Study Set Content:
Adjective Common Law is
English Law
Sources of LOE
- Constitution
- Statutes
- Case Law
- Common Law
Since 1994 the C is the
Most important source of LOE
Constitution is the
Supreme law of the land and all rules of evidence must comply with C
Statutory or common law rule that conflicts with BOR
Unconstitutional
BOR Conflicting Statutory or common law rule is unconstitutional unless...
It has been saved as constitutionally permissable limitation on a fundemantal right/ freedom S36
Some constitutionally guaranteed rights
Once also evidence rules according to common law
Rights in S35 OF C
Were Law of evidence rules in common law, effect off C was to harden these common law rights into constitutional rights.
Rights in S35 (4)
- Right to be informed of certain rights
- Passive defence rights
- Active defence rights
- Due process rights
Passive Defence Rights (4)
- Presumption of innocence
- Right to remain silent
- Right not to increminate oneself
- Right not to testify at trial
Passive defence rights serves as a
Shield against the might of the state
Active defence rights
- Right to adduce, bring forward and challenge evidence
Active defence rights serves as a
Sword in the hands of accused/arrested/detained person
Due Process Rights
- Right to a fair trial
Examples of SA law of evidence in statutes
- Civil Proceedings Evidence ACT (CPEA) 52 of 1977
- Criminal Procedure Act (CPA) 51 of 1977
- Law of Evidence Amendment ACT 45 of 1988 (Hearsay act)
- Electronic Communications and Transactions Act 25 of 2000 (ECTA)
SA Law of Evidence is based on not
Roman Dutch law but on English Law
If statute does not mention certain topic we turn to
English law in force 31 May of 1961
31 mAY 1961
Date on which SA became independant republic
Practically SA has a considerable body of
Local case on evidence
SA cases decided according to English common law rules on or after 31 May of 1961
Binding ito law of precedent
