Summary lev3701-study-notes. MUST READ.

Learning unit 1 OVERVIEW OF THE LAW OF EVIDENCE The presentation of evidence - Oral evidence - Given by a witness, delivering her testimony from the witness box. - Certain questions may be asked by the various parties, and others may not - Real things - may also be presented to the court as evidence. - Often the information that is contained in some kind of document may be required, but documents cannot simply be handed to the court since many requirements need to be met before a document can be used. - For one, the court generally needs to know that the document is indeed what it claims to be. - With modern technology evidence might be available in forms that do not fit into any one of the traditional categories. - The law of evidence still does not know exactly how to deal with these forms of evidence, even though new legislation in this regard has recently been passed. - Finally, in certain cases, the court will accept some information without any evidence being presented on it; the court will simply take notice of well-known or easily determined facts, or some legal rule may provide for the presumption of a fact. The admissibility of certain types of evidence - Essential to know what evidence will be admissible and what will not. - Admissible evidence - Can be used to prove one’s case - Inadmissible evidence - Cannot be used to prove one’s case. - It serves no purpose to attempt to offer clearly inadmissible evidence in court as it will simply be thrown out by the court who has to make the factual findings. 1 Downloaded by Neo Lemao () lOMoARcPSD| - However, in many instances it may not be clear whether the evidence will be admissible or inadmissible. - It is then for the court to decide whether or not to allow the evidence and, in order to do so, it has to apply the existing legal rules and principles to the questions before it. - The basic principle is that all available evidence should be used in proving the case. - Only if there is some reason for excluding (or disallowing) evidence, can it be excluded. - Evidence can be admissible only if it deals with the problem in question (if it is relevant) - Evidence concerning a prior statement by a witness that merely serves as corroboration for herself is inadmissible - Evidence that merely deals with the character of a witness or a party rarely has any bearing on the question at hand, and is usually inadmissible - A witness should generally tell of her first-hand experiences and not of what she learnt from others (hearsay evidence) - A witness may not give evidence which amounts to taking over the court’s function of having to reach a conclusion (opinion evidence) - People who incriminate themselves (through admissions and confessions) have to do so absolutely voluntarily, otherwise those incriminating statements cannot be used against them - Some evidence may be excluded simply because some higher value is believed to be protected by such exclusion (privilege) - Evidence acquired in violation of the Bill of Rights in the Constitution may often have to be excluded The evaluation of evidence - Consider the evaluation by the court of the evidence presented in order to reach its decision. 2 Downloaded by Neo Lemao () lOMoARcPSD| - Once all the (admissible) evidence has been presented, it is the task of the court to evaluate this evidence in order to reach its findings. - It has to consider: o the weight of the evidence. o In this process, it has to determine which party has the burden of proof, and what the extent of this burden is – the amount (measure) of proof required in criminal cases is much greater than in civil cases. In the evaluation of evidence, the weight of the evidence is often determined by questions such as whether it is direct evidence of the questions in issue or merely circumstantial evidence; whether there are reasons to be cautious about the evidence; and the extent to which the various bits and pieces of the puzzle fit together and support and strengthen (corroborate) one another. THE INEXACTNESS OF THE LAW OF EVIDENCE - The law of evidence provides only the basic tools to enable the court to deal with all the difficult decisions it has to make. - At best, it is an inexact science which has to attempt to govern thousands of different possibilities that come up in every case. - The answers provided by the law of evidence are often rather vague, in which case a student of the law of evidence should not try to find exact answers. THE IMPORTANCE OF THE LAW OF EVIDENCE - The importance of the law of evidence is beyond argument. - It does not matter whether the case is a criminal or a civil case; deals with the interpretation of a deceased person’s will; the terms of a contract; an application for an interdict to prevent someone from doing something; or a claim for damages of whatever nature: the law of evidence is always applicable. 40 Part 1 General concepts and sources of the law of evidence SUBSTANTIVE AND ADJECTIVE LAW