Law of Evidence
| Jurisdiction | South Africa |
| Published date | 10 March 2021 |
| Citation | 2019/2020 YSAL 941 |
| DOI | https://doi.org/10.47348/YSAL/v1/i1a23 |
| Author | Schwikkard, P.J. |
| Pages | 941-968 |
| Date | 10 March 2021 |
941
1. INTRODUCTION
The reported cases deal ing with aspects of the l aw of evidence during the
period under review cover a wide range of evidence rules. Several judgments
provide useful guidance on t he evaluation of evidence and others grapple
(not always successfully) with providing consistency as to the mea ning of
frequent ly used terms.
The weak normative influence of the Cr iminal Law (Sexual Of fences
and Related Matters) Amendment Act1 is disappointing a nd a number of
judgments reflect a disju ncture between t he law and the development of
knowledge in the social scie nces. Nevertheless, the number and range of
cases reflect a n active engagement with and a contestation of the existi ng
rules of evidence that one hopes en hances clarity and understanding.
2. LEGISLATION
No significant legislat ion was promulgated in the period under review.
3. CASES
3.1 BURDEN OF PROOF AND DUTY TO BEGIN IN CIVIL TRIALS
Although conceptually there i s a clear distinction bet ween the terms burden
of proof or onus of proof, evidentiary burden and duty to begin, cour ts
sometimes use the word ‘onus’ to refer to any one of the three ter ms without
indicating which underlyi ng concept they intend to invoke. This may lead
to confusion. Insofar a s the allocation of the burden of proof in civil trial s is
determined by substant ive law, the court in Merryweather v Scholtz2 correctly
* BA (Wits) LLB LLM (Natal) LLD (Stell); Professor of Law, University of Cape Town.
1 32 of 2007.
Law of EvidenceLaw of Evidence
Pamela-Jane Schwikkard*
2019/2020 YSAL 941
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YEARBOOK OF SOUTH AFRICAN LAW
942
https://doi.org/10.47348/YSAL/v1/i1a23
applied Ma baso v Felix3 in holding that the onus to prove a justification or
an excuse based on sel f-defence rested on the defendant. This, as t he court
noted, also coincided with the r ules of pleading pertain ing to confession
and avoidance. However, what the judgment replicates is the absence of
clarity in Maba so v Felix regarding the difference between the onus of proof,
evidentiary burden and t he circumstance s in which more than one tr ue
onus can exist in a sing le trial subject to one only a rising after anot her has
been discharge d.
In a civil tria l, it appears that once an assault has be en established by the
plaintiff, it will be regarded a s prima facie unlawf ul and the defendant will
have the burden of proving that they acted with in the bounds of self-defence
on a balance of probabilities. However, as the italicised fragment of the previous
sentence never appears in the judgments referr ed to, it is unclear whether it
is indeed a full bu rden that arises once assault is proved. Further confusion
is also created in bot h judgments by the equation of the rules of pleadings to
the onus of proof. The pleadings require al l material facts on which a party
relies to be stated. This se emingly led the court in M abaso to conclude that
the burden of proof relates to factual, not legal is sues. It is possible that the
court intended the phrase ‘the burden of proof’ to refe r to the evidentiary
burden. So perhaps the burden of proof that rested on t he defendant in both
these cases was an ev identiary burden. This would be con sistent with the
ruling in Merryweather – the defendant, in the pleading s, having admitted to
assaulting the plaint iff (albeit in a different form), attracted the duty to begin
and the (evidentiary) burden to negate the unlawfu lness of the assault. Th e
overall burden of proving the unlawfulness of the attack on a balance of probabilities
remained with the plaintiff. Again, the italicise d sentence is merely conjecture,
as the court in neither Merryweather nor Mabaso drew a disti nction between
the different ty pes of burden.
3.2 DISCHARGE AT THE CLOSE OF THE STATE’S CASE
In terms of s 174 of the Criminal Procedure Act,4 an accused may be
discharged at the clos e of the state’s case if there is insuffic ient evidence
to sustain a conviction (if believed). The Supreme Court of Appeal has held
that an accused must be dis charged if there is no possibility of a conviction
other than if the acc used enters the witness box and incrim inates themself.5
In S v Letsoho6 the accus ed was charged with conspiracy, robbery with
aggravating circumsta nces and murder. At the close of the state’s case the
4 51 of 1977.
5 S v Lubaxa 2001 (2) SACR 703 (SCA).
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