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Law of Evidence N - Overview Notes

Overview of the law of evidence notes

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7 views

Law of Evidence N - Overview Notes

Overview of the law of evidence notes

Uploaded by

mrmlambo47
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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Learning Unit 1: Overview of the Law of Evidence

Presentation of evidence

• The way in which evidence is presented is dependent on the nature of the evidence.
• Oral evidence is given by a witness, delivering his/her testimony from the witness box.
• Real things may be presented to a court as evidence. These may be in the form of
documents.
• In certain instances, courts will accept some information without any evidence being
presented on it; the court will take notice of well-known, easily determined facts, or
some legal rule which provides for the presumption of a fact.

Admissibility of certain types of evidence

• Admissible evidence can be used to prove one’s case while inadmissible evidence
cannot.
• The basic principle is that all evidence should be used in proving the case. Evidence
may be admissible or inadmissible based on certain factors, such as evidence being
inadmissible as it was obtained through the violation of rights enshrined in the Bill of
Rights; the evidence is irrelevant to the court; the evidence is excluded due to a higher
value being placed on privilege; and more.

Evaluation of evidence

• It is the task of the court to evaluate evidence in order to reach its findings. It is essential
to consider the burden of proof as it is part of the process which a court needs to
endeavour into.
• The court needs to consider the weight of the evidence (often determined by questions
of whether it is direct evidence or circumstantial evidence); whether there are reasons
to be cautious of the evidence presented; and the extent to which various bits and pieces
form a puzzle to corroborate (support and strengthen) one another.

Importance

• The law of evidence is always applicable.

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Chapter 1 – Schwikkard and Mosaka Principles of Evidence (5th ed Juta 2023).

Origin of Law of Evidence

• South Africa has a blend of traditional and state courts where principles of evidence
and proof are applied, and this book will focus primarily on the practice in state courts.
• South Africa’s law of evidence was introduced by the British colonial government
through the promulgation of the Cape Ordinance of 1830. The subsequent Natal
Ordinance 19 of 1845, the Orange Free State Ordinance 6 of 1856 (and later Ordinance
11 of 1902) and the Transvaal Law of Evidence Proclamation 16 of 1902 were carbon
copies of the original Cape statute.
• Probationes debent esse evidentes, id est, perspicuae et faciles intelligi (proofs ought
to be made evident, that is, clear and easy to be understood) and in jure non remota
causa sed proxima spectator (in law it is the immediate, not the remote, cause which is
regarded), being in operation during the European medieval period.
• It is against this complex background of coloniality that South Africa’s law of evidence
has evolved to its current form in the Civil Proceedings Evidence Act 25 of 1965
(CPEA) and the Law of Evidence Amendment Act 45 of 1988.

What is the Law of Evidence?

• Tregea v Godard (AD 1939) – It is the set of rules which has to do with judicial
investigations into questions of fact.

Roles of the Law of Evidence

• A wide variety of forensic and legal experts regularly interact with the law of evidence
when performing their functions. The law of evidence focuses on the fairness and
integrity of fact-finding processes across multiple disciplines.

Characteristics of South African Law of Evidence

• 1st feature – it operates within the procedural context of common law adversarialism
(at minimum, the process of fact-finding is self-centred, the model of proceeding takes
the form of a contest/dispute before a passive adjudicator, and the testing of evidence
is mainly conducted through cross-examination by the opposing parties).

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• 2nd feature – the more specialised law of evidence is focused on the presentation,
admissibility of evidence, and the proof of facts.
• 3rd feature – SA’s law of evidence is located within a long tradition of rationalist
tradition of evidence scholarship (prefers the use of rational persuasion rather than
placing reliance on traditional old forms of trial) in fact-finding processes.

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