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 startling developments in the law

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

Constitution on the admissibility of evidence, precisely what inference can

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

as well as the rights of suspects remains unclear. A number of judgments

provided useful guidance 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 cross-examination 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 be proclaimed.

Its relevance in relation to evidence pertains to the extension of the use 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.

1See 3.4 below.

2See 3.8.2 below.

3These 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

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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 attested 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 Administration of an

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

an oath or affirmation relating to a matter in which the 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 regulations 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 against the appellant, and she commissioned 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 trial. 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 cross-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 into

evidence.) The defence challenged the admissibility of the video. The trial

court determined that a trial-within-a-trial should be held to determine

the video’s admissibility. S was recalled and testified to the circumstances

42022 (1) SACR 164 (SCA).

5Para 28.

6Published 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.

7Paras 29–41.

8Para 35.

9Para 36.

102021 (2) SACR 241 (SCA).

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LAW oF evIdeNCe919

in which the video was recorded and provided an explanation for aspects

of the oral content. He was then cross-examined. The trial court admitted

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

for a number of witnesses, including S, to be recalled for further cross-

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

examination to issues that had not previously been canvassed in cross-

examination. Unfortunately, before S could be further cross-examined, he

died.

The defence, invoking the constitutional right to challenge evidence,

argued that as S’s cross-examination 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 infringement of his right to a fair trial in

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

appellant argued that the trial court had erred and 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 accused in a criminal trial to cross-

examine the witnesses whose evidence is led by the state’.11 It identified

two approaches that the courts have taken in circumstances where cross-

examination is no longer possible. The first approach is a discretionary

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

to which cross-examination was curtailed; the nature of the evidence not

subject to cross-examination; the reliability of evidence; and the presence

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

examination is a fundamental right that is essential to trial fairness and

evidence not subject to cross-examination must be excluded irrespective 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-examination would have been likely to yield’;14 the priority is to

ensure the right to a fair trial of which cross-examination is an essential

component. In these circumstances, the best way to secure a fair trial is

to exclude the evidence.15 However, that does not necessarily 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 given a third

circumscribed opportunity to cross-examine S. Cross-examination was

11Para 82.

12Para 83.

13Para 83.

14Para 84.

15Para 84.

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