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 many 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 frustrated with its reluctance to

break free of hidebound thin king. In South Africa, in particular, where

we had inherited a system based on jury 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 hearsay

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 instances must arise where

reliable hearsay evidence demands, in the interests of justice, 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 Rights. After all, the courts always

recognised the importance of a fair trial and the central position of

that right. But the jurisprudential climate was not conducive to such

fundamental changes.

The enactment of the 1996 Constitution swept away this inertia and

complacency and created for the courts an impetus for fresh ideas and

innovation. The results have been heartening. There is hardly an area

* BCom LLB PhD (Witwatersrand), Honorary Professor of Law, University of the

Witwatersrand.

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(2014) 27 SACJ 272

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of the law of evidence that has not been affected by the exhilarating

freedom of thought displayed since then. Others in th is series of articles

will outline and discuss 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 primitive.

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 as the res gestae

(which one writer once memorably described as a ‘vicious element

in our legal phraseology’1) to lubricate mechanisms that would

otherwise fail to work. The ideas underpinning the law of evidence

have been exposed to rigorous examination, and what has survived

has been enriched by the certainty that it has value and is worth

keeping.

The goal, however, is and should always be perfection. And against

this lofty standard, there is work still to be done. In this 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 that these represent the

most glaring def‌iciencies in the law as it currently stands. But each is,

nevertheless, in my view important. In no particular 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 Constitutional Court is opposed to

presumptions which place an onus on an accused. Its stance on

these ‘reverse onus’ provisions is well illustrated by the unanimous

judgment in S v Mbatha; S v Prinsloo2, where the court 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 this happening as

far as practicable’, but that it was ‘another for the law itself to heighten

the possibility of miscarriage of justice by compelling the trial court to

convict where it entertains real doubts as to culpability’.

But this opposition has not led to an absolute rule that reverse onuses

are never to be countenanced. In S v Zuma3 the court expressly

left the door open. The judgment in that case, said Kentridge AJ, did

‘not decide that all statutory provisions which create presumptions

1 See JH Wigmore A Treatise on the Anglo-American System of Evidence 3ed (1940)

vol 6 at para 1767.

2 1996 (2) SA 464 (CC) at [10].

3 1995 (2) SA 642 (CC).

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