Law of Evidence

• Citation: 2021/2022 YSAL 917
• Published date: 14 April 2023
• Pages: 917-952
• Author: Schwikkard, P.J.
• Date: 14 April 2023

917

1. INTRODUCTION

The year under review did not see any star tling developments in the law

of evidence. Although further light was shed on t he impact of s 35 of the

Constitution on the admi ssibility of evidence, precisely what inferenc e can

be drawn from an accused’s exercise of the right to rema in silent at trial

as well as the rights of suspect s remains uncle ar. A number of judgments

provided useful guidanc e on how best to evaluate evidence but none broke

new ground. Nevertheless, a couple of judgments were particularly notable,

namely Meyer J’s judgment demonstrating the dangers of relying on

demeanour1 and the dissenting judgment of Unterhalter AJA persuasively

questioning whether cro ss-examinat ion is compromised when an extra-

curial statement is reca nted.2

2. LEGISLATION

The Crimina l and Related Matters Amendment Act 12 of 2021 was assented

to on 25 January 2022; the date of commencement is still to b e proclaimed.

Its relevance in relation to evidence pertai ns to the extension of the us e of

intermediaries a nd the giving of evidence through audio-visual lin ks.3

* BA (Wits) LLB LLM (Natal) LLD (Stell); Professor of Law, University of Cape Town.

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

1 See 3.4 below.

2 See 3.8.2 below.

3 These provisions were discussed in PJ Schwikkard ‘Law of Evidence’ (2020/2021) 2

Yearbook of South African Law 921–922.

Law of EvidenceLaw of Evidence

Pamela-Jane Schwikkard*

2021/2022 YSAL 917

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YeArbooK oF south AFrICAN LAW

918

3. CASES

3.1 AFFIDAVIT

The appellant in Kouwenho ven v Minister of Police4 sought, inter alia, to strike

out an affidavit by a police officer which had been at tested to by another

police officer. It was argued that as the attesti ng police office was ‘employed

in the same office as t he deponent, she had an interest in the litigation, [and]

that disqualif ied her from acting as a commissioner of oaths’.5

Regulation 7(1) of the Regulations Governing the Admini stration of an

Oath or A ffirmat ion6 prohibits a commissioner of oaths from admi nistering

an oath or affirm ation relating to a matter in which t he commissioner has

an interest. In terms of reg 7(2), the prohibition does not apply when the

commissioner ‘is not an attorney and whose on ly interest therein arises out

of his employment and in the course of h is duty’.

Wallis JA, after a comprehensive overview of the applicable case law,7

held that it was clear from the regul ations that ‘[i]f the only interest arises

out of the commissioner’s employment and in the course of their duty, it does

not fall under reg 7(1).’8 It was clear on the facts of the case that the attest ing

police officer had no interest in t he matter, she had not been involved in any

way in the proceedings agai nst the appellant, and she commi ssioned the

affidavit simply because she was a police officer and was avail able to do so.9

3.2 CONSTITUTIONAL RIGHTS

3.2.1 The r ight to challenge evidence

Sec tion 35(3)(i) of the Constitut ion prescribes the right to challenge evidence

as a component of the right to a fair tria l. The precise scope and content of

the right to challenge evidence cont inues to be scrutinised by the courts.

Amongst the plethora of issues that arose i n S v Soni10 was the admissibi lity

of the evidence of a state witness (S). S testified and was cros s-examined.

However, later on in the trial, the prosecution sought to have a video taken

by S admitted into evidence (this video had been r eferred to in S’s evidence-

in-chief but at that stage the state had not sought to have it admitted i nto

evidence.) The defence challenged the admissi bility of the video. The tria l

court determined t hat a trial-within-a-t rial should be held to determine

the video’s admissibility. S was recalled and testif ied to the circumst ances

4 2022 (1) SACR 164 (SCA).

5 Para 28.

6 Published in terms of s 10 of the Justices of the Peace and Commissioner of Oaths Act 16

of 1963, GN R1258 in GG 3619 of 21 July 1972.

7 Paras 29–41.

8 Para 35.

9 Para 36.

10 2021 (2) SACR 241 (SCA).

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LAW oF evIdeNCe 919

in which the video was recorded and provided a n explanation for aspects

of the oral content. He was then cross-exa mined. The tria l court admitted

the video and the evidence given at the tr ial-within-a-trial, a nd gave leave

for a number of witnesses, includi ng S, to be recalled for further c ross-

examination. However, the court also clearly restr icted the scope of cross-

examination to issue s that had not previously been canvassed in cro ss-

examination. Unfort unately, before S could be further cross-exa mined, he

died.

The defence, invoking the constitution al right to challenge evidence,

argued that as S’s cross-exami nation was incomplete all of S’s testimony

should be excluded from cross-exam ination. The trial court held that given

the extent of the prior cross-exa mination that had taken place, there was no

prejudice to the accused and no in fringement of his rig ht to a fair trial in

admitting both S’s evidence and the evidence of the video. On appea l, the

appellant argued that the t rial court had erred a nd that admission of the

evidence infri nged his right to a fair trial.

The Supreme Court of Appeal (SCA) noted that ‘the right to challenge

evidence includes the right of the accuse d in a crimin al trial to cross-

examine the wit nesses whose evidence is led by the state’.11 It identif ied

two approaches that the courts have taken i n circumsta nces where cross-

examination is no longer possi ble. The first approach is a discret ionary

approach, taking into account case -specific considerations such as: the exte nt

to which cross-exa mination was curta iled; the nature of the evidence not

subject to cross-ex amination; the reliabi lity of evidence; and the presence

of other confirmatory ev idence.12 The second approach is that cross-

examination is a f undamental right that is es sential to trial fa irness and

evidence not subject to cross-ex amination must be excluded irresp ective of

the degree of breach.13

The approach taken by the SCA in Soni is closer to the second position.

The court held that a ‘trial court should not engage i n conjecture as to what

the cross-exam ination would have been likely to yield’;14 the priority is to

ensure the right to a fai r trial of which cross- examination is a n essential

component. In these circu mstances, the best way to secure a fa ir trial is

to exclude the evidence.15 However, that does not necessar ily mean all the

evidence of the witness who is now not available for cross-ex amination must

be excluded. In Soni, it was clear that the accused had been g iven a third

circumscr ibed opportunity to c ross-exami ne S. Cross-examin ation was

11 Para 82.

12 Para 83.

13 Para 83.

14 Para 84.

15 Para 84.

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