Law of Evidence

AuthorSchwikkard, P.J.
Published date28 March 2022
Date28 March 2022
Citation2020/2021 YSAL 921
The year under review saw the intro duction of legislation responding to
a diverse range of needs, including vul nerable witnesses, the enh anced
capabilities and evidentiary c hallenges brought about by developments in
technology and the application of the r ules of evidence in a context very
disparate from the context in whic h they evolved.
These developments are to be welcomed; however, the reported cases too
frequently expose the gap bet ween social science research and t he premises
on which the rules of evidence were formulated a nd are currently applied.
Consequently, the South African law of evidence appears to lag behi nd that
of other jurisdiction s as regards the protection of vulnerable witnesses a nd
the capacity to enhance t he truth-seeking function of t he court.
The Crimina l and Related Matters Amendment Bill1 i ntroduces a wide
range of amendments, some of which are relevant to the r ules of evidence.
Sections 1 and 18 of the Bill se ek to amend the Magistrates’ Courts Act2 and
the Superior Courts Act3 to extend the categories of vu lnerable witnesses
able to give evidence through an intermedi ary. Witnesses falling into t he
specified categories are pe rsons below the biological or mental age of 18,
persons sufferi ng from mental health conditions, and older persons (over 65
in the case of men, and over 60 in the ca se of women). Section 8 of the Bill
amends s170A of the Criminal Procedure Act4 so as to extend its application
* BA (Wits) LLB LLM (Natal) LLD (Stell); Professor of Law, University of Cape Town.
1 [B17 – 2020].
2 32 of 1944.
3 10 of 2013.
4 51 of 1977.
Law of EvidenceLaw of Evidence
Pamela-Jane Schwikkard*
2020/2021 YSAL 921
© Juta and Company (Pty) Ltd
YeArbooK oF south AFrICAN LAW
beyond witnesses below the age of 18 to include people suffering from a
mental health condition and older persons. T he age differential bet ween
men and women is a consequence of the defi nition provided in s 1 of the
Older Persons Act;5 it is difficult to see how thi s will survive constitutional
scrutiny when applied to witnesse s, due to the absence of any rational basis
for making the di stinction.
Clauses 1 and 18 of the Bill also mak e provision for evidence to be
given via audiovisual link i n civil proceedi ngs. The proposed s 51C(6) of
the Magistrates’ Courts Act and s 37C(6) of the Superior Courts Act define
‘audiovisual link’ as meaning ‘facilitie s that enable both audio and visual
communications bet ween a witness and persons at a courtroom in r eal-time
as they take place’. The prerequisites for an order permitti ng a witness to
testify by ‘audiovisual link’ requ ires the measure to prevent un reasonable
delay, to save costs and to be convenient, or to prevent prejudice or harm to
the witness. In addition to thes e two grounds being met, facil ities must be
available and must allow visual and oral i nteraction between the courtroom
and the witness.
Clause 6 of the Bill seeks to a mend s158(2)(a) of the Criminal Pro cedure
Act to make its provisions regulati ng testimony through elec tronic media
applicable to witnesses both in and outside the cou ntry. In addition, a new
sub-s (6) provides that a witness who testifies fr om outside the country wil l
be regarded as a witness who is u nder subpoena. This bri ngs certainty as
regards the applicability of s158 to witnesses located outside of the Republic.
The Bill,6 in line with the constitutional imperative to respe ct the dignity
of all, amends the lang uage of s161 so that it no longer refers to deaf and
dumb witnesses and provides th at the definition of viva voce inc ludes
gesture-language by wit nesses lacking a s ense of hearing or the abi lity
to speak. In the case of a wit ness below the age of 18 or a witness ‘who
suffers from a physical, psychological, mental or emotiona l condition which
inhibits the abil ity of that witness to give hi s or her evidence viva voce’, viva
voce will be ‘deemed to include demonstrations, gestures or any othe r form
of non-verbal expression’.
These proposed amendments a re to be welcomed because they extend
the protections afforded to v ulnerable witnesses and a re aligned with t he
availability of reliable tech nology to facilitate the reception of test imony.
However, it is unclear on what basis the gendere d distinction i n the
definition of older persons is just ified.
5 13 of 2006.
6 Section 7.
© Juta and Company (Pty) Ltd

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT