EXAMINATION PACK

LAW OF EVIDENCE

LEV3701

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CONTENTS PAGE

Q: PAPER PAGE

MAY/JUNE 2019 03

OCT/NOV 2018 12

MAY/JUNE 2018 20

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LEV3701

MAY/JUNE 2019

SECTION 1

1. 3
2. 2
3. 1
4. 3
5. 5
6. 3
7. 2
8. 3
9. 1
10. 5

SECTION 2

2.1. Generally, the following three requirements have to be met when opinion evidence is at
issue:

1. The court should be satisfied that the expert is capable of giving evidence about the specific
issue. In other words, a foundation for the expert's expertise must be established. It is therefore
very important to test her expertise by asking searching questions on her qualifications (and
even the date when they were obtained), practical experience in her field, as well as her
previous track record as an expert witness.

2. Secondly, the court must be generally informed of the reasons and grounds upon which the
opinion is based. This will enable the court to compare the expert's findings with other findings
of fact in the particular case to see whether the expert's findings are corroborated by them.

3. Thirdly, the court need not rely on the opinion of an expert witness. If, however, the evidence
is of such a technical nature that the court cannot make a reliable inference, the court must rely
fully on the evidence given by the expert.

2.2. Correct approach is to weigh up elements pointing to the guilt of the accused against the
elements that are indicative of innocence

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•Must take into account inherent strengths and weaknesses and probabilities of both sides

•Absence of interest or bias

•Intrinsic merits / demerits

•Two basic principles

•The evidence must be weighed in its totality

•Probabilities and inferences must be distinguished from conjecture or speculation – these must
be considered in the light of proved facts

•Evidence needs to be weighed as a whole, not piecemeal:

•The principles must be used in conjunction with the legal issues that apply when specific issues
are involved, which include circumstantial evidence, corroboration and the cautionary rule.

2.3. The main limitation to police docket privilege is the constitutional right of an accused to a
fair trial, as framed in section 25(3) of the interim Constitution – section 35(3) of the final
Constitution. The police docket privilege which applied in terms of R v Steyn 1954 (1) SA 324
(A) cannot be reconciled with this. Normally, this right would ensure access by the accused to
exculpatory documents (documents which tend to show that the accused is not guilty) in the
docket, as well as to witness’s statements which he may need in order to exercise his right to a
fair trial. The State may oppose such requests on the ground that such access is unnecessary
in order to exercise that right; that it may lead to the identification of a police informant; that it
may lead to intimidation of witnesses or in some other fashion subvert the ends of justice. The
court has to exercise a judicial discretion in determining whether access should be allowed.

2.4. Evidential material

⮚ which independently

⮚ confirms

⮚ other (untrustworthy) evidential matter

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 ⮚ and which is admissible

SECTION 3

3.1. Section 227 of the Criminal Procedure Act 51 of 1977 states that evidence as to the
character of a female complainant in cases of an indecent nature may not be adduced, and
such female shall not be questioned regarding her previous sexual history, except with leave
from the court, which leave shall not be granted unless the court is satisfied that such evidence
or questioning is relevant or unless prior sexual history evidence has been introduced by the
prosecution. However, the complainant’s prior sexual history with the accused “in respect of the
offence which is being tried” is relevant, and may be adduced. In the given situation, the
questions are about the complainant’s sexual activities with other men. They are therefore
irrelevant and inadmissible.

In S v M 2003 (1) SA 341 (SCA) the court identified the following factors that should be
considered in a section 227(2) enquiry:

1. the interests of justice, including the right of the accused to make a full answer and defence

2. society's interest in encouraging the reporting of sexual assault offences

3. whether there is a reasonable prospect that the evidence will assist in arriving at a just
determination of the case

4. the need to remove any discriminatory belief or bias from the fact-finding process

5. the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility

6. the potential prejudice to the complainant's personal dignity and right of privacy

7. the right of the complainant and of every individual to personal security and to the full
protection and benefit of the law

8. any other factor that the presiding officer considers relevant

3.2. This is evidence about a previous consistent statement defined as a statement made by a
person which is consistent with a statement made by the same person during testimony in court
offered in an attempt to corroborate this persons testimony.

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General Rule - it’s inadmissible for a witness to testify that he made a statement consistent with
his evidence in court (or to be questioned to this effect) because evidence of a previous
consistent statement is irrelevant.

Exceptions: Two pieces of evidence about a complaint made soon after an alleged offence of a
sexual nature are admissible even if this evidence is about a previous consistent statement.
These are:

(1) evidence that such a complaint was made

(2) evidence about the contents of the complaint

Such evidence is important in cases dealing with a sexual offence because:

(1) Evidence that the complaint was made is important as it serves to support the credibility
of the complainant.

(2) Evidence on the content of the complaint will also indicate that the evidence tendered in
court has not been recently fabricated and will support the consistency, and therefore
credibility of the complainant.

Requirements before this exception can apply:

1. The exception applies to cases of a sexual nature if there’s been some degree of assault
or physical contact – in the case of young children, no physical contact is required. E.g.
Rape, incest

2. The complaint must have been made at the 1st reasonable opportunity – what is
reasonable depends on the facts of each case, age and understanding of complainant. R v
Gow - court found it reasonable that a girl who was assaulted on a train did not complain to
the ticket inspector, but only later to her mother

3. The complaint need not have been made totally spontaneously, but shouldn’t be the
result of questioning that is intimidating or leading. S v T - the complainant’s mother
threatened to hit her with a stick if she did not tell her who had sexually assaulted her. The
daughter then identified her stepfather. This evidence was excluded by the court.

4. The complainant has to give evidence – in the absence of any evidence by the complainant
the evidence could be inadmissible as hearsay unless it’s found to be relevant for some other

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purpose other than proving the content of the complaint. S v R - the complainant, whilst
distressed and crying and under the influence of alcohol, complained about having been raped
almost immediately after the incident. At the time of the trial, however, she could not remember
anything about the incident. The court allowed evidence (by another witness) of her complaint
and the contents thereof, since it found such evidence relevant to indicate the complainant’s
state of mind at the time of the incident, and to counter the defence of consent (to sexual
intercourse).

SECTION 4

4.1. Data message in the Act means any data generated sent received or stored by electronic
means and includes voice and records. Courts appear to have little discretion in respect of the
admissibility of a data message but rather that they are required to exercise their discretion
when they assess the weight to be attached to the evidence, it is unlikely that such an
approach, appealing as it may be, will be followed by the courts. It is clear that a voice recording
made in an automated process constitutes a data record.

S14 - where the law requires information in its original form, this is met by a data message but
the integrity thereof must be assessed by considering whether it is unaltered

Section 15, provides for admissibility and evidential weight of a data message as electronic
evidence. A voice recording would be admissible as evidence and its authenticity would be
assumed, unless a party to the proceedings puts the authenticity of the recording in dispute.

This will be done through experts who will have to testify to the authenticity of the particular
recording. This is normally done through a trial within a trial. Suffice to say, that the court will
first decide on the admissibility before the trial starts.

What section 15 does, in view of the court in Ndlovu v The Minister of Correctional Services, is
to facilitate admissibility by excluding evidence rules which deny the admissibility of electronic
evidence purely because of it electronic origin. The court was without much analysis, satisfied
that the printout should not be excluded on the basis of the authenticity and original rules.

On the other hand, the court continued, where the computer evidence records data, the
probative value of which depends on a person not called as a witness, then it is hearsay
evidence which may become admissible in terms of the provision of Law of Evidence
Amendment Act or the CPEA and CPA. A preferable approach according to Ndiki is to extend

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the meaning of hearsay to include evidence that depends upon the accuracy of the computer
which would do away with the necessity to distinguish in each case between what would
constitute hearsay evidence and what is real evidence, a task that is not always without
difficulties.

The point of departure, according to Ndiki, is to ‘closely examine the evidence in issue and to
determine what kind of evidence it is that one is dealing with and what the requirements for its
admissibility are.

4.2. Hearsay is evidence, whether orally or in writing, the probative value or which
depends upon the credibility of any person other than the person giving such evidence.
Hearsay is generally inadmissible because it is not reliable, but certain exceptions are
admissible in terms of Section 3(1) of the Law of Evidence Amendment Act, 45 of 1988:

i) Each party against whom the evidence is to be adduced agrees to its admission.
ii) The person upon whose credibility the probative value of the hearsay evidence
depends testifies during the proceedings.
iii) The court, having regard to various factors, is of the opinion that such evidence
should be admitted in the interests of justice.

If such evidence is permitted in terms of the above exceptions, it becomes admissible

hearsay. In exercising its discretion in terms of Section 3(1) (c), the Court should have
regard to the following factors:

i) The nature of the proceedings

As held in Metedad v National Employers’ General Insurance Co Ltd 1992 1 SA 494
(W) 499, because of the presumption of innocence, our courts will be more inclined
to admit hearsay in civil cases than in criminal cases.
ii) The nature of the evidence
Our case law provides no clear guidance, but it can be inferred from Hewan v
Kourie NO 1993 3 SA 233 (T) that the reliability of the hearsay evidence is an
important when considering the nature of the evidence. The fact that the non-
witness, for example, has or had no interest in the matter before the court may
impact on the reliability aspect.
iii) The purpose for which the evidence is tendered

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 As held in Hlongwane v Rector, St Francis College 1989 3 SA 318 (D) and
confirmed in Metedad v National Employers’ General Insurance Co Ltd 1992 1 SA
494 (W) 499, evidence pertaining to a fundamental issue in the case will be more
readily accepted than a evidence tendered for a doubtful purpose.
iv) The probative value of the evidence
To determine if evidence is sufficiently relevant, the probative value is weighed
against the prejudice that a person against whom such evidence is adduced may
suffer. Proof and reliability are fundamental factors.
v) The reason why the evidence is not given by the person upon whose credibility its
probative value depends
Necessity was a basis for the admission of hearsay at common law and it is still
relevant in terms of Section 3. Necessity could arise out of a number of situations,
such as: death, illness, absence from the Republic, frail health, inability to trace a
witness and fear of retribution.
vi) Any prejudice to a party which the admission of such evidence might entail
In S v Ndhlovu 2002 2 SACR 325 (SCA) it was stated that our courts are generally
reluctant to admit hearsay evidence which leads to the conviction of an accused
unless compelling reasons exist for such admission. Where the interests of justice
require the admission of hearsay evidence, the right to challenge evidence doesn’t
include the right to cross-examine the original declarant as it is not an essential
component of the right to challenge.
vii) Any other factor which should, in the opinion of the court, be taken into account
Hearsay evidence that would have been admissible under common law will probably
still be admissible. In Mnyama v Gxalaba 1990 (1) SA 650 (C)), for example, the
deceased's dying declaration was accepted as an exception to the general rule and
hearsay evidence was admissible.
In McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd 1997 (1) SA 1 (A) it was
held that such discretion to admit evidence in terms of Section 3(1)(c) is not simply an exercise
of judicial discretion, but a decision of law which can be overruled by an appeal court if found to
be wrong. Furthermore, the scenario at hand is very similar to that in S v Shaik 2007 (1) SACR
247 (SCA), where it was held that it would be in the interest of justice to allow such a fax as
provided for in terms of Section 3 of Act 45 of 1988.

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In view of all the abovementioned factors, it can be noted that the admission of hearsay
evidence to some extent denies an accused the right to cross examine since the declarant is not
in court and cannot be cross-examined. However, where the interests of justice, constitutionally
measured, require that hearsay evidence be admitted, no constitutional right is infringed. Suffice
to say that where the interest requires that the hearsay statement be admitted, the right to
‘challenge evidence’ does not encompass the right to cross examine the original declarant. In a
nutshell, I would state that hearsay evidence would be admissible in the scenario at hand.

4.3. In R v Becker the court held that a confession was an unequivocal acknowledgement of
guilt, the equivalent of a plea of guilty before a court of law.
S v Khan - the requirements for admissibility in terms of section 217 are aimed at ensuring
fairness. They are there to ensure reliable confessions, to protect the privilege against self-
incrimination and to prevent improper behaviour by the police towards those in custody.
3 requirements in terms of S217(1): for the admissibility of all confessions:
They have to be made:
1. Freely and voluntarily
2. By a person in her sound and sober senses
3. Without being unduly influenced thereto
4. If the confession is made to a peace officer that isn‟t a justice of the peace or magistrate, it
has to be confirmed and reduced to writing in the presence of the magistrate or justice of the
peace.
(1) What is the meaning of freely and voluntarily as used in section 217?
(1) The common law definition is that the statement must not be induced by a threat or a
promise emanating from a person in authority.
(2) What is the meaning of the requirement that the person must have been in his sound and
sober senses (2)
The accused must have been sufficiently compos mentis to understand what he was saying.
The fact that the accused was intoxicated, extremely angry, or in great pain will not in itself lead
to the conclusion that the accused was not in his sound and sober senses, unless it was
established that he could not have appreciated what he was saying.
(3) What does without having been unduly influenced thereto basically mean? (3)
“Undue influence” occurs where some external factor nullifies the accused’s freedom of will.
Examples include the promise of some benefit, or an implied threat or promise. The undue

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influence need not emanate from a person in authority. Note that even a voluntary statement
may be excluded if it was induced as a result of undue influence.
(4) “Justice of the peace” refers to an officer in the SA Police Service (SAPS), including
someone with the rank of lieutenant, captain, major, lieutenant colonel, colonel and higher.
Those in the lower ranks of constable, sergeant and warrant officer are not officers, and
therefore not justices of the peace. Peace officer includes „„any magistrate, justice, police
official, member of the prisons service ... and ... any person who is a peace officer under
[section 334(1)

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LEV 3701 OCT/NOV 2018

SECTION 1

1. 2
2. 2
3. 4
4. 3
5. 3
6. 3
7. 2
8. 1
9. 1
10. 5

SECTION 2

2.1. Hearsay is evidence, whether orally or in writing, the probative value or which depends
upon the credibility of any person other than the person giving such evidence. The fax would
qualify as hearsay evidence. Hearsay is generally inadmissible because it is not reliable, but
certain exceptions are admissible in terms of Section 3(1) of the Law of Evidence
Amendment Act, 45 of 1988:

i) Each party against whom the evidence is to be adduced agrees to its admission.

ii) The person upon whose credibility the probative value of the hearsay evidence depends
testifies during the proceedings.

iii) The court, having regard to various factors, is of the opinion that such evidence should be
admitted in the interests of justice.

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2.2.

1. Freely and voluntarily

2. By a person in her sound and sober senses

3. Without being unduly influenced thereto

4. If the confession is made to a peace officer that isn’t a justice of the peace or magistrate, it
has to be confirmed and reduced to writing in the presence of the magistrate or justice of the
peace. Peace officer includes „„any magistrate, justice, police official, member of the prisons
service ... and ... any person who is a peace officer under [section 334(1)

2.3. The main limitation to police docket privilege is the constitutional right of an accused to a
fair trial, as framed in section 25(3) of the interim Constitution – section 35(3) of the final
Constitution. The police docket privilege which applied in terms of R v Steyn 1954 (1) SA 324
(A) cannot be reconciled with this. Normally, this right would ensure access by the accused to
exculpatory documents (documents which tend to show that the accused is not guilty) in the
docket, as well as to witness’s statements which he may need in order to exercise his right to a
fair trial. The State may oppose such requests on the ground that such access is unnecessary
in order to exercise that right; that it may lead to the identification of a police informant; that it
may lead to intimidation of witnesses or in some other fashion subvert the ends of justice. The
court has to exercise a judicial discretion in determining whether access should be allowed.

2.4. Evidential material

⮚ which independently

⮚ confirms

⮚ other (untrustworthy) evidential matter

⮚ and which is admissible

SECTION 3

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Data message in the Act means any data generated sent received or stored by electronic
means and includes voice and records. Courts appear to have little discretion in respect of the
admissibility of a data message but rather that they are required to exercise their discretion
when they assess the weight to be attached to the evidence, it is unlikely that such an
approach, appealing as it may be, will be followed by the courts. It is clear that a voice recording
made in an automated process constitutes a data record.

S14 - where the law requires information in its original form, this is met by a data message but
the integrity thereof must be assessed by considering whether it is unaltered

Section 15, provides for admissibility and evidential weight of a data message as electronic
evidence. A voice recording would be admissible as evidence and its authenticity would be
assumed, unless a party to the proceedings puts the authenticity of the recording in dispute.

This will be done through experts who will have to testify to the authenticity of the particular
recording. This is normally done through a trial within a trial. Suffice to say, that the court will
first decide on the admissibility before the trial starts.

What section 15 does, in view of the court in Ndlovu v The Minister of Correctional Services,
is to facilitate admissibility by excluding evidence rules which deny the admissibility of electronic
evidence purely because of it electronic origin. The court was without much analysis, satisfied
that the printout should not be excluded on the basis of the authenticity and original rules.

On the other hand, the court continued, where the computer evidence records data, the
probative value of which depends on a person not called as a witness, then it is hearsay
evidence which may become admissible in terms of the provision of Law of Evidence
Amendment Act or the CPEA and CPA. A preferable approach according to Ndiki is to extend
the meaning of hearsay to include evidence that depends upon the accuracy of the computer
which would do away with the necessity to distinguish in each case between what would
constitute hearsay evidence and what is real evidence, a task that is not always without
difficulties.

The point of departure, according to Ndiki, is to ‘closely examine the evidence in issue and to
determine what kind of evidence it is that one is dealing with and what the requirements for its
admissibility are.

14 | Page
3.2. This is evidence about a previous consistent statement defined as a statement made by a
person which is consistent with a statement made by the same person during testimony in court
offered in an attempt to corroborate this persons testimony.

General Rule - it’s inadmissible for a witness to testify that he made a statement consistent with
his evidence in court (or to be questioned to this effect) because evidence of a previous
consistent statement is irrelevant.

Exceptions: Two pieces of evidence about a complaint made soon after an alleged offence of a
sexual nature are admissible even if this evidence is about a previous consistent statement.
These are:

(1) evidence that such a complaint was made

(2) evidence about the contents of the complaint

Such evidence is important in cases dealing with a sexual offence because:

(2) Evidence that the complaint was made is important as it serves to support the credibility
of the complainant.

(2) Evidence on the content of the complaint will also indicate that the evidence tendered in
court has not been recently fabricated and will support the consistency, and therefore
credibility of the complainant.

Requirements before this exception can apply:

1. The exception applies to cases of a sexual nature if there’s been some degree of assault
or physical contact – in the case of young children, no physical contact is required. E.g.
Rape, incest

2. The complaint must have been made at the 1st reasonable opportunity – what is
reasonable depends on the facts of each case, age and understanding of complainant. R v
Gow - court found it reasonable that a girl who was assaulted on a train did not complain to
the ticket inspector, but only later to her mother

3. The complaint need not have been made totally spontaneously, but shouldn’t be the
result of questioning that is intimidating or leading. S v T - the complainant’s mother

15 | Page
 threatened to hit her with a stick if she did not tell her who had sexually assaulted her. The
daughter then identified her stepfather. This evidence was excluded by the court.

4. The complainant has to give evidence – in the absence of any evidence by the
complainant the evidence could be inadmissible as hearsay unless it’s found to be relevant
for some other purpose other than proving the content of the complaint. S v R - the
complainant, whilst distressed and crying and under the influence of alcohol, complained
about having been raped almost immediately after the incident. At the time of the trial,
however, she could not remember anything about the incident. The court allowed evidence
(by another witness) of her complaint and the contents thereof, since it found such evidence
relevant to indicate the complainant’s state of mind at the time of the incident, and to counter
the defence of consent (to sexual intercourse).

SECTION 4

4.1. Section 227 of the Criminal Procedure Act 51 of 1977 states that evidence as to the
character of a female complainant in cases of an indecent nature may not be adduced, and
such female shall not be questioned regarding her previous sexual history, except with leave
from the court, which leave shall not be granted unless the court is satisfied that such evidence
or questioning is relevant or unless prior sexual history evidence has been introduced by the
prosecution. However, the complainant’s prior sexual history with the accused “in respect of the
offence which is being tried” is relevant, and may be adduced. In the given situation, the
questions are about the complainant’s sexual activities with other men. They are therefore
irrelevant and inadmissible.

In S v M 2003 (1) SA 341 (SCA) the court identified the following factors that should be
considered in a section 227(2) enquiry:

1. the interests of justice, including the right of the accused to make a full answer and defence

2. society's interest in encouraging the reporting of sexual assault offences

3. whether there is a reasonable prospect that the evidence will assist in arriving at a just
determination of the case

4. the need to remove any discriminatory belief or bias from the fact-finding process

5. the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility

16 | Page
6. the potential prejudice to the complainant's personal dignity and right of privacy

7. the right of the complainant and of every individual to personal security and to the full
protection and benefit of the law

8. any other factor that the presiding officer considers relevant

4.2. The cautionary rule is a rule of practice bearing the mandatory character of a legal rule that
prescribes a specific approach to be adopted by the court when evaluating certain evidence

The rule requires:

1.That the court should be cautious when assessing evidence that experience has shown
should be viewed with suspicion

2. The court should seek some other safeguard reducing the risk of a wrong finding based on
the suspect evidence.

3. The ultimate purpose of the cautionary is to exclude the possibility of the court reaching an
incorrect finding. The real test is whether the court is satisfied on rational grounds that the
witness or the evidence is reliable.

Children – evidence of young children should be treated with caution due to their
imaginativeness and suggestibility

•There is no statutory requirement that a child’s evidence be corroborated

•The court has to be sure that the child understands the importance of telling the truth

•Trustworthiness depends on the child's ability to observe, to remember the observations and to
recall the events

•Current position is that the cautionary approach be applied to child evidence even though it has
been suggested that it should not be

The Single Witness – statutory provisions make it possible for a court to convict a person
based in single evidence (208 CPA & 16 CPEA)

17 | Page
•If the court is satisfied that the evidence is satisfactory it may but need not regard it as sufficient
to convict

•Note a single witness may be for only one aspect of a case and numerous single witnesses
may be required to prove each aspect

•In S v Webber it was decided that the evidence of a single witness should be approached with
caution but need not be rejected merely because of bias - the bias needs to be assessed in the
light of the evidence as a whole

4.3. If the opinion of an expert would be of great assistance to the court, his opinion will be
relevant and the court should admit his evidence. Expert evidence is almost invariably led in
order to assist the court with regard to facts which can only be properly evaluated by an expert
with particular qualifications. Since the court then has to draw inferences from these facts,
experts are usually involved when considering circumstantial evidence.

Generally, the following three requirements have to be met when opinion evidence is at issue:

1. The court should be satisfied that the expert is capable of giving evidence about the specific
issue. In other words, a foundation for the expert's expertise must be established. It is therefore
very important to test her expertise by asking searching questions on her qualifications (and
even the date when they were obtained), practical experience in her field, as well as her
previous track record as an expert witness.

2. Secondly, the court must be generally informed of the reasons and grounds upon which the
opinion is based. This will enable the court to compare the expert's findings with other findings
of fact in the particular case to see whether the expert's findings are corroborated by them.

3. Thirdly, the court need not rely on the opinion of an expert witness. If, however, the evidence
is of such a technical nature that the court cannot make a reliable inference, the court must rely
fully on the evidence given by the expert.

4.4. Correct approach is to weigh up elements pointing to the guilt of the accused against the
elements that are indicative of innocence

•Must take into account inherent strengths and weaknesses and probabilities of both sides

18 | Page
•Absence of interest or bias

•Intrinsic merits / demerits

•Two basic principles

•The evidence must be weighed in its totality

•Probabilities and inferences must be distinguished from conjecture or speculation – these must
be considered in the light of proved facts

•Evidence needs to be weighed as a whole, not piecemeal:

•The principles must be used in conjunction with the legal issues that apply when specific issues
are involved, which include circumstantial evidence, corroboration and the cautionary rule.

19 | Page
LEV2018 MAY/JUNE

SECTION 1

1. 5

2. 3

3. 2

4. 3

5. 4

6. 1

7. 1

8. 1

9. 1

10. 3

SECTION 2

2.1 Evidence is a fact not yet proof of such a fact. The court must still decide whether

or not such fact has been proved. Proof means the court has received probative

material with regard to such a fact and has accepted such fact as the truth for the

20 | Page
 purposes of such case. Evidential material relates to all forms of evidence for

example oral, documentary, real, circumstantial etc.

2.2 The rights of arrested and accused persons are provided for in section 35 of the

Constititution of South Africa 1996.Section 35(1) provides that every arrested

person shave the right to informed in an understable language that he or she

understands, right to remain silent and the consequences of making a statement.

Section 35(3) provides the rights of the accused for example to be informed of

the charge, to be presumed innocent and to adduce and challenge evidence.

2.3 In general a co-accused is incompetent to testify against another accused for the

state. The exception to the general rule is when the person is nolonger a co-

accused as in the following circumstances:

● When the state withdraws the charge against the co-accused

● By finding the co-accused not guilty, therefore is discharged and later called as a

witness

● By the accused entering a plea of not guilty. In such a case the trial of the

accused and co-accused are separated.

● If the trials of the accused and his co-accused are separated for some other valid

reason.

2.4 Previous consistent statements are admissible in a number of exceptions for

example in complaints of a sexual nature. The evidence should be made soon

21 | Page
 after an alleged offence of a sexual nature. Evidence that such a complaint was

made and evidence about the contents of the complaints.

The evidence that the complaints was made is important as it serves to support

the credibility of the complaint. It also indicate that the evidence tendered in court

has not been recently fabricated.

SECTION 3

3.1 A data message means data generated, sent, received, or stored, by electronic

means, and includes:

a) Voice, where such voice is used in an automated transaction

b) A stored record

The evidential provisions of the Act were designed to cope with evidence in a

“digital” format. Once a voice recording, a photograph, a letter, a picture, or even

a video has been stored in a computer, the format changes from analogue to

digital.

The concept of “data” is central to the Act because a data message is the digital

alternative to traditional evidential concepts of statement, object, or document.

Although it is tempting to argue that courts appear to have little discretion in

respect of the admissibility of a data message but rather that they are required to

22 | Page
 exercise their discretion when they assess the weight to be attached to the

evidence, it is unlikely that such an approach will be followed by the courts. For

example, the view of the court in Ndlovu v The Minister of Correctional Services

is that section 15 serves to facilitate the admissibility of electronic evidence by

excluding evidence rules which deny the admissibility of electronic evidence

purely because of its electronic origin

3.2 An admission can be defined as

● "a statement

● Or conduct

● Adverse to the person from whom it emanates

For an admission to be of any use in a subsequent trial, the admission must be

an admission of a fact in issue. This means it has to be relevant to the facts in

issue.

An admission need not be made in the knowledge that it is adverse to the maker.

Even a statement which is intended to be exculpatory will constitute an

admission if it is to the disadvantage of the maker

A formal admission is generally made in court or in the pleadings and is

considered to be conclusive proof of the fact admitted. It places the fact admitted

beyond dispute. Formal admissions serve to narrow down issues. A party must

intend to make an admission since requisite intention is a requirement for

admission.

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 An informal admission is usually made out of court and merely constitutes an

item of evidence which can be contradicted or explained. An informal admission

does not place the admitted fact beyond dispute. Such an admission has to be

proven by adducing evidence about the admission. The maker of an informal

admission is free to lead evidence to contradict such an admission

In R v Becker the court held that a confession was an unequivocal

acknowledgement of guilt, the equivalent of a plea of guilty before a court of law.

This definition has been adopted by the courts and is applied often. (a confession

is simply an admission of every fact in issue)

The difference between a confession and an admission is one of degree rather

than of nature. The admissibility of a confession can be determined only with

regard to the rules governing the admissibility of confessions; and the

admissibility of admissions can be determined only with regard to the rules

governing the admissibility of admissions.

Section 219A was held in S v Yolelo as a codification of the common law as

regards to the voluntariness of admissions. The voluntariness of an admission

will only be compromised if it has been induced by promise or threat emanating

from a person in authority.

A threat or a promise will be found to have been made if a person by means of

words or conduct, indicates that they will be treated more favourably if they

speak, or less favourably if they don’t.

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 Section 217(1) of CPA contains three basic requirements for the admissibility of

all confessions. They have to be made

1. Freely and voluntarily

2. by a person in his sound and sober senses

3. Without being unduly influenced thereto AND the additional fourth requirement

4. If the confession is made to a peace officer who is not a justice of the peace or a

magistrate, it has to be confirmed and reduced to writing in the presence of a

magistrate or justice of the peace

Section 217(3), allows the prosecution to prove an otherwise inadmissible

confession if the accused adduces evidence of any statement made by him as

part of, or in connection with, this confession, Section 217 (3) is normally

applicable to situations where the defence presents part of a statement which is

favourable to the accused and the state reacts by presenting the unfavourable

part of the statement

SECTION 217(1) provides that evidence of any confession made by any person in

relation to the commission of any offence shall, if such confession is proved to have

been freely and voluntarily made by a person in his sound and sober senses and

without having been unduly influenced thereto, be admissible in evidence against

such person provide;

a) that a confession made to a peace officer is confirmed and reduced to writing

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 b) That where the confession is made to a magistrate is reduced to writing shall be

admissible upon mere production and be presumed to be freely and voluntarily

made.

In S v Mpetha and Others the court held that the object of an inquiry into the

existence of undue influence was to determine whether the accused exercised his

free will.

POINTING OUT OF FACTS OF AN INADMISSIBLE ADMISSION OR CONFESSION

Section 218 of the CPA regulates the admissibility of facts discovered as a

consequence of an inadmissible admission or confession and it provides that;

1) Evidence may be admitted in evidence notwithstanding that the witness who

gives such evidence of such fact, obtained such fact only in consequence of

information given by an accused in a confession which by law is inadmissible

against such accused and that the such fact came the knowledge of such

witness against the wish of the accused

2) The evidence may be admitted as pointed out by the accused notwithstanding

that such pointing out forms part of a confession or statement which by law is

inadmissible against such accused.

The admissibility of evidence discovered in consequence of information given by an

accused in any confession or statement which is not admissible and of evidence of a

pointing out by an accused that forms part of a confession or statement which is not

admissible is qualified by decided cases and the Constitution

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 It was decided in S v Sheehama, that a pointing out is essentially a communication

by means of conduct and therefore a declaration by the person performing the

pointing out that she knows something about the facts in issue. If this statement is to

the disadvantage of the person doing the pointing out, it will constitute an extra-

judicial admission. The rule regarding the admissibility of a pointing out made by the

accused is the same as in the case of any admission, namely that it will be

admissible only if the pointing out was done freely and voluntarily

SECTION 4

4.1 Hearsay is defined in section 3(4) of the Law of Evidence Amendment Act 45 of

1988, to mean evidence, whether oral or in writing, the probative value of which

depends upon the credibility of any person other than the person giving such

evidence

Hearsay evidence is inadmissible, unless it falls within one of the exceptions. It is

inadmissible, because it is not reliable since the credibility of the third party who

witnessed the events cannot be questioned in court

In principle hearsay testimony is not subject to the same reliability checks applied

to direct testimony

The party opposed to the admission of the hearsay evidence would be

procedurally disadvantaged by not being able to "counter effectively inferences

that may be drawn from it

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 Since a witness, standing in the witness box, can be cross-examined and her

reliability tested, and since she can vouch for her own observations, it is only

when the credibility of a person other than the witness is involved that the

evidence can be hearsay

Section 3(1) LEAA states three exceptions to the general rule.

In addition, the common law exceptions to the hearsay rule are presumed to still

apply today. The exceptions are

● Consent

● if the other party testifies

● if the court exercises a discretion and allows hearsay

● common law exceptions

● statutory exceptions

Court will be guided by the following factors;

i) the nature of the proceedings

ii) the nature of the evidence

iii) the purpose for which the evidence is tendered

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 iv) the probative value of the evidence

v) the reason why the evidence is not given by the person upon which the

probative value depends

vi) prejudice to opponents, and

vii) any other factor which in the opinion of the court should be taken into

account

Civil proceedings evidence

The courts take the view that the common law rule in Hollington v Hewthorn in terms

of which the criminal court conviction is not admissible in subsequent civil

proceedings as evidence that the accused committed the offence which he was

convicted. In Society for Advocates of South Africa v Rottanburg the court said,

“Save for certain well known exceptions a conviction or judgment is inadmissible

evidence of the facts upon which it was founded when those facts are directly in

issue in subsequent civil proceedings”.

4.2 Circumstantial evidence refers to the inferences the court can draw from certain

evidence to arrive at a logical conclusion. If inferences are to be drawn from

circumstantial evidence in a criminal case, two cardinal rules of logic apply:

Firstly, the inferences sought to be drawn must be consistent with all the proven

facts. If this is not the case, an inference cannot be sustained. Secondly, the

proven facts should be such that they exclude every reasonable inference except

the one sought to be drawn. If not, then there must be doubt about the inference

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 sought to be drawn and the accused cannot be convicted. This is because the

state must furnish proof beyond a reasonable doubt in a criminal case. Note that

only reasonable inferences must be excluded.

4.4 Real evidence refers to physical objects or things brought before the court so that

it can view for itself. Examples of real evidence could include a knife, a garment

or fingerprint, or even a person. They are no formal requirements for the handing

in of objects such as weapons or prohibited objects such as dagga but handing in

is often accompanied by oral evidence. Someone has to identify the object and

place it in context.

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