INTRODUCTORY LECTURE

As you would have gathered from the study guide, The Law of Evidence is
an extremely important course in the LLB Degree. The study guide sets out
briefly the origins of our law of evidence. You are to read this carefully as
well as read Chapters 6 to 9 and chapter The Law of Evidence in South
Africa Basic Principles, Bellengere, Palmer and others, Oxford, 2nd edition.
These chapters are discussed briefly in the study guide.

RELEVANCE AND ADMISSABILITY

As explained in the study guide Evidence is the information/thing that is

used to prove allegations in a litigious matter. There are different forms and
types of evidence that one can use to prove allegations or points/facts or
law in dispute. In order for one to be able to use evidence in a trial there
are certain pre-requisites and requirements that need to be met before the
Court will admit and accept the evidence.

The golden rule for evidence is that for evidence to be allowed into the
proceedings such evidence must be both relevant and admissible.

WHAT DO YOU UNDERSTAND BY RELEVANCE?

Relevance relates to whether the evidence or facts that we have are in any
way related to or connected to the issues in dispute. In establishing
relevance we have to ask whether the information or evidence will shed
any light on the issues in dispute and whether it will assist the court in its
fact finding mission and in arriving at a verdict/judgment.

WHAT DO YOU UNDERSTAND BY ADMISSABILITY?

Admissibility relates to whether the evidence that is intended to be used

was obtained in a proper manner in accordance with the rules of evidence
and without violating any of the individual’s constitutional rights. To
establish this you will have to consider whether the introduction of such

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evidence will be permitted by the court and whether the court will take such
evidence into account when arriving at the verdict.

Once the evidence is led in a trial the presiding officer will decide on how
much weight to attach to that evidence. Weight is the probative value that
the court assigns to admissible evidence. When establishing the weight of
the evidence the question to be asked is how big an effect such evidence
will have on the verdict.

Section 210 of the Criminal Procedure Act, Section 2 of the Civil

Proceedings Evidence Act and the Common Law provide that no evidence
as to any fact, matter, or thing shall be admissible if it is irrelevant or
immaterial or if it cannot prove or disprove any facts in issue in the
proceedings. This was highlighted in the case of R v Trupedo 1920 AD 58.

Relevance is not the only criteria used to decide whether evidence is

admissible or not. Relevant evidence must conform to the rules of evidence
and the constitutional provisions and requirements. Evidence obtained in
breach of constitutional rights or other rules of evidence must be excluded
from the proceedings if such evidence will render the trial unfair or
otherwise be detrimental to the administration of justice.

Murphy : Practical Approach to Evidence, 6th Edition 1997, states that

the rationale for the exclusion of irrelevant evidence is that the proof of
unrelated facts will not assist the court and may in certain circumstances
cause the court to be prejudiced against one of the parties while such
evidence has no probative value or impact on the issues at hand. Admitting
irrelevant evidence may also lead to the accused being placed in a position
where it could become difficult for the accused to defend himself.

When you adduce evidence it should enable you to achieve a certain result
i.e. it should prove or disprove or assist in proving or disproving a certain
fact in issue or offer some clarity on any issue/point.

McEwan in her book “Evidence and the Adversarial Process: the

Modern Law, 2nd Ed 1998 looks at factors that are taken into account

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when deciding on relevance and admissibility. The following are some of
the factors:

1. One needs to look at what are the facts/issues that need to be dealt
with and the nature and extent of the factual and legal disputes. This
was highlighted in the case of Lloyd v Powell Duffryn Steam Coal
Co Ltd 1914 AC 733.
2. One must consider whether there is a reasonable or proper inference
that can be drawn from the existence of such evidence. Here one
should assess the potential weight of the evidence. One must also
look at whether the evidence intended to be adduced will be of
reasonable assistance to the court in its fact finding exercise. These
principles were highlighted in R v Mpanza and R v Mavuso. In S v
Shabalala the court pointed out that if the weight of the evidence is
so inconsequential and the relevance accordingly so problematic
there can be little point of receiving such evidence.
3. The court should avoid a proliferation or multiplicity of collateral
issues. When looking at this factor the court must look at whether the
admission of the evidence would lead to a protracted investigation
into many collateral or side-issues which will ultimately be of little
probative value in respect of the issues in dispute. This was
highlighted in the case of Houlthauzen v Roodt and S v Nel.
4. The court must guard against the risk of manufactured evidence.
There is always the possibility that a witness can fabricate evidence.
As a result of this risk, evidence of previous statements of a witness
is generally excluded from proceedings.
5. The courts must also consider the possible prejudicial effect of the
evidence intended to be adduced. Evidence which can logically prove
or disprove a fact can be excluded if it has a prejudicial effect on the
party concerned. Evidence is relevant and admissible if its probative
value outweighs its prejudicial effect. In the case of S v Sithole 1980
(4) SA 148 (D) the court remarked that evidence of an accused’s
motive to commit a particular crime is generally relevant for the
purposes of proving intention or identity.

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 6. The courts must be careful not to invoke the doctrine of precedent too
easily. In S v Shabalala the court stated that this doctrine must be
invoked with caution because facts differ from case to case.
Precedent should be just a guideline when dealing with the
admissibility of evidence.
7. When looking at a witness’s evidence the court should allow the
witness to tell a coherent story, therefore it might be necessary for the
witness to give the court a bit of background information regarding
the disputed fact. The court should be careful not to exclude harmless
irrelevant evidence because this irrelevant information might be very
useful when assessing the correctness and probabilities of what the
witness has said.

The South African Law Reform Commission has recommended that

Section 210 of the CPA and Section 2 of the CPEA should be repealed and
the following enactment should be passed:

“A. (1) Relevant evidence, is evidence that, if it were accepted, could

rationally affect (directly or indirectly) the assessment of the
probability of the existence of a fact in issue in the proceedings
(2) Evidence is not irrelevant because it relates only to:
(a) the credibility of a witness: or
(b) the admissibility of other evidence: or
(c) a failure to adduce evidence.

B. (1) Subject to the provisions of any other law, evidence that is

relevant is admissible

(2) Evidence that is not relevant is not admissible.

C. (1) A court may refuse to admit evidence if its probative value is

substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) cause or result in undue waste of time.

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 (2.) When determining whether the probative value of evidence
is outweighed by the risk that evidence will have an unfairly
prejudicial effect, a presiding officer may adopt assumptions or make
generalizations that are in conflict with the constitutional values
embodied in the Constitution of the Republic of South Africa Act 108
of 1996.

D. A court may provisionally admit evidence subject to further

evidence being later offered which may establish its admissibility.”

Whenever the admissibility of evidence is placed in dispute during

proceedings, the main trial is suspended/will stand down and a trial-within-
a-trial will be held to determine the admissibility of the evidence intended to
be adduced. In assessing whether information/potential evidence is
sufficiently relevant to be admitted we should take the following steps:

-identify and state the issue arising from the case that you want the court to
decide on;

- identify and state the exact information you wish to have admitted by the
court;

- Assess whether the information, if admitted, would have the potential to

help the court to draw inferences about the issue.

If the answer to the aforementioned is yes then the information is

considered relevant and will be admitted by the court.

Both criminal and civil courts have the discretion to exclude potential
evidence even if the evidence is relevant and was obtained properly,
lawfully and constitutionally. This was highlighted in the case of Shell SA
(Edms) Bpk en Andere v Voorsitter, Dorperaad van die Oranje-
Vrystaat en Andere 1992 (1) SA 906 (O).

When deciding on the weight of the evidence the court should be guided by
two fundamental principles:

- firstly evidence must be weighed as a whole and in totality and not

on a piece-by-piece basis;
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- The court must first establish which facts it finds have been proven
before drawing inferences should not rely on speculation. The court
will also look at whether there was independent corroboration for that
evidence which is of significant importance; whether the evidence
came from a credible source and whether the evidence is direct or
circumstantial. If the evidence is circumstantial, the court decides
what inferences to draw from such circumstantial evidence.
The inference drawn should be the only reasonable inference that
can be drawn from such evidence.

Students should familiarize themselves with the Doctrine of Recent

Possession which should have been covered during Criminal Law.