Law of Evidence are laws and rules governing:
1) How evidence is to be collected, stored and presented.
2) The admissibility of evidence.
3) Assessment/analysis (weight attached) and drawing inferences.
The Law of Evidence prescribe:
1) Which facts may be presented to a court?
2) How to prove an issue?
3) Who may present a fact or prove an issue?
4) How this may be done ?
What is Law?
Law is a body of principles and rules capable of being predicated in
advance.
What are facts?
Facts are descriptive statements that can be falsified. Adjudicative facts
relate to activities or characteristics of the litigants: Did the SAPS read
the Miranda rights to the accused?
three fundamental features of coloniality in the SA Law of Evidence:
1) Procedural milieu of an
adversarial-accusatorial justice system. Fact-finding is then party-
focused, and the judge is impartial and passive. Evidence is tested by
cross-examination.
2) There is a procedural bifurcation between the Law of Evidence and the
Law of Pleadings. Pleadings don’t have regard to the admissibility of evidence and proof of facts
Ways to decolonise the Law of Evidence
1) The Hearsay Evidence, per the Law of Evidence Amendment Act 45 of
1988, changed the strict English rules to a more flexible system that suits
SA better.
2) Court also interprets the Law of Evidence Rules considering S39(2) of
the Constitution required the courts to develop (amend) the common law
rules to be consistent with the Constitution.
3) The court doesn’t have to follow a precedent if it is not in line with the
boni mores or not aligned with the constitution
When was a jury abolished?
In 1968
Facta probanda
1) Essential criteria for a cause of action to be sustained.
2) It is the material facts that a litigant must prove to
establish a case
Facta probantia
1) These are evidentiary facts, subordinate and collateral to the facta probanda
Evidence
1) Evidence is the advancement of facts. It includes oral testimony, real,
documentary and expert evidence
Argument
Put the various pieces of evidence in an organized and intelligible order, apply it to the law to advance one’s case,
2) explain/argue why the court should draw inferences which is suitable
to the case advanced by a party.
Prima facie proof
1) Prima facie proof is proof on the face of it, or legislation may submit that a document is prima facia proof of the content
2) The evidence of the prima facie evidence must be considered proved
unless contrary evidence is forthcoming.
3) Is used in interlocutory applications such as an interim interdict and a decision to charge an accused.
Conclusive proof
1) Determined at the end, and there will be conclusive proof if the standard of proof has been met
2) If prima facie evidence is not rebutted, a court may find that the evidence becomes conclusive
Admissibility
1) Evidence must first be admissible and admitted before a weight can be
attached to it. There may be exclusionary rules which prevent evidence from being admitted
The weight
1) The weight to be attached to the evidence (now admitted) is premised
on the contents of the evidence, its credibility and authenticity.
Direct evidence
1) Direct evidence is evidence that requires no inference to be drawn by
the court
circumstantial evidence
1) Circumstantial evidence requires of the court to make some
inferential reasoning
Hearsay
1) S3(4) of the Law of Evidence Amendment Act 45 of 1988 deals with
hearsay evidence.
2) Hearsay evidence is inadmissible
Relevance
1) If the evidence will make the facta probanda more or less likely, then it
is relevant. Irrelevant evidence is inadmissible
Privilege
1) A formal admission is binding on the person making the admission. The
admission is made for the sole purpose of dispensing with the need to
present evidence to establish the facta probanda
Informal admissions
1) Informal admissions don’t dispose of the question and may be explained
by the person making the informal admission
Confessions
1)
Judicial Notice
1) The court accepts certain facts as proven without receiving evidence.
2) These are facts of general knowledge or local knowledge.
Presumptions
1) A provisional ex lege acceptance of a particular conclusion or state of
affairs, based usually on an epistemic fact or circumstances.
2) Presumptions can be rebuttable or irrebuttable
