Law of Evidence

LAEV7311

Unit 4, Part 2(2), 3 and 4

Documentary and
Electronic Evidence

Witnesses

BLAW 3rd Year

Recording links

Lecture 4 Part 1: https://eu-lti.bbcollab.com/recording/80dbba1b79164f58acd49e13cdb41e24

Lecture 4 Part 2: https://eu-lti.bbcollab.com/recording/70f0e201ff284da4a58c3b8c1b4b8b5c
Lecture 4 Part 3 and 4: https://eu.bbcollab.com/guest/a6de0dcfc79c410c9080bb06ed156bc8
Lecture 4 Part 5: https://eu-lti.bbcollab.com/recording/76d718347018444aa7fc13afd83585e4
Documentary Evidence

Prescribed material
1. Schwikkard: Chapter 20 (20.1 to 20.3.2)
2. S v Msane 1977 (4) SA 758 (N)
3. S v Ndiki and Others 2008 (2) SACR 252 (Ck)
4. Ss 234,236 and 237 of the Criminal Procedure Act 51 of 1977.
5. Ss 19 and 23 of the Civil Proceedings Evidence Act 25 of 1965

Learning Outcomes
6. Provide examples of documentary evidence.
7. Discuss the admissibility of documentary evidence.
8. Analyse issues of authenticity surrounding obtaining and retrieving documentary
evidence.
9. Apply the principles of documentary evidence to a given scenario.
 Documentary Evidence – Introduction
1. The difference between documentary evidence and real evidence is the purpose for what the
item is being used.
2. An item is defined as real evidence when the item itself is object to be considered by court.
3. E.g. a typed contract will be documentary evidence if it is submitted to establish the terms of
the contract and relying on its content, but it will be real evidence if submitted to prove
existence of the document.
4. The purpose of the admission of documentary evidence is to prove what the document
contains, but not that the facts contained in the documents are true – the latter instance is
hearsay wand the hearsay rules will apply (i.e. s3 of the LEA Act)
5. If a party is adducting the documentary evidence to prove the truth of the contents of the
document - then it’s documentary hearsay
6. The admission of documents for non-hearsay purposes is governed by the common law
tempered by statutory provisions.
7. There is no single definition of what constitutes a “document” – it is very wide
8. In R v Daye: A “document” was described as “any written thing capable of being evidence” it
does not matter what it is written on
9. Section 33 of the CPEA defines it as “any book, map, plan, drawing or photograph”
10. Section 221 of the defines it as “including any device by which information is recorded or
stored”
11. The ECTA accommodates developments in technology by creating a new type of evidence
“data message” – see electronic evidence
12. To be admissible- must adhere to requirements of originality/authenticity
Documentary Evidence – Admissibility requirements
1. There are two basic rules governing the admissibility of a document:
1. The original document must be produces; and
2. The document must be authenticated.
2. General rules of evidence will also apply – i.e. it must be relevant.
3. First establish the purpose for the documentary evidence – how is it relevant, is the evidence
its existence or its content?
4. Thus there are three requirements for documentary evidence to be admissible:
1. Originality - produce the original document in court.
2. Authenticity - Prove authenticity
3. Relevance - Statements or contents must be relevant
5. Re Originality:
1. Party must produce the original document – reason for this is that errors may be made in
copies/documents/falsified
2. Multiple originals - carbon copies may be submitted
3. If document is made in duplicate – both copies considered to be original – even carbon
copies
4. A counter copy where document is made in duplicate and different person signs each
copy- admissible as evidence against person who signed it
Documentary Evidence – Originality
The original document
1. Originality corresponds with the original source of the recording.
2. The rationale for requiring the original is to avoid error or falsification.
3. E.g. it has been held that the form filled in at the post office and not the resultant telegram
constitutes the original document (R v Regan).
4. There is recognition of multiple originals in the case of carbon copies, initialed copies and
even a roneoed (copier) copy.
5. If document is made in duplicate, both copies will be original, even carbon copies.
6. A counter copy where document is made in duplicate and different person signs each copy is
admissible as evidence against person who signed it
7. The rationale underlying this requirements has been associated with the best evidence rule.
i.e. “…the original of a document is the best evidence of its content…” (Welz v Hall)
8. The requirement for the original remains a requirement in SA law, as a consequence,
secondary evidence may not be used to prove the content of a document.
9. However, if the secondary evidence is the only means of proving the document it may be
admitted
10. Secondary evidence may be used to prove things other than the contents of the document, e.g.
the existence oof a status or relationship e.g. partnership or tenancy.
 Documentary Evidence – Primary v Secondary evidence

1. Primary evidence is evidence that tends to suggest that there is no better evidence available.
2. Secondary evidence is evidence that tends to suggest that there is better evidence available.
3. Generally the best evidence rule requires that the best evidence available is admissible.
4. Secondary evidence may be exceptionally used to prove the contents of a document in the
following circumstances:
a) The document is lost or destroyed;
b) The document is pin possession of the opposing party or a third party; or
c) It is impossible or inconvenient to produce the original; or
d) It is permitted by statute to produce a copy.
5. R v Amod: Adducing original documents into evidence falls within the primary or best evidence
rule and it only applies when the contents of the documents are in dispute.
6. R v Pelunsky: Instances where producing the original document may not be necessary the party
must give satisfactory explanation. If the original is destroyed, then copy becomes the best
evidence.
 Documentary Evidence – Primary v Secondary evidence

1. The primary evidence rule does not apply when:

 The existence of the document rather than contents is the facts in issue
 The existence of a relationship or status flowing from the document is to be proved

2. Primary evidence:
1. Suggests that there is not better evidence (The best evidence rule requires production of the
original document)
2. It is needed when the contents of a document is in dispute not the actual existence.
3. The exceptions are that if there is satisfactory explanation as to absence of the original and
it is provable by other evidence the secondary evidence could be allowed.
3. Secondary evidence:
1. Suggests that there is better evidence available (this is a copy vs the original)
2. It is needed when the actual existence of document is in dispute
3. Admissible when original destroyed, production of original may result in criminal charges,
production of original is impossible and original in possession of 3rd party
4. Where the original is in the possession of a third party it must be established, before secondary
evidence could be led, that a subpoena duces tecum was served on the third party to produce the
document and that the third party refused to do so on the basis of a recognised privilege.
5. Secondary evidence will also be allowed where the third party resides outside of the jurisdiction of
the court and is uncooperative.
6. The impossibility or inconvenience of producing the original is ascertained on a case by case
basis.
 Documentary Evidence – Admissibility of secondary evidence

1. As example of secondary evidence permitted by statute is section 18(1) of the CPEA:

“Whenever any book or other document is of such a public nature as to be admissible in
evidence on its mere production from proper custody, any copy thereof or extract
therefrom proved to be an examined copy or extract or purporting to be signed and
certified as a true copy or extract by the officer to whose custody the original is
entrusted, shall be admissible in evidence.”
2. In determining the characteristics of a public document it is necessary to refer to the common
law.
3. For a document to be classified as one of a public nature it must:
a) Be made by a public official
b) In pursuance of a public duty
c) The document must constitute a permanent record open to public inspection.
4. Similar provisions are contained in section 233(1) of the CPA
“Whenever any book or other document is of such a public nature as to be admissible in
evidence upon its mere production from proper custody, any copy thereof or extract
therefrom shall be admissible in evidence at criminal proceedings if it is proved to be an
examined copy or extract, or if it purports to be signed and certified as a true copy or
extract by the officer to whose custody the original is entrusted”
 Documentary Evidence – Authenticity

1. The requirement that a document be authenticated means nothing more than tendering evidence of
authorship or possession depending on the purpose for which it is tendered.
2. This can be done in a variety of ways (see Howard & Decker Witkoppen Agencies v De Sousa)
i. The law in relation to the proof of private documents is that the document must be identified by
a witness who is either:
i. The writer or signatory thereof;
ii. The attesting witness;
iii. The persons in whose lawful custody the document is;
iv. The person who found it in possession of the opposing party;
v. A handwriting expert unless…(see p 435).
3. The effect of section 36 of the CPEA is that the only instance in which the evidence of the attesting
witness is required to prove a document is in relation to a will.
4. In all other cases re document maty be proved by evidence identifying the author.
5. There are a number of statutory provisions which circumvent the common law requirement of proof
of authenticity. E.g. section 37 of the CPEA, if a document is older than 20 years and has been
kept in proper custody it will be rebuttably presumed to have been duly executed. Also in section
222 of the CPA.
Electronic Evidence
Electronic Evidence - LOs
Learning Outcomes
1. Discuss the admissibility of electronic evidence.
2. Analyse whether data messages are admissible as real or documentary
evidence.
3. Evaluate recent discussion on digital evidence in the sphere of electronic
evidence.
4. Apply the principles of electronic evidence to a given scenario.
Electronic Evidence - PMs
Prescribed material
1. Schwikkard Chapter 21 (21.2, 21.2.2 to 21.5).
2. Ss 11,12,15,22,23 and 24 of the Electronic Communications and Transactions Act
25 of 2002
3. Jafta v Ezemvelo KZN Wildlife 2008 (10) BLLR 954 (LC)
4. S v Ndiki and Others 2008 (2) SACR 252 (Ck)
5. Judge President’s Practice Directive 2 of 2020 (Gauteng Division of the High Court
of South Africa, Pretoria)
https://www.ppv.co.za/wp-content/uploads/2020/01/Judge-President%E2%80%99s-
Practice-Directive-2-of-2020.pdf

6. The South African Judiciary – Court Online,

https://www.judiciary.org.za/index.php/caselines
1. An overview of the court online system,
https://www.judiciary.org.za/index.php/caselines/e-filing-project-overview
2. Evidence Management Application in court/chambers,
https://www.judiciary.org.za/index.php/caselines/case-lines-explanation/72-cou
rt-online/343-evidence-management-application-in-court-chambers

7. Nortje JGJ and Myburgh DC ‘The search and seizure of digital evidence by forensic
investigators in South Africa’ (2019) PER/PELJ 1 (paragraphs 1, 2.3, 2.4 and 5).
 Electronic Evidence – Introduction
1. Due to the increased use of electronic devices and computers evidence in judicial proceedings are
increasingly taking the form of electronic evidence.
2. A trend emerged in the SA Law of Evidence to classify this type of evidence into a third category, quite
distinct from real and documentary evidence. (See S v Ndiki)
3. Some of the challenges this has represented is that it was unclear how certain evidence should be treated
e.g. data messages and their manuscript counterparts.
4. The terms “electronic” and “digital” are often used interchangeably to refer to data created by electronic
means.
5. This is generally acceptable, but we should make a distinction between data that is analogue and data that
is digital: know the differences!!!!
1. Analogue: created by analogue device, fixed or permanent format, vinyl, photographic film. More
difficult to manipulate. Can be converted to digital., then it is treated as digital evidence.
2. Digital: in a format created on an electronic device such as a computer or the internet.
6. SA courts take the view that all relevant evidence is admissible unless excluded by some other rule of
evidence governing its admissibility.
7. A difficulty with data messages was that it did not fit into the traditional categories of evidence normally
admitted or excluded.
8. Electronic evidence must furthermore overcome the rules relating to authenticity and the production of the
original version.
9. The SA courts have taken a conservative view of electronic evidence and the legislature has been called
upon to reform the law.
10. The Electronic Communications and Transactions Act, 2002 is such a response.
11. The CPEA and CPA provisions are still relevant to electronic evidence, e.g. the exceptions to the hearsay
rule.
Electronic Evidence – ECTA
Before ECTA
1. The admissibility of computer printouts were dealt with in terms of section 221 of the CPA (for
business records) and section 236 (for banking records).
2. The courts later excluded computer printouts from section 221 and called for the lacunae in our
law to be filled (S v Harper, S v Mashiyi).

The Electronic Communications and Transactions Act 2002

3. ECTA moves beyond the concepts of “computer printouts” and focuses on the terms “data” and
“data messages”
4. ECTA defines “data” to mean “electronic representations of information in any form”
 This could include flash drives, discs, computer drives where information is stored and other
electronic devices – cellphones, tablets, computers, iPods, cameras
5. ECTA defines “data messages” to mean “data generated, sent, received or stored by electronic
means and includes
a) voice, where the voice is used in an automated transaction; and
b) a stored record”
 This could include emails, recorded voice, texts, blogging, social media
 Electronic Evidence – ECTA admissibility
1. Section 15 of ECTA regulates admissibility and evidential weight of data messages – our focus.
2. BUT, ECTA also provides for the production of data messages in original form, guidelines for judging the
integrity of the data message, the production of the message in court and the requirements to satisfy the court
of authenticity.
3. Section 15(1) permits the admissibility of electronic evidence by laying down the following general principles:
“In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a
data message, in evidence -
(a) on the mere grounds that it is constituted by a data message; or
(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the
grounds that it is not in its original form”
4. In Ndlovu v Minister of Correctional Services the court took the view that section 15(1) facilitates admissibility
by ousting evidence rules which would exclude electronic evidence purely because of its electronic
origin.
5. Thus, section 15(1) does not per se override the rules re hearsay.
6. The court sated:
1. “The data message must be relevant and otherwise admissible, be proved to be authentic and the
original produced, unless (in regard to the latter aspect) section 15(1)(b) applied”
2. “Where the probative value of the information in a data message depends upon the credibility of a
(natural) person other than the person giving the evidence, there is no reason to suppose that
section 15 seeks to override the normal rules applying to hearsay evidence. On the other hand,
where the probative value of the evidence depends upon the ‘credibility’ of the computer (because
information was processed by the computer), section 3 of the [LEA Act] will not apply, and there is every
reason to suppose that section 15(1), read with section 15(2) and (3), intend for such ‘hearsay’
evidence to be admitted, and due evidential weight to be given thereto…”
Electronic Evidence – ECTA admissibility (continued)

1. La Consortium & Vending CC v MTN, Malan said re admissibility:

“The definition of ‘data message’ in section 1 is sufficiently wide to include not only
real, but also hearsay evidence…” This, however, does not mean that hearsay is
admissible just because it is contained in a data message. The principle of ‘functional
equivalence’ does not free data messages from the normal strictures of the law of
evidence…”
2. In FirstRand Bank v Venter the SCA summarised section 15(1) by noting that it “facilitates
the use and reliance on a data message…”
3. Thus, the body of emerging case law is taking the approach that section 15 of ECTA permits
the admissibility of data messages but the ordinary SA law on admissibility still applies.
Electronic Evidence – ECTA weight
Assessing the evidential weight of data messages
1. Once admitted, section 15(2) of ECTA ensures that “Information in the form of a data message must
be given due evidential weight”
2. Guidance for the assessment of this is provided in section 15(3), “In assessing the evidential weight of
a data message, regard must be had to -
a) the reliability of the manner in which the data message was generated, stored or
communicated;
b) the reliability of the manner in which the integrity of the data message was maintained;
c) the manner in which its originator was identified; and
d) any other relevant factor”
3. Section 15(3) was considered by the SCA in FirstRand Bank v Venter, Heher JA set aside the
judgment of the court a quo, and held that it had over-emphasized items (a), (b) and (c) by
overlooking that the witness had not been led or cross-examined on those matters and the court had
underplayed the role of item (d) by failing to take cognizance of factors which go to the relevance of
evidence.
4. Thus, a holistic approach to the evidential weight of a data message and the other evidence before
the court is required.
5. When applying section 15(3) the courts may find expert evidence of assistance.
6. E.g. in Jafta v Ezemvelo KZN Wildlife where the judge considered the expert evidence led by the
parties in order to determine the weight to be attached to an email sent by the plaintiff accepting a job
offer, which the defendants did not received due to a technical error.
Electronic Evidence – ECTA section 15(4)
Admissibility of business records
1. Section 15(4) of ECTA provides that:
“A data message made by a person in the ordinary course of business, or a copy or
printout of or an extract from such data message certified to be correct by an officer in
the service of such person, is on its mere production in any civil, criminal,
administrative or disciplinary proceedings under any law, the rules of a self
regulatory organisation or any other law or the common law, admissible in evidence
against any person and rebuttable proof of the facts contained in such record, copy,
printout or extract.”
2. In essence, section 15(4) does two things:
1. First: it creates a statutory exception to the hearsay rule in favour of data messages
made during the ordinary course of business; and
2. Second: it creates a rebuttable presumption that such records are correct.
3. In MTN v La Consortium & Vending – the court found computer printouts admissible, BUT
on appeal the full bench took the view that despite the wide wording of s 15(4), hearsay
evidence contained in data messages, remained the subject of section 3 of the LEA Act.
Electronic Evidence – ECTA other relevant provisions
1. Section 14: Data will be considered to be in its original form if:
a) The integrity of information from the time it was first generated in its final form as a data message
has remained intact
b) The information is capable of being displayed/produced to the person to whom its being
presented
2. Section 16: Provides for the manner where information may be stored in form of data message if a
particular law requires information to be retained. It permits retaining information if:
a) The information in the data message is accessible and useable for subsequent reference
b) the data message is in the format in which it was generated, sent or received, or in a format which
can be demonstrated to represent accurately the information generated, sent or received; and
c) the origin and destination of that data message and the date and time it was sent or received can
be determined.
3. Section 17: Provides for production of documents in form of data message, “…where a law requires a
person to produce a document or information, that requirement is met if the person produces, by means
of a data message, an electronic form of that document or information, and if -
a) considering all the relevant circumstances at the time that the data message was sent, the
method of generating the electronic form of that document provided a reliable means of assuring
the maintenance of the integrity of the information contained in that document; and
b) at the time the data message was sent, it was reasonable to expect that the information contained
therein would be readily accessible so as to be usable for subsequent reference.
4. The integrity of in the information has remained complete and unaltered except for the addition of any
endorsement or immaterial change that arises in the normal course of communication, storage or display
5. [See the other sections as per the PMs, 11,12, 22 – 24].
Electronic Evidence – as real evidence?
The question that has been raised in our law is if data messages / electronic evidence takes the
form of real evidence?
1. We need to draw a distinction between the following forms of data: Know the difference!!!
1. “computer generated” and
2. “computer-assisted”.
2. Computer generated printouts were treated as real evidence and held to be admissible in Ex Parte
Rosch (telephone call details).
3. In S v Ndiki and others
1. Van Zyl J considered the admissibility of two kinds of computer print outs.
2. Some were generated by a computer following human input. These were classified as hearsay.
3. The print-outs produced without human intervention were regarded as real evidence and
admissible.
4. The judge noted that the admissibility of this evidence would be dependent on the accuracy and
reliability of the computer, its operating system and its processes.
5. The court made a distinction between machine-based evidence where a human had also been
involved at some or other stage and evidence which had been created by machines
(computers) working without human interference.
6. The different exhibits were then classified into one of these two categories without resorting to a
third, sui generis (of its own kind) category.
7. Where humans had been involved this would be documentary evidence and if not, real
evidence. If required, the latter type of evidence would be brought before court by an expert
testifying about the reliability of the working of the machine.
 Electronic Evidence – S v Ndiki
1. The matter dealt with evidence contained in certain documentary evidence in the form of computer
printouts which the State wished to present in the course of a criminal trial.
2. The accused had protested which resulted in a hearing-within-a-hearing so that the court could determine:
1. The true nature of the printouts,
2. The classification of documents in which it falls; and
3. Whether the admission of documentary evidence regulated by any legislation that deals with the
admission of documentary evidence.
3. The court considered various provisions of the LEA Act, the CPEA and CPA.
4. The court held that:
1. Both section 35 of the CPEA and section 221 of the CPA leave it to the discretion of the court to
attach the necessary weight to evidence admissible with regard to computers.
2. The reliability and accuracy of the computer and its operating system are relevant factors that
must be considered in the exercise of the court 's discretion.
3. The objections raised to the admission of specific exhibits, which were computer generated exhibits
were dismissed, and such evidence was provisionally admitted as evidence on the premise that
where humans had been involved this would be documentary evidence and if not, real evidence.
4. If required, the latter type of evidence (real evidence) would be brought before court by an expert
testifying about the reliability of the working of the machine.
 Electronic Evidence – S v Brown
1. The Court, in a trial-within-a-trial, had to determine whether images found on a cellphone were admissible
as evidence.
2. It related to charges of attempted murder and murder. The phone was dropped, a witness picked it up and
gave it to her husband’s gang who handed it to the police. It was booked as an exhibit, analyzed to
retrieve the data and images of the accused were obtained from the phone.
3. The defense objected to using these images based on the integrity of the chain of safekeeping of the
phone from the time it was picked up to the time the material was downloaded, and that the chain was not
proved.
4. It was also argued that the evidence was hearsay and irrelevant. The evidence wasn’t covered by a
subpoena and any evidence downloaded without authorization from the magistrate is unlawful and an
invasion of privacy.
5. The court held that:
1. The ECTA was introduced to provide for the admissibility of evidence generated by computers;
2. There was no evidence that cellphone had been tampered with;
3. The images were not hearsay but real evidence;
4. Obtaining a search warrant from the magistrate was not applicable.
6. The images were all admissible evidence, and the state could not have produced any better evidence
7. The court's decision was that all the images on the phone were admissible evidence
Witnesses
Witnesses
Prescribed material
1. Schwikkard Chapter 22 (22.1 to 22.4, 22.10, 22,11)
2. Schwikkard Chapter 24 (24.5 to 24.7)
3. S 35 (5) of the South African Constitution, 1996
4. R v O’Linn 1960 (1) SA 758 SA 545 (N)

Learning Outcomes
5. Discuss the various aspects relating to competence and compellability of
witnesses.
6. Discuss the following categories of witnesses:
1. Children.
2. The accused and co-accused.
3. Spouses.
7. Analyse the case of R v O’Linn on when and how a witness is allowed to refresh
his/her memory on certain aspects.
8. Apply the principles in relation to witnesses in a given scenario.
Witnesses – Competency and Compellability
1. The competence and compellability of a witness must not be confused with the possible privileged the
witness might claim.
2. Cowen & Carter explain that:
 “A competent witness is a person whom the law allows a party to ask, but not to compel, to
give evidence.” Not the same as privilege. There are certain questions he may refuse to answer.
 A compellable witness is a person whom the law allows a party to compel to give his
evidence…” Where a witness can be forced to give evidence.
3. A competent and compellable witness who wishes to rely on, e.g., the privilege against self-incrimination
may not refuse to enter the witness box but may claim that privilege in re a specific question.
4. THE GENERAL RULE: Every person is presumed to be competent and compellable to give evidence
unless the matter of competence and compellability is regulated by statutory provisions.
1. In civil and criminal matters.
2. In civil matters a party is competent to testify in his own case but can also be called to give
evidence for his opponent.
5. Section 192 of the CPA provides that: ‘Every person not expressly excluded by [the CPA] from giving
evidence shall, subject to the provisions of section 206, be competent and compellable to give evidence
in criminal proceedings.’
6. Only a competent witness may be a compellable witness: there are cases where a competent
witness may not be a compellable witness
7. Section 194 of the CPA provides: “No person appearing or proved to be afflicted with mental illness or
to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby
deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or
disabled”
8. Oral evidence includes sign language – in the event of a deaf person testifying
Witnesses – Competency and Compellability

General Procedural Matters

1. Parties cannot consent to the admission of an incompetent witness’ evidence.
2. The court must decide any question concerning competence and compellability (Section 193 of
the CPA)
3. The method of examining and decision issues relating to competence or compellability is
usually done in a trial-within-a-trial.
4. A competent and compellable witness who refuses to attend the proceedings may be brought
before the court by means of a warrant of arrest. (Sections 170(2) and 180 of the CPA).
5. Such a witness can be tried and punished for such a failure or refusal but could avoid
punishment by presenting an acceptable excuse.
Witnesses – Children
1. There is no statutory provision governing a child's capacity to give evidence.
2. At common law there is also no age limit.
3. Even very young children may testify provided that they:
a) Appreciate the duty of speaking the truth
b) Have sufficient intelligence
c) Can communicate effectively.
4. A child that is competent may be sworn in, provided that the court is of the opinion that he / she
understands the nature and religious sanction of the oath.
5. If the child is unable to understand he/she may give evidence without taking the oath – but the
court must admonish the child to speak the truth
6. Such admonishment should only occur after the court has made some form of enquiry into the
capacity of the child witness to understand the oath.
7. Children are competent and compellable to testify against their parents.
8. The evidence of children is approached with caution.
Witnesses – Children

S v V 2000 (1) SACR 453 (SCA)

1. The Court emphasized that although there is no statutory requirement that a child's testimony be
corroborated, the testimony of young children, in light of the nature of the complaint and the age of
the complainant, it should be threated with caution.
2. The SA Law Commission has recommended that the cautionary rule as it applies to children,
should be abolished, but this had not yet provoked any reaction by the government.
3. In this case the court held that one must guard against labelling children as "imaginative and
susceptible to influence".
4. The court followed a different approach, in which the child witness was viewed with less
scepticism.
5. The SCA holds that courts should assume a cautious approach in case of child witnesses
in appropriate conditions.
6. Court has to be sure child understands importance of telling the truth.
7. Trustworthiness depends on number of factors.
8. Trustworthiness depends on the child's ability to observe, to remember the observations and to
recall the events.
9. The current position is that the cautionary approach be applied to child evidence even though it
has been suggested that it should not be.
Witnesses – Accused persons

1. Accused person is a competent witness to testify in his / her own defence.

2. An accused is, however, not a compellable witness.
3. Neither state, court or co-accused may compel the accused to testify.
4. The choice rests solely with the accused.
5. Remember in terms of section 35(3) of the Constitution - Every accused person has a
right to a fair trial, which includes the right- (h) to be presumed innocent, to remain silent,
and not to testify during the proceedings; (i) to adduce and challenge evidence; (j)
not to be compelled to give self-incriminating evidence.
 Witnesses – Co-accused
1. A co-accused is where there are more than one accused persons in a case, where accused persons
are charged “jointly” – see section 157 of the CPA
2. An accused who testifies in his own defence may in the process give evidence favourable to a co-
accused.
3. But a co-accused cannot compel another accused to give evidence on his behalf.
4. An accused can also incriminate a co-accused.
5. But the state cannot call him as a witness for the prosecution since his competence is confined to
to being a witness in his own defence.
6. It is only by terminating his status as an accused in the same proceedings as the co-accused that
he can become a witness for the prosecution against his former co-accused.
7. Such a change of status can occur in the following ways, if:
1. The charge against the accused is withdrawn – note this is not an acquittal since the accused
can be recharged
2. The accused is found not guilty and discharged
3. The accused pleads guilty and separation of trials takes place
4. The trials are separated for another valid reason
8. At any point during trial, the court may order separation of trials of co-accused.
9. Then co-accused may give evidence against each other (but it’s advisable that the accused state
intends calling is convicted and sentenced first)
10. Since the former accused is also an accomplice the cautionary rule in this regard will apply
Witnesses – Co-accused

Section 157 of the CPA: Joinder of accused and separation of trials

1. An accused may be joined with any other accused in the same criminal
proceedings at any time before any evidence has been led in respect of the
charge in question.
2. Where two or more persons are charged jointly, whether with the same offence
or with the different offences, the court may at any time during the trial, upon
the application of the prosecutor or of any of the accused, direct that the trial of
any one or more of the accused shall be held separately from the trial of the
other accused, and the court may abstain from giving judgment in respect of any
of such accused.
 Witnesses – Spouses

1. Section 196 of the CPA provides for the evidence of accused and husband or wife on behalf of
accused
1) An accused and the wife or husband of an accused shall be a competent witness for the
defence at every stage of criminal proceedings, whether or not the accused is charged jointly
with any other person: Provided that-
a) an accused shall not be called as a witness except upon his own application;
b) the wife or husband of an accused shall not be a compellable witness where a co-
accused calls that wife or husband as a witness for the defence.
2) The evidence which an accused may, upon his own application, give in his own defence at joint
criminal proceedings, shall not be inadmissible against a co-accused at such proceedings by
reason only that such accused is for any reason not a competent witness for the prosecution
against such co-accused.
3) An accused may not make an unsworn statement at his trial in lieu of evidence but shall, if he
wishes to give evidence, do so on oath or, as the case may be, by affirmation.
 Witnesses – Spouses

1. The position regarding the competence and compellability of a spouse to be called as a witness
against his/her spouse dep[ends on the nature of the proceedings.
2. A partner is a civil union is also a spouse.
3. In civil cases: the spouse of a party is a competent and compellable witness for and against the
party concerned.
4. In criminal cases: a distinction must be drawn between where a spouse
1. of an accused testifies on behalf of the defence; and
2. is called as a prosecution witness.

Witness for defence

5. The spouse of an accused is a competent witness for the defence
6. If the spouse is called, he/she is both competent and compellable.
7. The spouse is also competent to be a witness for the co-accused but cannot be compelled to
testify

Example:
8. Mr Brawn and Mr Brains are co-accused. Mr Brawn wants to call Mrs Brains as a witness. Mrs
Brains is competent to testify in defence of Mr Brawn, but she cannot be compelled to do so. She
can, however, be compelled to testify in defence of Mr Brains.
9. The spouse is a competent and compellable witness for the accused but not compellable for a co-
accused.
10. In terms of the common law a former spouse is in the same position as a current spouse and hence
in terms of the law this should be seen to be the case
 Witnesses – Spouses

Witness for prosecution:

1. The spouse of an accused shall be competent, but not compellable, to give evidence for the
prosecution in criminal proceedings.
2. However, the accused’s spouse is competent and compellable to give evidence for the prosecution
at proceedings where the accused is charged with crimes falling into certain categories including,
any offence:
a) committed against the person of either of them or of a child of either of them;
b) under Chapter 8 of the Childcare Act committed in respect of any child of either of them;
c) under section 31 of the Maintenance Act;
d) of bigamy;
e) of incest as contemplated in section 12 of the Criminal Law (Sexual Offences & Related
matters) Amendment Act 32 of 2007;
f) of abduction;
g) of contravention of provisions of the Sexual Offences Act 1957;
h) of perjury;
i) of making false statements etc.
 Witnesses – Spouses

Witness for prosecution:

1. The rule of non-compellability is based on the consideration that the marital relationship
between the accused and his/her spouse should be protected.
2. However, in the case of the crimes above this consideration loses its validity since the crimes are
generally directed against the person of the spouse or one or their children, or they affect the
marriage in some way.
3. This means it involves some form of assault.
4. Generally, the spouse of an accused is a competent witness for the prosecution but cannot be
compelled. However, this is not the case in the instances mentioned in the previous slide.
5. It also applies to people who were married when crime took place (but have separated in mean time)
 Witnesses – Refreshing memory

1. The General Rule: is that witness are required to give independent oral testimony and are not permitted to
rely on, or refer to, a statement, note or document whilst testifying.
2. This rules gives the impression that preference is given to memory over writing as a means of preserving
evidence, whereas “Ink does not loose its hold on paper, as facts do on the memory”
3. Nevertheless, preference for oral evidence is a corner-stone of our commo law.
4. Section 222 of the CPA and Chapter IV of the CPEA amended this position somewhat.
5. Owing to the fallibility of memory, the complexity of some issues and lapse of time, witness may be given
time to refresh their memory as a necessary exception – with reference to an earlier “record” i.e. statement,
tape recording etc.
6. The Legal principle is that whether a witness may refresh his/her memory depends on whether the witness
wants to refresh his/her memory:
1. before testimony / during adjournment
• there is no general rule that prevents from reading witness statement / other statement drawn up
soon after event before / during.
• In fact, this practice should be encouraged
• If the witness memorized the content of the statement, then the statement must be produced.
• If it is clear that the witness is testifying from memory the document need not be produced.
• Can the court adjourn for this purpose? See R v Da Silva – p 474.
2. by referring to a document while in witness box.
 Witnesses – Refreshing memory while in the witness box
Certain requirements must be met before a witness in the witness-box may refresh his memory from an earlier
record.
The party who wishes to refresh the memory of the witness must prove that there requirements have been met:
1. Personal knowledge of the event:
• The witness must have had personal knowledge of the event recorded and a finding to this effect is
necessary
• The need for this requirement is to avoid the inadvertent admission of hearsay
• Inferences drawn from circumstantial evidence can assist the court in determining the presence or
absence of personal knowledge.
2. Inability to recollect: it must be shown that the witness is unable to recollect fully a matter on which he is
being examined. The court should be satisfied that the witness’s claim that he cannot recollect is genuine.
3. Verification of the document used to refresh memory:
 The witness must have made the recording, but it is also acceptable that the witness could use the
record of someone else where the recording took place on the instruction of the witness or where the
witness read the record and accepted its accuracy.
 It must be shown that the facts were fresh in the mind of the witness when he made the recording or
gave the instruction or read and verified the recording.
4. Fresh in the memory: the test is whether the writing came into being (or were verified) at a time when the
facts were still fresh in the memory of the witness.
5. Use of original document: This rule may be departed from where the opposition does not object pr where it
can be shown the original was destroyed. Where the original is not used the accuracy of the copy or extract
must be proved.
6. Production of the document: The document used to refresh memory must be made available to the court
and the opponent to enable them to inspect it.
 Witnesses – Refreshing memory while in the witness box

In R v O’Linn 1960 (1) SA 545 (N)

1. Facts
1. This was an Appeal of a conviction in the Magistrates Court
2. The efficacy of the state relying on stopwatches, record of events and ticket issued was
questioned.
3. A £ 6 speeding ticket was issued for driving 50mph in a 35mph zone.
2. The issue was whether the witness may refresh memory.
3. The Witness for the state was Insp Clark who wished to refresh his memory by viewing the ticket.
4. The State was permitted to do so in the circumstances.
5. There was Condonation of the general rule that witnesses are required to give independent oral
testimony and not permitted to rely on/ refer to earlier record,
6. However, owing to the fallibility of memory, and the complexity of some issues or the lapse in time
since the event, the witness may be given time to refresh memory as necessary exception.
7. The Court found in favour of the State.
 Witnesses – Refreshing memory
The probative vale of a document used to refresh memory

The probative value of the document used to refresh memory depends on one of three possible
situations:
1. Present recollection revived: oral evidence is received in this instance. The memory is merely
“triggered" and the witness testifies on his own “mental power”
2. Past recollection recorded: The document is accepted as the evidence because the witness
cannot remember at all, but the witness confirms that he wrote the statement, made the recording
etc. This does not circumvent the hearsay rule because the witness confirms this was his/her record
of the events at the time. It does not circumvent the rule against previous consistent statements
either, because the witness is not trying to confirm what he is saying by referring to / based on
his/her prior statement.
3. Conduct of the cross-examiner:
1. If the cross examiner confines his / her questions to those parts of the documents use by the
witness to refresh his/her memory the document does not become evidence.
2. But if he cross examines on other parts of the document he “lets in the whole, and that part
referred to by the witness originally also becomes evidence”
3. A document received in this way has extremely limited probative value – it can merely show
consistency or inconsistency and cannot corroborate the witness.
4. The general rule against self-corroboration remains intact.
Witnesses – summary

1. The competence of witnesses has to do with whether a particular person has the mental
capacity to testify.
2. Compellability, on the other hand, has to do with whether such a person can be forced to
testify.
3. It is presumed that all persons are competent to testify and compellable, since it is in the
interests of justice that every person who may have something to contribute to the
resolution of a dispute should do so
4. There may, however, be circumstances where a person will not be competent to testify,
for example in the case of children, mentally disordered persons and officers of the
court.
5. There may also be circumstances under which a person cannot be compelled to testify.
In such cases (spouses, the accused and the co-accused), it is important to determine
whether such a person is a witness for the defence or a witness for the prosecution.
End of Unit 4, Part 2, 3 and 4

Questions?