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LAW OF EVIDENCE: AN INTRODUCTION

LECTURE 2

Schwikkard & Mosaka: Chapters 3 (Pages 19-28).

Chapter 4 (Pages 29-41).

Constitution: S2

S8(3)

S35

S39

S169

S171

S173

Judgements: Protea Technology v Wainer 1997 (9) BCLR 1225 (W).

Hohne v Super Stone Mining 2017 (3) SA 45 (SCA).

R v Steyn 1954 (1) SA 324 (A).

Shabalala v Attorney General Transvaal 1995 (2) SACR 761

(CC).

Matlou v S 2010 (2) SACR 342 (SCA).

S v Zuma 1995 (2) SA 642 (CC).

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Lee v Minister of Correctional Services 2013 (2) SA 144 (CC).

Certain Amicus Curiae Applications: Minister of Health v

TAC 2002 (5) SA 713 (CC).

Mabaso v Law Society, Northern Provinces 2005 (2) SA (CC).

Prince v President, Law Society of the Cape of Good Hope

2002 (1) SACR 431 (CC).

City of Cape Town v South African National Roads Authority

2015 (3) SA 386 (SCA).

Independent Newspapers v Minister of Intelligence Services:

In re Masetlha v President of the RSA 2008 (5) SA 31 (CC).

S v Tandwa 2008 (1) SACR 613 (SCA).

S v Mthembu 2008 (2) SACR 407 (SCA).

Venter v Birchholtz 1972 (1) SA 276 (A).

De Klerk v Old Mutual 1990 (3) SA 34 (E).

Silostrat v Strydom [2021] ZASCA 93 at para 43.

KPMG Chartered Accountants (SA) v Securefin Limited and

Another 2009 (4) SA 399 (SCA); [2009] 2 All SA 523 (SCA).

University of Johannesburg v Auckland Park Theological

Seminary and Another 2021 (8) BCLR 807 (CC); 2021 (6) SA

1 (CC)
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Legislation: S218(2) of Criminal Procedure Act 51 of 1977.

Constitutional Court Complementary Act 13 of 1995.

Superior Courts Act 10 of 2013.

The Civil Proceedings Evidence Act 25 of 1965.

The Law of Evidence Amendment Act 45 of 1988.

Criminal Procedure Act 51 of 1977.

Electronic Communications and Transactions Act 25 of 2002.

Rules of Court: Constitutional Court Rules 31

SOURCES OF LAW OF EVIDENCE

1. The rules stemming from the common law (The English Law of Evidence) and case

law (reflecting and interpreting the English Common Law) are peculiar because the

legislature has not promulgated them.

2. The case law is binding (stare decisis), making the need to search for the English

Common Law obsolete.

3. Any English cases after 30 May 1961 can be used for considerable persuasive value,

but it would not be binding. Much the same, other countries using the Anglo-

American jurisdictions (using the English Law of Evidence) can be considered, such

as Australia, Canada and the USA.

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4. The Constitution is an important source and plays a significant role in how evidence is

to be interpreted and applied. The Constitution and the Law of Evidence are

inseparable.

5. All legal rules, including the common law rules (English Rules) must align with the

constitution.

a. S39: Courts must promote the spirit, purport and objects of the Bill of Rights

when interpreting legislation and developing the common law.

b. S2: The Constitution is the supreme law- Any law or conduct which is

inconsistent with the Constitution is invalid.

c. S8(3): The Court must develop the common law to give effect to the Bill of

Rights.

d. S35: Rights to arrested, accused and detained- Some of these rights pre-existed

but are now given ‘supreme’ status under the constitution.

6. NOTE: S35 does not find application to civil matters: See Protea Technology v

Wainer 1997 (9) BCLR 1225 (W); Hohne v Super Stone Mining 2017 (3) SA 45

(SCA).

7. S35 gives rights to:

a. Be informed of certain rights: S35(1).

b. Passive defence rights: Right to be presumed innocent [s35(3)(h)], remain

silent [S35(1)(a)], and not be compelled to give self-incriminating evidence

[S35(3)(j)].
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c. Active defence rights: Right to adduce and challenge evidence S35(3)(i)].

d. Right to a fair trial [sS35(3)]: This is the due process right.

8. The right to a fair trial (due process) made important changes to police docket

privilege. Before the advent of the constitution, a blanket police docket privilege was

applied, which protected the contents of a police docket from disclosure without the

consent of the state, see R v Steyn 1954 (1) SA 324 (A). Now:

a. In Shabalala v Attorney General Transvaal 1995 (2) SACR 761 (CC), the

court held that owing to a right to information and to a fair trial [s25(3) of the

interim constitution], a blanker police docket privilege is unconstitutional. The

court introduced a flexible test which provides access to a docket to the

accused if required for a fair trial.

9. An accused has the right to be informed of his/her right to legal representation [S35(1)

(a)] and the right to remain silent, which had a bearing on the admissibility of

confessions and pointing out:

a. Obtaining evidence by unconstitutional means: Matlou v S 2010 (2) SACR

342 (SCA).

b. Accused pointed out the deceased body and hidden murder firearm because he

was assaulted. The court admitted actual pointing out of the body as evidence.

The court a quo found the accused guilty of murder in court a quo. The

accused lodged an appeal to SCA.

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c. S218(2) of CPA allows the actual pointing out and the fact or thing discovered

despite the fact that such pointing out forms part of confession, which is

inadmissible.

d. S218(2) of CPA allows the actual pointing out and the fact or thing discovered

to be admissible despite the fact that such pointing out forms part of

confession, which is inadmissible.

e. SCA held pointing out offended the constitutional rights of the accused and

upheld the appeal on the murder charge.

10. The Constitution had a bearing on the reverse onus:

a. S v Zuma 1995 (2) SA 642 (CC).

b. S217(1)(b)(i)-(ii) of CPA:

i. A confession before a magistrate reduced to writing and/or confirmed

by shall on its mere production be admissible as evidence AND

ii. be presumed to be made freely and voluntarily unless the accused

proves the contrary.

c. S25(2)(c) if Interim Constitution: Right to be presumed innocent.

d. Unconstitutional and invalid.

11. The Constitution also has a bearing on how evidence is presented in the Constitutional

Court:

a. Rule 31 of the Constitutional Court Rules.

b. Previously Rule 34 under the interim constitution.

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c. Issued under section 171 of the Constitution of the Republic of South Africa

1996 and section 16 of the Constitutional Court Complementary Act 1995

(Act 13 of 1995).

d. Rule 31(1):

i. Any party to any proceedings before the Court and an amicus curiae

properly admitted by the court in any proceedings shall be entitled, if

documents lodged with the Registrar in terms of these rules, to canvass

factual material that is relevant to the determination of the issues

before the Court and that does not specifically appear on the record:

Provided that such facts—

1. are common cause or otherwise incontrovertible; or

2. are of an official, scientific, technical or statistical nature

capable of easy verification.

e. This rule does not assist a litigant with adjudicative facts [where the court

embarks on fact-finding concerning the immediate parties (who did what,

where and when and with what intention)] but to legislative facts where the

court is to develop law or policy.

f. If the evidence that the party wish to introduce with Rule 31 is controversial, it

is inadmissible:

 Certain Amicus Curiae Applications: Minister of Health v

TAC 2002 (5) SA 713 (CC).

 Mabaso v Law Society, Northern Provinces 2005 (2) SA (CC)

para 45.

 Prince v President, Law Society of the Cape of Good Hope

2002 (1) SACR 431 (CC) para 11.

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g. So too, if it’s irrelevant:

 Lee v Minister of Correctional Services 2013 (2) SA 144 (CC).

12. S32 (access to information) and s34 (access to courts) have a bearing on State

Privilege: The executive cannot have the final say over the admissibility of evidence

in a court of law, see City of Cape Town v South African National Roads Authority

2015 (3) SA 386 (SCA); Independent Newspapers v Minister of Intelligence

Services: In re Masetlha v President of the RSA 2008 (5) SA 31 (CC).

13. The Constitution had a big impact on the admissibility of evidence obtained in an

unconstitutional fashion: See s35(3).

a. Evidence obtained in a manner that violates any right in the Bill of Rights

must be excluded if the admission:

(i) Render the trial unfair OR

(ii) Is detrimental to the administration of justice.

b. Not automatically excluded: S v Tandwa 2008 (1) SACR 613 (SCA) para

116.

c. This is also known as the fruit of the poisonous tree:

i. See S v Mthembu 2008 (2) SACR 407 (SCA) para 22.

14. That is not to say that the legislature had no say in the Law of Evidence. Numerous

pieces of legislation govern the Law of Evidence in the RSA, including:

a. The Civil Proceedings Evidence Act 25 of 1965.

b. The Law of Evidence Amendment Act 45 of 1988.

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c. Criminal Procedure Act 51 of 1977.

d. Electronic Communications and Transactions Act 25 of 2002.

15. Where the existing legislation is mute on the evidence rules, the English common law

applies.

HISTORY
16. Pre-Union period: The Dutch occupied the Cape of Good Hope (from 1652), and the

British occupied the Cape of Good Hope (from 1806).

17. The British left the governing Roman-Dutch Law in place, but there was growing

discontent with the procedural law and the law of evidence, which, in the end,

resulted in the English/British Law of Evidence being adopted in the Cape of Good

Hope and some other colonies in 1830: See the Cape Evidence Ordinance 72 of 1830.

18. When the British seized the Transvaal Province in 1902, the Evidence Proclamation

16 of 1902 was issued.

19. In the same year (1902), the Orange Free State became subject to British Rule. The

Evidence Proclamation 11 of 1902 was adopted.

20. Union: In 1910, the four colonies became the four provinces of the Union of South

Africa.
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21. The provisions in the colonial statutes dealing with law of evidence in criminal

procedure and Evidence Act 31 of 1917 which Act was later replaced by the Criminal

Procedure Act 56 of 1955. Where the Act did not cover a specific question, the

English Law applied.

22. Republic: South Africa became a Republic on 31 May 1961; there had been a desire

for independence from Britain.

23. As a result, reference to ‘England’ was removed from the legislation, such as from the

Criminal Procedure Act of 1955 and instead replaced it with ‘the law as it stood on 30

May 1961’. This was, however, obviously the British law.

24. In 1977, the Criminal Procedure Act was replaced by the CPA, which still applies

today and retained the reference to the law as it stood on 31 May 1961.

25. Also, the local courts developed a system of precedents with respect to the law of

evidence:

a. The SCA may exceptionally depart from the pre-30 May 1961 English

decisions if these decisions reflect the English law incorrectly.

b. Decisions of the Supreme Court of Judicature or the House of Lords, if they

are not wrong, bind the SCA.

c. The SCA replaced the Privy Council in 1950, and decisions before 1950 are

deemed to be SCA decisions.

d. South African practice will be followed on a specific point, even if it differs

from the English Evidentiary Rule if it is an established procedure.

e. English decisions after 30 May 1961 have persuasive value.

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26. All the Civil proceedings in the various colonial were only consolidated when the

Civil Proceedings Evidence Act was enacted.

27. S42 provides that with respect to competency, compellability, examination and cross-

examination, which was in force in civil matters as of 30 May 1961, shall apply if the

CPEA does not govern a specific question.

THE LAW OF EVIDENCE & SUBSTANTIVE LAW

28. Substantive Law: Legal rules setting out the rights and duties of parties. It goes to the

‘ends’ that the administration of justice wishes to achieve.

29. Adjective law: The procedural rules regulating how the substantive law is enforced. It

goes to the ‘means’ or the ‘how’ the ends will be achieved.

30. The distinction is not always an easy one: The procedural law also gives birth to

certain rights, such as the right to call expert witnesses, the right to cross-examine a

witness, the right to adduce and challenge evidence, etc. and duties such as the duty to

discover.
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Why might this distinction be relevant?

31. The substantive law originates from the Roman-Dutch Law.

32. The adjective law originates from the English Law.

33. The answer to a legal question may be different when the substantive law applies, as

opposed to the adjective law.

34. Take Tregea v Godart 1939 AD 16 as an example:

a. Case dealing with the burden of proof in a dispute about the validity of a will.

The question was: Did the testator have the necessary mental faculties

required to make a will?

b. The Plaintiff argues that the testator did not have the necessary mental

faculties.

c. The Defendant argues that the testator did have the necessary mental faculties.

d. If the question was one of substantive law (Roman Dutch Law), a presumption

finds application.
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e. It is presumed that a will, regular on the face of it, is valid. This will help the

Defendant and place the burden of proof on the Plaintiff.

f. If the Law of Evidence (Adjective Law) applies, a rule of evidence applies that

the burden of proof is on the Defendant. This will help the Plaintiff.

g. The SCA held that substantive law dictates what must be proven and by

whom, whilst the Law of Evidence dictates how that is to be done.

h. The dispute about the mental faculties of the testator went to the substantive

law. The onus was on the Plaintiff.

35. Schmidt & Rademeyer criticize this judgement, saying that substantive law sets out

the rights and duties of parties, determining the facta probanda. The burden of proof

does nothing of the sort. It instead has to do with the manner in which facts are

proved.

36. Schwikkard & Mosaka say that it is more accurate to refer to the burden of proof

depending on (or varies) according to the common law as opposed to being

determined by the common law.

37. This concept belongs to the Law of Evidence (Adjective Law).

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Irrebuttable presumptions

38. Irrebuttable presumptions apply when certain founding facts are proved.

39. Once the founding facts are proved, the court may rely on the presumption (further

facts).

40. Because it is irrebuttable, no party can adduce evidence to rebut the evidence.

41. On the face of it, the rules regarding an irrebuttable presumption appear to represent

the Law of Evidence, but in reality, they represent rules of substantive law.

42. A child under 7 is irrebuttable presumed to lack delictual accountability.

Estoppel

43. Where a false representation is made to another person who believes the

representation and acts upon the false belief, the person making the false

representation cannot rely on it being false- He is estopped from relying on the truth.

44. A landlord who may exercise a right to cancel the lease falsely inform the tenant that

the lease will not be cancelled. The tenant then spends money to improve the property.

The landlord may be estopped from relying on the right to cancel the lease.
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45. This is a rule of substantive law.

46. Res judicata: Estoppel by judgement. A court had already pronounced on a dispute.

The same issue (cause) between the same parties seeking the same relief may not be

raised again.

47. Early authorities referred to Estoppel as a Rule of Evidence. It is expressed as an

exclusionary rule in the following terms:

“The person who made the false representation may not adduce evidence at

variance with the representation”.

or

“Evidence may not be led in contradiction of a judgement”.

48. Estoppel had even been expressed as an irrebuttable presumption:

“The judgement of the court is presumed to be correct”.

49. The correct approach is that estoppel is a Rule of the Substantive Law and not a Rule

of Evidence.

50. Estoppel is a defence couched in the substantive law and must be pleaded.
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51. Because of the rules of the Substantive Law, evidence that contradicts the existing

judgement or the misrepresentation becomes irrelevant.

52. It is not inadmissible evidence because it is an exclusionary rule.

Parol Evidence Rule

53. This Rule is derived from the English Law (although open to serious doubt) to ensure

certainty of the contractual terms.

54. In terms of this Rule, when the parties enter into a written agreement, the original

document is the only source of the contractual terms, and no extrinsic evidence may

be adduced to interpret the written contract.

55. Extrinsic means any other evidence beyond the original written contract itself.

56. The Parol Evidence Rule is divided between the Integration and Interpretation Rules.

57. The Integration Rule: This rule defines the limits of the contract. It is the embodying

of the terms of a jural act from scattered parts in a single memorial and the scattered

parts in their former and inchoate shape have no jural effect.

a. The aim is to limit uncertainty when the court must interpret the terms of the

contract.
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b. Courts may have difficulty balancing the rule with the need to admit

contextual evidence to properly understand and interpret contracts.

c. Contextual evidence will readily be accepted if it shows the meaning of a

specific term or contextualises the contract.

d. NOTE: Such evidence may not modify the meaning of the clear and

unequivocal words of the contract: See Silostrat v Strydom [2021] ZASCA 93

at para 43. & KPMG Chartered Accountants (SA) v Securefin Limited and

Another 2009 (4) SA 399 (SCA); [2009] 2 All SA 523 (SCA).

e. The SCA in City of Tshwane v Blair Atholl Homeowner Association 2019 (3)

SA 398 (SCA) at para 64 held that the court a quo allowed inadmissible

contextual evidence, which resulted in the court relying less on the precise

wording of the contract.

f. The SCA further held that prior negotiations to the contract are irrelevant and

inadmissible, as they have no legal consequences.

58. The Interpretation Rule: This rule provides when extrinsic evidence may be

exceptionally presented to provide context to the contractual terms and the extent to

which evidence may be led.

a. As a general rule, courts rely exclusively on the text of the contract when

interpreting the contract.

b. The court may turn to the context of the words and phrases as they appear in

the written agreement by considering the background circumstances and/or

extrinsic evidence about the surrounding circumstances, if the language used,

appears ambiguous.
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c. In University of Johannesburg v Auckland Park Theological Seminary and

Another 2021 (8) BCLR 807 (CC); 2021 (6) SA 1 (CC), the court held that

extrinsic/contextual evidence should be used as sparingly as possible. If there

is a dispute about the admissibility of extrinsic surrounding circumstances, the

court’s approach should be to admit the evidence should admit such evidence

on the basis that the court may still decide what weight to attach to the

evidence.

59. According to Zeffert & Paizes, on proper analysis, the Rule is one of substantive law

relates to the nature and scope of a jural act AND NOT MERELY THE

ADMISSIBILITY OF EVIDENCE. The rules cannot thus be said to belong to the

Rules fo Evidence because the Parol Evidence Rule deal with substantive law.

60. Extrinsic evidence is excluded because it is irrelevant, owing to the Parol Evidence

Rule (a substantive rule), not because of an exclusionary rule.

61. As in De Klerk v Old Mutual 1990 (3) SA 34 (E), the document constitutes the jural

Act, and it follows that any other action of the parties that accompanied the jural act,

as a matter of substantive law, is not part thereof.

62. The view that estoppel is part of the substantive law has found some acceptance in

case law, see Venter v Birchholtz 1972 (1) SA 276 (A).

63. Exceptions to the Parol Evidence rule:

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a. Where the written contract does not encapsulate all the contract terms (partial

integration).

b. A mere narration of an event which is not a jural act (a memorandum).

c. The rule does not exclude evidence that clarifies the true nature of the

transaction: To show that the real transaction was something different as

portrayed in the actual written document. The contract was drawn up as a sale

but, in reality, is a pledge.

d. Evidence to show that the contract is invalid cannot be excluded, owing to

fraud, for example.

e. When applying for rectification (asking the court to adjust the terms to reflect

the true intention of the parties). Extrinsic evidence is then admissible to show

the true intention of the contractual parties.

f. To prove the existence of a prior oral agreement or an oral continuing

intention when moving for rectification.

END