SA Law of Evidence 271-287.
96. R v Rorke.
97. See R v Sole.
98. See, for example, Rule 413 of US Federal
Rules of Evidence.
118. s 252A(3)(b).
119. See the factors set out in s 252A(3)(b).
120. s 252A(5)(a).
121. s 252A(6).
122. S v Matsabu.
123. See Du Toit et al: commentary on s 252A.
124. See SA Law of Evidence 643-4.
125. See article by Bronstein: ‘Unconstitutionally
obtained evidence: a study of entrapment’
in 1997 SALJ 108.
126. S v Tsochlas.
127. See Principles of Evidence 264-6.
128. Shell SA case.
129. Motor Industry Federation case.
130. Fedics Group v Matus.
131. Protea Technology v Wainer
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