CHAPTER 12 UNCONSTITUTIONALLY OBTAINED EVIDENCE Note this whole chapter has been reproduced as it will be easier to follow it that

at way. Semester 2 begins from the section titled S 35(5) of the Constitution. 1 Introduction

This topic covers a wide field. There are numerous cases relating to the admissibility of this kind of evidence. We are talking here of highly relevant evidence that is excluded on the basis of other considerations. This section is governed by section 35(5) of the Constitution: Evidence obtained in a manner that violates any right in the BoR must be excluded if the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. This section has not yet been interpreted by the CC. S 35 (5) closely resembles the equivalent Canadian provision. Thus, our courts have followed Canadian jurisprudence on this topic. Unconstitutionally obtained evidence is another rule which excludes certain relevant evidence. Heres a practical scenario: the state obtains evidence in breach of accuseds constitutional right to not incriminate himself. Should this evidence, which is taken to be highly relevant, be excluded or not? Should the court have the discretion to decide this issue? 2 The competing interests

Once again, we are dealing with a conflict of interests that needs to be kept in a proper balance: - The interest of the citizen: protected against illegal or unlawful action on the part of the authorities - Interest of the state: to ensure that relevant evidence bearing on the commission of a crime and necessary to enable justice to be done is not excluded on some technical ground Lord Cooper in Lawrie v Mure: Ultimately, balancing these is a matter of reconciling both, as either in the extreme is undesirable. History of the Rule The USA has a strict exclusionary approach to protect rights in the American BoR, and to promote substantive and procedural due process. This rule infiltrated other systems, although in a modified form, as a discretionary rule. It has also had an impact on regional and international systems and tribunals. Anglo-American systems initially relied on the English common law approach, but an emphasis on judicial integrity and the promotion of legality/protection of fundamental rights has led to the adoption of a discretionary approach either through a Constitution/ BoR or by judicial creation. In SA, the final constitution took cue from the Canadian Charter. They adopted a via media approach as a compromise between the extreme American approach and the approach formerly in SA. For the rationale for this approach, see the exclusionary approach below.

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There are three approaches used in South Africa in this regard: inclusionary, exclusionary & discretionary: 3 Inclusionary Approach

This is the traditional Anglo-SA approach prior to the Constitution: All relevant evidence is admissible. The court is thus not concerned with the manner in which it was obtained. The main argument in its favour is essentially that it is pragmatic and expedient. There is however, a qualification as per Karuma v R 1955 AC (England): this rule is subject to a very limited judicial discretion, if the strict rules of evidence operate unfairly against the accused. The rationale behind this is that: 1. The end justifies the means This is the crux of the approach. According to the Wout, this is quite a common standpoint. It means that if there is illegal conduct on the part of the police in obtaining the evidence, but that this evidence leads to a conviction, then it is justified. Criticism against this approach is stated by that Super-Jew Brandeis J in Olmstead v US: If the government becomes a law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy to declare that, in the administration of criminal law, the end justifies the means The main counter argument: Two wrongs do not make a right Other rationale: a) Criminals do not restrict themselves in committing crimes so why should the police restrict their methods. b) The probative value and the relevance of evidence is not impaired by unlawful methods employed in acquiring it. c) Exclusionary rule necessarily requires investigation and adjudication of collateral issues which blurs true issues by shifting focus on to conduct of police rather than accused. d) There are sufficient other remedies available to accused whose rights have been violated. e) Policing is social service aimed at protecting society and for purpose of effective law enforcement, society must tolerate illegal police conduct. f) Exclusionary approach has no deterrent effect g) Not purpose of law of evidence to deter illegal police conduct and not meant to be indirect form of punishment h) Exclusionary rule protects the guilty from conviction i) Criminals do not restrict themselves in committing crimes or in the weapons or means that they use so why should the police restrict their methods j) Exclusionary rule frustrates effective policing Page 2 of 154

k) Exclusionary rule allows police to frustrate the judicial process through unlawful conduct l) Public policy does not militate against admission of unlawfully obtained evidence m) Argued that exclusion of unconstitutionally obtained evidence is perceived by society as a condonation of unlawful acts. Argued that if an accused who is factually guilty walks free because of technical blunder by state, then the criminal justice system is held in disrespect by the public. n) Exclusionary rule may have unintended result of limiting ambit of fundamental rights in order to admit crucial evidence. o) Exclusionary approach allows no room for proportionality p) Prosecutor may accept plea of guilty on lesser offence in unacceptable circs because she is apprehensive about the operation of the exclusionary approach There are obvious rebuttals to many of these. 4 Exclusionary Approach

If evidence is gathered by illegal conduct on part of the police then such evidence is excluded (bar some minor exceptions). Thus, if the police use unconstitutional methods the courts as a rule will exclude it. This is pretty much the direct opposite of the inclusionary approach and is the approach followed in the US. The Preventative Effect Argument This approach influences the police to comply with the law and follow the rules in gathering evidence against the accused. Elkins v US: The purpose of rule is to deter. The rule will compel respect by removing the incentive to disregard constitutional guarantees. In this sense, the court fulfils a kind of disciplinary function. In South Africa, this approach was referred to in S v Mphala Due Process in the context of the Bill of Rights In the prosecution of crime, due process must be followed from the outset until the end of proceedings. Unconstitutionally obtained evidence should be excluded because if not, it will compromise other more important values. We must ensure that the conviction of the accused takes place according to a proper procedure, whereby his constitutional rights are respected throughout all the critical stages of a prosecution. This argument receives more strength when viewed in the context of a BOR that demands and guarantees it, and places important constitutional limitations on official power. It acts not as an evidential barrier, but rather as a constitutional barrier. Procedural justice must be maintained at both the gate-house and the mansion (ie. the courthouse). This famous quote is one which Wouter uses a lot. Underlying this idea is the principle of legality: in prosecution of the accused, the state must comply with the law, and can therefore only use legal means to investigate a crime.

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This may mean that in an individual case, justice may not be served because an accused who is factually guilty may walk free because of some technical blunder of the state. However, one must take into account that in terms of this approach, social justice is achieved and in this regard one can say that the integrity of the system is protected and judicial integrity is also ensured. Doctrine of Legal Guilt The role that that the exclusionary rule plays in ensuring that the notion of legality is retained in the criminal justice system is supported by the due process doctrine of legal guilt, which essentially holds that you cannot convict someone unless you have kept all their rights in order, afforded them a fair trial and the case has been conducted in a procedurally fair manner. Good authority for this is the case of S v Lwane Judicial Integrity The Supreme Court of the USA have identified four facets to this approach, that in admitting such evidence: 1) courts will violate constitution; 2) courts will act contrary to oath to uphold Constitution 3) courts will be indirectly encouraging violations 4) courts will create impression that they sanction unconstitutional conduct This argument loses ground where a discretionary rule is provided for, but must still consider these facets in exercising discretion (S v Hena) Principle of Self-Correction An effective due process systemmust have the inherent ability to correct abuses within the system, the moment they occur. Acceptance of this principle leads to further valid argument: the exclusionary principle it is not primarily aimed at discouraging unconstitutional official conduct, but its true purpose is to serve as an effective internal tool for maintaining and protecting the value of the system as a whole. Primary Rules and the Secondary Rules The exclusionary rule merely reinforces the existing rules regulating police powers. See S v Naidoo 5 The Exclusionary Rule in the USA

The USA, as discussed above, has a judicially created rigid exclusionary rule with judicially created exceptions thereto. These exceptions can assist SA courts in applying s 35(5). The rule is enforced by the 4th amendment, which prohibits unlawful search and seizures without a warrant and prohibits the obtaining of a warrant without probable cause.

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This is backed up by case law: In the case of Weeks v US, the court dealt with the position at federal level which made evidence obtained inadmissible. Then, in Mapp v Ohio, the same principle was announced as far as prosecution at state trials level was concerned. In the textbook, there are certain principles in connection to the Mapp case. These principles limit the ambit of this decision, but not to a great extent. One of the principles is that, for the accused to request the exclusion of evidence obtained contrary to this amendment, they must have standing. To have standing, the accuseds rights must have been infringed by the conduct of the police. There are exceptions to the rule, the reasons for which are that that an inflexible exclusionary rule would over hamper the police and then they wont be able to function. The rule and ambit of the rule as laid out in Mapp (not prescribed) 1. Accused must have standing 2. Rule does not apply to civil tax action initiated by federal govt or to evidence secured by private individual as opposed to state official 3. Real evidence excluded by Mapp can, for purpose of impeaching credibility, be introduced to contradict statement made by accused in evidence in chief or cross 4. 4th Amendment does not apply to unlawful search or seizure or property located in foreign country & owned by accused who is a non-resident alien 5. Evidence excluded by Mapp can be used by grand jury in deciding whether to indict 6. Exclusion is not required when connection between unconstitutional conduct & discovery of challenged evidence is so attenuated that dissipates the taint. There are certain exceptions to the rule, as the police would be hamstringed and not be able to function. Good Faith Exception The policeman acted reasonably and in good faith in relying on a certain statute or a warrant. There can be no deterrent reason for excluding evidence in this case. The primary example comes from Arizona v Evans, where a policeman arrested man in mistaken belief that there was a warrant out (but it had been invalidated). But in searching him, found drugs. The court held that this real evidence was admissible. Independent Source Exception Evidence is obtained unconstitutionally and later a warrant is secured by means of independent source. In this case, the real evidence seized in terms of the warrant will be admissible on the ground that it was secured through sources independent from and unconnected with the initial unconstitutional discovery. The Stop & Frisk Exception Real evidence obtained during so called stop & frisk (field detention and patting down of outer clothing on basis that suspects some form of criminal activity) is admissible. Procedure is of importance in practice and principle.

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The Miranda Warnings (Miranda v Arizona 384 US 436 (1966)) Youve seen this in the movies, well now you know they come from the case of Miranda v Arizona. When a person is apprehended and questioned, there is a duty on the policeman to issue certain warnings to person in detention: - Right to remain silent; if chooses to speak, whatever he says may be used against him - Right to consult with a lawyer - Right to have lawyer present during interrogation - Furthermore, if cant afford to appoint own lawyer, one will be appointed for him at state expense Evidence obtained in conflict with these warnings will be excluded. The purpose of these warnings is to protect the accuseds rights against self incrimination. The right to counsel was incorporated in the Miranda Warnings to secure thus purpose. Ambit of the Exclusionary Rule in Miranda The rule is confined to custodial interrogation or where individual has been deprived of freedom in any significant way (usually when he has been detained and is to be questioned by the police). The rule is activated by express questioning and the functional equivalent [anything reasonably likely to elicit an incriminating response]. The accused can waive his rights voluntarily, knowingly and intelligently. In this case, statements obtained are admissible at a later stage. Evidence of a prosecution witness identified as a result of accuseds non-coerced but inadmissible statements obtained in breach of Miranda is admissible. Of course there are some exceptions to this rule, lets turn to them now The public safety exception If there is a threat to public safety you dont need to receive the suspects answers right away. Deal with the safety concern first. Impeachment Where a statement was obtained unconstitutionally and the accused testifies at trial, but where there is a conflict between this evidence and the content of the statement made, the statement can be used in cross examination. However, this is for limited purpose i.e. to impeach credibility. Inevitable discovery In the case of Nix v Williams an unconstitutionally obtained statement and pointing out (from the accused) was obtained from the police. As a result, the police found the body of the deceased. Clearly, the statements could not be allowed in as evidence. But what about the body that was found? This is derivative evidence, real evidence that is discovered as a result of an unconstitutionally obtained statement. This normally suffers the same fate of the statement. The court allowed the evidence as to the condition of the body. This was because, according to the evidence, it was inevitable that the body would have been discovered 200 volunteers & policemen used a grid search method. It was clear they would have found her and this evidence would have been allowed. This is a bit haphazard in its approach, what now if the search party was much smaller, or did not have this instrument. Where do you draw the line?

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Evidence obtained contrary to these rules will be inadmissible and will be excluded. 6 S 24(2) of the Canadian Charter (this is the discretionary approach)

We now turn to the position in Canada. Our courts have shown an inclination to seek support from the Canadian Supreme Courts, which means youd better love this section. Where a court concludes that evidence was obtained in a manner that infringed the rights or freedoms of the Charter, the evidence shall be excluded if having regard.... 1. According to the Canadian approach, the court must first make a factual finding as to whether there was an infringement of a right protected in the Charter. Ie. Will the trial be fair or unfair? 2. Secondly, the court must make a value judgement, having regard to all the circumstances of the case, to determine if admission of the evidence would bring the administration of justice into disrepute. Thus the court exercises some discretion. It must consider all factors relating to the seriousness of the potential infringement. 3. If it would bring the administration of justice into disrepute, then the court MUST exclude the evidence. They have a duty to exclude it. The Impact of the admission of the evidence on the fairness of the trial If found to render the trial unfair, the evidence must be excluded without considering factors relating to seriousness of breach or the effect of the exclusion on the repute of the system. We now turn to some very important Canadian cases, that Wouter did extensively in class, so pay attention. R v Collins 1987 28 CRR 122 (SCC) The police were keeping certain people under surveillance by a drug squad. At some stage, the accused and another man left a pub. They were being watched because there was a suspicion that they were holding onto some nice heroin. They were arrested and the drugs were found on them. The police officer then entered the pub and grabbed the accused by the throat, pulling her to the ground. She was holding onto a balloon filled with heroin. The throat grab was to prevent the drugs from being swallowed. Facts show that the force was considerable, yet the policeman had a reasonable suspicion to infer that the woman was holding onto drugs. It was quite clear the action of the policeman was unlawful and contrary to the rights in the charter. What about the evidence that was discovered? Was this heroin in her hand now inadmissible? The trial court held that the search of the accused was unlawful, but nevertheless the court admitted the evidence because the court was of the view that it should not be excluded in terms of 24(2).

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On appeal to the Supreme Court: (Majority) Judge LamerFirstly, the broad test that the court laid down in applying this provision (would the admission of the evidence put the admin of justice in disrepute?) must be considered from the perspective of a reasonable man. Would a reasonable person in this situation see the administration of justice in disrepute? This is thus an objective test. The court then laid down certain factors which they need to take into account: 1. Fairness of the trial Would admission of the evidence render the trial unfair? If yes, then the evidence must be excluded. Real evidence that was obtained (physical evidence, not statements or pointing out) in a manner that violated the character of the Charter will rarely operate unfairly for that reason alone. The real evidence already existed and did not come into being as a result of the infringed right. But totally different considerations apply when the accused is compelled to make a statement or forced to point out something (testimonial evidence). In this case, he is convicting himself from his own mouth. In this scenario his right to self incrimination is infringed. 2. The seriousness of the Charter Violation Was the infringement trivial or very serious? The court must look at the actions of the police. Assault would be serious, as would the exclusion of all warnings. The court must also consider the urgency and risk of losing the evidence etc. 3. The court must consider the effect of excluding or admitting the evidence To what extent would the inclusion/ exclusion of the evidence have on the repute of the administration of justice? Thus, the court held that the manner of arrest was a serious infringement on the rights of the accused. An appeal was allowed. In the end, the court did exclude the evidence even though it is not self-incriminating because of the manner of the arrest. R v Burlinghan The accused was charged with the murder of two women. The case dealt with the murder of one of the women. The circumstances were similar in both cases: there was evidence of sexual intercourse and both women was shot in the head. Whilst he was in custody, police did a few things that affected the evidence that was discovered. They persistently and vigorously questioned him although he said he wanted to consult his lawyer. Further, they made denigrating remarks about the counsel whom he eventually got in touch with. They also deceived him with a plea bargain, claiming that they would only charge him with second degree murder which was only on offer over a weekend when the counsel was not available. He agreed to this and, after giving a full confession, took them to the place where he hid the gun, which was under a frozen river. Afterwards, he made a statement to his girlfriend to the effect that he had taken the police to place where he took the gun and something to the effect that he knew something about the death of that woman. Page 8 of 154

The trial court held that any statement he made or anything he pointed out was not admissible because his rights in terms of the Charter were infringed. However, the court allowed the finding of the gun and the evidence of his girlfriend. Supreme Court issues: 1) Was the accuseds right to counsel infringed by the actions of the police? 2) If yes, then what was the effect thereof? Must all the derivative evidence be excluded? Issue (1) The accuseds right to counsel was clearly infringed because of the manner of questioning (continuing & persistent despite request for lawyer), the denigrating remarks regarding counsel and the way the plea bargain was presented. Issue (2) The court was asked: Does S 24(2) have the effect that all derivative evidence should be excluded? I.e.The finding of gun & statement to girlfriend. The court held that derivative evidence is the fruit of the poisonous tree. The court pointed out that the gun is real evidence and said that, if they go on authority of R v Collins, then the finding of the gun in and of itself should not operate unfairly against the accused. However, the court pointed out that, in subsequent cases, the courts had moved away from the differential treatment of real and testimonial evidence. The admissibility of evidence (under s24 (2)) obtained in such a manner depended ultimately not on the nature of the evidence but whether it would only have been obtained without the compelled assistance of the accused. The court then looked to position of the gun. They acknowledged that it would never have been found if it were not for the malicious actions of the police against the accused. Therefore, the evidence regarding the finding of gun should be excluded. Regarding the statement to the accuseds girlfriend: the court pointed out that a close link existed between the statement made to his girlfriend and the treatment he received from the police. Because of this close link, this derivative evidence should also be excluded. It would also not have happened had he not been treated in the way he had by the police. Thus, the appeal was allowed and a retrial was ordered.Thus, the court started moving away from the framework of the Collins case. They went a step further in R v Stillman. R v Stillman 1997 42 CRR (2d) 189 (SCC) This case received a lot of criticism.A 17 year old minor was charged with the murder of a 14 year old girl. There was a possible rape involved, but he wasnt charged or convicted for that. He immediately got hold of two lawyers who told the police he would not give bodily samples or statements. Soon after the lawyers left, the police started to systematically take bodily samples from him. They took Page 9 of 154

hair from his scalp and his pubes (no jokes, Wouter said this). They took imprints of his teeth to match the bite marks on her abdomen. There was an interval, and then he was questioned. He asked to go to the bathroom and he blew his nose, he discarded the tissue and the policeman picked up the tissue and used that for DNA analysis. He was released and rearrested. They then took saliva. All this was obtained against the instruction of the attorneys and was presented at the trial court. The court admitted all the evidence. There was no provision at this time allowing the police to take samples. Thus this action clearly was an infringement of the section of the charter dealing with search and seizures. On appeal, it was questioned whether or not it was admissible or not. The court retained the framework from Collins. The same three factors were kept in place (the fairness of the trial, the seriousness of the charter violation, that the court must consider the effect of excluding or admitting the evidence). The court followed a totally different approach with regard to the factor regarding the fairness of the trial. The reasoning in Burlingham was taken further and confirmed: this case provided a systematic analysis of fair trial analysis. As the first step in fair trial analysis, there must be a distinction drawn between conscriptive evidence (where the accused was compelled) and nonconscriptive evidence (where he was not compelled). The court held that whether the evidence is real or not is not relevant to application of s 24(2). The principle that privilege against self-incrimination is only applicable to testimonial evidence should be rejected). What matters is whether it is conscriptive or not-conscriptive. If it is compelled (conscriptive), this would render the trial unfair as the compelled use of body or provision of bodily samples will generally result in unfair trial just as surely as a compelled statement. If it is not compelled (and thus fair), the court must look at the other two factors from Collins case: It must consider the seriousness of the violation and the effect of exclusion on the repute of the administration of justice However, where the challenged evidence would have been discovered in the absence of unlawful conscription of the accused, then admission will not render the trial unfair. This can be illustrated this by either (1) an independent source or (2) an inevitable discovery. The taking of bodily samples of the accused against the wishes of the accused also infringes his right to self incrimination this is trite as it is only with regard to testimonials NOT applicable to real evidence (this includes bodily samples). Thus the majority took the view that his rights were infringed because the defence had already stated that they were not going to make any statements or give any samples. The defence said that the evidence contained in the tissue, the actions by the police were not flagrant thus it was not conscriptive. And so this evidence shouldnt be excluded (the evidence towards the tissue).

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So it was ordered to have a re-trial where only the tissue would be admitted The Stillman case is influential in our courts as we have turned our back on Collins and used the Stillman approach. See the Thandwa case. R v Grant This case came 10 years after Stillman. It vindicated many of the critics of Stillman.Three police officials were patrolling an area at a school which was notorious for drug dealing. Two of the policemen were in plain clothes and in an unmarked car. One was in uniform in a cop car. A guy walked past, saw the uniformed cop and got nervous. The three policemen approached and cornered him. The one policeman asked whether he had something he shouldnt have and he replied that he had a loaded revolver and a bag of weed. In the Supreme Court, it was found on the facts that the accused had been detained at the stage when the police asked him the question have you got something you shouldnt have? But until he himself came out with the incriminating evidence, they didnt have a reasonable suspicion to detain him and thus this was an arbitrary detention. The infringement of his right arose as he was already detained and then asked a question while at no stage was he warned about his right to counsel. Thus, this was an infringement of one of his charter rights. (he was detained in the sense that they cornered him and he felt he could not escape them). The second issue regarded the admissibility of the gun as evidence. Was it allowed? The judge here was in the minority in the Stillman case. The broad test is whether a reasonable person, informed of all relevant circumstances and informed of the charter, would consider the admission of this evidence as bringing the administration of justice into disrepute (effectively the objective bystander test). The court decided it was necessary to restate the position due to the heavy criticism that theyd received post-Stillman. They laid down a new framework to apply this provision. When faced with an application for exclusion, the court must assess and balance certain factors. When faced with an application for exclusion under S 24, the court must balance the effect of admitting the evidence with the societys confidence in the justice system. The new approach involves the following three factors: 1. The seriousness of the charter infringing state conduct (ie. How serious was the polices conduct). a. The more serious, the higher the chance that the court will exclude the evidence (naturally, otherwise it would look as if the court is associating itself with the police) 2. The impact of the breach on the charter protected interest of the accused a. Again, the more serious the impact on the accused, the higher the chance that the court would not allow the evidence.

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3. Societys interest in the adjudication of the case and its merits (ie. the goal of finding the truth vs. the rights of the accused) a. What is the reliability of the evidence? b. How important is this evidence for the states case? The court then looked at the different types of evidence. Regarding the statements by the accused the privilege against self-incrimination is of great importance. Regarding bodily evidence - here, they distance themselves from Stillman. Stillman has been criticised for casting the flexible for all circumstances test into a straight jacket (conscriptive / nonconscriptive) that determines admissibility solely on those two factors rather than considering other, perhaps important, factors. The court recognized that different considerations apply to bodily evidence. Privilege against selfincrimination only refers to statements, not bodily evidence. Thus the court put the privilege against self-incrimination in the CORRECT perspective again. Non-bodily evidence (e.g. a murder weapon etc) - Here, they also referred to derivative evidence, which is physical evidence that is derived from an unconstitutionally obtained statement. Having distinguished all these types, the same approach or factors must be applied to ALL of these different types of evidence. Thus, in each case where the admissibility of evidence is concerned, the court must apply these factors. The court then applied the factors to the facts. They concluded that the action of the police was not really abusive or flagrant as it wasnt clear to them that they had detained him (in their mind they had just stopped him on the street and asked him a question, he came forward and told them things he should not have, which is not their fault). As the legal position was uncertain, the evidence was rightly admitted and so the appeal was dismissed. From an SA perspective: The differentiation between real and testimonial is a valid distinction in the context of the privilege against self-incrimination and for the purpose of a fair trial. The court must always consider the further question of whether it will be detrimental for the administration of justice.For example, if the police enters a persons house in the middle of the night without a warrant and find an incriminating object there, there is no infringement of privilege against self-incrimination. Factors relevant to the seriousness of the Charter violations In R v Therens the court notes that in these types of cases one must determine whether the violation was committed in good faith, inadvertently or of a technical nature or was it deliberate, willful or flagrant? Or was it motivated by urgency or necessity to prevent loss or destruction of evidence? In R v Greffe the court noted that there is no exhaustive list of factors. The cumulative impact of all factors must be taken into account in assessing seriousness of the Charters violation.

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Effect of exclusion on the repute of the administration of justice The key question to ask is would it bring the administration of justice into disrepute in the eyes of the reasonable person, dispassionate and fully apprised of the facts of the case? Anglo-South African Common Law Inclusionary Approach Back in the day, if the evidence was relevant, it was admissible. The court was not concerned with how it was obtained. There was a limited qualification as seen in the Roomer case: in a criminal case, the court always has discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused. In S v Forbes the accused was sent for mental observation. There was a question as to his mental capacity at the trial. Whilst at the institution, he made a confession to one of the doctors. The state wanted to present this as evidence. The court held that it had discretion to exclude relevant evidence such as this based on public policy. Here it was excluded for such considerations. In S v Nel the judge refused to accept evidence, exercising his discretion to exclude the evidence. The court held that unlawfully obtained evidence could be excluded only where: (1) The accused had been compelled to provide evidence against himself; (2) The evidence had been obtained by duress from an accused Today S 35(5) is applicable where evidence is obtained by infringing a constitutional right: 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. In this regard, the common law discretion is still applicable, as the evidence can be obtained unlawfully or improperly but without infringing a constitutional right. According to Kidson the common law discretion is still applicable, but it must be exercised in the context of what was held in this case. Even where a constitutional right wasnt infringed, the admissibility of evidence should still be broadly considered more or less in same manner as s 35(5). This means that the court must consider both legs, namely whether it would infringe the right to a fair trial and whether it would be detrimental to the administration of justice. The court held that the evidence of a covert recording was held to be admissible: It was not prohibited by the Act; there had been no entrapment; no guile, no untruth or deception which amounted to unacceptable police conduct; and even if there was a contravention of the Act, it was formal and minimal. Thus, the conduct of the police accordingly provided no ground for exclusion and admission could not have rendered trial unfair.

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The Interim Constitution The IC did not contain any express provision governing the admissibility of unconstitutionally obtained evidence. But constitutionalisation required an immediate and fundamental reappraisal of SA jurisprudence on admissibility. The courts responded by citing various reasons for excluding evidence that would previously have been admitted: Protection of the Constitutional Right to Fair Trial S 25 dealt with right to fair trial. This is a broad right which included under it a number of other rights. The cases dealing with this issue under the IC are not all uniform. However, we can say that the right to fair trial was used in number of cases as the basis of exclusion of evidence, especially in the case of testimonial evidence. In these cases, discretion was exercised by the court In S v Melani the court first pointed out the importance of the right to counsel and the importance of informing the accused of their right to counsel. This right is used mostly to protect other rights. This was also held in the Miranda case (see above): the rights to remain silent, the right against selfincrimination and the right to be presumed innocent. The Constitution makes it abundantly clear that this protection of arrested person exists from the inception of the criminal process right throughout until the conclusion of the trial. The court held further that this protection has nothing to do with the reliability of evidence, but has everything to ensure that accused is treated fairly throughout the entire criminal process. The court refers to two concepts (Wouter loves these so you better make sure you know them): 1. The gate house this refers to the police station and interrogation process 2. The mansion this refers to the court house and where the trial takes place It doesnt help that you have most fair procedures in the world in the mansion if in the gate house police can use any imaginable method to get information out of the accused. Say this an youll be considered a genius. What emerged from this case, and several others, is that the failure of the police to inform the arrestee of his relevant constitutional rights at every critical stage would, as a general rule, require the exclusion of all testimonial communications. Discretion to Exclude Unconstitutionally Obtained Real Evidence S v Motloutsi covers this area. We dealt with it in Criminal Procedure. Here it is again. This is not prescribed (even though its in the course outline). So this is only for you guys who loved Crim Proc and want to remember what it felt like. The accused was arrested. A few hours after his arrest, the po-po went to his house (at 3am) and found the owner there. It transpired that the accused was renting a room in his home. The police asked permission to search were allowed by the owner, although they had received no consent from the accused. The search took place without a warrant although the police could easily have obtained a warrant. Thus, the search was not in accordance with legal requirements. The court Page 14 of 154

found that the permission that the owner gave was not valid permission with regard to searching the accuseds room. The police found blood stained bank notes there. As you can guess, the issue was whether this evidence was admissible. The court held that, regarding the accuseds rights, the police action amounted to a conscious and deliberate violation of the accuseds right to privacy. This is what court focused on (invasion of privacy), and thus the privilege against self-incrimination did not arise. Therefore, trial fairness was not the ground for exclusion of the evidence. The court held that, in a non-constitutional context, it has the discretion to exclude evidence. Therefore, it clearly has similar discretion in a constitutional context. The court referred to Mapp v Ohio (see above), but declined to follow the exclusionary rule therein as it was held to be too strict. The court also referred to the test in the Canadian Charter, but found that this is too narrow an approach. Thereafter, the court referred to an Irish case People v OBrien and followed the approach taken therein: Where there was a deliberate, conscious violation of the accuseds constitutional rights, then, as a general rule, the court will exclude such evidence unless there are extraordinary excusing circumstances. The court ultimately excluded the unconstitutionally obtained evidence as its probative value was outweighed by the fact that the constitutional rights of the accused had been infringed. S v Mayekiso followed the case above. In this case there was no evidence that an unconstitutional search and seizure had taken place with a view to preventing imminent destruction of significant evidence. In the exercise of its discretion, the court should weigh up objects of the IC (Human rights protection) against policy considerations (the interest in justice being done). Again the court excluded unconstitutionally obtained real evidence because limited probative value was outweighed by breach of constitutional rights. Public Opinion and Repute of the System Although the courts are accountable to the public, they should not seek public popularity. The interests of society do not displace the longer term purposes of a Constitution which limit government power and seek to establish a democratic order based on recognition of human rights. Despite denials to the contrary, the courts were clearly concerned with the administration of justice being brought into disrepute. Farlam JA in Motloutsi said that this was an NB factor, but too narrow in itself. However, in several other decisions, the courts came close to adopting this approach c.f. Canadian Charter and, in one case, Malefo, it was adopted in toto. END OF SEMESTER 1

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S 35(5) of the Final Constitution

S 35(5) provides that 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. There is similarity between this provision and S 24(2) of the Canadian Charter. In S v Naidoo, the court specifically points this out. The court supports the referral to Canadian cases, but warns that they have shifted toward extremely aggressive exclusionary approach which this section was designed to protect against. We have a qualified exclusionary rule where the discretion of the court plays a role. What are the elements of the courts discretion? The court must make factual finding as to whether there was an infringement of the accuseds rights There must be a link between the infringement and how this evidence was obtained There is a duty upon the court to exclude the evidence once it is found that admission of the evidence would make the trial unfair or would be detrimental to administration of justice (thus there is a fixed constitutional rule of exclusion). But when the court decides this, the court must make a value judgment by exercising its discretion: it must take into account all the facts of the case, fair trial principles and public policy. It is clear that the considerations that play a role in the context of a fair trial are not necessarily the same as regards the other question regarding detriment to the administration of justice. However, unfair trial falls underthe umbrella factor of detriment to administration of justice. That this is a correct interpretation is clear from the wording of the section, which states that the evidence would render the trial unfair, or otherwise be detrimental to the administration of justice. The court in Naidoo held that evidence will always be detrimental to the administration of justice when the right to a fair trial is infringed; but the reverse is not necessarily true. S 35(5): the threshold test This section is only applied when a constitutional right has been violated. If there has been a breach of another right, this is determined by common law discretion, whereby the court must ensure the constitutional right to a fair trial is not compromised. S 35(5): the causal link between violation and procurement In S v Mthembu it was common cause that R, a prosecution witness and accomplice who had testified after having been warned in terms of S 204 CPA, had been tortured by police. As a result, a number of articles incriminating the accused were discovered. The court held that it was of no relevance that this was a breach of the constitutional rights of a witness as opposed to that of an accused, and was no bar to subjecting impugned evidence to admissibility in Constitution. With Page 16 of 154

regard to the causal link, there is an inextricable link between torture and the nature of the evidence: torture had irredeemably stained the evidence. In S v Mark, four prisoners who had been beaten by wardens identified a murderer. Two and a half years later, they all insisted that this identification had been given voluntarily. Davis proceeded from the premise that there had to be a sufficient link between the oral testimony of the four witnesses and the earlier infringement of their constitutional rights. In this case, the link was weak and although the statements after the beating were unquestionably tainted, the oral testimony in court was not. Where the accused relies on S 35(5) in circumstances where it is alleged that his constitutional rights were breached, the courts should take a liberal interpretation to evidence obtained in a manner that violates any right in the Bill of Rights. In Soci, the court held this included all acts performed by a detainee subsequent to the infringement of his constitutional rights in the course of pre-trial investigations. S 35(5) and standing Standing is a requirement in US and Canada; but in SA (as held in Mthembu) S 35(5) requires the exclusion of evidence improperly obtained from any person. Thus there is no reason of principle or policy to interpret this section differently. S 35(5) and the admissibility of evidence unconstitutionally procured by private individuals S 35(5) also applies to a situation where the prosecution wishes to introduce evidence obtained unconstitutionally by private individuals. In S v Hena, two accused were charged with robbery and the rape of two complainants. The state tried to link the first accused to robbery and rape by means of cell phone of one of the complainants: After the incident, the complainant had received information that a certain person had sold her cellphone to someone else. She gave this information to a man who was a member of the anti-crime committee (a private body). This man and the complainant went to home of the person who had sold the cellphone, who turned out to be the accused. The accused was put into the boot of the mans car and taken to the office of committee where he was kept for a long time, questioned and assaulted. The investigating officer testified to the working relationship between the police and the anti-crime committee. The court came to the conclusion that admission of this evidence would be detrimental to the administration of justice because there was a severe invasion of right to security of accuseds person. The judge held that although he finds that the admission would be detrimental to administration of justice he maintained that he nonetheless had discretion. This is a wrong formulation because the court must exclude the evidence if it makes such a finding. The court held that the accuseds rights were severely infringed by the committee and that the conduct of police in this case was clearly questionable because they had delegated their powers to the committee, yet closed their eyes to the committees conduct.

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S 35(5) and S 36 the limitations clause The minimum requirement for invocation of this section is for the infringement to be a law of general application. S 35(5) and the co-accuseds constitutional right to a fair trial In S v Aimes (not prescribed),Desai J held that the admission of accused number ones bail evidence obtained in breach of his right to be advised to remain silent would violate accused number twos right to a fair trial. S 35(5) and S 37 derogation in states of emergency S 35(5) cannot be derogated from, even during the states of emergency. The court partakes in the following process in evaluating s35(5): 8 The first leg of the test in S 35(5) Would admission of the evidence infringe the accuseds right to a fair trial?

This is a broad comprehensive right that encompasses several other rights, i.e. the right to remain silent and the presumption of innocence that are enumerated in the Constitution, but these are not exhaustive. This means that the S 35(5) fair trial requirement is flexible enough to permit discretion to be exercised on the basis of the facts of the case and other factors and considerations such as the nature and extent of the constitutional breach and the presence or absence of prejudice to accused. The court needs to ensure that exclusion of the evidence does not tilt the balance too far in favour of due process, the interests of society and public policy. Its difficult for Wouter to admit, but crime control is sometimes important! The privilege against compelled self-incrimination: trial fairness and the courts discretion The courts approach is that, whilst absence or inadequate furnishing of the constitutionally required warnings does have an adverse impact on fairness of entire process, this does not mean that the admission of evidence so obtained would inevitably result in accused being deprived of his constitutional right to a fair trial. In S v Lottering, the court held that it was common cause that: (1) The constitutional rights of accused were violated; (2) The accused had made an admission incriminating himself in the commission of the crime; and (3) The framers of the Constitution had in mind that the accuseds rights should be respected at all times. The court must exercise a value judgment, weighing up all competing interests, as it is important to exclude evidence to enforce due process. Because the policeman did not act deliberately or Page 18 of 154

flagrantly, but as a reasonable policeman would have done, his actions were not detrimental to the administration of justice, the implication of which is that admitting the evidence would not have rendered trial unfair (despite the violation of the accuseds right). The notions of basic fairness and justice must be applied with reference to the facts of the case and the court must remain flexible. Waiver, trial fairness and the courts discretion To be valid, a waiver of ones rights (to privilege etc)must be given by a person who abandons the right knowingly and with understanding of what she is abandoning. There should not have been improper interference with her autonomy.After the waiver, the accused can re-assert her rights, but she cannot undo the consequences of her earlier choice to make a statement by later re-asserting her rights. Trial fairness and the courts discretion: self-incrimination,real evidence,evidence from the accused Our courts, in following the Canadian approach, have consistently held that the privilege against selfincrimination is confined to testimonial utterances or communications and does not extend to real evidence. But this was changed by Stillman, where the court eliminated the distinction between self-incriminating statements and real evidence in the context of the trial fairness test. This approach might be artificial, as it has the potential to be excluded on the grounds that it is detrimental to the justice system. Wouter says that this does not make it less worthy of protection, however. Trial fairness and the admissibility of derivative evidence Is the trial fairness requirement embodied in S 35(5) Constitution triggered in respect of the admissibility of real evidence discovered on the basis of information contained in unconstitutionally obtained testimonial communication? In Stillman and Burlingham, it was held that this evidence must be excluded. Schwikkard argues that the exclusion of testimonial communication cannot automatically require exclusion of derivative real evidence which independently links accused to crime. The court must exercise discretion. Exclusion of unconstitutionally obtained testimonial evidence does not necessarily answer the issue of derivative real evidence Examples of factors that the court will consider: 1. Derivative real evidence pre-existed the breach and did not come into existence as a result thereof 2. The nature and extent of the breach which led to discovery of the real evidence 3. Police violence cannot be sanctioned. The court should rely on disciplinary function in protecting the judicial integrity of the system as a whole (see Tandwa below). In instances involving non-violent conduct, the court should be able to rely on an independent source and inevitable discovery principles. 4. Where real evidence is discovered on account of non-coerced but inadmissible testimonial communication, the fruit of the poisonous tree doctrine need not be invoked with vigor. It would generally not render the trial unfair, but the court should look to the administration of justice. Page 19 of 154

The court in S v Tandwa an important case followed the approach taken in Stillman. A robbery of R9.6million took place. A number of accused were involved. Two accused were arrested and taken in by the police to be questioned. It was common cause that each of these accused were assaulted by the police and that each pointed out the place where the money was hidden [in a tin and suitcase respectively]. The court held that their constitutional rights had been infringed and the money discovered as a result of pointings out of accused (communicative testimonial evidence). Any statement that comes up as a result of an assault must be inadmissible because constitutional rights are infringed. Further, pointing out of money is also communicative and thus must also be excluded. However, what about the money itself, which is real evidence? The court held that the pointing out of the bucket of money and discovery of the bucket itself is not admissible as although this is real evidence and not testimonial evidence, it is inextricably tainted with police brutality. Most importantly, the court held that the distinction between real and testimonial is not really valid: the question is rather how the evidence was obtained. This is the approach at the moment in SA law. Trial fairness and the admissibility of evidence from an ID parade without legal representation Where identification evidence stemming from an identification parade is inadmissible due to a lack of legal representation for the accused, in-court identification will only be admissible if the court is satisfied that the in-court identification is based on observations made by the witness other than at the parade identification. 9 The second leg of the test in S 35(5): Would admission of the evidence be detrimental to the administration of justice?

When court exercises its discretion in terms of this leg of the provision, it must endeavor to strike a fair balance between two opposites (and remember how much Wouter LOVES these) the concepts of due process and crime control: The court must ensure that the police in their investigation of crime must respect the constitutional rights of the individual The court must also strive to ensure that the person on the street has respect for the administration of justice. The court should not immediately exclude evidence if there is a minor infringement of a constitutional right. Public opinion, including public acceptance of a verdict and support for the system,must be taken into account here The high level of crime in SA must also be taken into account The court must consider how serious the infringement of the constitutional rights has been

In the case of S v Ngcobo, a woman and three men were shot and a large amount of money was robbed from them. One of the accused was arrested and was duly warned in terms of his constitutional rights after his arrest. Shortly after this, he was taken to point out certain things. He pointed out the belongings of the deceased. The defence argued that he wasnt warned again prior to the pointing out. The court rejected this argument, emphasizing that this was not a serious infringement of his constitutional rights.

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There are several factors which the court should take into account in deciding whether evidence should be excluded in terms of the second leg of the test: (a) The presence or absence of good faith and reasonable police conduct (an objective test) The main argument in favour of a good faith exception to not admitting unconstitutionally obtained evidence is that it would permit the use of evidence in situations in which no significant deterrent function would be served by excluding it.This may encourage officers to become acquainted with the law, although judges may too easily find for good faith. In S v Naidoo, the court held that the presence of bad faith conduct should weigh heavily in favour of exclusion of the evidence. A robbery was in progress. One of the accused lost his cellphone. After the robbery, the police had a squiz at the numbers that had been phoned from the cellphone and applied to a judge for an order allowing them to monitor the cellphone. In their application to the judge, they supplied false information under oath. The judge accepted their evidence and granted the order. The police monitored the cellphone and obtained incriminating evidence which they planned to use to nail the accused. The question was whether this incriminating evidence was admissible. Although this is testimonial evidence, it was not obtained by compulsion. However, the court held that the actions of the police were improper and concluded that admission of the evidence would result in an unfair trial and would infringe the accuseds right against self incrimination. The court considered the second leg of the right (would admission of the evidence be detriment to the administration of justice) and held that to admit this evidence would be detrimental to the administration of justice. The Constitution affirms the legislatures commitment to protection of private communications against violation or infringement, and to countenance these would leave the public with the impression that courts are prepared to condone serious failures to observe standards of investigation. As we well know by now, crime cannot be brought under control unless there is an efficient, honest and responsible police force. In S v Hena, the court held that the conduct complained of could not possibly have been in good faith. The police had subcontracted statutory authority to investigate a crime to untrained civilians. The court held that such action is not reasonable. In S v Mphala, the conduct of investigating officer was held to be intentional. The court found support in various Canadian cases where the police deliberately violated a Charter right, and held that admission of such evidence would bring the administration of justice into disrepute. In S v Lottering, the accused stabbed someone in the back before running into a nightclub. Witnesses took a policeman into the nightclub and pointed out the accused. The policeman told the accused of the allegations, arrested him and asked him where the knife was. The accused pointed to someone who handed over the knife. This all happened quickly and thus the policeman did not warn him of his constitutional rights. The court pointed out that time was of the essence, there was a dangerous weapon in the room and thus that the policeman acted reasonably (and in good faith) in this case. Page 21 of 154

In S v Madiba, two policemen arrived at a house in the middle of the night, where they were told that inside the house there were people suspected of serious crimes who were heavily armed. The policemen kicked open the door and found the accused in the room, arrested them before discovering a pistol and revolver. The court had to consider whether the lack of a warrant infringed the accuseds right to privacy. The court used its discretion to consider the following relevant factors argued by the state: The accused were suspected of serious crimes involving the use of firearms to kill a person The information that the police had at their disposal was that the accused was likely to resist arrest as they were in possession of firearms The surroundings were such that a shoot-out may have occurred It was in the interests of safety to police, the community and the accused themselves to enter the premises

The court came to the conclusion that given all the circumstances, the actions of the police were reasonable. Note that this is not a blanket authority allowing law enforcement officers to use unorthodox methods. The case shows how exclusion must be considered in the context of realities faced by police in the execution of their duties. The court in Soci did not allow for admission of a pointing out, but allowed for a confession to the magistrate. There was a need to exclude the pointing out on the grounds of systematic deterrence. The court held that the good faith of the police officer is irrelevant where SAPS had issued directives that did not comply with constitutional demands. This case of S v Pillay is a good indicator of the two-step approach. A group of baddies staged a robbery of R31million. The accused was charged as an accessory after the fact. The police found over R5million in her house. The police applied to the judge for an order allowing them to monitor her phone. They fed false information to the judge to obtain the order. After monitoring the phone, they realized that the money was at her house. They arrived at the house without a warrant (when they could have obtained one) and thus the search was unlawful. Furthermore, the police used devious methods to persuade the accused to point out where the money was by indicating that she would not be charged for any crime. Subsequently, she was charged. The question was whether the finding of money and the evidence was admissible against her. The court proceeded as follows:

First leg: the court referred to the distinction found in Canadian case law was the accused compelled? [i.e. conscriptive or not conscriptive]. The court applied this to the case, holding that it was not conscriptive and thus that admission of the evidence would not lead to an unfair trial. Second leg: The court looked at the behavior of the police, including using false information regarding order; searching of the house without a warrant; and their deceiving of the accused by making false promises. The court held that this improper conduct would result in the evidence being detrimental to the administration of justice.

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(b) Public safety and urgency In Madiba, the court held that the presence of these two factors is frequently an indication of good faith on the part of the police. Thus the fact that unconstitutional conduct was resorted to in order to protect the imminent destruction of valuable evidence should militate against the exclusion of the evidence. (c) Nature and seriousness of the violation The nature and seriousness of the violation can be scaled, from trivial, technical and inadvertent to gross, violent, deliberate and cruel. This is closely linked to whether the violation was a result of an ad hoc decision or part of a settled or deliberate policy to act with disregard for constitutional rights. (d) The availability of lawful means or methods of securing evidence This turns on good faith and reasonable conduct. (e) Real evidence In Mkhize, the court held that unconstitutionally obtained real evidence will rarely render a trial unfair. This must now be read subject to Tandwa, which focuses on the lack of compulsion, rather than real/testimonial difference, as a requirement for admissibility. (f) Inevitable discovery If the evidence would have been discovered by lawful means but for the unconstitutional conduct, the exclusion of such evidence would generally be detrimental to administration of justice. This is in line with the USA and Canadian approaches. 10 S 35(5) and procedural matters

Trial within a trial The accused can testify as to an issue concerning admissibility without exposing himself to crossexamination on his guilt. The accused is entitled to know what evidence has been admitted as part of case against him. Thus the court conducts a trial within a trial. This procedure is not used where the facts are common cause or where the objection relates to weight of the evidence as opposed to admissibility thereof.

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Burden of proof: incidence and standard

The defence must allege, but need not prove, that there has been an infringement of a constitutional right and that s35(5) calls for the evidences exclusion The court must conduct a trial within a trial where the accused must be given the benefit of the doubt on factual matters which the state fails to prove beyond a reasonable doubt Once the necessary factual findings have been made and the court concludes that the evidence was indeed obtained in breach of the accuseds constitutional rights, the court is required to exercise its discretion and make a value judgment as to its admissibility. There is no question of onus here. Evidence procured by means of entrapment (S 252A of CPA and S 35(5) of Constitution)

11

Entrapment is a proactive investigation technique. Traps are used to secure a conviction by creating an occasion for a person(s) to commit a criminal offence. In spite of the obvious ethical and moral controversies that go with tempting citizens to engage in criminal activities, legal scholars agree that in certain circumstances traps are the only efficacious means of detecting and investigating crimes and achieving justice. Regardless, entrapment runs the risk of an innocent person being induced to commit a crime. In terms of the common Law, entrapment is not a defence and cannot serve as an evidentiary rule of exclusion. The court must assess the trap with caution. The Interim Constitution held that entrapment is not a substantive defence; and could not serve as an evidentiary rule of exclusion. However, the court has to consider whether the procedure was so unfair that the accused was deprived of his constitutional right to a fair trial in the evaluation of evidence. S 252A of the CPA(authority to make use of traps and undercover operations and admissibility of evidence so obtained) did not create a substantive defence of entrapment, but created a qualified rule of exclusion: if the conduct goes beyond providing the opportunity to commit the offence, the court may refuse to allow such evidence (note this gives the court discretion) if the evidence was obtained in an improper or unfair manner and the admission of such evidence would render the trial unfair or would be detrimental to the administration of justice. In considering admissibility, the court must consider several factors and weigh up all competing interests. The burden of proof rests on the prosecution on a balance of probabilities to show that the evidence is admissible. However, this is subject to the Constitution: if it is unconstitutionally obtained, S 35(5) trumps the CPA! 12 Civil cases regarding S 35(5)

In Lenco Holdings, the court held that, in terms of the common law, it has a discretion to exclude evidence obtained by a criminal act or otherwise improperly. This pre-constitutional discretion has a strong constitutional basis today, particularly in S 34 (the right to a fair civil trial). In Fedics Group, the court held that exercise of this discretion is directed by S 39(2) of the Constitution (promote

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the spirit, purport and objects of the Bill of Rights in developing the common law). In this case, evidence was held to be admissible despite a breach of the right to privacy. Before application for sequestration, the creditor in Lotter v Arlow obtained a court judgment against the respondent. The sheriff found no property to attach. The creditor instructed his attorney to send an evaluator to the house of the respondent. The evaluator went to the house, but did not obtain permission to enter premises. He persuaded the housekeeper to let him in. On the premises, he found a Mercedes which the housekeeper told him belonged to the owner of the house. The evaluator gave the Merc the value of R125k. With this evidence, the creditor launched an application for sequestration of the respondent. The court held that there were a number of problems with this evidence:

What the housekeeper said was hearsay It wasnt clear if the car belonged to the respondent or the financial institution Critically, this evidence was obtained in an unconstitutional matter as the evaluator had not obtained permission to enter the premises. The court held that in its discretion it would only allow unconstitutionally obtained evidence to be admitted if it would not make the proceedings unfair or bring the administration of justice into disrepute.

On the facts, the action would clearly bring the administration of justice into disrepute. Furthermore, there were legal means to go about doing what the creditor wanted to do, and he ignored these.

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13 - HEARSAY 1 Introduction

The common law definition of hearsay evidence can be found in Estate De Wet v De Wet 1924 CPD, namely that, "It is the evidence of statements made by persons not called as witnesses which are tendered for the purposes of proving the truth of what is contained in the statement." In the case of Moshoeshoe v Moshoeshoe and Others the court noted that: This was the old approach before the acceptance of the accommodation by the South African Law Commission and the promulgation of the LEAA [see below]. The emphasis thus no longer falls on the purpose with which the declarant made the statement but rather on the question of the credibility of the declarer. The new approach has thus simplified the definition of hearsay evidence to mean, statement, be it oral or written, given by someone other than the person who made the assertion, in circumstances where it is important that the asserter be cross-examined. Although the purpose for which the statement is tendered is no longer the primary test for hearsay evidence, it nonetheless remains one of the factors which the court must consider. In studying the issue of hearsay, keep in mind two broad issues: 1. What is hearsay? 2. What are the rules of admissibility of hearsay? These must remain two separate enquiries. Definition The Law of Evidence Amendment Act (LEAA) has rendered the common law rules applicable to hearsay obsolete and redefined hearsay 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. Analysis of the LEAA definition a) Whether oral or in writing? It is not crystal clear whether this refers to the evidence in court (viva voce) or to the statement that was made by the declarant only? The definition appears to include communicative conduct thus Wouter says that oral and writing probably refers to in court. Zeffert and Paizes agree with him. b) Person other than the witness Unlike in the common law, the LEAA makes provision for hearsay evidence to be admitted provisionally if the court is informed that the declarant will be called at a later stage as a witness.

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c) ...depends on the credibility of any person other than [the witness] What is meant by depends on? Depends entirely upon? Or depends to some extent? Hardly any evidence would be hearsay if this meant depends entirely upon. If it only depends to some extent, then the ambit would be too wide. Wouter says that it must depend sufficiently or mostly upon the credibility of the declarant. Zeffert and Paizes, the overlords of all things hearsay, agree with him. 2 Rationale for the exclusion of the Hearsay evidence General rule The general rule is that hearsay evidence is inadmissible. Well be concentrating on the exceptions. Surprise! The rationale for the rule wasnt specifically discussed in class, but is worth going over. Note the exceptions and challenges to the rationales offered below. The hearsay rule developed in the English case law over a number of centuries, as the courts were of the view that hearsay evidence should not be presented to the jury or judge because they would give too much weight to this evidence. However, we all use hearsay statements in making decisions in everyday life, and in so doing we take into account its potential unreliability.Because we do this, there is no reason to assume that juries or judges lack the necessary sophistication to accord hearsay evidence its appropriate weight. In a unitary system, the court is unlikely to accord inappropriate weight to hearsay evidence. The court must give reasons for its judgment and would have to justify its reliance of hearsay evidence. As Schwikkard says, it is better to admit flawed testimony for what its worth, giving the opponent the chance to expose its defects, than to take a chance of a miscarriage of justice because the trier is deprived of the information. Thus, if the danger of undue weight was the only reason justifying the hearsay rule, it would make little sense to retain the rule. We must thus consider other possible justifications for the rule. Note that these were not discussed at length in class. We should probably concentrate only on Procedural context: 1. Procedural context The distinguishing features of adversarial proceedings that are relevant to the moulding of the hearsay rule are: - party control of investigation and presentation; - the passive role of the presiding officer; - the concentration of proceedings The dominant and partisan role of the parties increases the possibility of misleading evidence being introduced. There needs to be a mechanism for testing evidence: this mechanism is cross examination. It is the absence of the opportunity to cross examine the declarant on whom the probative value of the evidence depends which makes hearsay potentially unreliable in common law systems. Crossexamination is an important mechanism to establish the truth. Page 27 of 154

In addition, in adversarial systems, adjudication takes place at a relatively concentrated trial where the principle of orality guides the presentation of evidence. Hearsay evidence often comes as a surprise for the person against whom it is admitted, and such a person therefore doesnt have time to prepare a challenge to the credibility of the declarant. The principle of orality is based on the belief that the adjudicator is best able to make accurate decisions of fact where the witness, upon whom the probative value of evidence depends, testifies in open court. The rationale is that the witness in court testifies in circumstances in which there is a potential liability for perjury (i.e. lying under oath). The adjudicator cannot examine the demeanour of the witness when he is not in court, while cross examination is also no possible in this instance. Critics have argued that it is questionable whether people are less likely to lie under oath. In addition, research has shown that observation of demeanour is not necessarily an accurate assessment of credibility. The efficacy of cross examination in enhancing the reliability of decision making has also been challenged. Thus, while hearsay evidence may be less reliable than other types of evidence, the actual extent of its unreliability is speculative and must depend on the particular circumstances. 2. Cost effectiveness The hearsay rule has also been justified on a utilitarian basis. The argument is that it pays for itself because it is cheaper to test witnesses in court than prepare and offer evidence bearing on the credibility of remote declarants. However, some argue that its frequently cheaper to in fact offer a report of what a witness said than to call the witness. Some also say that the hearsay rule imposes costs on academic institutions as a disproportionate amount of time is spent teaching and writing about the rule. 3. Best evidence A justification for the rule is that its necessary to encourage parties to call the original declarant as this supposedly offers the best evidence. The risk of low weight being attached to hearsay evidence should act as sufficient incentive to call the original declarant. But this has no application where the hearsay evidence is the best evidence available. 4. Complexity It has been argued that the hearsay rule merely requires the court to engage in the same inquiry as it would for determining legal relevance of other evidence: does the probative value of the evidence exceed its prejudicial value? If this is so, then what is the use of the hearsay rule?Paizes and his mates say that there must be a separate hearsay rule because hearsay attracts specific prejudicial qualities and challenges that are not necessarily features of other types of evidence. To include all these in the legal relevance enquiry would over-burden that doctrine and encumber it unnecessarily with principles applicable only to a particular kind of evidence. Some also say that if it is subsumed under the general legal relevance inquiry it will discourage settlement of cases before trial, as parties are unlikely to be able to predict the outcome of a future trial on the basis of what evidence they think is likely to be admitted. Others say that the hearsay

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rule is so poorly understood that this problem (of not knowing what evidence will be admitted) exists anyway. Others argue that if hearsay evidence was properly subjected to the relevance inquiry and admitted when probative value exceeded the prejudicial effect of the evidence, the truth seeking function of the court would in fact be better advanced. 5. Socially necessary Scallen argues that confrontation is necessary as part of the social relationship between the defendant and the accusing witness. She argues that the societal dimension of confrontation strengthens the legitimacy and integrity of the adversarial processes and that participation in decision making is critical to the perception of procedural justice.However, she acknowledges that in certain circumstances there may be no societal value in confrontation. For example, there may be a difference in vulnerability and power between the individuals which negates this value completely. 6. Safeguard against abuse of power The hearsay rule can be seen as a way of protecting individual rights from the intrusion of government, or as a way of influencing the conduct of police and prosecutors in the process of preparing and preserving evidence, as a wholesale admittance of hearsay evidence would afford the state with too much power against the accused. 7. A constitutional requirement S 35(3)(i) of the Constitution includes the right to challenge evidence as a component of the right to a fair trial. In S v Ndhlovu, the SCA considered whether cross examination of the hearsay declarant was an indispensible component of the right to challenge evidence. The court held that, whilst unregulated admission of hearsay evidence might infringe the right to challenge evidence, s3 of the LEAA (which is primarily an exclusionary rule), provides legislative criteria which protect against any infringement of the right to challenge evidence. See further below. Note on admissions and confessions Wouter has indicated that the cases of S v Ndhlovu and S v Molimi are important for the exam. Well be coming to a detailed overview of confessions and admissions in a later section, but its important to understand what they are in the context of the cases of S v Ndhlovu and S v Molimi. 1. A confession is a comprehensive admission and unequivocal admission of guilt. 2. An admission is the confirmation of a detrimental fact. The rules of admissibility for each of these differ, and hence they should be differentiated. Importantly, confessions and admissions are admissible against their maker, whether or not he testifies in court. You might ask, isnt this hearsay? Although it strictly speaking is, these statements have always been allowed. This is because what a person says to his own detriment has a ring of truth.

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For example, there are two accused persons. #2 makes a confession or admission. It is admissible against him whether he testifies or not. But what if in this confession or admission he implicates #1? Is this admissible against #1 too? The answer in brief lies in distinguishing between a confession and an admission. A confession cannot be admitted against anyone other than the person who made it (see S 219 of CPA). However in the case of an admission, there is no such prohibition and therefore it may be admitted as an exception to the hearsay rule. Keep this in mind when you read S v Ndhlovu and S v Molimi. They are important. THESE CASES SHOULD MAYBE BE IN THE EXAM (Wouter). 3 Exceptions to the hearsay rule

Under the common law, the rule was that hearsay was not admissible, but that this rule was subject to certain exceptions. Although hearsay evidence is still inadmissible today, the scope of hearsay evidence is much wider than in the past due to: Section 3 of the Law of Evidence Amendment Act 45 of 1988 (1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings; (b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or (c) the court, having regard toi. ii. iii. iv. v. vi. vii. the nature of the proceedings; the nature of the evidence; the purpose for which the evidence is tendered; the probative value of the evidence; the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends; any prejudice to a party which the admission of such evidence might entail; and any other factor which should in the opinion of the court be taken into account,

is of the opinion that such evidence should be admitted in the interests of justice.

There are three kinds of exceptions to the hearsay rule which we will deal with in detail: 1. Admission by consent of the opponent s3(1)(a) 2. The provisional admission of hearsay s3(1)(b) 3. Judicial discretion in terms of the LEAA if in the interests of justice s3(1)(c)

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Admission by consent of ones opponent s3(1)(a) of Law of Evidence Amendment Act allows hearsay evidence to be admitted by consent of the person against whom it is admitted. The accused must know what they are consenting to. This is known as informed consent. The presiding officer must also be sure that the accused knows what they are consenting to. This is particularly pertinent where the accused is unrepresented. The failure to object to the admission of hearsay evidence may be regarded as consent. If an accused does not object to the admission of hearsay evidence and is represented, the court will usually hold this to be tacit consent of the evidence. Consent will also be inferred where a party deliberately elicits hearsay evidence from her opponent in cross-examination. In this instance, consent will be implied. However, If the accused is unrepresented, and they do not object to the evidence, this will not be considered consent of admission of the evidence unless the presiding officer has explained the whole procedure clearly to the accused. The presiding offer will need to check with the accused each time the hearsay evidence arises, as the accused will likely not recognise it each time. In S vNgwani(not prescribed), the court held that the presiding officer must properly explain the relevant law to an unrepresented accused. A judicial officer also has a duty to explain to a witness who may be tendering hearsay evidence to avoid doing so until the court has made a ruling in this regard. The provisional admission of hearsay This arises when the person on whom the probative value depends is going to testify later anyway. The evidence can be admitted provisionally in anticipation. As per s3(1)(b) of the LEAA: hearsay may be provisionally admitted where the court is informed that the person upon whose credibility [is in issue] is going to testify at some future time in the proceedings. The prejudice that arises with hearsay evidence results from the inability to cross-examine and observe the witness. However, if testimony is to follow, this prejudice is removed. s3(3) provides that if the relevant person does not testify, the hearsay evidence will not be taken into account unless it is admitted by consent in terms of s3(1)(a) or is admitted by the court in the interests of justice as provided for in s3(1)(c) (see below for more on this subsection). In S v Ndhlovu 2002 (2) SACR 325 (SCA),it was established that 3(1)(b)and s3(3) must be read together. The facts of Ndhlovu are as follows: A man was killed in cold blood by four other guys who wanted to rob him of his cellphone. Accused #1 was found in possession of a pistol used to kill the deceased. The person who bought the deceaseds cellphone pointed out #2 as one of the sellers of the phone. #3 made an oral statement to a police officer, whilst #4 made a written statement. #3 and #4 had run away after the incident. However, both these statements incriminated not only themselves but also accused #1 and #2. At trial #3 and #4 testified but denied making these statements. The trial court rejected this as the statements were made freely and voluntarily. The SCA had to establish

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whether the statements made by #3 and #4 were admissible against #1 and #2, as they amounted to hearsay. In the court a quo,Goldstein J had held that the statement made by one accused against his coaccused could be admitted in terms of s3(1)(b), and did not require the witness to repeat the extracurial statement under oath. He took a literal interpretation in this regard, holding that to interpret it otherwise would render s3(1)(b) superfluous. SCA rejected this interpretation. Cameron JA held that ss3(1)(b) needs to be read with ss3(3), the requirements of which must be met if the evidence is to be submitted (if the relevant person does not testify in terms of s3(1)(b)). However, as will be seen below, Cameron JA still admitted the hearsay evidence. Although the witnesses did not testify in court, s3(1)(c) justified admitting the hearsay evidence. Judicial discretion to admit hearsay in terms of the LEAA: If in the interests of justice s3(1)(c) confers judicial discretion on presiding officers to admit hearsay evidence if the admission of the evidence would be in the interests of justice.In exercising this discretion, the court must consider six specified factors, as well as any other factor which in the opinion of the court should be taken into account. The factors the court must consider are found in S 3(1)(c) of the LEAA: 1. 2. 3. 4. 5. the nature of the proceedings; the nature of the evidence; the purpose for which the evidence is tendered; the probative value of the evidence; the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends; 6. any prejudice to a party which the admission of such evidence might entail; and 7. any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice. In McDonalds Corporation v Joburgers Drive Inn Restaurant(not prescribed), the court emphasised that the decision to admit evidence 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. The LEAA has relaxed the rigidity and eliminated some of the uncertainty of the common law with regard to hearsay evidence. However, the factors of S 3(1)(c) are still reasonably confusing. It might seem that the nature, purpose and reliability of the evidence can be separated in an inquiry from the probative value and prejudice of the evidence. However, many of these factors are used to establish other factors.Because of the vagueness of these concepts, the courts have not applied them in a uniform manner. This section thus seems to be a consequence of the basic rule that all evidence admitted must be relevant. It is best understood in light of the directive given in Hewan v Kourie NO(the facts of which we dont think are important): the subsection requires the court, in the exercise of its discretion, to have regard to the collective and interrelated effect of the considerations set out [in this subsection+. Page 32 of 154

We now look at the six factors (from the LEAA) that the court takes into account indealing with the admittance of hearsay evidence. Focus on the relevant cases: 1. The Nature of the Proceedings s3(1)(c)(i) In Metedad v National Employers General Insurance Co Ltd, the court, referring to S 3(1)(c), held that it is because of the presumption of innocence that courts are reluctant to allow untested evidence to be used against the accused in criminal cases. Therefore, this section wont often be applied in criminal cases. However, this does not mean that it wont be used constructively to find the truth in civil cases. In a criminal case, a court will be more hesitant to admit hearsay against the accused than in a civil case where parties are on a different level. Hearsay will be more readily admitted in application proceedings rather than at trial (action proceedings). In a trial, the witness can at least be cross examined about the hearsay, but in application proceedings, the hearsay is on paper. Therefore, there is an argument that they should allow hearsay more easily in a trial because the witness can still be cross-examined. As bail proceedings are neither criminal nor civil, the rules of evidence dont usually apply and hearsay evidence is generally admissible. In Vigario v Afrox (not prescribed), the quasi-judicial nature of the inquest proceedings and its inquiry into the terms of the relevant Act was a factor taken into account when admitting the hearsay evidence. In Swissborough Diamond Mines(not prescribed), the court refused to admit the hearsay evidence in interlocutory proceedings in the absence of urgency or special circumstances. S 3 is subject to the provisions of any other law and consequently wont apply in proceedings governed by statute where special provisions are made in regard to hearsay evidence. For example, the Restitution of Land Rights Act permits the Land Claims Court to receive hearsay evidence. 2. The Nature of the Evidence s3(1)(c)(ii) Although there is no clear guidance from the case law, it can be inferred from Hewan v Kouriethat courts are primarily concerned with the reliability of the evidence when considering its nature. This criteria is also prominent when considering its probative value. Many factors affect reliability. These include whether the non-witness had or has no interest in the matter before the court and that the statement was made against the interests of the declarant. Reliability will be enhanced by other evidence supporting the hearsay evidence. The court may consider the simplicity of the subject matter and the absence of contradictory evidence. The contemporaneity (taken or occurring at the same time) and spontaneity of the hearsay statement may be taken into account. The degree of hearsay will be relevant, the reliability diminishing where it is second hand hearsay.

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3. The purpose for which the evidence is tendered In Hlogwane v Rector, St Francis College (not prescribed) the court held that the fact that the hearsay evidence pertained to an issue fundamental to the case before it favoured admitting it. This approach was rejected in S v Mpofu. The court in this case stressed that the important criteria for determining admissibility were truthfulness and reliability. Truthfulness and reliability are in essence one criterion that is examined when looking at the nature of the evidence. The difficulty with the approach in Mpofuis that it becomes difficult to ascertain what the legislature meant by the purpose. In Metedad, it was held that this meant nothing more than that evidence tendered for a compelling reason would stand a better chance of admission that evidence tendered for a doubtful or illegitimate purpose. This is naturally difficult to distinguish from the relevance enquiry contained in S 3(1)(c)(iv) and (vi). 4. The probative value of the evidence: S 3(1)(c)(iv) The primary reason for not allowing evidence to be admitted is because it is considered unreliable. Thus Woutie thinks this is the most important factor a court should take into account. To ascertain whether evidence is sufficiently relevant, the court will weigh the probative value of the evidence against the potential prejudice to the party against whom it is admitted. In S v Ndhlovu, the court held that probative value means value for the purposes of proof. This means not only what will the hearsay evidence prove if admitted... but will it do so reliably? Thus, as weve seen, this is difficult to distinguish from the purpose for which the evidence is tendered. 5. The reason why the evidence is not given by the person upon whose credibility the probative value depends: S 3(1)(c)(v) The reason why evidence is not given depends on the facts of the case. A wide variety of reasons might exist. For example, the declarant might be dead, ill or abroad. Anything indicating why he is not available may be taken into account. In S v Nzama(not prescribed) the court held that where an application was made for a witness to testify in disguise for fear of retribution, including loss of his life, it would defeat the purpose of the application if the witness was required to testify at the hearing. Where a person is prohibited in law from disclosing information, the court will generally admit hearsay evidence. For example, in Welz v Hall(not prescribed),the court held that where evidence could not be given by a revenue official who made a document because he was prohibited by legislation from doing so, the evidence should generally be admitted in the interests of justice.

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Other circumstances that might make it necessary to introduce hearsay include death of a declarant, a witness absence from the country, the inability to tract witness and the extremely frail health of witness. 6. Prejudice to opponents: S 3(1)(c)(vi) The admission of hearsay evidence may result in procedural and substantive prejudice. However, as this is a course dealing with the law of evidence, we are only concerned with procedural prejudice. The admission of hearsay evidence may unduly lengthen proceedings and place an onerous duty of rebuttal on the party against whom it is admitted. InS v Ramawhale(not prescribed), the court held that it would be unduly prejudicial if an accused found himself forced to testify in order to rebut hearsay evidence in the absence of direct evidence supporting the prosecutions case. The court in S v Ndhlovu(see above for the facts) identified the following disadvantages that may accrue as a result of the admission of hearsay evidence: 1. Its not subject to the reliability checks applied to first-hand testimony. 2. Its reception exposes the party opposing its proof to the procedural unfairness of not being able to counter effectively inferences that may be drawn from it. This raises the question of whether the admission of hearsay evidence infringes the constitutional right to challenge evidence, since it is not possible to cross examine the person who tenders the evidence. Cameron JA in Ndhlovu noted that s3 was primarily an exclusionary rule and held that the legislative criteria to be taken into account when applying the interests of justice test were consonant with the constitution. He held that the manner in which s3 regulates the admission of hearsay is in line with developments in other democratic societies based on human rights, equality and freedom. Cameron JA held that, although the admission of hearsay evidence denies the accused the right to cross examine, this does not mean that the use of hearsay evidence violated the accuseds right to challenge evidence by cross-examination, if it is meant that the inability to cross examine the source of the statement in itself violates the right to challenge evidence. The BOR does not guarantee and entitlement to subject all evidence to cross examination. What it contains is the rightto challenge evidence(subject to the s36 limitations clause).Where the evidence is hearsay, the right entails that the accused is entitled to resist the application to hear the hearsay evidence. He is also able to scrutinise its probative value, including its reliability. But once the court has found that it is in the interest of justice to admit the hearsay, then the right to cross examine falls away and no constitutional right is infringed.In such circumstances, the right to challenge evidence does not encompass the right to cross examine the original declarant. You will recall that at the trial, accused #3 and #4 had radically disavowed their earlier statements. The court had to enquire whether these statements could be admitted.

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The court held that the reliability of their previous statements could not be ignored as they were spot on the facts, had high probative value, were objectively reliable and provided the compelling justification that must always be sought if hearsay evidence is to play a decisive or even significant part in convicting an accused. The quality of the hearsay evidence and the extraneous reliability guarantors made it imperative that this evidence be admitted. The evidence was thus admitted. The four accused were all convicted of murder and of robbery with aggravating circumstances. Wouter does not agree with Cameron JAs approach. He thinks that a better approach would be to say that this provision does infringe the right to challenge evidence, but it can be justified by the limitations clause. This is also the view of Zeffers and Paizes. This is because cross examination is a vital part of the right to challenge evidence and, if left out, does infringe this right. Thus Cameron JA should have been more awake. 7. Any other factor which in the opinion of the court should be taken into account S 3(1)(c)(vii) Any other factor means that the court can take into account anything it deems relevant. The common law exceptions to the hearsay rule have become obsolete since the operation of the LEAA. However, according to case law, these exceptions are not irrelevant due to their possible incorporation in terms of this provision.Thus the common law exceptions are factors that a court may take into account in exercising their discretion to admit the evidence in the interests of justice. For example, in S v Mbanjwa (not prescribed), the court took into account that a deceaseds statement was akin to a spontaneous dying declaration, and held that these types of hearsay statements were exceptionally admissible at common law. Well come back to further common law exceptions in Chapter 14. 4 Procedural issues

In S v Ndhlovu it was noted that were a number of duties resting on the presiding officers to ensure that the accuseds rights were upheld: They must actively guard against the inadvertent admission or venting of hearsay evidence They must ensure that the significance of the contents of s3 are properly explained to an unrepresented accused They must protect an accused from the late or unheralded admission of hearsay evidence.

The admission of hearsay must be dealt with clearly and timeously. In S v Molimi(prescribed), the CC held thatwhere the state wants to present hearsay evidence, the court must give a ruling on its admissibility before the accused presents his case. The admissibility of hearsay evidence cannot be decided once the accused has already presented his case. Due notice of the intention to lead hearsay evidence is not a pre-requisite for admissibility. However, it will mitigate any prejudice that might result from the admission of the hearsay in so far as it enables the person against whom the hearsay is admitted to lead evidence in rebuttal. Page 36 of 154

14 A SELECTION OF COMMON LAW EXCEPTIONS TO THE HEARSAY RULE Note: This chapter is quite detailed. We dont need to know it in as much detail so please use your discretion.Wouter advised that we should just read through it.None of the cases in this section are prescribed. In Mnyama v Gxalaba 1990 (C), the court held that the LEAA rendered the common law rules applicable to hearsay obsolete and redefined hearsay. This section deals with common law exceptions to the hearsay rule. Although the common law exceptionsare now obsolete, they are not completely irrelevant. This is because the court can take into account evidence that would have been admitted under the common law through the provision found in s3(1)(c)(vii) of the LEAAallowing the court to take into account any other factor in deciding whether or not to admit hearsay evidence. 1 Common law definition of hearsay

At common law, hearsay evidence was defined as any statement other than one made by a person while giving oral evidence in the proceedings, and presented as evidence of any fact or opinion stated. The purpose for tendering the statement was critical in determining whether the statement was hearsay or not. In Subramanian v Public Prosecutorit was noted that evidence is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that the statement was made. 2 Exceptions to the hearsay rule

The difficulty with the common law hearsay rule was that it sometimes led to the exclusion of relevant and reliable evidence. In order to avoid this unfortunate consequence of the rule, a number of ad hoc exceptions developed. Although, due to the LEAA, these exceptions are now obsolete, they may still be considered as any other factor that the court may take into consideration in exercising its discretion to admit hearsay evidence in the interests of justice: Res gestae statements Evidence of facts may be admissible as part of the res gestae if these facts are so closely connected in time, place and circumstances with some transaction which is at issue that they can be said to form part of that transaction. Various categories of res gestae evolved to facilitate the admission of hearsay evidence: 1. Spontaneous Statements: A spontaneous statement occurs where there was no time for a person to reflect on what they are saying. The court has held that these kind of statements, despite their hearsay nature, are the product of an instinctive response and therefore less likely to be an invention or deliberate Page 37 of 154

distortion. Thus they can be admitted.In order for the statement to be regarded as spontaneous, it must be so closely linked to the event which gave rise to it that the presiding officer is able to conclude that the event dominated the mind of the declarant at the time of uttering the statement. In S v Tuge,a witness to a robbery wrote down the number of the robbers car on his hand as the car drove off. The witness transferred the number onto a piece of paper. The witness had disappeared at the time of the trial and the prosecution called another witness to hand the piece of paper bearing the registration number of the car into evidence. Its admission into evidence was one of the grounds of appeal. The appeal court held that the act of writing down the number was, in all circumstances part of the res gestae accompanying the events constituting the robbery... and was therefore admissible under that exception to the hearsay rule. The court held that the following conditions need to exist for a resgestae statement to be admitted into evidence: a. The original speaker must be shown to be an unavailable witness; b. There must have been occurrence which produced a stress of nervous excitement; c. The statement must have been made whilst the stress was still so operative on the speaker that his reflective powers may be assumed to have been in abeyance; d. The statement must not amount to a reconstruction of a past event. The court noted that the fact that a statement was made in response to a question is not necessarily an indication of absence of spontaneity. The court has the discretion to determine whether there was sufficient spontaneity. The problem with this exception is that it is precisely the stress and absence of reflective powers that make such excited utterances unreliable. 2. Composite Acts: Where an act was accompanied by a hearsay statement, and the act could only be properly evaluated as evidence if it was considered in conjunction with the statement, the statement could only be admitted if certain conditions were met: a. The statement and act had to be approximately contemporaneous b. The statement must have been by the actor c. It could be used only to explain the act The exception applied to both written and oral statements. This can be seen in R v Kukubula,although the accused had pleaded guilty to making imputations of witchcraft, the prosecution sought to have a letter written by `M admitted on the basis that it was relevant to sentence. The letter, if admitted, would show that M committed suicide in consequence of an imputation against him by the accused that he was a wizard as well as Ms state of mind at the time. The court admitted the hearsay letter in support of the proof of suicide and the prosecutions contention as to the state of the deceaseds mind. 3. Declarations of State of Mind: In Kukubula, the statement also demonstrated the state of mind. In order to be admissible, the state of mind of the declarant must be relevant to an issue before the court. The rationale for this Page 38 of 154

exception is that such statements are often the best and sometimes the only evidence of a persons state of mind. 4. Declarations of Physical Sensations: Statements of a non-witness such as my head is aching and Im going to vomit were admitted at common law as evidence of contemporaneous physical sensations. The rationale was reliability, especially when the hearsay statement was consistent with the proven facts. The evidence could only be admitted to prove the symptoms and not the cause of the physical sensation. For example, if a non-witness made the statement my stomach hurts, I think Leo poisoned me only my stomach hurts would be admissible. The second part of the statement would only admissible if it met the requirements of another exception to the hearsay rule, dying declarations (see below). S 3 of the LEAA did away with the necessity of fitting statements into categories and allows res gestae statements and other hearsay statements to be admitted where there are sufficient indications of reliability and relevance to justify their admission in the interests of justice. Dying Declarations In terms of the common law, a statement made by someone on his death bed could be brought to court as evidence by someone else. As seen above, in S v Mbanjwa (not prescribed), the court took into account that the deceaseds statement was akin to a dying declaration and was a spontaneous statement, and these types of hearsay statements were exceptionally admissible at common law. This case involved a dispute between the brother of a deceased guy and the deceaseds common law wife. The brother argued that it was his duty to determine the location of his brothers burial plot and to bury him. The wife argued the same and brought evidence that the deceased had told her he wanted to be buried in Cape Town. The brother wanted him buried in the Transkei. The court held that the statement was allowed in terms of common law, but attached very little weight to it (and thus, in the end, the body was delivered to the brother). Under common law, dying declarations could be admitted provided: a. b. c. d. The declaration was relevant to the cause of death; The evidence was adduced on a charge of murder or culpable homicide; The deceased would otherwise have been a competent witness; and At the time of making the statement, the declarant was under a settled hopeless expectation of death.

The rationale underpinning this exception was necessity and reliability. The necessity argument is easily understood, but the reliability argument is questionable in that it would be a leap of faith rather than logic to assume that a settled hopeless expectation of death is a guarantee against deception. The person had to be really scared.

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15 STATUTORY EXCEPTIONS TO THE HEARSAY RULE Note Wouter said we only need to know that these exceptions exist, so just read over this chapter briefly. Simply know that you can use affidavits to prove certain facts that would normally fall under the hearsay rule, thereby circumventing the hearsay rule. By having your facts admitted (via affidavits) these facts may be allowed, due to them falling under statutory exceptions to the hearsay rule

Introduction

Section 3 of the LEAA is subject to the provisions of any other law. The tendency of the courts has been to allow alternate routes to admissibility. In fact, the LEAA did not repeal existing legislative provisions governing the admission of hearsay evidence, except for S 216 and S 223 of the CPA which referred to the common law in force on 30 May 1961. This section only deals with the statutory exceptions contained in the CPEA and the CPA. 2 Civil Proceedings Evidence Act 25 of 1965 (CPEA)

In civil proceedings, see s34 of the Civil Proceedings Evidence Act 1965 which deals with the admissibility of documentary evidence as to the facts in issue. It deals with written statements,which can be admitted provided certain conditions are met. We need to know that there is a statutory provision dealing with written evidence. The requirements are strict: The statement of an interested person will not be admitted.

In the case of Boshoff v Nel (not prescribed)the defendant was involved in a dispute with another person in relation to a property. The plaintiff said that defendant gave an option to buy the property. The defendant said that he was so drunk that he did not know what he was doing. The defendant got his girlfriend to make a statement about how drunk he was to the attorney. The girlfriend died. The court did not allow the statement, because the girlfriend was an interested party. Proof of trial and conviction or acquittal of any person S 17 of the CPEA states that the trial and conviction or acquittal of any person may be proved by the production of a document certified or purporting to be certified by the registrar or clerk of the court or other officer having the custody of the records of the court where such conviction of acquittal took place, or by the deputy of such registrar, clerk or other officer, to be a copy of the record of the charge and of the trial, conviction and judgment or acquittal, as the case may be, omitting the formal parts thereof. The courts take the view that the common law rule in Hollington v Hewthorn (prescribed from Semester 1) in terms of which a criminal court conviction is not admissible in subsequent civil proceedings as evidence that the accused committed the offence for which he was convicted is not negated by S 17.

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Criminal Proceedings

An affidavit that meets the requirements of s212 of the CPA constitutes prima facie proof of the matters stated in it. It does not however lighten the prosecutions burden of proof. It is simply a device to avoid the inconvenience of requiring oral testimony. S212 may be utilised by both the prosecution and the defence. 4 Some Statutory Exceptions to the Hearsay Rule

Remember, the exceptions on the list below can be proved by affidavits and thus oral evidence in support does not need to be given. Here they are... some of the statutory exceptions: From the Civil Proceedings Evidence Act: 1. Evidence of the times of sunrise or sunset 2. Bankers books 3. General evidence of documentary evidence as to facts in issue From the Criminal Procedure Act: 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Performance (or lack of performance) of a state/official act Denial of information given to an official or state person Official acts when an official is supposed to record or register something Facts which require specialised skills (such as something with regard to biology or chemistry etc.) The existence of a precious metal or stone The finding of and action taken in connection with a fingerprint or palmprint Proof of, or condition of a dead body Chain of custody of any object in the states possession Affidavits by persons in a foreign country Admission of written statements by consent Evidence recorded at a preparatory examination or former trial Admissibility of certain trade or business records

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16 PREVIOUS DETRIMENTAL STATEMENTS This chapter in the textbook only discusses informal admissions and confessions. We also look at previous inconsistent statements which impact detrimentally on the party concerned. Its important in our system to distinguish between informal admissions and confessions as the rules of admissibility differ for these, as do their consequences. The admissibility requirements for confessions are stricter. This gives rise to a strange situation in court where an advocate may strategically argue strongly that his clients statement was a confession and not an admission (as he doesnt want the statement admitted). Note that the Constitution (and English law) do not differentiate between admissions and confessions. 1 Previous Inconsistent Statements (links to Ch 25 Impeaching the credibility of a witness)

A previous inconsistent statement arises when the witness is in the witness box relaying a story and which is contrary to a statement previously made. The court will make an inference with respect to the credibility of the witness. It is necessary to differentiate between an opponents witness and your own witness. If an opponents witness makes an inconsistent statement, this is considered clear cross-examination material, and you may cross-examine him immediately. You may ask what the reason is for the differences in his statements, which can impact on his credibility. But sometimes your own witness contradicts a statement he made prior to the proceedings. You cant simply cross-examine your own witness. Instead, you can ask the court to first declare your witness as a hostile witness, and only then may you commence with cross-examination. 2 Admissions and Confessions Distinguish

An admission is a statement which is adverse to the party concerned. We need to distinguish between an admission and a confession. This is necessary because the requirements for admission differ. Formal Admission A formal admission is made during the judicial (legal) process and is a confirmation of a fact in issue between the parties. In a civil case, it arises during the pleadings (for example, where the defendant admits to a material allegation by the plaintiff) or in criminal proceedings, at the beginning of the trial (where the defence admits to one of the facts in issue, it gets noted, then is out of dispute. For example, if he admits to the cause of death, that fact will not be in issue anymore). A formal admission makes a fact in issue no longer so. Therefore there is no need to prove that fact in court. Formal admissions are binding on the maker and are generally made in order to reduce the number of issues before the court, whereas informal admissions merely constitute an item of evidence that can be contradicted or explained away.

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Informal Admissions a brief An informal admission is an extra-judicial statement, made outside of civil or criminal court proceedings, which is adverse to that partys case. For example, an informal admission will arise where a driver admits to the police after a motor vehicle collision that he did not stop at the traffic light. This is clearly an admission that he was not properly aware and thus negligent, and at the trial the cop can be called to testify regarding this admission An informal admission can also arise during plea proceedings, where the accused is asked to plea and is asked for a reason for the plea for example, in explaining why he pleaded not guilty. This cannot be noted as a formal admission, but can be regarded as an informal one. It is also possible for a formal admission to be made at this time. However, if conditions for this are not met, then such an adverse statement will be regarded as informal admission. Informal admissions may be admitted to prove the truth of their contents.The admission is admissible against the person who made the admission, whether or not he testifies. For example, the cop may be called to the witness box despite the driver not testifying. Wouter says that informal admissions are not hit by the hearsay rule. Since a statement may constitute an admission even though the party is unaware that what he is saying is contrary to his interests, one can say that admissions or confessions do not have the same drawbacks inherent in hearsay, because a party can hardly complain that when he made the statement he was not on oath or did not have an opportunity to cross-examine himself. Remember from Ndhlovu that an admission by an accused that implicates a co-accused can be admitted as hearsay against the co-accused. The rationale for admitting such evidence is that a person is unlikely to make an admission adverse to his interests if the contents of that admission are not true. Nevertheless, informal admissions may, in many instances, be hearsay in nature. Section 3(4) of the LEAA defines hearsay evidence as 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. When the probative value of an informal admission depends primarily on its maker (which will almost inevitably be the case) it will be a hearsay statement. Keep in mind the nice exceptions to the hearsay rule that we discussed above. Once part of a statement has been allowed into evidence as an admission, the maker is entitled to have the whole statement put before the court, even where it includes self-serving statements, provided the two components form part of a single statement. Note that in S v Ralukukwe the court held that the admissibility of this kind of hearsay evidence must be dealt with timeously (i.e. before the accused has been heard). Note (because Wouter said that this case was important) the court in Ralukukwealso held that whereas a confession could not be admitted as evidence against a co-accused, an admission could be, provided that, since a co-accused's admission was hearsay, it is admitted in terms of s 3(1) of the LEAA (see above). Where there has been no attempt at trial to introduce hearsay evidence it is manifestly unfair to the appellant for the State to invoke the s3(1) provisions at the appeal stage.

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Confession A confession is an unequivocal admission of guilt, where the accused admits to all the elements of the crime. Requirements for an admission differ A court needs to differentiate between (informal) admissions and confessions because, as mentioned above, the admission requirements for confessions are stricter. As a confession is also an extra-judicial statement out of court, this can be super confusing. If it is an admission, an adverse statement has been made. If it is a confession, a comprehensive admission to all elements of the crime has been made. This differentiation may sound easy, but its not always so easy to classify in certain factual scenarios. Only once answered can the court consider which rules of admissibility will be acceptable. It is also necessary to make this distinction because a conviction can be made solely on the basis of a confession in the correct circumstances. In some instances, the court will not deal with this issue as the parties will have consensus as to whether the statement concerned is an admission or confession. 3 Informal Admissions Two issues There are two issues that the court needs to deal with upfront: 1. Is the Statement an Admission or Confession When the court considers this issue, it will ask if the statement has the effect of eliminating the facts in issue. Although the confession is an extra judicial statement and part of the evidentiary material that the state uses to try to prove the guilt of the accused, the accused is still free to dispute that confession. Confessions do not have the effect of eliminating the facts in issue. Only formal admissions have this effect, as they are made during the legal proceedings with a view of having this effect. In the case of S v Grove-Mitchell, on his arrest, the accused in this case said I emptied the gun on her and I shot her full of holes. The court held that this was not a confession because, for example, the accused may have shot the victim self-defence. That he said those things is still pretty stupid. 2. Is the statement Admissible? Thus, for a statement to be an admissible confession, the courts follow quite a strict approach: the statement must be an unconditional admission of guilt.

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Admissibility

As mentioned, an admission is always admissible against the maker of the statement whether he testifies or not, provided the requirements for admissibility are met (i.e. the statement is not hit by the hearsay rule (its outside the ambit of hearsay or its admissible as an exception)). The admission of an accused can be admitted against the co-accused. In civil matters, the only requirement for admissibility is that the statement must be relevant. Where statements are made in the course of negotiations for the settlement of a dispute, there is the additional requirement that such statements cannot be disclosed without the consent of both parties. In criminal matters, an admission must be proved to have been made voluntarily before it can be admitted into evidence. Rationale The rationale for admitting this kind of evidence is found in the mantra what a person says to his or her own detriment has a ring of truth. If the state is not informed of this evidence prior to the trial, it may make it difficult for the state to present evidence to rebut the statement. 5 Different kinds of admissions Oral or written Requirements for admission also differ if the evidence is oral or written. Written evidence arises where the person concerned makes a written statement to the police/magistrate in which he admits certain negative facts. By Conduct a brief Admissions may be contained in a verbal or written statement and they may also be inferred by conduct. By remaining quiet, by an action or even by a gesture, a person can also make an admission. Silence in the face of an accusation may amount to an admission when it forms the basis of a commonsense inference against a party. A good example can be found in Jacobs v Henning(the seduction case) where the plaintiffs father confronted the accused, accusing him of being the cause of his daughters pregnancy. In response, the accused lowered his head in shame. This was regarded as an admission by conduct. Vicarious Admissions A vicarious admission arises where a third party, who is not party to the proceedings (i.e. not the plaintiff/state or defendant/accused) makes an admission relevant to the proceedings. The court must question whether that admission is admissible against the defendant. For example, it may happen that the third party was driving a car belonging to the defendant company during the course and scope of the third partys employment with the defendant company. The plaintiff sues the defendant because the third party has no money. See below. Page 45 of 154

Admissions by conduct such as action/gesture/silence

When are these kinds of evidence admissible? Silence In criminal cases, because of the accuseds constitutional right to remain silent and privilege against self-incrimination, there is a limited scope for inferences in this regard. Because of the constitutional right, the courts will not make a negative inference in this regard. In England there is staturory provision that allows for this: When a person is arrested, police will inform him of his right to remain silent, but coupled with this, told that if he had defence that he intends to rely on in trial and he does not mention it now, then the court may make an inference. This was seen in the Murray case, which dealt with similar provision in Northern Ireland to same effect (see Semester One). This is clearly contrary to the South African position. Disclosure of alibi by accused at trial stage During the trial, the accused may raise an alibi defence claiming that he isnt guilty, as he wasnt at the scene of the crime when the crime occurred. Does he have a duty to raise this early on or at the trial and, if he does not, can there be an inference as to the credibility of his alibi? The common law rule states that, if the accused intends relying on an alibi, he should inform the state timeously so that they can investigate the defence prior to the trial. In terms of the common law, if the accused raises his defence only at the trial and not before, then the court can make an inference. This is because the state is deprived of the opportunity to make an enquiry as to the veracity of the defence. For example, a crime was committed in Cape Town, but the accused says at the trial that he was in Durban visiting his mistress. Now, as the trial is in Cape Town, there is not an opportunity for the state to go to Durban and investigate the veracity of the accuseds defence. The constitutionality of this approach to the late disclosure of an alibi was considered in S v Thebus. The court in this case also applied its mind to the permissibility of drawing an adverse inference of guilt from pre-trial silence, and the constitutionality of drawing an adverse inference as to the credibility of the accused from pre -trial silence. It is a daunting task to determine the ratio because everyone followed different reasons. However, it seems fair to extract the conclusion the common law position remains more or less intact. The accused can raise a defence late in the trial, but the court must take this into account as a factor, as the state hasnt had an opportunity to properly deal with the defence. S v Thebus We have included a summary of Thebusbelow (taken from Principles), although Wouter told us just to look at it: The appellant was a co-accused whose convictions on a charge of murder and 2 counts of attempted murder had been confirmed by the SCA. On arrest, the accused was warned of his right to remain Page 46 of 154

silent, but nevertheless elected to make an oral statement in which he described the whereabouts of his family at the time of the shooting. At the trial, he testified that this statement was not intended to include himself (if it did, it would have contradicted the details of his alibi). After making his original oral statement, the accused refused to make a written statement, and only disclosed his alibi defence two years later when the matter came to trial. He alibi defence was rejected in both the trial court and the SCA. On appeal to the CC, the accused contended that the SCA had erred in drawing a negative inference from the accuseds failure to disclose his alibi defence timeously. There were 4 separate judgments: Moseneke J emphasised the distinction between pre-trial silence and trial silence. The objective of the right to silence during trial is to secure a fair trial, whereas the right to pre-trial silence seeks to oust the compulsion to speak. He states that in our constitutional setting, pre-trial silence of an accused can never warrant the drawing of an inference of guilt as this would undermine both the rights to remain silent and to be presumed innocent. The drawing of an inference would render the mandatory warning of the right to remain silent a trap instead of a means for finding out the truth in the interests of justice. Moseneke drew a distinction between an inference as to guilt and an inference pertaining to credibility on the basis of a persons pre-trial silence. The latter would not necessarily infringe the presumption of innocence. However, the textbook argues that this distinction is tendentious. For example, with respect to the late disclosure of an alibi defence, a negative inference as to credibility will inevitably be a factor taken into account in the ultimate determination of guilt or innocence. Mosenekes judgment also supports a distinction being drawn between an inference as to guilt and the effect of late disclosure on the evaluation of the weight to accorded to the alibi defence. The latter is treated as an unavoidable consequence of adversarial proceedings: late disclosure precludes the prosecution from properly investigating the alibi. As a result it will not be fully tested and less weight must be attached to it. The effect on weight is not a result of a negative inference as to credibility or guilt but rather a product of the evaluation of evidence in an adversarial system. However, Moseneke equates this procedural consequence with an inference as to credibility and drawing such inference amounts to a compulsion to speak and this limits the accuseds right to silence. He further noted that it is constitutionally mandatory to warn accused of their right to remain silent but that it is not mandatory that they be warned that their silence may possibly be used against them and that their silence will be taken into account in determining the weight to be accorded to an alibi. Taking into account the limited use of an inference based on the late disclosure of an alibi, he concluded that the common law rule is a justifiable limitation of the right to remain silent and that late disclosure of an alibi may have consequences which can legitimately be taken into account in evaluating the evidence as a whole. He acknowledged that an election to disclose ones defence only when one appears on trial is not only legitimate but also protected in the Constitution. However, he held that this protection would not preclude cross-examination of the accuseds election to remain silent as it would go to credit. Such cross-examination would not unjustifiably limit the right to remain silent provided it was conducted with due regard to the dictates of trial justice. Goldstone and ORegan JJ concurred in the result be dissented insofar as they reached the conclusion that drawing an adverse inference from the appellants failure to timeously disclose his Page 47 of 154

alibi was an unjustifiable infringement of the right to remain silent. They find that the right to silence prohibits the drawing of an adverse inference from the failure of the accused to disclose an alibi before the trial commences for two reasons: First, a rule against the drawing of adverse inferences from pre-trial silence protects arrested persons from improper questioning and procedures by the police. Secondly, once an arrested person has been informed of the right to remain silent and implicitly that she or he will not be penalised for exercising this right, it is unfair subsequently to use that silence to discredit the person. They rejected the distinction between adverse inferences going to guilt and those going to credit. Although they might be conceptually different, the practical effect of the adverse inference to be drawn for the purposes of credit, namely, that the alibi evidence is not to be believed, will often be no more different to the effect of the inference to be drawn with respect to guilt, namely that the late tender of the alibi suggests that it is manufactured and that the accused is guilty. They also rejected Moseneke Js conclusion that it is constitutionally permissible to cross-examine the accused on his election to remain silent. First, an accused should not be required to explain why he chose to exercise a constitutional right, and second, it would be unfair in light of the constitutionally mandate warning of the right to remain silent. However, the concluded that if the warning was revised (so that accused persons are properly informed that if they fail to disclose a defence or material fact prior to their trial, that failure may be used against them in the trial), an adverse inference from the late disclosure of an alibi would constitute a justifiable limitation on the right to remain silent. Yacoob although concurring with the result, took a different approach. He rejected the distinction between trial and pre-trial silence and held that S 35(1)(a) and S 35(3)(h) represent a continuum. He held that the ultimate objective of the right to remain silent is to ensure a fair trial. However, the court must ensure that it is a fair trial overall, and in so doing it must balance the interests of the accused with that of society at large and the administration of justice. Because this broad concept of trial fairness cannot, presumably, be found in S 35(3), Yacoob locates it in S 35(5). Section 35(5) confers discretion on the courts to admit evidence even where it was unconstitutionally obtained provided that it is fair to do so and its admission is not detrimental to the administration of justice. Consequently he held that provided that the drawing of inferences from the exercise of the right to remain silent, or the interrogation of such exercise on cross-examination, does not ultimately render the trial unfair, there is no basis on which to forbid the drawing of inferences. In a judgment concurred in by Langa DCJ, Ngcobo J found that the first appellants right to pre-trial silence was not implicated in the matter because the first appellant had been warned of his right to remain silent but instead chose to make an exculpatory statement which was inconsistent with his alibi. He accordingly found it unnecessary to decide the question whether failing to disclose an alibi defence to the police can ever attract an adverse inference. Thus, the precise nature of the negative consequences of remaining silent at trial is not altogether clear. There appear to be 2 options: 1. An adverse inference as to credibility or guilt 2. A conclusion that in the absence of contradictory evidence the evidence is sufficient to convict. Page 48 of 154

In (1) silence becomes an item of evidence whereas in (2) the negative consequence is simply an unavoidable possibility in the final evaluation of evidence. The problem with (1) is that to use silence as an item of evidence against the accused may well infringe the right to remain silent. To date, the Constitutional Court has avoided pronouncing upon the constitutionality of using trial silence as an item of evidence. Another difficulty that arises with drawing inferences from trial silence is the following: What is the inference to be drawn if the accused remains silent on the advice of counsel? In these circumstances it would be difficult for the court to conclude that an inference to credibility or guilt was the only reasonable inference. Trial silence infra under evaluation of evidence This occurs where the accused elects not to testify at the trial (or chooses not to call witnesses in his defence). This is an important issue that we will discuss when we deal with evaluation of evidence. Importantly, a court is not entitled to make any negative inference when the accused decides not to testify, but there are nonetheless consequences that accrue, as the court has no contrary evidence to the states case. See the section on evaluation of evidence at the end of this course. Failure to answer letters This arises, generally, in the context of civil litigation. It doesnt seem too important for this course (but you never know with Wouters multiple choice!) In certain circumstances, an admission may be inferred from the failure to answer a letter. However, as responding to a letter requires a greater degree of positive conduct than an oral denial, the courts are more reluctant to draw such inference. For example, in R v Westwhere the accused had failed to respond to a letter from the complainant alleging that he was the cause of her pregnancy, the court held that an acknowledgment of paternity could not be inferred from his silence. In each case, before an admission can be inferred, it must be established in the light of the surrounding circumstances that it would be reasonable to draw the inference that the party did not respond because he acknowledged that the contents of the letter were true. Thus, in McWilliams v First Consolidated Holdingsit was held that when according to ordinary commercial practice and human expectation firm repudiation of such an assertion would be the norm if it was not accepted as correct, such partys silence and inaction, unless satisfactorily explained, may be taken to constitute an admission by him of the truth of the assertion... And an adverse inference will more readily be drawn when the unchallenged assertion had been preceded by correspondence or negotiations between the parties relative to the subject matter of the assertion. Statements made in presence of a party A statement made in the presence of a party may be put before the court in order that the court may assess whether the partys response to hearing the statement amounted to an acceptance of its truth. This is mainly an issue where somebody makes a statement implicating a party and this party then remains quiet (or even denies the statement). In this instance, an inference can be made.

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In the case of S v Rthe accused was an ambulance driver. He was charged with the rape of a woman in his ambulance. When the ambulance arrived at the hospital, the victim claimed that she was raped by the accused. The accused, who was in her presence, did not say anything. The court, allowing this evidence to be admitted, held that this was an admission by conduct, because he said nothing. Keep in mind the accuseds constitutional right to remain silent in criminal proceedings. Failure to cross-examine Cross examination has a number of purposes. One of these purposes is that when you cross examine a witness, you must question the witness specifically on those points where your clients (i.e. the accuseds) version differs from that of the witness. If a party fails to cross-examine on one of the issues, this can be construed as an admission and inference that you agree with the witnesss version of events. In the case of an unrepresented accused, this rule should not apply at all. This is because the accused is a lay person and doesnt know what is potting with regards to all things legal. In S v Mathlare, the appellant had been convicted in a regional court. On appeal, it was alleged that the prosecution had failed to present formal evidence indicating that the blood samples identifying the appellant as the father of the child received as a result of the rape were taken from himself, the child and the complainant. During the trial, the source of the blood samples had not been raised in cross examination, as the cross examination having focused on the reliability of the analysis of the samples. The appeal court held that this constituted an informal admission of the source of the blood samples. 6 Vicarious admission

The definition of a vicarious admission can be found above. Is the third party employers admission of his own negligence admissible against his employer in a case where his employer has been sued as the defendant? General Rule As a general rule, a statement made out of court, by a person who is not a party to the suit, is not admissible, as it is regarded as hearsay. Thus the court will consider the exceptions to the hearsay rule discussed above. However, in terms of the common law, there are some exceptions where vicarious admission can be admitted against a party for example, due to the employee/employer relationship. As we know, when the judge exercises his discretion in this regard, he can take into account the common law exceptions to the hearsay rule - thus common law can still play a role in this sense. An admission of co-accused can also be admitted as hearsay against accused. This we dealt with under hearsay evidence in the Ndhlovu case. It has however been argued that there are other reasons (besides hearsay) for excluding vicarious admissions: Page 50 of 154

Prior to Mdaniv AllianzInsurance Ltd it was widely accepted that certain exceptions existed in terms of which an admission of a third party (X) could be proved against a part (Y) to litigation. These exceptions are referred to as vicarious admissions. There are 3 main categories of vicarious admissions: I. II. III. Where X has express or implied authority to make a statement on behalf of Y, the admission may be proved against Y. Where a litigant adopts the statement of a third party as his statement and ratifies it. Where X and Y share a privity or identity of interest. Exceptions Where two people share a privity or identity of interest or obligation, statements made by one of them will be admissible against the other. Hoffmann and Zeffertt make the following distinction between privity and identity: 1. Privity exists between persons who have successive interests in the same property, and in the case of an owner andpredecessor in title. 2. Identity exists between persons who have concurrent joint interests or liabilities. The employee/employer relationship is the most notable exception to the vicarious evidence rule. In such a case, there is an identity of interest between the employer and employee. In terms of substantive law an employer is vicariously liable for a delict committed by his employee in the course of his employment. It follows from this rule that an employees statement will be admissible against the employer as there is a sufficient identity of interest to allow for this. In Botes v Van Deventer (also see Semester 1) the plaintiff claimed damages for loss incurred as a result of a lorry colliding with his racehorse. One of the issues to be decided by the court was whether an admission made by the driver of the defendants lorry (the driver being the defendants employee) was admissible against the defendant. The driver had made a statement to the police in which he admitted that the accident was due to his negligence. However, the driver was not available to give evidence at the trial. The court held the statement to be admissible. The court held that an employer is vicariously liable for a delict committed by his employee acting in the course and scope of his employment. The liability of the employer is identical to the liability of the employee. This was a vicarious admission, but it fell under the privity or identity of interest exception. However, the relevance of these exceptional categories in terms of which vicarious admissions are admissible needs to be reassessed following Mdani. The evidence in issue consisted of extra- curial statement made by an insured driver, who was not party to the suit, which was tendered against a third-party insurer *following an accidenct where the drivers car hit a pedestrian]. The court a quo found the evidence to be inadmissible in accordance with its interpretation of Union and South West Africa Insurance Co Ltd v Quantana NO: not only are such statements inadmissible because they are hearsay in nature, but also because of their vicarious nature. Therefore by application of S 3(2) of LEAA, the fact that S 3(1) permits hearsay to be admitted in certain circumstances does not enable the court to override the rule that vicarious extra-curial admissions Page 51 of 154

and statements are generally inadmissible. On appeal, the court held that it was clear from Quantana that the statement in question was held to be inadmissible on a single ground: that it was hearsay. This approach was later endorsed by the SCA in Makhatini v RAF. It therefore appears that the admissibility of extra- curial admissions made by a person who is not a party to the suit will depend solely on whether the statement is exceptionally admissible as hearsay in terms of S 3(1) of the LEAA. However, the common law justifications for admitting such statements may still be a factor to be taken into account by the court in the exercise of its discretion to admit hearsay in the interests of justice. Zeffertt criticizes the decision inMdani. He argues that inadmissible admissions are categorized as an inadmissible species of hearsay. When a vicarious admission is rejected to failing to meet the requirements of admissibility, it is excluded as hearsay but there are other reasons to warrant the exclusion. He argues that it does not follow that because evidence in Quntana was excluded as hearsay, that the theoretically true basis of its exclusion was not, in reality, the vicarious admission rule. Paizes also argued that the vicarious admission rule still has a role to play in the law of evidence. He argues that vicarious admissions are also excluded because they are irrelevant and even though such an admission may pass the hearsay test, it should still be excluded if it is not sufficiently relevant. NOTE OTHER EXAMPLES: An accuseds out-of-court statement incriminating a co-accused; acts and declarations in furtherance of a common purpose; an admission made by a partner concerning partnership affairs; an admission at trial made by a legal representative; an admission by one spouse is generally inadmissible against the other spouse unless it relates to the joint interest of the spouses in the community estate, or in a deferred sharing of profits under the accrual system; statements made by someone to whom a party has referred others for information may be proved against him as an admission concerning the subject matter of the reference. These are not examinable. 7 Statements made without prejudice

The general rule in civil matters is that an admission will be accepted into evidence provided that it is relevant. However, admissions included in a statement by a person involved in a dispute and which are genuinely aimed at achieving a compromise are protected from disclosure. Such admissions may only be accepted into evidence with the consent of both parties. The rationale for this rule is based on public policy which encourages the private settlement of disputes by the parties themselves. Parties would be reluctant to be frank if what they said might be held against them in the event of negotiations failing. Legal representatives tend to preface such statements with the words without prejudice meaning that the statement is made without prejudice to the rights of the person making the offer in the event of the offer being refused. A without prejudice offer will only be protected from disclosure if it is made in good faith. If the statement contains statements which are criminal or fraudulent, it will not automatically be Page 52 of 154

presumed to be in made faith, and the criminal or fraudulent content will only be relevant to admissibility if it tends to show bad faith. On the other hand, even if a statement is made in good faith, it will be admissible if the attempts at settlement constitute an act of insolvency, or an offence or an incitement to commit an offence, provided the statement is tendered to prove the commission of the act. If a statement contains an offer that is accompanied by an unequivocal and unconditional acknowledgment of liability, it will not be protected from disclosure. If the statement is accompanied by a threat of litigation should the offer not be accepted, it will remain privileged since such threat is implicit in every offer of compromise. However, where an offer contains a threat which is relevant to establishing that the offer was not bona fide, the offer and threat will be heard in court. Once a settlement is reached, privilege ceases to exist. However if the same or some connected issue is later disputed, the earlier without prejudice statement will remain protected from disclosure. 8 Admissions by the accused S 219A of the CPA Requirement of Voluntariness At common law, an extra-judicial statement such as an admission made by an accused may not be admitted into evidence unless it is proved to have been made freely and voluntarily. The meaning of freely and voluntary is restrictive. An admission will only be found to be involuntary if it has been induced by a promise or threat proceeding from a person in authority. The test is a subjective test to determine whether the accused was under pressure and thus induced to make the admission. Then, s219A of the CPA provides that evidence of any admission made extra-judicially by any person in relation to the commission of an offence shall, if such admission does not constitute a confession to that offence and is proved to have been voluntarily made by the person, be admissible in evidence against him at criminal proceedings relating to that offence... In S v Yolelo the AD held that in the common law there was a requirement that an admission must be made voluntarily. Thus, s219A is a codification of the common law. Nothing has changed with regards tothe meaning of voluntariness in relation to admissions. Impact of the Constitution This section may well provide the courts with the opportunity to depart from the artificial and technical common law interpretation of the requirement of voluntariness. s35(1)(c) provides that an arrested person shall have the right not to be compelled to make any confession or admission that can be used in evidence against him. Remember that the Constitution does not differentiate confessions and admissions (as weve already seen). But in our law, the requirements for admissions and confessions differ. However, there is nothing in this section to suggest that admissions and confessions should be treated differently.

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S v Agnew S 217 of CPA requires confessions to be made freely and voluntarily whilst the maker is in his sound and sober senses and without having been unduly influenced thereto. This case is important for two reasons: 1. The court held that the differentiation between admissions and confessions leads to an unsatisfactory situation; 2. The court took into account that the statement made was not done so voluntarily, and negated the constitutional grounds. The accused was arrested at his home at 01h50 in the morning after which his attorney was called by phone. The parties planned for the police officer and the accused to meet the attorney at the police stations charge office. The attorney said later that he had asked the policeman not to take a statement. The policeman argued later that there had been no such agreement. The accused and policeman went and had coffee. After being told about the conditions in the holding cells (i.e. that he was gonna get raped), the accused felt a keen desire to spill the beans. The policeman asked if he was prepared to make a statement to a magistrate. At 03h15 in the morning, the accused made a statement to the magistrate telling all (note: its not relevant whether this was a confession or admission). The court had to decide whether this statement to the magistrate was admissible. The court considered the differentiation between admissions and confessions and noted that historically, one of the reasons for the distinction was the assumption that admissions need not be guarded against to the same extent as confessions. However, in many instances admissions could be as damaging as confessions. The court held that this differentiation was unsatisfactory: If full effect is given to the maxim that no one should be obliged to incriminate himself, then it is difficult to understand how incriminating statements contained in confessions should be treated differently from words amounting to admissions only An admission does not have to conform to the same requirements as a confession, so it is easier to include an admission. But, held the court, there is no reason for this distinction, and admissions and confessions should comply with the same requirements. The court held that it must take into consideration the Constitution, which does not make this distinction. After this ramble, the court held that: 1. the policeman did not stick to the agreement. The statement was thus not given voluntarily and was rather the result of the threatening behaviour of the arresting officer 2. the accuseds constitutional right to remain silent was infringed, and therefore his right to a fair trial was also infringed The court held that the right to counsel and the right to remain silent go hand-in-hand. The right to counsel helps reinforce/protect the right to remain silent. As the captain avoided the accuseds attorney, he infringed this right to remain silent. Page 54 of 154

However, the court held, more importantly, that the statement should also be excluded because it had been obtained in violation of the accuseds constitutional right to remain silent and his right to legal representation. Note: this case was decided in terms of the Interim Constitution, which did not have a S 35(5) section, which provides for the exclusion of evidence obtained in violation of the Bill of Rights.Thus the finding was based instead on the constitutional right to fairness of the trial. Position in England and the findings of the SA Law Commission The South African Law Commission, following the trend of the US and the UK, has recommended that admissions, confessions and pointings out should all be subject to the same requirements of admissibility: namely that they were made freely and voluntarily, in sound and sober sense and without undue influence. Plea proceedings especially S 115 CPA In terms of this section, the magistrate will ask the accused whether he wants to disclose his defence. Upon a plea of not guilty the magistrate may ask the accused to make a statement disclosing the outline of his defence. If the accused does not make such statement or makes one but it is unclear as to what is in issue, the magistrate can question him to find out what is exactly what is in dispute. In terms of this section, there is a duty upon the court to enquire whether an allegation that is not put in dispute by the plea can be noted as an admission. The magistrate will also try and ascertain the facts in dispute. If it becomes clear that he does not dispute one of the facta probanda or facts in dispute, the magistrate must ask him if he can enter a formal admission. If it is not one of the facta probanda or the accused does not give permission, then the court will consider the admission to be an informal admission. Burden of proof in S 219A(1)(b) In accordance with the presumption of innocence, the prosecution bears the burden of proving beyond a reasonable doubt that the accused made an admission freely and voluntarily. However, s219A(1) of the CPA provides that where the admission is made to a magistrate and reduced to writing by him or is confirmed and reduced to writing in the presence of the magistrate, the admission shall, upon mere production at the proceedings in question of the document in which the admission is contained: a. be admissible in evidence against such person if it appears from such document that the admission was made by a person whose name corresponds to that of such person and in the case of an admission made to a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and to the best of his ability with regards to the content of the admission and any question put to such person by the magistrate; and

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b.

is presumed, unless the contrary is proven, to have been voluntarily made by such person if it appears from the document in which the admission is contained that the admission was voluntarily made by such person.

The position has changed here in view of the case of S v Zuma. Prior to this case, there was an onus on the accused. If the admission was made in writing before a magistrate, then it was presumed to have been done voluntarily. In Zuma, this was abolished. The court held that the previous rule infringed upon the presumption of innocence and was unconstitutional. The onus is now on the state to prove that the admission was made voluntarily. In Agnew, the court, in an obiter dictum, noted that the presumption contained in S 219(A)(1)(b) had been invalidated by the CCs ruling in Zuma (where the court found a similar presumption to S 219(A)(1)(b) contained in S 217(1)(b)(ii) of the CPA pertaining to confessions). Principles of Evidence states that the CC in Zuma specifically restricted its finding of unconstitutionality to the presumption contained in S 217 and it is therefore doubtful whether the presumption contained in S 219A can be said to be invalidated merely by the application of the ruling inZuma. There is however little doubt that if the S 219A presumption were to come before the CC it would suffer the same fate as the one contained in S 217. Trial within a trial Where the admissibility of an admission or confession is in question, the court holds a trial within a trial. This procedural framework is the same as the English procedure in this regard. If a statement amounts to an admission, the court must have a trial within in a trial or it will be a procedurally fatal. This is held to determine the admissibility of the admission. If the defence puts the admissibility of the incriminating admission at issue, the court suspends the case and starts a trial within a trial. Here, like at any other trial, both parties will present evidence and witnesses will be cross examined. The important thing is that the merits are not important, only the admissibility of the evidence (statement) is considered. Thereafter, the case proceeds on the merits. The court may not, in further proceedings, take into account the statement (directly or indirectly) if the statement is found to be inadmissible. A trial within a trial is also held to determine whether a statement is an admission or confession.

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17 CONFESSIONS 1 Introduction

Confessions are a special type of comprehensive admission. A statement is a confession when the maker of it admits, out of court (extra-judicially), to all the elements of a crime charged. Confessions carry special rules of admissibility which do not apply to admissions and are invoked only in criminal trials. Like in informal admissions, one must keep the following two issues apart: 1. Is this statement a confession? To answer this question one must know what the definition of a confession is. 2. Is this statement admissible? This question is answered once you have answered the above question. We know by now that the requirements of admissibility differ in the case of confessions. There are more and stricter requirements. We also know that the court will not actually go through these two enquiries mechanically, as parties are often ad idem as to whether it is confession or admission. 2 General

Keep in mind the distinction between a formal/informal admission and a confession. Does the confession have the effect of eliminating the facts in issue? The accused can still come to court out of trial and dispute its admissibility. It therefore does NOT put the facts in issue out of dispute. Only a formal admission has the effect of eliminating the facts in issue. Rationale for excluding involuntary admissions and confessions Why does the law exclude involuntary admissions and confessions? 1. These statements are not very reliable If the confession/admission has been extracted, is this really reliable? Its possible the accused made the statement to escape the pain of his nuts being pummelled. This was the primary reason for exclusion at common law. 2. Policy considerations According to recent case law, there is another consideration that is more important: In a civilized legal system, improper and abusive conduct from police cannot be tolerated. The police must conduct their business within the confines of the law and cannot extract incriminating information from suspects by improper or illegal means. Even before the Constitution, there were provisions regulating the admissibility of admissions and confessions (s217 of the CPA). But, since then, these rules have been embodied in our beloved Bill of Rights. In S v January; Prokureur-Generaal, Natal v KhumaloVan Heerden JA held that in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment Page 57 of 154

or improper pressure in order to extract confessions. This is entrenched in S 35(1)(c) of the Constitution, which provides that an arrested person has the right not to be compelled to make a confession or admission that could be used in evidence against him. Remember section 35(3)(j)also makes the privilege against self-incrimination a key aspect of the right to a fair trial. Also remember that the accused has a right to be informed of his constitutional rights. Why distinguish between admissions and confessions? Although Schwikkard explains that it is not constitutionally sound to distinguish between admissions and confessions, that question has not yet been conclusively dealt with by our courts. As we know by now, the common law and statute make it important to make this distinction because the requirements for admissibility of confessions are currently much more onerous in our law than the requirements for admissibility of admissions. Also, S 209 of the CPA provides that an accused may be convicted of an offence on the single evidence of a confession where; the confession is confirmed in a material respect or, the offence is proved by evidence, other than such confession, to have actually been committed. So requirements for admission of confessions are onerous and the consequences of doing so can be serious. 3 Definition of Confessions

In order to ascertain whether the statement is an admission or confession, it is necessary to know what a confession is. Statute doesnt include a definition, so we look to the common law. R v Becker The authoritative definition is found in this case. A confession is [a]n unequivocal acknowledgement of guilton the part of the accused[which],if made in a court of law, would have amounted to a plea of guilty. Note that a confession is not an admission in court, but a statement in which the accused admits all the elements of a crime. Strict application of the definition by our courts For decades, the courts applied the Becker definition strictly. It must have been clear from the statement that the accused explicitly admitted to all the elements of the crime. If not, it would simply be an admission.In S v Grove-Mitchell a man was charged with murder. He admitted to shooting the women with whom he had been living by stating to the police that he had shot her six times... I emptied the gun on her, she is full of holes. The court held that this did not amount to a confession, as the wording left open the possibility of a defence such as that of self-defence. If he had said I murdered the stinking bitch it would have been different. In the case of R v Viljoen, during WWII, a bunch of raging pro-Nazi lunatics called the Ossewabrandwag were getting up to some serious mischief across South Africa. Viljoen was a soldier who set fire to the building of an Afrikaans newspaper. He was charged with arson. When he was arrested, he said, Can you blame me, we are fighting up north and our soldiers are getting killed here by the Ossewabrandwag. The court did not take can you blame me as a confession, because it could be interpreted as can you blame me if I did it. Page 58 of 154

In determining whether a statement amounts to a confession, the court can have regard to the circumstances surrounding the statement, but must restrict itself to considering the circumstances which put the statement in its proper setting and which help to ascertain the true meaning of the words used. Also in determining whether a statement amounts to an admission a court must look at the statement in its entirety, including the necessary implication of the words. Rationale underlying the strict approach The courts were critical of a requirement in the CPA that a confession made with an ordinary police officer or magistrate had to be reduced to writing before being admissible. Because of this, they interpreted confessions in this narrow, strict manner. Qualification circumstances surrounding the statements can be taken into account We have seen how the courts interpret this definition in their uber-strict way. However, the courts can take into account the circumstances and context surrounding the making of the statement in order to decide whether it is a confession or not. In the case of R v Swart there were statutory requirements in place regarding the moving of cattle. The accused was arrested on a charge that he illegally brought cattle into South Africa from Botswana. When the police caught the guy red handed, he said You caught me, I am a poor boy. The court held that the guy knew what the police were doing, and interpreted his statement as a confession and a plea for mercy. Apparently this doos was seeking good treatment from the authorities. Objective test-also applicable w.r.t. exculpatory statement but incriminating as to lesser offence What if the accused is not clued up on the law and thinks he is making an exculpatory statement (statement clearing the accused of guilt) that actually incriminates him? Before S v Yende, the position was uncertain, but here the AD said that an objective approach must be taken. The court in this case held that what is important is that the effect of the statement must amount to a confession. If, objectively speaking (i.e. looking at the words the accused used), this amounts to a confession, thats what the court will hold: It is not whether the accused intends to admit that he is guilty but whether he intends to admit to facts which make him guilty, whether he realizes is or not. It is only subjective in the sense that the court must ensure that he intended to utter the words that he did. What if the accused makes a statement that is exculpatory in relation to the main charge, but incriminating in respect of a lesser charge? Is that a confession to the lesser charge? The classic example is where an accused charged of raping a girl younger than 16 makes a statement indicating that he had consensual sex with her. The statement is exculpatory with regard to rape, but incriminating with regard to statutory rape. Has the accused made a confession regarding a charge of statutory rape?

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The case law isnt altogether clear although it seems that it can serve as a confession to the lesser offence. In R v Goliaththe court said this would constitute a confession to the lesser charge, but in S v Fthe court said it cant amount to such a confession. The court in S v Ffound that such a statement could not be a confession for either of two reasons. The first reason is that the accused intended to exculpate himself when he made the statement. The second reason is that, if we apply the objective test there were still defences open to the accused on the facts. Schwikkard thinks there is no reason why the objective test from Yendecant apply to situations where an exculpatory statement incriminates an accused in respect of a lesser offence. So again the question is: Did the accused, when he made the statement which was exculpatory in respect of the main charge, intend to admit facts which make him guilty of the lesser crime for which he could be convicted on the main charge, whether he realised it or not. So if it is an unequivocal admission of guilt on the lesser offence, whether the accused meant it to be or not, it will amount o a confession to that lesser offence. 3 Requirements for admissibility S 217(1) of the CPA keep in mind Constitution S 35(1)(a)/(b)/(c) and S 35(2)(b) Section 217(1) of the CPA provides:
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 such person in his sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence: Provided (a) that a confession made to a peace officer other than a magistrate or justice, or, in the case of a peace officer referred to in section 3341, a confession made to such peace officer which related to an offence with reference to which such peace officer is authorized to exercise any power conferred upon him under that section, shall not be admissible in evidence, unless confirmed and reduced to writing in the presence of a magistrate or justice; and (b) that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question (i) be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person, and in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly to the best of his ability with regard t the contents of the confession and any question put to such person by the magistrate; and (ii) be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, if it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober sense and without having been unduly influenced thereto.
1

In accordance with section 334(1) it also includes anyone the Minister declares to be a peace officer for a certain period in relation to an area, offence, class of offence or power.

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In our present dispensation, a confession can be excluded on the basis that these S 217 requirements were not complied with. In addition, a confession can also be excluded if it would lead to the infringement of any constitutional rights. Thus, there is a broader basis for the exclusion of a confession than there was in the past. So, before a confession will be admitted the general rule is that the prosecution must establish that the confession was made freely and voluntarily by the accused whilst in sound and sober senses and without having been unduly influenced thereto (the substantive requirements at the start of the section).As will be discussed, section 217(1)(b) has been declared unconstitutional. There are also a number of provisos that must be taken into account from the subsections. Substantive requirements 1. Freely and voluntary cf narrow common law meaning In order for a confession to be admissible, it must have been made freely and voluntarily. The common law meaning of voluntary applies here, and thus is interpreted in the same narrow way it is in the case of admissions. In terms of the common law, the meaning of involuntary is confined to having been produced by threat or promise thereof by a person in authority. Although this is a confined definition, in the case of confessions, the overall test is much wider due to the requirement that there not be undue influence. Thus in practice, this requirement, in the case of confessions, is somewhat redundant. Nonetheless, it technically remains and is distinct from the undue influence inquiry. 2. Sound and sober senses meaning? It must be shown that the accused was in sound and sober senses. Practically speaking, this effectively means is that the accused must have understood and appreciated what it is that he said. Just being drunk or in great pain at the time of the statement wont automatically make the confessing inadmissible. 3. Without undue influence test is from cf S v Mpetha (2) per Williamson J Undue influence is present where some external factor operates so as to extinguish the accuseds freedom of will. This is a much wider concept than is required in order to admit an admission. The undue influence doesnt have to come from a person in authority. Obviously violence or a threat of assault constitutes undue influence, but so do subtler forms of influence like the promise of some benefit or an implied threat or promise. There are many circumstances indicating undue influence, while one must also keep in mind the accuseds constitutional rights. For example, that he must be informed of these rights by the police. The test the court applied in this case (Mpetha (2)) was to ask whether the process that led to the confession is repugnant to the principles upon which our criminal law is based. If it is repugnant, the accused has been unduly influenced. Remember, even when someone makes a statement voluntarily, if it is a consequence of some undue influence it will be excluded. The test is subjective. It is about the will of the accused as it actually operated and was affected by outside influence that is the concern. The court explained that objective factors do have a role in this subjective inquiry. If there are factors in a particular case that the court thinks are objectively calculated to influence the will of a person, it will be hard for the Page 61 of 154

prosecution to show that there is not reasonable possibility that these factors didnt have an influence subjectively on the accused. Conversely if there are factors present which the court thinks are not objectively calculated or likely to influence the will of the accused, it wont be easy for the defence to persuade the court that there is a reasonable possibility that the will of the accused was subjectively influenced. Furthermore the court held that an undue influence which is trivial must be ignored, as well as an undue influence which is shown to in fact have had no meaningful influence on the subjective will of the accused. In S v M, the court dealt with a juvenile appearing in a criminal courts right to be assisted by his or her parent or guardian. The AD equated the right of a juvenile to be assisted by his parents with the right to legal representation, and held that the failure to afford a young person the assistance of a parent or guardian where it is reasonably possible to do so may lead to a conclusion that the confession of that young person was not made freely, voluntarily, or without undue influence. Remember that section 35(2)(b) of the Constitution provides that anyone who is detained must be advised of their right to consult a legal practitioner. So even if s 217(1) is satisfied, a failure to advise the accused of this right might lead to its exclusion based on unconstitutionally obtained evidence. When we are dealing with a confession obtained as a result of undue influence we have said that the test is subjective. Schwikkard suggests that when were asking if the confession was unconstitutionally obtained we must apply an objective test. So when we ask if the absence of legal representation led to undue influence we look at the subjective influence on the will of the accused. But when we argue that the evidence was unconstitutionally obtained because the right to legal representation wasnt advised of we are just asking an objective question of fact as to whether or not that right was actually advised of. Note that this wasnt discussed in class. Statements made under statutory compulsion Is a statement made under a statutory compulsion admissible, or does it amount to an undue influence which is inadmissible under s 217(1) of the CPA? The Insolvency Act and the Companies Act allow for the setting up of an enquiry into a persons affairs where there are allegations of improper conduct by a debtor (who is now insolvent). At such an enquiry, the insolvent cannot claim any privilege against self-incrimination. In Ferrera, the Constitutional Court declared a provision in the Companies Act unconstitutional in so far as it allowed this evidence to be used in subsequent criminal proceedings. The court took into account the constitutional protection of the right to remain silent and the privilege against self-incrimination. Although a person appearing before such an enquiry cannot claim privilege against self incrimination, the evidence obtained cannot be used at the criminal trial as he has the right to a fair trial, which he does not have before an enquiry. Statutory provisions which permit the use of evidence obtained in breach of the privilege against self-incrimination will thus be unconstitutional. A confession will be admissible if it complies with the substantive requirements as well as a number of provisos:

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Provisos S 217(1) of the CPA requires that where a confession is made to a peace officer who is not a magistrate or justice of the peace it must be confirmed or reduced to writing in the presence of a magistrate or justice of the peace. Confessions made to a peace officer (in practice an ordinary police official): This confession will not be admissible unless it is confirmed or put in writing before a police official with an officers ranking (a magistrate or justice of the peace). Thus, a confession to a constable or sergeant is not admissible. Confession made to a magistrate: This confession is admissible, so long as the name of the accused and the person who made the confession correspond. It is then presumed that the confession was made voluntarily, while the accused was of sound and sober mind. The onus is on the accused to prove that the statement was not his, or not made voluntarily. The provision provides that when and accused makes a confession to a peace officer who is a magistrate or justice of the peace it needs to be reduced to writing. It will be admissible so long as it was made freely and voluntarily, in sound and sober senses, and without undue influence. According to s 217(1)(b)(ii), if a confession is reduced to writing and confirmed in the presence of a magistrate, it is deemed admissible in evidence upon mere production. Furthermore, if it appears from the document that the confession was made freely and voluntarily, it is presumed to have been made freely and voluntarily in sound and sober sense and without undue influence. The court in S v Zuma dealt with the above presumption. It found that the presumption placed the burden of proving that the confession was not made freely and voluntarily on the accused, and that this must be proved on a balance of probabilities. The court held that the common law rule placing the burden of proving that a confession was made freely and voluntarily on the state was essential to the right to remain silent after arrest, the right not to be compelled to make a confession, and the right not to be a compellable witness against oneself. Reversing the onus would seriously compromise these rights. The section 25(3) (of the Interim Constitution) right to a fair trial is a broad one and encompasses the common law rule on the burden of proof. So section 217(1)(b)(ii) was declared invalid! Relationship between Confession confirmed and those reduced to writing and undue influence Often when confessions have been confirmed and reduced to writing in front of a magistrate or justice of the peace it has led to allegations of undue influence. If the police official, knowing the confession wont be admissible, sends the accused to a magistrate, a veil is created between the first statement (made to the police) and the second one made to the magistrate. Anything can happen to the accused before he meets the magistrate. He could be intimidated before he went to the magistrate, who has no idea as to what happened before. The magistrate must thus ensure that the statement is made voluntarily.

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In S v Lathait was held that a cop who was attached to the unit that investigated the matter, should not take the confessions. But in S v Mbatha the AD said this should just be a factor in determining whether the confession was made freely and voluntarily and without undue influence. InS v Colt the court said that when an accused comes to make a confession to a magistrate the magistrate must ask whether the accused has previously made a statement and if so, the nature of the statement and the reasons he wants to repeat it.The idea is that the magistrate should ensure that if there were circumstances which impacted the accuseds freedom, or constituted undue influence, they arent prevailing when the accused comes before the magistrate. Now that Zuma abolished the reverse onus for when a confession is reduced to writing and confirmed in the presence of a magistrate the significance of the above is diminished. Still the reduction to writing requirement remains where the confession is made to a peace officer other than a magistrate or a justice of the peace. The above factors just become relevant in terms of the inquiry as to whether the confession was made freely, voluntarily, in sound and sober sense and without undue influence. It should now be clear that the prosecution will always bear the burden of proving the confession was made in line with S 217(1). Consider the position regarding the following: Oral confessions made to: 1. Police captain or magistrate The writing requirement applies to the situation where the officer is an ordinary police official, not a justice of the peace. If it was done voluntarily to a police captain (justice of the peace) or magistrate, the proviso of writing is not required. Of course, if the captain is also the investigating officer, and the accused makes an oral confession to him, in principle the proviso does apply. If not, it would be more difficult for the state to show that the requirements of voluntariness and undue influence were met. 2. Police constable or sergeant The proviso applies. 3. Member of the public What happens if you catch an intruder in your house in the process of putting your TV in his trolley? He immediately confesses that he broke a window and is in the process of stealing your lekker new Sony HD TV. The police are called in and, at the trial, you are the main witness. Can you testify regarding the oral statement made by the accused? Although a confession or admission is always admissible against the maker (see above), are the requirements of S 217 applicable here? The above requirement only applies to police officers who are not justices of the peace. Thus it additionally does not apply to member of public. The state can call you to testify about the matter, but the substantive requirements still apply. Wouter says that You can say its hearsay, but its admissible, believe me. The law commission has said that the writing requirement should be abolished. Wouter thinks that the legislature had it in mind that a confession made to a police officer on the ground level contains a greater risk of intimidation. Thus there is less likelihood of intimidation when made to a magistrate or police officers (who sit at a higher level). Wouter thinks that although both of these arguments are faulty, that is the reasoning behind it. Thanks Wouter. Page 64 of 154

Trial within a trial (a voir dire in England)

This section is similar to the one in Admissions Necessary to determine admissibility The purpose of the trial within a trial has been discussed above. Admissibility of a confession is determined at a trial within a trial. If there is not trial within a trial when the issue of admissibility of confessions is disputed, it is a material irregularity and according to S v Mdyogoloit constitutes and infringement on the constitutional right to remain silent and is a fatal irregularity. Position regarding content of confession Generally, the accused will allege that a statement (the supposed confession) was taken down when he was threatened, and therefore the statement should not be admissible. The court will then busy itself with a trial within a trial in this regard. The state calls witnesses to testify regarding how the confession was made. At this point, the accused is required to show that the confession was not made voluntarily (for example, because he confessed after being assaulted). Importantly, the content of the confession cannot be disclosed at this point in time as this might prejudice the accused. The court is concerned with the circumstances in which it was disclosed and not with the merits of the confession. The inquiry is not about establishing guilt, but simply the admissibility of the confession. Therefore there is a general rule that the accused may not be cross examined at the trial within a trial as to whether the confession is true or not. However, there is a proviso in this regard, relating to the situation in practice where the accused says that his statement was repeated parrot-fashion from the police. In this instance, it may not be sufficient for the accused to testify that he was assaulted. He may want to say that the information itself comes from the police and that the police forced him to confess in a certain way to a magistrate. Wouter: What happens quite frequent (sic) is the accused says no no no no I never said all that! In this scenario, the content of the confession becomes relevant. For the court to decide on the truth of the confession, it is required to make a credibility finding as to the policemen and the accused. The prosecution may cross-examine on the contents of the confession and only the portions referred to in cross examination may become part of the record. The accused may have said things that only the accused will know about (information about friends and family members, for example), and thus the prosecutor may ask the police where he got this information, thus showing that the accused, and not the police, is the true source. S v Post dealt with a scenario where the accused made a pointing out, which was subsequently put in dispute. The accused claimed that he was flippin high and that he was not in his sound and sober senses. Against that background, the court allowed the prosecution to present evidence as to his conduct and what was said prior to the pointing out. The purpose of this was not to show the truth or falsity of what he said, but to show that he was of sound and sober mind in order to ascertain if the evidence was admissible. Cameron J held that in the circumstances the contemporaneous

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record of the accuseds pointing out was the best evidence of the accuseds soundness of senses and to not allow that evidence would be unfair to the state. Once the court is satisfied that the requirements of S 217(1) have been met, the confession will be admitted into evidence. But if during the course of the trial evidence comes to light which causes the court to question its earlier ruling, it can overrule that previous ruling. However the court cant provisionally allow a confession on the basis that evidence may emerge later to justify the admission. The issue of admissibility must be kept separate from the issue of guilt, so at the main trial the prosecution cant lead evidence of the accuseds testimony at the trial within a trial and a presiding officer cant have regard to evidence given at the trial within a trial when deciding guilt. The accused may lead the same evidence that was led at the trial within a trial at the main trial in order to persuade the court that, owing to the circumstances in which the confession was made, little weight should be attached to it (a question of weight of evidence rather than admissibility). 5 Inadmissible confession elicited by accused (which subsequently becomes admissible)

When a confession falls short of the requirements of S 217(1) it is unconditionally inadmissibleand as a general rule cannot become admissible by waiver or consent of the accused. So the prosecution can never introduce evidence of an inadmissible confession. S v Nkata held that even the preamble to an inadmissible confession couldnt be used in cross-examination of the accused and doing so constitutes an irregularity. The position is not clear however, where an accused (perhaps mistakenly) elicits evidence of an inadmissible confession when leading or cross examining witnesses (for example, a policeman). S 217(3) provides that such a statement can become admissible, provided the court is satisfied that the confession is favourable to the accused. Thus the ambit of when this kind of confession is admissible is narrow. What about a damning confession? In S v Xaba the courts approach to determining the admissibility of a confession elicited by cross examination focused on the right to a fair trial. The prosecution and a state witness, Sergeant Khanye, had discovered that the accused had made a confession, but had not disclosed this to the defence. The defence then unwittingly elicited the contents of the confession when cross examining Sergeant Khanye. The court said that even thought the prosecution had acted in good faith; it had erred in not disclosing the confession to the defence counsel. If it had been done the counsel could have consulted further with his client and may not have asked the question. The right to a fair trial demanded that the question and answer revealing the confession be struck from the record. 6 Facts discovered as a result of an inadmissible admission or confession and pointing out

There are two relevant subsections here, S 218(1) and S 218(2) of the CPA. There is substantial overlap between these two sections, the essence of which is contained in S 218(2).

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Section 218 deals with the admissibility of facts discovered as a consequence of inadmissible admissions or confessions. It provides:
218. Admissibility of facts discovered by means ofinadmissible confession (1) Evidence may be admitted at criminal proceedings of any fact otherwise in evidence, notwithstanding that the witness who gives evidence of such fact, discovered such fact or obtained knowledge of such fact only in consequence of informationgiven by an accused appearing at such proceedings in any confession or statement which by law is not admissible in evidence against such accused at such proceedings, and notwithstanding that the fact was discovered or came to the knowledge of such witness against the wish or will of such accused. (2) Evidence may be admitted at criminal proceedings that anything was pointed out by an accused appearing at such proceedings or that any fact or thing was discovered in consequence of information given by such accused, notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against such accused at such proceedings.

Essence of the provision contained in S 218(2) of the CPA Thus evidence relating to something pointed out, or evidence of something discovered, may be admitted despite the fact that it forms part of an inadmissible statement. Wouter says that the original idea or intention of the legislature with regard to this section was to try and separate things from a statement that was not admissible. Despite that broad purpose, the courts have interpreted this section strictly and confined it to a narrow ambit due to the impact of the Constitution. Wouter himself proclaims that S 218 must be read in tandem (sic) with the Constitution. If the rights contained in S 35(5) are infringed, submission of the evidence would make the trial unfair. Thus, this section is qualified by the Constitution. Comments on the provision 1. Note the word may gives a court discretion cfS v Mmonwa This indicates that the court has discretion. Of course, it is apparent from the Constitution and case law (see Sheehama) that although the court has a discretion in this regard, in terms of that discretion, it may not exercise its discretion if the pointing out was not done voluntarily. 2. Pointing out discovery not necessary A pointing out is an overt act whereby the accused indicates physically to the inquisitor the presence or location of something or someplace actually visible to the inquisitor. Evidence of a pointing out will be admissible even if no concrete facts were discovered as a result. All that is necessary is that it is shown that the accused knew of a fact relevant to his guilt. For example, if the scene of a crime is pointed out by the accused, this will be admissible despite the police already knowing about it. In R v Tebetha the court held that even though a pointing out was conducted as a result of an inadmissible statement, it was still admissible based on the above requirement. Note that S 218(2) doesnt allow statementsaccompanying the pointing out to be admitted into evidence. The courts have held that a confession in the guise of a pointing out is inadmissible. In S v Magwaza it was held that where a court has certain knowledge not only that the pointing out forms part of an inadmissible confession but also what the precise contents of the confession are, it should exclude the evidence of the pointing out.

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However, in S v Masilela, the court disagreed with the approach in Magwazabased on the fact that S 218(2) makes the fact that a pointing out forms part of an inadmissible confession irrelevant to the question of the admissibility of that pointing out. It is only the pointing out that may be admissible, and not any accompanying statements. 3. Information given discovery necessary Remember that s 218(2) doesnt only allow facts discovered as a result of a pointing out to be admitted, but also evidence of any fact or thing discovered in consequence of information given by the accused, even where that information forms part of an inadmissible statement. Furthermore, in terms of s 218(1), evidence of a fact will be admissible notwithstanding that the witness discovered or obtained knowledge of the fact in consequence of an inadmissible confession. It also will be admissible even if it came to the knowledge of the witness against the wish or will of the accused. 4. Pointing out, as an extra-judicial admission, requires voluntariness even if something was discovered A pointing out is not a statement, it is an informal admission by way of conduct. That is why in Sheehama, the court held that a pointing out amounts to an extra-judicial admission. The court held further that since it is extra-judicial, it must comply with voluntariness. Prior to this there were cases that said the contrary (i.e. that pointing out can be admitted even if it wasnt voluntary).For example the courts dont like it when; I. II. III. A member of the investigating unit is involved in the pointing out A person with prior knowledge of the relevant places or objects is involved in the pointing out, An interpreter who is attached to the investigating unit is used during the pointing out

However these things wont automatically render the pointing out inadmissible. The court will consider in each case whether the accused acted freely and voluntarily. There used to be a view that evidence of a pointing out would be admissible notwithstanding that it was obtained as a result of the use of violence. Obviously this wouldnt stand anymore, and the court in Sheehama said that a pointing out must be made freely and voluntarily. The courts used to place great importance on the idea that facts discovered in consequence of an inadmissible confession, unlike the confession itself, could not be excluded for being unreliable. This was central to the arguments for admitting a pointing out.In Samhando it was held that a pointing out forming part of an inadmissible statement could be admitted in accordance with the theory of confirmation by subsequently discovered facts. For example, where the police forced a pointing out by the accused, and then discover something important to their case. Prior case law had held that, even if involuntary, the discovery would be allowed on the basis of confirmation by subsequent discovery. In other words, the evidence could be admitted because the problem of unreliability would fall away when the contents could be proven true by other evidence. The problem is then that the whole confession could be admitted based on the theory of confirmation. The question of this exception was answered in S v January, Prokureur-Generaal, Natal v Khumalo. The AD held that S 219A could not be interpreted to preserve this exception. Involuntary admissions are inadmissible and the wording admits no exceptions.So the theory of confirmation by subsequent discovery is now dead in our law.

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So where a pointing out cannot be separated from a confession, or constitutes a confession, the question of admissibility will again be was it made freely and voluntarily, in sound and sober sense and without undue influence. Remember that there is always the question of unconstitutionally obtained evidence. If evidence obtained as a result of a pointing out was obtained unconstitutionally it can be excluded. In S v Melani two accuseds had not been informed properly of their right to legal representation before making their pointing outs. The first accused had also not been warned that the resultant evidence could be used against him. The court said that the non-compliance with the Judge's Rules and the failure to advice the accused of the right to legal representation was a common law ground for a finding of inadmissibility. Then the court said that the provisions of S 25(1)(c)of the Interim Constitution meant the court should look beyond the requirements of reliability and voluntariness of the evidence. The point is that it quite obviously is an infringement on fair trial rights, the right to be advised of your right to legal representation etc. Furthermore to admit this evidence, the court said, would bring the administration of justice into disrepute. Note: S 35(5) of Constitution: S 218(2) must be read in tandem with this provision! 7 Argument for reform

Schwikkard argues that the constitutional privilege against self-incrimination requires that there not be a distinction in the rules of admissibility between confessions and admissions. Perhaps the reluctance by the courts to view something as a confession comes from judicial disapproval of the requirement that a confession made to a peace officer be reduced to writing. Remember that prior to Zumathere was a proviso that once such a confession was reduced to writing in the presence of a magistrate, it would be presumed to have been made freely, voluntarily, in sound and sober senses, and without undue influence. Remember also that post Zumathat presumption no longer exists because it was declared unconstitutional. The requirement of writing and confirmation in the case of certain peace officers has not provided the intended protection to the accused. It has instead dropped a veil between the treatment of the accused by his custodians and his resultant confession. Schwikkard (and the Law Reform guys) think that there is therefore no good reason to retain this requirement. Furthermore, scrapping it should reduce resistance to the idea of making admissions and confessions subject to the same requirements for admissibility. Then we can scrap the common law notion of voluntariness which can we easily subsumed under the broader notion of undue influence. As it stands, there is a clear overlap between the two.

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18 ORAL EVIDENCE 1 Introduction The principle of orality the meaning in common law systems In our system, the principle of orality is applied fully. This means that witnesses are called to give viva voce evidence in court directly to the judge, even in the instances where documentary evidence or real evidence is presented in court. In this case, a witness is called to identify the document or real object in order to show its authenticity. Generally evidence for both parties must be given orally in civil and criminal proceedings. There are some exceptions which well come to. The rationale for the principle of orality is that parties should be able to confront the witnesses who testify against them and should be able to challenge evidence in a situation where they may observe the demeanour of the witness in order to assess his credibility. InS v Adendorffcounsel had prepared a 15 page memorandum of his clients evidence for the courts convenience. The magistrate did not see anything wrong with this and he allowed the document to be read into the record by the witness. This case is an example of improper procedure. Section 161 of the CPA provides that a witness in criminal proceedings should (except where the CPA or any other law provides otherwise) give evidence viva voce. Section 42 of the CPEA incorporates the general common law provision that witnesses should give oral evidence in civil proceedings.In the case of deaf or mute persons, this gestures and sign language is permitted. In the case of persons under the age of 18 viva voce includes any form of non-verbal expression. A witness and an accused can give evidence through an interpreter. Different meaning in continental systems The principle of orality has a different meaning in certain systems. In the Common Law system, a witness is called up to give viva voce evidence from the witness box, whereas in the Continental system, the judge gathers evidence. Statements are taken and put in writing and when the case comes before the court the written documents are used as evidence. The principle of orality for the French (for example), comes in at the stage of the oral address of the advocates. Thus the principle is applied totally differently. Viva voce requirement in S 161 of the CPA note the ambit S 161 of the CPA states that: Witnesses must give their evidence viva voce. Viva voce evidence includes gestures by deaf and mute witnesses and children. When a child finds it difficult to explain the experience in words, S 171 (the use of an intermediary) applies. Case of the eye witness An eyewitness is someone who is able to identify the perpetrator. However, it often happens that they are mistaken. In the US, it has been shown (through DNA testing) that a large number of convictions based on eyewitness evidence are based on mistakes and that the person was actually innocent. So the question here is how does a court evaluate eyewitness evidence? The rule is that in Page 70 of 154

the case of a single witness, such evidence must be approached with caution. An eye witness must go through examination in chief and must also be subject to cross-examination. The risk is that the eyewitness can be certain but still wrong. Our system is well aware of the possibility of mistaken identity, which is why we have cautionary rules in this regard. There are certain factors, which influence an eyewitnesss competency to accurately identify someone. These include; stress and trauma, weapon focus, cross-racial bias and post event information. In certain circumstances, the court might be well advised to hear expert evidence to assist the court in evaluating such evidence. Wouter says this is unlikely to find support in practice but it is noteworthy. InHolzhausen v Roodtthe court accepted testimony relating to the reactions of a rape victim after the event, in order to assist with the evaluation of such evidence. More information on the variables that affect the reliability of eye witness evidence: The most obvious variables that affect the reliability of eye witness evidence are stress or trauma. Another factor is weapon focus where the witness may focus more on the weapon than the features of the person. Cross-race and own-race bias is also an influencing factor and research has shown that it is easier to identify someone of your own race. Post-event information is information that comes forward after the event. For example if the witness is asked the question what kind of glasses did the perpetrator wear? At this point, the idea that maybe he wore glasses crosses the witnesss mind and so an incorrect idea of the perpetrator starts to form in the witnesss mind.Be aware thatcross-examination has its limits. A note about memory: Ones memory is not static and it alters over time. A witness may be influenced by other events and their memory may be altered in accordance with information received such as conversations with other witnesses and news reports. But a memory can be reconstructed. However, this process is quite complicated. Your memory can be influenced without you even knowing it. 2 Oath, affirmation or warning to speak the truth

The first thing which occurs when a witness steps into the witness box is that he or she takes an affirmation or an oath, thereafter questioning commences. Section 162 of the CPA provides that no person shall be examined as a witness without taking the oath in the form set out in the section. The oath must be administered by the judge, registrar, or presiding officer. Section 163 allows a person who objects to either taking the oath or taking it in its prescribed form, to make an affirmation to speak the truth. An affirmation has the same legal effect as an oath. The maker of either may be charged with perjury or statutory perjury (and NOT purgatory). The oath or affirmation may be administered through or by an interpreter instructed by the court. Section 39 of the CPEA provides that no person (except those mentioned in SS 40 and 41) may give evidence except under oath. The oath is to be administered in the manner which most clearly conveys to the witness the meaning of an oath and which the witness considers to be binding on his conscience. Section 40 allows for an affirmation to be made in lieu of an oath. A person who attends the court in obedience to a subpoena duces tecum doesnt have to take an oath unless he is required to go into the witness box and identify and hand in the document. Page 71 of 154

Historical important of oath and underlying rationale The oath has a long history...which wont be told here. The rationale behind the oath is that it used to be unthinkable that someone would swear in front of God and lie. Present position and role of cross-examination Today the importance of the oath has diminished to a large extent, as many people do not have strong religious beliefs. However, in our system cross-examination is a tool used to discover the truth. Remember that where a witness does not want to take the oath in the format it is couched in or because the witness has no religious belief (and therefore it has no meaning to them), he may take an affirmation instead. In this scenario, the witness is required to affirm that he will speak the truth and this affirmation has the same legal effect as an oath. An affirmation has the same legal effect as an oath. Section 164 of the CPA allows for any person found not to understand the nature and import of the oath or affirmation, to give evidence at criminal proceedings without taking the oath or affirmation. However, the judge or presiding officer should admonish (caution) that person to speak the truth. If the person has been admonished and is found to falsely and wilfully state an untruth may be charged with perjury or statutory perjury. Section 41 of the CPEA has similar provisions. When a witness is a child who cannot understand the importance of an oath, the judge must then admonish the child witness to speak the truth. 4 Presentation of oral evidence questioning Principle of party control as opposed to judicial control The principle of party control applies in our system and judicial control applies in the continental system. Party control is where the legal representatives play an active role and are in control of legal proceedings. They decide whom they are going to choose as witnesses, and in what order the witnesses should be called (unless the witness is the accused as they must always testify first). The advocates play the primary role in questioning. The court is not allowed to cross-examine but questions may be asked to clarify issues. Presentation of oral evidence is done by way of questioning and answering. We distinguish between three forms of questioning: 1. 2. 3. Examination in chief: person A, who calls the witness Cross examination: the opponent (B), who cross-examines the witness Re-examination: person A, who then sorts out any damage done in cross-examination

Examination in chief (a) Purpose The purpose of examination in chief is to present evidence favourable to the version of the party calling the witness and to have the witness relate to the court what had happened. The witness must simply put their version before the court. In a criminal trial, the state makes an allegation against the accused. From there, the state will call these witnesses in the examination in chief to support the states version of events and to prove the allegations against the accused. Page 72 of 154

(b) Method The examination in chief takes the form of question and answer. The witness is under the control of the examiner, but the examiner may not ask leading questions. Leading questions are those, which suggest a certain answer. For example: did you see when the accused took the bicycle? The witness is not let loose to ramble on about irrelevant matters. When it comes to the crucial aspects of the case, where the facts are really in issue then, the witness will normallybe told to tell the court in his own words what happened. But sometimes its better to let the witness just yap without interruption. There is no rule governing these two options. (c) No leading questions A leading question is one which either suggests the answer or assumes the existence of certain facts which might be in issue. Generally they are prohibited from being asked in examination in chief. This is because the witness may readily or lazily adopt the desired answer. Note that not all yes or no questions are leading questions, it depends on the circumstances. A question which legitimately suggest to the witness the topic of the answer required is not a leading one, while a question which suggests the specific tenor of the answer desired obviously is. This is not an absolute rule. The reason for this rule is to prevent a party from influencing the witness in the witness box. (d) Impeachment of own witness infra Generally a person who calls a witness is considered to hold him to be a truthful person. What about when a witness unexpectedly gives unfavourable evidence? The general rule is that a party may not cross examine his own witness unless the witness has been declared by the court to be a hostile witness. But you could call another witness to contradict the double-crosser. You could also impeach the credibility of a witness (see Chapter 25). (e) Previous consistent statement supra We have encountered this before (see 1st semesters notes). Almost invariably a party presents evidence in chief of his witness on the basis of some earlier extra-curial statements made by that witness. These generally may not be proved or quoted by the party conducting examinations (see Chapter 9). The earlier written statement serves a very limited purpose, being to assist a party in examining a witness on facts falling within the latters knowledge. We know that there are some instances where the previous consistent statements may be put to more use. They may also in limited instances and with strict requirements being satisfied, be used to refresh the memory of the witness while he is in the witness box (see Chapter 24). Cross-examination (a) Questioning of opponents witness This occurs after examination in chief.Cross-examination is a fundamental procedural right. The essence of a defence should in principle be introduced in cross-examination. The court cannot prevent cross examination, even if it is trying to protect a witness. Cross-examination is the name given to the questioning of an opponents witness. Failure to allow cross-examination constitutes a gross irregularity.

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(b) Purpose 1. Try and get favourable results from the opponents witness dont antagonise him immediately. If you do extract something favourable it will be weighty as it comes from the opponents witness. 2. Test the witnesss reliability- Remember, in this regard that a witness may be perfectly honest but completely unreliable due to imperfect faculties. 3. Test the credibility of the opponents witness now honesty comes into play. Is the witness to be believed or not? 4. Put your version to the witness and get him to respond If the accused's version differs from what the state witnesss are saying, so then you must put your client's version to every witness. This way the court gets the whole picture, enabling proper evaluation. If you dont do this, then the prosecutor will say that what you are telling us was never put to the state witnesses. One mustnt make the mistake to think that cross-examination must be aggressive to be effective. There are advocates in SA who appear to be very quiet and dont get excited at all, but their questions are deadly. (c) Wide scope The ambit is much wider than examination in chief, because the cross examiner can test the veracity, so leading questions may be asked. You can also cross-examine a witness purely on issues of credibility. For example, relating to an aspect which is not at all relevant to the case: you can question him on a lie he told some time before and in totally different circumstances, which have nothing to do with the present case. However there is a proviso- the answer to such a collateral issue is final in the sense that you cannot then call other evidence to refute what the witness has said. (d) Duty to cross-examine There exists a duty on the cross-examiner to cross-examine on all aspects which are in issue. For example if your client disagrees with what the witness has said, then you must question him on all these aspects and put it to him that your client has got a different version. If there is a disputed aspect and there is no cross-examination then it is deemed to be admitted (an adverse inference is drawn). However, this inference cannot be drawn when dealing with an unrepresented accused. Also, if the accused is unrepresented then there exists a duty on the court to assist the accused in conducting the cross-examination. (e) Limits of cross-examination duty of court to control 1. Pointless repetition A cross examiner may ask a witness to repeat something to test reliability and credibility, but you cant just keep questioning and questioning ad nauseam. 2. Vexatious, abusive, oppressive or discourteous questioning The cross-examiner must control himself and courtesy must be maintained. The witness must be treated in a dignified way.

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3. Dignity of court Although you can attack the credibility and reliability of the witness, the dignity of the court must be maintained at all times. 4. Misleading questions Misleading questions to the witness will be disallowed. If the witness said something earlier, and you want to put it to the witness, you need to be very careful. You cant put it to the witness that he previously said something earlier in a way that is misleading as to what he actually said. 5. Inadmissible evidence You cannot put anything to a witness, which is not admissible. If the accused made a confession and the confession was not admitted, the cross-examiner cannot put it to the witness. Cross-examination on the basis of a privileged statement is also inadmissible. In civil cases, where a person elicits inadmissible evidence which is unfavourable to him or fails to object to such evidence, he may be held to have consented to its admission. In criminal cases where an accused elicits unfavourable evidence which is inadmissible, it generally does not become admissible. There are instances where inadmissible evidence may be elicited. For example: if the advocate for the defence is examining and puts a careless question (which brings an answer which is negative to the accused). The safeguard is that such evidence must not be detrimental toward the accused. 6. Previous convictions and similar facts S 197 CPA supra We dealt with this in the context of character evidence and also similar fact evidence. As a rule previous convictions and similar facts evidence is not allowed but there are certain exceptions and if they apply then cross-examination can take place (SS 197 and 211 of the CPA).In terms of these sectionsan accused who gives evidence may neither be asked nor required to answer any questions which tend to show that he has been convicted of or charged with another offence apart from the one for which he is standing trial. This was dealt with in detail in Chapter 6. 7. Cross-examination as to credibility infra This is when your questions deal only with the credibility of your witness. This is allowed, but there are strict limits. The witness can be cross-examined on a collateral issue but there is the proviso regarding finality of the witnesss answer. This aspect and the rule that answers given to questions in cross-examination relating to collateral issues are final are discussed in detail in Chapter 25. For now Van der Merwe notes that a witness may be cross-examined as to his memory, perception, reliability, honesty, accuracy and consistency in relating his story. An answer to a question which solely concerns the credibility of a witness must be taken as final. There are two situations where cross-examination as to credit may be followed up with contradicting evidence. They are dealt with in Chapter 25. 8. Courts discretion to curtail common law and S 166(3) CPA. The court plays a passive role, but had a common law ability to use its discretion to curtail crossexamination; this is now under section 166(3) of the CPA. If the court is of the view that the crossexamination is protracting proceedings unnecessarily and thereby causing unreasonable delay in proceedings, then the court can ask the relevance of the examination. If the court is not satisfied with the answer of the cross-examiner then they can lay down limits and curtail the crossexamination on this aspect. The court will ask the witness, andthen the examiner,to leave. Page 75 of 154

Re-examination Re-examination follows cross-examination. It is conducted by the party who initially called the witness. A party has a right to re-examine. (a) Purpose The re-examination is aimed at clearing up matter from the cross-examination and giving the witness a fair chance to explain what he said under the cross-examination. If matters areleft unexplained they may give a wrong impression or lead to false deductions. Re-examination is called a retrieval process. If a witnesss testimony was severally damaged in cross-examination then this process is used to soften the damage. It is limited as, once the damage has been done in crossexamination, it is often hard to overcome this damage in re-examination. (b) Ambit The right to re-examine is not restricted to matters raised for the first time during crossexamination. But new matters (that were not raised in evidence in chief) may only be canvassed with leave of the court, which should then allow cross-examination on that new evidence. Reexamination is conducted in line with the rules covering examination in chief (i.e. leading questions are not permitted). Where a part of a document was referred to in cross-examination, that whole document may be referred to in re-examination. Examination by the court In our system, the judge plays a passive role, so he or she will normally not play any leading role in questioning the witness. But, this is flexible, because it depends on the circumstances. The judge can always ask questions, at any stage (in chief, cross, re, or after) in order to clear up any uncertainty. But this is limited authority.The court should in a fair and impartial manner lead the evidence of any witness it may call. The court usually allows cross-examination of such a witness, but can control that cross-examination. A witness who is recalled by the court may only be cross-examined with leave of the court. A recalled witness however, remains the witness of the party who originally called him. If evidence of a recalled witness is adverse to a party, that party should be given the chance to lead evidence in rebuttal. (a) Purpose The judge has authority intervene and to ask the witness questions at any stage but this is limited only to questions providing clarity on an issue that is unclear at that point in time. In such a case, the judge will normally ask the parties if they have anything else to ask in view of what has now come out under his question. The judge must at all timesstay unbiased and must in no way compromise his unbiased position. Thus, he or she has to avoid trying to cross-examine and rather take a neutral and impartial role of a judge.

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(b) Ambit In S v Rall it was said that it is difficult and undesirable to define exactly the limits within which judicial questioning should be confined. Certain broad limitations were mentioned: (a) the judge must conduct the trial so that his impartiality and fairness are manifest to all concerned; (b) a judge should refrain from questioning in such a way or to such an extent as to lose judicial impartiality and objectivity; and (c) a judge should desist from questioning in a way which may intimidate a witness so as to affect his demeanour or credibility.If a judge oversteps his bounds, that amounts to an irregularity, and whether an appeal court will intervene depends on whether the accused suffers any prejudice. 5 The intermediary

This is a special procedure which can form a study on its own. The important aspects will be highlighted. Provisions of S 170A of the CPA This provision was introduced in order to address the plight of the child witness. It is a general provision that can be applied in all aspects involving children (under 18), but is especially important in the cases of children being molested.Section 170A(1) of the CPA provides that whenever criminal proceedings are pending before any court and it appears to such court that the proceedings would expose any witness under the biological or mental age of 18 to undue mental stress or suffering if he or she testifies, the court may appoint an intermediary in order to enable such witness to give his or her testimony. Section 170(A)(2)(a)says that all types of examinations of that witness must take place through an intermediary. Only the court may question the witness without going through the intermediary. The provision applies to a child witness in sexual cases who has a biological or mental age below 18. In such a case the court may then use an intermediary to present evidence. Previously the provision only mentioned biological age but it was changed after certain cases came before the court where the witness was above the age of 18 but had the mental capacity of, for example, a 7 year old. The intermediary may put the general purpose to the witness. Section 170(A)(2)(b)says that the intermediary may, unless the court directs otherwise, convey the general purport of the question to the witness. So the intermediary may relay the question in a different form to how it was asked, so long as the general purport is conveyed. If the advocate asking the question is not satisfied with the way it was relayed he may request that the exact question is relayed. The court then has the authority to decide whether the request should be granted. The courts may, mero motu, or in response to objections, direct the intermediary to put the original question or make another attempt at conveying the general purport. Or the court may itself direct the question as it sees fit. But the court must ensure that the nature of its question is such that it doesnt descend into the arena.If a question is put to the witness, and the intermediary thinks that the question may not be understandable, the intermediary may change the question to make it understandable. Page 77 of 154

Usually, the prosecutor will request the court for an intermediary to be appointed if it seems that the witness is experiencing undue stress and is suffering. The defence has a right to respond to this evidence given by the witness. Once an intermediary has been appointed, the court may then also order the child and the intermediary to be put in a separate room where the witness will not be able to observe the accused and other role players in court. Although the child cannot see the accused and others, the accused and others are still able to observe the child witness and his or her demeanour. This will usually be done by CCTV. Note that once and intermediary is appointed it does not necessarily mean that they will be stationed in a separate room. However, in practice this will almost always be the case. The Act lists all the persons who can be appointed as an intermediary. In practice mostly social workers and psychologists but a whole list of professions are mentioned. Comparative Perspective from the USA (a) 6th Amendment right to confront The 6th amendment right of the accused to confront the witnesses testifying against him is affected. This right to confront is interpreted in cases to mean a face to face confrontation i.e. the accused is entitled to see the witness who is testifying against him and the witness must be able to see the accused. Against this backdrop, lets look at the cases. (b) Compare Coy v Iowaand Maryland v Craig with S 170A. In Coy v Iowa, two 13-year-old complainants in a sexual assault case were called to testify against the accused. Legislation provided for a screen to be put in the court. The accused could dimly perceive them. The question is did the screen infringe the accused rights to confront the complaints? There are two important points about this matter. The first is that the screen prevented the accused from seeing the witness properly. Secondly the legislation applied irrespective of whether the child witnesss would suffer any kind of stress while testifying in the normal way (so they automatically applied the relevant section without inquiring whether they would suffer any kind of stress). The accused was convicted and it went on appeal to the Supreme Court. The Supreme Court found that the screen had infringed the accuseds right to confront his witness because there was no face-to-face confrontation. One of the judges specifically pointed out that given the correct circumstances; it would be possible to provide for something like the screen. The problem in this case was that the accused could not observe the complainants properly and the section was applied automatically. In Maryland v Craig similar legislation, but in a different state, provided for the witness to give evidence over a close circuit TV. This case differs from the Coy case in two respects. Firstly, in this case the legislation provided for one-way CCTV (i.e. the accused could properly observe the witness testifying but the witness could not see the accused). Secondly, the legislation also required the court to make a specific finding as to whether the witness would suffer under stress if she were to testify in the normal way.The court had to consider the state of mind of the witness first. The majority of the Supreme Court found this legislation to be in order. The court said that a face-to-face confrontation was not necessary. The accused could still observe the demeanour of the witness etc.

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In South Africa, we have similarities and differences to the above system. We have an intermediary who puts question directly to the witness even when the witness is separate from the court. Iowa legislation is quite far removed from our system. There, the accused can observe the complainants clearly via a television channel. Furthermore, according to our legislation, the court must first make a specific finding whether the witness would suffer undue stress and suffering.The Maryland legislation is much closer to this provision - however, there is one very important difference between our procedure and both procedures in America: in the US legislation, there is no provision for anintermediary and questions are put directly to the witness by counsel. Constitutionality of S 170A (a) K v Regional Court Magistrate This case was a full bench decision in the Eastern Cape. A 16 year old girl was raped and the state wanted to appoint an intermediary.But when the state applied for this appointment, the defence raised the objection that this procedure is unconstitutional. It was then referred to the full bench of the high court.In this case the defence raised two grounds to say that this provision is unconstitutional as it: 1. Infringed of the accuseds right to a public trial The mere fact that a person is in another room doesnt make the trial not public. There was thus very little substance to this contention. 2. Infringed the accuseds right to cross-examine, which is part and parcel of the accuseds right to a fair trial. The cross-examiner cannot question the witness directly and is not face to face with the witness. The court can direct the question to be put directly and correctly to the witness. The intermediary will then have to put the question in the required wording. Given these problems, can one then say that there is an infringement of the right to a fair trial? The court decided that despite the argument put forward, the provision does not infringe the right to challenge the witness because the direct cross-examination of the witness is not essential. The provision serves a worthy purpose and the defence can still observe the witness. The right to a public trial entails that the public has access to the courtroom and the use of an intermediary does not impact this. Furthermore, the right to cross-examine is not an absolute right and so they concluded that this procedure does not infringe the right to a fair trial. The face to face confrontation and the right to question the witness directly are the essential features of cross-examination. In addition, the wording of the questions may be changed. Wouter thus thinks that this can be criticised, because it does infringe the right to challenge the evidence by cross-examination. Butcan it be justified? In this situation, it can be justified, as it protects child witnesses. Additionally, there are measures to protect the accused, as he may observe the witness

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and if he is not happy with the way that the question is put to the witness, he can ask that the question be put in its original wording. (b) DPP v Phaswane; S v Mokoena There were two cases, similar, that were before the North Gauteng High Court. Both cases dealt with sexual offences and application of intermediary proceedings. In the one case, an intermediary was not used, in the other case an intermediary was used. Bertelsmann J held that s 170A(1) was unconstitutional on account of s 28(2) of the Constitution. S 28(2) states that a childs best interests are of paramount importance in every matter concerning the child. The court found this to demand that a child be exposed to as little stress and mental anguish as possible. The court declared S 170A(1) unconstitutional to the extent that it granted a discretion to the court to appoint or not to appoint an intermediary when a child witness is to be called at a criminal trial. It was accordingly ordered that S 170A(1) should read:
Subject to subsection (4), whenever criminal proceedings are pending before any court in which any witness under the biological or mental age of eighteen years is to testify, the court shallappoint a competent person as an intermediary for each witness under the biological age of eighteen years in order to enable such witness to give his or her evidence through an intermediary as contemplated in this section, unless there are cogent reasons not to appoint such intermediary, in which event the court shall place such reasons on record before the commencement of the proceedings; and the court may appoint a competent person for a witness under the mental age of eighteen years in order to give his or her evidence through that intermediary.

It is not clear whether or not the Constitutional Court will confirm the unconstitutionality of S 170A(1) on the grounds advance by Bertelsmann J.Van der Merwe suggests that s 170A(1) is not incompatible with the constitutional injunction best interests of the child. The individualized test of undue mental stress or suffering means that in each case the best interest of the child concerned should be taken into account. Undue must be taken to mean not in accordance with what is just and right in order for the threshold not to be set so high as to ignore the standard of the best interests of the child in each case. The courts have sometimes taken undue to mean excessive and it is this interpretation that creates the constitutional problem. For some reason, the trial court judge raised the question whether the procedure was Constitutional, mero motu (the court raised the issue itself). He raised various aspects of the act, being unconstitutional because they were not in line with S 28 of the Constitution because they do not put the interests of the child as paramount. The high court judge was mainly concerned with the wording of s 170 A if there would be undue stress or suffering if the child were to testify in the normal way. The HC judge also had a problem with may appoint intermediary. In his view the section should be applicable to all children under 18 and that there need not be an initial finding about whether it will cause undue stress. He averred that the court is obliged to call an intermediary. The question in the Constitutional Court was whether it was correct for the trial court to raise this issue mero motu, and therefore whether the CC can entertain the issues? This is not important for our purposes. The main question before the court was whether s170A dealing with the appointment of the intermediary was consistent with S 28(3) of the Constitution that deals with the Page 80 of 154

interests of the child and holds this to be paramount. The CC decided for the sake of clarity, to answer all the issues raised by the trial court.The CC found that the trial judge was not competent to raise most of the issues he raised.The only issue he could raise referred to the one case dealing with S 170(1)A, dealing with intermediary, but for the sake of clarity, the court decided on all the issues before it. We do not need to go into the issue of condonation or the proper way to go about statutory interpretation. But on a side note, the proper way to interpret legislation is through the use of the golden rule. Where the court is confronted with legislation and there are two possibilities, then other court should take the interpretation which is in accordance with the constitution. The trial court was of the view that, because this section only kicks in when there is undue stress and that the court only has a discretion, that it was in conflict with S28(2) of the Constitution. This is why the CC had to consider what the meaning of undue stress is. The CC concluded that the trial courts findings were incorrect, and held that, if there were problems in practice; this was because the section has been incorrectly applied. 1. The child does not first have to be exposed to undue mental stress. A pre-trial assessment should be conducted. 2. Judicial officers are under a duty to look out for the best interests of the child, and therefore should take it upon themselves to make use of this provisionif it seems to be required, even where the prosecutor does not make application,. 3. The meaning of undue mental stress must be construed in light of S 28(2). The purpose of the provision is to protect vulnerable witnesses. (By implication, the meaning attached in the trial court is therefore utter crap. Not extraordinary stress. It is context sensitive etc. see above) 4. Is the discretion unconstitutional? The discretion is not a full one. It is circumscribed by the Constitution, particularly S28 (2). It is also needed for individualised justice, and the fact is that the necessity of an intermediary varies from witness to witness.For example a young, shy witness versus 17-year-old angry witness are very different. The discretion must be applied correctly, and this makes it constitutional. Principles and considerations in the application of s170A The courts should consider the following factors when applying s170A. The following comes from the judgment in S v Stefaans 1999 (C): The possible dangers the use of an intermediary might pose to the accuseds right to a fair trial, The section will find ease of application where physical trauma, mental abuse or insult to the witness have occurred The giving of evidence in court is inevitably stressful. Undue is seen as something more than the ordinary stress associated with the procedure. Thus the younger the child, the more likely the stress will be undue.

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A witness who knows the accused and is still willing to testify is less likely to be unduly affected by the giving of testimony. If application to use the section is apposed, such application might be more readily granted. Where the accused is unrepresented, his or her rights to oppose the application should be carefully explained and, where doubt seems to exist, the application is to be treated as opposed. If the application IS opposed, the presiding officer should require appropriate evidence in order to allow him to exercise proper discretion as to whether or not to allow the application. If the section is invoked, the presiding officer should be mindful of the risks that are posed to the efficacy of cross-examination by the use of the intermediary.

Note: Wouter has said we should read over the rest of this chapter in the textbook. Here it is, summarised for your reading pleasure! 6 Evidence by means of closed circuit television or similar electronic media

S 158(2)(a)of the CPA allows for a court subject to S 153 on its own initiative or on application by the public prosecutor, to order that a witness or accused give evidence by means of closed circuit TV or similar electronic media. The person in respect of whim the order is made must consent thereto. Furthermore such an order may be made on the application of an accused or witness. S 158(3) provides that a court may only make such an order where the facilities are readily available or obtainable and if it appears to the court that to do so would either: (a) (b) (c) (d) prevent unreasonable delay; save costs; be convenient; be in the interest of security of the state or of public safety or in the interests of justice or the public; or (e) prevent the likelihood that prejudice or harm might result to any person if he or she testifies in the proceedings. In S v Fthe court said that the all the requirements of (a) (c) must be met as well as one of the requirements of either (d) or (e). However, in S v Staggie the court said that the approach from S v F was clearly wrong. The court held that all the requirement (a) (e) should be read disjunctively. The conflict between S v Fand S v Staggiewas resolved in S v Domingo. The court agreed with the Staggie interpretation that all the requirements should be read disjunctively. It was really down to a matter of interpretation of the statute, with the court ascribing the plain meaning of the text to the section. The court also pointed out that the fifth requirement (e) compliments S 170A by making allowance for persons who arent covered by that section, the clear example being those over the age of 18. S 158(4) allows the court, in order to ensure a fair and just trial, to make the giving of evidence per s 158(2) subject to such conditions as it deems necessary. But the section also contains a proviso that the prosecutor and accused retain the right to question and observe the demeanour of the witness. Recall also that the court cannot disallow cross-examination. Page 82 of 154

Evidence on commission in criminal cases

Section 171(1)(a) of the CPA provides that whenever criminal proceedings are pending before any court and it appears to such court on application made to it that the examination of any witness who is resident in South Africa is necessary in the interests of justice and that the attendance of such witness cannot be obtained without undue delay, expense or inconvenience the court may dispense with such attendance and issue a commission to any magistrate. The specific matter, with regards to which the evidence of the witness is required, must be set out in the application. The magistrate to whom the commission is issues must proceed to where the witness is or common the witness before him. He must then take down the evidence. The rights of parties to proceedings where a commission is issue in terms of S 171 are governed by S 172, which provides that the parties may:
(a)

transmit interrogatories in writing which the court issuing the commission may think relevant to the issue, and the magistrate to whom the commission is issued, shall examine the witness upon such interrogatories; or appear before such magistrate, either by a legal representative or, in the case of an accused who is not in custody or in the case of a private prosecutor, in person, and examine the witness.

(b)

The witness concerned must give evidence under oath or affirmation. He or she must then read it and sign it as must the magistrate. The parties to the proceedings have the right to inspect the evidence, such evidence, in so far as it is admissible, forms part of the record of the court that issued the commission. A person who asks for a commission is at a disadvantage in that the weight attached to such evidence is lessened by the court not being able to observe the witnesss demeanour. However a person is more greatly disadvantaged when refused a commission as the evidence wont be put before the court at all. This applies generally in civil cases as well. 8 Evidence on commission in civil cases

Supreme Court Rule 38(3) provides that a court may, where it appears convenient or necessary for the purposes of justice, make an order for the taking of evidence before a commissioner. Magistrates courts may issue commissions in terms of S 53 of the Magistrates Court Act. Courts will normally grant a commission rather than lose the evidence, as perRobinson v Randfontein Estates. Right of representation and cross examination will be afforded at the hearing of the commission. 9 Interrogatories

In civil cases interrogatories may be granted in terms of Supreme Court rule 38(5) and S 32 of the Supreme Court Act. In magistrates courts the appropriate section is S 52 of the Magistrates Courts Act. The principles governing the issuing of interrogatories are similar to those for the issuing of commissions. A list of proposed questions is drawn up by the parties, The court may add its own questions. The interrogatories are then sent to the court having jurisdiction where the witness is present. This court then summons the witness, puts the questions to him, records the answers, and returns the records to the original court. Te interrogatories will be read as evidence at the trial and form part of the evidential material.

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10

Evidence by way of affidavit

Evidence received by way of affidavit in terms of SS 212 and 212A of the CPA and S 22 of the CPEA is properly discussed in Chapter 15. 11 Evidence in former proceedings

Section 214 of the CPA allows for the reading of a witnesss evidence at a preparatory examination at a subsequent trial if it is proved to the satisfaction of the court that the witness is dead or incapable of giving evidence or too ill to attend the trial or is being kept away from the trial by the means and connivance of the accused and if the evidence was recorded by a magistrate or regional court magistrate. It must also be shown that the accused or the state (as the case may be) had a chance to cross-examine the absent witness. If a witness gave evidence at a preparatory examination and cannot be found after a diligent search or cannot be compelled to attend trial, his evidence may be read if it is apparent from the record that the opposing party had the opportunity to cross-examine the witness. The court has discretion as to whether to allow production of the evidence of a witness who cannot be found. In R v Stolz it was held that the discretion should be exercised sparingly and, where the nature o the evidence would depend on the credibility of the witness, the court should be very slow to admit such evidence. 12 Preserved evidence

In terms of S 23(1) of the CPEA and S 19(1)(c) of the Supreme Court Act, a Supreme Court has the power to order evidence to be taken on commission on the application of a person who alleges that he will become entitled to an interest in some asset upon the happening of a future event, but who cannot bring an action before the event occurs.

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19 REAL EVIDENCE There are no prescribed cases for this section. 1 Introduction

In S v M, it was held that real evidence is an object which, upon proper identification, becomes, of itself, evidence (such as a knife, a photo, a voice recording, a letter or even the appearance of a witness in the witness box). Collier says that these are objects which are hard and physical (yes, we love it). Thus, broadly speaking, this refers to the situation where a physical object is relevant to the facts in issue (this is the courts test for admissibility) and a party wants to present that physical object as evidence in the case. However, it can go wider than this - It can also refer to a situation where the court observes certain features of a person, for example, a scar on the accuseds face. Alternatively, it can refer to a situation where the court goes to the scene (such as an inspection in loco) where certain observations are made and recorded. In some instances, the real evidence will be contained in a document or similar material. For example, a tape recording, fingerprints, charts, video recordings, blood tests (see below). The real evidence is contained in this material the material is used for the sake of convenience or necessity (to enable evidence to be placed before the court).Because there is no other means to present it to the court it is prepared in a document. The party who wishes to produce real evidence for inspection by the court must, in the absence of a formal admission by the opponent, call a witness who can identify the object. (Remember, oral evidence dominates our procedure). If such properly identified real evidence is relevant, and if there is no other rule of evidence demanding exclusion, it will be received as an exhibit, duly labelled and numbered and available for inspection by the court. Real evidence usually owes its efficacy and relevance to the testimony of the witness who identifies the object for what it purports to be. 1.1. The courts function and the limits of its observations The court should describe the exhibit carefully so that the details may be embodied in the record. This is specifically important for any appeal that may follow. If, for example, the length of the blade of a murder weapon was not described in the record, the appeal court may rule against the court a quo. All objects must be labelled and numbered. The court should not attempt to make any observations which require expert knowledge but may itself conduct any test where expert assistance would be superfluous, such as measuring exhibits. There may be situations where a court, having received real evidence for its inspection and assessment, can or should also receive expert evidence to enhance or contribute to the courts interpretation of the evidence.

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1.2. The situation where relevant real evidence is not adduced Reported real evidence is received when oral evidence is given describing relevant real evidence, but the relevant real evidence is not produced in court. Reported real evidence is admissible. However, a partys reliance of reported real evidence may affect the weight of such evidence and may, where appropriate, have an adverse effect on the case of the party concerned. Immediate real evidence is received where the witness, in addition to his identification of the real evidence and other oral descriptions or explanations of such real evidence, also presents the evidence itself to the court for inspection. We now deal with different types of real evidence: 2 Weapons used to commit the crime

We all know what these are. 3 Appearance of Person

A persons physical appearance and characteristics are considered to be real evidence. The court may examine wounds sustained by a person and should describe its observations for purposes of the record. Identity may be established by a persons physical characteristics. The resemblance of a child to reputed parent The resemblance of a child to his reputed mother or father may afford some evidence of parentage, although the value of such evidence is marginal. The evidence may carry slightly more weight if the parents are of different ethnic origins and the child is in appearance of mixed origin. Physical appearance as real evidence of approximate age The physical appearance of a person may serve as real evidence of his approximate age. In terms of S 337 of the CPA, if in criminal proceedings the age of any person is a relevant fact and there is no or insufficient evidence available at the proceedings, the presiding officer can estimate the age of such person by his appearance or any other information which might be available. The estimated age will be deemed correct unless it is subsequently proved that the estimate was incorrect (S 337(a)) and the accused could not have been lawfully convicted of the offence with which he was charged if the correct age had been proved (S 337(b)). (SS (b) makes it clear that an estimation of age based on appearance is not permitted where the precise age of the accused is an element of the crime). Courts observation of the witness for the purpose of determining competency to testify Where the issue is whether a witness is (on account of his mental inability) incompetent to testify, the court may, for the purposes of determining this issue, allow the witness to testify so that the court can observe him and form its own opinion on the witnesss ability to testify.

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Tape Recordings

Tape recordings may be admissible as real evidence. The main danger concerning this type of evidence is the possibility of editing or alteration of the tapes. The court must be satisfied that it is shown prima facie that the recording is original. The recording must be sufficiently intelligible. If a transcript of a recording is produced as evidence, the court must be satisfied that the transcript is accurate, the transcript must be identified by the person who made it and there must be evidence to identify the speakers. 5 Fingerprints

Evidence that fingerprints were found at the scene of the crime or on a particular object is often of strong probative value, linking the accused with the commission of the crime. The usual manner in which fingerprint evidence is obtained is as follows: A policeman will lift fingerprints by means of folien (fingerprint lifting material) from the object; He then sends off the folien and fingerprints taken from the suspect to a police expert; The expert will then compare the fingerprints of the suspect to those found at the scene; The expert will mount enlarged photos of the two sets of prints side by side and mark the points of similarity; The evidence of the comparison may be given orally or by affidavit; Once a court accepts that the witness is an expert it will, as a general rule, accept his evidence

Footprints do not require explanation by an expert and a court is not obliged to accept an opinion as to the identity of footprints. 6 Photographs, Films and Video Recordings

Photographs may be produced as real evidence of matters such as injuries or accident damage. A photo may also be used where an item is too bulky to produce in court. S 232 of the CPA expressly allows for the production of photographs. Witnesses may also identify persons by examining photographs. A photograph is a document in terms of Part VI of the CPEA (S 33) and is admissible both civil and criminal proceedings if the photographer has acknowledged in writing that he is responsible for its accuracy. In other instances there must be evidence that the photograph is a true likeness of the items shown in it. The principles regarding the use of films as real evidence are the same as those for photographs. In S v Mpumlo,the court held that a video film was not a document but was real evidence which, so long as it satisfied the requirement of relevance, could be produced, subject to any dispute as to authenticity or interpretation.

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In S v Ramgobinthe court held that there was no difference in principle between the admission of audio tapes and video recordings. It was held that the state had to prove the following factors beyond a reasonable doubt: a. b. c. d. e. f. Originality; That no interference had taken place; That they related to the incident in question; That the recording was faithful; That the identity of the speakers was identified; and That the recordings were sufficiently intelligible.

In S v Baleka it was held that sound recordings and video recordings, and a combination of the two, are real evidence to which the rules relating the documentary evidence are not applicable. The court in this case was unable to agree with the stringent test for admissibility laid down in Ramgobinbecause it is absurd to exclude evidence because it is potentially dangerous. Reliability need only be established later all that need be established for admissibility is that prima facie the recordings had some probative value. 7 Voice Samples

Voice samples are admissible. In the Levackcase, the State wished to take voice samples of the accused. It argued that these were not for the content of what the accused said, but for the quality of the voice, which would be used to compare to other voices. 8 Inspections in loco

A court has discretion to hold an inspection in loco to observe the scene of an incident or the nature of an object which cannot be produced in court. The court will adjourn before going to the relevant place to observe certain things there. The court will do this to understand the evidence better. Whatever is observed there will be read into the record. The power to hold inspections in locois conferred on a court in criminal cases by S 169 of the CPA and in civil cases by Supreme Court Rule 39(16)(d) and Magistrates Courts Rule 30(1)(d). An inspection in locois designed to achieve two main purposes: 1. it may enable the court to follow the oral evidence more clearly 2. it may enable the court to observe certain real evidence in addition to the oral evidence The inspection should take place before the evidence and arguments have been completed, in order for the parties to be afforded the opportunity to make submissions and lead evidence to correct any observations made by the court which they deem incorrect. The inspection should be held in the presence of both parties. If witnesses point out items or places during the inspection, they should subsequently be called or recalled to give evidence on what was indicated at the inspection.

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Handwriting

Comparison of disputed writing with any writing proved to be genuine may be made by a witness. Such writings and evidence of the witnesses may be submitted as proof or otherwise of the writing in dispute (S 228 of CPA and S 4 of CPEA). The writing submitted for comparison is considered real evidence. An expert in the comparison of handwriting is known as a questioned document examiner. Procedurally, he will put the different handwritings on a chart to compare the two. The court is not bound by the experts opinion. A layman may give evidence concerning the comparison of handwriting that he knows. A court may also draw its own conclusions from its own comparisons. 10 Blood Tests, Tissue Typing and DNA Identification (DNA Fingerprints)

The results of blood tests may be used in litigation. This is usually done in cases of driving under the influence of alcohol or driving with an excess blood-alcohol level. In paternity cases, the most a blood test can do is give a negative result stating that the alleged father did not spawn the child. The HLA tissue typing test can be used to prove paternity to a much more certain degree than a blood test. A far more precise method can be found in DNA fingerprinting, which can be used for a number of other forensic purposes. It is especially useful to identify the perpetratorin rape cases, and can be used to determine the identity of a deceased person where other reliable means are no longer possible. Because each person has a unique genetic code, this evidence plays such an important role of identifying persons. 11 Linguistic Fingerprinting

The idiolect (jargon) of each person is unique. They use certain words (active or passive, writing style, use of punctuation which may differentiate them from other people.

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20 DOCUMENTARY EVIDENCE There are no prescribed cases in this section too, Go Province! 1 Introduction

The rules regulating the admission of documents where the purpose of admission is to prove what the document contains (i.e. its content) and not to prove that the facts contained in the document are true. In the latter case, the evidence will inevitably fall to be hearsay, and admissibility will be regulated by S 3 of the LEAA, Part VI of the CPEA, or some other statutory provision (See section 15 above). The admission of documents for non-hearsay purposes is governed by the common law and a few statutory provisions. Thus, its important to know what the document is, which differs from how we deal with real or oral evidence. The content of the document is what is relevant and its the content which serves as the evidence. Despite this, a document can also serve as real evidence. For example, in the instance of a stolen document, we will not care about the content of the document but whether or not it can be admitted at all. Once it can be admitted, its content will then be looked at. This, strictly speaking, would not serve as documentary evidence until such time as it has been admitted. 2 What is a document?

There is no single common law definition of what constitutes a document. Case law gives a wide description - in R v Daye, a document was held to be any written thing capable of being evidence, no matter what it is written on (i.e. it doesnt necessarily have to be contained on paper). Document has also been statutorily defined, and varies between statutes. For example, S 33 of the CPEA defines a document as including any book, map, plan, drawing or photograph and S 221 of the CPA defines a document as including any device by means of which information is recorded or stored. The Electronic Communications and Transactions Act accommodates developments in technology by creating a new type of evidence, namely, a data message which is defined as data generated, sent, received or stored by electronic means and includes....a stored record. 3 Admissibility Requirements

In order to get a document admitted into evidence there are generally three rules (rules 2-4) which must be complied with: 1. The content of the document must be relevant(this, like all evidence is a standard requirement, Wouter mentioned this in class, it is not one of the three main requirements, which come from the textbook); 2. The original document must be produced; 3. The document must be authenticated; and

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4. Where applicable, the document must be stamped in accordance with the Stamp Duties Act 77 of 1968 Rules 2-4 are subject to exceptions. The content of the document This is pretty self-evident. The original document It is not always clear how to identify an original document, which must be produced for the documentary evidence to be admissible. Normally, the document is handed in through a witness. The document is labelled and given a letter of identification for example, exhibit A. Originality would appear to correspond with the original source of recording. This is in order to avoid error or falsification. The rationale underlying this requirement is also consistent with the best evidence rule which provides that the original of a document is the best evidence of its contents. However, as noted in Welz v Hall, ...the rule is an ancient one...going back to a time before faxes and photocopying machines, when making copies was difficult and such copies as were made often inaccurate. Under those circumstances courts, naturally, insisted upon production of the original document as being the most reliable of its contents. Nevertheless, the original remains a requirement in our law, a consequence of which is that secondary evidence may not be used to prove the contents of the document. However, if secondary evidence is the only means of proving the document, it may be admitted to prove the contents of a document in the following circumstances: 1. 2. 3. 4. 5. The document is lost or destroyed (factual evidence must be presented to prove this); The document is in the possession of the opposing party; The document is in the possession of a third party; It is impossible or inconvenient to produce the original; or It is permitted by statute 6. The production of the document would illegal (i.e. it is kept somewhere from where it would be illegal to remove it)(this was added from class notes) In Singh v Govender Brothers Construction,the issue on appeal was whether the magistrate was correct in allowing secondary evidence of a contract in the form of a fax of the original contract. With regard to (1) above, the court said that a document will be said to be lost when although its existence is presumed, the precise place of its existence cannot be remembered by anyone who can reasonably be expected to have known it, and it cannot be found despite adequate search. With regard to (2) above, it was held in Singh that mere notice to produce and non-production of the document will not, on its own, justify the reception of secondary evidence. Where the document is in the possession of the opponent, the opponent must be given a reasonable opportunity to comply with the notice, and the notice need not be formal. It remains disputed whether notice can be implied.

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Where the document is in the possession of a third party, it must be established, before secondary evidence can be led, that a subpoena duces tecum was served on the third party to produce the document and that the third party refused to do so, on the basis of a recognised privilege. Secondary evidence will also be allowed where the third party resides outside of the jurisdiction of the court and is uncooperative. The impossibility or inconvenience of producing the original document is ascertained on a case by case basis. An example of secondary evidence permitted by statute is S 18(1) of the CPEA which reads: whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from proper custody, any copy thereof or extract therefrom proved to be an examined copy or extract or purporting to be signed and certified as a true copy or extract by the officer whose custody the original is entrusted, shall be admissible in evidence Authenticity It is necessary to show that the document is what it purports to be. The requirement that a document be authenticated generally means no more than tendering evidence of authorship or possession, depending on the purpose for which it is tendered. This can be done in a number of ways. Usually, a witness will be called to testify as to the documents authenticity for example, by testifying that he drew it up, signed it etc. In the Howard & Decker case, the various ways a document can be authenticated were described as follows: The law in relation to the proof of private documents is that the document must be identified by a witness who is either: i. ii. iii. iv. v. the writer or signatory thereof; the attesting witness; the person in whose lawful custody the document is; the person who found it in possession of the opposite party; a handwriting expert, unless the document is one which proves itself, i.e. unless it: a. b. c. d. e. f. Is produced under a discovery order; or May be judicially noticed by a court; or Is one which may be handed in from the Bar; or Is produced under a subpoena duces tecum; or Is an affidavit in interlocutory proceedings; or Is admitted by the opposite party.

The effect of S 36 of the CPEA is that the only instance in which the evidence of an attesting witness is required to prove a document is in the case of a will. In all other cases the document may be proved by evidence identifying the author. There are a number of statutory provisions which circumvent the common law requirement of proof of authenticity. For example, in terms of S 37 of the CPEA, if a document is older than 20 years and Page 92 of 154

has been kept in proper custody it will be rebuttably presumed to have been duly executed. Section 222 of CPA makes this applicable to criminal proceedings. S 231 of the CPA states that documents generated in public office do not need to be authenticated. S 234 states that a document written by a state official does not need to be the original. The Stamp Duties Act Section 12 of the Act states that, unless expressly provided in any other law, no document which is required to be stamped under the Act shall be made available for any purpose unless it is duly stamped, and, in particular, shall not be produced or given as evidence or made available in any court. However, this requirement is not applicable to documents submitted in criminal proceedings; and in civil proceedings, the failure to have the document stamped will not constitute an absolute bar to admissibility. The rationale for requiring compliance with the Stamp Duties Act appears primarily to protect the interests of the fiscus. If the fiscusinterests can be met retroactively, the document may be admitted. 4 Civil Discovery

In civil proceedings, litigants may be called upon to discover all documents they have in their possession or under their control which relate to the action. Parties must then allow inspection of the documents discovered except for those covered by privilege (such as that between attorney and client). If a party fails to discover a document they may then be barred from using the document at trial.

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21 ELECTRONIC EVIDENCE AND RELATED MATTERS Wou has declared this chapter is NOT in the exam - winning! 1 Introduction

This chapter deals with electronic evidence in the form of digital data. Wouter the ou ballie calls this machine generated evidence. Data is digital if it is in a format created or stored on an electronic device such as a computer or the internet. Examples include digital photos, electronic documents, CDs, DVDs, MP3s and so on. Digital devices differ from analogue devices such as vinyl records, photographic film and so on, where the evidence is fixed and permanent. Digital data is inherently problematic for the law of evidence in that it is easy to manipulate or alter. Traditionally, the courts approach to electronic evidence has been conservative and exclusionary, and thus the admissibility of such evidence is constrained by the requirements of admissibility applicable to documentary and hearsay evidence. Because of this, electronic evidence must not only be relevant and otherwise admissible (i.e. it must not be hearsay), but must also overcome the rules relating to authenticity and the production of the original version. Remember; if you cant have the person who authored the documentary evidence testify in court, it becomes hearsay. Electronic evidence can be considered hearsay in two respects: 1. The credibility of a person holding a stored record is not apparent (a typed up account of something is an entirely human intervention and, just as if it was done in handwriting, the credibility depends on the author being there) 2. The credibility of the computer process (e.g. an automated transaction) is not apparent (for example, can we rely on FNBs banking system?) It is with this second type of evidence that the courts have taken a very exclusionary approach, and thus there have been legislative interventions. As a response to the difficulties confronting electronic evidence over the years, the Electronic Communications and Transactions Act (ECTA) was recently passed. It became important to have a paper trail to show the integrity of the digital evidence in court. The ECTA gives parties the opportunity to lead evidence of this nature in court.Note that the provisions of the ECTA that we will look at are not a picture of clarity and are under review by the SA Law Commission. 2 The Position Prior To The ECTA

The position prior to ECTA is still relevant in those circumstances where: a) The ECTA does not apply retrospectively; b) To the extent that the hearsay rule may apply to computer-related evidence, as the CPA and CPEA provide exceptions to the hearsay rule Page 94 of 154

Prior to the ECTA, computer related evidence was generally regulated in terms of three pieces of legislation: the Computer Evidence Act, the CPEA and the CPA. The ECTA repealed the Computer Evidence Act. However, the provisions of the CPA and CPEA may still be called upon to assist with the admissibility of specific electronic evidence. Civil Proceedings before the ECTA 1. Civil Proceedings Evidence Act Inadequacies in the law of evidence relating to computer generated evidence became apparent for the first time in 1976 case of Narlis v South African Bank of Athens. S 34 of the CPEA provides for the admissibility, in certain circumstances, of a statement made by a person in a document. In the Narliscase, SA bank of Athens tried to show indebtedness by showing a print out of a statement. Was this admissible in terms of S 34? The court held that a computer is not a person and that computerised bank documents establishing the principal debt did not constitute a statement made by a person and therefore did not prove the contents thereof. Very mature. Troubled by the decision in this case, the South African Law Commission recommended that a new statute be drafted to deal with computer generated evidence. Thus in 1983, the Computer Evidence Act, which was to apply to civil proceedings, was passed. 2. The Computer Evidence Act(now repealed) The Act provided that an authenticated computer printout was admissible as evidence of any fact recorded in it where direct oral evidence of the fact would be admissible. Authenticated meant that the printout must have been accompanied by an authenticating affidavit and other supplementary affidavits necessary to establish the reliability of the information contained in the printout. The court could attach as much or as little evidential weight to the printout as the circumstances of the case dictated. This made it easier to admit evidence, but not easy enough. It also only applied in civil proceedings.The Act contained overly technical requirements, which were difficult to meet. After everyone realized how lame and unsuccessful it was, they welcomed its repeal. Criminal Proceedings before the ECTA 1. The Criminal Procedure Act (CPA) The CPA regulates the admissibility of computer printouts of a computer that recorded or stored information. The courts approach to the admissibility of computer printouts in criminal proceedings is found in S 221 (business records) and S 236 (banking records). Section 221 provides for certain trade or business records to be admitted into evidence as proof of their contents if:

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a. they are compiled in the course of business from information supplied by persons having personal knowledge of the matters dealt with in the document; and b. the person who supplied the information is dead, out of the country, physically or mentally unfit to attend as a witness, cannot be identified or found, or cannot reasonably be expected to recollect the matters dealt with in the document.

In terms of the Act, a document includes any device by means of which information is recorded or stored and a statement includes any representation of fact whether made in words or otherwise. In S v Harper,it was held that information obtained from computer printouts would be admissible only if the function of the computer was purely passive in that it merely recorded or stored the information (i.e. not computer processed records). However, computers are active in that they sort and collate information and make adjustments. Thus the definition of document was held to not be wide enough to cover a computer, where the operations carried out by it are more than mere storage or recording of information. The decision in Harperwas applied in S v Mashiyi,and S 221 was read to exclude computer printouts that contained information obtained after treatment by arrangement, sorting, synthesis and calculation by the computer (i.e. computer processed records). In this case, the court called for this lacunae in our law be filled and for new legislation relating specifically to computer evidence in criminal cases to be considered and promulgated. Such legislation is contained in S 15 of the ECTA which came into operation soon after Mashiyi. 3 The Electronic Communications and Transactions Act 25 of 2002 S 15 of ECTA The ECTA, the most recent statute regulating this kind of evidence, moves beyond the concept of computer printouts and focuses on the terms data and data messages. The Act defines data as electronic representations of information in any form (covers a paper printout but also allows for other forms of output in court e.g. a data-projector). We can thus take our computers to court and produce evidence there. "Data" means electronic representations of information in any form; "Data Message" meansdata generated, sent, received or stored by electronic means and includes: (a) voice, where the voice is used in anautomatedtransaction; and (b) a stored record; Thus this broad definition includes all computer generated or stored records, email, internet, intranet, EDI, sms etc. S 15 goes further than the previous statues in dealing with electronic evidence.

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The principles which inform S 15 are: 1. Functional equivalence principle: an electronic document must be the functional equivalent of a paper document. We have now done away with the distinction between digital and other evidence. What is important is functional equivalence. The ECTA validates electronic transactions. For example, if Dani uses her cellphone to send a message, that message can be used in court. The principle says that when you have law like this, you should give the sms the same value as its paper equivalent. The existing rules disallowing this kind of evidence were overly prejudicial. 2. It applies to all legal proceedings, criminal and civil. 3. Admissibility and the evidential weight of these messages are explicitly dealt with under this section. Thus, S 15 helps us overcome the hearsay rule. This section provides that: (1) In any legal proceedings the rules of evidence must not be applied so as to deny the admissibility of a data message in evidencea. on the mere grounds that it is constituted by a data message; or b. if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form. (2) Information in the form of a data message must be given due evidential weight. (3) In assessing the evidential weight of a data message, regard must be had toa. the reliability of the manner in which the data message was generated, stored or communicated; b. the reliability of the manner in which the integrity of the data message was maintained; c. the manner in which its originator was identified; and d. any other relevant factor. (4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract. There are thus various hurdles to overcome if we are to rely on S 15.

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The admissibility of evidence in terms of S 15 The meaning of S 15 is not completely clear. S 15 could theoretically allow three approaches: 1. Inclusionary approach: With this approach, all data messages are admissible, and we should reserve the traditional concerns when we are looking at the weight to be attached, and not when deciding whether or not to admit it. Collier says that it is unlikely that this approach will ever be followed by our courts, especially due to our strong common law heritage and legislative intent. 2. Partly-Inclusionary approach (recognises two types of evidence real and hearsay) The court in Ndlovu v Minister of Correctional Services(a Witwatersrand decision) held thatS 15 instead facilitates admissibility by excluding evidence rules which deny the admissibility of electronic evidence purely because of its electronic origin (as seen above). The court distinguished between two types of electronic evidence: 1. The first type being where the probative value of the information in a data message depends upon the credibility of a natural personother than the person giving the evidence. In such instances S 15 will not override the normal rules applying to hearsay evidence. 2. The second type would be where the probative value of the evidence depends upon the credibility of the computer (because the information was processed by the computer). The court held that in such instance, S 3 of the LEAA will not apply, and that S 15 intends for such hearsay evidence to be admitted, and due evidential weight to be given thereto according to an assessment having due regard to certain factors. Thus this kind of hearsay evidence dependent is admissible. According to Ndlovu, if electronic evidence is considered hearsay by the courts, it will thus fall under the normal rules of hearsay discussed above. 3. Exclusionary approach (all messages are hearsay): In terms of this approach, all data messages are hearsay. They are only admissible in terms of S 3 of Law of Evidence Amendment act and other exceptions. This contrasts with the Ndiki case, where the court (obiter) interpreted S 15 as distinguishing between two types of evidence: a. Evidence that depends solely of the reliability and accuracy of the computer itself, its operating systems and programmes, constitutes real evidence. S 15 treats such a data message in the same way as real evidence is treated at common law. It is admissible as evidence in terms of SS (2) and the courts discretion simply relates to the evidential weight to be given thereto. The ECTA is thus inclusionary as opposed to exclusionary.

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b. On the other hand, where the computer evidence records data, the probative value of which depends on a person not called as a witness, it is hearsay evidence which may become admissible in terms of the provisions of the LEAA, or the CPA and CPEA. The Ndiki court held obiter that the meaning of hearsay must be extended to include evidence that depends upon the accuracy of the computer. This would do away with the difficult task of having to distinguish between what would constitute hearsay and what would constitute real evidence. This exclusionary approach considers all data messages (regardless of whether they are stored or automated) as hearsay because they rely either on (a) the credibility of witnesses or (b) the credibility of a computer. S 15 helps us get the evidence into the courtroom, but the hearsay hurdle still needs to be overcome.Evidence will only be admissible in terms of s3 of the Law of Evidence Amendment Act and other exceptions (see above). Collier doesnt like this approach. Other provisions in the ECTA which may be useful in particular circumstances include S 14, which sets out the requirements for a document to be considered to be in original form; S 16 on the retention of information in the form of a data; and S 17 on the production of a document or information by means of a data message. S 13 (signature) and S 18 (notarisation) provide for the compliance with the formal requirements of signature and notarisation by way of used of an advanced electronic signature to be attached to a data message. Business records admissible in terms of S 15(4) S 15(4) reads: A data message made by a person [this includes a public body - any government / municipal body / department of state] in theordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract. In an obiter statement in the Ndlovu case, the court expressed the view that S 15(4) renders two types of documents admissible and as constituting rebuttable proof of the facts contained therein on mere production, namely: 1. data messages made in the ordinary course of business (not requiring certification as to its correctness); and 2. copies, printouts, or extracts from a business record which are certified to be correct. This is massively intrusive on the functional equivalence test. Note also that this section highlights a rebuttable presumption in respect of content.

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Gathering and Presenting Electronic Evidence

We didnt do this section in class, so just read over it Gathering electronic evidence presents unique challenges. The evidence must be expertly collected and preserved in a manner that renders it useful for trial purposes. This will require the engagement of appropriate forensic experts and the adherence to procedures which ensue that the chain of evidence is intact. Hofman argues that there is a gap in our law here. What we need are detailed procedures that the courts have approved as complying with the general law and with the constitution for collecting electronic evidence, storing it and presenting it in court. Often, international cooperation and consensus is necessary. Laws are territorial in nature but the internet is not. Today, a perpetrator need not ever be at the physical location of the offence. Evidence of an offence can be stored at a remote location, either to assist the perpetrator to conceal the offence or simply as a result of the layout of the network. Section 90 of the ECTA therefore makes provision for the extension of territorial jurisdictions in certain circumstances and for appropriate search and seizure provisions. The Act also establishes cyber inspectors, employed by the Department of Communications, who have wide ranging and invasive search and seizure rights in so far as computer related matters are concerned. The institution of these cyber inspectors is one of the criticisms of the Act, and, thus far (unsurprisingly), none have been appointed. The implementation of some of the provisions of ECTA may face constitutional scrutiny in the future. The provisions of the Act have particularly bleak consequences for the right to privacy and may offend the right to challenge evidence and the privilege against self incrimination.

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22 COMPETENCE AND COMPELLABILITY OF WITNESSES 1 Introduction

The competence and compellability of a witness should not be confused with the possible privileges he might claim. A competent witness is a person whom the law allows a party to ask, but not to compel, to give evidence. A compellable witness is a person whom the law allows a party to force to give evidence. If a competent and compellable witness wishes to rely on a particular privilege, he may not refuse to enter the witness box: he may only claim his privilege once the relevant question is put to him in the witness box.

General Rule

In both civil and criminal proceedings the general rule is that every person is presumed to be competent and compellable to give evidence unless the matter of competence and compellability is regulated by statutory provisions, or where applicable, by the law as it stood on the 30th of May 1961. Presumption of competence and compellability(contra Continental System) In South Africa, following the English example (and in contrast to the French model followed by continental systems) the parties to a civil case are regarded as competent witnesses. In other systems, the parties to the case are not considered as competent witnesses.If you are competent and compellable you must appear in court.A party to a civil case is not only competent to testify in his own defence but he can also be compelled by his opponent to give evidence for the latters case.

Procedure when competence and compellability are in issue

Parties cannot consent to the admission of an incompetent witnesss evidence. The court must decide any question concerning the competence or compellability of any witness. The method of examining and deciding issues relating to competence or compellability is normally that of a trial within a trial. However, the court can also decide the issue of competence on the basis of its own observations, without requiring a trial within a trial. A competent and compellable witness who refuses to attend the proceedings may be brought before the court by means of a warrant of arrest. Such a witness, or one who does attend but refuses to testify, may also be tried and punished summarily by the court for his failure or refusal. The witness can avoid punishment by presenting an acceptable excuse.

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Categories of Persons Children

There is no statutory provision governing a childs capacity to give evidence. At common law there is also no specific age limit. A very young child may testify provided that he (a) appreciates the duty of speaking the truth; (b) has sufficient intelligence and (c) can communicate effectively. A child who is competent may be sworn in, provided that the court is of the opinion that he understands the nature and religious sanction of the oath. If the court is not so satisfied, the child may give his evidence without taking the oath but the court must admonish (warn) him to speak the truth. Children are competent and compellable to testify against their parents but it was noted in R v Zuluthat this is undesirable. The decision to call them rests in the discretion of the prosecutor and will depend on considerations such as the availability of other witnesses and the seriousness of the offence with which the parent is charged. Evidence of children is approached with caution. Mentally disordered and intoxicated persons S 194 of the CPA provides that no person appearing or proved to be afflicted with mental illness or to labouring under any imbecility of mind due to intoxication or drugs or the like and who is thereby deprived of the proper use of his reason shall be a competent witness whilst so afflicted or disabled. An intoxicated person, or person under the influence or drugs, will regain his competence when sober. When the conduct of a witness creates the impression of a mental disorder which might affect his competence to testify, the court must investigate and determine this issue before proceeding with the trial on the merits. Such investigation may be conducted by means of a trial within a trial. But in appropriate circumstances the court can also rely on its own observations of the witness in the witness box, without resorting to a trial within a trial, to determine competency of the witness. In S v Zenzilethe court concluded, on the basis of its observations of the witness during evidence in chief,that her mental condition was such that she could not understand simple questions and therefore could not convey her observations to the court. Without finding it necessary to direct a trial within a trial the court determined that the witness was incompetent. A finding of mental normality or otherwise is interlocutory and can be altered if the evidence so indicates. In addition, it has happened that in certain circumstances a person who appeared to be mentally disordered was allowed to testify. In S v Malcolm, the magistrate refused to hear the evidence of the accused in her application for bail, pending an appeal against an order for her detention in a psychiatric hospital. He refused to hear her evidence because he had already decided that she was incapable of understanding the proceedings. The High Court pointed out that the magistrate had deprived himself of the opportunity to observe the witnesss behaviour in the witness box and concluded that this was a gross irregularity. Note the degree of the condition it must affect your proper use of reason when deciding these matters.

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In S v Nqula (not prescribed) the accused was charged with drunken driving and appeared in court. In the witness box and in his own defence he was drunk. The magistrate started questioning him, when he denied that he had been drinking. The magistrate required him to undergo a breathalyser test which showed that he was over the limit. The magistrate viewed this as contempt of court and found him guilty of the offence of contempt. The matter went on review and the review judge came to the conclusion that this was an irregularity because he was not in a fit state to make a proper defence. The court should have postponed the matter. Hearing impaired and mute persons Such persons are competent and compellable if they can communicate with the court. The CPA provides that in the case of hearing and mute persons, oral evidence include sign language. An interpreter can be present to convey what they are communicating. Judicial officers Judges and magistrates are not competent to give evidence in cases over which they preside or have presided. If they have personal knowledge of a fact in dispute, they should recuse themselves. They may then testify after their recusal. No recusal is necessary where judicial notice may be taken. A subpoena cannot be issued against a competent judge without leave of the High Court. Officers of the court Attorneys, advocates and prosecutors are competent witnesses in cases in which they are professionally involved. It is extremely undesirable that they testify in such cases as they would compromise their independence with regard to the case and put their credibility at stake. The accused The accused (whether or not charged jointly with another accused) is not compellable (due to the presumption of innocence etc).However, if the accused enters the witness box of his own volition then he is considered to be a competent witness. The court can recall him if things are not clear from his initial testimony. An accused is therefore a competent but non-compellable witness. Accused and co-accused An accused who testifies in his own defence may in the process give evidence which is favourable to a co-accused. However, a co-accused cannot compel another accused to give evidence on his behalf. An accused may also incriminate a co-accused whilst giving evidence on his own behalf. But the state cannot call him as a witness for the prosecution as his competence is confined to being a witness for his own defence. It is only by terminating his status as an accused in the same proceedings as the coaccused, that he can become a witness for the prosecution against his former co-accused. Such change of status can be achieved in the following ways: 1. If the charge against the accused is withdrawn; 2. If the accused is found not guilty and discharged; 3. If the accused pleads guilty and the trial of the accused and his co-accused are separated (it is desirable that he is convicted and sentenced before being called as a witness) Page 103 of 154

4. If the trials of the accused and co accused are separated for another valid reason (here he should also be convicted and sentenced before being called as a witness) Note: that since the former accused is ordinarily an accomplice, the cautionary rule regarding evidence given my accomplices will apply. Note: A coaccused can become a witness for prosecution if the state withdraws the case against one of the accused on condition he becomes a state witness in terms of S 204 of the CPA (indemnity). The (now) witness will be warned that only if his testimony is satisfactory, frank and openwill he be granted indemnity. Spouses The position of a spouse to be called as a witness for or against another spouse depends on the nature of the proceedings. Remember this applies to spouses in a civil union and also to spouses married in terms of African Customary Law: 1. Civil Cases: In civil cases the spouse of a party is a competent and compellable witness for and against the party concerned. 2. Criminal Cases: In criminal cases and in terms of S 195 of the CPA a distinction is drawn between the case where the spouse of an accused testifies on behalf of the defence and where the spouse is called as a witness on behalf of the prosecution. a. Witnesses for the defence: Lets assume the husband is on trial. The wife is a competent witness for the defence and she is competent AND compellable when called to testify on behalf of the accused. However, for a coaccused, she is only competent to testify and NOT compellable. b. Witnesses for the prosecution: The general rule is that a spouse is a competent but not compellable witness for the prosecution. The exception (when the spouse is both competent and compellable) kicks in when the charges against the accused are against the marriage itself. For example, assault of the wife or kids, iniuria or maintenance, bigamy or incest. The rule of non-compellability of spouses is based on the consideration that the marital relationship between the accused and his spouse should be protected. However, in the crimes above, this consideration loses its validity since these crimes are generally directed against the person of the spouse, or one of their children, or affect the marriage in some way. In terms of the common law, a former spouse was in the same position as a current spouse. Both were incompetent witnesses for the prosecution in relation to matters that occurred whilst their respective marriage to the accused existed. However, this was changed by S 195 of the CPA by declaring a current spouse to be a competent witness for the state in the normal course of events. Although a former spouse is not mentioned in this provision, she must clearly be included within its ambit. To treat a current spouse as competent and a former spouse as incompetent would be Page 104 of 154

absurd. In S v Taylor it was held that wife or husband contained in S 195 and S 196 include the former spouse of an accused if she is required to testify to events, which occurred stante matrimonio. Where a husband and wife are charged jointly, neither of them can be called as a witness for the prosecution. But, if either of them testifies in his or her own defence and incriminates the other party, such evidence will be admissible, notwithstanding that the former might not be a competent witness for the state against the latter as per S 196(2) of CPA. Heads of State The President is clearly a competent witness but there has been some controversy about his compellability. This was one of the issues that the Constitutional Court in President of RSA v SARFU had to determine (youll.. err... remember this case from Admin Law). This case involved a commission of enquiry launched by President Mandela. SARFU wanted to set it aside because it was not properly constituted. Judge De Villiers referred to oral evidence and asked for certain witnesses. Mandela was called before the court to testify. When this came before the CC, the CC looked at situations where the president would need to be called as a witness. The court stated that this is a question of considerable constitutional significance going to the heart of the separation of powers under the Constitution. The court pointed out that there are two contrasting aspects of public policy that might be in conflict in this situation, namely 1. The public interest in preserving the dignity and status of the presidents office 2. The need to obtain relevant evidence before the court to ensure that they are not impeded in the administration of justice. In a situation where the president needs to be called, the court must exercise restraint, and only give an order like that in exceptional circumstances. Once the court has decided there are exceptional circumstances, the court needs to make the relevant considerations, such as the presidents schedule, and must then look at how they would best not infringe on the presidents dignity, such as taking a commission to his house or something of that sort. The court must consider whatever the interests of justice demand. In the case of Clinton v Jonesa US case, the testimony of the president could be taken at the white house to accommodate his busy schedule. In terms of S 3 of the Diplomatic Immunities and Privileges Act foreign heads of state and diplomatic agents are immune from criminal and civil jurisdiction of South African Courts. Such immunity includes non-compellability as witnesses.

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23 THE CALLING OF WITNESSES Pay special attention over the next few chapters to the following aspects : the competency of the witness, the calling of the witness, refreshing the memory of the witness and questions pertaining to the credibility of the witness. This chapter deals with the calling of witnesses. 1 Witnesses called by the defence in criminal proceedings Options available to accused after the close of the states case If there is no discharge in terms of S 174 of CPA, the accused will have 3 main options: he may rely on his constitutional active defence right by testifying in his own defence and calling defence witnesses, or he may rely on his passive defence right by closing his case without testifying and without calling any defence witnesses. Or the accused can combine his active and passive defence rights: as a constitutionally non-compellable witness he may refuse to testify and merely call one or more defence witnesses. The accused may also elect to testify without calling any defence witnesses. Duty of court see S v Brown 1996 (2) SACR 49 (NC) The court has the duty to explain above options to an unrepresented accused. In S v Brown it was held that the court must inform an undefended accused that he has a constitutional right to silence and that no adverse inference can be drawn from the mere fact that he has opted for silence. The court however added the following rider: the accused must also be informed of the prejudicial consequence of exercising the constitutional right to refuse to testify, namely that the prosecutions prima facie case that he committed the crime will be left and not contradicted and, in the absence of an account given by the accused, the court will decide the case on the prosecutions version. 2 Order in which evidence is presented (in civil cases there is no complication) S 151(1)(b) of the CPA Section 151(1)(b)(i) -Accused who wishes to testify must do so before calling other witnesses, except if court (on good cause shown) allows otherwise The purpose of this section is clear. The rule of practice is that before a witness testifies(unless he is an expert witness), he must sit outside the court. The accused has the right to be present during proceedings so he hears everything being said. This section was put in place to prevent the accused from tailoring his evidence before he testifies. Section 151(1)(b)(ii) -Accused declines to testify, then elects to testify after (one or more of) the defence witnesses. Court may draw a reasonable inference. If the accused testifies after having heard the testimony of his witnesses, he may be cross-examined on the reasons for this sequence and, depending on his explanations, may run the risk that at the end of the trial the court may conclude that he had tailored his evidence in the light of the evidence given by the defences witnesses.

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Section 151(1)(b)(i) does not apply where there are more than one accused. In S v Ngobeni it was held that S 151 does not prescribe the order in which several accused should respectively put their cases to the court. It is however established practice that where there are several accused, they should put their cases in numerical order, that is, in the order in which they are listed in the charge. This rule of practice can be departed from if one of the parties applies for such departure in circumstances where the court is of the opinion that none of the parties would be prejudiced and that such departure would be in the interests of fairness and justice. It is incorrect procedure to ask an accused to exercise his choice of giving evidence and/or calling witnesses before the accused preceding him in numerical order, has closed his case. An accused whom has closed his case without having testified will be permitted to testify if he is unexpectedly incriminated by a co-accused. Tactical point of view - usually best for accused to testify first When the state presents evidence and calls witnesses, these witnesses have to wait outside.They cannot sit inside and listen to what other witnesses say. However, this does not apply (as discussed above) to the accused, whom has the constitutional right to be present in court the whole time. Due to this, the accused could potentially tailor his evidence to fit in with what the defence witnesses have said. Going first shows that he isnt such a slimy asshole. Constitutional Perspective The Van der Merwe et al textbook argues that this provision may be unconstitutional. It is arguable that this section infringes the accuseds right to a fair trial, specifically the right to adduce and challenge evidence. But the Constitution does not say in what sequence the accused (or state) must produce evidence. In addition, there is no similar provision dealing with the state (keep in mind that state witnesses do not have the same right to be present as the accused). Also, the accused is forced at the outset to decide as to how he will talk to the court. Re-opening of case leave of court Once your case is closed, you cannot present further evidence unless you ask for leave from the court. Youve now come across new information or new witnesses. You need leave from the court having submitted a reasonable reason why this evidence was not presented and why it would not be detrimental. In the case of State v Van der Vyfer, Vdf was alleged to have killed Inge Lotz in Stellenbosch. In court, the defence closed their case having elected not to put the accused in the witness box. After the state had finished their address, and while the defences advocate was addressing the court, the judge put it to the defences advocate that the accused did not testify. This perturbed the accused, who indicated to his advocate that he wanted to testify. He submitted an application for the courts leave for him to testify, which the court assented to. Thus there is always the possibility to request this leave from our distinguished and sympathetic courts.

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A party who has formally closed his case will generally not be permitted to present further evidence by calling for further evidence, or calling more witnesses. This purpose of this general rule is to promote the finality of litigation. There are however some exceptions: 1. The court may permit a party to present evidence in the form of a rebuttal of a new matter introduced during the course of the opponents evidence, if the party concerned could not reasonably have foreseen the presentation of the new issue. 2. Section 248(1) of CPA creates a presumption that the accused possessed a particular qualification or acted in a particular capacity if such allegation is made by the prosecution in the charge. S 248(2) provides that if such allegation is denied or evidence is led to disprove it after the prosecution has closed its case, the prosecution may adduce any evidence and submit any argument in support of the allegation as if it had not closed its case. 3. Reopening may be allowed in order to prove a previous inconsistent statement; to introduce facts that a witness is biased (if bias is denied under cross-examination); and to call a witness to express an opinion as to the uprightness of an opponents witness. 4. An accused who has closed his case without having testified will be allowed to testify if he is later unexpectedly incriminated by a co-accused. 5. In civil cases, an application to re-open a case to lead further evidence must be decided on the basis on numerous considerations including: the reason why the evidence was not led timeously; the degree of materiality of the evidence; the balance of prejudice (prejudice to the plaintiff if application refused and prejudice to defendant if application granted); the stage reached in litigation; the need for finality in judicial proceedings etc.

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24 REFRESHING THE MEMORY OF A WITNESS 1 Introduction Important of the principle of orality As a general rule, witnesses are required to give an independent oral testimony. Thus they are generally not permitted to rely on, or refer to a statement, note or document whilst testifying. The preference for oral evidence is a corner-stone of the common law evidential system where crossexamination plays a pivotal role: greater weight is attached to viva voce statements of witnesses than to their earlier recorded statements. Exceptions part VI of the CPEA(as read with S 222 of CPA) - but limited Legislation has amended the above position to a certain extent. Part VI of the CPEA (as read with S 222 of CPA) gives effect to the valid argument that the written statement of a witness may, depending on the circumstances, be more accurate than his recollection in court. Thus in terms of Part VI of the CPEA, in certain circumstances, a prior written statement can be submitted in order to supplement, but not corroborate, the evidence of a witness who cannot recall an event or some details thereof. Common law exception due to fallibility of memory refreshing memory of a witness However, Part VI cannot be relied upon in all circumstances. Where it is not applicable, recourse must be had to the common law rules for refreshing the memory of a witness. In terms of these rules, a witness, who has forgotten all or a part of the events in respect of which he is to testify, may read or rely on his earlier record in an attempt to refresh his memory. This is a necessary exception to the general rule that witnesses must testify on the basis of an independent recollection of the relevant facts. Human memory is fallible, especially in those situations where considerable time has elapsed between the actual event and the witnesss narration in court. The complexity of some issues may also make it extremely difficult for a witness to testify without the aid of an earlier record. 2 Distinction between present recollection revived and past recollection recorded

The phrase refreshing of memory is really a misnomer. Zeffertt, Paizes and Skeen argue that it fails to distinguish between the situation where a person no longer has any recollection at all of an event but had made a note of it when he did; and the situation where a person has a present recollection and bolsters it with a contemporaneous aid to memory in the form of a note. Present recollection revived Present recollection revived refers to the situation where consulting the record or statement merely serves as a trigger that re-establishes or triggers the memory of the witness: the witness can actively recall the forgotten events and can testify without further recourse to the written statement. For example, a police officer who investigated the scene of a crime and made a note of what the registration number is. Page 109 of 154

The court can consider the document, but it does not become documentary evidence. It remains oral evidence as the witness is not relying on the document. Past recollection recorded Past recollection recorded refers to the situation where the witness, after having examined the written source, still has no independent recollection and can only vouch for the accuracy and reliability of the written source there is, in effect, no longer any memory to refresh. An example of this may be a pathologist who does loads of autopsies.He may need to see the document, but it may not help to trigger his memory at all. Thus, oral evidence is received in the case of present recollection revived (because the witness testifies from memory) and documentary evidence is received in the case of past recollection recorded (because the witness relies on the contents of the documents).The report is submitted and recorded as documentary evidence. 3 Refreshing of memory before the witness gives evidence

No general rule exists which precludes a witness from reading his statement before entering the witness box. There are several reasons why a witness should be allowed to refresh his memory before testifying: Firstly, the common law approach, that witnesses should as a rule testify from memory, which, indirectly encourages parties and witnesses to refresh their memories out of court. Secondly, a rule prohibiting pre-trial refreshment of memory can create serious problems for an honest witness and will have little or no effect on a dishonest witness. Thirdly, it can be argued that pre-trial refreshment of memory is a procedural right based on the fundamental rule that a party should be given an adequate opportunity to prepare for the trial. Fourthly, if denied the opportunity to refresh their memories prior to trial, testimony in the witness box will become a test of memory, rather than truthfulness. A document used for pre-trial refreshing of memory need not be made available to the court or opposing party. Any privilege which may relate to such document remains intact. If, however, it becomes clear that the witness merely memorised the contents of his statement before trial, and in fact has no independent recollection of the events, the opposing party may demand, and the court should order, that the privileged document be produced. However, the court will have to be satisfied that holder of any possible privilege has expressly or by necessary implication waived his privilege. 4 Refreshing of memory during an adjournment

There is no rule prohibiting a witness whose testimony has been interrupted by an adjournment from refreshing his memory during the adjournment. The evidential consequences which flow from such conduct are that if it is clear that the witness memorised the contents of his statement during the adjournment, then the document must be produced. But if it is clear that the witness is still testifying from memory after the adjournment, the document need not be produced. In R v Da Silva, it was held that the court may adjourn to give a testifying witnessan opportunity to refresh his memory from his statement (which cannot be used for refreshing his memory whilst in Page 110 of 154

the witness box because it fails to meet the necessary requirements). The court may do so if it is satisfied: 1. That the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place; 2. That he made a statement much nearer to the time of the events and that the contents of the statement represented his recollection at the time he made it; 3. That he had not read the statement before coming into the witness box; and 4. That he wished to have an opportunity to read the statement before he continued to give evidence There are also ethical rules dealing with the presentation of evidence. After a witness is called and gives evidence, the state can cross examine him. Thus, if there is an adjournment, the witness may refresh his memory, but the advocate may not have any contact with his witness during this time. 5 Refreshing of memory while the witness is in the witness box requirements

The party who wishes to refresh the memory of the witness in the witness-box from an earlier record must prove that the following requirements have been met: Personal knowledge of the event The witness must have had personal knowledge of the event. The need for this requirement is to avoid the inadvertent admission of hearsay. Proof of personal knowledge may be difficult in the case of past recollection recorded. However, the law is flexible in this regard and inference drawn from circumstantial evidence can assist the court in determining the presence or absence of personal knowledge. Inability to recollect It must be shown that the witness is unable to recollect fully on a matter on which he is being examined. The court must be satisfied that the witnesss claim that he cannot recollect is genuine. In the normal course of events the witnesss mere ipse dixit may be sufficient, whereas certain other circumstances may demand a careful inquiry. Verification of a document used to refresh memory The witness must have made the recording. However it is also accepted that the witness may use the record of somebody else where the recording took place upon the instructions of the witness (in which event the original recorder should also testify) or where the witness read the record and accepted its accuracy (in which event the original recorder need not testify). Fresh in the memory The old English common law requirement was that the writing should have been made contemporaneously or almost contemporaneously with the events. It was however realised that this strict requirement was inappropriate. The correct test is therefore where the writing came into Page 111 of 154

being, or was checked or verified, at a time when the facts were still fresh in the memory of the witness. The presence or absence of substantial contemporaneity is merely a factor which can assist the court in determining whether the writing came into existence at a time when the facts were still fresh in the memory of the witness. For example, the witness might have observed something like a hit and run, seen the registration number and shouted out to a bystander to take it down. Use of original document In the case of past recollection recorded, the original document must be used. This rule may however be departed from where the opponent fails to reject a copy or where it can be shown that the original has been lost or destroyed. If a copy is used, its accuracy must be proved. The approach is more flexible in the case of present recollection revived because memory, and not the document, is seen as the source of the oral evidence. Production of document A document used to refresh memory whilst in the witness-box must be made available to the court and the opponent in order to enable them to inspect it. Where the document is privileged, the holder of the privilege can either waive privilege so that the document can be produced (and the witness may use it) or claim privilege so that the document cannot be produced (and the witness may not use it). The opposing party may waive his right of access to a document used by a witness. Furthermore, a court has discretion to restrict cross-examination relating to the parts of the produced document which were used by the witness. Note that the effect of Shabalala is that the prosecution no longer has blanket docket privilege on statements obtained from state witnesses see Semester 1.

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25 IMPEACHING THE CREDIBILITY OF A WITNESS 1 Introduction

The purpose of this chapter is to identify and explain the rules and principles which govern the situation where impeachment of the credibility of an opponents witness, as well as ones own witness, is attempted through cross-examination or the leading of evidence. 2 Impeaching the credibility of an opponents witness

S 190(1) of the CPA provides, inter alia, that a party in criminal proceedings may impeach the credibility of any witness called against such party. In terms of this section, it may be done in any manner in which, and by any evidence by which, the credibility of such witness might on 30 May 1961 have been impeached by such party. Section 42 of the CPEA has a similar effect. Thus the court must apply the common law as is stood on 30 May 1961. These common law methods, rules and principles are set out below. Cross-examination as to credit on a collateral issue (an issue not related to the facts in issue) An answer given by a witness under cross-examination in response to a question which concerns matters which are relevant to the issue may be contradicted by other evidence. But if an answer is given to a question which is relevant solely to the credit of the witness on some other collateral matter, the answer must, as a general rule, be accepted as final in the sense that the cross-examiner may not adduce evidence to contradict the answer. The reason for this rule is not to prolong the trial with matters that are not necessary. A multiplicity of collateral issues can cloud the real issues and delay the court in really coming to grips with the real issues. In the case of S v Damalis, D was charged with bribery in the Magistrates Court. He had given R500 to a police captain to induce the captain to allow him to continue with his illegal gambling. The captain was called to testify as to the circumstances. The accuseds advocate put it to the captain that, in the Mogaliescase, the AD had found the same captain to be a shit witness. The captain denied this allegation, claiming that he spoke the truth. Then, the advocate went ahead, and he was in possession of the judgment in Mogaliescase and he started to put passages of the judgement to the captain. At some stage, there was even a possibility of exhibits being put into evidence. D was found guilty. On appeal, it was found that the magistrates court made a mistake admitting the evidence of the captain. The court of appeal was not impressed with the way the defence conducted its defence and cross-examination, holding that it was highly irregular for the rules of evidence to becast to the wind. The advocate did what he wanted and the prosecution and magistrate allowed this. The witnesss answer in a collateral issue was ignored and thus the rule was ignored.The answer of a witness is final! After the witness has denied that he lied, you cannot put the record of another court to the witness that amounts to including inadmissible evidence by stealth. The advocate couldnt introduce the judgment in Mogalies, as it became evidence in this case and, as this is not allowed, it amounts to an irregularity. Page 113 of 154

If a cross examiner is skilled in the art of examination, he could succeed in putting a question mark behind the credibility of the witness, but the rule must be maintained. In S v Zwaneit was held that a witness could be asked if he has been disbelieved in previous judicial proceedings. However, it was held that in the face of denial, the furthest that the cross examiner could go is to show the relevant portion of the previous record to the witness and say: Look at this paper, do you still adhere to your answer? If the witness does adhere to his answer, then that is the end of the enquiry... The exact meaning of collateral is still not entirely clear. In S v Zwane it was held that relevance to the issue before the court determines whether or not evidence is collateral, and what is relevant depends on the facts of each case. A good example lies in R v Marsh,where a witness for the prosecution denied under crossexamination that he had threatened the accused. The trial court denied the accused an opportunity to adduce evidence to contradict the denial. However, on appeal, the court held that an integral part of the accuseds defence was that he had every reason to believe that the witness had intended to attack him. The issue was therefore not a collateral one and the accused should have been allowed to adduce evidence in an attempt to contradict the denial. Exceptions (i) Previous convictions of opponents witness On the basis of the 30 May 1961 provision as contained in S 190 (1) of the CPA and S 42 of the CPEA, the credit of an opponents witness may be impeached with reference to his previous convictions. The witness may be asked if he has any previous convictions, and in the event of a denial or refusal to admit or answer, the cross-examiner may prove such previous convictions. If the accused will be testifying in his own defence, he is entitled to the protection granted to him in terms of the rules relating to character evidence (See chap 6). Counsel defending an accused who has a criminal record should avoid impeaching the credit of a prosecution witness on the basis of his previous convictions, as this would cause the accused to lose the protection, which he enjoys in terms of S 197 of the CPA, and the prosecution may then prove the previous convictions of the accused. (ii) Bias of opponents witness A witness may be cross examined on facts which tend to show that he is biased in favour of the party who called him, or that he is prejudiced against the case of the cross-examiner. In the event of a denial, evidence may be called to contradict him. Some say that this is an exception to the rule that the answer given by a witness under cross-examination to a collateral matter is final. However, it can be argued that bias or prejudice is not a collateral matter. The presence of bias or absence of bias must be brought to the courts attention so that it can make a proper assessment of the evidence concerned and, if such prejudice or bias is denied by the witness, the matter should be clarified by adducting evidence. In Thomas v David the plaintiff called his female housekeeper who was one of the attesting witnesses to the defendants signature on a promissory note. It was alleged in crossexamination that she was the plaintiffs mistress an allegation which she denied. The defendant was permitted to call witnesses to contradict this denial.

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Cross-examination on and proof of previous inconsistent statements (a) Witness can be cross-examined on a previous inconsistent statement. A witness may be cross-examined with reference to a prior statement made by him and which is inconsistent with his testimony in court. If a witness says two different things on two different occasions, it affects the credibility of the witness. (b) If he denies his statement, it can be proved - provided it is relevant to facts in issue. But proof of a prior inconsistent statement is permitted only if it is relevant, going beyond mere collateral matters. The statement may be proved if the witness denies having made it. Section 5 of the English Criminal Procedure Act of 1865 is relevant here:
A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relative to the subject-matter of the indictment or proceeding, without such writing being show to him; but if it is intended to contradict such witness by such writing, his attention must, before contradictory proof can be given, be called to those parts of the writing which are to used for the purpose of contradicting him; provided always that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit.

The fact that the presiding officer may make use of the statement for purposes he may think fit does not entitle him to use the contents of the statement as evidence. 3 Impeaching the credibility of your own witness General Rule The general rule is that a party is not permitted to impeach the credibility of a witness called by him. The most important historical reason for this rule was the procedure of calling up oath-helpers. This procedure gave rise to the idea that a party vouches for or guarantees the credibility of the witness called by him. The procedure would have made no sense if the party could contradict the very oathhelper called by him. The rule against impeachment of your own witness became part of adversarial system: it was accepted that a party had a right to cross-examine an opponents witness but could not, as a general rule, cross-examine a witness called by him. Exceptions: example of a practical situation There are however exceptions to this general rule. In certain circumstances, a party may attempt to contradict his own witness by calling another witness or by proving a previous inconsistent statement against his own witness. In one exceptional situation, he is allowed to cross-examine his own witness. Consider this example: You are in possession of a witnesss statement. You have consulted with him. You have reason to believe hell say X. At some stage in the course of the trial he tells a totally different story. Two things you can do: a) call another witness or b) put the previous statement to the witness as a previous inconsistent statement.

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(a) Calling another witness A party may always call a witness to contradict the evidence given by a witness who was also called by that party. However, the second witness, like the first witness (and all other witnesses) may only give admissible evidence. The fact that a party may call another witness to contradict his own previous witness or otherwise impeach the latters credibility is a clear indication that the idea that a party somehow guarantees the credibility of his own witness is based on a fiction. (b) Proving a previous inconsistent statement against your own witness. At common law, a party did not have an unqualified right to impeach the credibility of his own witness by proving an inconsistent statement made by such witness. The position was changed by S 57 of the General Law Amendment Act of 1935 and is currently governed by S 190(2) of the CPA and S 7 of the CPEA (the two sections are substantially similar).The fact that a party has proved a previous inconsistent statement against his own witness does not automatically entitle the party to embark upon cross-examination of the witness concerned: cross-examination can take place only once the party has successfully applied to court to have his witness declare hostile. Neither S 7 of CPEA nor S 190(2) of the CPA requires that the statement should be relevant to the subject matter of the indictment or proceedings. Both sections also make it clear that that proof of a previous inconsistent statement against a partys own witness may proceed regardless of whether the witness is or is not, in the opinion of the court, adverse to the party who called him. In this situation you need to prove the original statement, then put the portions of the statement to the witness which he contradicted in his later testimony. If the witness cannot give a plausible explanation as to why hes behaving like such a dick, the court will make a negative inference against him. (c) Hostile witness An application to have a witness declared hostile may be brought in the course of evidence in chief or re-examination. The purpose of such an application is to obtain the right to cross-examine ones own witness in the same way as if the latter had been called by an opponent. In deciding to bring such an application, the party concerned must weigh the risks: would an opportunity to crossexamine promote his case? Or would it merely give the witness a further opportunity to give evidence supporting the opponents case. This application is not easily granted. The mere fact that the witness has made a previous inconsistent statement in NOT enough to have him declared as hostile. What must be shown is that the witness has a hostile intent with regards to the examiner. Hostile is not the equivalent of adverse or unfavourable. The party bringing the application has the burden of satisfying the court that the witness is not desirous of telling the truth at the instance of the party calling him an antagonistic animus must be proved. The test is subjective. The party seeking a declaration of hostility has a difficult task: he must prove that the witness has an antagonistic animus so that he may cross-examine him and yet if he could cross-examine, he would have a better chance of exposing the required animus. Cross-examination can occur if the witness is declared hostile. Further factors which the court will consider when deciding to grant the application, none of which are necessarily decisive, are: the relationship between the witness and the parties involved in the dispute; the fact that the witness is the prosecutions witness who was warned in terms of S 204 of the CPA and who therefore has prospects of receiving indemnity; and the fact that a witness has deceived a party into calling him as a witness. This is not an exhaustive list.

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In terms of S 35(3)(i) of the Constitution, an accused has the right to a fair trial, which includes the right to challenge evidence. The right to challenge evidence includes the right to cross-examine. Does this right to cross-examine have any impact on the common law rule that a party (the accused) may not cross-examine his own witness unless declared hostile? In Chambers v Mississippi, the accused called M to introduce Ms written confession to the crime with which the accused was charged. This was duly done. But under cross-examination by the state, M repudiated his confession and asserted an alibi. The accused sought permission to cross-examine M with regard to the circumstances of his written confession and the alibi as asserted. The trial court refused to give such permission basing its decision on a Mississippi rule prohibiting a party from impeaching his own witness unless found adverse. On appeal, the Mississippi Supreme Court agreed that Ms testimony was not adverse to the accused as M has at no stage pointed a finger at (incriminated) the accused. However, the Supreme Court of the USA did not agree. It held that, having regard to the circumstances of the case, the accused had been denied his constitutional due process right to a fair trial, including the right to confront and cross-examine. The court stated that the Mississippi rule rests on the presumption- without regards to the circumstances of the particular case- that a party who calls a witness vouches for his credibility. It noted that rule most likely originated at the time when oath-takers were called to stand behind a particular partys position in any controversy. The role of these oath-takers and the voucher rule bears little present relationship to the realities of the criminal process. The court held that the rule in the present case was doubly harmful to the accused: not only was he precluded from cross-examining M, but he was also restricted in the scope of his direct examination by the rules corollary requirement that the party calling the witness is bound by anything he might say. The court further disagreed with the finding of the courts a quo that the evidence of M was not adverse to the accused. Ms retraction of the confession inculpated the accused to the same extent that it exculpated M. It held that it could not be disputed that Ms testimony was therefore seriously adverse to the accused. It was held that the availability of the right to confront and cross-examine those who gave damaging evidence against the accused has never been held to depend on whether the witness was initially put on the stand by the accused or by the state. The court rejected a right of such substance in the criminal process that may be governed by that technicality or by any unrealistic or narrow definition of the word against. Therefore the voucher rule as applied in the current case, interfered with the accuseds right to defend against the States charges. The Supreme Court of the USA did not declare the Mississippi rule unconstitutional, but held that, as applied to the facts of the case, it had violated the constitutional rights of the accused. The authors of the textbook submit that in our law the rule that an accused may not cross-examine a witness unless declared hostile may have to be considered in light of the accuseds constitutional right to cross-examine. The right to a fair trial should be the ultimate test, instead of the court questioning whether the accused has proved the defence witness hostile in the technical sense of the word.

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Proof of Previous Inconsistent Statements

The following rules and principles govern the proof or probative value of previous inconsistent statements and form part of the process discussed above: The witness must, at some stage prior to the attempt to prove his inconsistent statement, be asked whether he has made a prior statement inconsistent with his testimony in court. 4.1 Proof of the previous inconsistent statement may also take place only once the witness has been given sufficient particulars of the alleged previous inconsistent statement to designate the occasion on which it was made. 4.2 The witness must be given an opportunity of explaining the inconsistency if he admits having made the statement. 4.3 If the witness denies having made the statement, the statement whether oral or in writing must be proved in a manner -e.g. through witnesses who heard or recorded it. It is not properly proved if read from the bar. 4.4 Proof of a previous inconsistent statement merely has an impact on credibility. It proves inconsistency. The contents of the statement can never be elevated to the status of evidence despite the fact that the statement is received and marked as an exhibit. 4.5 The degree to which the proof of a previous inconsistent statement affects the credibility of the witness depends upon the facts. What is the nature of the inconsistency? What is the extent thereof? 4.6 A witness who is confronted with a previous inconsistent statement should not be urged to adhere to his previous statement: he should be called upon to speak the truth. 4.7 In S v Tshabalala, it was confirmed that, where a witness is being cross-examined on the basis of inconsistencies between his evidence and the statements of other persons who have not yet testified, such statements may provisionally be used during cross-examination of the witness, but only if appears that these other witnesses are themselves also going to testify either for the prosecution or for the defence. It was also stressed in this case that if a witnesss own statement is sought to be used during his cross-examination, it has first to be established that the statement was properly deposed to by him.

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26 FORMAL ADMISSIONS Note: this is a short chapter in Principles which we should read. He is not going to focus on it. It is important, however, to distinguish between a formal and informal admission. It is only a formal admission that puts the facts in issue out of dispute. For and admission to be formal it must be made as part of the judicial process. The accused can still deny everything and put to the state proof with regards to an informal admission. An informal admission can occur extra-judicially or sometimes in the plea stages of the court. Or it can be with regards to a facta probantia. 1 Introduction

The general rule is that all relevant facts must be proved on the basis of evidence presented by the parties. However, there are some exceptions. Evidence need not be adduced to prove a fact where a formal admission is made by one of the parties or where the court takes judicial notice of that fact. The application of a presumption of law may also have the effect of dispensing with the necessity to adduce evidence pertaining to a particular fact. 2 The nature and rationale of formal admissions

For the purposes of trial a party may formally admit one of more facts. These facts then no longer need to be proved by his adversary. Time and costs are saved. In S v Kuzwayothe court held that a party cannot employ a formal admission as a means of getting on record something which the opponent does not propose to make part of his case. The court also noted that when the state elects to accept an admission, then the admission constitutes sufficient proof of every fact which it covers. In S v Groenewaldthe court was called upon to interpret an admission. Cameron JA noted the rule of interpretation in terms of which an ambiguous admission made by the accused should be interpreted in favour of the accused. However, this rule is subject to a contextual analysis and where the admission is tendered and formulated by the accused it would be appropriate to apply the rule of interpretation in terms of which written provisions should be interpreted against the party drafting them. The distinction between formal and informal admissions (this was emphasized in class) An informal admission is usually made out of court and merely constitutes an item of evidence which can be contradicted or explained away. The weight accorded to an informal admission will vary according to the surrounding circumstances. The maker of an informal admission is free to lead evidence to contract such admission or to explain it away. In contrast, a formal admission is generally made in the pleadings or in court and is considered to be conclusive proof of the fact admitted. Formal admissions are binding on their makers and normally cannot be withdrawn or contradicted unless certain legal requirements have been satisfied. A party must intend to make a formal admission and the existence of the requisite intention is determined by means of a subjective test. In contrast, the maker of an informal admission need not even be aware that he is making an admission. While formal admissions serve to narrow down the issues, informal admissions often given rise to new issues, for example, the question of whether it was made freely and voluntarily. Page 119 of 154

27 JUDICIAL NOTICE 1 Introduction

What happens if a magistrate observes an accident on the way to court and the case then appears before him? He clearly cannot preside if he has personal knowledge of the relevant facts in the case. The following points apply: 1. The court may not use private information concerning the facts in issue 2. If a judicial officer has such information he must recuse himself 3. However, a judge or magistrate may accept the truth of facts that are well known or easily ascertainable e.g. Christmas is on the 25th of December 4. A fact that the fact is judicially noted cannot be rebutted (this was adopted from the English common law and still applies today). 2 The nature and rationale of Judicial Notice

The law of evidence permits, in certain circumstances, a judicial officer to accept the truth of certain facts which are known to him, even though no evidence was led to prove these facts. This process is known as judicial notice and must be distinguished from the procedure of receiving evidence. For example, the judicial officer may accept that there are 12 months in a year. These facts are so well known or can so easily be ascertained that evidence to prove them would be completely unnecessary and even absurd. The purpose of the doctrine of judicial notice is that it expedites the hearing of many cases. Much time would be wasted if every fact, which was not admitted, had to be the subject of evidence, which would, in many instances, become costly and difficult to obtain. In addition, the doctrine tends to produce uniformity of decisions on matters of fact where a diversity of findings might sometimes be distinctly embarrassing. The doctrine deprives the parties of an opportunity to cross-examine. Consequently, the courts apply the doctrine with caution. 3 The limits of Judicial Notice: basic principles Notorious Facts (a) Facts of general knowledge: An example is Christmas day or the fact Pretoria is South Africas capital. In R v Tagerthe trial court took judicial notice of a delicious milkshake. The appeal court said no, you cant take judicial notice of a milkshake no matter how delicious it is. In R v African Canning Co it was said that notorious facts include elemental experience in human nature, commercial affairs and everyday life. (b) Specific facts that are notorious Facts may be judicially noticed even if they are not facts of general knowledge. The proviso is that these facts should be notorious among all reasonably well-informed people in the area where the court sits. In R v Levitt a local court took judicial notice of the fact that Franschhoek is not a small place and it contains a number of streets. An example is the crime rate in a certain jurisdiction or the high rate of theft or robbery. The court can take notice of that when it comes to sentencing.

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Facts which are easily ascertainable These relate to facts which can be ascertained with the aid of specific material such as: (a) a standard map to determine a place (b) A calendar to determine a date (c) Dictionaries for the meaning of a normal word (i.e. not a scientific word) Facts which are not generally known but which are readily and easily ascertainable should also be judicially noticed. However, they should be easily ascertainable from sources of indisputable authority, like the above listed examples. Section 229 of CPA and s26 of CPEA contain provisions to the effect that certain official tables, approved in the Gazette, may on mere production thereof serve as proof of the exact times of sunrise and sunset at specific places in South Africa. In R v Sibuyi it was held that although a court might take judicial notice of the accuracy of almanacs, calendars and diaries as regards days and months, they could not be regarded as indisputably accurate as regards the phases of the moon, the rising and setting of the sun, or the state of the tides. It was held that such evidence is hearsay and did not merit being admitted as an exception to the hearsay rule. 4 Assorted Examples

There was very little said in class about this and we were told to just read over this section from the textbook, so we are going to be very brief here. 1.1. Animals The instinctive behaviour of domesticated animals should be judicially noticed. It has been held judicial notice is irregular in respect of the following: the local market value of animals; the manner of estimating the age of animals; and that a particular skin was that of a particular species of buck. The following have been judicially noticed: dangerous wild animals remain potentially dangerous even after docile behaviour has come about as a result of semi-domesticity; rhinos are rarer than elephants and brand marks on cattle do not fade completely. These were considered to be of general knowledge. 1.2. Racial Characteristics The doctrine of judicial notice has not escaped the effects of the historically inherent injustice of the South African social structure. Clearly racist generalisations are not matters which should be the subject of judicial notice. 1.3. Political and constitutional matters The sovereignty of foreign states and the existence of a state of way may normally be judicially noticed. An appropriate certificate may be obtained from the executive if the court does not have sufficient information to take judicial notice of certain political and state matters, for example whether a war has been declared. This certificate is treated as one of indisputable accuracy. Certain political circumstances (e.g. the existence of a specific political system) in a specific country or area may be judicially noticed if sufficiently notorious.

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1.4. Matters of science and scientific research Matters of science may not be judicially noticed unless they have permeated into the background knowledge of non-specialists. Such matters can be said to be noticed on the basis of general notoriety. Judicial notice has been taken of the fact that no two fingerprints are the same and the normal period of human gestation, but not the possible limits within which the period may be abnormal except in the most extreme cases. When evidence includes measurement by a mechanical or scientific instrument it is ordinarily required to be accompanied by testimony as to the trustworthiness of the method or process used to make the measurement, as well as the accuracy of the instrument used. However, in certain circumstances, the court will take judicial notice if the reliability of the measuring device and expert evidence will not be necessary. 1.5. Financial matters and commercial practices Judicial notice has been taken of the fact that the value of money has declined over the years; that most public companies are incorporated for the purpose of making a profit from income; the practice of furnishing bank guarantees in sales of land; and the practice of making payment by cheque. 1.6. Functioning of traffic lights In Gomes v Visser it was held that in civil cases a court can take judicial notice of the fact that when the lights facing in one direction at a right-angled intersection are green, those facing at right angles to them should be, and probably are, red. 1.7. Historical facts, words and phrases There is no general rule that facts which are reliably (as opposed to easily and reliably) ascertainable can be judicially noticed. However, our courts have used history books to establish historical facts. Courts have also made use of dictionaries to establish the meaning of words. 1.8. Crime Judicial notice has been taken of a number of matters relating to crime. Judicial notice has been taken of the fact that South Africa is currently engulfed by an acceptably high crime rate. 1.9. Social conditions In Mohlomi v Minister of Defence, Didcott J took judicial notice of the state of affairs prevailing in South Africa, a land where poverty and illiteracy abound and differences of language and culture are pronounced , where such conditions isolate the people whom they handicap from the mainstream of the law, where most persons are either unaware of or poorly informed of their legal rights and what they should do to enforce those, and where access to profession advice and assistance that they need so sorely is often difficult for financial and geographical reasons. 5 Law

Judicial notice must be taken of South African law. Parties may not lead evidence in order to clarify the nature and ambit of a South African legal rule. They may however do so by way of argument. This is particularly necessary where the court on its own initiative has consulted case law, legislation or textbooks in order to seek clarification of a legal rule. It appraises itself of what the law is. In our law, the judge gets assistance from the advocate or attorney (as this is their duty). One can distinguish a number of different laws: Page 122 of 154

Statute and common law Judicial notice is taken of Acts of Parliament and of the provincial legislatures. Colonial statutes and ordinances are judicially noticed in terms of our common law, whilst subordinate legislation (regulations, by-laws etc) and private Acts of Parliament are judicially noticed in terms of statutory law. Judicial notice should also be taken of any law which purports to be published under the superintendence or authority of the Government Printer.The rules of our common law are judicially noticed. There are no exceptions to this rule. The mere fact that a particular rule is vague will not entitle a party to adduce expert evidence. Public International law Public international law consists of the body of rules governing the relations between states in times of peace and war. Public international law that has acquired the status of custom is judicially noticed. As customary international law is seen as forming part of the common law, courts should take judicial notice of it. Section 232 of the Constitution provides that customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. Indigenous and foreign law Prior to the Law of Evidence Amendment Act 1988, the courts of chiefs and headmen could take judicial notice of indigenous laws and customs. But this was not the position in the ordinary courts where such indigenous law and customs were treated as foreign law. Until 1988, foreign law had to be proved by calling an expert witness and could not be judicially noticed. Judicial notice may now be taken of both indigenous and foreign law in terms of s1 of the LEAA:
1(1) Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall not be opposed to the principles of public policy or natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles. 1(2) The provisions of subsection (1) shall not preclude any party from adducing evidence of the substance of the legal rule contemplated in that subsection which is in issue at the proceedings concerned.

Proviso #1 indigenous law must not be against public policy or natural justice. Proviso #2 any party can adduce evidence on any legal rule, which is in issue. Foreign Law Where the foreign law in question cannot be ascertained readily and with sufficient certainty, it must be proved by means of expert evidence. Where a party seeks to rely on statutory foreign law, the relevant statute must be placed before the court. Harnischfeger Corporation v Appleton involved an application for an interdict, based on an alleged infringement of a copyright belonging to the applicant. The applicant was a US company who acquired the copyright in the US. Foreign copyright law was applicable to the facts, but there was no evidence presented to the parties. The question was whether the courts could take judicial notice of this law. The court referred to the section that it can take judicial notice, if it could be obtained Page 123 of 154

readily and with sufficient certainty. The court held that it needs to have the relevant material available. Thus, it was not possible to obtain it readily and with sufficient certainty. Fleming DJP, finding that accessible library holdings on the relevant topic of American law were inadequate, came to the conclusion that the American law in point was neither readily accessible nor ascertainable and consequently the common law had to be applied. At common law each aspect of foreign law is a factual question and any evidence on that aspect must emanate from someone with the necessary expertise. It will be presumed that there is no distinction between foreign and South African law and the onus rests on the person asserting a distinction to produce evidence. In Harnischfegerthe court held that this presumption applied to both common and statutory law. Indigenous Law In Maisela v KgolaneNOit was held that in terms of S 1(1) of LEAA, a litigant who wishes to have an action determined by indigenous law must prove that indigenous law is applicable to the case. Unless judicial notice can be taken of the principles they must be alleged and proved. A litigant may adduce expert evidence to prove those principles that are not readily ascertainable. If the litigant fails to establish the applicability of the indigenous law, common law will apply. In terms of S 1(1) a court may not take judicial notice of indigenous law that is contrary to the principles of public policy or natural justice. In Mthembu v Letsela the court, in determining whether a rule of indigenous law which excluded illegitimate children from sharing in the intestate succession of their father was contrary to public policy, described public policy in the following terms:
The interests of the community are of paramount importance in relation to the concept of public policy. Public policy reflects the mores and fundamental assumptions of the community; it is the general sense of justice in the community, the boni mores manifested in public opinion.

The court reached the questionable conclusion that the rule could not be against public policy because the deceased would have been entitled to exclude his illegitimate child if he had died testate. The status of indigenous law was reaffirmed in the interim Constitution by Constitutional Principle XIII which provides that indigenous law, like the common law, shall be recognised and applied by the courts subject to the fundamental rights contained in the Constitution and to any legislations dealing specifically therewith. Section 39(2) of the Constitution states that when interpreting any legislation and when developing the common law and customary law, every court, tribunal or forum must promote the spirit, purpose and objects of the Bill of Rights.

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28 PRESUMPTIONS 1 What is a presumption?

A precise and readily identifiable definition of the term presumption is probably impossible to formulate because the nature and effect of presumptions are so varied. Elliot defines a presumption as a conclusion, which may or must be drawn in the absence of contrary evidence. Heydon argues that in terms of this definition presumptions merely state the effect of the rules as to the burden of proof. For example, the presumption of innocence requires the prosecution to prove the accuseds guilt. A presumption is generally acceptance of a fact without proof. There is another kind of presumption: a conclusion (the presumed fact), which may or must be drawn if another fact (the basic fact) is first proved. For example, once it is proved that two people went through a marriage ceremony their marriage is presumed valid. In R v Bakes the first type of presumption was labelled a presumption without basic facts, and the second type, a presumption with basic facts. When we discussed presumptions below, we are talking about presumptions with basic facts. 2 Foundation

Presumptions have been described as aids to reasoning and argumentation, which assume the truth of certain matters for the purpose of some given inquiry. Some assert that presumptions assist courts in reaching a valid and effective affirmative finding. Presumptions also allocate burdens of proof in accordance with the probabilities and dictates of fairness. They save time by not requiring a party to prove something that is most probably true. Presumptions also reflect policy preferences as to desired outcomes. For example, the presumption of innocence is not applied because common sense tells us that most accused persons are likely to be innocent, but because policy considerations require us to minimise the risk of convicting innocent persons. Also, they are used for the sake of normality. It is normally so that if the parties go through a marriage ceremony, it is a valid marriage. It is an exception to the norm that if parties go through a marriage, it is invalid. 3 Classification of presumptions

There are traditionally three categories of presumptions: 1. Irrebuttable presumptions of law; 2. Rebuttable presumptions of law; and 3. Presumptions of fact. Irrebuttable presumptions of law (a) Conclusive proof Irrebuttable presumptions of law furnish conclusive proof of the facts presumed and cannot be rebutted by evidence to the contrary. They are as good as a proven fact. In this context, the term presumption is misleading because these are really rules of substantive law. It is argued that

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because these presumptions exist for reasons of public policy, and not because they necessarily reflect reality, they should not be disguised as presumptions. (b) Examples For example, because a child under the age of 7 is presumed to be incapable of discerning between good and evil, he cannot be held to be criminally or delictually liable. However, some children under the age of 7 are capable of distinguishing between good and evil. Therefore Zeffertt et al are of the view that the rule would be better phrased as No child under the age of 7 may be convicted of a criminal offence. Rebuttable presumptions of law These are rules of law compelling the provisional assumption of a fact. They are provisional in the sense that the assumption will stand unless it is destroyed by countervailing evidence. Once there is proof of a wedding ceremony, then the court provisionally accepts that the marriage is valid. However, evidence can be presented to show that one or more of the substantive requirements for marriage were not complied with, therefore the marriage is invalid. Where a presumption infringes a constitutional right, a logical connection between the evidence which triggers the presumption and the presumed fact will be a prerequisite for constitutional justification. Presumptions of fact Presumptions of fact are described by Elliot as merely frequently recurring examples of circumstantial evidence. A court is not obliged to draw the inference dictated by a presumption of fact if such inference would not accord with common sense. This relates to a scenario where the court makes certain inferences from a certain factual bias. Evidence is presented showing certain facts, and from that the court can infer certain facts. If there is evidence to show that the traffic lights were green in a certain direction, it creates a certain factual basis, so the court can infer that the traffic lights in the other direction were red. In actual fact, all it is, is an inference. It is also not a case of a legal rule obliging a court to do that, it is an application of common sense. The most important example is that of res ipsa loquitur (the facts speak for themselves). The court makes certain inferences. For example, it can be presumed that a person found in possession of recently stolen goods stole them or received them knowing that they were stolen. In S v Skweyiya, when the accused was stopped at a road block, he lied to the police telling them that he didnt have a key to the boot. When the boot was eventually opened, it was found to contain a stolen hi-fi and bedspreads. The accused lied again and told the police that he did not know that the goods were in his boot. The court, finding that the goods were of the type that could be quickly sold, held that the facts did not justify invoking the presumption that the accused himself actually stole them. Consequently, he was found guilty of receiving stolen property, but not guilty of theft. 4 Some examples of presumptions

There are three things to remember when looking at this section: what is presumed; is there an onus or merely an evidential burden; what is the factual basis that activates the presumption?

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Marriage The validity of marriage will be presumed once evidence is adduced showing that a marriage ceremony was performed. The onus is on the person who challenges the validity of the marriage to show that it is invalid. This rebuttable presumption of law creates a legal burden in that the validity of the marriage must be disproved on a balance of probabilities. What is the factual basis which activates this presumption? Proof of a wedding ceremony. This is normally proved by a marriage certificate, but there are also other means - you can bring witnesses. What is presumed? It is a valid marriage. What is the effect, where does the onus lie, is it only evidential? It places an onus on the party that wants to dispute the presumption. The standard of proof is a balance of probabilities. NOTE: This is a presumption of all and it places the onus on the party resisting it. Although in Aronegary v Vaigalie the presumption was held to persist unless the contrary be clearly proved the authors of the textbook argue that an analysis of the majority of cases would indicate that this is a presumption of fact. For example, in Fitzgerald v Green the validity of the marriage of the marriage between F and H was in issue. The validity of the marriage was challenged on the ground that it was not recorded in the relevant register. The court, although noting that the ordinary way of proving a marriage was to produce the register with a certified extract from it, held that it could be proved in other ways, for example, by evidence of witnesses who were present at the marriage ceremony or by satisfactory evidence of cohabitation and repute. There was evidence that there had been a decree of divorce (indicating that there had previously been a valid marriage between F and H), evidence of witnesses who attended the marriage ceremony and evidence of witnesses who knew that the couple lived together as husband and wife and were generally considered to be married. The court held that all this evidence considered together established a very strong prima facie case that F and H were legally married. Common sense tells us that the court did not have to invoke a presumption of law to reach this conclusion as the facts alone were sufficient to establish a prima facie case. Thus it appears that a presumption of fact and not a presumption of law applied in this case. Every marriage is presumed to be in community of property unless the contrary is proved. In Brummand v Brummands Estate the parties the marriage certificate did not reflect whether they were married with or without an ante-nuptial contract. The court held that the presumption that they were married in community of property could be defeated by satisfactory evidence to the contrary. This case indicates that this presumption is a rebuttable presumption of law. Legitimacy Once a party alleging legitimacy has proved that the child was conceived by a woman whilst she was married, the child will be presumed to be legitimate. The party contesting legitimacy must prove a balance of probabilities that the child was not conceived as a result of intercourse between the spouses. A legal burden is created by this presumption. This presumption can be rebutted by leading evidence of DNA tests showing that the spouse was not the father or by establishing that the husband was sterile. Either spouse may give evidence that they did not shag during the period when the child was conceived. Page 127 of 154

What is the factual basis? If there is evidence that a child is born from a woman who is married to a man at the time of birth or time of conception or anywhere in between, then it is presumed that the child is legitimate - the husband is the father of the child. What is presumed? Pater est quem nuptiae demonstrant (the father is he who is pointed by the marriage). The textbook only talks about the woman being married at the time of conception, Wouter says that the presumption is applicable if the woman is married at the time that the child is born. Paternity of children born out of wedlock Section 36 of the Childrens Act: if in legal proceedings it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother at any time when the child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child. A similar presumption existed at common law. However, while this statutory presumption places an evidential burden on the alleged father, the old common law presumption created a legal burden. There used to be a presumption that a person who refused to submit to a paternity test did so in order to conceal the truth in regard to the paternity of the child. However, this presumption has been repealed and replaced with S 37 of the Childrens Act which merely states that person who refuses to submit to the paternity must be warned that such refusal may have an effect on his credibility. Is there onus or just evidential burden? The onus is placed on the party who is presumed to be the father. This can be rebutted by a few methods, blood tests, evidence that the husband is sterile, evidence that no sexual intercourse took place, use of contraceptives etc (the court wasnt impressed with this). What is the factual basis? In terms of the common law, there wasa presumption that if a man had sexual intercourse with a woman at any time, there was a presumption that the child is his. Now,on evidence that a man had sexual intercourse with a woman at a time that the child could have been conceived then, in the absence of evidence that could raise reasonable doubt, the child is presumed to be the fathers.What is presumed? The man who had intercourse with the mother is the father of the child. F v L 1987 Wis the only prescribed case in this chapter.F applied to court for an order declaring him to be the father of Ls child (the mother had disputed his paternity). L had married X on 15 December 1978. She gave birth to a child on 6 January 1979. F alleged that he had had sexual intercourse with L in April 1978. L accepted that, but argued that she had also had sexual intercourse with X during this period, and furthermore X admitted to this. Thus, we have two presumptions applicable. Firstly, that marriage (see above) points out the father, who is X. Secondly, that intercourse leads to fatherhood, which leads to presumption of X and F being fathers. In this case, L pointed out X as the father. The court gave preference to Ls choice (X). This case is just authority for the presumption that it is possible to have more than one presumption applicable to a case. Page 128 of 154

Res ipsa loquitur the matter speaks for itself This maxim means the matter speaks for itself. It is almost exclusively applied where the cause of an accident is unknown. If it is the type of accident that does not ordinarily occur in the absence of negligence, an inference of negligence may be drawn from the accident itself. For example, in Arthur v Bezuidenhout and Mienythe appellants vehicle had suddenly swerved onto the incorrect side of the road and collided head-on with the respondents vehicle. Both drivers had been killed and there was no clear explanation as to cause of the accident. The court found that the maxim res ipsa loquitur applied and negligence was inferred. However, in Madyosi v Eagle Insurance the court found that the maxim did not apply. A bus left the road and overturned after the left tyre had burst. The court found that the only known facts relating to the negligence did not only consist of the occurrence itself. It was known that the bust overturned because of the burst tyre. It was held that the burst tyre was not a neutral fact as regards the alleged negligence. The court concluded that the fact of the burst tyre precluded the inference being drawn from the mere fact of the occurrence. As this presumption is not based on a rule of law but on common-sense reasoning, it should not strictly be classified as a presumption but rather as a permissible inference which may be drawn if it is sustained by the proven facts. Where an inference of negligence is drawn an evidential burden is cast on the defendant. However, this does not mean that he must prove that he was not negligent. He must merely show that the facts are consistent with an inference not involving negligence, or he must adduce evidence so as to raise a reasonable doubt. What is the factual basis? This is an inference that the court makes based on certain facts: a motorist parks his motor vehicle on an incline, he gets out, the motor car slides down the hill. What is presumed? Presumed negligence. Is there onus or just evidential burden? It places no onus on the party who wants to resist this, there is a duty to present evidence, but there is no onus. Note the rest was not covered in class but is in the textbook, so just read over it! Death In terms of both the common law and the Inquests Act, in certain circumstances a person can be presumed to have died. Section 16(1) of the Inquests Act provides: If in the case of an inquest where the body of the person concerned is alleged to have been destroyed or where nobody has been found or recovered, the evidence proves beyond a reasonable doubt that a death has occurred, the judicial officer holding such inquest shall record a finding accordingly.... Once such finding is made the magistrate is required the record of the inquest to a provincial of local division of the High Court for review. Once the finding is confirmed by the High Court it is no longer necessary to make an application to court for an order presuming death. At common law, death is not required to be proved beyond reasonable doubt. The applicant must persuade the court that death can be inferred on a preponderance of probability from the evidence. A judicial declaration of death is a presumption in

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that it is based on circumstantial evidence and can be invalidated if the person is subsequently proved to be alive. Presumption of death and dissolution of marriage:Section 2 of the Dissolution of Marriages on Presumption of Death Act provides that when a married person has been presumed dead in terms of the Inquests Act the marriage in question shall for all purposes be deemed to have been dissolved by death. The date of death: The court will presume the death to have occurred on or before a particular date only if the evidence supports such a finding. In Nepgen NO v Van Dyk NO it was held that there is no presumption in our law such as the English law presumption that if the order of death is uncertain, the younger is deemed to have survived the elder. Consequently, the party alleging a particular order of death bears the onus of proof. Where people have died in a common disaster, the courts have frequently held that they died simultaneously. This presumption of simultaneous death is one of fact and will generally only invoked where on the facts it appears most probable that the deaths were simultaneous. However, it also appears that factors such as absence of prejudice and the intention of the testator also affect the willingness of the court to presume simultaneous death. Regularity The presumption of regularity is based on the maxim omnia preaesumuntur rite essa act described by Zeffertt et al as follows: In some cases it appears to be no more than an ordinary inference, based upon the presumption that what regularly happens is likely to have happened again. In other cases it is treated as a presumption of law, sometimes placing an onus upon the opposing party and sometimes creating only a duty to adduce contrary evidence. One can use circumstantial evidence can be adduced to prove that a letter was posted. The party alleging posting may lead evidence establishing the existence of a routine used for posting letters and showing that the letter in question was dealt with in this routine manner. This is more easily done in the case of public officials as the court will take judicial notice of the existence of an official routine. In Cape Coast Exploration Ltd v Scholtz it was held that we must presume that an official will carry out the ordinary work of his office... hence we must presume that if an official letter is written and a copy filed, the former is dispatched in the ordinary course of business to the person concerned and that he has received it. However, in the case of persons working in the private sector, the court will require evidence of an office routine from which posting can be inferred. This is a presumption of fact; therefore the burden of proof is not affected. An unregistered letter that is presumed to be posted will not be presumed to have been received. However, the position in respect of registered letters is different both at common law and in terms of statute. In S v Buys it was held that if a letter was sent by registered post it will give rise to a presumption that it was received. The presumption casts an evidentiary burden on persons alleging that they did not receive the letter. S 7 of the Interpretation Act holds that: Meaning of service by post- Where any law authorizes or requires any document to be served by post, whether the expression 'serve", or 'give", or 'send", or any other expression is used, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a registered letter containing the Page 130 of 154

document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Public officials are rebuttably presumed to have been properly appointed. This presumption place a legal burden of the party alleging the contrary. It is also presumed that an official has acted in compliance with prescribed formalities. The following are conditions for the operation of the presumption as set out by Wigmore: First, that the matter is more or less in the past and incapable of easily procured evidence; secondly, that it involves a mere formality or detail of required procedure in the routine of litigation or of the public officers action; thirdly, that it involves to some extent the security of apparently vested rights so that the presumption will serve to prevent an unwholesome uncertainty; and finally, that the circumstances of the case add some element of probability. In S v Thornhill is was held that the effect of the presumption on the burden of proof varies: In some criminal cases it has been said to place an onus upon the accused, but in others the judges have used language which indicated that the presumption could be rebutted by some evidence upon which the court could find that the requisite formalities were not complied with... In civil cases however, the presumption has often been treated as placing an onus upon the opposing party, and in cases where proof of non-compliance with a formality would involve the disturbance of old and vested rights, the onus of rebuttal has been very heavy indeed. The presumption should not be interpreted as meaning that it will be presumed that all official acts are lawful. In R v Jenkins it was held that it could not be presumed that an arrest was lawful.

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29 A CONSTITUTIONAL PERSPECTIVE ON STATUTORY PRESUMPTIONS Note: this chapter is really short. Wouter said that we should just read over it from the textbook.We have included the relevant and important parts for you.There are no prescribed cases here. The presumption of innocence At common law and as a constitutional right the presumption places a burden on the prosecution to prove the guilt of an accused person beyond a reasonable doubt. The presumption applies to the elements of the states case that must be established in order to justify punishment. So the gist of the issue is that if a statutory presumption puts the onus on the accused (in respect of a substantial element of the offence) and this presumption permits conviction despite the existence of reasonable doubt with regard to that part of the evidence, then there is an infringement of the presumption of innocence which is unconstitutional. The following cases demonstrate this infringement. Infringements of the presumption of innocence In S v Zuma the Constitutional Court considered reverse onuses for the first time, where it dealt with the constitutionality of S 217(1)(b)(ii) of the CPA. The section placed a burden on the accused to prove in certain circumstance that a confession was inadmissible on a balance of probabilities. The court held that the presumption of innocence is infringed whenever there is a possibility of a conviction despite the existence of reasonable doubt. Furthermore, where a statutory presumption requires the accused to prove or disprove an element of an offence or excuse on a balance of probabilities, such a presumption would create the possibility of conviction despite the existence of reasonable doubt (and therefore infringe the presumption of innocence). The court found that the section placed a burden on the accused to prove a fact on a balance of probabilities and therefore breached the constitutional right to be presumed innocent. In S v Coetzee the Constitutional Court dealt with the effect of the presumption of innocence on a statutory provision requiring the accused to prove an exemption, exception or defence. The court was required to determine the constitutionality of S 332(5) of the CPA, which provides: When an offence has been committed, whether by the performance of any act or by the failure to perform
any act, for which any corporate body is or was liable to prosecution, any person who was, at the time of the commission of the offence, a director or servant of the corporate body shall be deemed to be guilty of the said offence, unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it, and shall be liable to prosecution therefor, either jointly with the corporate body or apart therefrom, and shall on conviction be personally liable to punishment therefor .

Langa J favoured the approach of the Canadian Supreme Court in R v Whyteand R v Keegstraand held that the section imposed an onus on the accused to prove an element relevant to the verdict. It was not relevant whether the element was of the offence or formulated in a way which permits a conviction despite the existence of reasonable doubt in regard to the substantial part of the offence, the presumption of evidence, the court held, is breached. The court therefore rejected the greater includes the lesser test. According to this test a reverse onus could be saved if the legislature, in Page 132 of 154

creating the special defence in respect of which the accused bears the onus, has prevented the hardship the accused would otherwise have suffered if it had created an absolute liability defence. The Constitutional Court in Scagell v Attorney-General of the Western Capedid not distinguish between permissive and mandatory evidentiary presumptions. The court held that an evidentiary burden, unlike a legal burden, does not create the possibility of conviction despite the evidence of reasonable doubt. The court was dealing with a section of the gambling act that basically said when any gambling instruments were found at any place or on the person of anyone found at any place it will be prima facie evidence for the person in control of the place permitted the playing of the game. The court (ORegan J) found that the use of the wording shall be prima facie evidence indicated a mere evidentiary burden, which merely requires evidence sufficient to give rise to a reasonable doubt to prevent conviction. The court found it unnecessary to consider whether the section nonetheless infringed the presumption of innocence by relieving the prosecution of its duty to prove all the elements of the offence charged, because the court concluded that the section infringed the right to a fair trial by allowing innocent persons to be brought to trial merely upon proof of a fact which did not indicate any criminal behaviour (for example merely possessing playing cards). The Scagelljudgment should have distinguished between permissive and mandatory evidentiary burdens. Adopting the terminology of Canadian and American courts, the section in question created a mandatory presumption. The presumption requires that the court presume the person in control or in charge of the place permitted the gambling game. The proof of the basic fact has a very tenuous relationship with the presumed fact. As a result of the presumption, if the accused exercised his right to silence, in the absence of other evidence capable of raising reasonable doubt, he would be liable to conviction despite the existence of such doubt. Therefore we are dealing with a presumption that could lead to a conviction despite the existence of a reasonable doubt. So Schwikkard thinks that ORegan J got it wrong. The court in S v Manamela drew a distinction between an infringement of the right to remain silent and the presumption of innocence. The court was dealing with a reverse onus imbedded in S 37 of the General Law Amendment Act 62 of 1955. Very broadly this reverse onus was such that when the prosecution had proved that the accused was in possession of certain stolen goods the accused must establish that he or she believed, at the time of acquiring the goods, that they were not stolen, and that this belief was reasonable. The majority held that this reverse onus was a justiciable limit on the right to remain silent but not a justifiable limit on the presumption of innocence. The right to remain silent was infringed because the accused had to establish that he or she believed the goods were not stolen, and that this belief was reasonable, even where the prosecution had led no evidence regarding this belief. The presumption of innocence was infringed because the section imposed a full legal burden of proof on the accused. The issue of determining the application of the presumption of innocence to regulatory offences has yet to be determined by the courts. The Constitutional Court has however indicated that the regulatory nature of an offence is better considered as a factor in determining whether a provision Page 133 of 154

constitutes a justifiable limitation on the presumption of innocence rather than in establishing a breach thereof. This approach is desirable as it allows the courts to focus on the values at stake in the particular context rather than the unruly distinction between regulatory and criminal offences. The position is not the same where the provision merely imposes an evidentiary duty on the accused, then there is no duty to persuade court, only a duty to rebut the prima facie case presented by state. Here it is sufficient for him to merely create reasonable doubt in the eyes of the court to be acquitted.

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30 THE EVALUATION OF EVIDENCE Try remember the beginning of this course: There are two broad themes in the law of evidence: 1. The admissibility of evidence (containing many boring rules which we now know) 2. The evaluation or weight to be attached to the admitted evidence The following three chapters deal with the second theme. We will look at the following closely linked issues: 1. The evaluation and weight of the evidence (various rules) 2. The onus of proof (when the court evaluates evidence, it must do so keeping in mind who bares the onus of proof this is known as the incidence of onus) 3. The evidentiary burden 4. The standard of proof 5. The duty to begin (to give evidence) 1 Introduction The court must determine the facts before anything else A court must first determine the factual basis of the case before pronouncing on the rights and liabilities of the parties. This factual basis is determined by evaluating all the probative material admitted during the trial. Remember, the law of evidence does not deal with substantive law, which can only be applied by the court once it establishes the facts.2 For this purpose all probative material admitted must be evaluated The task of weighing the probative material takes place after the parties have closed their respective cases and delivered their arguments. The court must attach weight to the material to determine if the party carrying the burden of proof has discharged it in accordance with the applicable standard of proof. The court should give reasons for its decisions. The courts duty to evaluate probative material is similar to the function of any non-judicial fact finder: credibility is determined, inferences
2

The following informative guidelines for the resolution of factual disputes were given in Stellenbosch Farmers Winery Group ltd v Martell et Cie: To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witnesss candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witnesss reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each partys version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a courts credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised, probabilities prevail.

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are drawn, and probabilities and improbabilities are considered. There are a few legal rules which can assist the court. But by and large the task is a matter of common sense logic and experience. All evidence, including presumptions, formal admissions and judicial notice, is included in this evaluation. A provision which places the onus on the accused regarding an essential element of the offense can lead to a conviction despite reasonable doubt. Thus this has been held to be unconstitutional. When the onus is merely an evidentiary burden (to present evidence in face of a prima facie case) then it is acceptable. Two basic principles in the evaluation of evidence must be kept in mind. First, evidence must be weighed in its totality.Second, probabilities must be distinguished from conjecture or speculation. 2 Basic Principles Inferences and probabilities to be distinguished from conjecture Inferences may be drawn and probabilities considered during the evaluation of evidence. But these must be distinguished from speculation and conjecture. In Caswell v Powell Duffryn Associated Collieries Ltd (not prescribed), it was held that there can be no proper inferences unless there are objective facts from which to infer the facts which it is sought to establish. If there are no such facts to infer from then the method of inference fails and we are left with mere conjecture or speculation. Avoidance of piecemeal processes of adjudication In S v Trainor Navsa JA said: A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable the quality of that evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence must of course be evaluated against the onus on any particular issue or in respect of the case in its entirety. The compartmentalised and fragmented approach of the magistrate is illogical and wrong. So the court must avoid piecemeal processes of reasoning. Evidence must be weighed as a whole, taking account of: 3 the probabilities, the reliability and opportunity for observation of the respective witnesses, the absence of interest or bias, the intrinsic merits or demerits of the testimony itself, inconsistencies or contradiction, corroboration, and all other relevant factors. Corroboration

Corroboration, as you know from the movies, is simply the confirmation (via evidence) of a certain fact. Whenever corroboration is present it will be easier to conclude that the required standard of proof has been met. So corroboration is important even though not required by law (except in the case of confessions).

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It is evidence confirming a certain fact For example, theres been a bank robbery. As with all bank robbers, the main perpetrator, who demanded money from the teller, had a big scar on his face. When the teller is called as a witness, she describes the robbery as it took place. She identifies the accused and the scar on his face. In addition, a bank client who was in the bank at that time also observed everything. If he is called as a witness and he says the same thing then he becomes corroborating witness as he corroborates the evidence submitted by the bank teller. The rule against self-corroboration In S v Gentle, the court held that *B+y corroboration is meant other evidencewhich supports the evidence of the complainant and which renders the evidence of the accused less probable, on the issues in dispute. Repetition of a story by a witness can at most prove consistency and cannot amount to corroboration. The rationale of the rule against self corroboration was explained in Director of Public Prosecutions v Kilbourne as follows:
There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in. In ordinary life we should be and in law we are required to be careful in applying this idea. We must be astute to see that the apparently corroborative statement is truly independent of the doubted statement. If there is any real chance that there has been collusion between the makers of the two statements we should not accept them as corroborative. And the law says that a witness cannot corroborate himself. In ordinary affairs we are often influenced by the fact that the maker of the doubted statement has consistently said the same thing ever since the event described happened. But the justification for the legal view must I think be that generally it would be too dangerous to take this into account and therefore it is best to have a universal rule.

Essentially, a witnesss previous statement cannot be used to corroborate his evidence (think back to previous consistent statements). In certain instances, the previous consistent statement becomes admissible but even in these instances; it still does not provide corroboration of the evidence. It merely shows that the witness is consistent. However, some types of corroboration are excluded from the rule against self-corroboration. For example, the injuries suffered by the victim of a violent offence may furnish corroboration of his or her testimony. So may emotional distress shortly after a violent incident. Much will depend on the facts of the case and the nature of the defence advanced by the accused. The facts in issues may require the court to consider certain risk before allowing bodily and emotional condition to be considered corroboration, for example was the emotional stress genuine or simulated, and was it really the result of the fact that the witness was the victim. This is really all back to the common sense approach. The rule against self-corroboration only applies to oral or written communication by the witness concerned. For example, features of the body identified during an assault case can be taken into account as real evidence corroborating a story. However, such corroborating evidence must be approached with caution because a witness can injure himself. A court can convict on the basis of a confession, as long as the confession is corroborated. In the case of S v Mjoli the court took account a previous incriminating statement made in the plea Page 137 of 154

procedures by the accused, as corroboration of the evidence. The majority found the evidence admissible, despite its admission being against the rule of self-corroboration. The case is controversial. There was a strong minority judgment which held that it is true that sometimes confessions are incorrect. The reason for a confession being confirmed is that there are sometimes false confessions. By allowing an accuseds previous statements to confirm the confession, the courts are going against this rationale. The rule against self-corroboration Corroboration is an important means to satisfy a cautionary rule. For example, evidence submitted by of an accomplice results in the court applying a cautionary rule, because the accomplice may have good reason to lie. Once the court has warned itself, it will look for safeguards in the form of corroboration of the accomplices evidence. Keep this in mind when reading about cautionary rules below. Corroboration of confessions We mentioned S 209 of the CPA briefly when looking at the admissibility of confessions. This is the one area in which corroborations are required by law. Section 209 provides that an accused may be convicted of an offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence, other than the confession, to have been actually committed. S 209 serves to prevent convictions on the basis of false confessions.
209. Conviction may follow on confession by accused.An accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence, other than such confession, to have been actually committed.

S 209 looks at the circumstances in which an admissible confessionwill be sufficient for the purposes of conviction. The section holds that there must be either confirmation in a material respect or evidence aliunde (outside) the confession that the offence has been committed. In many instances they will overlap. Note that meeting the requirements of S 209 does not mean a conviction will necessarily follow. A court must still ultimately decide that guilt has been proven beyond a reasonable doubt.3 The purpose of this requirement is to prevent a false confession serving as basis of a conviction. Wouter reminds us that we may think, what on earth could motivate someone to make a false confession? But it does happen. In Perry, the accused confessed to the murder of his landlord. He, his mother and his brother were sentenced to hang. The landlord then pitched up, telling everyone that he had been kidnapped by someone else!
3

A confession made in the course of plea proceedings does not need to satisfy the requirements of s209.But such a confession (or admission) may for the purposes of s209 serve as confirmation of an extra-curial confession proved by the prosecution against the accused. In S v Rossouw,parts of the accuseds explanation of the plea confirmed his extra-curial confession, but other parts contradicted it. The court held there was no proof of guilt beyond a reasonable doubt, despite finding that, for the purposes of s 209, there had been sufficient confirmation of the confession in material respects.

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In R v Blyth 1940 AD 353,the accused wrote a letter to the policeconfessing to the murder of her husband by arsenic poisoning. Her husband was a serious drinker. He was diagnosed with heart problems. One day, he started vomiting all over himself. He called the doctor (who was not his normal doctor) but did not tell him about the vomiting. The wife told the doctor about her husbands heart problems, and not the arsenic poisoning. Later the letter was sent to the police and the victims body was exhumed. The wife said that he letter was a false confession, and never entered the witness box. The fact that the body contained some arsenic was found to be sufficient confirmation of the confession, where she mentioned specifically that she murdered him with arsenic. It was confirmation in a material respect, even though it did not connect her to the murder and did not amount to evidence aliunde that her husband had been murdered.The court said, that if that is the case, it is not necessary to prove that the offence was committed. The requirement then is simply that a material aspect of the confession be confirmed. But note that the accused did not testify in this case. If the accused had testified things might have turned out differently, bearing in mind that despite the fulfilment of S 209 the court must ultimately decide if there is reasonable doubt as to the guilt of the accused. Wouter discussed the following: this evidence confirms the confession, but does this evidence show that a crime had been committed? What if it was a suicide? Lets say that a person confesses to murder, by stabbing that person several times in the back with a knife. There is evidence of his confession, there is a body showing several stab wounds in the back (hence theres a confirmation), but did he commit the offence? The stab wounds in the back show that an offence was committed. The fact that the stab wounds were in his back rules out suicide, but if the wounds were on his wrists, things would be different. Note that in Blyth, the AD rejected the defence argument that suicide had not been rule out beyond a reasonable doubt. S 209 can be satisfied, as weve said, by evidence aliunde the confession. So if A confesses to the stabbing and murdering of B, it would be sufficient for the purposes of s 209, if it is proved that B died as a result of stab wounds. This does not really protect an accused against a false confession though, as the prosecution merely has to prove the commission of the crime. The court will look if, for example, if there are any signs of suicide which contradict the confession, or if there is in fact evidence outside the confession to show the crime was committed. For example, like in Blyth (and as weve said above), the stabbing. In S v Erasmus (not prescribed) the prosecution proved both a confession by the accused to a magistrate as well as an incrimination letter which the accused had written to the investigating officer. The prosecution also proved various confessions which the accused had made to her daughter. But there was no evidence aliunde (outside) the confessions/admissions of the offence having been committed.The circumstances of the accuseds husbands death were consistent with both murder and suicide. The court said that for a conviction there had to be compliance with S 209 of the CPA ANDthe standard of proof beyond reasonable doubt. The issue was whether the various confessions, or at least one of them, could be said to have been confirmed in a material respect. Negpen J held that the required confirmation may come from another extra-curial confession made by the accused. The judge held further that because the confession to the magistrate was in certain respects unsatisfactory, a high degree of confirmation was required. The letter to the investigating officer was held to be ambiguous, and therefore could not provide sufficient

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confirmation, but the confession to the accuseds daughter could. Furthermore it was held that the prosecution has discharge of the onus of proving the murder beyond a reasonable doubt. S v Blom is an example of the accused being acquitted because the two confessions proved against him both contained material untruths. The fact that a confession complies with s 209 does not mean that the contents thereof must necessarily be accepted as the truth. 4 Credibility: The impact of demeanour and mendacity

Take note briefly of the following. Credibility of witnesses can be decisive to the outcome of a case. A wide variety of factors must be taken into account in the assessment of a witnesss credibility, including: the general quality of testimony the consistency, both within the content and structure the witnesses own evidence and with the objective facts the witnesses capacity and opportunities to be able to depose to the events he claims to have knowledge of the witnesss integrity and candour age where relevant personal interest in the outcome of litigation intellect objectivity the witnesss temperament and personality the witnesss ability to effectively communicate what he intends to say the weight to be attached and the relevance of the witnesss version of events

An assessment of credibility that includes demeanour is an inevitable consequence of a trial system based on orality and confrontation. Demeanour of a witness includes their manner of testifying, their behaviour in the witness box, their character and personality, and the impression they create. Does he look nervous, does he look down and does he avoid eye contact? Demeanour is considered real evidence, in the sense that it is something that the trial court observes. Despite the inferences that could be made, the court should not rely too extensively on demeanour, as a perfectly honest witness could look nervous, while a guilty person could look perfectly calm and confident. At best, demeanour is a tricky horse to ride. Mendacity (a synonym for dishonesty) is a factor to consider. However, our law does not follow the old rule once a liar, always a liar. The court may be more careful of this person, but other aspects of his evidence may be accepted. Everything will depend on the particular circumstances of the case. 5 Circumstantial Evidence

Recall that circumstantial evidence furnishes indirect proof. It is a type of evidence from which the court is required to draw inferences from the relevant facts as to the facts in issue, because the witness has made no direct assertion with regard to the facts in issue. Take as an example a murder, where C testifies that he saw A stabbing B. That constitutes direct evidence. If C testifies that A had a motive to kill B or that he saw A running from Bs home with a knife, that constitutes circumstantial evidence. Circumstantial evidence is not necessarily always weaker than direct evidence. In the

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process of drawing inferences from circumstantial evidence, certain rules of logic must be followed and the difference between criminal and civil standards of proof is important. In S v Shabala, the accused left his takkie at the scene of the murder. There also existed evidence showing blood and hair on the accuseds clothes, which corresponded to the deceaseds hair and blood. Remember the dog of all dogs Tilly? He identified this and was held to be a hero to all who have studied the Law of Evidence. All the circumstantial evidence relevant to the facts in issue could be considered by the court, which could then make inferences to the matter in casu. Court must consider the cumulative effect of all the circumstantial evidence The court should always consider the cumulative effect of all items of circumstantial evidence. R v De Villiers pointed out that the court should not consider each item of circumstantial evidence in isolation and then give the accused the benefit of the doubt as to the inference to be drawn from each single circumstance. Inferences in Criminal cases two cardinal rules of Logic R v Blom is the locus classicus on this issue and is always being referred to by everyone from Wouter to the courts. This case is authority that the courts must reason on the basis of circumstantial evidence in criminal cases. The facts are as follows: The accused, a white man, was charged with the murder of a young black woman. Her body was found on a railway line after a train had connected with her body. The medical evidence showed that the deceased was dead before she was put on the railway line. There were two possibilities as to how she died: 1. A heavy blow to the head 2. Amplification of heavy dose chloroform

Evidence was submitted to the court in three major categories. Evidence of conduct before showing motive, and evidence to show he had a design There was evidence showing that the accused had enjoyed an illicit relationship with the deceased, and that she was pregnant. There was also evidence that he had purchased chloroform. When purchasing the chloroform, he has given a false name and another reason for buying the chloroform. Evidence showing opportunity There was evidence showing he had ridden a bike to the scene of the crime. Evidence of conduct of accused after the event, showing a guilty conscience The accused had seen a doctor prior to the event. After the event, he saw the doctor a further two times, where he gave two different reasons as to why his back was sore. There reasons contradicted each other. Furthermore, he made false statements to a police officer who confronted him about the chloroform which he had on him. This showed that he had a guilty conscience. That is the evidence against the accused. Watermeyer J held that in reasoning by inference in a criminal case, there are two cardinal rules of logic which cannot be ignored.

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The first rule is the inference sought to be drawn must be consistent with all the proved facts. If not, that inference cannot be drawn. Certain facts will be beyond doubt (for example, medical evidence showing that the cause of death was a stab wound). If the court wants to make inferences in this regard, then those inferences must be consistent with the certain facts. Thus the court cannot hold that the accused had killed the deceased with a gun, if stab wounds were proved.

The second rule is that the proved facts should be such that they exclude every reasonable inference from them save the one that is sought to be drawn. If not, there must be a doubt as to whether the inference sought to be drawn is correct. This is obviously just a restatement of in a criminal case you cant hold inferences to be correct when there is reasonable doubt. The inference the court makes must be the only reasonable inference. Why only reasonable inferences? Why not probable inferences? This relates to the standard of proof. The standard of proof differs in a civil case so the inference in civil cases can be the most probable.

Note that the rules set out in R v Blom are not applicable when considering an application for a discharge in terms of S 174 of the CPA.
174. Accused may be discharged at close of case for prosecution.If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.

The court then applied these two cardinal rules of logic to the facts of the case.Inference must be consistent with the proved facts. In this case, the inference was that the accused caused the death of the deceased with the application of chloroform. The medical evidence showed that the deceased died either by a blow to the head, or chloroform. It must be the only reasonable inference. Any other reasonable evidence must be excluded. Because of the conduct of the accused after the event, where the accused showed a guilty mind, the only reasonable inference was that the accused was guilty of the offence, killing the deceased with chloroform. The conduct of the accused swayed the court in favour of showing that the only inference that could be made was to convict the accused. Inferences in Civil cases Wouter did not spend much time on this. The first rule in Blom applies, but not second. Thus in civil proceedings, the inference sought to be drawn must also be consistent with all the proved facts, but need not be the only reasonable inference. The standard of proof in criminal cases is beyond reasonable doubt. In civil cases the standard of proof is on a balance of probabilities. Thus inference must be the most probable inference. In AA Onderlinge Assuransie Bpk v De Beer(not prescribed) it was held that a plaintiff who relies on circumstantial evidence (in the civil case) will discharge the burden of proof if he can convince the court that the inference he advocates in the most readily apparent and acceptable inference from a number of possible inferences. This is because of the lesser standard of proof in civil proceedings. Page 142 of 154

Credibility of a Witness: Previous Experience of the Courts Previous experience that a court has of a witness has limited value and could operate unfairly and lead to injustice. The accused has no way of testing the courts opinions and usually has no prior knowledge of those opinions. Where the court does rely on its own knowledge of witnesses, it must at least indicate that it is doing so with circumspection and that it is fully aware of the dangers of this approach. Furthermore, the acceptance of the credibility of a state witness does not necessarily equate to a rejection of the accuseds version of the story. This was not discussed in class. Failure to Cross Examine A failure to cross-examine is generally considered an indication that the party who had the opportunity to do so did not wish to dispute the version or aspects of the version put by the particular witness who was available for cross-examination. Failure to cross-examine may not be held against an illiterate and unrepresented accused. We didnt discuss this in class. 6 Failure of a party to testify (and the constitutional right to remain silent)

This is the important section in this chapter. What is the effect of the accuseds silence in face of a prima facie case made by the state? Remember that the accused has the right to remain silent. However, the state has made a prima facie case against him. What will be the result of the accused failing to enter the witness box? In civil cases, a partys failure to give testimony under oath or affirmation may have an adverse effect on his case, depending upon all the circumstances of that case. The answer comes from S v Brown However, no adverse inference can be drawn against accused merely because he exercised his right to remain silent. The fact that the accused remained silent is not an extra piece of evidence that the court can take into account against the accused. However,in these circumstances, the court will decide the case on the un-contradicted prima facie case of the state. This may result in negative consequences for the accused, in that prima facie proof may become conclusive proof. The court has a duty to warn an unrepresented accused that there may be these consequences to him not testifying. InBrown, it was held that the court is under a duty to warn the accused in this regard. Wouter reminds us that the right to remain silent cannot exclude common sense. If the accused remains silent in a prima facie case, the court has no room to move and must convict him. Failure to call available witnesses A partys failure to call available witnesses may in exceptional circumstances lead to an adverse inference being drawn against the party so failing. This will depend upon the circumstances of the case. The court should, inter alia, consider the following: Was the party concerned perhaps under Page 143 of 154

the erroneous but bona fide impression that he had proved his case and that there was therefore no need to have called the witness? Is there a possibility that the party concerned believed that the potential witness was biased, hostile, or unreliable? We didnt discuss this in class. 7 The cautionary rules

This was emphasised in class. Definition The cautionary rule is a rule of practice which must be followed whenever evidence of certain witnesses is evaluated. It serves a reminder to the court of the danger which may be involved with the facile or superficial acceptance of the credibility of certain witnesses. The cautionary rule requires: 1) that the court is compelled to consciously remind itself to be careful in considering evidence which practice has taught should be viewed with suspicion 2) that the court should seek some or other safeguard reducing the risk of the wrong finding due to suspect evidence The practice originated at the time of the jury system, where the judge warned the jury not to attach too much weight to certain evidence. The exercise of caution should not be allowed to replace the exercise of common sense. Furthermore corroboration is not the only manner of satisfying the cautionary rule. Any factor which in the ordinary course of human experience can reduce the risk of a wrong finding will suffice. For example, mendacity (dishonesty), a failure to cross-examine, the absence of gainsaying testimony etc. It has been held that, where an accomplice gives evidence, and in addition to the accused, implicated a relative against whom he bears no ill will, it can reduce the risk of a wrong conviction. Note that when a cautionary rule does apply, it should not affect the standards of proof. Instances where cautionary rules are applied Note that this is not a closed list. Additional instances where the court should exercise caution include evidence of voice identification, evidence of an alibi and evidence of or opinion regarding handwriting. 1. Evidence of an accomplice: One such instance that the court should view with suspicion is the case of certain witnesses who may have special motives to give false evidence. For example an accomplice, who may have special reasons for wanting to incriminate the accused falsely. An accomplice will have a motive to lie and put blame on the accused. In addition, he can do this easily as hehas intimate knowledge of how the crime was committed.4
4

S v Masuku gave this account of the principlesrelating to the evidence of an accomplice:

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The evidence of an accessory after the fact is subject also falls within the ambit of the cautionary rule. Furthermore, per S v Dladla the cautionary rule is applied to an accused that testified in his own defence and implicated his co-accused, as there may be a risk of an accused trying to save his own skin at the cost of another accused. The following witnesses are also suspected of having an ulterior motive for giving evidence: the plaintiff in paternity and seduction cases, private detectives, and persons who claim against the estates of deceased persons. The list is not exhaustive. 2. Evidence of identification: Experience has shown that it is very easy for the identifying witness to be mistaken. In S v Mthetwa it was explained that human observation is fallible and therefore it is not enough that the identifying witness is honest. The reliability of his observation must also be tested. This will depend on numerous factors, including lighting, the opportunity for observation, the proximity of the witness, corroboration, the extent of the witnesss prior knowledge of the accused etc. It is not a closed list and its basically common sense stuff. You should also remember the Tandwa case in this regard![here, the distinction between real and testimonial was held to not really be valid: the question is rather how the evidence was obtained see Chapter 12]. Note that identification in court (dock identification) is of little probative value. A court should be alert that a person may identify a person in court simply because, having seen the offender in the dock, he had become convinced that he was the offender. A court will more readily accept evidence of identification by a witness where such has been confirmed at a properly conducted formal identification parade where there were no material irregularities and where there are detailed rules to govern the procedure. The parade must have taken place in a proper way and proper fashion. If it is, more weight will be given to the parade than the dock identification which in general is given very little probative weight. 3. Evidence of children: R v Manda pointed to imaginativeness and suggestibility of children as only two amongst a number of reasons why evidence of children should be approached with caution. There is not a specific age whereby the cautionary rule applies. Rather, a child can testify at a very young age but needs to be able to have limited imagination and be good at
1. 2. 3. Caution in dealing with the evidence of an accomplice is imperative An accomplice is a witness with a possible motive to tell lies about an innocent accused Corroboration of the details of crime (not corroboration which implicates the accused) is not enough to show the truthfulness of the accomplice. 4. To satisfy the cautionary rule, if corroboration is sought it must be corroboration directly implicating the accused in the commission of the offence. 5. Such corroboration may however be found in the evidence of another accomplice provided that the latter is a reliable witness. 6. Where there is no such corroboration there must be some other assurance that the evidence of the accomplice is reliable. 7. The assurance may be found there the accused is a lying witness, or where he does not give evidence 8. The risk of false incrimination will be reduced where the accomplice is a friend of the accused 9. In the absence of any of the aforementioned, it is competent for a court to convict on the evidence of an accomplice only where the court understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is only permissible where the merits f the accomplice as a witness, and the demerits of the accused as a witness, are beyond question. 10. Where the corroboration of an accomplice is offered by the evidence of another accomplice, the latter remains an accomplice and the court is not relieved of its duty to examine his evidence also with caution.

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communicating (how ridiculous). As a general rule, young children cant properly distinguish between what they experienced, what they imagined and what was suggested to them. The South African Law Commission has recommended that the cautionary rule relating to children be abolished, but it remains to be seen what will come of the recommendation. 4. Single witness: The court can make a finding on evidence of a single witness, although it is somewhat risky to base a finding on one persons version of the facts. Section 208 of the CPA provides that an accused may be convicted of any offence on the single evidence of any competent witness. The same is true of judgment in civil cases. The test is found inRex v Mokoena.In the absence of corroboration, the evidence of a single witness must be satisfactory in all material respects. Zeffert notes that this rule has not been applied rigorously in many cases.The most important question (the bottom line) to ask, he says, is is there proof beyond reasonable doubt? Evidence of a single witness can be accepted as long as it meets this bottom line. The following paragraph was not dealt with in class, so just read over it: In S v Sauls it was said that there is no rule of thumb test when it comes to considering the credibility of a single witness. The trial court should weigh the evidence of the single witness and should consider its merits and demerits. Having done so, it should decide whether it is satisfied that the truth has been told despite shortcomings or defects or contradictions in the evidence. In S v Webberit was decided that the evidence of a single witness should be approached with caution. Even when there is an honest witness, it is possible that the witness made a mistake, honesty does not mean reliability. However, such evidence shouldnt necessarily be rejected merely because the single witness appears to have an interest or bias to the accused. The correct approach is to assess the intensity of the bias and to determine the importance thereof in light of the evidence as a whole. Thus, in the absence of corroboration, evidence must be satisfactory in all material respects. 5. Evidence of the complainant in sexual cases (this cautionary rule has been abolished): There used to be a cautionary rule applying to the evidence of female complainants in sexual cases. It was based on an archaic view of female psychology and was thankfully abolished in S v Jackson 1998 (1) SACR 470 (SCA) (prescribed). BeforeJackson, the courts reasoning for the cautionary rule was that: a. The act took place in secret and the complainant was involved and has intimate knowledge of what happened. She can make the implications of the charge and make it difficult to for the man to refute it. b. The possibility existed for emotional reaction or spite (i.e. the jilted lovers revenge) c. Circumstances may force the complainant to represent consensual sex as rape for example, where parties are caught in the act. Jacksoninvolved a case of attempted rape by a policeman. He was found guilty in the trial court. On appeal, it was argued by the defence that the regional magistrate had erred in not applying the cautionary rule correctly. The state held that the magistrate did apply the cautionary rule correctly, and, in the alternative, argued that this rule should be abolished.

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The appeal court held that the evidence in a particular case may call for a cautionary approach, but that this is a far cry from a cautionary rule, which was based onirrational and outdated perceptions. In addition, the rule stereotyped woman as unreliable, and negated the humiliation and difficulty that a woman faces in bringing this kind of evidence. The court held that there is no truth to the myth that women habitually claim that they have been raped. The court cited the following passage from the English case of R v Makanjuola, R v Easton: In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel." S v M applied S v Jackson. The court held that there is no general cautionary rule that arises when the complainant gives evidence in a rape case. The evidence must be looked at as a whole in order to assess its reliability. The general view seems to be that the cautionary rule is abolished. However, the South Africa Law Commission thinks that Jacksonmerely reformulates the old rule, and doesnt abolish it (probably because the court held that it may call for a cautionary approach). The textbook thinks this view makes no sense and that there is nothing unclear about what Olivier JA was doing in Jackson. Wouter also thinks that the rule has been reformulated and not abolished.However, he agrees with the criticism to the cautionary rule, in a particular case with certain circumstances, the courts may approach the evidence with caution, such as a case where the only witness is the women alleging rape. Statutory confirmation of the abolition of this cautionary rule is found in section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which came into operation on 16 December 2007. IT provides notwithstanding any other law, a court may not treat the evidence of a complainant in criminal proceedings involving the alleged commission of a sexual offence pending before that court, with caution, on account of the nature of the offence. This section doesnt oust the application of the cautionary rule where the complainant happens to be a single witness or where identity is in issue (as a single witness, she may give sketchy evidence etc.) Fletcher v State (not prescribed) applied Jackson. Three men were charged with the rape of a 29 year old girl at a night club. Fletcher offered a lift to the complainant. He stopped on the side of the road and raped her while his co-accused, Du Plessis, held her down.The third guy, De Kock,told the other two men tomove away, it is my turn. He then whispered to the girl that she must co-operate, and thathe wants to help her. He told the other two to move away. He then took her, put her on his shoulder and ran away. He went to the police.He was found not guilty in the trial court due to his actions. On appeal, the court held that it is clear that the Jackson rule is abolished: you can only treat sexual cases with caution if there is a single witness. The other two accusedwere convicted. Page 147 of 154

CHAPTER 31 & 32 WEIGHT OF EVIDENCE, STANDARDS AND BURDEN OF PROOF & EVALUATION OF EVIDENCE Note these two chapters have been combined as thats how they were taught! 1 Introduction

A court must determine the facts before it can pronounce on the rights, duties and liabilities of the parties. The law of evidence is about establishing the facts, which are necessary before the substantive law can be applied. All the probative material that was admitted must therefore be evaluated and in this process, the court must attach weight in order to decide whether the person with the burden of proof has discharged that burden. Distinguish (a) Burden (onus) of Proof This is the duty on a party to persuade the court of his version of the facts. The incidence of this burden: in criminal proceedings it is on the state in all elements of the crime except in relation to the plea of insanity; in civil cases it is usually on the plaintiff, however, there are a number of exceptions and the onus may be on the plaintiff in certain elements but the onus may be on the defendant on other elements. In the case of damages for assault, the onus is on the plaintiff to prove the assault but if the defendant raises the special defence of self-defence, he must prove this. (b) Evidentiary Burden This is the duty to adduce evidence to combat a prima facie case made by the opponent. If there is a murder trial and the state produces eyewitnesses implicating the accused, that evidence will make out a prima facie case at the end of the states case. The accused will have a duty to rebut the prima faciecase and he will succeed if he creates reasonable doubt by showing that his version is reasonably possibility true. Standards of proof These are the standards to determine if the party carrying the burden of proof has discharged it. In a criminal case the standard of proof is beyond reasonable doubt. From the accused perspective it means that if the accused presents a version, which is reasonably possibly true then the state has not discharged its duty. In S v Van Neyden, the court clarifies this. In those exceptional cases where the onus is on the accused in respect of certain elements of the offence, then the standard is proof on a balance of probabilities as it is in civil cases. If the onus in the latter is on the plaintiff, he has the duty to show that his version is more probable than the defendants. Criminal cases Where the mental illness or defect of the accused is raised, one must distinguish two situations: (i) a substantive law defence ala S 78 of CPA; (ii) and any procedural issues relating to the triability of the accused ala S 77 of the CPA. Where the substantive defence (the then issue) is raised to the effect that he could not appreciate the wrongfulness of his act or he could not act in accordance with the appreciation, the onus is on the accused to show that he was criminally not responsible and he must show this on a balance of probabilities. If the procedural issue is raised to the effect that, due to Page 148 of 154

mental illness or defect, he cannot be tried because he is incapable of understanding the proceedings so that he can make a defence (the now issue), the onus remains on the state and must be discharged beyond reasonable doubt. This comes from the common law and was confirmed in legislation. The duty of an accused to introduce a defence There is a duty on the accused to raise a defence and he will do so at the plea stage where he is asked for an explanation of his plea (he is not obliged to explain as he has the right to remain silent) but if he does not do it there, he must at least do so at the cross-examination. He has the duty to present evidence to combat a prima facie case against him as well. Non-pathological capacity This is brought on by anger or stress. The accused has to lay a foundation in order to succeed. Application for discharge of the accused S 174 of CPA The important case is Lubaxa. In S 174, if at the end of the states case, in the opinion of the court, there is no evidence against the accused, the court may acquit the accused. In Shuping, the court held that there are two questions to ask when faced with this situation: (i) Is there evidence upon which a reasonable man mighty convict? This measure was to prevent a case with no grounds to come before a jury. If the answer is yes, then the application must be refused, however if the answer is no then the court must ask, Is there a reasonable possibility that the evidence may be supplemented by the defence? If the answer is yes, then court must refuse the application. In the constitutional era, in S v Mathebula, the court said that the Constitution curtailed the discretion a court had in the context of S 174 to the extent that it is almost nonexistent. The court decided that if there is no evidence implicating the accused then the court is obliged to acquit the accused even in the case that there is more than one accused thusShuping is no longer valid. In Lubaxa the court held that the second part of the inquiry is not appropriate where there is only one accused such that there is a duty to discharge. If there is more than one accused then a court has discretion to refuse an application for discharge even if there is no evidence but there is a reasonable possibility that the defence may supplement the states case (one of the co-accused will implicate the other). It is order for the state to rely on the evidence of an accomplice and thus it is in order for the section to apply in this way.

(ii)

Civil Cases In most instances the onus of proof is on the plaintiff and there is also a duty to present evidence in order to discharge the onus to prove the case. There is also a duty to begin which usually falls on the plaintiff. In some instances the onus falls on the defendant to prove his case and sometimes he also has to begin. Examples are (pg 572 footnote 4 & 6) a landlord and tenant relationship in a case where there was damage or where there is a contract and the defendant alleges that the contract is unlawful or raises the defence of prescription then the defendant has the onus. The party relying on the contract must prove the contract even where he has to prove a negative such seen (pg 573 footnote 8). In an assault claim where the defendant raises a special defence of self-defence as in Mabaso, the onus is on the defendant to prove his defence. Page 149 of 154

Evidentiary Burden The onus rests on a particular party as determined at the beginning of the trial and this does not shift from one party to another although different elements may need to be proved by different parties. The view is expressed in some cases that the evidentiary burden shifts from one party to another depending on how the parties make their case this unnecessarily complicates matters. However, it could rather be explained as when a party makes his case and he has a duty to present evidence and by the end of his case he has established a prima facie case and then the other party needs to just show that his version is more probable. The duty to begin This can in some instances rest on the defendant such as where the plaintiff sues the defendant for payment for a loan and the defendant admits the loan but avers that the loan has been paid. He has the onus as well as the duty to begin leading evidence. Absolution from the instance There is a possibility at the end of the plaintiffs case, if the defendant is of the view that the plaintiff has not made a case then he can ask for absolution from the instance. This can also be granted at the end of the trial. The test at the end of the plaintiffs case was whether there was evidence that a reasonable man might find for the plaintiff the plaintiff must at least succeed in making out a prima facie case to avoid such an order from being given. Now that we have no jury, the test is whether there is evidence upon which a reasonable court might find for the plaintiff. if the court at the end of the trial cannot find an outweighing factor, the court asks whether the plaintiff has succeeded in discharging his onus then if not the court can grant absolution. At the end, the order has not got res judicata effect such that the plaintiff can raise the issue again based on the same cause of action. 2 The Evaluation of Evidence

There are certain basic rules applicable to the evaluation of evidence. In SFW Group v Martell the court dealt with having to resolve a Factual Dispute. Resolving a factual dispute

Witnesses Credibility The demeanour of the witness is important, bias towards a party and contradictions between evidence given and prior statements are considered when weighing up the evidence given by a witness. Reliability Time frame or opportunity to observe, eye-sight, etc of witness are important. The court will also take into account the probabilities to determine whose version is reliable. The court will also ask whether the onus has been discharged.

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Courts must give reasons In S v Bhengu the court dealt with a judgment delivered by a magistrate and the judge was scathing about the quality of the magistrates decision. The court said that the magistrate was untidy, disjointed and he just repeated what the witnesses said in his reasoning. The magistrate should have just stated the material portions of the evidence. The judge said that what is appreciated by courts is quality and not quantity of judgments. There must be reasons given to explain why certain evidence was accepted while other evidence was rejected. Basic Principles When the court evaluates the evidence then it must do so in its totality, looking at the evidence as a whole. The court must not just place too much weight to one portion of evidence. In many cases there is no direct evidence but there is only circumstantial evidence from which the court can make certain inferences about what happened. One must distinguish inferences from mere conjecture or speculation there must be objective facts from which inferences can be made. Corroboration This is the confirmation of a certain fact by evidence. An example is there was a bank robbery and the main robber had a big scar on his face and he is caught and a bank teller is called as a witness and he describes the robbery and identified the accused and mentioned the scar on the accused. There is also a client who observed the robbery and the accused. If the latter is called as a witness then he will corroborate the facts of the teller. As rule corroboration must come from a source independent form a witness who stands to be corroborated which is the rule against self-corroboration as held in Kilborn. A witnesss previous statement cannot then be presented as evidence to corroborate his statement. A previous consistent statement is generally not admissible but there are exceptions to this rule but even in the exceptional cases, the previous consistent statement can never provide corroboration. This rule against self-corroboration only applies to oral or written statements but it does not apply to real evidence such as conditions or features of the complainants body. The injuries of a rape victim for instance can corroborate her evidence but must still be taken with caution as a witness can hurt themselves. Where corroborating evidence is presented to the disadvantage of the witness, the evidence can be admitted as held in S v Mjoli. Where the accused, for example, made a confession and the confession is admitted against him. The majority in this case found that a prior admission that the accused had made in the plea proceedings could be taken to corroborate evidence of his confession. Another example is in S v Erasmus. This is a controversial issue, however, because the reason for the rule is that a confession must be confirmed in order to prevent the admission of false confessions. If you allow an accused to corroborate the confession with a previous admission then the risk is not averted. One must distinguish the instance where corroboration is compulsory and the context of cautionary rules. It is compulsory with regard to confessions (S 209). Cautionary rules apply to identificatory rules. Page 151 of 154

Corroborations of confessions S 209 says that a court may convict an accused on the single evidence of a confession if the evidence is proved by evidence outside the confession or if the content of the confession is confirmed in a material respect. There may be an overlap in the sense that the evidence outside may prove the confession in a material respect. An example of the application of this is R v Blyth. The purpose of this requirement is to try to prevent a false confession from forming the basis of a conviction. In Perrys case, Perry confessed that he, his brother and his mother had murdered their landlord. They were hanged and three years later the landlord appeared. Confirmation in a material respect R v Blyth 1940 AD 353 is the key case. The accused was charged with the murder of her husband and the main evidence was a confession in a note sent to the police. At the appeal it was argued that it was necessary to show that there must be evidence of the crime but the court disputed this. The accuseds husband was a heavy drinker and had been diagnosed as having a heart problem. On 2 January 1939, the husband and the wife called in a doctor and told him about the husbands heart failure. The doctor pronounced that he died due to heart failure. Then 10 months later when she was living with another man and in a fit of rage she wrote a letter saying she had poisoned her husband. On this evidence it was said that the body of her husband was poisoned and upon the examination arsenic was found in the body. She refused to admit that the confession was true. At the trial she did not testify in her own defence. It was argued that its necessary that evidence of a commission of a crime must be present but the court said this is not necessary where there is a confirmation of a confession. The court found that there was confirmation here as she mentioned in the letter that she murdered him with arsenic and arsenic was found in his body. NOTE: the discovery of arsenic in his body does not show that a crime was committed as this is reconcilable with suicide. Evidence outside the confession that an offence was committed (not that the accused did it) If the accused confesses that he stabbed the deceased in the back and then it is found that there are stabs wounds found on the deceased back then this shows that a crime was committed. Credibility: the impact of Demeanour and Mendacity The demeanour of the witness is one of the things that can be taken into account to test the credibility of the witness but not too much weight can be placed on this. Demeanour is a tricky horse to ride - words from the Wou. With regard to when it is found that a witness lied at some point to be false in one aspect does not mean that you were false in all aspects but the fact that you did lie in one aspect is a factor that the court will take into account in evaluating the totality of the evidence. Circumstantial evidence This is evidence regarding facts relevant to the facts in issue from which the court can make inferences regarding the facts in issue (facta probanda). In the case with the dog Tilly there was circumstantial evidence such as blood and hair of the accused, which was found, pointing out by the accused, etc. The court must consider the cumulative effect of all the circumstantial evidence. Page 152 of 154

Inferences in Criminal Cases Two Cardinal Rules of Logic: R v Blom 1939 AD 188 1. When the court makes an inference, the inference drawn must be consistent with the proved facts; and 2. The proved facts must be such that they exclude every reasonable inference drawn from them save from the one drawn the inference the court makes must be the only reasonable (standard of proof is beyond reasonable doubt) inference that can be made. In R v Blom the Court laid down these two rules. A white man was charged with the murder of a black girl. Her body was found on a railway line and her head was crushed by the train. Her body was examined by two doctors and they came to the firm conclusion that she was dead before her body was placed on the railway line. They said the death was caused by shock trauma to the head but they could not what decide if it was either due to a blow to her head or administration of concentrated chloroform to the face. The case against the accused was that he had administered concentrated chloroform to her head. The two main judgments (Stradford CJ and Watermeyer J) are important. All the evidence against the accused was in the form of circumstantial evidence: (i) evidence showing that the accused had a motive to kill the deceased and design to kill someone evidence showed that the deceased and the accused had a relationship and she fell pregnant and he wanted the baby to be aborted but it failed (motive) and he had bought chloroform (design); (ii) evidence that the accused had the opportunity to kill the deceased he was close to the scene of the crime; (iii) evidence of his actions after the event he had gone to see a doctor before and after the event (twice after the event) and he had different contradictory statements as to how his back was injured and when he was questioned by the police about him buying chloroform he lied. Watermeyer J laid down the two cardinal rules. The rules had to be applied. Remembering the two possibilities from the doctors examination, the state wants to show or make the inference that she died before she was placed on the railway. If the inference can be made that she died from a blow to her head then the inference cannot be made. The conduct of the accused (his guilty conscience) after the event led to the court saying that the only reasonable inference was that she died from the chloroform. Inferences in Civil cases Govan v Skidmore 1. When the court makes an inference, the inference drawn must be consistent with the proved facts 2. The inference the court makes must be the most probable inference that can be made. Failure of a party to testify, especially considering the constitutional right to remain silent What is the effect of the accuseds silence in the face of a prima facie case by the state? S v Brown is the key case. Here the court noted that no adverse inference can be drawn against the accused merely because he exercised his right to remain silent. It is an extra piece of evidence that goes into the scale against the accused BUT in that event the court will decide the case on the non contradicted evidence of the state. The right to remain silent cannot exclude common sense reasoning. This may have certain consequences because the prima facie case MAY become conclusive proof against the accused.

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In Mapanda v State 2010 SCA, the court said that if a witness has given evidence directly implicating the accused, the latter cannot afford to leave such evidence unanswered. The court cannot exclude dependable evidence especial where the accused chooses not to respond to it. In such instances, the failure to testify by the accused is bound to strengthen the states case. The question is whether this statement by the Court is correct. In Burger And Others v S 2010- 3 policeman were found guilty of murder but appealed to the SCA. They based their claim on circumstantial evidence. The SCA applied Blom and came to the conclusion that the trial court did not correctly apply those rules because on the evidence as a whole there was another reasonable inference that was possible and not the guilt of the accused. The guilt of the accused was not the only inference sought to be drawn. Thus the SCA overturned the decision of the court a quo. Remember in Blom this inference must be the sole inference for a conviction to be given

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