Documentary
Evidence
Chapter 11.
The meaning of documentary evidence.
• No single/ definite definition of documentary evidence
• Generally, documentary evidence means Statements in writing which are intended to be
relied on Eg: Cheques, Letters, Wills, Confessions, Memoranda, logbooks, notebooks,
contracts, business records, Etc
• In R v Daye, a document was defined as “any written thing capable of being evidence.” It
does not matter what it is written on.
• The term document has a statutory definition: s 33 of the CPEA defines a document as
including: any book, map, plan, drawing or photograph. Notice that the use of the term
“include” suggest that the list is not exhaustive.
• CPA, s 221: Includes any device by means of which information is recorded or stored (ie
includes modern electronic storage means, such as computer, flashstick, tape recordings,
data messages)
• The difference between admitting evidence as documentary evidence or real evidence lies
in the purpose for which the document is admitted:
1) Where the contents of the document are an issue before the court, the document must
be admitted as documentary evidence.
2) Where the document is admitted merely to prove its existence as an object, it may be
admitted as real evidence.
Example: a copy of a typed contract will constitute documentary evidence where it is
admitted to establish the terms of the contract.
However,
A contract will constitute real evidence if it is admitted for the purpose of proving the
existence of the written contract in the circumstances where one of the parties disputes the
Admissibility of documentary evidence
• Special rules apply to admissibility of documentary evidence:
• It must be relevant and otherwise admissible.
• Authenticity must be established.
• The original must be produced.
Authenticity must be established.
A document is usually handed in by a competent witness who can identify the document
and can help prove its authenticity. This Usually done by leading the evidence of author or
other witness.
• A document may be handed in and authenticated by the following
persons: (refer to Oxford page 105):
• The author, executor or signatory
• A witness who signed the document.
• A person who can identify the signature
Originality
In South Africa, the general rule is still that the original document must be
admitted. If X wishes to testify about a document, X must produce the original.
Reason: So that documents are not falsified.
The requirement of the original being produced highlights a rule known as the
Best evidence rule: no evidence may be admitted at trial to prove the contents of a
document except the original document itself (the best or primary evidence).
We can further distinguish primary evidence from secondary evidence:
Secondary evidence: is evidence that tends to suggest that there is better evidence
available. An example of secondary evidence could be an ID copy. The actual
There are exceptions, for example, where the secondary evidence is the only means of proving the
document:
• Original lost or destroyed, and cannot be found despite diligent search.
• Where the original document is in the possession of the opposing party and that party has failed
to produce it if after reasonable notice to do so- (Sign v Govender Bros Construction).
• Where the original document is in the possession of the opposing party who refuses to produce
it despite being served with a subpoena duces tecum on the basis of privilege.
Subpoena duces tecum which means that the court requires you to provide certain, specified
documents.
• Where both parties consent to the admission of a copy.
• s 231 of CPA: Document signed by holder of public office, with seal or stamp of department, can
on mere production constitute prima facie proof that that person signed the document
Statutory provisions for production of copies/ secondary evidence (read page 105
of oxford for examples).
