The policeman refused to answer the question of whether or not he had been in charge on day in question, but his claim of privilege was not upheld. thanks. The court excluded similar-fact evidence. Study Unit 1 — Introduction to South African Law. 44 0. Law of Evidence B – … Explicit assertions by the cross-examiner may constitute admissions, eliminating the need for proof. In S v Kotzè, the facts of the case did not make it necessary to consider this issue, but the court said obiter that the onus ought to be beyond reasonable doubt, and also stressed need for compliance with section 252A(6).
“Penalties or forfeiture” means something other than mere civil liability. But note the extreme conditions prevailing when this decision was taken. The court held, on appeal, that the pocket-book entries had been made as part of his daily routine, and were too intimately bound up with the events themselves. The South African courts have not yet gone into this distinction in any depth.

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Legal professional privilege applies to both criminal and civil cases.

South Africa has chosen not to go the route of recognising a defence of entrapment, but rather to regulate entrapment by way of legislation dealing with the admissibility of entrapment evidence. The system encourages people to admit facts which are not in dispute, so that the trial is not derailed and unnecessarily delayed by extraneous and superfluous issues. He was very successful, because it turned out he had been torturing suspects to get them to confess.

Formal admissions constitute an exception to this general rule. Cameron JA wrote the majority judgment and provided some pointers: The SCA allowed the contents of the admissions by the accused numbers three and four to be used as evidence against accused numbers one and two. Such evidence is potentially problematic, since people make mistakes. After a conviction, this came to notice of the Appellate Division, which set aside the conviction on the basis of gross irregularity. Section 204 is available only to the State, not to the defence. South Africa refused, and the company brought application against the South African government seeking information about the background.

For a proper interpretation of section 252A(3), see S v Kotzè, where the prosecution conceded that the conduct in question had gone beyond a mere furnishing of an opportunity. Prejudice to opponents: What is meant by “prejudice”? This principle was incorporated into the codification of the hearsay rule in the Evidence Act 2006. In the constitutional era, anything in the common law which conflicts with the Constitution will not be tolerated, unless it is a justifiable limitation. [22], The rationale for the exclusion of confessions not complying with section 217 includes considerations of, Courts have tended to take a strict view of what a confession is. The section lists a number of categories under which hearsay may be admitted: It is wrong for a party to lead provisional hearsay evidence if that party knows there is no prospect of the witness’s actually giving evidence. This book can help for preparation of exams. [87] See also S v Ralukukwe . Similar-fact evidence is usually inadmissible, on the grounds of irrelevance. The better view is that this refers to procedural, not substantive, prejudice. Presence at a place, or possession of a weapon: The commission of another offence shortly before or after the charged offence is sometimes allowed to prove the accused's presence at scene. The common law allows for a quasi-exception, in the case of refreshing memory from a previous written statement. The Constitutional Court has ruled, in S v Zuma , that similar provisions for confessions are unconstitutional; almost certainly it would rule similarly in the case of admissions. Even if the accused does not so agree, the admissions remain evidential material, and are similar to informal admissions; indeed, they have the effect of an informal admission. [70] There are at least three reasons for the preservation of informer privilege: Privilege against disclosure of methods to detect crime is needed to safeguard the criminal justice system. The Law of Evidence in South Africa: Basic Principles provides a clear, practical and innovative introduction to the law of evidence in South Africa.The text provides a straightforward approach to the law of evidence. 3 0 obj This onus is of doubtful constitutionality.
Common sense may indicate that the silence is in effect an admission of an accusation. The privilege only covers communications made during the course of the marriage. In such a case the prosecution would be allowed to prove the previous thefts in order to show motive. [85] But see the recent case of S v Rathumbu . [104] These provisions seem less radical than those in the US.

Additionally, where statements are made in the course of settlement negotiations, they may not be received without the consent of the party making them. [58], Whether or not the communication was made in confidence depends on the facts of each case. The police opened a charge at Lwane's instance against his stabber.

thanks. The privilege falls away if there is waiver, express or implied or imputed, by the client. The prior statement must have been made while the events were still fresh in the witness's mind.

Privilege attaches not just to communications with legal advisers, but also to communications with the employees of legal advisers, like clerks, secretaries and interpreters. One such admission proved to be particularly important. ", The proviso to s 217(1) only excludes statements made to disqualified officials. On the State’s application, the trial court decided to admit the admission also against his co-accused.

The Minister issued a certificate invoking Crown privilege. It includes magistrate, justice of peace, police officials and other categories.

Note, however, the potential clash with section 35(5) of Constitution: Is the trial fair in such circumstances? [41], If the maker of the confession is unaware that the person to whom he makes the statement is a police official, the proviso is not applicable.

In South Africa, this is usually described as State privilege.

[96]. South African criminal law is the body of national law relating to crime in South Africa.

Bail proceedings: accused can decline to answer incriminating questions: court has duty to inform accused of this right: s 60 (11B)(c) of CPA. It might be slightly embarrassing, but it was no national security issue. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." The three main situations in which they were admitted were, The SCA has now held that such statements are generally not admissible, on the grounds that they are hearsay. It forms part of procedural or adjectival law, and describes the means by which its substantive counterpart, South African criminal law, is applied.


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