An introduction to proof in South Africa
| Author | Mosaka, T.B. |
| DOI | https://doi.org/10.47348/SALJ/v139/i4a5 |
| Published date | 12 December 2022 |
| Date | 12 December 2022 |
| Citation | (2022) 139 SALJ 837 |
| Pages | 837-861 |
837
https://doi.org/10.47348/SALJ/v139/i4a5
AN INTRODUCTION TO PROOF
IN SOUTH AFR ICA
TSHEPO BOGOSI MOSA KA†
Lecturer, Depar tment of Public Law, Univer sity of Cape Town
The evaluati on of evidence is a pro cess about which not mu ch is written, no r is it
regulated as muc h as the comparable processes of ad missibility and forms of presentin g
evidence ar e in South African ev idence scholarship. Thi s article follows the exam ple set
by Paizes by arguing for t he introduction of a gene ral theory of ‘p roof’, which is used
interchangea bly with ‘evaluation’ in the ar ticle. After briey introduc ing the existing
doctrine, whic h consists mainly of a ha ndful of the rules and g uidelines that South
African co urts typically use to evaluate e vidence, the article oe rs six justications for
the introduction of a g eneral theory of proo f in South African e vidence scholar ship.
The third part o f the article gives a me thodological acco unt of what is meant by a
general theor y of evidential proof in S outh African ev idence scholarshi p. Part IV of
the article co mprises a discuss ion of the two foundationa l conditions required for a
South Afric an theory of proof.
Evidence – evalu ation – proof – legal theory – decolon isation – South
Afric a – New Evidence Scholar ship
I IN TRODUCT ION
On this 192nd anniversary of the law of evidence in South A frica,1 the
question with wh ich this article g rapples is not at all new. It has been rai sed
many times before, and most recently i n Ngubane: ‘How it is that, based
on pieces of information we may discer n about a past event, we may claim
adequate knowledge of that event’?2 A more captu ring formu lation is
‘[b]y what forensic a lchemy is “evidence” turned into “proof ”?’3 Wigmore
had already attempted to ‘cal l attention to the principles of Judicial Proof
(disting uished from Admissibility) as a whole and as a system’ over a
century ago.4 A burgeoning body of scholarship called ‘New Evidence
Scholarship’ has also arisen since the mid-1980s to interrogate ev idential
† LLB (Wit s) LLM (UCT) PhD ( Nottingham). https://www.orcid.org/0000-
0002-6021-9958. The article is d edicated to my tea cher, and now colleague,
Professor P-J Schwikkar d, for her continued mentorship and suppor t during my
inaugu ral year as a lecture r in the law of evidence.
1 Ordina nce for Alteri ng, Amendi ng and Decidi ng in Certa in Respects t he
Law of Evidence wit hin this Colony no 72 of 1 Ma rch 1830 was the rst evid ence
2 S v Ngubane 2021 (2) SACR 158 (GJ) pa ra 1.
3 Paul Roberts & Colin Aitken The L ogic of Forensic Pro of: Inferential Reaso ning
in Criminal Ev idence and Forensic Scien ce (Pract itioner Guide No 3) (2014) 41.
4 John H Wigmore T he Princip les of Judicial Proo f as Given by Logic, P sychology
and General E xperience an d Illustrated in Judici al Trials (1913) 2 .
(2022) 139 SALJ 837
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838 (2022) 139 TH E SOUTH AFRICA N LAW JOURNA L
https://doi.org/10.47348/SALJ/v139/i4a5
proof from multidisciplinary perspectives.5 However, these developments
are yet to reach South African shores.
South Afr ican courts t ypically apply at least a dozen common-law
principles and guidelines when evaluating evidence. First, the Supreme
Court of Appea l (and its predecessor, the Appel late Division) has repe atedly
held that a ‘piecemeal process of reasoning’ ought to be avoided and that
evidence should be assessed ‘holistically’ or i n its totality.6 Harms AJA is
typically cited in th is regard:
‘The correct approach is to weigh up a ll the elements wh ich point towards
the gui lt of the accused ag ainst al l those which ar e indicative of h is
innocence, t aking proper account of inherent strengths a nd weaknesse s,
probabilit ies and improba bilities on bot h sides and, hav ing done so, to
decide whether t he balance weighs so heavily i n favour of the State a s to
exclude any reasonable doubt about the acc used’s guilt.’7
Secondly, a myriad cautionary r ules, pert aining to single witnesses,8
identicat ion evidence,9 accomplice ev idence10 and the testi mony of
children,11 reect ‘the collective wisdom and exper ience of judges’ about
the reliability and cred ibility of cer tain types of evidence.12 Th irdly, f act-
nders are required to adhere to a corroboration ru le with respect to
confessions.13 The fourth evaluative guide is a version of what is known
as the complementational principle of neg ation, P [F] = 1 - P[not-F],
in probability theory.14 Paizes refer red to it as the ‘complementar ity of
5 For an overview of t he explosion of scholarship under the ‘New Evidence
Scholarsh ip’ banner, see Roger Park et al ‘Bayes wars rediv ivus — An excha nge’
(2010) 8 Internationa l Commentary on Ev idence 1; Michael S Pardo ‘The nat ure and
purpose of ev idence theory’ (2013) 2 Vanderbilt LR 547 at 553.
6 S v Sigwahla 1967 (4) SA 566 (A) at 569H (per Hol mes JA); R v Hlongwane
1959 (3) SA 337 (A) at 340H–341B (per Holmes AJA); S v Zith a 1993 (1) SACR
Aswegen 2001 (2) SACR 97 (SCA) para 8; S v Cha balala 2003 (1) SACR 134
S v Monyane 2008 (1) SACR 543 (SCA) para 21; S v Van Devent er 2011 (1) SACR
S v Doorewaard 2 021 (1) SACR 235 (SCA) para 133; S v Machi [2021] ZASCA 106
para 30.
7 Chabalala ibid pa ra 15; S v Sauls 1981 (1) SA 172 (A) at 180F; S v Dlamini
Oosthuizen ibid para 20.
8 Oosthuizen ibid paras 15–17.
9 Sauls supra note 7 at 180; S v Mth etwa 1972 (3) SA 766 (A).
10 S v Dos Santos 2010 (2) SACR 382 (SCA) pa ras 18–19.
11 S v Makayi 2021 (2) SACR 197 (EC B) paras 81–3.
12 David T Zeertt & A ndrew P Paizes The Sou th African La w of Evidence 3 ed
(2017) 1081.
13 Section 208 of the Cr iminal Procedu re Act 51 of 1977.
14 A lex Stein ‘The refou ndation of evid ence law’ (1996) 9 Canadian Journal
of Law & Juri sprudence 279 at 30 0; David H Mellor P robability: A Philosophical
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