NELSON MANDELA SCHOOL OF LAW

FACULTY OF LAW
LEARNING GUIDE
YEAR: 2024

LAW OF EVIDENCE
B

(Module Code: LCE 222E)

Lecturer:V Gobeni

Lecture times

Tuesday: 9:45- 11:15

Friday: 15:00 – 16:30
TABLE OF CONTENTS

PART A: ORGANISATIONAL COMPONENT

1. Welcome statement

2. Purpose of the module 3

3. Contact Details 4
4. Overview of the Qualification 4

PART B: LEARNING COMPONENT

4 Structure of the Module/Course
5. Level of descriptors of the Module
6. Purpose of the Module/Course
7. Learning Outcomes and Associated Assessment Criteria
8. Teaching-Learning Methods
9. Evaluation
10. Course Outline
11. Faculty Requirements
12. Plagiarism, Cheating and Other Academic Offences
13. Books

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PART A: ORGANISATIONAL COMPONENT

1. WELCOME STATEMENT

1.1 The law can be divided into substantive and procedural or adjectival law.
Substantive law is the body of generally accepted, binding legal norms which
apply to society and which regulate it. This body of law defines the content of
the legal rights and duties, which exist between legal subjects, and their
relationship to things.

1.2 Procedural law, on the other hand, is that body of legal rules which
determines how such rights and duties are protected and enforced within the
community. The courts are the chief means of such protection and
enforcement. It is of vital importance to society that disputes are resolved
peacefully, and without citizens’ taking the law into their own hands.
Procedural law is therefore fundamental to the well being of society. The
purpose of procedural law is to do justice between the parties. Where strict
compliance with a procedural rule is required, it is because anything less will
potentially disadvantage the other party and, where an indulgence is asked
for, it will be granted only if there is no prejudice to the other side.

2. PURPOSE OF THE COURSE

For the student to acquire a deeper knowledge of certain aspects of the law of
evidence not dealt with in Law of Evidence A. It presupposes that the student has
already passed Law of Evidence A. Together they should cover all the main
aspects of the law of evidence encountered in practice.

3. HOW THIS FITS INTO THE OVERALL DEGREE

STRUCTURE

As a procedural (adjectival) law subject, this course equips the student to apply

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the substantive law and law of criminal and civil procedure in courts and tribunals
in South Africa. As already alluded to, it builds on Law of Evidence A. In terms of
the overall LLB structure, Law of Evidence B (as is the case for Law of Evidence
A) builds on the foundational knowledge and skills obtained in the modules offered
in the first and current year of study including criminal law, contract and law of
persons. For example, Criminal Law, as one of the modules encountered in the
previous years, engages with aspects of crimes and their definitions. Thus, the
skills of modules such as Criminal Law are built upon in the Law of Evidence as
the rules of adducing evidence are necessary to prove the commission of crimes
which are taught in criminal law. The skills imparted by the law of Evidence will
prove relevant in other modules including the Law of Criminal Procedure, Civil
Procedure and LAC internship.

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 4. CONTACT DETAILS

4.1 Role Players

PERSON NAME OFFICE EXT. Contact details

Lecturer(s): Viwe Gobeni 620 [email protected]
[email protected]
Class Rep: Ms N. Mbele 0646277395
Mr M Gumbi 0664111297
HOD Adv Seti 623 7521 [email protected]

4.2 Consultation Time

The Lecturer will be available to meet students individually upon appointment. Please bear
in mind also that for various reasons the instructor may not be in her office at a particular
consultation time. This consultation opportunity is exclusively reserved for matters
pertaining to this course only. Alternatively, consultations can be conducted virtually.
Tuesday 11;30 -13:30

5. OVERVIEW OF THE QUALIFICATION

5.1 Name of the Qualification/Programme: Bachelor of Laws (LLB)

Rationale for the Degree

5.2 The LLB is now the only recognised qualification for legal practice. Formerly
holders of a B Proc were allowed to enter into the Attorney's profession and
holders of a B Juris could serve in the civil service as magistrates or
prosecutors. The B Proc and B Juris programmes have been phased out.
No new candidates are allowed to register for these programmes with effect
from 2004.

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5.3 In taking up the study of law, one embarks on the challenging process of
becoming a member of one of the oldest and most rewarding vocations that
exists. Legal training is steeped in a long tradition of liberalism. It develops
skills in the mastering of facts and theory as well as in lucid and logical
expression. A successful learner will acquire these qualities and discover
them to be greatly to his/her advantage in his/her leadership role in society.

5.4 As a lawyer, successful learner will enjoy a status shared by few others in
the society and has a wide choice of careers. He or she can practise as an
attorney or advocate, serve within the judiciary as prosecutor, magistrate or
judge, or enter government or the business world as legal advisor or senior
executive.

PART B: LEARNING COMPONENT

6. STRUCTURE OF THE COURSE/MODULE

Module Title: Law of Evidence B

Module Code: LCE 222E
Credit Value: 16
Place in Programme: Core in Bachelor of Laws (New LLB)
Date of Approval of
Module/ Course by
Faculty:

Name of Lecturer: V GOBENI

7. LEVEL OF DESCRIPTORS

OF THE MODULE National

Qualifications Framework

(NQF) Level:

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 6

8. PURPOSE OF THE MODULE/COURSE

To empower learners with the relevant knowledge of the principles and the
rules relating to the Law of Evidence South African. In particular, this part
of the course focus foundational and general principles of the law of
evidence and it also put more emphasis on practical skills

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 9. LEARNING OUTCOMES AND ASSOCIATED
ASSESSMENT CRITERIA

9.1 Learning Outcomes at NQF level 6

On successful completion of this module learners should be able to:
1.1 Read, remember, understand and analyse fundamental concepts, principles and
theories
1.2 identify and solve problems
1.3 collect, analyse and evaluate information
1.4 communicate effectively
1.5 recognise problem solving contexts
1.6 solve legal problems in a practical scenario

Learning Outcomes: Associated Assessment Criteria:

Describe opinion evidence and the • Opinion evidence
principles relating thereto; the traditional rule • Principles relating to opinion evidence

distinguishing between the opinion of experts • Rules relating to presentation of opinion evidence
• Critically analyses the appropriateness of some
and lay people; critique the validity of this
earlier cases which apply different criteria to
distinction; describe the rules relating to the
opinions of experts and lay person
presentation of expert opinion evidence
Describe character evidence and the principles relating • Meaning of character evidence
thereto; identify character evidence in a given factual • Principles relating to admission of such
scenario, and ‘decide with reasons whether such evidence
evidence would be admissible • Identifies whether in practical scenario
character evidence would be permissible, and
if
admissible applies correct rules

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Describe what hearsay evidence is; what the approach • previous consistent statement
of courts to it is; identify hearsay evidence in a factual • rules relating to admissibility/inadmissibility
scenario and argue for its admission or exclusion thereof
• Identifies previous consistent statement in
practical scenario and applies correct rules

Identify and describe a previous consistent statement by • previous consistent statement

a witness, apply the relevant rules to a factual scenario
• rules relating to admissibility/inadmissibility
to decide when a previous consistent statement is
allowable in evidence or not thereof
• Identifies previous consistent statement in
scenario based assessment
Describe the rules relating to the admissibility of • rules relating to admissibility of evidence
evidence about prior conduct of an accused person
about prior conduct of accused
tending to show a pattern or disposition; apply the rules
to a factual scenario so as to decide whether a court • Identifies in practical scenario whether prior
should permit or refuse evidence about such prior
conduct of accused would be admissible or not
conduct
(similar fact evidence )

Describe the various types of admissions by accused • Effect of admissions

persons and parties to civil cases receivable as
• Distinction between formal and informal
evidence, the rules applicable to each type, identify
admissions of the various types from a factual scenario, admissions
and apply the appropriate rules to the admissions so
• Distinction in criminal case between
identified
confessions and other admissions
• Correct rules for admissibility for each type
• Identifies and applies rules in practical
scenario
Describe the parole evidence rule by: Demonstrates a clear and comprehensive
understanding of the parole evidence rule and
- Explain the purpose and function of the parole evidence
rule. its purpose.
- Correctly identifies the types of evidence that
- Distinguish between the types of evidence that are
admissible and inadmissible under the rule. the rule permits and prohibits.
- Accurately recognises the exceptions to the
- Identify the exceptions to the parole evidence rule. e

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implications of the parole evidence rule on contract rule.
drafting and interpretation.

Describe what privileged evidence is; describe the two - Nature of privilege
main categories of privileged evidence (private and
• Two main categories
State) as well as the subcategories within each main
category. • Distinction between main categories
apply the applicable rule(s)
• Sub-categories within each category
• Identifies privilege in factual scenario and
applies applicable rules
Describe the history of the approach of South African and Describes development of approach of courts
selected foreign courts to evidence obtained in violation
in SA and elsewhere to evidence obtained in
of a constitutional right; identify unconstitutionally
obtained evidence from a factual scenario and argue for violation of rights
it to be allowed or disallowed.
Identifies unconstitutionally obtained evidence
in a practical scenario and applies appropriate
principle to decide whether to allow or reject
such evidence

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 10. TEACHING-LEARNING METHODS
- Lectures (mainly with the aid of PowerPoint slides)

- The learning process will in many respects incorporate assessment for purposes of testing
one’s own knowledge of the unit.

- Skeleton slides for teaching purpose only

- Reading list at each lecture

- Class and group discussion

- Assignment

- Test and examination

11. ASSESSMENTS
Assessment Methods:
Students are required to do all the assessments, both formative and summative.
Students’ group work and individual research-based assignments will be
assessed. The test and examination are assessed summative with feedback and
comments on the test constituting formative assessment. (Class discussions:
examining examples (formative), Written test (summative): paragraph style
description or factual problem requiring solution , Final examination (summative):
paragraph style description or factual problem requiring solution.

Individual Assignment 50 Marks 30 August 2024

(annexed in this document)
Individual Test 30 Marks 20 September 2024
Class group work 20 Marks 16 August 2024
Sick test 30 Marks 1 October 2024
Final Examination 100 Marks See timetable when
released

You have 7 days to query your

assessments/ marks.

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 12. COURSE OUTLINE
I. Admissibility: Character evidence
I. Admissibility: Similar fact evidence
II. Admissibility: Opinion evidence
III. Admissibility: Hearsay Evidence
IV. Admissibility: Previous consistent statements
V. Formal Admissions
VI. Informal Admissions.
VII. Confessions.
VIII. The parole evidence rule.
IX. Privilege
a) Professional privilege
b) Private Privilege
X. Illegally obtained evidence

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 13. FACULTY REQUIREMENTS

Due Performance Requirements (Faculty Rule L.8)

13.1 The following requirements MUST be satisfied in order for a student to
qualify to write the examinations in this module.

Class attendance
13.2 Class attendance is compulsory for all law modules. Accordingly,
attendance registers shall be circulated in class and must be completed by
learners. A learner’s class attendance record shall be considered for the
purposes of considering condonations of final marks and any other
discretionary student matters.

Special note:
13.3 Class attendance is compulsory for all law students. Therefore, every
student should obtain 100% lecture attendance in each module. A leave of
absence will only be granted to students who, by reason of illness or other
special circumstances, are unable to attend lectures; provided that no
student shall be absent from lectures for a period/periods exceeding 25%
of the required attendance in each module. Every application for leave of
absence should be accompanied by satisfactory evidence of such illness or
special circumstances and, further, should be submitted to the Faculty
Secretary prior to the date of absence from class.

Participation in tests and assignments

11.5 100% participation in mandatory tests and assignments is required by the
Faculty.

Requirement of an examination entrance (due performance) sub-

minimum (General Rule 5.9)
11.6 A student shall not be eligible to write the degree or supplementary
examination in any module for which s/he is properly registered unless s/he
has obtained a minimum semester (DP) mark of 40% in the module. For
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the avoidance of doubt,

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this rule shall not apply to a student who is registered for a module under General
Rule 7 or under any other institutional rule that exempts her/him from the requirement
of a semester (DP) mark.

Requirement of an examination sub-minimum (General Rule 5.10)

11.7 Notwithstanding the provisions of General Rule 5.8, a student shall only be
credited with a pass in a module if s/he obtained a minimum of 40 percent
in the degree or supplementary examination.

11.8 A student who has been unsuccessful in obtaining the examination sub-
minimum mark of 40 in the degree examination shall be entitled to a second
chance at obtaining the said sub-minimum mark (through the
supplementary examination) provided s/he obtained a minimum final mark
of 45.

Faculty referencing style

11.9 In preparing and submitting assignments which require students to
acknowledge their authorities and sources in footnotes, Faculty requires
that ALL students use the house style of Speculum Juris, the law journal
published jointly by the Faculty. For this purpose, students should therefore
familiarize themselves with Speculum Juris Style Guide available on the
Faculty notice board. Copies of Speculum Juris are also available on short
loan in the Library.

14. PLAGIARISM, CHEATING AND OTHER ACADEMIC

OFFENCES

14.1 UFH values academic integrity. Therefore, all students must understand the
meaning and consequences of cheating, plagiarism and other academic
offences under the Code of Student Conduct and Disciplinary Procedures.

Plagiarism Alert – Additional Learner Responsibility

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14.2 Learners must be aware that plagiarism is an academic offence prohibited
in terms of the UFH Plagiarism Policy 2009. With regard to what constitutes
plagiarism, etc, see the following extract from the said policy.

“Plagiarism, in an academic, university context, may be defined as

taking and using the ideas, writings, works or inventions of another,
from any textual or internet-based source, as if they were ones own.”

14.3 This definition covers the following aspects: Using the direct words of
another without using quotation marks (even if the passage is referenced);
The unacknowledged copying of a sentence or two of text; copying more
extensive blocks of text; The syndication of a single piece of work by more
than one student (unless the assignment task is a legitimate group
assignment); The borrowing and using of another person’s assignment (with
or without their knowledge and permission); Stealing an entire essay from
another person or from the Internet; or infringing copyright.

14.4 For the purposes of this policy, the intention, negligence or innocence of a
person is not relevant to the finding as to whether plagiarism, as a fact, has
occurred. However, the state of mind of the person will be highly significant
in determining how to deal with the case as far as taking remedial action or
imposing a penalty is concerned.
14.5 Students should note that their assignment may be submitted to an
electronic plagiarism detection software programme now available to the
Faculty.

Consequences of Cheating / Fraud for Law Students

14.6 The Dean of Law will not provide a testimonial in respect of any law student
who is convicted of cribbing, plagiarism or any other form of
cheating/dishonest conduct in a test/examination or on an assignment or
any assessment exercise. Recently, there has been an increase on a
number of prospective employers who require the Dean’s testimonial
before employing law graduates. Without a
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 testimonial from the Dean, a law graduate’s prospects of employment
will be diminished.

14.7 Second, a law graduate without a testimonial from the Dean will not (a) be
admitted as an attorney; or (b) be allowed to register for articles of clerkship
– which is necessary in order to qualify for admission as an attorney. Also,
a law graduate who is not in possession of a testimonial issued by the Dean
may not (a) be admitted as an advocate; or (b) be accepted for pupillage
training – which is necessary for admission to the bar (of advocates).

14.8 Lastly, a law graduate convicted of academic offence involving dishonesty

will be regarded as not ‘fit and proper’ for admission to the legal profession.
The reason being that the element of dishonesty in the offence concerned
will certainly taint the person’s integrity. To meet the requirement of ‘fit and
proper’ the candidate must be a person of unquestionable integrity. The
requirement of ‘fit and proper person’ for admission to the profession is
set out by Section 15(1) (a) of Attorneys Act 53 of 1979 and Section 3(1)
(a) of Admission of Advocates Act 74 of 1964. Please take not that the Legal
Practice Act. Furthermore, students’ attention is drawn into the case of Ex
parte Gunguluza 1971 4 SA 212 (N) where a person who cheated in
examination was regarded as ‘not fit and proper’ for admission to the
profession.

15. RESOURCES AND OWN NOTE MAKING

➢ Students are expected to TAKE NOTES IN CLASS and use the textbooks below
and cases cited to make their own notes.

➢ TEXT BOOKS:
o Zeffert and Paizes: The South African Law of Evidence. LexisNexis (3rd
edition- 2017).

o Schwikkard & Van der Merwe: Principles of Evidence. Juta (4 th edition

– 2016).

o Zeffert and Paizes: Essential Evidence. LexisNexis (2nd edition- 2020).

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 NB. Please note that the editions cited above are the most recent editions. Therefore, for
purposes of personal study, the pages cited
(based on the current edition) may differ for the version you are currently using (which
could be an earlier edition).

➢ See also

• Commentary on the Criminal Procedure Act, by Du Toit and others (looseleaf) 6

➢ Other sources

• Constitution of the Republic of South Africa1996

• Criminal Procedure Act, Act 51 of 1977
• Civil Proceedings Evidence Act 25 of 1965
• Electronic Communications and Transactions Act 25 of 2002
• Law of Evidence Amendment Act 45 of 1988
• Case Laws to be provided in class as per the topic cove

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Annexure

UNIVERSITY OF FORT HARE

NELSON R MANDELA SCHOOL OLAW

LCE 222E

SEMESTER ASSIGNMENT

Instructions

1. Read these instructions carefully!

2. The assignment is due on 30 August 2024.

3. This is an individual assignment

4. Your assignment (hard copy) MUST be submitted during class time (15:00 –
16:30)

5. Write your name, surname and student number clearly.

6. Answer all questions

7. Pay attention to mark allocation.

8. Where relevant , your answer should be fully motivated and the relevant
authority must be cited in support of your arguments

9. No use of AI, STUDOC AND Paraphrasing tools is permitted

10. Your work MUST USE (a) one-and-a-half line spacing; (b) Arial or Times New
Roman font size 12. Furthermore, your pages (text and footnotes) MUST BE
justified. References MUST BE in footnotes. The footnoting style to be
followed is the one for Articles in SPECULUM JURIS.
http://specjuris.ufh.ac.za/style-guide-0

11. This assignment carries 50 marks(half your dp mark)

 =====================================================
FACTS

Siza is residing with her husband, Simphiwe. They are married in a community of property
and have three children. Siza is employed as a domestic worker, while Simphiwe is a
Chartered Accountant at KPMG. Simphiwe has been very abusive towards Siza for several
years. Siza is not willing to divorce Simphiwe as she is worried, he will not be able to maintain
her lavish lifestyle should she leave Simphiwe.

Siza tells you that on 31 December 2021, he was assaulted by Simphiwe with fists on the
face. Siza reported the matter to the police, and Simphiwe was convicted of assault in
February 2022. Siza further tells you that Simphiwe is a very angry husband that enjoys
breaking things when upset. He also tells you that on 16 June 2022, Simphiwe sexually
assaulted her. Later that day, she conveyed what happened to their daughter, Mali. Both Siza
and Mali have made a statement to the police regarding the sexual assault.

Siza also informs you that on 9 August 2022, Simphiwe paid someone to come kill Siza. The
person shot at Siza the following day but missed. Siza described to the police what the person
looked like, and the police sketcher drew the shooter's face according to Siza 's description.

A person (Vuyo) was subsequently arrested for the shooting, the police advised that Vuyo
confessed to the shooting. His exact words were “Yes I did shoot at Siza ".

Vuyo also pointed out the firearm allegedly used during the shooting. However, he also
alleges that the police beat him up and they also promised that “if he shows them something
useful, they will make sure he does not go to jail”.

Fingerprints belonging to Vuyo were found on the firearm. A handwritten note (instructing
Vuyo to shoot Siza) was also found in Vuyo’s pockets at his arrest. Siza alleges that the
handwriting on the note belongs to Simphiwe. The matter eventually goes to trial.
=====================================================================
Questions

1. You are a Prosecutor representing Siza – Simphiwe is on trial for raping Siza .
Would you use the information that Simphiwe previously abused Siza? Substantiate
your answer. (10)

2. You are the defence lawyer and represent Simphiwe - During the trial, Simphiwe
wants to admit to some of Siza”s allegations and wants to inform the court of what
he agrees with. He wants to do this to minimise what is disputed and finalise the trial
quicker. How would you proceed to do that as his lawyer? Fully advise & refer to
legislation. (10)

3. Let's say Simphiwe takes your advice in the above question and proceeds
accordingly. What would you do if he later says he made a mistake and wants to
undo the process he undertook earlier? Is that even possible to reverse the process?
Advise Simphiwe fully. (10)

4. Do the Vuyo”s words, "Yes I did shoot at Siza" amount to a confession? Give
reasons for your answer. (5)

5. You are the prosecutor and represent Siza - There is special training offered to
members of the SAPS and private security personnel on identifying fingerprints. Siza
does not have such training but wants to tell the court the handwriting on the note
found on Vuyo belongs to Simphiwe. Would such evidence be admissible? Give
reasons for your answer. (5)

6. What type of witness would you call to prove that the fingerprints belong to Vuyo?
Why? What role does such a person's evidence play at court? (10)

[50]
 UNIVERSITY OF FORT HARE

NELSON R MANDELA SCHOOL OF

LAW

PLAGIARISM DECLARATION

1. I know that plagiarism means taking and using the ideas, writings, works or
inventions of another as if they were one’s own. I know that plagiarism not only
includes verbatim copying, but also the extensive use of another person’s ideas
without proper acknowledgement (which includes the proper use of quotation
marks). I know that plagiarism covers this sort of use of material found in textual
sources and from the Internet.

2. I acknowledge and understand that plagiarism is wrong.

3. I understand that my research must be accurately referenced. I have to the best of

my knowledge and ability followed the rules and conventions applicable to legal
writing concerning referencing, citation and the use of quotations.

4. This assignment is my own work. I acknowledge that copying someone else’s

assignment, or part of it, is wrong, and that submitting identical work to others
constitutes a form of plagiarism.

5. I have not allowed, nor will I in the future allow, anyone to copy my work with the
intention of passing it off as their own work.

Signed ………………………………….........................

date…………………………………