Law of evidence in South Africa

-The South African law of evidence forms part of the adjectival or procedural law of that country. It is based on English common law.

There is no all-embracing statute governing the South African law of aspects: Various statutes govern various aspects of it, but the common law is the main source. The Constitution also features prominently.

All types of legal procedure look to the law of evidence to govern which facts they may receive, and how: civil and criminal trials, inquests, extraditions, commissions of inquiry, etc.

The law of evidence overlaps with other branches of procedural and substantive law. It is not vital, in the case of other branches, to decide in which branch a particular rule falls, but with evidence it can be vital, as will be understood later, when we consider the impact of English law on the South African system.

The general rule is that the parties must prove their cases by evidence. Admissions constitute an exception to this rule.

An admission is a statement by a party which is adverse to that party’s case. The party in question does not have to realise that something is adverse to his case for it to qualify as an admission. Whether or not something is adverse to a party’s case can depend on the context.

One cannot, by definition, admit something in one’s own favour.

Admissions may be divided into two categories: formal and informal.

Below are the requirements for the admissibility of informal admissions.

In civil cases, the only requirement is relevance. Additionally, where statements are made in the course of settlement negotiations, they may not be received without the consent of the party making them. See Naidoo's case.

In criminal cases, the requirements are

Admissions may be made verbally or in writing, or they may be inferred from conduct, or in any combination of these ways.

====See S v Mathlare and S v Boesak.

Common sense may indicate that the silence is in effect an admission of an accusation. Note, however, the effect of the Constitution in criminal cases.

The courts will not as readily conclude that failure to respond to a letter is an admission by silence as in the case of a failure to deny orally. Surrounding circumstances must permit the reasonable inference that the failure to respond can be equated with an admission, as in commercial practice, especially when there has been correspondence on an issue.

The reaction of a party may be put before the court, including such reactions as silence and denial with uncomfortable demeanour. Note the possible effect of section 35 of Constitution in criminal cases.

Previously admissions by third parties were sometimes admitted as vicarious admissions: that is, admitted against a party even though not made by that party.

The three main situations in which they were admitted were

...
Wikipedia