The law of evidence: Seven wishes for the next twenty years
Jurisdiction | South Africa |
Pages | 272-292 |
Citation | (2014) 27 SACJ 272 |
Author | Andrew Paizes |
Published date | 16 August 2019 |
Date | 16 August 2019 |
The law of evidence: Seven wishes
for the next twenty years
ANDREW PAIZES*
When I first came to the law of evidence many years ago as a law
student, I was immediately fascinated by its m any hues and textures.
Here was a subject unlike any other. It was neither substantive nor
entirely procedural; it rested upon archaic English foundations except
when it did not; it had rationalist undertones but was replete with
utterly counter-intuitive rules and propositions; it seduced with its
tantalising ideas and concepts, yet fr ustrated with its reluctance to
break free of hidebound thin king. In South Africa, in particular, where
we had inherited a system based on jur y trials, much seemed ripe for
reconsideration and reform.
In short, I was quickly hooked. There seemed to be few other
areas where an academic could so happily do what he enjoyed most –
complain about the way things are and point out ways to make things
better. As a young academic, I could not understand why the courts
refused to embrace the challenge themselves. If, for instance, you
have a rule that hearsay evidence should not be admitted because it is
potentially unreliable and prejudicial, and you have a rule that hear say
is, accordingly, inadmissible unless it falls within a recog nised, existing
exception, how can you defend a position that no new exceptions can
be created when you accept (as you must) that the existing exceptions
cannot possibly be exhaustive and that ins tances must arise where
reliable hearsay evidence demands, in the interests of jus tice, to be
received?
Many areas of the law seemed in dire need of a thorough re -
evaluation, and yet the courts lacked the boldness to jettis on outmoded
ideas, re-fashion the law, and set it upon more principled foundations.
I still believe it could have been done, even before the enactment of
the Constitution and the Bill of R ights. After al l, the courts always
recognised the import ance of a fair trial and the centra l position of
that right. But the jurisprudenti al climate was not conducive to such
fundament al changes.
The enactment of the 1996 Constitution swept away this i nertia and
complacency and created for the courts an impetus for fresh ideas a nd
innovation. The results have been hearteni ng. There is hardly an area
* BCom LLB PhD (Witwatersrand), Honorary Professor of Law, University of the
Witwatersrand.
272
(2014) 27 SACJ 272
© Juta and Company (Pty) Ltd
of the law of evidence that has not been affected by the exh ilarating
freedom of thought displayed since then. Others in th is series of articles
will outline and dis cuss the most notable of these achievements, and
it would be true to say that any textbook on the subject before 1996
would, to the modern eye, look strange and a little prim itive.
The courts have, on the whole, done well. Significant advances have
been made and many archaic notions have fallen away. No longer is
it necessary to seek refuge in arcane concepts such a s the res gestae
(which one writer once memorably described as a ‘vicious element
in our legal phraseology’1) to lubricate mechanisms th at would
otherwise fail to work. The ideas under pinning the law of evidence
have been exposed to rigorous examination, and what has sur vived
has been enriched by the certa inty that it has value and is worth
keeping.
The goal, however, is and should always be perfection. And against
this lofty sta ndard, there is work still to be done. In th is article, I have
set out a wish for every day of the week. The list is, if (I hope) not
idiosyncratic, a personal one. I do not claim th at these represent the
most glaring deficiencies in the law as it cur rently stands. But each is,
nevertheless, in my view important. In no pa rticular order, here they
are.
No 1: I wish that the courts would accept categorically that
the right of an accused to be presumed innocent admits of
no exception
There is no doubt that the Constitutiona l Court is opposed to
presumptions which place an onus on an accused. Its stance on
these ‘reverse onus’ provisions is well illustrated by the unani mous
judgment in S v Mbatha; S v Prinsloo2, where the cour t observed
that it was ‘one thing for the law to acknowledge the possibility of
wrongly but honestly convicting the innocent and then provide
appropriate measures to reduce the possibility of th is happening as
far as practicable’, but that it was ‘another for the law itself to heighten
the possibility of misc arriage of justice by compelling the tr ial court to
convict where it entertains real doubts as to c ulpability’.
But this opposition has not led to an absolute rule that reverse onuses
are never to be countenanced. In S v Zuma3 the court expre ssly
left the door open. The judgment in that ca se, said Kentridge AJ, did
‘not decide that all statutory provisions which create presu mptions
1 See J H Wigmore A Treatise on the Anglo-Am erican System of E vidence 3ed (1940)
vol 6 at para 1767.
2 1996 (2) SA 464 (CC) at [10].
The law of evidence: Seven wishes for the next twenty years 273
© Juta and Company (Pty) Ltd
To continue reading
Request your trial