Jamie Murray Law of evidence summaries

TOPIC 2: RELEVANCE AND ADMISSIBILITY

INTRODUCTION
CHECKS ON THE ADMISSIBILITY OF LOGICALLY RELEVANT EVIDENCE

Admissibility = whether something is acceptable as evidence in court (1) THE ISSUES

• To be admissible = relevant • Courts must always have regard to the facts of the matter
• Confirmed in S210 CPA → no evidence shall be admissible if • S v Zuma: relevance can never be divorced from the facts of a particular case
irrelevant or immaterial and if it cannot conduce to prove or before the court
disprove any point or fact at issue in criminal proceedings (2) REASONABLE OR PROPER INFERENCE
• S2 CPEA contains similar provision • Assessing the potential weight of the evidence
Rationale for exclusion • Is the court able to draw a reasonable/proper inference from the evidence
• Helps courts focus only on the facts upon which the success of adduced?
the parties depends in law (focus on facts in issue) • S v Trupedo & S v Shabalala → no proper inference could be drawn from the
• Avoids confusion and prejudice to opponent by avoiding the behaviour of the police dog in its identification for a suspect
unnecessary prolonging of the matter • Court must make a provisional or tentative assessment of potential weight →
• Protects the opponent against having to defend themselves reasonable assistance in its exercise of fact finding
against irrelevant issues
(3) AVOIDING A PROLIFERATION OR MULTIPLICITY OF COLLATERAL ISSUES
Meaning and determination of relevance • Collateral issues: issues that ate only tenuously linked to the issues before the
• Relevance = matter of degree court
• Evidence is generally relevant if it tends to make the facts on • Ie. Issues with admitting evidence from a polygraph example
question more or less probable • S v Nel: court’s refusal to allow accused to lead psychiatric evidence to show the
• Evidence brought to either prove or disprove a fact therefore defence witness has contradicted aspects if their testimony because she was
makes sense that relevance depends on probability to mildly mentally ill → something court can assess themselves
prove/disprove facts in question
(4) PREJUDICIAL EFFECT
DPP v Kilbourne • Excluded if prejudicial effect outweighs probative value of the evidence
• Evidence is relevant if it is logically probative or disapprobative • Procedural fairness
of some matter which requires proof • Motive & R v Khumalo and Nkosi → general motive as opposed to personal
• Logical connection between the evidence and the facts motive was seen as relevant to court (technically wrong in SA law, only personal
• BUT on its own, logically relevant evidence is insufficient motive may be relevant)
• Logically relevant evidence may be excluded if its prejudicial (5) DOCTRINE OF PRECEDENT
effect outweighs its probative value
o Ie. Unconstitutionally obtained evidence or privileged • For precedent to be applied, facts must be similar to facts before the court
statements • Can determine relevance not weight
(6) RISK OF MANUFACTURED EVIDENCE
• Logically relevant evidence may be excluded to prevent the risk f manufactured
evidence (ie. previous consistent statements)
(7) PRINCIPLE OF COMPLETENESS
• Giving witness a chance to tell a coherent story
(8) CONSTITUTIONAL IMPERATIVE
 Jamie Murray Law of evidence summaries

TOPIC 2.1: CHARACTER EVIDENCE

CHARACTER EVIDENCE OF COMPLAINANT

INTRODUCTION LOSING SHIED AGAINST BC EVIDENCE
POD: The complainant may be questioned as to their
POD: character evidence is irrelevant and thus 2 exceptions the general POD (rule of exclusion)
credibility, but their character evidence is irrelevant
inadmissible
and therefore inadmissible
(1) THE COMMON LAW
Civil matters • Accused leads evidence as to their own good
Exceptions –
• Exceptions – character → prosecution can then adduce
(1) CRIMEN INJURIA → accused can lead evidence
o Seduction evidence of accused’s bad character
to show that it is the complainant’s character that
o Witnesses are allowed to be cross (2) SECTION 197 CPA
they would not be insulted by comments made by def
examined in relation to their credibility • Prohibits the cross-examination of the accused
(2) SEXUAL OFFENCES
whereby character evidence may be on previous convictions or bad character, unless
• Prior to 1989, S227 provided that the
adduced o Gives evidence of own good character
common law applied as to the admissibility of
o Defamation action: defence may o Attacks character of complainant
character evidence of a woman who is
present evidence as to the plaintiffs bad o Gives evidence against co-accused ( S v
alleging a sexual offence was committed
reputation → limited to general Pietersen dealt with co-accused losing
against her
reputation shield due to giving evidence against co-
• Lead evidence as to previous sexual
Criminal matters accused → lost shield ito S197(b) )
relations with the accused, not other men
• CL: accused can adduce evidence of their good o Facing charge of receiving stolen
unless this was relevant to her credibility
character but prosecution may not adduce property
S227 Amendments –
evidence of accused bad character o Previous conviction relates directly to
• S227(1): retains common law position but is
• Probative value of the bad character evidence of proof of the present charge
now gender neutral
an accused is outweighed by its prejudicial
• S227(2): leave of the court is required should
effect = irrelevant LEADING EVIDENCE OF A PREVIOUS CONVICTION
you want to lead evidence of sexual history
• S227(1) CPA • Prohibits the leading of evidence of the
of the complainant unless the prosecution
• accused’s previous convictions
introduced prior sexual history
Approach to character evidence in SA • Subject to similar facts rule
• Strictly excluded
S v Zuma (decided before amendments)
Rationale Can evidence of previous convictions ever be lead? YES
• Application ito S227(2) granted. Previous
• Jury system • Bail proceedings and sentencing → separate from
sexual history of complainant was not to
• Irrelevant → does not prove that the accused trial
show that she had misbehaved in the past
committed the crime before the court
• Rather, show she has previously made false
How does the accused establish their own good Cases dealing with overlap between character evidence
accusations of rape
character? and similar fact evidence:
• Relevant to the issue of consent
• Adduce evidence of good character themselves • R v Davis
• Questions and evidence were aimed at the
• Call a witness to adduce such evidence • S v Jones
investigation of the real issues and
• Cross-examine prosecutions witness fundamental to the accused’s defence
 Jamie Murray Law of evidence summaries

TOPIC 2.2: SIMILAR FACT EVIDENCE

INTRODUCTION CHALLENGES WITH MAKIN FORMULATION REQUIREMENTS FOR ADMISSIBILITY OF SFE

NB: similar fact evidence often reflects a person’s
character, but character evidence may not (1) FAILS TO ACCOUNT FOR THE FACT THAT (1) SIMILARITY
necessarily be character evidence SOMETIMES PROPENSITY IS HIGHLY RELEVANT
• Striking similarity required between past and
➔ SFE part of common law – S252 applicable • S v Straffen: accused was found guilty of
present conduct – DPP v Boardman
two prior murders but not convicted based on
• R v Bond: where SFE was admitted as it proved
SFE: facts directed at showing that a party, usually insanity. Another girl was murdered while
that the defence that the abortion was an
the accused, has behaved on other occasions in accused has escape from mental hospital.
accident was implausible
the same way that is being alleged in the Two previous murders were very similar to
circumstances before the court • CC in S v Savio criticized the threshold of
one before the court. Court argued that it
striking similarity as being too high – but striking
admitted the evidence as was relevant to
General rule similarity is our law as CC held it was not called
identity but in actual fact it was propensity
to make a finding on this matter, rather obiter
• Irrelevant thus inadmissible evidence
• Suggestions that test should rather be –
Rationale • Argued that Makin can only be used if there
o Can the presence of similarity (SFE)
• Jury system is a proviso that SFE will be admitted if it is
explain way the probability of
• Prejudicial effect → procedural prejudice highly relevant to the facts in issue
coincidence?
outweighs probative value • S v Bondrage: SFE should be admissible if
o Probability can be used to establish a
• Proof? Does not necessarily prove that the there is a nexus between SFE and matter
nexus/link
accused committed the crime currently being tried
being considered, merely that the accused (2) LED TO THE ESTABLISHMENT OF RIGID (2) FACTS IN ISSUE
has a propensity to act in a certain way CATEGORIES
• Can lead to the exclusion of relevant SFE • Relevance of SFE must assessed in light of the
LEGAL DEVELOPMENTS
where particular SFE does not fall into an facts in issue
existing category
Makin formulation: similar fact evidence is • R v Davis = identity (3) OTHER EVIDENCE
excluded if it only concludes that the accused has a • R v Pharenque = guilty intent
propensity to act in a certain way. BUT can be • S v D: wanted to admit SFE based on fact that
admitted if it is relevant the complainant said that the person who raped
DPP v Boardman
Relevant if – her told her to “sleep down”
• Affirms Makin formulation but highlights the
• Show that the crime was by design; • Court held that this alone was insufficient to be
importance of using it with consideration of
• By accident or admitted but in light of the other evidence could
existing evidential principles
• To rebut a defence have been
• Propensity evidence which is highly relevant
• Ie. Words + other strikingly similar evidence
to an issue before the court is admissible
could meet the required probative value →
when its probative value exceeds its
possibility of coincidence highly improbable
prejudicial value
 Jamie Murray Law of evidence summaries

TOPIC 2.3: OPINION EVIDENCE

INTRODUCTION ADMISSIBILITY OF OPINION EVIDENCE DISTINCTION FOR PROCEDURAL PURPOSES

Opinion: an inference, conclusion, belief, or Test for admissibility of opinion evidence = whether Generally, no distinction but necessary for procedural
impression of a witness the court will receive appreciable help from purposes →
➔ SA: do not distinguish between the opinion receiving such evidence
of a layperson and an expert Civil cases: Rule 24 MCR and Rule 36 URC prohibit
POD: any opinion, whether from a layperson or an Reasons for exclusion of opinion evidence – expert evidence being given unless the relevant party
expert which is expressed on an issue, the court • Lead to matter being prolonged has given notice and delivered a summary of the
can decide without receiving such an opinion is in • Confuses the facts in issue expert’s opinion no less than 10 days before the trial
principle inadmissible because of its irrelevance. • Probative value generally low
Only when an opinion has probative force can it be Criminal cases: prior disclosure may be demanded of the
Reasons for inclusion of opinion evidence –
considered admissible. – Helen Suzman intention to bring an expert → court usually grant this
• Opinion is relevant
Foundation v President (CC) based on constitutional grounds
• Has probative force
• Not superfluous OPINION OF A LAYPERSON
CHALLENGES WITH OPINION EVIDENCE May express an opinion on –
Ultimate issue doctrine
(1) DISTINGUISHING BETWEEN FACT & • Approximate age
OPINION • Witness is not allowed to usurp the functions fo
• State of sobriety
the court → witness may not express an
• Unnecessary to distinguish between the • General condition of a thing
opinion on an ultimate issue that the court
two – ineffectual must decide • Approximate speed at which a vehicle was
• Colgate Palmolive: Court allowed • BUT just because the court has received
traveling
statement of witness to be admitted ➔ Not an exhaustive list
opinion evidence on a matter does NOT mean
despite arguably being an opinion of a The inability to provide reasons affects WEIGHT not
that the court is obliged to be bound by that
layperson. Reason for admittance was not admissibility
opinion ( confirmed in S v M)
to persuade the court to adopt the opinion • Court will only rely on the opinion if it is
of the witness but rather to prove deception Compendious mode: a convenient term used in
convincing and it supports the opinion
instances where a witness offers an opinion on brief
expressed by the witness
(2) COURT NOT IN A POSITION TO JUDGE THE summary of factual data received by them
• Court decides on how much weight to attach to
TRUTH/ACCURACY OF THE OPINION ➔ Witness generally in better position to form
the opinion based on the reasons given by the
an opinion on these issues than the court
• Using ordinary knowledge, the court should witness
➔ Could be questions on the reasons for their
be able to judge whether or not the opinion conclusions
is reliable – Crodon Engineering Questions of interpretation of documents = matter of
• Court will ask not to receive evidence if it is law thus courts will only admit/receive an opinion if the
Admissible opinion if layperson provides prima facie
not in a position to judge whether the words in the doc have a special/technical meaning
evidence to a particular fact or issue → if not challenged
evidence is reliable/formulate own opinions where the court could use the opinion of a person who
may be accepted by the court
– S v Mkgabela may have the particular knowledge
 Jamie Murray Law of evidence summaries

HEARSAY AND EXPERT OPINION EXPERT MUST LAY A FOUNDATION HOLLINGTON RULE

Party seeking to adduce evidence of an expert witness Hollington v Hewthorne: opinion of previous tribunal
BASIC PRINCIPLES:
must satisfy the court that the opinion is not is irrelevant
• POD: inadmissible because irrelevant supererogatory. Court must be satisfied that –
• Only admitted if the court can receive Implication of rule:
appreciable help from opinion → cannot a) Witness can assist the court in deciding the
• Earlier criminal convictions of a party in a
decide matter without the help/assistance of issues
previous criminal matter are inadmissible for
the expert b) Witness is indeed an expert for the purpose for
purposes of subsequent civil proceedings
which they are called
➔ Earlier criminal convictions = inadmissible for
Ruto Flour Mills: guidelines on when the court can c) Witness does not or will not express an opinion
subsequent civil proceedings
and cannot receive evidence from an expert – on hypothetical facts
➔ Ie. OJ Simpson trial. There was a criminal case
a) Evidence that is supererogatory will be ➔ NB that the expert does not only have theoretical
opened against him and a subsequent civil
excluded knowledge of a particular issue but experience and
case. The court in the civil proceedings would
▪ Not because there is something skill as well
not have been allowed to rely on the opinion of
objectionable to the reliability of such the court during the criminal proceedings. He
EXPERT MUST GIVE REASONS FOR OPINION
evidence but because such evidence was found not guilty in criminal court and guilty
is not needed Expert witness must support their opinion with valid in civil court
b) Opinion of expert is received where expert reasons → strengthens probative value of that opinion
has greater skills than the court
• No hard/fast rule but general rule that reasons
c) True criterion is whether the court can
but be valid
receive appreciable help
d) When the issue is one of scientific nature or • Exception: where expert evidence is so technical
applies to specific skills then the expert can that the court is unable to follow reasoning of
be asked the very question the court is expert
required to decide • Where court cannot follow reasoning of expert, it
will consider the experts reputation and the
Courts generally reject expert evidence pertaining to possibility of bias
the witness’s credibility → expert is usurping ➔ Court does not take decision to depart from the
functions/power of the court evidence of an expert lightly, especially where the
• Holtzhauzen v Roodt: expert led evidence expert’s reasoning/evidence has not been disputed
stating that defendant had, numerous times,
S v Van As: where an expert has conducted their own
told him that she had been raped by the
experiment/research, the court is more likely to rely on
plaintiff and had repeated this allegation
that evidence opposed to an expert who bases their
under hypnosis → rejected as it only shows
opinion on other experts’ opinions
previous consistent statements and credibility
of witness. Accepted 2nd experts evidence ➔ Again, matter of weight
that revealed that generally rape victims do
not report their assaults immediately
 Jamie Murray Law of evidence summaries

TOPIC 2.4: PREVIOUS CONSISTENT STATEMENTS

INTRODUCTION • Covers circumstances where the witness

b) Past recollection recorded
had personal knowledge of the facts/events
PCS: a written or oral statement made by a witness prior • Witness after having consulted the PCS is still or if they recorded information as part of their
to testifying and which corresponds with or is unable to recall events duty
substantially similar to their testimony in court • PCS is admitted because in effect there is no
➔ POD: irrelevant thus inadmissible oral evidence (5) WITNESS CAN USE PCS TO REBUT AN
➔ Does not prove the truth of the statement made • SvR ALLEGATION OF RECENT FABRICATION
in court • Can rebut allegation by showing that they
(2) SECTION 213 OF THE CPA
➔ Rule against self-corroboration had previously (prior to the trial) made oral
“In criminal proceedings a written statement by any statements that is consistent with the
Rationale for exclusion person, other than the accused at such proceedings, evidence in court
• Limited probative value shall, subject to subsection (2), be admissible as • Used only to show consistency
• Could lead to fabrication of evidence evidence to the same extent as oral evidence to the • Applied to direct or implied allegations of
• Only shows consistency not proof same effect by such person” fabrication
• PCS are supererogatory and proving them in • Allows for a written statement made by a
court could be time-consuming and creates witness to be admitted in court with the (6) IDENTIFICATION EVIDENCE
collateral issues consent of the person concerned • Dock identification (done in court) = little
• Would then not necessarily have to testify probative value and weight
Rule on previous inconsistent statements
• If later called to testify → PCS = show • Prior identification done outside court = more
• Generally admissible because relevant to probative value and weight
consistency
credibility • Rules regarding identification parades must
• Inconsistency of statements can show that a (3) RES GESTAE STATEMENTS be followed → when courts evaluate this
witness is not credible • Witness is generally outlining the type of evidence it must apply the cautionary
events/circumstances of the case rule
EXCEPTIONS TO THE GENERAL RULE
• PCS is admissible if the facts form part of the
(1) REFRESHING THE MEMORY OF THE WITNESS background to an issue (7) SEXUAL OFFENCES
Witness is allowed to consult PCS while testifying in the • Cannot be used to show corroboration or truth • Complaint of a victim of a sexual offence if
witness box. One of two things will happen – of the witness’s statement admissible
• Common law rule applicable subject to -
a) Previous recollection revived (4) PART VI OF THE CPEA
• S58 and S59 of SORMA
• PCS triggers the witness’s memory and they • Allows a witness to hand in signed statements • Criticisms of common law rule:
continue to testify made by them after the incident under o Not have a rational basis
• PCS is not admitted as evidence → oral investigation o Prejudice of complainant
statement is court preferred and admitted • Witness in these instances must also gove oral o Does not account for research proving
evidence silence is part of series of posttraumatic
responses
 Jamie Murray Law of evidence summaries

(4) COMPLAINANT MUST HAVE BEEN A VICTIM

COMMON LAW REQUIREMENTS & SORMA ➔ S58 and S59 retain the common law position
OF A SEXUAL OFFENCE
that the complainant must testify in court
S58: Evidence relating to PCS by a complainant shall be • Includes a person who voluntarily took part
because PCS cannot prove consistency if they
admissible in criminal proceedings involving the alleged in a sexual act but did not have the legal
do not testify
commission of a sexual offence, provided the court may capacity to consent
not draw any inference only from the absence of such (3) COMPLAINT MUST HAVE BEEN MADE AT FIRST • Definition of sexual offence has been
PCS REASONABLE OPPORTUNITY developed by SORMA
NB: keep Holtzhauzen in mind → opinion of the second o Includes sexual activities with a corpse or
S59: Court may not draw any inference only from the
expert in relation to the behaviour of rape victims after an animal
length of any delay between the alleged commission of
such offence and the reporting thereof their assult
(5) COMPLAINT CAN ONLY BE ADMITTED TO
→ In some respects retains the common law position but • Sexual offences affect women and children SHOW CONSISTENCY
also changes it in other respects disproportionately • PCS can only be admitted to show
• Children’s behaviour is influenced by parents – consistency and cannot be used to prove the
(1) COMPLAINT MUST BE VOLUNTARY
courts must keep this in mind when assessing truth of a statement or to corroborate the
• Aimed at excluding any complaint that was this requirement victim
made as a result of a leading question or
S v S: child raped at school. Did not report it right away • Hence the requirement that the complainant
intimidation
at school. Told mother later that day. Technically first must testify in court
• S v T: PCS of little girl excluded on the basis
reasonable opportunity was to report it at school but
that she was threatened with violence from her
mother to get her to admit that she had been • Child likely more comfortable to tell their mother S58 & S59 DO NOT ALTER THE CL
rape by her step-father. Court failed to take • Likely misunderstood what was happening to
other factors into account when they excluded • Provisions dictate how the courts discretion
them
the complaint such as threats of violence from should be exercised in drawing an inference
S v Cornick: judge highlighted that the absence of in the case of sexual offences and the
the step-father if she reported the incident.
report within a reasonable time after the incident must admission of PCS
➔ S58 and S59 retain this common law
requirement
be taken in context. Incident of rape reported 19 years • Court cannot take one pieve of evidence
later. Court must consider all factors as to why the and draw an inference only on he basis of
(2) COMPLAINANT MUST TESTIFY IN COURT incident was only reported much later. that evidence
• Natural progression because PCS are used to ➔ Common law position is followed by virtue of • All evidence must be considered in its
prove consistency s191 totality
• Exception – S v R ➔ S58 and S59 do not directly abolish the CL • Cannot be considered in a piece-meal
o Elderly woman was raped in ambulance ➔ BUT s58 and S59 must be interpreted as doing fashion
whilst being taken to nursing home away with the first reasonable opportunity
o Upon arrival at the home she complained to requirement
many people that she had been raped ➔ This is because both sections expressly state
o Later at the trial she was unable to recall that the court is not allowed to draw any
what had happened (alcoholic & amnesia) inference (negative) from the delay in reporting
o PCS was admitted not to show consistency the sexual offence
but to show victim was unable to consent ➔ Requirement is abolished
 Jamie Murray Law of evidence summaries

TOPIC 3.1: PRIVATE PRIVILGE

PROTECTION: BAIL PROCEEDINGS

INTRODUCTION PROTECTION: PRE-TRIAL
Accused is still protected against self-incrimination,
Privilege: rule of evidence that allows a witness or Common law rule and S35(5) of the Constitution
therefore even if an accused elects to testify during
holder of privilege to refuse to disclose certain • S35(5) evidence that is relevant can be
bail proceedings they may still elect not to answer if
information or provide evidence about a particular inadmissible if it would render the trial unfair or
it would lead to self-incrimination
subject in court be detrimental to the administration of justice
➔ Protects the interests of individuals • Provision makes distinction between arrested,
S v Dlamini, S v Dladla, S v Joubert and S v
detained and accused persons → accepted that
Schietekat
Competence: has to do with the capacity of a witness to policy and logic determines that s35 must be
testify • Challenged the constitutionality of
read together with the right to legal rep of an
S60(11B)(c) which provides that the record
arrested and detained person and the right to
Compellability: a witness who can be “forced” to testify. of the bail proceedings forms part of the
remain silent should extent to them as well
record of the subsequent trial of the
A non-compellable witness has the right to refuse to • Confirmed by S73 CPA: right to consult a legal
testify in court. Can refuse to enter the witness box accused
rep and right to be advised of this right is
Challenged on 2 grounds –
afforded to both arrested and detained persons
Privilege: witness or holder of privilege to refuse to [1] Compels the accused to adduce evidence if they
• S v Melani: right to fair trial protection exists
disclose certain information or provide evidence about a want to be released on bail (may involve self-
from the inception of the criminal proceedings.
particular subject in court. Still has to enter the witness incriminating evidence) and
Thus the privilege against self-incrimination is
box [2] It is in the interests of justice that the accused
protected from arrest up until the trial
should not be compelled to choose between their
PRIVILEGE AGAINST SELF -INCRIMINATION
right to bail and their privilege against self-
Prohibits a person from being compelled to give Constitutional warnings and suspects
incrimination.
evidence that incriminates themselves • S v Sebjan: the court held that the right to fair CC dismissed both arguments
trial operates at the investigative stage of the
• S60(11B)(c) does not compel the accused
• Protected by s35(3) of the Constitution, S14 criminal process. Therefore suspects are also
to do anything. All the provision requires is
CPEA and SS 203, 217 and 219A of the CPA entitled to the same warnings
that the accused make a difficult decision
➔ CC has yet to confirm this position,
Rationale for protection • Moreover, evidence of the bail proceedings
however, given the nature of SA law and
can fall to be excluded if the trial judge
jurisprudence it is highly likely that this
• Based on presumption of innocence believes it will render the trial unfair in terms
position us correct
• Right to dignity of S35(5) of the Constitution
• Guard against bad police practices ➔ Affirmed in S v Basson
Ascertainment of bodily features
• Encourages witnesses to testify • Rex v Mathamba: privilege against self-
➔ Reinforced by right to remain silent, legal rep incrimination ONLY applied to testimonial PROTECTION: TRIAL PROCEEDINGS
and constitutional warnings utterances
• Sanctioned by S36A, 36B, 36C and 37 • Accused has right to remain silent → court
should not draw a negative inference
 Jamie Murray Law of evidence summaries

• Accused should not be penalised for exercising

WITNESSES IN CIVIL PROCEEDINGS PARENT-CHILD PRIVILGE
a right
• BUT, common law rule: if the State makes a • S14 and S42 CPEA allow a witness to claim S192 CPA: provides that a parent/guardian can be
prima facie case and the accused has not privilege in respect of questions that would compelled to testify against their child and visa versa
given an explanation or defence against that expose them to criminal liability, penalty or ➔ Therefore, such privilege is not recognised
prima facie case, the court can make a finding forfeiture BUT
against the accused on this basis ➔ Broader/wider scope for protection than
• S v Mttetwa & S v Snyman: refusal to testify criminal proceedings SvM
where the prosecution has made a prima facie • Ss 73(1) and (2) read together give the child
case could be a factor in assessing the a right to be assisted by a parent/guardian
PROFESSIONNAL PRIVILEGE from the time of their arrest
accused’s guilt
• S v Thebus: CC held if there is evidence that
SA only recognises legal professional privilege • Parent acting in same way than a legal rep
requires a response and no response is would
forthcoming, the court may be justified in
Rationale: it is in the interest of the administration of • Court held that in this regard, the same
justice in ensuring that all relevant information is before protection that is afforded between a legal
concluding evidence is sufficient in proving the
the court → done by ensuring that clients can consult rep and their client should be applicable here
guilt of the accused
with their legal rep openly and freely

WITNESSES IN CRIMINAL PROCEEDINGS Requirements

(1) Acting in a professional capacity
S203 CPA: No witness in criminal proceedings shall be (2) Communication was made inconfidence
compelled to answer any question by reason that the (3) Advice was sought for the purpose of obtaining
answer would expose them to a criminal charge legal advice
• S v Lwane: witness not warned of existence of (4) The client must claim privilege
s203 and thus gave a testimony which
exposed him as an accomplice to the murder. PROFESSIONAL WAIVER
On appeal, it was found that lack of warning of
the existence of S203 meant the testimony was NB: client must be aware of the existence of their
inadmissible privilege to validly waive it

Extent of right in S204 is modified by the terms of S204 • Waiver can be express, implied or impute
• S204: indemnifies an accomplice who testifies • Legal practitioner will be bound by the waiver
against a co-offender as a state witness
• Thus must answer incriminating questions but MARITAL PRIVILEGE
will be indemnified • Spouses may refuse to disclose
communication that was made while they were
married → persists after divorce wrt
communication made while still married
 Jamie Murray Law of evidence summaries

TOPIC 3.2: STATE PRIVILEGE

INTRODUCTION (1) MATTERS CONCERNING STATE AFFAIRS • The onus should be on the State to show why it
is necessary for the information to remain
• Debates in history about whether the State or
State privilege = common law rule hidden
the courts had the final say as to whether
Allows the state to assert that certain information in its information held by the State was admissible • Court should call for oral evidence and should
possession is privileged from disclosure in court on the permit cross-examination or probe the validity of
• Under the current Constitution we have S165
basis that it is against – • S165 vests judicial authority in the courts and
an objection itself

• Public policy or confirms that we have SOP which cannot (2) THE PROTECTION OF POLICE INVESTIGATING
• The public interest to disclose such tolerate a situation in which the executive has METHODS
information the final say as to matter concerning the
admissibility of evidence in court • Can uphold privilege if it would expose police
Regulated by S202 CPA and S42 CPEA
o S 165: judicial authority and SOP investigation methods = against public policy
If private privilege is claimed, circumstantial or indirect o S 32: right to access to information held by • R v Abelson: police investigating methods is
evidence can be used to prove a particular point/aspect the State considered state information and can be
of the issue → State privilege circumstantial evidence is o S 34: access to courts and the right to a fair privileged
PROHIBITED hearing • Privilege cannot be claimed to hide
State privilege can only be waived by the relevant • Test: whether the disclosure of the information unconstitutionally obtained evidence
Minister as it attaches to the relevant organ of would be in the interests of justice when two or
state/government more competing claims are assessed (3) INFORMERS PRIVILEGE
No question may be asked and no document may be
With private privilege the party themselves must claim Independent Newspaper v Minister for Intelligence received in evidence that would tend to reveal the
the privilege, whereas with State privilege the court can Services identity of an informer or the content of the information
uphold privilege even where the parties do not actually • Judicial peak – court is entitled to examine supplied by them
claim it evidence to establish the extent to which the • Informer may disclose his or her identity
interests of justice are affected → court then provided public policy does not require that the
APPLICATION OF STATE PRIVILEGE
determines if the document should be identity remain secret (public interest outweighs
State privilege applies to – privileged private interest).
• Courts discretion is not ousted by the Requirements –
1. Matters concerning state affairs executive, and the court is not bound by the • Communication between police officer must
2. The protection of police investigating methods ipse dixit or unproven assertions of A Cabinet have been made in confidence
3. Protecting informer’s privilege Member • Confidence must be an important aspect of the
4. Access to information contained in police Swissborough Diamond Mines v Government relationship between informer and
docket • Court is not bound by the ipse dixit of any “controller”/investigator
Cabinet member Privilege is relaxed if –
• The court is entitled to scrutinise the evidence • necessary to show that the accused is innocent,
• The court must balance the extent to which it is or
necessary for the information to remain hidden • where there is no need for secrecy
 Jamie Murray Law of evidence summaries

• If the informers privilege is upheld, not only Does the ruling in Shabalala extend to access to
does accused not have access to information information for bail proceedings –
given by informer, the accused does not have
opportunity to cross-examine the informer in • Access for bail proceedings regulated in
court Section 60(14) of the CPA
• Therefore, in deciding whether the rights of the • Section was enacted to rectify a misconception
accused or interests of the public should prevail, that raised by Shabalala that the defence has
generally look at the question whether informer an extensive/unfettered right to access the
is a material witness police docket even at the bail stage
• States that the accused doesn’t have access to
Els v Minster of Safety and Security information contained in police docket during
• The court must do a limitation analysis to bail proceedings/at bail stage
ascertain if the limitation of the accused’s right
is justifiable. Constitutionality of s 60(14) was decided by CC in S v
• Court must not place too much emphasis on the Dlamini
right of the accused, but rather do careful
balancing of many factors in determining • Held that s60(14) should not be read as
whether the infringement is a reasonable and sanctioning a flat refusal on the part of the
justifiable limitation to the rights of the accused prosecution to divulge information relating to the
• Informer's privilege is that it may be relaxed in pending charges against the bail applicant.
instances where it is material to the ends of • Thus, Section 60(14) vests a discretion in the
justice prosecution to refuse to disclose information
contained in a police docket – but not an
(4) ACCESS TO INFORMATION IN POLICE DOCKET unfettered discretion – court may order
• Prior 1995 the prosecution could refuse the prosecution to lift the veil in order to give a bail
content of a police docket to an accused. applicant a reasonable chance of success
• 'Blanket docket privilege' – R v Steyn during bail proceedings/ opportunity to meet
requirements stipulated by rules on bail.
Shabalala v Attorney General of the Transvaal
• CC reversed the “blanket” rule PAIA
• NB: position in Shabalala also accommodates
s34 of the Constitution which protects the right
to have justiciable disputes settled in a court of • PAIA gives effect to constitutional Right of
law. access to information held by the state and
o The courts need to balance the rights of the other information held by a person which is
accused to a fair trial against the legitimate required for exercise of any right.
claims or interests of the State such as state • Section 7(1) and (2) of PAIA
privilege
•