About this module
The Law of Evidence teaches what material a court may consider, how it is placed before the court, and how the court weighs it to decide whether a fact has been proved. It covers relevance, character, opinion, hearsay, privilege, confessions and admissions, unconstitutionally obtained evidence, witnesses, the burden of proof, proof without evidence, the evaluation of evidence, and documents and electronic evidence. Educational tool, not legal advice. All law is South African.
Level: usually third or fourth year (LLB). Prior knowledge: Module 6 (Constitutional Law) and Module 11 (Criminal Procedure). Many rules here apply in both civil and criminal cases; where they differ, the guide says so.
How this guide teaches. Each chapter starts with a problem, gives the big picture, teaches the rules with case boxes (the legal issue, what the court held, and why it matters), lists common mistakes, sums up in short, and ends with practice questions, flashcards and a quiz. Cases are taught by the legal issue they decide, not by their facts.
Common cases and how they are checked
| Chapter | Case | Legal issue | Status (28 October 2026) |
|---|---|---|---|
| EV4 Opinion and expert evidence | Michael v Linksfield Park Clinic [2001] ZASCA 12; 2001 (3) SA 1188 (SCA) | Is a court bound by expert opinion, and how does it test it? | Read on SAFLII |
| EV5 Hearsay | S v Ndhlovu [2002] ZASCA 70; 2002 (6) SA 305 (SCA) | Is s 3 of the Law of Evidence Amendment Act constitutional, and how is it applied fairly? | Read on SAFLII |
| EV5 Hearsay | Mhlongo v S; Nkosi v S [2015] ZACC 19; 2015 (2) SACR 323 (CC) | Is an accused's out-of-court statement admissible against a co-accused? | Read on SAFLII |
| EV6 Privilege | Competition Commission v ArcelorMittal South Africa [2013] ZASCA 84; 2013 (5) SA 538 (SCA) | What are the requirements of litigation privilege, and when is privilege waived? | Read on the SA Law Library |
| EV7 Confessions | S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC) | Who must prove that a confession was voluntary? | Read on SAFLII |
| EV7 Pointings out | S v Sheehama [1991] ZASCA 45; 1991 (2) SA 860 (A) | Is a pointing out an admission that must be voluntary? | Read on SAFLII (Afrikaans judgment) |
| EV8 Unconstitutionally obtained evidence | S v Tandwa [2007] ZASCA 34; 2008 (1) SACR 613 (SCA) | How does s 35(5) apply to real evidence obtained through assault? | Read on SAFLII |
| EV8 Unconstitutionally obtained evidence | Mthembu v S [2008] ZASCA 51; 2008 (2) SACR 407 (SCA) | Does s 35(5) apply to evidence obtained by torturing a witness rather than the accused? | Read on SAFLII |
| EV9 Witnesses | DPP, Transvaal v Minister for Justice and Constitutional Development [2009] ZACC 8; 2009 (4) SA 222 (CC) | How must courts protect child witnesses, and must the court itself consider an intermediary? | Read on SAFLII (to para 123) |
| EV10 Examination of witnesses | President of the RSA v SARFU [1999] ZACC 11; 2000 (1) SA 1 (CC) | Must a cross-examiner put their case to a witness before attacking the witness's truthfulness? | Read on SAFLII |
| EV11 Burden of proof | S v Manamela [2000] ZACC 5; 2000 (3) SA 1 (CC) | When is a reverse onus unconstitutional, and what is the alternative? | Read on SAFLII (to para 63) |
| EV13 Evaluation | S v Jackson [1998] ZASCA 13; 1998 (1) SACR 470 (SCA) | Does a general cautionary rule apply to complainants in sexual offence cases? | Read on SAFLII |
| EV13 Evaluation | Stellenbosch Farmers' Winery Group v Martell et Cie [2002] ZASCA 98; 2003 (1) SA 11 (SCA) | How does a civil court resolve two irreconcilable versions? | Read on SAFLII |
Module blueprint
| Chapter | Question it answers | Outcome |
|---|---|---|
| EV1 Sources and basic concepts | Where does the law of evidence come from, and what are its key terms? | LEV1 |
| EV2 Relevance and admissibility | What makes evidence admissible at all? | LEV2 |
| EV3 Character and similar fact evidence | When may a court hear about a person's character or other misconduct? | LEV3 |
| EV4 Opinion and expert evidence | When may a witness give an opinion, and how is expert evidence tested? | LEV4 |
| EV5 Hearsay | What is hearsay, and when is it admitted? | LEV5 |
| EV6 Privilege | When may a person refuse to disclose relevant evidence? | LEV6 |
| EV7 Confessions, admissions and pointings out | When is an accused's out-of-court statement or conduct admissible? | LEV7 |
| EV8 Unconstitutionally obtained evidence | When must evidence obtained by violating a right be excluded? | LEV8 |
| EV9 Witnesses: competence and compellability | Who may, and who must, testify? | LEV9 |
| EV10 Examining witnesses | How are witnesses questioned, and how is credibility attacked or supported? | LEV10 |
| EV11 Burden and standard of proof | Who must prove what, and to what standard? | LEV11 |
| EV12 Proof without evidence | When can a fact be established without leading evidence? | LEV12 |
| EV13 Evaluating evidence | How does a court weigh the evidence and reach a finding? | LEV13 |
| EV14 Real, documentary and electronic evidence | How are objects, documents and data messages proved? | LEV14 |
EV1: Sources and basic concepts
Problem. A student says that the South African law of evidence is simply the English law of evidence. Is that right?
The big picture. The law of evidence is largely procedural law with an English common-law core. Where no statute provides otherwise, the criminal and civil statutes direct courts to apply the law of evidence as it stood on 30 May 1961 (the day South Africa became a republic): CPA s 252 for criminal cases and Civil Proceedings Evidence Act 25 of 1965 (CPEA) s 42 for civil cases. Since then, statute and the Constitution have changed much of it. The Constitution matters most through the right to a fair trial (s 35(3)), the exclusionary rule (s 35(5)) and the general limitation clause (s 36).
EV1.1 Key sources
- Common law as at 30 May 1961, mainly English law (CPA s 252; CPEA s 42), and later South African case law developing it.
- Statutes: Criminal Procedure Act 51 of 1977 (CPA), Civil Proceedings Evidence Act 25 of 1965, Law of Evidence Amendment Act 45 of 1988 (hearsay and judicial notice), Electronic Communications and Transactions Act 25 of 2002 (ECTA), and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
- The Constitution: fair trial rights, the exclusionary rule in s 35(5), and the duty to develop the common law (s 39(2)).
EV1.2 Key terms
- Facts in issue: the facts a party must prove to succeed (set by the elements of the crime, claim or defence, and the pleadings).
- Relevant facts: facts from which a fact in issue can be inferred.
- Admissibility: a question of law for the judge: may the court receive the evidence at all?
- Weight (probative value): a question of fact: how much does the evidence help to prove the fact in issue? Admissible evidence can carry little weight.
- Kinds of evidence: oral evidence (testimony), documentary evidence, real evidence (objects, places), and electronic evidence (data messages).
- Direct and circumstantial evidence: direct evidence proves a fact in issue if believed (an eyewitness); circumstantial evidence proves facts from which the fact in issue is inferred.
- Trial within a trial: a separate hearing to decide the admissibility of contested evidence, usually a confession or admission, where the accused may testify about admissibility only.
Back to the problem. Not quite. The residual law is English common law as it was on 30 May 1961, but statute, South African case law and the Constitution have changed it a great deal.
In short. Residual common law as at 30 May 1961 (CPA s 252; CPEA s 42), changed by statute and the Constitution. Admissibility is for the judge as a question of law; weight is a question of fact.
Common mistakes
- Confusing admissibility (may the court receive it?) with weight (how much does it prove?).
- Treating post-1961 English decisions as binding; they are at most persuasive.
EV1 practice
- A document is admitted but the court says it proves very little. Is that inconsistent? Answer: no; admissibility and weight are separate questions.
Flashcards
| Front | Back |
|---|---|
| Residual law of evidence (criminal) | Law as at 30 May 1961 (CPA s 252) |
| Residual law of evidence (civil) | Law as at 30 May 1961 (CPEA s 42) |
| Admissibility | A question of law: may the court receive the evidence? |
| Weight | A question of fact: how much does the evidence prove? |
| Circumstantial evidence | Evidence of facts from which a fact in issue is inferred |
| Trial within a trial | Separate hearing on the admissibility of contested evidence |
| Constitution s 35(5) | Exclusion of evidence obtained in violation of a right |
Quiz
- Whether evidence is admissible is decided by: (a) the jury (b) the presiding officer, as a question of law (c) the parties by agreement only. Answer: (b).