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  • Is the evidence of testimony by the technician admissible?
  • Is the evidence of testimony by the arresting officers admissible?

Real Evidence and Oral Evidence

Criminal Procedure Act 1977, s. 210 – states how evidence can be considered admissible

Any form of evidence that is relevant is considered to be admissible in the courts. Such evidence is capable of proving the validity of the disputed facts of the case as per section 210 of CPA 1977 (Bellengere et al., 2019, p. 105). Blood tests are considered to be real evidence, and the accompanying expert opinion would also be a part of such evidence. Real evidence is considered to be that evidence that is material in nature and can be examined by the court due to the tangible nature of such evidence (Praladh and Wyk, 2022, p. 3). Thus, in the given case, the technician who conducted the analysis on the blood sample of X would be considered to be providing real evidence as he would help provide clarification on the blood sample test and its relevance.

Evidence from a witness is considered to be oral evidence. It is the first-hand account that is provided by the witness to the court in relation to the concerned facts of the case (Bellengere et al., 2019, p.80). Thus, the evidence provided by the police officers would be considered to be oral evidence as they witnessed X walk unsteadily to his vehicle and arrest him on the basis of his unsteady walk. In relation to the admissibility of the evidence, it is required to have some form of relevance to the facts of the case and must be capable of proving the truthful or false nature of the facts of the case (Schwikkard and Merwe, 2020, p. 4). Furthermore, as per section 210 of the Criminal Procedure Act, the evidence which does not help in proving or disproving any of the facts in issue of the case will be considered inadmissible (Bellengere et al., 2019, p. 163).

Conclusion:

The testimony by the technician would be considered to be admissible evidence due to the relevance it holds in relation to the disputed fact of whether X was driving under the influence of alcohol. The evidence provided by the arresting officers does not help decipher whether X had been driving under the influence of alcohol or not, and thus would be considered inadmissible.

  • How can documents which are not originals be considered admissible in the court?
  • How can the contents of the document be authenticated?

R v Ernesta & Ors (2017) – Photocopies of primary document are admissible evidence

As per the R v Daye [1908] case, any document in writing is considered documentary evidence. Furthermore, evidence that can be stored and recorded in any device would also be regarded as documentary evidence (Bellengere et al., 2019, p. 102). One of the primary attributes for documentary evidence to be considered admissible is that of originality (Bellengere et al., 2019, p. 103). However, in certain conditions, producing the original during the court trial can be waived, and a certified copy of the original document may be produced (Bellengere et al., 2019, p. 107). Therefore, certified or stamped copies of the concerned bank statements may be produced at the trial as the original documents had been lost due to a fire. Photocopies of the primary documentary evidence of the case have also been considered to be admissible in the case of R v Ernesta & Ors (2017).

Documentary Evidence

 When the contents of the document are in dispute in relation to the facts in issue of the case, the signatory, or author, or any individual who witnessed the signing of the document can be called for providing proof of authenticity of the documents (Bellengere et al., 2019, p. 108).

Conclusion:

Therefore, a certified copy of the original document can be provided with a justification for the lack of the original. Relevant parties who had signed the original bank documents or parties who had witnessed the signing can be called to the court for proving the authenticity of the statements.

How should the admissibility of the evidence provided by the expert witness be treated?

Gentiruco AG v Firestone SA (Pty)(Ltd) (1972) – Expert evidence is admissible if it is based on the expert knowledge of the expert

The primary rule followed in determining the admissibility of evidence by expert witnesses is that such evidence is considered admissible (Bellengere et al., 2019, p. 209). In the Gentiruco AG v Firestone SA (Pty)(Ltd) (1972) case, it was held by the courts that expert witness is considered to be admissible by such evidence being based on extensive knowledge of the expert in the field, which is beyond the competence of the courts. However, the admissibility of such evidence would be determined based on certain conditions. One of the conditions is that the expert witnesses must provide the rationale for their opinions with valid and logical proofs based on research (Bellengere et al., 2019, p. 217). The expert must be able to justify their inference regarding a fact of the case based on information from their expert field and must be able to prove the probative value of their evidence. The expert must also not simply refer to an opinion; else, the evidence would be hearsay evidence (Bellengere et al., 2019, p. 217).

Accordingly, if the expert witness can substantiate the evidence that was said to her by the colleague with her personal expert knowledge and opinions as well, the evidence would be considered expert evidence and would be considered admissible. In case the expert witness cannot substantiate the evidence with expert knowledge, it would be considered hearsay evidence. Hearsay evidence is considered inadmissible unless it can be cross-examined and proven in the court regarding the factuality of the evidence (Ewaschuk, 1978).

Conclusion:

 Therefore, the admissibility of the evidence would depend on whether it can be cross-examined with the concerned colleague of the expert witness.

How was a dispute of fact resolved by the courts in the Stellenbosch Farmers’ case?

Stellenbosch Farmers’ Winery Group Ltd case (2003) – credibility of witnesses is to be taken into consideration

The Stellenbosch Farmers’ Winery Group Ltd case (2003) was about a disputed fact regarding the amount of sales volume target between the opposing parties for the fiscal year. Due to the large operational scales of the parties, huge sums of money would be in question even through a small amount of discrepancies in relation to the agreed-upon sales volume. Thus, it was a major disputed fact of the case. The court decided that for the purpose of coming to a conclusion in relation to the disputed facts of the case, the courts must base their findings on the basis of the credibility of the factual witnesses of the concerned case, the probabilities or improbabilities of the versions of the fact communicated by the witnesses, and the extent to which the witnesses may be considered reliable. These factors require observing various external factors, such as the candour of the witnesses, internal contradictions in their statements, the opportunities they had for observing the event related to the disputed facts, etc.

Expert Witness Evidence

 This principle was used in future cases, such as the case of the Department of Health, KZN v PSA (2018). The most reliable and accurate account was decided by applying the Stellenbosch principle after hearing the contradictory accounts provided by the witnesses of the employer and the witnesses of the employee  (SERR, 2022).

Conclusion:

Credibility and reliability of witnesses are important factors in deciding disputed facts of a case.

  • When should the cautionary rule be used?
  • Can the cautionary rule be used in cases of sexual offences?
  • Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007, s. 60
  • S v Jackson 1998 – cautionary rule is not to be used in cases of sexual offences

The cautionary rule is used by courts to evaluate evidence by certain witnesses for the purpose of determining the reliability of the evidence (Schwikkard and Merwe, 2020, p. 395). The rule may be used when determining the evidence provided by an accomplice to the crime, evidence provided by children, evidence for the identification of the accused, etc. This rule was also used in determining the reliability of evidence when women provided testimony in cases of sexual offences. In the past, women have been considered to be unreliable witnesses in cases of sexual offences. In the S v Jackson (1998) case, the rule was considered to be discriminatory against women and was also considered to unfairly raise the burden of proof in such cases. It was termed as ‘irrational’ and ‘outdated’ in the case because of the stereotypes it created against women in cases of sexual offences. Therefore, the rule was not to be applied for evidence provided by the complainant in cases of sexual offences, and such evidence would be considered reliable as decided in the S v Jackson (1998) case. It has also been abolished under section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007.

Conclusion:

While the cautionary rule is used in various circumstances, it is not used in cases of evidence provided by the complainant in cases of sexual offences.

  • How would the court treat the evidence of the wife in relation to competence and compellability?
  • Can the wife’s status as a foreign language speaker and a diplomat impact the competence of the evidence provided by her?

Criminal Procedure Act 1977, s. 192 – states mental capacity is an essential element to testify in courts

Criminal Procedure Act 1977, s. 196 (1)(b) – the wife or husband can be called as witness upon the application of the accused spouse

The court determines competence as per the ability of the witness to give evidence lawfully in the court. This is determined in accordance with the mental capacity of the witness who is to give the oral evidence in the court (Bellengere et al., 2019, p. 309). Furthermore, if the witness is competent to give evidence, the witness can also be compelled to give evidence in the courts. Mentally incompetent and intoxicated individuals are not considered competent for the purpose of providing testimony in court (Bellengere et al., 2019, p. 310). This is confirmed in section 192 of the Criminal Procedure Act 1977. Therefore, the man’s wife would be considered competent as she has the mental capacity to testify.

Furthermore, spouses are competent to testify against or in support of their spouses. However, they have the privilege of not disclosing the communications with their spouse and cannot be compelled to disclose the same (Bellengere et al., 2019, p. 311). Section 196(1)(b) of the Criminal Procedure Act 1977 also states that the spouse of the accused can be called for defence only through the application of the accused. Also, the spouse cannot be compelled to give evidence and will be considered incompetent to give evidence if they were a co-accused in the crime (Bellengere et al., 2019, p. 312). In this regard, the spouse of the accused will be considered competent and compellable for giving evidence in the court unless they are also co-accused along with the spouse. As per the facts of the case, the wife of the accused is not a co-accused but simply a diplomat and a foreign language speaker. Therefore, she would be considered legally competent to give testimony in the court and can also be compelled to give evidence if her husband applies for the same as per section 196(1)(b) of the Criminal Procedure Act 1977.

 Conclusion:

The wife’s evidence would be considered competent and compellable.

Why should the confession be considered inadmissible?

Criminal Procedure Act 1977, s. 217 – admission must be made voluntarily and freely

A confession is considered to be a statement that voluntarily admits to the guilt in relation to the offence (Bellengere et al., 2019, p. 450). This can have an adverse and detrimental impact on the accused and their status as an offender. If the statement comprises of all the elements of the crime, it is considered to be a confession (Bellengere et al., 2019, p. 451). In case the statement does not contain all the elements of the crime, it is not considered to be a confession. As per section 217 of the Criminal Procedure Act 1977, the admission must be made voluntarily and freely made and must not be unduly influenced into making the confession. Furthermore, as per section 217(i)(a), any admission to a peace officer cannot be considered admissible if it has not been made in writing in the presence of justice or magistrate. This helps prevent a trial by the police station instead of the court and is also crucial towards preventing forceful confessions from the accused. Therefore, for the purpose of proving the confession as inadmissible, it can be proven that the confession was not made as per section 217 of the Criminal Procedure Act 1977, and this would make the confession inadmissible in court. One of the primary methods of proving this would be that the confession was not taken in writing in the presence of a justice or magistrate officer. Other criteria should be the free and voluntary nature of the confession, and the confessor should also not be under any type of undue influence. Thus, it can also be proven that the client did not give the admission freely or that the client may have been under undue influence while giving the admission. This would lead to the confession being considered inadmissible.

Conclusion:

The client’s confession can be proven to be inadmissible by proving any of the criteria required under section 217 of the Criminal Procedure Act 1977 has not been met.

  • What will be the admissibility of the evidence of the audio recording?
  • What will be the admissibility of the evidence of the video recording?

Electronic Communications and Transactions Act 2002 (Act 25 of 2002), s. 15(1) – data messages are considered admissible

Criminal Procedure Act 1977, s. 210 – any evidence that does not help prove or disprove a fact is inadmissible

The relevant facts of the case are that accused A was charged with the murder of 6 people, and the State is in possession of video recordings where she requests the hitman to kill the people and audio recordings where she explains to the hitman the location of the relevant house. As per section 15(1) of the Electronic Communications and Transactions Act 2002, the rule is to consider data messages admissible. The admissibility of such evidence cannot be denied due to their presence as data messages. Furthermore, as per section 15 of the Act, the manner in which the data message was obtained and stored must also be taken into consideration to judge the reliability of the message. As per section 1 of the Act, data message refers to any data that was generated and stored electronically. Therefore, according to Electronic Communications and Transactions Act 2002, the recordings in possession of the State would be allowed to be presented in the court as valid evidence. However, with regards to the admissibility of the evidence, the evidence must be material. Any evidence which is immaterial and cannot conclusively help in proving or disproving a fact in issue of the case would be considered inadmissible in accordance with section 210 of the CPA 1977. Accordingly, while the video recording provides conclusive proof that A had requested the killing of the people, the audio recording does not prove any such fact. In the audio recording, A only explains where the house is situated, and this does not help prove or disprove that she was responsible for the killing. Therefore, only the video recording would be considered admissible evidence, while audio recording would be considered inadmissible evidence.

Conclusion:

While both the recordings can be presented in the court as per ECT Act 2002, only the video recording would be considered to be admissible evidence in the case.

References                                                          

Bellengère, A., Palmer, R., Theophilopoulos, C., Whitcher, B., Roberts, L., Melvilles, N. & Reddy, S. 2013. The law of evidence in South Africa: Basic principles. Oxford University Press Southern Africa (Pty) Limited

Criminal Procedure Act 1977

Electronic Communications and Transactions Act 2002 (Act 25 of 2002)

Ewaschuk, E.G.1978. “Hearsay evidence”. Osgoode Hall Law Journal 6(2): 407.

Gentiruco AG v Firestone SA (Pty)(Ltd) (1972)

Prahladh, S. & Van Wyk, J. 2022. “South African and international legislature with relevance to the application of electronic documentation in medicolegal autopsies for practice and research purposes”. Egyptian Journal of Forensic Sciences 12(1):1-7

R v Ernesta & Ors (2017) SCSC838

S v Jackson 1998 (1) SACR 470 (SCA)

Schwikkard, P.J. &  Merwe, S.E. 2020. Principles of Evidence. JUTA.

SERR. 2022. “Important Factors To Consider When Faced With Two Conflicting Versions At An Arbitration”. SERR Synergy. accessed 11 March 2022. https://serr.co.za/important-factors-to-consider-when-faced-with-two-conflicting-versions-at-an-arbitration>

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