[No Title]
Part I
INTRODUCTION AND SOURCES
Chapter 1
Definitions, sources and the Constitution
A
Definitions
B
Sources
1
The colonial law
(a)
Cape Colony
(b)
Natal
(c)
Transvaal
(d)
Orange Free State
2
The law after Union
3
Republic until the interim Constitution
4
Consolidation
5
The residuary sections
6
Interim Constitution
7
The Constitution of 1996
(a)
Application of the Constitution
(b)
Interpretation
(c)
Validity - infringement and justification
(d)
Constitutional inadmissibility
Part II
PROOF
Chapter 2
The South African evidentiary system and theories of proof
1
The role of the Constitution
2
The rationalist tradition
3
The philosophy of proof
4
The relation between the rules of evidence and the science of proof
Chapter 3
The onus of proof
1
Introduction
2
Comparing the criminal and civil onuses
3
Pillay v Krishna
4
What does the onus relate to: 'facts', 'issues' or both?
Model A
Model B
5
Observations on comparing the two models
6
A closer look at the onus in cases of defamation
7
Concluding remarks on the defamation cases
8
Exploring the policies underlying the incidence of the onus
9
Conclusion
Chapter 4
Circumstantial evidence and inferential reasoning
1
The cardinal rules of logic set out in R v Blom
2
Probability theory and inferential reasoning
Chapter 5
Cogency and proof, aspects of the onus of proof, the evidentiary burden, the meaning of "prima facie" and other topics relating to proof
1
The evidentiary burden to adduce evidence in rebuttal
2
Prima facie proof and prima facie evidence
3
Failure to rebut or explain
(a)
Failure to give evidence
(b)
The rule in Galante v Dickinson
(c)
Facts peculiarly within the knowledge of a party
(d)
Giving false evidence
(e)
The right to begin and the shifting of the evidentiary burden during the trial
4
Examples of prima facie evidence
5
Demeanour
6
Factual disputes and credibility
7
Evidence of identity
(a)
Direct evidence
(i)
Fallibility
(ii)
Assessing cogency
(iii)
Identification parades
(iv)
Identification by photographs
(v)
Voice identification
(vi)
Legal representation at parades
(vii)
Circumstantial evidence of identity
8
The alibi defence
9
Discharge of the onus in criminal proceedings
10
Marriage
(a)
Proof of marriage generally
(b)
South African marriages
(c)
Foreign marriages
11
Convictions and acquittals
12
Civil judgments
(a)
Of superior courts
(b)
Of magistrates' courts
13
The duty to begin
(a)
Who has to begin?
(b)
What burden must be discharged?
14
Affidavits and motion proceedings
Chapter 6
Presumptions
A
Classification of presumptions
1
Irrebuttable presumptions of law
2
Presumptions of fact
3
Rebuttable presumptions of law
B
Some assorted presumptions
1
The presumption of innocence, the right to silence, and the reverse onus
2
The natural consequences of acts
3
Marriages
(a)
Presumption of formal validity
(b)
Proof of marriage by cohabitation and repute
(c)
Presumption of essential validity
(d)
Matrimonial property
(e)
Statutory presumptions in bigamy cases
(f)
Statutory provisions in incest cases
4
Legitimacy
5
Paternity of children
6
Sanity
(a)
Criminal cases
(b)
Civil cases
7
Regularity
(a)
Posting of letters
(b)
Receipt of letters
(c)
Private couriers
(d)
Service by registered post
(e)
Formal validity of official acts
(f)
Formal validity of private acts
(g)
Appointment to public office
8
Res ipsa loquitur
(a)
The res ipsa loquitur situation
(b)
Absence of an explanation
(c)
What sort of explanation?
9
Donations
10
Death
11
Documents
12
Sterility
13
Other presumptions
14
Statutory presumptions
(a)
"Shall be prima facie evidence" or "shall be prima facie proof"
(b)
"In the absence of evidence to the contrary"
(c)
"Unless the contrary is proved"
(d)
Possession of stolen goods, stock or produce
(e)
Foreign law and indigenous law
(f)
“Conclusive proof” and “sufficient proof”
Part III
ADMISSIBILITY
Chapter 7
Relevance and admissibility
1
The meaning of relevance
2
The inclusionary rule
3
The exclusionary rule
4
Irrelevant evidence excluded
Chapter 8
Character
A
The character of the accused
1
Good character
2
Bad character
(a)
Cross-examination of the accused
(b)
Cross-examination of character witnesses
(c)
Evidence of bad reputation
3
Evidence of disposition or similar facts
4
Previous convictions
5
Statutory exceptions
(a)
Offences involving evidence of previous convictions
(b)
Receiving stolen property
6
The accused as a witness
(a)
The scope of the prohibition
(b)
Lifting the shield
(c)
Receiving stolen property
(d)
Judicial discretion
B
Character of the complainant
1
Rape or indecent assault
(a)
Common law
(b)
Statutory reform
2
Criminal injuria
C
Character in civil cases
1
Seduction
2
Defamation
3
Miscellaneous
D
Character of witness
Chapter 9
Similar facts
1
Introduction
2
Criminal cases
(a)
Statement of the rule by the courts: the Makin formulation
(b)
Illustrations
(c)
Rationale for a Makin type formulation
(d)
Problems of formulation and subsequent developments
(e)
What is in issue?
3
Examples
(a)
Acts part of the transaction or res gestae
(b)
Previous course of dealing
(c)
Presence at a place, possession of a weapon, etc
(d)
Motive
(e)
Sexual passion
(f)
Acts of preparation
(g)
Corroboration of a witness on a material point
(h)
Corroboration of a confession on a material point
(i)
Knowledge
(j)
Intent
(k)
Design or system
(l)
Accident or mistake
(m)
Identity
(n)
Innocent association
(o)
Innocent possession
(p)
Similar evidence of different counts
(q)
Proving the actus reus
4
Commentary
Chapter 10
Opinion
A
Formulation of the opinion rule
1
Introduction
2
Traditional formulation
3
The Vilbro approach
4
Ultimate issues
5
Stating inferences to save time
B
Expert evidence
1
Procedure
2
Qualification of expert
3
Form of expert evidence
4
Value of expert evidence
5
The duties of expert witnesses
6
Illustrations
(a)
Psychologists, psychiatrists, social workers, accountants, etc
(b)
Handwriting
(c)
Fingerprints and palmprints
(d)
Footprints
(e)
Tool marks and ballistics
(f)
Foreign law and indigenous law
(g)
Intoxication
C
Non-expert opinion
D
The rule in Hollington v Hewthorn
Chapter 11
The parol evidence rule
A
Conclusiveness
1
Contracts reduced to writing
(a)
The integration rule
(b)
Partial integration
(c)
The theory of integration
(d)
Memoranda
(e)
Validity of transaction
(f)
True nature of transaction
(g)
Additional terms and collateral agreements
(h)
Suspensive conditions
(i)
Terms implied by trade usage
(j)
Additional parties
(k)
Subsequent variation or rescission
(l)
Does the rule bind third parties?
(m)
Rectification
2
Writing required by law
3
Negotiable instruments
4
Judgments and awards
5
Wills
B
Interpretation
1
General rule
2
The standards of interpretation
(a)
Normal usage
(b)
Specialised usage
(c)
Private usage
3
Relevance of extrinsic evidence
(a)
For the purpose of identification
(b)
As circumstantial evidence of intention
(c)
As direct evidence of intention
4
The sources of ambiguity
(a)
Inadequacy of expression
(b)
Misdescription
(c)
Equivocation
Chapter 12
The best evidence rule
Chapter 13
Hearsay
A
Introduction
B
The Law of Evidence Amendment Act 45 of 1988
1
Introduction
2
Definition of hearsay
3
Does section 3 create a legal rule or a discretion?
4
Admissibility
(a)
By agreement
(b)
Where the declarant or actor testifies
(c)
In the interests of justice
(i)
The nature of the proceedings
(ii)
The nature of the evidence
(iii)
The purpose for which the evidence is tendered
(iv)
The probative value of the evidence
(v)
The reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends
(vi)
Any prejudice to a party which the admission of such evidence might entail
(vii)
Any other factor which should in the opinion of the court be taken into account
5
Procedural fairness and section 3(1)(c)
6
The constitutionality of section 3
7
The status of the common law and statutory exceptions pre-1988
8
The statutory exceptions
(a)
Part VI of the Civil Proceedings Evidence Act 25 of 1965
(i)
Statement
(ii)
Document
(iii)
The original document
(iv)
The person who made the statement
(v)
Personal knowledge
(vi)
Continuous record
(vii)
A duty to record information supplied to him or her
(viii)
Section 34(3)
(ix)
Statement made by a person
(x)
Person interested
(xi)
When proceedings were pending or anticipated
(xii)
Section 34(5)
(xiii)
Discretionary admission
(xiv)
Weight and sufficiency of a statement admitted under section 34
(b)
Business records in criminal proceedings
(c)
Computer evidence
(d)
Affidavits and certificates
(e)
Documents of an association of persons
(f)
Absence from the Republic
(g)
Bankers' books
(h)
Company records
(i)
Proof of age
(j)
Public documents
(i)
Made by a public official
(ii)
Execution of a public duty
(iii)
Public use and access
(k)
Evidence in former proceedings
Chapter 14
Previous consistent statements
Chapter 15
The res gestae
A
The relevance aspect
B
Statements
1
Statements that accompany and explain a relevant act
2
Spontaneous statements
(a)
At common law
(b)
Under section 3 of the Law of Evidence Amendment Act 45 of 1988
3
Statements which prove state of mind
(a)
Proof of state of mind generally
(b)
Statements of intention
4
Statements which prove physical sensations
Chapter 16
Informal admisssions and confessions
Part 1
Requirements for admissibility
1
Relevance
(a)
Positive conduct
(b)
Statements made by one person and adopted by another
(c)
Negative conduct or silence
(i)
Criminal cases
(ii)
Civil cases
(d)
Failure to answer letters
2
Made by person against whom it is tendered: the problem of vicarious admissions
3
Constitutional requirements
(a)
Introduction
(b)
Historical background
(c)
The present position: the 1996 Constitution
4
Other statutory requirements
A
Admissions: section 219A
1
Admissibility
(a)
Threat or promise
(b)
Person in authority
2
The onus of proof
B
Confessions: section 217
1
Introduction
2
The meaning of a confession
(a)
Generally
(b)
Incriminating statements intended to be exulpatory
(c)
Statements amounting to confessions to other offences
3
Requirements for admissibility
(a)
Freely and voluntarily
(b)
Sound and sober senses
(c)
Without having been unduly influenced thereto
(i)
Interrogation
(ii)
Detention
(iii)
Non-compliance with the Judges' Rules
(iv)
The treatment of juveniles
4
The onus of proof
5
Judicial discretion
6
Inadmissible confessions which "become admissible": the effect of section 217(3)
C
Pointings out: section 218
Part 2
Procedure: trial within a trial
1
Purpose of this procedure
2
By whom is it conducted?
3
When is it held?
4
Multiple accused
5
What is the effect of the insulation of the admissibility inquiry at a trial within a trial?
6
The status of a determination made at a trial within a trial
Part IV
PRIVILEGE
Chapter 17
Privilege
Introduction
(A)
The privilege against self-incrimination and the right to silence
(a)
The privilege of the witness against self-incrimination
(i)
The rules
(ii)
History and rationale
(iii)
Nature and scope of the privilege
(iv)
Requirements for successful claim of privilege
(v)
Duty of the court to warn the witness
(b)
The right of the accused to remain silent
(i)
The consequences of remaining silent during trial
(ii)
The pre-trial silence of the accused in general and the failure to disclose an alibi in particular
(iii)
The admissibility of bail application proceedings at the trial
(iv)
The staying of civil proceedings by a person charged with a criminal offence
(v)
Compelled extra-curial incriminatory evidence emanating from the accused but not amounting to an admission or confession: fingerprints, footprints, handwriting, demonstrations, etc
(vi)
Intercepted extra-curial communications
(vii)
Anton Piller orders
(viii)
Pre-trial, extra-curial and other statutory procedures or inquiries which ostensibly curtail the right to silence or the right against self-incrimination
(B)
Legal professional privilege
An overview
History of the privilege
Rationale of the privilege
The nature of the privilege
The privilege and the Constitution
(a)
The collision between the privilege and other rights
(b)
Remedies for breach of privilege
Principles and rules governing the operation of the privilege
(a)
Requirements for the operation of the privilege
(i)
The legal adviser must have been acting in his or her professional capacity
(ii)
The legal adviser must have been consulted in confidence
(iii)
The communication must have been made for the purpose of obtaining legal advice
(iv)
The advice must not facilitate the commission of a crime or fraud
(b)
Inspection of documents by the court
(c)
Claiming the privilege
(d)
Waiver
(e)
Secondary evidence of privileged communications
(f)
Communications between the legal adviser or the client and agents or third parties
(g)
Other professional privileges?
(C)
The litigation privilege: the privilege attaching to materials obtained in anticipation of litigation (including a consideration of the statements of witnesses and the "docket privilege")
General and background
Rationale of the privilege
Requirements for claiming the privilege
(a)
Submission to legal adviser
(b)
Anticipation of litigation
Scope of the privilege
Waiver of the privilege
Disclosure on the ground of ethical considerations
The "docket privilege" and the Constitution
(i)
Introduction
(ii)
The decision of the Constitutional Court in Shabalala
(a)
Access to police dockets
(b)
Consultation with state witnesses
(iii)
The post-Shabalala cases
(iv)
Commentary on Shabalala and the "docket privilege"
(v)
The onus of proof
(D)
The "negotiations privilege": the "privilege" relating to statements without prejudice
(E)
Marital and related privileges
Spouses
(a)
Communications from the other spouse
(b)
Extension of other privileges
Ex-spouses
Questions tending to prove adultery or stuprum
Part V
PUBLIC POLICY (Illegally and Unfairly Obtained Evidence and State Privilege)
Chapter 18
Illegally and improperly obtained evidence
A
Introduction
1
The arguments for and against the admission of improperly obtained evidence
2
Approaches to the admissibility of improperly obtained evidence
B
The position In South Africa prior to 27 April 1994
C
The position in South Africa from 1994-1997
D
The law today: the position under the final Constitution, 1996
E
Traps
F
Civil cases
Chapter 19
State privilege and public policy
A
State privilege
1
Prior to 1996
(a)
Security of the state
(b)
Public interest not affecting state security
2
The position after 15 November 1996
(a)
General
(b)
The Promotion of Access to Information Act (or PAIA)
B
The protection of law enforcement: the privilege relating to police methods and informers
(a)
Communications tending to expose the methods used to investigate and combat crime
(b)
Communications tending to reveal the identity of an informer
C
Judicial proceedings
(a)
Evidence of judges
(b)
Evidence of advocates or attorneys
(c)
Evidence of arbitrators
D
Income tax and other statutes
Part VI
MACHINERY OF PROOF
Chapter 20
Competence and compellability of witnesses
A
Competence and compellability of witness
1
Witnesses who refuse to testify
2
Everyone presumed competent and compellable
B
Incompetent or non-compellable witnesses
1
Incapable witnesses
(a)
Mentally disordered and intoxicated persons
(b)
Children
2
Persons concerned in judicial proceedings
(a)
Judge or magistrate
(b)
Prosecutor
(c)
Attorney or counsel
3
The accused
(a)
As a witness for the defence
(i)
Statutory competence
(ii)
As witness for a co-accused
(iii)
Incrimination of co-accused
(b)
As witness for the prosecution
(i)
Nolle prosequi
(ii)
Plea of guilty
(iii)
Acquittal
(iv)
Separation of trials
4
The accused's spouse
5
Miscellaneous
Chapter 21
Documentary evidence
1
Production of the original
(a)
General rule
(b)
Meaning of "original document"
(c)
Exception for admissions
(d)
Proof of status or relationship
(e)
When secondary evidence is admissible
(i)
Document in possession of opposing party
(ii)
Document in possession of a third party
(iii)
Document lost or destroyed
(iv)
Production of original impossible or inconvenient
(v)
Public documents
(vi)
Official documents
(vii)
Bankers' books
(viii)
Other statutory provisions
2
Proof of authenticity
(a)
General rule
(b)
Attested documents
(c)
Exceptions to the general rule
(i)
Public documents
(ii)
Other statutory exceptions
(iii)
Ancient documents
(iv)
Foreign documents
3
The Stamp Duties Act
4
The Electronic Communications and Transactions Act
Chapter 22
Real evidence
1
Personal appearance
2
Photographs, films, video films and sound recordings
3
Inspections in loco
4
The evaluation of things observed; expert testimony; and demonstrations
5
Computer and machine-generated evidence
6
Blood tests, tissue typing and DNA identification
7
Production and absence of real evidence
Chapter 23
Judicial notice
1
Notorious facts
(a)
Matters of general knowledge
(b)
Matters of local notoriety
2
Facts readily ascertainable
(a)
Political matters
(b)
Historical facts
(c)
Maps
3
Legal matters
(a)
Statutes and ordinances
(b)
Third-tier legislation
(c)
Common law
(d)
Trade usage
(e)
Custom and foreign law
(i)
General customs
(ii)
Foreign law and indigenous customs
4
Constitutional matters
Chapter 24
The rules of trial
A
Evidence before trial
1
Evidence at preparatory examination
2
Evidence on commission
(a)
In criminal cases
(b)
Criminal cases: persons in a foreign state
(c)
In civil cases
3
Interrogatories
4
Evidence on affidavit
5
Perpetuation of testimony
B
The order of evidence
C
Oaths and affirmations
D
Examination-in-chief
1
Leading questions
(a)
Prohibition
(b)
Exceptions
2
Refreshing memory
(a)
When "refreshing memory" is allowed
(i)
Authenticity
(ii)
Contemporaneity
(iii)
Original documents
(iv)
Production
(b)
Evidential value of document
3
Unfavourable and hostile witnesses
(a)
Evidential in contradiction
(b)
Previous inconsistent statements
(c)
Hostile witnesses
E
Cross-examination
1
Who may be cross-examined?
2
The limits of cross-examination
(a)
Cross-examination to the issue
(b)
Cross-examination to credit
3
Failure to cross-examine
4
Previous inconsistent statements
5
Cross-examination to credit: finality of answers
(a)
The general rule
(b)
Exceptions
(i)
Previous convictions
(ii)
Bias
F
Re-examination
G
Evidence impeaching credit
H
Procedural matters relating to cross-examination
I
Witnesses called by the court
1
Criminal cases
2
Civil cases
J
Evidence out of time
1
Evidence in rebuttal
2
Late evidence generally
3
Evidence on appeal
4
The Constitutional Court
K
Trial with assessors
1
Fact and law
2
Rulings on admissibility
L
Appeals
1
Criminal appeals
(a)
Irregularities
(b)
Appeal on the facts
2
Civil appeals
3
Formal admissions
(a)
Civil actions
(b)
Criminal proceedings
(c)
Formal admissions as informal admissions
Part VII
CORROBORATION AND CAUTION
Chapter 25
Corroboration and cautionary rules
A
Corroboration
1
Confessions
2
Breach of promise of marriage
3
Seduction
B
Cautionary rules
1
Cautionary rules in general
2
Single witnesses
3
Accomplices
(a)
Accomplices and quasi-accomplices
(b)
Indications of trustworthiness
(i)
Corroboration
(ii)
Other factors
4
Sexual cases
5
Young children
6
Claims against estates of deceased persons
7
Police traps, spies and informers
8
Inquiry agents
9
Prostitutes
C
The nature of corroboration
1
Failure to testify
2
False statements
3
Similar conduct
Table of statutes
Table of cases
Index


Top