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LEV3701 - SUMMARY NOTES
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,1
STUDY UNIT 2
Does the word “evidence” only refer to oral evidence? Fully explain.
No, in the sense that evidence concerns oral statements made in court under oath or affirmation or
warning (oral evidence) and documents (documentary evidence) and objects (real evidence)
produced and received in court
Is evidence the only form of evidentiary material? Fully explain with reference to authority.
No, Schwikkard points out that the other forms of evidentiary material are admissions, formal
admissions, judicial notice and presumptions.
1) Admissions — S v Mjoli 1981 (3) SA 1223 (A)
(2) Formal admissions — S v Mokgoledi 1966 (4) SA 335 (A)
(3) Judicial notice
(4) Presumptions — S v AR Wholesalers 1975 (1) SA 551 (NC)
Briefly explain the relationship between “proof” and the law of evidence. (5)
The law of evidence may be defined as that field of law which generally regulates the proof of facts
in court. Proof therefore is central to the entire field of the law of evidence.
Proof : having sufficient grounds for a finding on a point in issue. Proof of a fact means that the court
has received probative material with regard to such fact and has accepted such fact as being the
truth for purposes of the specific case
Evidence : probative (evidentiary) material (oral, documentary or real evidence) which is produced in
court. Evidence of a fact is not yet proof of such fact: the court must still decide whether or not such
fact has been proved.
Evidential material : material which goes to furnish proof
Briefly explain, with reference to the two main branches of the law, how the law of evidence fits
into the general structure of the law.
Or
Explain the difference between substantive law and adjective law and give an example of each.
Into which category does the law of evidence fall? (5)
Substantive law covers one’s rights and obligations. It tells what one may or may not do. Criminal
law is an example of substantive law. Conversely, adjective law (sometimes known as procedural
law) prescribes the general procedure to be followed in court and legal transactions. Criminal
procedure is an example of adjective law. Therefore, the law of evidence is part of adjective law.
STUDY UNIT 3
,2
Explain what is meant by a “residuary clause” in South African law. (3)
A residuary clause determines that foreign law has to be followed on topics for which no express
local statutory provision had been made (Indirect incorporation). These are those sections in South
African statutes which incorporate foreign law into South African law and thereby preserve that part
of foreign law.
Mention the principal provisions of the Constitution of the Republic of South Africa, 1996, that
affect the law of evidence.
Section 35(1) of the Constitution provides that every arrested person shall have the right
(1) to be informed, in an understandable language, that he or she has the right to remain silent,
and about the consequences of making a statement (sec 35(1)(a) and (b))
(2) not to be compelled to make a confession or admission which could be used in evidence
against him or her (sec 35(1)(c))
Section 35(2) provides for the rights of a detained person including the right
(s 35(2)(a)) - to be informed promptly of the reason for being detained
F(s 35 (2)(b)) - to choose, and to consult with a legal practitioner, and to be informed of this right
promptly (s35(2)(c)) - to have a legal practitioner assigned to the detained person by the state and at
state expense if substantial injustice would otherwise result, and to be informed of this right
promptly
Section 35(3) provides that every accused person shall have the right to a fair trial, which includes
the right
(1) to be informed of the charge with sufficient details to answer it (sec 35(3)(a))
(2) to be presumed innocent, to remain silent during the plea proceedings as well as during the trial,
and not to testify during the trial (sec 35(3)(h)) and (3) to adduce and challenge evidence and not
to be a compellable witness against himself or herself (sec 35(3)(I) and (j))
Section 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 would otherwise
be detrimental to the administration of justice.
THE PRESENTATION OF EVIDENCE
STUDY UNIT 4
, 3
Explain the difference between examination-in-chief, cross-examination and re-examination (5)
An examination-in-chief is conducted by the party who called the witness whereas a
crossexamination is conducted by the opponent of the party who called the witness. The purpose of
an examination-in-chief is to put relevant and admissible evidence before the court. Conversely, the
purpose of a cross-exam is to elicit evidence which supports the cross-examiner’s case and to cast
doubt upon the credibility of the opposing party’s witness. The purpose of the re-examination is to
enable the witness to clear up any misleading impressions which may have resulted from the
answers given in cross-examination. Re-examination is similar to examination-in-chief in mainly the
following two ways:
1. it is undertaken by the party that called the witness
2. leading questions are not permissible
It is imperative to note that leading questions may not generally be asked during the examination-
inchief (except on undisputed facts) whereas leading questions may be asked during
crossexamination. One has to take note that, the credibility of a witness may not be attacked during
examination-in-chief (unless the witness has been declared a hostile witness) and the credibility of a
witness may be attacked during cross examination.
List the six requirements that should be met before a witness will be allowed to refresh his or her
memory while in the witness box. (6)
The witness must have personal knowledge of the events recorded.
The witness must have recorded the information personally.
The record must have been made (or checked and verified) while the facts were still fresh in
the memory of the witness.
The witness must be unable to recall fully a matter on which she is being examined.
The document used to refresh the memory while the witness is in the witness box must be
made available to the court and the opposing legal team so that they can inspect it.
Where the witness has no independent recollection of the incident, the original document
must be used.
Explain the practical significance of the phrase: “Each party will be given the opportunity to
address the court in argument”. (5)
This implies that the parties will give the court their assessment of the evidence, and will also argue
the law that may be applicable, in the process referring the court to various sources of the law,
including case law, statutes, textbooks, and so on. They will also refer to the strong points in their
own case, and to the weak points in the case of their opponents, and, in this manner, will attempt
finally to persuade the court to find in their favour.
Fully explain the difference between an “unfavourable” witness and a “hostile” witness. (5)
An unfavourable witness is someone who merely gives unfavourable evidence. To counter this
evidence, the party calling the witness may lead other evidence which may contradict her evidence.
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