LEVD 3705

LAW OF EVIDENCE

2025
NQF level 7
20 Credit module

Department: Public Law

Compiled by
Lecturer: Dr Jo-Marí Visser

Faculty of
Law

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 TABLE OF CONTENTS
Page
1. Instructor information 3
2. Module description 3
3. Graduate attributes 5
4. How learning will take place 8
5. Module schedule 9
6. List of materials 9
7. Assessment 10

WRITING UNIT: CRITICAL ASPECTS OF LEGAL WRITING

AND PERSUASIVENESS 14

UNIT 1: INTRODUCTION TO THE LAW OF EVIDENCE 55

UNIT 2: ADMISSIBILITY OF EVIDENCE 70

UNIT 3: KINDS OF EVIDENCE AND ITS PRESENTATION 74

UNIT 4: EXCLUSION OF EVIDENCE 79

UNIT 5: DETRIMENTAL STATEMENTS 83

UNIT 6: WITNESSES 86

UNIT 7: PROOF WITHOUT EVIDENCE 91

UNIT 8: WEIGHT OF EVIDENCE 93

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 1. INSTRUCTOR INFORMATION

 Who is the lecturer for LEVD 3705?

Dr Jo-Marí Visser – Department Public Law

• Contact information:
o E-mail: visserjm@[Link]
o Tel: +27 51 401 9770
o Office: Equitas Building, room 8B

• Consultation hours: Fridays 09:15 to 13:00 (office)

 Who should students contact?

o Content of module or assessments → Contact your lecturer.

o Blackboard Helpdesk: 051 401 9452 / ehelpdesk@[Link].1
o ICT Service desk: 051 401 2000 / servicedesk@[Link].
o Studying: [Link]
o Concerns regarding mental health:
• Student Counselling: 051 401 2853 or scd@[Link].
• UFS 24hour toll-free counselling helpline: 0800 00 6363. Or SMS
43302 or e-mail: helpline@[Link]. See:
[Link]

2. MODULE DESCRIPTION

The purpose of this module is to facilitate the student’s acquisition of detailed knowledge about
the most important concepts, rules and legal principles pertaining to the law of evidence as
they apply to both criminal and civil proceedings. The module aims to enable students to
practically apply knowledge of admissibility rules, exclusionary rules, types of evidence and its

1 Monday to Friday: 08:00 to 21:00; weekends and public holidays: 09:00 to 18:00.

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presentation, evaluation of evidence, detrimental statements and the influence of the
Constitution on the development of the law of evidence.
To achieve these aims and to achieve the module outcomes of the module, each
student must:
 Attend classes. Classes are presented on two platforms: face-to-face
engagement and online lectures (Blackboard Collaboration Ultra
sessions).
 Obtain study materials. All study materials for this module are contained in the
study guide, prescribed textbook, audio-visual media, case law, and
legislation.

On completion of this module, the student will broadly be able to:

 Define and analyse the concept and general nature of evidence.
 Contrast related concepts such as information vs evidence; evidentiary material vs
probative material; prima facie proof vs conclusive proof; and burden of proof vs
evidentiary burden.
 Reflect on the impact of the Constitution of the Republic of South Africa, 1996 on the
development of rules of evidence, and the implications of the spirit of the Constitution
on fair dispute adjudication.
 Critique the operation of the adversarial trial system within the South African context
and in light of local constitutional directives and decolonisation of the criminal justice
system.
 Discuss social justice issues such as wrongful convictions, and propose solutions to
this injustice with reference to the ethical roles of legal practitioners in litigation,
constitutional entitlements to fairness, and the hybridisation of adversarial and
inquisitorial systems of procedure.
 Distinguish between the concepts ‘admissibility of evidence’ vs ‘weight of evidence’.
 Critique the South African rules of admissibility and reliability determinations with
reference to the development of similar procedures in other international common law
jurisdictions.
 Define and analyse the different types of evidence, including oral evidence, affidavits,
real evidence, documentary evidence, electronic/cyber evidence, direct evidence,
circumstantial evidence, admissions, confessions and pointings out.
 Describe and analyse the standard of proof and burden of proof in civil and criminal
cases and specify the types of presumptions.
 Define and describe the rules governing the presentation of evidence, with specific
reference to examination-in-chief, cross-examination and re-examination.

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  Predict the competence and compellability of certain groups of witnesses in light of the
rules of evidence.
 Evaluate the framework of statutory and common law rules which provide the basis for
evidence to be excluded.
 Describe international legal positions related to certain types of evidence and compare
with the relevant South African position.
 Apply the concepts, principles and legal theory of the law of evidence to real-life
scenarios when solving problems in a critical and practical way in formative and
summative assessments.
 Solve problems that require critical thinking skills by presenting the solution in written
format that are required in practice, for example, a written legal opinion or heads of
argument.
 Draft written assessments in strict accordance with the principles of good legal writing,
which includes: clear and concise writing; engagement in persuasive writing
techniques; professional formatting; and appropriate referencing.

3. GRADUATE ATTRIBUTES

Graduate attributes may be broadly defined as the qualities, competencies and understandings of a
graduate which a university community agrees students should develop during their time at the
institution, both for their future professions and to contribute as ordinary citizens.
These attributes include but go beyond the disciplinary expertise or technical knowledge that
has traditionally formed the core of most university courses. They are qualities that also prepare
graduates as agents of social good and for personal development in light of an unknown future.
The eight student graduate attributes identified by the UFS that will be developed during the
course of a student’s undergraduate studies, are the following:
The 8 Graduate Attributes:
Academic competence is a graduate attribute embedded in
all assessments and refers to the knowledge, skills and attitudes that
students develop through their interaction with discipline specific
content. Critical to academic competence is lifelong learning, which
is an all-purposeful learning activity, undertaken on an ongoing
basis with the aim of improving knowledge, skills and competence.
Lifelong learners are curios, take initiative, learn independently, transfer
knowledge, and reflect on their learning.

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 Academic competence for the LLB learner means that the learner has a comprehensive
and sound knowledge and understanding of the South African Constitution and basic areas or fields of
law. This relates to the body of South African law and the South African legal system, its values and
historical background. The learner can demonstrate an integrated understanding of legal principles,
concepts, theories and values, also in relation to societal issues. The graduate has knowledge and
understanding of:
(a) The dynamic nature of law and its relationship with relevant contexts such as political,
economic, commercial, social and cultural contexts.
(b) A discipline other than law and law’s relationship to other disciplines; and
(c) Select areas of the law.
Critical thinking is a habit of mind characterized by the comprehensive exploration of issues,
ideas, artefacts, and events before accepting or formulating an opinion or conclusion.
Critical thinking for the LLB learner means that the learner can demonstrate the ability to
research, analyse and evaluate information from a legal perspective. The learner is able to:
(a) Recognise and reflect on the role, place and limitations of law in South African society
and beyond.
(b) Analyse a text and/or scenario to find the key issues, i.e., distinguish between relevant
and irrelevant information and distinguish between legal and non-legal issues.
(c) Identify and address the issues presented in a text or scenario; and
(d) Make judgments on the merits of particular arguments and make and present reasoned
choices between alternative solutions.
Problem solving is the process of designing, evaluating and implementing a strategy to answer
an open-ended question or achieve a desired goal.
Problem solving for the LLB learner means that the learner is able to:
(a) Find, select, organise, use, analyse, synthesise and evaluate a variety of relevant
information sources.
(b) Determine the relative authority of relevant information sources.
(c) Present and make a reasoned choice between alternative solutions.
(d) Use techniques of legal reasoning, methodology and argumentation to reach a plausible
conclusion; and
(e) Demonstrate academic integrity in research.
Communication comprises of oral as well as written communication.
Oral communication is a prepared, purposeful presentation designed to increase knowledge,
to foster understanding, оr to promote change in the listeners' attitudes, values, beliefs or behaviours.
Written communication is the development and expression of ideas in writing. Written
communication involves learning to work in many genres and styles. It can involve working with many
different writing technologies, and mixing texts, data, and images. Written communication abilities
develop through iterative experiences across the curriculum.
Communication as an attribute of the LLB learner means that the learner is proficient in
reading, writing, comprehension and speaking and is therefore able to:

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 (a) Communicate effectively by choosing appropriate means of communication for a variety
of contexts.
(b) Demonstrate effective oral, written, listening and non-verbal communication skills.
(c) Apply communication skills to relevant situations and genres; and
(d) Engage with diverse audiences.
Ethical reasoning is reasoning about right and wrong human conduct. It requires students to
be able to assess their own ethical values and the social context of problems, recognize ethical issues
in a variety of settings, think about how different ethical perspectives might be applied to ethical
dilemmas and consider the ramifications of alternative actions. Students’ ethical self-identity evolves as
they practice ethical decision-making skills and learn how to describe and analyse positions on ethical
issues.
Ethical reasoning as an attribute of the LLB learner means that the learner can solve
complex and diverse legal problems creatively, critically, ethically and innovatively.
The LLB learner has knowledge of relevant ethical considerations in law and is able to conduct
her/himself ethically and with integrity in her/his relations within the university and beyond, with clients,
the courts, other lawyers and members of the public.
Community engagement is continuous negotiated collaborations and partnerships between
the UFS and/or its members and the interest groups that it interacts with, aimed at building and
exchanging the knowledge, skills, expertise and resources required to develop and sustain society.
Community engagement as an attribute of the LLB learner means that the learner has
skills and knowledge to understand the responsibilities of the legal professional in service to the
community. In doing so, the learner is able to recognize, reflect and apply social justice imperatives in
acknowledging the capacity, agency and accountability of the legal professional in shaping and
transforming the legal system and promote social justice.
Entrepreneurial mindset is a set of attitudes, skills and behaviours that can be applied in all
spheres of life. This mindset enables citizens to nurture their personal development, to actively
contribute to social development, to enter the job market as employee or as self-employed, and to start-
up or scale-up ventures which may have a cultural, social or commercial motive.
Entrepreneurial mindset as an attribute of the LLB learner means that the learner is able
to:
(a) Function effectively in independent and collaborative settings.
(b) Recognise opportunities, be creative and innovative, be future-orientated, comfortable
with risk-taking, take initiative, be self-reliant, flexible and adaptable.

Assessment of graduate attributes

Academic competence will form the foundation of all assessments throughout the LLB programme in
terms of which one or more of the other attributes will also be assessed to establish the attainment
thereof. It is a priority of the Faculty of Law of the UFS to develop all eight of the identified student
graduate attributes in all the modules presented throughout the course. However, the assessment to

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establish the attainment thereof might only be performed in specific identified modules on different
levels, depending on the moment within which it falls during the academic programme.
These assessments could form part of a student’s formative or summative assessments and
contribute towards his/her final mark for a particular module but will be designed to provide proof of the
attainment of one or more specified graduate attribute at a particular level. Learners will be informed of
the nature and purpose of these assessments and will be encouraged to compile portfolios (or
ePortfolios) in order for them to be able to:
a) Reflect on their development of graduate attributes across the LLB programme.
b) Provide evidence for how and where graduate attributes were developed across the
curriculum; and
c) Improve their skills and marketability for potential employers, funders and work network.

4. HOW LEARNING WILL TAKE PLACE

 What is expected of you in this learning experience?

The law of evidence requires you to build a foundation of a large volume of theory and
legal rules and principles. While this module is fundamentally a problem-solving
discipline, you cannot expect to solve problems if you do not know and understand the
rules of evidence.
Part of building a law of evidence foundation includes:
 Reading study material before attending class.
 Attending classes. This includes diligent note-taking, participation
in discussion and clarification of work not understood.
 Memorising the relevant work on a weekly basis.

 How will learning take place?

While the theory and principles of the law of evidence will be presented and discussed
in a blend of face-to-face and online classes, the majority of the learning for this module
must comprise memorisation of the prescribed work.
All lectures will also be recorded, and these recordings uploaded on to
Blackboard. It is your responsibility to avail yourself of all lectures and failure to do so
will not serve as excuse for missing important work and information.

 How often will contact sessions take place?

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 Contact sessions will take place three times per week for the duration of the year.
Wednesdays → 14:10 ONLINE
Thursdays → 13:10 ONLINE (as indicated)
Fridays → 08:10 in STB 3

5. MODULE SCHEDULE

The module schedule will be uploaded on Blackboard under MODULE CONTENT.

6. LIST OF MATERIALS

The prescribed textbook in this module is:

PJ SCHWIKKARD and TB MOSAKA

2023. Principles of evidence. 5th ed. Juta.
Hard copy book - ISBN: 9781485140689
EBook (available from UFS Library) – ISBN: 9781485150497

This book is essential for the successful completion of this module.

Students may also access the textbook electronically via the UFS Library website.
In addition to this textbook, the lecturer also reserves the right to provide
supplementary material to aid students in preparing for assessments. You are required to visit
Blackboard as often as possible, but at least once a week. This online platform will be used to
upload and update the following:
 Short videos explaining aspects such as: using UFS research databases;
referencing style; formatting rules; etc.
 Any additional information not included in the study guide or textbook.
 References to case law.
 Lectures in format as presented during contact or online sessions.
 General announcements, responses to queries regarding lectures, dates, and other
information.

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Additional, non-compulsory study material
Diligent students who wish to make a deeper study than is required for assessment purposes
may wish to consult the following material:

Internet databases:
E du Toit, FJ de Jager, A Paizes, A St Quintin Skeen and S Van der Merwe
2014. Du Toit’s Commentary on the Criminal Procedure Act. Jutastat: ePublications.
(Available online on JUTASTAT).

Textbooks:
 Zeffertt, DT and Paizes AP
2017. The South African law of evidence. Durban: LexisNexis. (Available online
in KOVSIECAT)
 C Joubert
2018. Applied Law for Police Officials. 5th Ed. Claremont: Juta Law.

7. ASSESSMENT OF LEARNING NB!

Assessment breakdown

In 2025, LEVD 3705 will be assessed on a formative and summative basis, by way of
examination.
Your final mark will therefore be calculated as follows:

ASSESSMENT DETAILS WEIGHT DATE

Predicate /
module mark Format: Higher level, application
questions
MAIN TEST 1 Mark: 40 marks 40% TBA
[In first semester]
Duration: 1 Hour (on campus)
Scope: Units 1 to 4

Format: Higher level, application

questions
MAIN TEST 2 Mark: 40 marks 40% TBA
[In second semester]
Duration: 1 Hour (on campus)
Scope: Units 4 to 8

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 Format: Legal opinion
SMALLER Scope: Writing Unit (study guide)
ASSIGNMENT Submission: Blackboard 10% TBA
[In first semester] Marks: 20
Assessment: Peer review

Format: Heads of argument

SMALLER Scope: Writing Unit (study guide)
ASSIGNMENT Submission: Blackboard 10% TBA
[In second semester] Marks: 20
Assessment: Peer review

Examination
Time: End of year
Predicate (50%) +
WRITTEN Scope: All work covered
Examination mark
EXAMINATION Marks: 80
(50%) = Final mark
[End of the year] Duration: 3 hours (on campus)

Please note that the detailed assessment calendar will be available early in the semester and will be
published on Blackboard. Ensure that you avail yourself of this information.

Assessment timetable
Please consult the assessment timetable of the Faculty of Law for the dates, method and time
of assessments. The assessment timetable will be available on Blackboard at the beginning
of the semester.
Please refer to the LLB Assessment Policy (for students) that is available on
Blackboard and ensure that you are familiar with the contents thereof.

Calculation of the final mark

Since this module is assessed by way of formative and summative assessment in 2025, the
following rules apply2 in accordance with the UFS General Academic Rules:
 To gain admission to the examination in this module:
o A module mark (predicate) of at least 40% is required.
o You must have participated in all scheduled assessments as set out in this
module guide.

 To pass the module:

o A final mark of at least 50% must be obtained.

2 See UFS General Academic Rules A18.2 and A18.3.

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o The final mark is calculated on the basis of a module mark/examination ratio of
50/50. This means that if you obtained a module mark of 40%, you must obtain
an examination mark of at least 60% to pass the module.

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 Lawyers in practice are generally judged by the final product they
produce: the written, negotiated text. Clearly, in my firm, the first thing
new lawyers will be judged upon is their writing. The fastest way to get
ahead as a new lawyer is to be an able writer. The fastest way to fail is to
be a poor writer.

Bryn Vaaler,
Compositional Practice: A Comment on "A Liberal Education in Law,"
1 [Link] 148, 149 (2002).

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 WRITING UNIT
CRITICAL ASPECTS OF LEGAL WRITING AND PERSUASIVENESS

What can I expect from this unit?

Legal writing is a type of technical writing used by legal practitioners, presiding officers,
and legislators to express legal analysis, rights, duties, opinions and advice. Some
documents must be drafted in a specific format, like legal opinions and heads of
argument, but regardless of the format or type of writing, the content of legal writing
must always be in plain, clear language.
As a legal practitioner, you will not be able to argue and win cases or assist
clients without the ability to find and optimally apply information. We practice law in a
highly technological era in which the accessing, storing and organising of data have
changed and will keep on changing. In this unit we will talk about choosing appropriate
sources in drafting documents.
It takes many skills to be a good legal practitioner. Perhaps the most essential
of all required skills is the art of using words. Words are to the lawyer what the scalpel
is to the surgeon. To be a good lawyer, you must be a thorough researcher and a clear,
precise writer. Most legal practitioners, especially professional assistants, candidate
attorneys and judicial clerks, spend more time on researching and writing than any
other professional task. As young legal practitioner, you will be judged on your ability
to express yourself clearly and persuasively.
It is for these reasons that a unit on writing has been included in this module
guide. While the content of this unit has been greatly condensed, the value of this
information cannot be overstated. Make sure you master the techniques described
here as best you can, and keep working at it, not only in this module and others, but
also during the course of your career as legal practitioner.
The graduate attributes specifically addressed in assessments on this unit are:
written communication, academic competence, critical thinking, ethical reasoning and
entrepreneurial mindset.

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 10.2Learning outcomes

On completion of this unit, you should be able to do the following:

 Draft written assessments in strict accordance with the principles of good legal
writing, which includes: engagement in persuasive writing techniques,
professional formatting and appropriate referencing.
 Support written arguments, assignments and legal documents with appropriate
and accurate source citations in the correct format.
 Draft legal opinions and heads of argument in clear, concise and engaging
language.
 Draft e-mails with professionalism and in accordance with the rules of good legal
writing.
 Acquire and evaluate source material for use in high quality academic legal
research and writing.

What must I study in this unit?

To conduct a proper study of this unit, please do the following:

 Study the material in this study guide and apply it to all your writing assessments
and legal documents in the future.

 The work in this module guide is arranged according to the following categories:
 ACQUIRING HIGH LEVEL INFORMATION
 GOOD LEGAL WRITING – What is good legal writing and how can
you achieve it?
 DIFFERENT TYPES OF LEGAL WRITING
 SENDING E-MAILS AS A LAWYER
 THE IMPORTANCE OF FORMATTING AND REFERENCING
 LEGAL REASONING AND DEVELOPING STRONG
ARGUMENTS

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  LEGAL REASONING AND WRITING IN THE AGE OF THE
FOURTH INDUSTRIAL REVOLUTION

Study material

ACQUIRING HIGH LEVEL INFORMATION

Sources that can assist you in seeking information on a specific topic are kept in the
library and on the internet. There are various kinds of sources available and each of
these fulfils a specific purpose. The type of information you need will change
depending on the question you are trying to answer.3

You have to be able to identify the types of sources that will provide you with the
information you need, determine where you will find these sources, and estimate
how much time you will need to do your research. The main types of reference
works (or sources) that you will use in legal research are:
GENERAL INFORMATION OBTAINED WHERE TO FIND SOURCE
SOURCE TYPE FROM SOURCE

 Discipline specific
information, like the  Library (Search:
textbook on family law. KOVSIECAT)
 When in need of  Academic Search
BOOKS
definitions, theories, basic Ultimate, eBooks (UFS
knowledge, etc. electronic resources)
 Great for foundational  WorldCat
information (to ‘kick off’
your research).

3 For example, if you want to answer a question about police statistics on South Africa, you will not
be looking for an academic article, but a credible, high quality statistical resource.

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  Should never be the only
source to rely on in
conducting legal research.

ACADEMIC  Credible, academic, up to

ARTICLES date and high quality
(Accredited research on specific topics.  UFS online databases
publications /  Very discipline specific.
journals)  Peer reviewed research.

 Contains much academic &

non-academic opinion.
 Requires thorough
INTERNET evaluation of quality and  E.g. Google Scholar
reliability.
 Blogs, wikis, -pedia: NOT
good sources.

 Not ideal for legal research.

May possible support
‘public opinion’.  Internet
NEWSPAPERS
 Requires thorough  UFS database
evaluation of quality and
reliability.

LAW SPECIFIC INFORMATION OBTAINED

WHERE TO FIND SOURCE
SOURCE TYPE FROM SOURCE

LEGISLATION  Legal position on specific  Juta

issues.  Butterworths LexisNexis

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  Critical in any legal  Government Gazettes
research.  Sabinet
 Remember the motto:  Not Google! When
judges and magistrates are obtaining Acts from the
persuaded only by internet generally, you
legislation and case law. have no guarantee that
you are using the most
updated version of the
particular Act.

 Courts’ application and/or

creation of the law.
 Critical in any legal
research.
 Juta
 Examples of specialised
 Butterworths LexisNexis
case reports:
 SAFLII
• South African Law Reports
CASE LAW  Sabinet
• South African Labour Law
Reports  Library
• Butterworths Constitutional Law
Reports  Foreign cases: Westlaw
• South African Criminal Law International
Reports
• Juta’s Commercial Law Digest
• South African Tax Cases
Reports

 Academic Search
ACADEMIC
 Credible, academic, up to Ultimate
ARTICLES ON
date and high quality  HeinOnline
LAW
research on specific topics.  Juta
(Accredited
 Vital in conducting legal  Butterworths LexisNexis
publications /
research.  Library
law journals)
 Very discipline specific.  Google Scholar

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 HOW DO WE FIND CASES?
Use: SAFLII / JUTA / LEXISNEXIS database

1. SAFLII – South African Legal Information Institute

The Southern African Legal Information Institute (SAFLII) is an online repository of
legal information from South Africa that aims to promote the rule of law and judicial
accountability by publishing legal material for open access in line with the objectives
of the global Free Access to Law Movement. SAFLII also hosts legal materials from
other countries in the region.

You can access court cases, some legal journals and other legal material at:
[Link] Since this is an open access website, you need not have
passwords to access the information.

Use this search link to find cases from a specific court, or cases
with a specific subject. Alternatively, you can visit the links to
every court and look for cases from only a specific court.

2. Juta Online Products

This website by Juta Law provides databases of all the specialised court judgments,
all Acts applicable in the RSA, as well as complete commentaries on the Criminal
Procedure Act, and the Children’s Act.

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You can access this helpful internet database by logging in to the UFS Library
Services.4 You will need your UFS password to access this website.

When using Juta Online, you can play around with keywords in the search window to
find academic articles court cases and legislation to support your research. Many law
firms and governmental organisations also subscribe to this database, so you will do
well to practice using this site.

On the left of the screen, you will find vital

resources:

1) Children’s Act WITH commentary

2) Criminal Procedure Act WITH
commentary
Use this 3) Other legislation
search 4) Case law
window to
find cases
on a
specific
topic or
articles on a
specific
topic. Updated legislation

3. Butterworths LexisNexis
South African Law Reports, legislation and other legal information is also available on
this website. It can be accessed from the UFS website, library databases and works
more or less in a similar manner than Juta. Many academics and legal practitioners
prefer using LexisNexis. It is up to you to find what is most useful and user-friendly.

4. Other useful databases

4 UFS website – Library – Electronic Resources – Databases.

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The UFS A to Z list of databases contain other really useful databases specifically for
use in legal research. SABINET, HeinOnline and Westlaw International are just some
examples.

HOW DO I GET TO THESE UFS DATABASES?

STEP 1: Open the UFS webpage on your computer, smart phone or tablet.

STEP 2: Click on the LIBRARY link on the home page.

STEP 3: From the dropdown menu under RESOURCES, click on ‘Catalogue

(Kovsiecat)’ if you want to search books, or choose ‘Electronic Resources’ if you
want to browse databases and other electronic sources.

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STEP 4: Click on the ‘A-Z DATABASES’ link at the top to go to the alphabetic list
of UFS databases available to you.

STEP 5: From the list of databases you can choose your database of choice, for
example, Academic Search Ultimate.

Or perhaps you want to scroll down to find LexisNexis, Juta, HeinOnline,

Government Gazettes or Westlaw International if you want to find an
international source.

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 PLEASE SEE THE SHORT VIDEO SERIES ON BLACKBOARD
WHERE ACCESSING THESE DATABASES ARE DEMONSTRATED

HOW DO WE GO FROM WEAK RESEARCH TO OUTSTANDING RESEARCH?

The inefficient use of the internet in research is one of the main reasons university
students fail research assignments. While the internet may have been helpful in
completing school projects, those websites are no longer sufficient in conducting
research at higher education level, and certainly not in legal practice.

Some hints for greater depth and quality in research:

 Judges are persuaded by legislation and case law. Make therefore sure that
you use these sources first in your research. After a thorough investigation of the
relevant Acts and court cases you may use academic texts and articles to
strengthen arguments.

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 Do not use information from a single source (for instance, textbook, article or
court case) repeatedly without integrating additional sources. This is referred
to as ‘research depth.’
For example, if you want to provide a definition of a legal concept that is not clearly
defined in legislation, you may want to provide several definitions from case law
and/or academics to provide a deep understanding of the concept or variation in
defining the concept.
 Critically evaluate the information. At higher education level and especially at
the level legal practitioners are expected to conduct research, it is no longer
sufficient to simply recite authors’ opinions and judges’ decisions. Think critically
about the literature and do not hesitate to integrate your critical viewpoint.
 Copying and pasting data from the internet, especially without
acknowledging the source, is very poor research practice.
 Do not include an over-abundance of quotes in your research.
 NEVER use Wikipedia or any source ending in –pedia as source material in
research or legal writing.
 If there is legislation, case law or academic texts that describes a principle/position,
do not use an internet source as reference.
 Use Google with circumspection. Evaluate your sources critically.

EVALUATION OF SOURCES: HOW DO I KNOW IF A SOURCE IS CREDIBLE?

Information on law and legal opinions are easily and widely available online. Anyone
can obtain legal information, but legal practitioners know that arguments not supported
by the most recent, up to date authority will not stand. Similarly, where binding authority
does not exist, it is vital to use credible, high quality source material to support
arguments.
This is why it is crucial for legal practitioners to be able to look at a possible
source and evaluate the quality and desirability of using that source.
Several criteria can be used to evaluate sources that you have obtained.

Authority of the author

• Who is the author of the book, article or website?

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• Is the author a well-known and well-regarded authority on the subject?
• How reputable is the publisher?
• Does the author list credentials and relevant addresses?
• Take a look at the URL. If it has an ac or edu extension, it is usually an academic
institution that is responsible for the information. Extensions with co or com usually
denotes a commercial institution, while org refers to an organisation and gov to a
government department.

Your research will be much more meaningful, for example, if you included the inputs
from judges, academics or legal practitioners, rather than that of anonymous or
unknown bloggers.

Accuracy and verifiability

• How reliable and free from error is the information?
• Are the author’s methods for obtaining data or conducting research
clearly stated?
• Does the author demonstrate knowledge of scientific theories and techniques?
• Does the material include a bibliography or reading list?

Where articles have no references, one must use the source with circumspection.
Credible research is always full of source citations.

Objectivity
• Is the material presented as fact or opinion?
• Is the information presented with a minimum of bias?
• To what extent is the information trying to sway the opinion of the
audience?
• Is the material sufficiently scholarly, yet understandable?

Beware of online authors who are intent on propagating a highly subjective, untested
viewpoint.

25
Currency
• When was the material published?
• Does the material present the latest thinking on the topic?
• Is currency an important factor for the specific material?
• Are there more recent editions (with respect to textbooks)?

It is vital that the most current legislation and case law be used in legal research. Try
to always use academic articles within ten years of conducting your research. Of
course, this is not viable when conducting legal historical research, and some topics
demand the use of older sources, but in conducting most research, you should try to
use the most recent sources available.

Content and purpose

• Is the purpose of the material apparent? For example, does the
material aim to inform, explain, persuade or merely to entertain or divide?
• What topics are included?
• Are the topics that are included explored in appropriate depth?

Law firms often creation impressive websites and provide short, informative pieces of
research on specific topics in law. These writings are aimed at informing potential
clients and the public at large. They are not meant to serve as research sources at
university of in litigation. Rather use the credible sources cited in these writings.

Website layout
• Is the document or site well-constructed and is the information well-
presented so that it is easy to use?
• Does the page have a dynamic style and are different media
functionally and practically integrated?
• Is the site easily accessible and stable?
• Does the site's links work?
• Does the web page have a search facility, and if so, how sophisticated is it?

26
 GOOD LEGAL WRITING

The purpose of legal writing

The objective of legal writing is not to entertain, to be fun or interesting. The objective
of legal writing is to fulfil the writer’s goal – to inform or persuade the reader. It must
therefore be informative or persuasive. When the purpose of legal writing is, for
example, to inform the reader (for instance, by way of memorandum or legal opinion)
and it does not inform the reader properly, it is simply not good writing.5
When drafting documents in law (and in this module) it is imperative that you
focus your writing on clear, concise expression, and not ‘sounding’ a certain way.

What is good legal writing?

Before engaging in legal writing, we must always be clear about two things before
starting to write:
1) Purpose – What are you trying to achieve with your writing? Do you want to
persuade or merely inform?

2) Audience – Who are you talking to? Is your reader a legal practitioner, judge,
or client? What will your reader understand?

The main features of good legal writing are:6

 Clear – the writer ‘says’ exactly what is meant; there are no two ways of
interpreting the writer’s message.
 Concise – the writer gets to the point without using unnecessary words or
‘padding’.7
 Engaging – the writer engages the attention of the reader throughout.

5 Osbeck 2011: 10-11.

6 Osbeck 2011: 16, 28, 34.
7 ‘Padding’ is the term used to describe the excessive use of words or phrases in drafting a
sentence.

27
Clear writing
We should not write so that it is possible for the reader to understand us, but so that it
is impossible for him to misunderstand us.8 This is true whether our readers are highly
educated members of the legal profession, other professionals or clients with limited
schooling. Our writing must adjust to the reader.
To write clearly, we must think clearly. Make sure you know what you want to
say, then say that, and only that. Always keep your writing simple.

To produce clear writing, the following rules should be strictly adhered to:
 Take care of the presentation and formatting of your writing.
 Good grammar and punctuation.
 Always use the simplest, shortest meaningful word.
▪ Use concrete rather than abstract words (‘assault’ vs ‘slapped’).
▪ Avoid tautology (saying the same thing twice: ‘repeat again’).
▪ Avoid over-emphasis (‘very scared’ vs ‘petrified’).
▪ Avoid negative structures (‘not impossible’ vs ‘possible’).
▪ Use gender neutral language (do not use ‘he/she’).
 Choose active over passive voice.
 Keep sentence structure simple.
 Write in paragraphs – one point per paragraph.
 Avoid legalese or archaic language.
 At all times, avoid ‘padding’ (unnecessary use of words/phrases to ‘pad’ work).

PLEASE SEE THE SHORT VIDEO SERIES ON BLACKBOARD FOR A

DEMONSTRATION OF CORRECT FORMATTING AND REFERENCING
(THE GUIDE IS ALSO AT THE BACK OF THIS DOCUMENT).

Concise writing
Vigorous legal writing is concise. It is not ‘padded’ with fancy words and expressions.
Sentences are not burdened with unnecessary words, but it is also not merely ‘brief’. It

8 Marcus Fabius Quintilianus, Latin writer and teacher who, later in his life, combined his teachings
with advocacy in the law courts.

28
is simply efficient. It does not mean that the writing is devoid of detail. It means that the
detail is not superfluously described.9

Read the following article by Supreme Court Judge Carole Lewis as published in The
Advocate10 in 2009. (You can also click here to visit the article online.)

9 Osbeck 2011: 28.

10 Lewis 2009: 22-24.

29
30
Engaging writing

No matter how sounds your reasoning, if it is presented in a dull and turgid setting, your hearers
– or your readers – will turn aside. They will not stop to listen. They will flick over the pages. But
if it is presented in a lively and attractive setting, they will sit up and take notice. They will listen
as if spellbound. They will read you with engrossment.
Lord Denning 198111

Your document may be clear and concise, simplified and to the point, but that still does
not mean that the reader will care to finish reading your work. It does not guarantee
that you will have any persuasive effect at all. Competent legal writing is not quite the
same thing as good legal writing. Good legal writing is also engaging.12
Use the following strategies to ensure your writing is engaging:
 Variety. Use variety in word choice, sentence length, etc. to keep your
reader’s attention.
 Tone. Write in your authentic voice but ensure professionalism at all
times.

11 Osbeck 2011: 34.

12 Osbeck 2011: 34.

31
 DIFFERENT TYPES OF LEGAL WRITING

The different categories of legal writing

Generally, four categories of legal writing can be identified:

1) Informative legal writing

2) Persuasive legal writing
3) Functional legal writing
4) Academic writing

Informative legal writing

Informative writing (also known as predictive writing) primarily aims to inform the
reader. This type of writing forms the backbone of legal counselling. Examples of this
type of legal writing include:
o Letters to clients (including e-mails to clients, but excluding letters to possible
defendants)
o Memoranda (intra-office legal opinions)
o Legal opinions

When performing predictive legal writing, the writer must consider legal authority and
predict the outcome of a case if it should proceed to litigation.
It is an objective investigation into law. It does not choose a side but analyses
the position on both sides and then renders an opinion on which is most likely to
succeed.
Predictive writing generally follows a more comprehensive structure and
constitutes analyses of arguments rather than summaries of argumentative points.
The audience for predictive legal writing is generally attorneys 13 (where
advocates drafted legal opinions), colleagues or senior colleagues (where attorneys or

13 It should be borne in mind that the Legal Practice Act 28 of 2014 will remove the distinction
between attorneys and advocates in the future.

32
candidate attorneys drafted office memoranda) and clients (where legal practitioners
drafted letters or e-mails to clients).
Traditionally, legal opinions may be drafted by advocates on briefed facts and
directed to attorneys. The briefing attorney will then study the opinion and advise his
client in accordance with the advocate’s written legal opinion.
Memoranda are more formal than letters to clients but less so than legal
opinions. The purpose of this document is as follows:
- Advising corporate or institutional clients
- Advocates dealing with matters of procedure
- Reporting of junior attorneys to seniors

Letters to clients are informal, yet carefully drafted documents aimed at informing the
lay client. These documents are set in much less formal tone and format than legal
opinions to accommodate the lay reader. It includes e-mails to clients or colleagues.

Legal opinions
Legal opinions must be drafted in the following structure:
SUBJECT-MATTER CONTENT

Opinions are required on aspects of facts or the law. The opening

paragraph in a legal opinion should be drafted with care to explain
to the reader, who may not be familiar with the facts of the case,
what the opinion is about.

The introduction will also serve as a reminder of the question to

be answered in the final conclusion. It does not recite the facts but
Introduction only introduces the question to be answered.

An opening sentence might be constructed as follows:

- ‘I have been asked to advise on the quantum of the consultant’s

damages in an MVA action.’
- ‘I have been asked to advise on the consultant’s prospects of
success on appeal against the judgment of Mr Justice Wilson,
delivered on the 1st of April, 2007.’

33
 Since the question to be answered is not raised in a vacuum but
in relation to a particular set of facts and circumstances, it is
necessary to describe those facts and circumstances.

This is not merely a recital of facts. It comprises an analysis of the

facts and available evidence.

Factual background
Some question you will have to keep in mind when drafting this
discussion
part of a legal opinion:
- What are the basic facts?
- What is the significance of each fact?
- Can the crucial facts be proved?
- Does the other side have facts you do not have?
- Are the facts sufficiently reliable?

Seek and find the applicable law on all the issues that arise from
the factual analysis and apply the law objectively to the facts.
Legal analysis
This must be approached objectively, considering all possible
outcomes and options flowing from the application of the law.

Formulate conclusions instead of merely summarising everything

that has been drafted.

Remember: you are expected to provide an opinion. The client

Conclusion will not know which options are advantageous. However, your
opinion need not be firm. If your opinion is, for example, that the
outcome of an appeal cannot be predicted, then that is
acceptable.

Some important notes on drafting legal opinions:

o Provide a suitable heading for your legal opinion. This should be concise yet
clear, and be indicative of the content.

34
 o Use headings to indicate to the reader what content is to follow.
o Number every paragraph.
o Make sure you investigate all the best possible options for your client and be
clear about your advice.

Persuasive legal writing

In persuasive writing the writer aims to persuade the reader of his client’s case. This
type of writing forms the backbone of legal advocacy. Examples of persuasive legal
writing can be found in:
o Letter of demand – letters to possible defendants.
o Heads of argument – the document which contains the argument for your client.
It is the summary of main points of counsel’s argument and the authorities you
relied on in arguing for your client.

Persuasive writing is a subjective approach to legal writing. Here, the writer argues for
a specific cause (that of his client) and will not consider the merits of the opposing side,
other than to discredit it.
In drafting persuasive legal writing documents, the writer will focus on
persuasive writing techniques in order to influence the reader (the defendant or the
presiding judge) to decide in favour of your client.
The audience to persuasive legal writing is most frequently presiding judges and
defendants and/or their legal representatives.

Techniques of persuasive writing14

When attempting to convince an audience of your case, it is imperative that you create
a context in which your client’s case seems the most probable one. As you will see,
context is everything.
The following techniques are very important but not easy to apply. It will require
constant and concerted effort to make these techniques part of your repertoire when
drafting successful and influential persuasive documents.

 Think carefully about the story you want to tell

14 This section was taken from: Oates & Enquist 2010: 261-299.

35
 - Choose your facts carefully. All legally significant facts must be
included but think about the background facts you want to include to
give context to your client’s perspective.
- Presentation is everything.
- Think about where you start your factual descriptions. At what point
do you begin to tell a story to create context for your client’s case?
- While remaining professional and maintaining a façade of objectivity,
de-emphasise those facts that are harmful to your client’s case and
emphasise the facts that are beneficial.

 Create favourable context

- Start the ‘story’ where it favours your client.
- Emphasise favourable facts, de-emphasise harmful facts. NB!
o Airtime and detail.
o Position of emphasis – beginning and end.
o Sentence length.
o Active voice to emphasise, passive voice to de-emphasise
action.
o Dependent and main clauses.
o Word choice – this is very important.

 Choose positive instead of negative assertions

- ‘My client should not be convicted’ vs ‘my client should be acquitted.’

 Think about how you are referring to the parties to proceedings

Heads of argument
Your heads of argument is the document containing the main points of your final
arguments on a case. Well-drafted heads of argument assist the presiding officer a
great deal in reaching a decision in litigation, even if not every submission in the
document is accepted.
The structure for heads of argument differs from case to case, but the
suggestions here would ensure that your heads comply with the general principles

36
according to the Supreme Court of Appeal (SCA) Rule 10(3) and can be used
generally.

The form and structure of heads of argument

The form and structure of the heads of argument depend on the case. The principles
for heads of argument provided by SCA Rule 10(3) could be applied to appeal in the
High Court, appeal to a Full Bench, motions, and trials. It is compulsory, however, that
these rules be followed when drafting heads of argument for an appeal case in the
SCA.
RULES REGULATING THE CONDUCT OF THE PROCEEDINGS OF THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA

10. Heads of Argument

Filing — Unless the President otherwise directs —

(a) the appellant shall lodge with the registrar six copies of his or her main heads of argument
within six weeks from the lodging of the record; and

(b) the respondent shall lodge with the registrar six copies of his or her main heads of argument
within one month from the receipt of the appellant’s heads of argument.

(2) Urgency — When the lodging of an application or record of appeal with the registrar does
not allow the heads of argument to be lodged and served in terms of subrule (1), the applicant
or appellant, as the case may be, shall file the same without delay and the respondent shall
thereafter file the argument in answer as soon as possible.

(2A) Failure to file —

If the appellant fails to lodge heads of argument within the prescribed period or within the
extended period, the appeal shall lapse.

(b) If, after the appellant has filed heads of argument, the respondent fails to lodge heads of
argument within the prescribed period or within the extended period, the appeal shall be
enrolled for hearing and the Court may at the hearing in the absence of the defaulting party,
and after hearing argument, make such order as it deems fit.

37
(3) Format —
(a) (i) The heads of argument shall be clear, succinct and without unnecessary
elaboration.
(ii) Each point should be numbered and be stated as concisely as the nature of the
case allows and must be followed by a reference to the record or an authority in
support of the point.

(b) (i) The heads of argument shall not contain lengthy quotations from the record or
authorities.
(ii) The heads of argument must state, in respect of each authority cited, the proposition
of law that the authority states, and if more than one authority is cited for a proposition
the reason for citing the additional authorities must be stated.

(c) References to authorities and the record shall not be general but to specific pages and
paragraphs.

(d) (i) The heads of argument of the appellant shall be accompanied by a chronology table,
duly cross-referenced, without argument.
(ii) If the respondent disputes the correctness of the chronology table in a material respect,
the respondent’s heads of argument shall be accompanied by the respondent’s version
of the chronology table.

(e) (i) The heads of argument shall be accompanied by a list of the authorities to be quoted
in support of the argument and shall indicate with an asterisk the authorities to
which particular reference will be made during the course of argument.
(ii) If any such authority is not readily available, copies of the text relied upon shall
accompany the heads of argument in a separate volume.
(iii) The heads of argument shall define the form of order sought from the Court.

(f) A photocopy, or a printout from an electronic database, of those provisions of any

statute, regulation, rule, ordinance or by-law directly at issue, shall accompany the
heads of argument in a separate volume.

(g) The heads of argument of any appellant or respondent shall not exceed 40 pages, unless
a judge, on request, otherwise orders.

(4) Form —

38
(a) The heads of argument shall be clearly typed on stout A4 standard paper in double-spacing
in black record ink, on one side of the paper only.

(b) All annexures to the heads of argument shall be bound separately.

(c) Heads of argument and annexures thereto shall be bound with plastic comb binders and
card covers, white for the appellant and blue for the respondent.

(5) Cross-appeals —
Cross-appeals do not require a separate set of heads of argument. In all cases where there is
an appeal and a cross-appeal, the appellant’s main heads of argument under rule 10 (1) (b)
shall follow the same pattern.

[R. 10 substituted by r. 10 of GNR.979 of 19 November 2010.]

Read the following article (click here to visit the online copy of the article) by Judge
LTC Harms, Deputy President of the SCA:15

15 See: Harms 2009: 20-22.

39
40
41
Important notes on drafting heads of argument:
✓ It should be clear, succinct and without unnecessary elaboration.
✓ Points supporting the argument must be in logical order.
✓ Avoid lengthy explanations, which you will give during oral arguments in court.
✓ Do not over-use quotations.
✓ References to authority must contain specific page numbers or paragraphs. This
includes court cases. Footnote references to court cases without reference to
specific page numbers or paragraphs is unacceptable.
✓ The HOA must be accompanied with a bibliography/reading list.
✓ This bibliography must be in alphabetic order.
✓ Cases and legislation must be kept separate on this list.
✓ Number each and every paragraph.
✓ HOA have specific headings. Make sure you get it right.

[An example of a heads of argument will be provided in lectures and on Blackboard.]

Functional legal writing

42
This category of writing includes drafting legal document such as contracts, wills, etc.
These documents will be dealt with in the relevant modules (e.g. contracts in the law
of contracts). Naturally, the principles of good legal writing also apply to these
documents.

Academic writing
This type of writing involves the drafting of assignments or written projects in an
academic context. While it is important to start applying the principles of good legal
writing at a tertiary level, the principle of clarity and conciseness is not as strictly
adhered to as in the other categories of writing. However, formatting, structure and
referencing is equally important in academic writing.

SENDING E-MAILS AS A LAWYER

“Most legal writing is atrocious.”16

As early as 1936, scholars have been commenting on the poor quality of legal writing.

There are two things wrong with almost all legal writing. One is its style. The other is its content. 17

Consider, for example, the following actual letter from a South African attorney (names
and subjects have been removed):

16 Strong opinion by Judge Mark Painter from the United States of America Ohio First District Court
of Appeals in the United States of America – Painter s.a., [Link]
[Link]/legal/[Link] (accessed on 1 October 2014).
17 Rodell 1936: 38.

43
But this culture of appalling writing exists even before we enter into the legal profession.
Have you taken a close look at e-mails you have sent to lecturers or previous
colleagues?

Sometimes e-mails are saturated with spelling errors. The tone of writing can also elicit
a negative response from the reader, or a positive one.

44
Sometimes so little information about the author of an e-mail is included in the letter
that any response is near impossible. Such a mail is utterly devoid of respect and will
never elicit a positive response from your reader, regardless of whether it is a lecturer,
a fellow student or future colleague, a client or judge.

It is also crucial to include not only your own name in e-mails, but also the name (with
correct spelling) of your intended reader.

There are, however, good writing even at tertiary education level. This is something
you should strive towards as part of your practical training for a successful legal career.

Name included

45
Letters in an electronic age
In the modern era progressively more letters to clients (and colleagues) are being sent
via e-mail. Training in the drafting and sending of professional e-mails are neglected
topics at most universities, but it is a vital part of legal practice today and therefore a
fundamental component of any legal writing course.

When communicating by e-mail about legal matters, you should use similar practices
as you would if you were sending a legal letter. The same principles of good legal
writing apply to the drafting of electronic mail.

When corresponding by e-mail, you should:

• Confirm that you are sending the mail to the right e-mail address.
• Make sure the recipient's e-mail address is in the "to" address bar.
• Add a subject that will make it easy for the recipient to understand what the
message is about before they open it.
• Request a read receipt if you want to know when the recipient has read the e-mail
(this is particularly useful if you need evidence that the e-mail was read).
• If you want a reply do not be afraid to ask for one by a particular (but reasonable)
date.
• Follow up your e-mail with a telephone call to confirm it was received, just in case
the recipient's e-mail program dealt with it as spam or junk mail.
• Number paragraphs.
• If you wish to attach a document/s (say, a letter to a client that has been typed in a
Word document), ensure that the document is attached before you send the e-mail.
• Ensure the attached document is not a draft version but the final, refined document.
• Convert documents as far as possible into PDF formats so that the contents thereof
cannot be changed.
• Try to keep the attachment as small as possible so that the intended reader can
successfully receive it.
• If you are concerned about confidentiality, mark the e-mail as confidential.

It is of the utmost importance that e-mails are also drafted in good, simple
language that is clear, concise and engaging.

46
American attorney, William Pfeifer, published an article on The Balance18 in February
2019 in which he summarises the most common mistakes to avoid when sending e-
mails as a legal practitioner:

 Sending e-mails ‘from the desk of’

This is old-dated and pretentious terminology that should be avoided.

 Adding fancy flourishes

Avoid creativity in the appearance of your e-mails, you are not selling your
artistic skill. Keep your writing simple. That includes your signature.

 Forgetting to add a signature

 E-mailing while angry

You put yourself at risk when you e-mail while angry or in a particularly foul
mood. Before clicking on SEND, give yourself time to cool off. Re-read the letter
and make sure professionalism triumphs in all your correspondence. Failure to
do this may result in loss of friends, clients and respect.

 Failing to respond quickly

Clients expect quick responses to their queries. Try to reply within 24 hours. If
you are dealing with a complicated matter, send an acknowledgment of receipt
of the e-mail, and let the sender know when to expect a response. Then stick to
your own time limit!

 Sending mails to wrong addresses

The auto-complete function on e-mail systems is very convenient but it creates
the risk of sending mails to wrong recipients. This can result in something benign
as a bit of embarrassment, but in some cases, it can cause you great
professional risk when allegations of negligence are made.

18 Pfeifer “Common mistakes lawyers make when sending e-mails”,

[Link] (accessed on 22 October
2019).

47
  Using ‘reply all’ when you should not
Sometimes the senders of e-mails use settings that allow them to receive copies
of that e-mail every time you forward it. This means that whenever you forward
a received e-mail, the original sender receives a copy. If the ‘reply all’ button is
then liberally used, the original sender is included in all the correspondence,
which could have devastating consequences. Use the ‘reply all’ button only
when you absolutely have to.

 Using sloppy subject lines

Do not leave the subject line blank or with ill-considered, sloppy lines. Keep your
tone serious and professional and your writing concise and clear. Using subject
lines like ‘my idiot client’ can cause you and your firm great risk. Never forget
that e-mails can be forwarded by anyone, and can never truly be deleted.

 Arguing via e-mail

It is very easy to misread a person’s intent by way of e-mail. When speaking to
someone face-to-face, facial expressions and vocal tones help make the
audience understand what it is that is being said. If you are engaging with difficult
clients or hostile colleagues, consider your reading and understanding a
received e-mail carefully. If you consider the e-mail rude or argumentative, reply
with caution and professionalism to avoid putting yourself in a risky situation.

The following article is important as part of law students’ training in writing professional
legal e-mail. CTRL and click on the box below to access the article online.

SCHIESS W
2010. E-mail like a lawyer. Michigan Bar Journal September: 48-51.

THE IMPORTANCE OF FORMATTING AND REFERENCING

48
 PLEASE SEE THE SHORT VIDEO SERIES ON BLACKBOARD FOR A
DEMONSTRATION OF CORRECT FORMATTING AND REFERENCING
(THE GUIDE IS ALSO AT THE BACK OF THIS DOCUMENT.
CLICK HERE TO ACCESS THIS GUIDE).

REFERENCING, FORMATTING AND STYLE NB!

All typed assignments submitted in fulfilment of the requirements for any module while
studying law, as well as typed documents produced in legal practice must adhere to
the style, format and citation requirements as prescribed by the Journal of
Juridical Sciences.

Footnotes
All authority relied on in arguments must be cited in footnotes. A complete guide to
citation formatting will be provided on Blackboard and at the back of this module guide.
Strict adherence to this guide is expected and failure to do so will result in severe
mark penalties.

Bibliography
All sources employed in research must be included in a bibliography. In this
bibliography, the individual sources should not be sorted under separated sub-
headings (books, articles, etcetera) but should all be sorted under the main heading
and in alphabetical order. Only cases and legislation should be sorted under separate
sub-headings.
For purposes of LEVD 3705, please include cases and legislation in the
bibliography.
A complete guide to citation formatting will be provided on Blackboard and is
included at the back of this module guide.

49
 LEGAL REASONING AND DEVELOPING STRONG ARGUMENTS

In completing assignments at university or preparing documents when practicing law,

you will be required to draft arguments. Argumentative writing is not done on a whim
and is not exclusive to the legal profession. Whether engaged in the practice of law,
business, or politics, your ability to construct strong, persuasive arguments will greatly
influence your levels of success.
What qualifies as strong argumentation?19
 Where a viewpoint is provided along with a clear line of supportive reasoning.
 Provision of evidence or examples to support an argument.
 Show where the evidence (or examples) come from. In law, this also means
we have to prove reliability of sources. We do this by providing
comprehensive source referencing.
 Consider contradicting or opposing arguments.
 Ability to demonstrate why your argument is reasonable.

How are arguments constructed?

ASSERTION + EVIDENCE + REASONING = ARGUMENT

Statement Data supporting Shows

about statement. For relationship
something. example: case between
law; legislation; assertions
books; and evidence.
quantitative or Demonstrate
qualitative data; connections
journals; reports and logic of
of governing conclusions.
bodies, etcetera.

19 This has been taken from: University of Portsmouth, Faculty of Business and Law “Writing
strong arguments for law”, [Link]
arguments%20-%20law%[Link] (accessed on 2 February 2023).

50
Easy example:
ASSERTION + EVIDENCE + REASONING = ARGUMENT

In RSA, the S v Makwanyane Since the

death penalty and Another 1995 Constitution
may not be (6) BCLR 665 invalidates any
(CC): The CC held action that
imposed as
that death by
sentence violates
hanging as
following punishment human rights,
criminal violates section 9, the death
conviction. 10, 11(2) of the penalty may
Constitution. no longer be
applied in
RSA.

What if the argument is more complicated? Can you use this ‘recipe’ to build and
strengthen arguments? Make sure you attend classes to learn more about
argumentation.
Arguments may seem strong where binding authority (evidence) is available
directing a specific issue. But if only persuasive authority is available? When drafting
arguments, we have to critically view the extent to which the argument will persuade
the target audience. If the argument is not strong, review the statement, the strengths
and weaknesses of the evidence, and the validity of your reasoning. In the reviewing
the evidence (the authority used), consider some of the following:
 How recent, reliable and relevant is the evidence?
 Are there opposing views?
 If academic research is used, what is the quality of research?

When responding to problems in assignments or scenario questions, many law

lecturers recommend you use the FIRAC model: Facts, issue, rule of law, application
of law, and conclusion. Please keep in mind that this is merely a model and not a strict
templet to be followed when drafting arguments. Essentially, this model, specifically
RAC, is a representation of the ‘assertion → evidence → reasoning’ process. The latter
may just be a somewhat easier to understand in drafting comprehensive arguments.

51
LEGAL REASONING AND WRITING IN THE AGE OF THE FOURTH INDUSTRIAL
REVOLUTION

The First Industrial Revolution, starting around 1750, saw the mass mechanisation of
production through water and steam power. Approximately a century later, the Second
Industrial Revolution, also known as the Technological Revolution, was catalysed by
the discovery of electricity. During this phase scientific discovery, standardisation,
mass production (of steel, chemicals, weapons, consumer good, and more),
industrialisation, and transport underwent tremendous and rapid advancement well into
the 20th century. Information spread quickly through new mediums such as
newspapers, radio broadcasts, and telegraph.
The Third Industrial Revolution, known as the Digital Revolution, started mid to
late twentieth century and is characterised by automation and digitisation. Mass
production became automated through electronics and computers, the internet was
invented, and nuclear energy was discovered leading to great technological and
communication advancements.
Finally, the Fourth Industrial Revolution has taken over from the Third and has
distorted the clear lines between the physical, digital, and biological worlds. Evolving
technology in artificial intelligence (AI), robotics, nanotechnology, quantum computing,
biotechnology, 3D printing, automated vehicles, and so much more, endeavours to
improve quality of life, reduce inequality and social injustice, and to raise income
levels.20
This last technological revolution is changing the way we live and work. It is
inevitable that the law profession is also changing and we must adapt. The pervasive
infiltration of technology and AI in the practice of law has reached our shores too and

20 See: AccountancySA “The stages of industrial revolution and its impact on jobs”,
[Link]
(accessed on 9 February 2023); Schwab “Fourth Industrial Revolution: What it means, how to
respond”, [Link]
means-and-how-to-respond/ (accessed on 9 February 2023).

52
how you prepare for a career in law must necessarily adjust so you can successfully
compete in a workplace where our opponents may be computers or robots.
And the pressure to revolutionise the way we practice law is becoming
overwhelming as AI and “robolawyers” continue to disrupt the industry. 21 Garvett22
explains:
At this time and for the foreseeable future, current AI capabilities permit machines to approach,
achieve or exceed only certain but not all human cognitive functions. At this point we can safely
say that AI does not have the capacity and will probably not obtain the capacity in the next two
or three decades to advise clients, appear in court and be responsive to a particular client's
priorities and subjective needs.88 Thus, although "knowledge" jobs in the law might fall victim
to the advance of AI, "wisdom" jobs will not — at least not in the foreseeable future.

That is why legal skills based on human judgment, inference, common sense, interpersonal
skills and experience will remain valuable for the lifetime of any lawyer practising today.

For this reason, you should engage with enthusiasm the opportunity to become fully
computer literate and technology literate, including aspects of AI, blockchain, and other
emerging knowledge. Crucially, you must develop those skills that AI cannot
completely invade: critical thinking, problem solving, ethical reasoning, and
interpersonal relationships, and communication.

Unit bibliography:

ACCOUNTANCY SA
2023. The stages of industrial revolution and its impact on jobs.
[Link]
on-jobs/ (accessed on 9 February 2023).

GARVETT WH
2020. Is the dawn of the robot lawyer upon us? The Fourth Industrial Revolution and the
future of lawyers. Potchefstroom Electronic Law Journal 23: 1-39.

OATES LC & ENQUIST A

2010. The Legal Writing Handbook: Analysis, Research and Writing. New York: Aspen
Publishers.

OSBECK MK

21 Garvett 2021:4.
22 2021:15.

53
 2011. What is “good legal writing” and why does it matter? Public Law and Legal Theory Working
Paper Series 252, available at:
[Link]

PFEIFER W
2019. Common mistakes lawyers make when sending e-mails.
[Link] (accessed on 22 October
2019).

SCHWAB K
2016. Fourth Industrial Revolution: What it means, how to respond.
[Link]
how-to-respond/ (accessed on 9 February 2023).

54
 UNIT 1
INTRODUCTION TO THE LAW OF EVIDENCE

1.1 What can I expect from this Unit?

You cannot prove facts or challenge your opponent’s case without understanding the
rules of the law of evidence, and the important concepts associated with a discipline
that you will use every time you partake in court proceedings. This unit introduces you
to essential definitions, concepts and systems you need to master to understand the
rest of the work in this module, and to meaningfully participate in litigation. Some of
these include: basic theories, concepts and distinctions of the law of evidence, its
sources, and the impact the Constitution of the Republic of South Africa, 1996 has had
on this discipline.
The law of evidence is concerned with the process of finding the truth. You will
see how the truth is sought in different systems of procedure and you will be expected
to be critical in your evaluation of the fairness and accuracy of these complex
processes, especially in adversarial proceedings where miscarriage of justice can
have far-reaching and life changing consequences. In this sense, the unit addresses
important issues of social justice in a developing democracy.
The graduate attributes specifically addressed in assessments on this unit are:
academic competence, ethical reasoning, and critical thinking.

10.21.2 Learning outcomes

On completion of this unit, you should be able to do the following:

 Define and analyse the concept and general nature of evidence.
 Contrast related concepts such as information vs evidence; evidentiary material
vs probative material; prima facie proof vs conclusive proof; and burden of proof
vs evidentiary burden.

55
  Reflect on the impact of the Constitution of the Republic of South Africa, 1996
on the development of rules of evidence, and the implications of the spirit of the
Constitution on fair dispute adjudication.
 Critique the operation of the adversarial trial system within the South African
context and in light of local constitutional directives.
 Discuss social justice issues such as wrongful convictions, and propose
solutions to this injustice with reference to the ethical roles of legal practitioners
in litigation, constitutional entitlements to fairness, and the hybridisation of
adversarial and inquisitorial systems of procedure.
 Discuss the decolonisation of the law of evidence in view of the truth-finding
function of court processes.
 Describe and analyse the standard of proof and burden of proof in civil and
criminal cases, and specify the types of presumptions.
 Apply the concepts, principles, and legal theory of the law of evidence to real-
life scenarios when solving problems in a critical and practical way in formative
and summative assessments.

1.3 What must I study in this Unit?

To conduct a proper study of this unit, please do the following:

 Study the following chapters in your prescribed textbook:
 Chapter 1: An introduction to the law of evidence
 Chapter 2: Basic concepts and distinctions
 Chapter 3: Sources of the law of evidence and the impact of
constitutional provisions
 Chapter 4: The law of evidence and substantive law
 Chapter 31: The standard and burden of proof and evidentiary duties in
criminal trials
 Chapter 32: The standard and burden of proof and evidentiary duties in
civil trials
 Study the contents of Unit 1 in this module guide.

56
 1.4 Study material

Chapter 1: An introduction to the law of evidence

1.1 Introduction
1.2 What is the law of evidence?
In addition to the contents of the textbook, also study the following:

The law of evidence is also sometimes referred to as ‘rules of evidence’. These ‘rules’
govern the proof of fact in legal proceedings.

The main function of the law of evidence is to determine what facts are legally
receivable (that is, admissible) to prove the facts in issue.
It also determines the following:

 The manner in which evidence should or may be adduced (presented).

 What evidence may lawfully be withheld from a court of law.
 What rules should be considered in evaluating and assessing the weight of
evidence.
 What standard of proof should be satisfied before a party bearing this onus will
be successful.

1.3 What role does the law of evidence play in South Africa today?
In addition to the contents of the textbook, also study the following:

ACCUSATORIAL vs INQUISITORIAL SYSTEMS OF PROCEDURE23

The position in South Africa

23 For a fascinating view of the different systems of criminal procedure, read Erin Schapiro’s
‘Wrongful convictions: Not just an American phenomenon?: An investigation into the causes of
wrongful convictions in the United States, Germany, Italy and Japan’, as published in Emory
International Law Review 34(3): 897-935.

57
In 2002 the South African Law Reform Commission (SALRC) published a discussion
paper24 on the processes and procedures in the prosecution of sexual offences in this
country. The Commission astutely described South Africa’s current criminal procedural
system:

The present South African system is a hybrid system of criminal procedure. Although
largely adversarial it nevertheless has numerous inquisitorial elements within it.
[Emphasis added]

What are these ‘inquisitorial elements’?

In bail proceedings:
 Quite a few aspects of bail proceedings are inquisitorial in nature. The court is
justified in stepping into the battle to question witnesses in deciding to grant bail.
In the judgment of S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
1999 (2) SACR 51 (CC), at paragraph [10], Justice Kriegler explained why an
inquisitorial approach in bail proceedings is often necessary:

Although societal interests may demand that persons suspected of having committed crimes
forfeit their personal freedom pending the determination of their guilt, such deprivation is subject
to judicial supervision and control. Moreover, in exercising such oversight in regard to bail the
court is expressly not to act as a passive umpire. If neither side raises the question of bail, the
court must do so. If the parties do not of their own accord adduce evidence or otherwise produce
data regarded by the court to be essential, it must itself take the initiative. Even where the
prosecution concedes bail, the court must still make up its own mind. In principle, that policy of
the CPA, and the consequential provisions mentioned, are in complete harmony with the
Constitution. The potential problem lies elsewhere.

In the trial:
 In section 112 of CPA, the court is ‘invited’ into the arena of battle to question the
accused in order to establish certain facts. (As in section 115 of the CPA)
 Section 186 of the CPA authorises the court to call and question any witness to a
trial it deems fit in order to arrive at the truth, which is quintessentially inquisitorial.

The position in South African customary courts

Customary law in South African is an advanced, value-centred system in which the
rights, interests and obligations of a specific family, clan or traditional community take
precedence over that of a specific individual within that group. Fact-finding in

24 Vol 2 ISBN 0-621-31809-4 December 2001, 229.

58
customary disputes is also determined by the relevant group, and according to the
shared values, philosophies and doctrines accepted by that specific group.25
The South African Law Commission published a report in 200326 investigating
the procedure in criminal trials in customary courts. The Report found that rules in
criminal procedure are generally informal, simple and flexible, purporting to set at ease
the parties to proceedings.27 Customary courts follow a mainly an inquisitorial system
of procedure in that the presiding officer and the assessors direct the questioning by
parties and is responsible for truth-seeking.
Community participation is also considered important in resolving disputes in
the customary legal process.
As discussed above, the Constitution recognises traditional leaders’ courts.
Although these courts have a wide jurisdiction in terms of criminal cases, in civil cases,
these courts can adjudicate matters only where they arise from customary law, and
not common law disputes.28
Legal practitioners normally do not appear in customary courts. The
presentation of oral evidence is done according to the customary method of narration.
When witnesses are called in traditional courts, they are expected to ‘tell a story’ about
an incident without being questioned or interrupted by any other person, legal
practitioner or presiding officer. Only when the telling of story is over, may the presiding
officer allow questioning from parties and conduct his own questioning. Technical
issues regarding the admissibility of evidence are irrelevant in traditional courts. The
presiding officers will admit all evidence but take care in assigning weight to the
evidence.29
The traditional court must also provide reasons for its decisions and must keep
record of proceedings. Where appeals to mainstream courts follow, the trials will be
conducted de novo.30

25 Bellengère et al. 2019: 18.

26 SALC Project 90 ‘Report on traditional courts and the judicial function of traditional leaders’,
[Link] (accessed on 13 April
2018).
27 See Bellengère et al. 2019: 32, where the authors suggest the rules of evidence and procedure
are governed by ‘unwritten customary law unless the provisions of the Chiefs and Headmen’s
Civil Court Rules apply’.
28 Bellengère et al. 2019: 31.
29 Bellengère et al. 2019: 34-35.
30 Bellengère et al. 2019: 32-33.

59
1.4 A decolonial perspective of the history of the law of evidence in Africa
1.5 Three fundamental features of coloniality in the South African law of
evidence
In addition to the contents of the textbook, also read the following:

TRADITIONAL AFRICAN APPROACHES & AFRICANISATION OF CRIMINAL

PROCEDURE AND EVIDENCE

Recognition of African traditional approaches

Before colonialism, traditional leaders in Southern Africa presided over both civil and
criminal justice systems in similar fashion, as a clear distinction between civil and
criminal matters were not made.31
During the English occupation of South Africa, there was some recognition of
the local customary law of the African tribes of Southern Africa by way of legislation
and judicial decisions. But this recognition occurred mainly in family law and law of
succession.32
In those instances where the local customary law was to be applied, it had to
be proven unless the particular court had sufficient knowledge of this law, which was
only the case in some local lower courts in South Africa at the time. But this was
considered problematic, since there were differences in the African customary law of
different tribal systems and the courts did not always understand which law to apply to
whom. In rare circumstances, so-called ‘Native Commissioners’ in special courts
applied specific African customary law in ‘appropriate’ instances.33
Schreiner34 concedes in 1967 that Apartheid affected the rights of native South
Africans but limits the violations to substantive law, and opines that procedural laws
were applied to everyone, fairly. This, of course, is highly doubtful and a dire need
arose for social justice and a supreme law that would form the benchmark of a fair and
equitable justice system that advances human dignity, equality and freedom.

The South African Constitution and a fair justice system

31 Soyapi 2014: 1451.

32 The Honourable OD Schreiner in the Hamlyn Lectures 19th Series: Schreiner 1967: 8.
33 Schreiner 1967: 8, 93.
34 Schreiner 1967: 93-95.

60
South Africa’s final Constitution35 was finally adopted in 1996 and is the foundation
upon which the post-Apartheid justice system was built and how we develop, interpret
and apply laws today. It recognises the importance of customary law and the role of
traditional leaders in matters of justice (see Chapter 12 of the Constitution). It further
places a burden on any court, tribunal or forum to not only develop the common law,
but also customary law, and to do so in manner that promotes the spirit, purport and
objects of the Bill of Rights.36
The formalisation of traditional courts and the application of customary law in
ordinary courts must adhere to both the black letter and the spirit of the Constitution.
For our purposes this means that where traditional law of evidence is applied, in
whatever setting, procedural and substantive fairness must always triumph.37

Chapter 2: Basic concepts and distinctions

The concepts and definitions in this chapter are crucial for the continued understanding
of the law of evidence. Please ensure you memorise the definitions well. Contact your
lecturer promptly if you struggle to understand any of the terms.

Chapter 3: Sources of the law of evidence and the impact of

constitutional provisions

In addition to the contents of the textbook, also study the following:

CONSTITUTIONAL IMPACT ON THE LAW OF EVIDENCE

The Constitution has had an immense impact on the South African law of evidence.

35 The Citation of Constitutional Laws Act 5 of 2005 abolished ‘No 108’ as part of the reference to
the Constitution. The correct citation of our constitution is: The Constitution of the Republic of
South Africa, 1996.
36 The Constitution of the Republic of South Africa, 1996: sec. 39(2).
37 This is confirmed by the Traditional Courts Bill of 2017 and is especially important considering
the poorly defined rules in customary law of evidence – Nanima 2018: 24.

61
Not only has it affected the manner in which procedural rules are drafted and
interpreted, but ‘[i]t has sometimes brought about a shift from procedure to
substance.38 Some procedural rules have hardened into substantive rights.
A truly meaningful review of the Constitution’s impact on law of evidence can
only be done following a study of some of those constitutional provisions that have
affected the most substantial change in the law of evidence framework. Knowing these
provisions well is vital, as transformation of the justice system in light of the spirit of the
Constitution is urgently needed. Law without social justice is no justice.

Constitutional stipulations relevant to the law of evidence

The following is not a closed list of relevant constitutional stipulations but are the most
important in the fair practice of the criminal, and in some instances also the civil justice
systems.

Section 32 – Access to information

(1) Everyone has the right of access to –
a) Any information held by the state; and
b) Any information that is held by another person and that is required for the exercise or
protection of any rights.
…

Section 33 – Just administrative action

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to be
given written reasons.
(3) National legislation must be enacted to give effect to these rights and must-
(a) Provide for the review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
(b) Impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) Promote an efficient administration.

Section 34 – Access to courts

Everyone has the right to have any dispute that can be resolved by the application of law decided in a
fair public hearing before a court or, where appropriate, another independent and impartial tribunal or
forum.

Section 35 – Arrested, detained and accused persons

(1) Everyone who is arrested for allegedly committing an offence has the right –
(a) To remain silent;
(b) To be informed promptly-

38 Zeffertt and Paizes 2009: 16.

62
 (i) Of the right to remain silent; and
(ii) Of the consequences of not remaining silent;
(c) Not to be compelled to make any confession or admission that could be used in evidence
against that person;
(d) To be brought before a court as soon as reasonably possible, but not later than-
(i) 48 hours after the arrest; or
(ii) The end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside
ordinary court hours or on a day which is not an ordinary court day;
(e) At the first court appearance after being arrested, to be charged or to be informed of the
reason for the detention to continue, or to be released; and
(f) To be released from detention if the interests of justice permit, subject to reasonable
conditions.

(2) Everyone who is detained, including every sentenced prisoner, has the right-
(a) To be informed promptly of the reason for being detained;
(b) To choose, and to consult with, a legal practitioner, and to be informed of
this right promptly;
(c) To have a legal practitioner assigned to the detained person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
(d) To challenge the lawfulness of the detention in person before a court and, if the detention
is unlawful, to be released;
(e) To conditions of detention that are consistent with human dignity, including at least
exercise and the provision, at state expense, of adequate accommodation, nutrition,
reading material and medical treatment; and
(f) To communicate with, and be visited by, that person's-
(i) Spouse or partner;
(ii) Next of kin;
(iii) Chosen religious counsellor; and:
(iv) Chosen medical practitioner.

(3) Every accused person has a right to a fair trial, which includes the right-
(a) To be informed of the charge with sufficient detail to answer it;
(b) To have adequate time and facilities to prepare a defence;
(c) To a public trial before an ordinary court;
(d) To have their trial begin and conclude without unreasonable delay;
(e) To be present when being tried;
(f) To choose, and be represented by, a legal practitioner, and to be informed of this right
promptly;
(g) To have a legal practitioner assigned to the accused person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
(h) To be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) To adduce and challenge evidence;
(j) Not to be compelled to give self-incriminating evidence;
(k) To be tried in a language that the accused person understands or, if that is not practicable,
to have the proceedings interpreted in that language;
(l) Not to be convicted for an act or omission that was not an offence under either national or
international law at the time it was committed or omitted;
(m) Not to be tried for an offence in respect of an act or omission for which that person has
previously been either acquitted or convicted;

63
 (n) To the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing; and:
(o) Of appeal to, or review by, a higher court.

(4) Whenever this section requires information to be given to a person, that information must be given
in a language that the person understands.

(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the
admission of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.

MISCARRIAGE OF JUSTICE: WRONGFUL CONVICTIONS

Sir William Blackstone, great English jurist of the eighteenth century, is recorded as
saying (circa 1769) that it is better for ten guilty people to escape than for one innocent
person to be convicted.
The pursuit of truth and justice is complicated and riddled with potential pitfalls.
Where miscarriages of justice occur, the consequences can be dire. Consider the
following:

Wrongful Convictions in the United States of America (USA)

By January 2023, there are 3 373 recorded exonerates in the National Registry of
Exonerations (NRE), who have served a combined 28 770 years in prison.39 The
Innocence Project,40 has had great success in facilitating the release of innocently
convicted people:

 Mr. Malcolm Alexander: Louisiana, USA

Conviction: aggravated rape
Sentence: life imprisonment without parole
Time served: 38 years
Reason for wrongful conviction: eyewitness misidentification, government

39 The National Registry of Exonerations website can be accessed at:

[Link]
40 This organisation was founded by lawyers in 1992 in the USA to use forensic DNA profiling
technology to exonerate Americans who had been falsely convicted. Since its establishment,
many countries across the world have also founded local branches of The Innocence Project to
thwart severe miscarriages of justice. By January 2024, this organisation in the USA has
facilitated the acquittal of 375 innocently convicted people by way of DNA testing. Read more
about this organisation’s word at: [Link].

64
 misconduct, inadequate defence

 Mr. Christopher Abernathy: Illinois, USA

Conviction: first degree murder, aggravated criminal sexual assault, armed
robbery
Sentence: life imprisonment
Time served: 28 years
Reason for wrongful conviction: false confessions/admission, informants

 Mr. James Bain: Florida, USA

Conviction: rape, kidnapping and burglary
Sentence: life imprisonment
Time served: 35 years
Reason for wrongful conviction: eyewitness misidentification, invalidated or
improper forensic science

There are similar Innocence Projects in the following countries: The Netherlands,
Canada, New Zealand, and Australia.

Wrongful convictions in the United Kingdom

The Criminal Cases Review Commission (CCRC)41 was set up in England in 1997
after several high profile wrongful convictions came to light. Its purpose is to take a
fresh, independent look at suspected miscarriages of justice in England, Wales and
Northern Ireland.
Since 1997, the Commission has had about 548 successful appeal cases.
Currently more than 758 cases are being reviewed by the Commission.42

International, inquisitorial perspectives

In 2007, the world was shocked by the sexual assault and murder of a 21 year-old
English girl working and living in Italy. The story of how her roommate, Amanda Knox,
and her Italian boyfriend were arrested and prosecuted for her murder made

41 Read more about the Commissions’ work at: [Link]

42 CCRC 2019. Read more at: [Link]

65
international headlines and resulted in a grotesque miscarriage of justice. Read this
story at: [Link]

Contributors to wrongful convictions

Factors that contribute to wrongful convictions seem to comprise an unending list, with
most wrongful convictions resulting from an overlap of different causes that may
include:
1) Eyewitness misidentification.
This is the most common cause of wrongful convictions. Research has
demonstrated that human observation, memory storage and recall are
notoriously inaccurate, and is susceptible to contamination.
2) Junk science.
Forensic methodologies have been applied with almost no scientific validation
of the reliability of the methods or the results. This has resulted in false findings
in criminal cases. Forensic scientists have also, on occasion, engaged in
misconduct.
3) Ineffective legal representation.
Sometimes overworked and under-resourced legal representatives fail in
adequately investigating, questioning or preparing cases and witnesses, which
can lead to wrongful convictions.
4) Informants.
Where the identity of informants is protected, it is difficult to test their testimony
during trial. Wrongful convictions have occurred where informants provide false
or erroneous information to authorities or receive bribes to provide false
information.
5) Prosecutorial misconduct.
6) Inadequate police investigations.

Wrongful convictions in South Africa

Unlike many other countries, there are no organisations in South Africa that investigate
the occurrence of wrongful convictions in this country. It is naïve to imagine that gross
miscarriages of justice like this are not also happening in South Africa.

66
 The Wits Justice Project43 was started by the Journalism Department in the
University of the Witwatersrand. Its objective is to create awareness of failures of the
criminal justice system in South Africa. While this Project reports effectively on known
cases of wrongful convictions and advocates for people wrongfully convicted, its
functions do not seem to extend to that of the USA’s Innocence Project.
The following are two cases of wrongful convictions in South Africa.

Getting it wrong – Guilty until proven innocent (the story of Njabulo Ndlovu):
[Link]
proven-innocent/.

‘I can never forgive the state’ – man released after 12 years in jail (the story of Samuel
Nndwambi): [Link]
forgive-the-state-man-released-after-12-years-in-jail/

Chapter 4: The law of evidence and substantive law

Read this chapter only.

Chapter 31: The standard and burden of proof and evidentiary duties in
criminal trials

The burden of proof in both civil and criminal trials helps presiding officers make
decisions about fact. Understanding the concepts is very important. If you have not
already studied the relevant concepts in Chapter 2, make sure you do so before we
start with this chapter. Also focus on the ambit of the state’s onus of proof.

Chapter 32: The standard and burden of proof and evidentiary duties in civil

43 The Wits Justice Project 2019. [Link]

categories/wrongful-convictions. Accessed on 10 April 2019.

67
 trials

While the onus in civil trials is relaxed as compared to that in criminal trials, the burden
in civil trials is no less important. Make sure you focus on the case of Pillay v Krishna
and Another 1946 AD 946 in studying this chapter in the textbook.

k
1.5 Critical reflections

The following are just some of the points of discussion that may flow from the preceding
unit.

 Which of the different systems of procedure (customary, accusatorial, or

inquisitorial) do you think is more likely to result in accurate fact-finding?
 Do you think an emphasis on human rights over material truth is meaningful in
third world jurisdictions?
 Do you think strict rules of evidence is conducive to finding the truth? Or that it
will be successful in achieving fair trials?
 Do you think there is a difference in the desirability of operating along the
accusatorial system of procedure in first world vs third world jurisdictions?
 How does South Africa’s Constitution compare to other countries in terms of the
protection offered to persons accused of crime? And detainees?
 Can you think of any evidence rules, types or presentation methods that seem
at odds with the spirit of the Constitution?

UNIT BIBLIOGRAPHY

BELLENGÈRE A, PALMER R, THEOPHILOPOULOS C (EDS)

2019. The law of evidence in South Africa. Cape Town: Oxford.

KEANE A and MCKEOWN P

2016. The modern law of evidence. 11th ed. Oxford: Oxford University Press.

NANIMA R

68
 2018. A missing link in the Traditional Courts Bill 2017: Evidence obtained through human rights
violations. SA Crime Quarterly 65:23-31.

SCHREINER OD
1967. The contribution of English law to South African law; and the rule of law in South Africa.
The Hamlyn Lecture 19th Series. Cape Town: Juta.

SCHWIKKARD PJ AND VAN DER MERWE SE

2016. Principles of the law of evidence. 4th Ed. Claremont: Juta.

SOYAPI CB
2014. Regulating traditional justice in South Africa: A comparative analysis of selected aspects:
Traditional Courts Bill. Potchefstroom Electronic Law Journal 17(4):1441-1469.

69
 UNIT 2
ADMISSIBILITY OF EVIDENCE

2.1 What can I expect from this Unit?

Admissibility of evidence is the central point around which proof of fact revolves. It is
the single most important concept in the law of evidence. This unit is exclusively
dedicated to defining and analysing the term ‘admissibility’ and understanding the
concept in relation to different kinds of evidence in criminal and civil trials.
The graduate attributes specifically addressed in assessments on this unit are:
academic competence, problem solving, critical thinking, and written communication.

10.22.2 Learning outcomes

On completion of this unit, you should be able to do the following:

 Distinguish between the concepts ‘admissibility of evidence’ vs ‘weight of
evidence’.
 Explain thoroughly how courts in South Africa determine the admissibility of
evidence.
o Explain the concept of ‘relevance’.
o Describe the procedure in which admissibility of evidence is decided.
 Critique the South African rules of admissibility and reliability determinations of
specific kinds of evidence with reference to the development of similar
procedures in other international common law jurisdictions.
 In a given factual scenario relating to different kinds of evidence, synthesise
arguments on the admissibility or inadmissibility of the evidence.
 Apply the concepts, principles, and legal theory of the law of evidence to real-
life scenarios when solving problems in a critical and practical way in formative
and summative assessments.

70
  Solve problems that require critical thinking skills by presenting the solution in
written format that are required in practice, for example, a written legal opinion
or heads of argument.

2.3 What must I study in this Unit?

To conduct a proper study of this unit, please do the following:

 Study the following chapter in your textbook:
 Chapter 5: Relevance and admissibility
 Study the information in Unit 2 of this guide.
 Access and study the following court case:
 S v Shabalala 1986 (4) SA 734 (A)
 Holtzhauzen v Roodt 1997 (4) SA 766
 Van der Walt v S (CCT180/19) [2020] ZACC 19 (21 July 2020) (Note,
alternative citation is: S v Van der Walt 2020 (2) SACR 371 (CC)

2.4 Study material

Chapter 5: Relevance and admissibility

ESSENTIAL DEFINITIONS44

When is evidence admissible?

Evidence is admissible when it is relevant to an issue in dispute, and it is not excluded
by some rule of law. Deciding the admissibility of all potential evidence adduced at trial
is the task of the court and is performed at the time the evidence is adduced.

What is ‘weight’ of evidence?

44 Compare these two definitions with those studied in Chapter 2.

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‘Weight’ of evidence refers to the extent to which the particular evidence will influence
the court’s finding of fact and is decided by the court at the end of the trial after both
parties have presented their cases.

COMPARATIVE PERSPECTIVE

The United States of America

In the United States of America (USA), a developed democracy following a
comparatively pure system of accusatorial procedure, Rule 402 of the Federal Rules
of Evidence stipulates that relevant evidence is admissible unless provided otherwise
by the US Constitution, federal statutes, other provisions in the Federal Rules of
Evidence, or any other rules prescribed the US Supreme Court.
Rule 403 of the US Federal Rules dictates that courts may exclude relevant
evidence “if its probative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.”
The US legislature and courts have developed specific rules and precedent
relating to the admissibility of specific evidence. For example, in the case of expert
evidence, the US has a dearth of admissibility jurisprudence compared to that of
South Africa (dealt with in coming chapters).

India
According to section 3 and 5 of the Indian Evidence Act, 1872, evidence may be
adduced of the existence or non-existence of a fact and other relevant facts. In this
country too, relevance is the measure of admissibility, but information may also be
deemed inadmissible if it is prejudicial to the accused, wasteful of the court’s time or
if it will confuse the issues in dispute.

2.5 Critical reflections

 Apart from having to be relevant, each kind of evidence (for example, oral
evidence, documentary evidence, etc.) can only be adduced if certain specific

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admissibility criteria are met. Do you think this restriction of only allowing
evidence that meets certain prescriptions is conducive to finding the truth?

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 UNIT 3
KINDS OF EVIDENCE AND ITS PRESENTATION

1.1 What can I expect from this Unit?

There are different ways to prove different things. This unit aims to provide you with
an overview of the most basic and most often used types of evidence used in criminal
and civil litigation, namely oral, real, documentary, and electronic evidence.
Do not view these kinds of evidence in a vacuum. Real evidence, for example,
is adduced when physical objects are admitted as evidence, but it may be
accompanied by oral evidence if the physical object is identified and described to court
by a witness. Study the nature of each kind of evidence, make sure you understand
the admissibility criteria for each of these, and think critically about how it can be
presented and what the implications might be for admissibility determinations.
The graduate attributes specifically addressed in assessments on this unit are:
academic competence, problem solving, ethical reasoning, critical thinking, and written
communication.

10.23.2 Learning outcomes

On completion of this unit, you should be able to do the following:

 Define and analyse the different types of evidence, including oral evidence,
affidavits, real evidence, documentary evidence, and electronic/cyber evidence.
 Describe the admissibility criteria for each of these kinds of evidence and
critically evaluate admissibility requirements from a given set of facts.
 Define and describe the rules governing the presentation of evidence, with
specific reference to examination-in-chief, cross-examination, and re-
examination.
 Define/distinguish between a ‘leading question’ and an ‘open-ended question’.
 Discuss the use and consequences of leading questions during evidence in
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 chief, as well as the exceptions and relevant procedures.
 Briefly define ‘cross-examination’.
 Discuss the purpose of cross-examination and its legal basis.
 Describe the consequences of failing to properly cross-examine witnesses.
 Argue the ethical pitfalls of cross-examination in an accusatorial system.
 Discuss the procedure for cross-examination.
 Briefly discuss when will a witness be re-examined and by whom.
 Briefly discuss the purpose of re-examination.
 Briefly discuss the extent of re-examination, and/or the use of leading
questions during re-examination.
 Briefly discuss the applicability of arguments on the admissibility of evidence in
a closing address.
 Briefly discuss the consequences of making concessions in a closing address.
 Briefly describe the role and appointment of intermediaries when minors testify
in criminal proceedings.
 Apply the concepts, principles, and legal theory of the law of evidence to real-
life scenarios when solving problems in a critical and practical way in formative
and summative assessments.
 Solve problems that require critical thinking skills by presenting the solution in
written format that are required in practice, for example, a written legal opinion
or heads of argument.

3.3 What must I study in this Unit?

To conduct a proper study of this unit, please do the following:

 Study the following chapters in the textbook and relevant case law:
 Chapter 18: Oral evidence
• S v Matshivha 2014 (1) SACR 29 (SCA) – Admonishment
of witnesses
• S v Msimanga & Another 2010 (1) SACR 544 (GSJ) –
Cross-examination
 Chapter 19: Real evidence

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 • S v Msane 1977 (4) SA 758 (N) – Producing physical
object when leading real evidence
 Chapter 20: Documentary evidence
 Chapter 21: Electronic evidence
• S v Brown 2016 (1) SACR 206 (WCC) – Admissibility of
electronic evidence

3.4 Study material

Each of the following four chapters relate to the four main types of evidence adduced
in criminal and civil trials. Make sure you note with each type of evidence the
admissibility requirements for that specific evidence, because in addition to relevance,
each type of evidence requires its own unique prerequisites for admission.

Chapter 18: Oral evidence

Evidence in both criminal and civil cases must be presented orally. Why do you think
this is?
The admissibility of oral evidence depends on the relevance of the testimony the
witness is to provide, as well as compliance with the requirement that the witness
testifies under oath, affirmation, or admonition.
While the admissibility of oral testimony is seldom in dispute, the weight of such
evidence is another story altogether. Make sure you distinguish between the
admissibility and weight of evidence. How do courts weigh the testimony of a witness?
What do courts look at? How can you make sure that your witness’s version of events
is relied upon?
It is also important to note the three ways we adduce oral evidence:
 Examination-in-chief
 Cross-examination
 Re-examination

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Make sure you obtain and study the two prescribed cases for this chapter.

How do I study cases for LEVD 3705?

With focus on the ratio! In litigation, judges are persuaded by two things: legislation
and case law. Where a specific case is a dispute of fact, we might be interested in a
specific case’s factual circumstances. However, in LEVD 3705 we are interested in the
law. This means that the case law you use in argumentation must reflect your
knowledge about the law that a specific case creates.
For example, if a specific piece of legislation prohibits certain questions from
being asked of a witness, are there any exceptions to law created by other judges?
We will only know if we study case law diligently. And when we find exceptions, why
were those exceptions created and under what circumstances? All these questions will
be answered by a court’s ratio in coming to a decision. That is the part that is important.
When you argue your own cases one day, it is the why that will become important to
you, because you will want to persuade the court that those exceptions (or whatever
you require) should be applied to your case.

Chapter 19: Real evidence

Real evidence often serves as persuasive information in cases. Here too, it is important
to distinguish between admissibility and weight of evidence. What happens, for
example, when a very large object cannot be brought to court? Will this affect the
object’s admissibility as real evidence, or will it affect its weight? You may find the
answer in: S v Msane 1977 (4) SA 758 (N). Make sure you obtain and read this case.

Chapter 20: Documentary evidence

The admissibility of documentary evidence can seem rather complicated. With this
type of evidence, you should first contemplate the purpose for which the evidence is
adduced. The purpose will guide you as to what the admissibility criteria will be.

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 Chapter 21: Electronic evidence

Only once we understand the admissibility criteria of documentary evidence can we

properly study the criteria for electronic evidence, also referred to as ‘cyber evidence’.
After the enactment of the Electronic Communications and Transactions Act 25 of
2002, the courts quickly realised that the Act alone cannot adequately direct
admissibility of this complicated type of evidence. To see the direction the courts took
with regard to the admission of electronic evidence, study the following: S v Brown
2016 (1) SACR 206 (WCC).

3.5 Critical reflections

 Reflect on the evidence-generation abilities of the prosecution and defence in

criminal trials. Do you think this is fair procedure?

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 UNIT 4
EXCLUSION OF EVIDENCE

4.1 What can I expect from this Unit?

In this important unit we will review the types of evidence that – as a general rule – are
inadmissible in trials. You should know and understand why these types of evidence
are inadmissible, as well as the circumstances in which each will be exceptionally
admissible because while rules dictate their exclusion, they can be decisive in trial
proceedings.
Not only will you have to adduce some of these types of evidence when you act
in civil or criminal trials, but you will have to screen and challenge such evidence when
adduced by your opponent. For this reason, it is important that you study these sub-
types of evidence well, and critically look at admissibility criteria and reasons for
exclusion.
The graduate attributes specifically addressed in assessments on this unit are:
academic competence, problem solving, ethical reasoning, critical thinking, and written
communication.

10.24.2 Learning outcomes

On completion of this unit, you should be able to do the following:

 Evaluate the framework of statutory and common law rules which provide the
basis for evidence to be excluded.
 Define and describe the different types of excluded evidence.
 Describe the rationale for the general inadmissibility and exclusion of the
following kinds of evidence: character evidence, similar fact evidence, opinion
evidence, previous consistent statements, privileged information,
unconstitutionally obtained evidence and hearsay evidence.

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  Describe the exceptional admissibility of the above-mentioned kinds of
evidence.
 Critique the admissibility criteria of expert opinion evidence in light of the
admissibility jurisprudence in some foreign jurisdictions.
 Analyse the legislation on hearsay evidence and critically draft arguments
addressing disputes on hearsay evidence from a given set of facts.
 Critique the South African rules of admissibility and reliability determinations of
specific kinds of evidence with reference to the development of similar
procedures in other international common law jurisdictions.
 Solve problems that require critical thinking skills by presenting the solution in
written format that are required in practice, for example, a written legal opinion
or heads of argument.

4.3 What must I study in this Unit?

To conduct a proper study of this unit, please do the following:

 Study the following chapters in your prescribed textbook, as well as the case law
listed under each chapter:
 Chapter 6: Character evidence
 Chapter 7: Similar fact evidence
• S v D 1991 (2) SACR 543 (A) – Similar fact evidence on
rape charge
 Chapter 8: Opinion evidence
• S v Van der Walt 2020 (2) SACR 371 (CC)
• S v SB 2014 (1) SACR 66 (SCA)
• Article:
o EDMOND G and MEINTJES-VAN DER WALT L
2014. Blind justice? Forensic science and the
use of closed-circuit television images as
identification evidence in South Africa. SALJ
131: 109-148. [Available at:
[Link]

80
 43].
 Chapter 9: Previous consistent statements
• S v Cornick 2007 (2) SACR 115 (SCA) – Rape complaint
by minor
 Chapter 10: Private privilege
 Chapter 11: State privilege
 Chapter 12: Unconstitutionally obtained evidence
• S v Pillay & Others 2004 (2) SACR 419 (SCA)
• S v Mthembu 2008 (2) SACR 407 (SCA)
 Chapter 13: Hearsay
• S v Kapa 2023 (1) SACR 583 (CC)
 Chapter 14: Selection of common law exceptions to the hearsay rule
 Chapter 15: Selection of statutory exceptions to the hearsay rule

4.4 Study material

The following ten chapters comprise discussions about a fascinating, yet complicated
sub-type of evidence: generally excluded evidence. It is easy to confuse the different
types of excluded evidence, so make sure you note with each: 1) what exactly the
evidence is, 2) the reason why it is generally considered inadmissible, and 3) under
which exceptional circumstances it is admissible.

4.5 Critical reflections

 Do you think it is conducive to achieving social justice and truth to exclude

evidence that has been obtained unconstitutionally? Especially considering
that courts must find the truth before pronouncing on rights and duties?
 Do you think South African ordinary courts should function along more
inquisitorial lines (like customary courts) and accept these examples of
normally excluded evidence?
 When it comes to expert witnesses, where should these witnesses’ loyalties

81
lie?

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 UNIT 5
DETRIMENTAL STATEMENTS

5.1 What can I expect from this Unit?

Admissions and confessions are called ‘detrimental statements’ because it is

generally thought to be detrimental to the party making it. These statements can be
powerful evidence against a party. Much research has been done on the persuasive
value of this type of evidence. More than a quarter of all wrongful conviction
exonerations brought about by the Innocence Project 45 in the USA involves false or
forced confessions or admissions.
For these reasons, detrimental statements must be carefully considered by
courts to prevent miscarriage of justice and unfair trials.
The graduate attributes specifically addressed in assessments on this unit are:
academic competence, critical thinking, and written communication.

10.25.2 Learning outcomes

On completion of this unit, you should be able to do the following:

 Define and analyse the different types of detrimental evidence, including
admissions, confessions and pointings out.
 Describe the admissibility of informal admissions and confessions.
 Describe w h a t i s m e a n t by “formal admissions” and “informal admissions”
a s it pertains to criminal proceedings and discuss the admissibility of both.
 Solve problems that require critical thinking skills by presenting the solution in
written format that are required in practice, for example, a written legal opinion
or heads of argument.

45 Innocence Project “The causes of wrongful convictions”, [Link]

wrongful-conviction./ (accessed on 19 November 2021). Also see: Innocence Project “False
confessions”, [Link] (accessed on 29 January 2024).

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 5.3 What must I study in this Unit?

To conduct a proper study of this unit, please do the following:

 Study the following chapters in your prescribed textbook, as well as the case law
listed under each chapter:
 Chapter 16: Informal admissions
• S v Litako and Others 2014 (2) SACR 431 (SCA)
• S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC)

 Chapter 17: Confessions in criminal trials


5.4 Study material

Overall, when it comes to detrimental statements, we confront three types of

statements that you must know well and distinguish with clarity:
1) Informal admissions – admissions of elements of a crime; usually made out of
court (extra-curial).
2) Formal admissions – admissions recorded in terms of section 220 of the CPA;
made in court, during the trial. Studied in Unit 7.
3) Confessions – categorical admission of all the elements of a crime.

Chapter 16: Informal admissions

Informal admissions will be admissible in criminal trials if it is relevant and voluntarily

made in terms of section 219A of the CPA. In civil proceedings, such admissions are
admissible if only the relevance requirement is complied with.
Admissions can be made in the following ways:
 By way of conduct (including silence and failure to cross-examine).
 Vicariously (note the various exceptions).

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It is interesting and important to note the case law with respect to the informal
admissions and confessions of co-accused against other co-accused. In this regard,
please study S v Litako and Others 2014 (2) SACR 431 (SCA), as well as S v Mhlongo;
S v Nkosi 2015 (2) SACR 323 (CC).

If you are interested in further reading on vicarious admissions against co-accused:

1) TSHABALALA A
2015. Constitutional Court in Mhlongo v S; Nkosi v S (CC) (unreported
case no 148/14, 149/14, 25-6-2015) (Theron AJ) restores common law
position existed before Ndhlovu and Others v S [2002] 3 All SA 760
(SCA). De Rebus, available at:
[Link]
cc-unreported-case-no-14814-14914-25-6-2015-theron-aj-restores-
common-law-position-existed-ndhlovu-others-v-s-2002-3-sa-760-s/.

2) WATNEY M
2014. The clock turned back for the admissibility of extra curial hearsay
admissions against a co-accused in criminal cases: case law. Journal of
South African Law 2014(4): 855-870. (Find in databases)

3) If you are interested to read the heads of argument of the applicant in the case
of S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC), click here.

Chapter 17: Confessions in criminal trials

In R v Becker 1929 AD 167 at 171, a confession is described as “an unequivocal

acknowledgment of guilt, the equivalent of a plea of guilty before a court of law.” The
wording here has resulted in the courts’ strict scrutiny of confessions. Any indication in
the wording of the accused that a possible defence exists, for example, will result in
the court rejecting the argument that a confession has been made.

85
 Make sure you understand the difference between admissions and confessions.
For those students interested in further reading on confessions, you can access and
read the following cases (these are not mandatory for assessment):
• S v Williams and Others 1991 (1) SACR 1 (C)
• S v Zulu and Another 1998 (1) SACR 7 (SCA)
• S v PHK 2023 (2) SACR 234 (FB)

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 UNIT 6
WITNESSES

6.1 What can I expect from this Unit?

This unit introduces you to one of the most important tools in a litigator’s case file: the
witness. When reviewing cases and planning strategy, both parties must ensure that
the witnesses they will be calling to testify are both competent and compellable. It is
also important to know which classes of persons cannot be called or forced to testify.
Eyewitness testimony is very persuasive but can be unreliable. To ensure the
most reliable version of events possible is placed before court, parties are allowed to
refresh the memory of their witnesses. This unit introduces you to this process.
Additionally, you will see how the credibility of witnesses – vital in the determinations
of the weight attached to such evidence – can be attacked during trials.
The graduate attributes specifically addressed in assessments on this unit are:
academic competence, ethical reasoning, critical thinking, and written communication.

10.26.2 Learning outcomes

On completion of this unit, you should be able to do the following:

 Predict the competence and compellability of certain groups of witnesses in light
of the rules of evidence.
 Compare and define ‘competence’ and ‘compellability’ of witnesses.
 Fully discuss the competence and compellability of the different classes of
persons.
 Explain how the credibility of an opponent’s witnesses can be impeached.
 Explain how the credibility of your own witnesses can be impeached.
 Define and describe ‘hostile witnesses’.
 Define the meaning of ‘previous inconsistent statements’.
 Discuss the procedures and evidentiary consequences of previous inconsistent
87
 statements.
 Discuss “refreshing memory”, and describe thoroughly the three stages of memory
refreshment
 Solve problems that require critical thinking skills by presenting the solution in
written format that are required in practice, for example, a written legal opinion
or heads of argument.

6.3 What must I study in this Unit?

To conduct a proper study of this unit, please do the following:

 Study the following chapters in your prescribed textbook, as well as the case law
listed under each chapter:
 Chapter 22: The competence and compellability of witnesses
• S v Katoo 2005 (1) SACR 522 (SCA)
 Chapter 23: The calling of witnesses
 Chapter 24: Refreshing the memory of witnesses
 Chapter 25: Impeaching the credibility of witnesses


6.4 Study material

Chapter 22: The competence and compellability of witnesses

The general rule is that everyone is presumed to competent and compellable to testify
in both criminal and civil proceedings, unless some common or statutory law precludes
compellability and/or competence. When you call a witness in your case, you must be
sure that a common law or statutory exception does not apply to your witness. This
becomes especially important when you call the following witnesses:
✓ Child witnesses – see section 22-4 in the textbook.
✓ Mentally disordered and intoxicated persons – see section 22-5. Also study S v
Katoo 2005 (1) SACR 522 (SCA).

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 ✓ Judicial and court officers – see sections 22-7 and 22-8.
✓ Accused persons testifying in their own cases – see section 22-9.
✓ Accused and co-accused persons in the same trial – section 22-10.
✓ Spouses of accused persons – see section 22-11.

Chapter 23: The calling of witnesses

While the process of calling witnesses is the same in both criminal and civil
proceedings, it is very important to understand, since no trial progresses without the
calling of witnesses.

Chapter 24: Refreshing the memory of a witness

There are three stages during which you can facilitate the refreshing of your witness’s
memory. This is not included in the textbook, so please ensure you include the class
notes in your study of this chapter.
1) Before trial commences – When your witness arrives at court, you can provide
the witness with a statement previously made. In this manner the witness will
be able to recollect what happened during the disputed incident.
2) During a postponement while the witness is testifying – Note the requirements
that must be complied with to use this opportunity for memory refreshment.
3) During the witness’s testimony – Some witnesses, especially expert witnesses,
may need to have their memories refreshed while they provide testimony. Make
sure you understand the requirements.

What happens when you offer a witness their previous statement, and they still do not
remember the incident? Can you no longer call that witness?

Chapter 25: Impeaching the credibility of a witness

89
The credibility of a testifying witness is central to the weight that the court will assign
to the testimony. When we cross-examine witnesses, one of the crucial purposes of
this process is to attack and diminish (impeach) the credibility of the opposing party’s
witness so that the court will attach less weight to the testimony. Cross-examination is
a very important part of this process.
Unfortunately, it sometimes becomes necessary to impeach your own witness’s
testimony. Can you imagine the circumstances in which this will be necessary?

6.5 Critical reflections

 Marital privilege exists to protect the spousal unit. Do you think it is still fair and
just that spouses are deemed non-compellable to testify against one another in
contemporary times?
 What do you think about the courts’ attitude toward the competence and
compellability of child witnesses?

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 UNIT 7
PROOF WITHOUT EVIDENCE

7.1 What can I expect from this Unit?

Not all information that a court considers in deciding facts in cases are obtained from
witnesses. Evidentiary material such as judicial notice and formal admissions can be
very valuable in resolving disputes. This unit reviews these two examples of
evidentiary material.
The graduate attributes specifically addressed in assessments on this unit are:
academic competence and critical thinking.

10.27.2 Learning outcomes

On completion of this unit, you should be able to do the following:

 Define and analyse the different types of possible proof without evidence, such
as formal admissions and judicial notice.
 From a given set of facts, distinguish between informal and formal admissions.
 Explain whether formal admissions may be withdrawn by the accused.

7.3 What must I study in this Unit?

To conduct a proper study of this unit, please do the following:

 Study the following chapters in your prescribed textbook, as well as the case law
listed under each chapter:
 Chapter 26: Formal admissions
• S v Groenewald 2005 (2) SACR 597 (SCA)
 Chapter 27: Judicial notice

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  Chapter 28: Rebuttable presumptions of law
 Chapter 29: A constitutional perspective on statutory presumptions


7.4 Study material

Chapter 26: Formal admissions

Formal admissions are made in court and recorded in terms of section 220 of the CPA.
When an accused makes formal admissions, the admitted elements become common
cause between the parties. Study S v Groenewald 2005 (2) SACR 597 (SCA) for this
chapter.
Can an accused make certain formal admissions and retract it during the course
of the trial? Make sure you attend class to find out! Also, ensure you clearly distinguish
between informal (as discussion in Unit 5) and formal admissions.

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 UNIT 8
WEIGHT OF EVIDENCE

8.1 What can I expect from this Unit?

Evaluation of evidence is done by the court when examining and assessing the
evidence presented during the trial. This is a highly complicated and important process
that depends on the experience, common sense, and logic of the deciding court.
In this unit, you are given a brief view of how courts decide weight of evidence,
including the importance of corroboration, how courts determine credibility of
witnesses, and how courts evaluate identification evidence.
This unit is important because although evaluation of evidence is done
exclusively by the court, parties adducing evidence must be aware of how courts view
witnesses and evidence in order to ensure the strongest possible case.
The graduate attributes specifically addressed in assessments on this unit are:
academic competence, problem solving, and critical thinking.

10.28.2 Learning outcomes

On completion of this unit, you should be able to do the following:

 Distinguish between the concepts ‘admissibility of evidence’ vs ‘weight of
evidence.’
 Explain what the process of evaluation of evidence entails.
 Explain who is responsible for the evaluation of evidence.
 Apply the concepts, principles, and legal theory of the law of evidence to real-
life scenarios when solving problems in a critical and practical way in formative
and summative assessments.

93
  Solve problems that require critical thinking skills by presenting the solution in
written format that are required in practice, for example, a written legal opinion
or heads of argument.

8.3 What must I study in this Unit?

To conduct a proper study of this unit, please do the following:

 Study the following chapters in your prescribed textbook, as well as the case law
listed under each chapter:
 Chapter 30: The evaluation of evidence


8.4 Study material

Chapter 30: The evaluation of evidence

The evaluation of evidence is a very complicated process but critical in accurate fact-
finding. Make sure you attend class for the lectures on this chapter, and make sure
you study the accompanying case law.

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