Law of Evidence

• Author: Schwikkard, P.J.
• Published date: 28 March 2022
• Date: 28 March 2022
• Citation: 2020/2021 YSAL 921
• Pages: 921-945

921

1. INTRODUCTION

The year under review saw the introduction of legislation responding to

a diverse range of needs, including vulnerable witnesses, the enhanced

capabilities and evidentiary challenges brought about by developments in

technology and the application of the rules 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 and 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.

2. LEGISLATION

2.1 CRIMINAL AND RELATED MATTERS AMENDMENT BILL

The Criminal and Related Matters Amendment Bill1 introduces a wide

range of amendments, some of which are relevant to the rules 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 vulnerable witnesses

able to give evidence through an intermediary. Witnesses falling into the

specified categories are persons 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 case 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.

ORCID: https://orcid.org/0000-001-8705-3209.

1[B17 – 2020].

232 of 1944.

310 of 2013.

451 of 1977.

Law of EvidenceLaw of Evidence

Pamela-Jane Schwikkard*

2020/2021 YSAL 921

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YeArbooK oF south AFrICAN LAW

922

beyond witnesses below the age of 18 to include people suffering from a

mental health condition and older persons. The age differential between

men and women is a consequence of the definition 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 make provision for evidence to be

given via audiovisual link in civil proceedings. The proposed s51C(6) of

the Magistrates’ Courts Act and s37C(6) of the Superior Courts Act define

‘audiovisual link’ as meaning ‘facilities 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 permitting a witness to

testify by ‘audiovisual link’ requires the measure to prevent unreasonable

delay, to save costs and to be convenient, or to prevent prejudice or harm to

the witness. In addition to these two grounds being met, facilities must be

available and must allow visual and oral i nteraction between the courtroom

and the witness.

Clause 6 of the Bill seeks to amend s158(2)(a) of the Criminal Procedure

Act to make its provisions regulating testimony through electronic media

applicable to witnesses both in and outside the country. 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 under subpoena. This brings 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 language of s161 so that it no longer refers to deaf and

dumb witnesses and provides that the definition of viva voce includes

gesture-language by witnesses lacking a sense of hearing or the ability

to speak. In the case of a witness 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 other form

of non-verbal expression’.

These proposed amendments are to be welcomed because they extend

the protections afforded to vulnerable witnesses and are aligned with the

availability of reliable technology to facilitate the reception of testimony.

However, it is unclear on what basis the gendered distinction in the

definition of older persons is just ified.

513 of 2006.

6Section 7.

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