FOUNDATION PRINCIPLES OF
EVIDENCE
The A.R.R(t).O.W.E of evidence
(A) Admissibility
(R) Relevance & admissibility
(Rt) Relevance test
(O) Onus of proof
(W) Weight of evidence & proof
(E) Evaluating evidence & standard of proof
(A) ADMISSIBILITY of evidence at the beginning of trial proceedings
(chp 6):
• The rules of relevance determine the admissibility of potential evidence
(i.e. information which may or not be relevant) (see introduction lecture)
• Evidence is admissible if it is relevant and inadmissible if it is
irrelevant.
• Admissibility is an absolute concept – there are no degrees of
admissibility (pg 23)
• Admissibility is also a basic criterion in determining the weight of evidence.
(R) RELEVANCE & admissibility (pg 54-56)(chp 15)
Admissibility of evidence is determined by relevance.
Relevance is a matter of degree and is influenced by a number of
factors.
Where evidence is highly relevant it is admissible but where evidence
has a low/weak degree of relevance it is inadmissible
Relevance is defined in two different ways:
• the positive form: ‘Evidence is admissible if it is relevant’.
• the negative form: ‘No evidence shall be admissible which is
irrelevant or immaterial’;
• The positive form is found in the common law, while the negative form
is set out in s 210 CPA; s 2 CPEA.
Irrelevant evidence is excluded for several reasons:
• admitting irrelevant evidence will increase the duration of the trial -
wasting time and raising costs.
• the presentation of irrelevant evidence obscures the facts-in-issue,
causing parties to lose focus on relevant matters and requiring them to
spread their resources more thinly.
• It also has the potential to prejudice a party – i.e. causing a loss of
focus, and it may prejudice the court against a party.
(Rt) RELEVANCE’ has been described as:
An evidentiary fact (i.e. facta probantia) is relevant where it help to
prove (or disprove) the probable existence (or non-existence) of a fact-
in-issue (i.e. the facta probanda).
Or
‘Relevance means any two facts to which it is applied are so
related to each other that according to the common course of
events one either taken by itself, or in connection with other
facts, proves or renders probable the past, present, or future
existence, (or non-existence) of the other.’
(JF Stephen Digest of the Law of Evidence 12 ed (1914) Art 1)
Essentially; if an evidentiary fact assists the court in proving a
substantive fact-in-issue, it is relevant.
SA LAW
(relevance)
(R/D)
(English)
SUBSTANTIVE LAW
PROCEDURAL LAW
i.e. contract; delict;
Law of evidence
crim/offence
FACTA
(relevant) FACTA PROBANTIA
PROBANDA
(Evidentiary Facts
Facts-in-issue which LOGICAL CONNECTION
which prove the
make up the dispute
facts-in-issue)
or offence
LOGICAL RELEVANCE
Determining the relevance of evidence is the function of
the judicial officer -
i.e. determining the logical connection between the facta probanda
and the facta probantia
Schreiner JA (R v Matthews 1960 (1) SA 752 (A) at 758) described
logical relevance as based on a blend of:
common sense,
logic and experience.
However, exercising this common sense, logic, and experience is not
unfettered and several factors/guidelines must be taken into account.
THE TEST FOR RELEVANCE
(A) There are several practical common sense factors which determine
logical relevance:
a close logical connection must exist between the facta probanda and the facta
probantia.
Where the logical connection is close the evidentiary facts (facta probantia) are relevant
to the facts-in-issue of the dispute or offence (facta probanda)
Where the logical connection is remote the evidentiary facts are not relevant to the facts-
in-issue of the dispute or offence
(B) Logically relevant Evidence is inadmissible:
Where the procedural prejudice of its reception at trial outweighs its logical relevance
Procedural prejudice includes:
an investigation into collateral issues of the evidence - peripheral issues are mostly
irrelevant and costly to examine
a high risk that the evidence is manufactured/forged
(C) Certain legal rules exclude logically relevant evidence:
logically relevant evidence may be inadmissible if it was illegally obtained, or obtained
in breach of the Constitution
if it is privileged
Logically relevant evidence is inadmissible if its use is prevented by another rule or
specifically by legislation
(A) LOGICAL RELEVANCE
What inference can be drawn from the closeness or
remoteness of the connection between a fact-in-issue
and an evidentiary fact:
A close connection - a strong inference can be
drawn that the evidentiary fact is highly relevant and
admissible;
ADMISSIBILITY
(B) PROCEDURAL PREJUDICE
Where the logical relevancy of an evidentiary fact
outweighs its procedural prejudice it will be
admissible;
Where the procedural prejudice of receiving the
evidentiary fact outweighs its logical relevancy it
will be inadmissible
(C) LEGAL RULES
Exclusionary rules – policy reasons:
privilege, infringements of dignity, privacy, etc;
Constitutional exclusion: s 35(5) illegally
obtained evidence;
Exclusionary rules in other legislation
(O) ONUS OF PROOF FIXED OVERALL BURDEN:
CHP 7 determines which party bears
the onus of persuading the court
that the quantum of evidence
meets the required standard of
proof
EVIDENTIARY BURDEN
(REBUTTAL BURDEN):
ONUS OF
shifts between the parties
PROOF depending on who has
established a prima facie case
DUTY TO BEGIN:
In criminal cases – always rests
on the state
In civil cases - may rest either
on plaintiff or defendant
(W) WEIGHT & PROOF (CHP 6; pg 57-59)
Determining weight of evidence is a three step process:
First step – Determine admissibility - establish the relevant probative value of
evidence according to the test of relevance above:
At this stage, the inquiry is whether or not the potential evidence has a high
enough degree of relevance (OR a high degree of relevant probative value) to be
admitted in court.
Second step – evaluate the probative value of evidence as proof of a fact-in-
issue:
Once the court has admitted all the relevant evidence, the next step is to evaluate
the evidence for its probative value ( or weight).
At this second stage the admitted relevant evidence becomes proof of a fact-in-
issue
Third step – determine the quantum (quantity) and probative value (quality) of the
admitted evidence in order to meet:
the civil standard of proof – proof upon a balance of probabilities;
the criminal standard of proof – proof beyond a reasonable doubt
Note: that the term probative value is used in two senses:
1. To establish the degree of relevance necessary for potential evidence to be admitted;
2. To establish the evidence’s persuasive value as proof of a fact-in-issue
the degree of relevance of
evidence required for
admissibility at the
beginning of trial
ASSESSING THE
PROBATIVE VALUE OF
the weight (or cogency) of
EVIDENCE ALLOWS FOR
evidence during trial
THE DETERMINATION
OF>>>>
the quantum of evidence
required to meet the
standard of proof at the end
of trial
TRIAL- WITHIN - A TRIAL PROCEDURE (chp 55)
• A trial-within-a-trial:- the procedure to determine whether a evidentiary
fact is admissible.
• Where, at any point in a trial, the admissibility of evidence is placed
in dispute (i.e, objected to by any party) the proceeding is suspended
and a mini-trial is conducted wherein both sides present argument as
to the admissibility of evidence objected to by a party.
• The court will then decide whether the evidence is admissible:
If so, the trial will resume and the evidence will be admitted.
If not, the trial will resume without the evidence being admitted
(E) EVALUATING evidence (p 58-59):
1) All the admitted relevant evidence must be weighed up as a whole – not
on a piecemeal basis.
2) The court must draw correct inferences from the admitted evidence
(logical conclusions based on proved facts) and must avoid conjecture
and speculation.
Other factors to be considered:
Evidence may need to be corroborated – e.g a confession;
The credibility/demeanour of a witness giving oral evidence must be
determined;
Evidence may be Direct (has a high probative value) or circumstantial
(not so High).
STANDARD OF PROOF
CERTAINITY
BEYOND A REASONABLE DOUBT
REASONABLE DOUBT
BALANCE OF PROBABILITY
CI
Criminal
VI
L PROBABLE Standard
CI
Civil CI
Standard STRONG POSSIBILITY
L
CI
VI REMOTE POSSIBILITY
L
IMPOSSIBILITY
