The South African Law of Evidence

✍ Scribed by David T. Zeffertt; A. Paizes

• Publisher: LexisNexis
• Year: 2017
• Tongue: English
• Leaves: 1241
• Edition: 3
• Category: Library

✦ Table of Contents

Cover
Half Title
Title Page
Copyright Page
Preface
Contents
Part I INTRODUCTION AND SOURCES
Chapter 1 Definitions, sources and the Constitution
1.1 Definitions
1.2 Sources
1.2.1 The colonial law
(a) Cape Colony
(b) Natal
(c) Transvaal
(d) Orange Free State
1.2.2 The law after Union
1.2.3 Republic until the interim Constitution
1.2.4 Consolidation
1.2.5 The residuary sections
1.2.6 Interim Constitution
1.2.7 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
2.1 The role of the Constitution
2.2 The rationalist tradition
2.3 The philosophy of proof
2.4 The relation between the rules of evidence and the science of proof
Chapter 3 The onus of proof
3.1 Introduction
3.2 Comparing the criminal and civil onuses
3.3 Pillay v Krishna
3.4 What does the onus relate to: facts, issues or both?
3.4.1 Model A: Fact-orientated approach
3.4.2 Model B: Issue-orientated approach
3.5 Observations on comparing the two models
3.6 A closer look at the onus in cases of defamation
3.7 Concluding remarks on the defamation cases
3.8 Exploring the policies underlying the incidence of the onus
3.8.1 Comparing the relative weights of the competing values underpinning the interests or rights asserted on either side of the legal relation
3.8.2 Put the onus on the plaintiff in every case to prove every element of the action he or she institutes
3.8.3 Use the onus as a punitive measure and impose it on that party who could most easily have furnished the requisite proof
3.9 Conclusion
Chapter 4 Circumstantial evidence and inferential reasoning
4.1 The cardinal rules of logic set out in R v Blom
4.2 Probability theory and inferential reasoning
4.2.1 Examples of reasoning by inference: two case studies
(a) R v Du Plessis
(b) R v Mlambo
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
5.1 The evidentiary burden to adduce evidence in rebuttal
5.2 Prima facie proof and prima facie evidence
5.3 Failure to rebut or explain
5.3.1 Failure to give evidence
5.3.2 The rule in Galante v Dickinson
5.3.3 Facts peculiarly within the knowledge of a party
5.3.4 Giving false evidence
5.3.5 The right to begin and the shifting of the evidentiary burden during the trial
5.4 Examples of prima facie evidence
5.4.1 Defects in recently purchased goods
5.4.2 Ownership and possession
5.4.3 Driving a vehicle and employment to do so by owner
5.4.4 Corpus delicti
5.4.5 Failure to call witnesses
5.4.6 Failure to produce document or exhibit
5.4.7 Possession of recently stolen goods
5.5 Demeanour
5.6 Factual disputes and credibility
5.7 Evidence of identity
5.7.1 Direct evidence
(a) Fallibility
(b) Assessing cogency
(i) Observation
(ii) Recollection
(iii) Narration
(c) Identification parades
(d) Identification by photographs
(e) Voice identification
(f) Legal representation at parades
(g) Circumstantial evidence of identity
5.8 The alibi defence
5.9 Discharge of the onus in criminal proceedings
5.10 Marriage
5.10.1 Proof of marriage generally
5.10.2 South African marriages
5.10.3 Foreign marriages
5.11 Convictions and acquittals
5.12 Civil judgments
5.12.1 Superior courts
5.12.2 Magistrates’ courts
5.13 The duty to begin
5.13.1 Who has to begin?
5.13.2 What burden must be discharged?
(a) Discharge of the accused after prosecution’s case
(b) S v Lubaxa
(c) Absolution from the instance
5.14 Affidavits and motion proceedings
Chapter 6 Presumptions
6.1 Classification of presumptions
6.1.1 Irrebuttable presumptions of law
6.1.2 Presumptions of fact
6.1.3 Rebuttable presumptions of law
6.2 Some assorted presumptions
6.2.1 The presumption of innocence, the right to silence, and the reverse onus
6.2.2 The natural consequences of acts
6.2.3 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
6.2.4 Legitimacy
6.2.5 Sanity
(a) Criminal cases
(b) Civil cases
6.2.6 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
6.2.7 Res ipsa loquitur
(a) The res ipsa loquitur situation
(b) Absence of an explanation
(c) What sort of explanation?
6.2.8 Donations
6.2.9 Death
6.2.10 Documents
6.2.11 Sterility
6.3 Other presumptions
6.4 Statutory presumptions
6.4.1 ‘Shall be prima facie evidence’ or ‘shall be prima facie proof’
6.4.2 ‘In the absence of evidence to the contrary’
6.4.3 ‘Unless the contrary is proved’
6.4.4 Possession of stolen goods, stock or produce
6.4.5 Foreign law and indigenous law
6.4.6 ‘Conclusive proof’ and ‘sufficient proof’
Part III ADMISSIBILITY
Chapter 7 Relevance and admissibility
7.1 The meaning of relevance
7.2 The inclusionary aspect
7.3 The exclusionary aspect
7.4 Irrelevant evidence excluded
Chapter 8 Character
8.1 The character of the accused
8.1.1 Good character
8.1.2 Bad character
(a) Cross-examination of the accused
(b) Cross-examination of character witnesses
(c) Evidence of bad reputation
8.1.3 Evidence of disposition or similar facts
8.1.4 Previous convictions
8.1.5 Statutory exceptions
(a) Offences involving evidence of previous convictions
(b) Receiving stolen property
8.1.6 The accused as a witness
(a) The scope of the prohibition
(i) Bad character
(ii) Questions relevant to an issue
(b) Lifting the shield
(i) Giving evidence of good character
(ii) Imputations on the character of prosecution witnesses
(iii) Giving evidence against a co-accused
(c) Receiving stolen property
(d) Judicial discretion
8.2 Character of the complainant
8.2.1 Rape or indecent assault
(a) Common law
(b) Statutory reform
8.2.2 Criminal injuria
8.3 Character in civil cases
8.3.1 Seduction
8.3.2 Defamation
8.3.3 Miscellaneous
8.4 Character of witness
Chapter 9 Similar facts
9.1 Introduction
9.2 Criminal cases
9.2.1 An historical perspective
9.2.2 Statement of the rule by the courts: the Makin formulation
9.2.3 Rationale for a Makin-type formulation
9.2.4 Problems of formulation and subsequent developments
9.2.5 The present position
9.2.6 What is in issue?
9.3 Examples
9.3.1 Acts part of the transaction or res gestae
9.3.2 Previous course of dealing
9.3.3 Presence at a place, possession of a weapon, etc.
9.3.4 Motive
9.3.5 Sexual passion
9.3.6 Acts of preparation
9.3.7 Corroboration of a witness on a material point
9.3.8 Corroboration of a confession on a material point
9.3.9 Knowledge
9.3.10 Intent
9.3.11 Design or system
9.3.12 Accident or mistake
9.3.13 Identity
9.3.14 Innocent association
9.3.15 Innocent possession
9.3.16 Similar evidence of different counts
9.3.17 Proving the actus reus
9.4 Commentary
Chapter 10 Opinion
10.1 Formulation of the opinion rule
10.1.1 Introduction
10.1.2 Traditional formulation
10.1.3 The Vilbro approach
10.1.4 Ultimate issues
10.1.5 Stating inferences to save time
10.2 Expert evidence
10.2.1 Procedure
10.2.2 Qualification of expert
10.2.3 Form of expert evidence
10.2.4 Value of expert evidence on conflicting opinions
10.2.5 The duties of expert witnesses
10.2.6 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
10.3 Non-expert opinion
10.4 The rule in Hollington v Hewthorn
Chapter 11 The parol evidence rule
11.1 Conclusiveness
11.1.1 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
11.1.2 Writing required by law
11.1.3 Negotiable instruments
(a) Liability imposed by unqualified signature
(b) Unconditional obligation
(c) ‘Implied terms’
(d) Provisional sentence
11.1.4 Judgments and awards
11.1.5 Wills
11.2 Interpretation
11.2.1 General approach
11.2.2 Relevance of extrinsic evidence
(a) For the purpose of identification
(b) As circumstantial evidence of intention
(c) As direct evidence of intention
11.2.3 The sources of ambiguity
(a) Inadequacy of expression
(b) Misdescription
(c) Equivocation
Chapter 12 The best evidence rule
Chapter 13 Hearsay
13.1 Introduction
13.2 The Law of Evidence Amendment Act 45 of 1988
13.2.1 Introduction
13.2.2 Definition of hearsay
13.2.3 Does section 3 create a legal rule or a discretion?
13.2.4 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
(aa) Factors relevant to sincerity
(bb) Factors relevant to the reliability of memory
(cc) Factors relevant to the accuracy of perception
(dd) Factors relevant to narrative capacity
(ee) Illustrative cases: combining the factors
(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 on 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
13.2.5 Procedural fairness and section 3(1)(c)
13.2.6 The constitutionality of section 3
13.2.7 The status of the common law and statutory exceptions pre-1988
13.2.8 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(1)(b): unavailability of maker of statement
(ix) Section 34(3)
(aa) Statement made by a person
(bb) Person interested
(cc) When proceedings were pending or anticipated
(x) Section 34(5)
(xi) Discretionary admission
(xii) 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
14.1 Introduction
14.2 Complaints in sexual cases
14.2.1 Common law
14.2.2 Statutory development
(a) Section 58: Evidence of previous consistent statements
(b) Section 59: Evidence of delay in reporting
14.2.3 To rebut ‘recent’ fabrication
14.2.4 Prior identification
14.2.5 Statements on being taxed with incriminating facts
Chapter 15 The res gestae
15.1 The relevance aspect
15.2 Statements
15.2.1 Statements that accompany and explain a relevant act
15.2.2 Spontaneous statements
(a) At common law
(b) Under section 3 of the Law of Evidence Amendment Act 45 of 1988
15.2.3 Statements which prove state of mind
(a) Proof of state of mind generally
(i) Own evidence
(ii) Statements or conduct of others
(iii) Evidence of conduct
(b) Statements of intention
(i) Common law
(ii) The Law of Evidence Amendment Act 45 of 1988
5.2.4 Statements which prove physical sensations
Chapter 16 Informal admissions and confessions
16.1 Requirements for admissibility
16.1.1 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
16.1.2 Made by person against whom it is tendered: the problem of vicarious admissions
16.1.3 Constitutional requirements
(a) Introduction
(b) Historical background
(c) The present position: the 1996 Constitution
(i) Mandatory exclusion; nature of the rights violation
(ii) The relationship between the two exclusionary legs of section 35(5)
(iii) The first exclusionary leg of section 35(5)
(iv) The second exclusionary leg of section 35(5)
(v) The change in the rationale for excluding improperly obtained admissions and confessions: the Canadian influence
(vi) The need for flexibility
(vii) Illustrations from the case law
(aa) Instances where the evidence was held to be inadmissible
(bb) Instances where the evidence was held to be admissible
(viii) The onus of proof and section 35 (5)
16.1.4 Other statutory requirements
(a) Admissions: section 219A
(i) Admissibility
(aa) Threat or promise
(bb) Person in authority
(ii) The onus of proof
(b) Confessions: section 217
(i) Introduction
(ii) The meaning of a confession
(aa) Generally
(bb) Incriminating statements intended to be exculpatory
(cc) Statements amounting to confessions to other offences
(iii) Duties of prosecution and court when evidence of a confession is to be led
(iv) Requirements for admissibility
(aa) Freely and voluntarily
(bb) Sound and sober senses
(cc) Without having been unduly influenced thereto
(dd) Not made to a peace officer, other than a magistrate or justice, unless confirmed and reduced to writing in the presence of a magistrate or justice
(v) The onus of proof
(vi) Judicial discretion
(vii) Inadmissible confessions which ‘become admissible’: the effect of section 217(3)
(c) Pointings-out: section 218
16.2 Procedure: trial-within-a-trial
16.2.1 Purpose of this procedure
16.2.2 By whom it is conducted
16.2.3 When it is held
16.2.4 Multiple accused
16.2.5 The effect of the insulation of the admissibility inquiry at a trial-within-a-trial
16.2.6 The status of a determination made at a trial-within-a-trial
Part IV PRIVILEGE
Chapter 17 Privilege
17.1 Introduction
17.2 The privilege against self-incrimination and the right to silence
17.2.1 The privilege of the witness against self-incrimination
(a) The rules
(b) History and rationale
(c) Nature and scope of the privilege, and the effect of section 204 of the Criminal Procedure Act
(d) Requirements for a successful claim of privilege
(e) Duty of the court to warn the witness
17.2.2 The right of the accused to remain silent
(a) The consequences of remaining silent during trial
(b) The pre-trial silence of the accused in general and the failure to disclose an alibi in particular
(c) The admissibility of bail application proceedings at the trial
(d) The staying of civil proceedings by a person charged with a criminal offence
(e) Compelled extra-curial incriminatory evidence emanating from the accused but not amounting to an admission or confession: fingerprints, footprints, handwriting, demonstrations, etc.
(f) Intercepted extra-curial communications
(g) Anton Piller orders
(h) Pre-trial, extra-curial and other statutory procedures or inquiries which ostensibly curtail the right to silence or the right against self-incrimination
(i) Sections 417 and 418 of the Companies Act
(ii) Section 36 of the General Law Amendment Act
(iii) Section 112 of the Criminal Procedure Act
(iv) Section 205 of the Criminal Procedure Act
(v) Section 5(6) of the Investigation of Serious Economic Offences Act, now repealed and replaced by the National Prosecuting Authority Act
(vi) Section 108 of the Magistrates’ Courts Act
(vii) Sections 26, 39 and 48 of the Prevention of Organised Crime Act
(viii) Section 8(2) of the International Co-operation in Criminal Matters Act
17.3 Legal professional privilege
17.3.1 An overview
17.3.2 History of the privilege
17.3.3 Rationale of the privilege
17.3.4 The nature of the privilege
17.3.5 The privilege and the Constitution
(a) The collision between the privilege and other rights
(b) Remedies for breach of privilege
17.3.6 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 and the misappropriation of such communications
(f) Communications between the legal adviser or the client and agents or third parties
(g) Other professional privileges?
17.4 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’)
17.4.1 General and background
17.4.2 Rationale of the privilege
17.4.3 Requirements for claiming the privilege
(a) Submission to legal adviser
(b) Anticipation of litigation
17.4.4 Scope of the privilege
17.4.5 Waiver of the privilege
17.4.6 Disclosure on the ground of ethical considerations
17.4.7 The ‘docket privilege’ and the Constitution
(a) Introduction
(b) The decision of the Constitutional Court in Shabalala
(i) Access to police dockets
(ii) Consultation with state witnesses
(c) The post-Shabalala cases
(i) The reach of the decision in Shabalala and its impact on the litigation privilege
(ii) The mechanics of the exercise of the right to have access to documents in the state’s hands
(iii) The effect of irregular non-disclosure by the state
(iv) The procedural nature and effect of producing witness statements
(v) Access to witnesses’ statements in bail application proceedings
(vi) Duty of the court to inform an accused of his or her rights and to assist the accused in the exercise of those rights
(d) Commentary on Shabalala and the ‘docket privilege’
(e) The onus of proof
17.5 The ‘negotiations privilege’: the ‘privilege’ relating to statements without prejudice
17.5.1 The rule and its rationale
17.5.2 Is it a ‘privilege’ at all?
17.5.3 Requirements for privilege
17.5.4 Exceptions and limitations
17.6 Marital and related privileges
17.6.1 Spouses
(a) Communications from the other spouse
(b) Extension of other privileges
17.6.2 Ex-spouses
17.6.3 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
18.1 Introduction
18.1.1 The arguments for and against the admission of improperly obtained evidence
18.1.2 Approaches to the admissibility of improperly obtained evidence
18.2 The position in South Africa prior to 27 April 1994
18.3 The position in South Africa from 1994–1997
18.4 The current South African law: the position under the final Constitution, 1996
18.4.1 Introduction
18.4.2 The threshold requirement for section 35(5)
18.4.3 Waiver of rights under section 35(5)
18.4.4 Six classes of cases considered
(a) Cases where the accused was not properly informed of his or her rights prior to making a statement or a pointing-out
(b) Autoptic evidence and other evidence forcibly and involuntarily taken from the person of the accused
(c) Evidence obtained as a result of illegal searches
(d) Derivative evidence
(e) Evidence obtained as a result of the illegal monitoring or interception of communications
(f) Evidence obtained as a result of the violation of a right of a person other than the accused
18.4.5 The two legs of the exclusionary rule in section 35(5)
(a) The relationship between the two legs of section 35(5)
(b) The undesirability of laying down hard and fast rules and the need to balance competing social interests
(c) The factors and values that should be considered in the first leg – the ‘fairness’ inquiry
(d) The role of public interest and public opinion in giving effect to the interests of the administration of justice in the second leg of the inquiry in section 35(5)
(e) Considerations and factors that may affect the application of the second leg of section 35(5)
(i) Good faith
(ii) The nature and seriousness of the violation of the accused’s rights
(iii) Considerations of urgency and the public safety
(iv) The availability of alternative, lawful means of obtaining the evidence in question
(v) The deterrence or disciplinary factor: to discourage police officers from using illegal techniques
(vi) The nature of the evidence and the seriousness of the offence
(vii) The fact that the evidence in question would inevitably have been discovered even if the improper means had not been employed
18.5 The Canadian position on illegally or improperly obtained evidence
18.5.1 The law before R v Grant
18.5.2 The effect of R v Grant
(a) The seriousness of the Charter-infringing state conduct
(b) The impact of the violation on the Charter-protected interests of the accused
(c) Society’s interest in a proper adjudication of the case on its merits
18.5.3 Society’s interest in a proper adjudication of the case on its merits
(a) Statements by the accused
(b) ‘Bodily evidence’ such as DNA evidence or breath samples
(c) ‘Non-bodily physical evidence’ such as illegal searches and seizures
(d) Derivative evidence: physical evidence discovered as a result of an unlawfully obtained statement
(e) Impact of Grant on South African law
18.5.4 The impact of Grant on South African law
18.6 The onus of proof
18.7 Procedure: Trial-within-a-trial
18.8 Traps
18.8.1 Historical background
18.8.2 Purpose and scope of section 252A
18.8.3 Critical analysis of section 252A
(a) The concept of an exclusionary rule as opposed to a substantive defence of entrapment
(b) Possible constitutional objections
(c) Clarity and comprehensibility
18.8.4 The practical application of the section by the courts: in particular, how the courts have determined whether conduct has gone beyond providing an opportunity to commit an offence
18.9 Civil cases
Chapter 19 State and public interest privilege and public policy
19.1 State and public interest privilege
19.1.1 Prior to 1996
(a) Security of the state
(b) Public interest not affecting state security
19.1.2 The position after 15 November 1996
(a) General
(b) The Promotion of Access to Information Act
(c) The proposed Protection of State Information Act
19.2 The protection of law enforcement: the privilege relating to police methods and informers
19.2.1 General
(a) Communications tending to expose the methods used to investigate and combat crime
(b) Communications tending to reveal the identity of an informer
19.3 Judicial proceedings
19.3.1 Evidence of judges
19.3.2 Evidence of advocates or attorneys
19.3.3 Evidence of arbitrators
19.4 Income tax and other statutes
Part VI MACHINERY OF PROOF
Chapter 20 Competence and compellability of witnesses
20.1 Competence and compellability of witnesses
20.1.1 Witnesses who refuse to testify
20.1.2 Everyone presumed competent and compellable
20.2 Incompetent or non-compellable witnesses
20.2.1 Incapable witnesses
(a) Mentally disordered and intoxicated persons
(b) Children
20.2.2 Persons concerned in judicial proceedings
(a) Judge or magistrate
(b) Prosecutor
(c) Attorney or counsel
20.2.3 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
20.2.4 The accused’s spouse
(a) Competent and compellable
20.2.5 Miscellaneous
Chapter 21 Documentary evidence
21.1 Production of the original
21.1.1 General rule
21.1.2 Meaning of ‘original document’
21.1.3 Exception for admissions
21.1.4 Proof of status or relationship
21.1.5 When secondary evidence is admissible
(a) Document in possession of opposing party
(b) Document in possession of a third party
(c) Document lost or destroyed
(d) Production of original impossible or inconvenient
(e) Public documents
(f) Official documents
(g) Bankers’ books
(h) Other statutory provisions
21.2 Proof of authenticity
21.2.1 General rule
21.2.2 Attested documents
21.2.3 Exceptions to the general rule
(a) Public documents
(b) Other statutory exceptions
(c) Ancient documents
(d) Foreign documents
21.3 The Stamp Duties Act (repealed)
Chapter 22 Real evidence
22.1 Personal appearance
22.2 Photographs, films, video films and sound recordings
22.3 Electronic Communications and Transactions Act
22.4 Inspections in loco
22.5 The evaluation of things observed, expert testimony, and demonstrations
22.6 Ascertainment of bodily features and DNA identification
22.7 Production and absence of real evidence
Chapter 23 Judicial notice
23.1 Notorious facts
23.1.1 Matters of general knowledge
23.1.2 Matters of local notoriety
23.2 Facts readily ascertainable
23.2.1 Political matters
23.2.2 Historical facts
23.2.3 Maps
23.3 Calendars
23.4 Legal matters
23.4.1 Statutes and ordinances
23.4.2 Third-tier legislation
23.4.3 Common law
23.4.4 Trade usage
23.4.5 Custom and foreign law
(a) General customs
(b) Foreign law and indigenous customs
23.5 Constitutional matters
Chapter 24 The rules of trial
24.1 Evidence before trial
24.1.1 Evidence at preparatory examination
24.1.2 Evidence on commission
(a) Criminal cases
(b) Criminal cases: persons in a foreign state
(c) Civil cases
24.1.3 Interrogatories
21.1.4 Evidence on affidavit
21.1.5 Perpetuation of testimony
24.2 The order of evidence
24.3 Oaths and affirmations
24.4 Examination in chief
24.4.1 Leading questions
(a) Prohibition
(b) Exceptions
24.4.2 Refreshing memory
(a) When ‘refreshing memory’ is allowed
(i) Authenticity
(ii) Contemporaneity
(iii) Original documents
(iv) Production
(b) Evidential value of document
24.4.3 Unfavourable and hostile witnesses
(a) Evidence in contradiction
(b) Previous inconsistent statements of own witness
(c) Hostile witnesses
24.5 Cross-examination
24.5.1 Who may be cross-examined?
24.5.2 The limits of cross-examination
(a) Cross-examination to the issue
(b) Cross-examination to credit
24.5.3 Failure to cross-examine
24.5.4 Previous inconsistent statements
24.5.5 Cross-examination to credit: finality of answers
(a) The general rule
(b) Exceptions
(i) Previous convictions
(ii) Bias
24.6 Re-examination
24.7 Evidence impeaching credit
24.8 Procedural matters relating to cross-examination
24.9 Witnesses called by the court
24.9.1 Criminal cases
24.9.2 Civil cases
24.10 Evidence out of time
24.10.1 Evidence in rebuttal
24.10.2 Late evidence generally
24.10.3 Evidence on appeal
24.10.4 The Constitutional Court
24.11 Trial with assessors
24.11.1 Fact and law
24.11.2 Rulings on admissibility
24.12 Appeals
24.12.1 Criminal appeals
(a) Irregularities prior to the advent of the Constitution
(b) The advent of the Constitution
(c) Appeal on the facts
24.12.2 Civil appeals
24.12.3 Formal admissions
(a) Civil actions
(b) Criminal proceedings
(c) Formal admissions as informal admissions
24.13 Postscript
Part VII CORROBORATION AND CAUTION
Chapter 25 Corroboration and cautionary rules
25.1 Corroboration
25.1.1 Confessions
25.1.2 Breach of promise of marriage
25.1.3 Seduction
25.2 Cautionary rules
25.2.1 Cautionary rules in general
25.2.2 Single witnesses
25.2.3 Accomplices
(a) Accomplices and quasi-accomplices
(b) Indications of trustworthiness
(i) Corroboration
(ii) Other factors
25.2.4 Sexual cases
25.2.5 Young children
25.2.6 Claims against estates of deceased persons
25.2.7 Police traps, spies and informers
25.2.8 Inquiry agents
25.2.9 Prostitutes
25.3 The nature of corroboration
25.3.1 Failure to testify
25.3.2 False statements
25.3.3 Similar conduct
Table of cases
Table of statutes
Index