Common sense may indicate that the silence is in effect an admission of an accusation. As this rule does not require a party to put his best evidence forward in every instance, it is necessary to determine whether – and how – the rule applies. The privilege attaches to the spouse receiving the communication. Courts should be wary about accepting formal admissions from an unrepresented accused on points beyond the personal knowledge of the accused. Kotze, a high-profile member of the community, was caught buying diamonds from the trap, but it turned out he was also intimately involved in the racket. In practice, if it is so confirmed and reduced to writing before a magistrate or justice, it is regarded as a new confession, and the inquiry will be about whether that confession complies with the usual admissibility requirements.[40].
The court itself is entitled to scrutinise the evidence, in order to apply its mind properly. See in particular s 35(5) of the Constitution. They are made under section 220 of the CPA. Makes sense especially in the case of accuseds who already know of this right, or are well versed in the law. The rule is also known as the rule against self-serving statements. One of them pulled out a knife and stabbed Lwane, who was sent to hospital. At common law, other professionals, such as doctors, accountants and ministers of religion, are not covered by professional privilege.
(eds), This page was last edited on 4 September 2020, at 04:51. South Africa refused, and the company brought application against the South African government seeking information about the background. If there is no conclusive proof in this regard, in a criminal trial one must ask if it is a confession or not. There are two main categories under the common law: The basis for allowing spontaneous exclamations is their reliability. The prior statement must have been made while the events were still fresh in the witness's mind. This development is not on all fours with legal professional privilege: Under section 189, the court has held that a receiver of communication is not bound to testify where it would clash with professional ethics; the court did not say, however, that this protection covered the maker of the communication. The 12 esteemed authors who are legal academics and practitioners, ably supported by researchers from the University of Kwa-Zulu Natal, found a way to succinctly and effectively provide a comprehensive and up-to-date work for the legal fraternity. In Conway v Rimmer, twenty-five years later, the House of Lords revisited the issue and reasserted judicial control. This case involved a probationary policeman who was not going to have his probation confirmed; he wanted access to confidential staff files that the police had on his performance, that he might make his case stronger thereby. Below are some categories where vicarious admissions have been held to be admissible: Evidence by a director or trustee in an insolvency or similar inquiry under company legislation is not binding on others. Privilege is different from other rules that exclude evidence. Therefore, a formal admission under section 220 immediately became conclusive of the fact covered thereby.
A witness, otherwise compellable, is not obliged to answer certain questions.
If the rule applies, then determine whether the original is required, or if there is an exception. the privilege against self-incrimination; legal professional privilege (or litigation privilege or attorney-client privilege); and. Generally an accused cannot waive the admissibility requirements of a confession. This rule does not mean that copies of documents or other evidence can never be used in court – only that, if the actual contents of that evidence is in question, the best evidence to prove it is the original. The best evidence rule only applies when a party seeks to prove the contents of the document sought to be admitted as evidence. It is to be distinguished from competence and compellability. Even evidence which does show such a propensity is nevertheless admissible if it is relevant to the issue before the court: for example, whether certain events were designed or accidental, or to rebut some defence which would otherwise be open to the accused. 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). On the restrictive interpretation, it refers to any person whom the accused might reasonably believe is able to influence the course of the prosecution, like a police official, a prosecutor, a magistrate, a complainant, etc. The privilege falls away if there is waiver, express or implied or imputed, by the client. It might rather be described as an exclusion of certain categories of evidence on the grounds of public policy, in that admission of such evidence would be harmful to the public interest. Summary of the Rules of Evidence: The Essential Tools for Survival in the Courtroom, https://en.wikipedia.org/w/index.php?title=Best_evidence_rule&oldid=952696279, Creative Commons Attribution-ShareAlike License, This page was last edited on 23 April 2020, at 16:25. During the proceedings at trial court, the plaintiffs submitted affidavits describing the process by which they began and ended work – and how they were clocked in and out of work – every day. [92] Evidence of previous consistent statements is admissible in sexual offence cases, but the court may not draw an adverse inference from the failure to make a complaint. The first thing to decide is whether an admission is formal or informal. This onus is of doubtful constitutionality. It comes from medieval concept of "hue and cry." They had also testified in depositions before trial. This issue is covered by section 252A of the CPA. The court held that the correct rule of practice had not been observed, and that, since the remaining evidence was not convincing, the conviction ought to be set aside. The better view seems to be that the Makin rule should have the following qualification added: "In some cases evidence which proves only a disposition will be admitted if on the facts it is a disposition highly relevant to the issue before court. The rule specifies that secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists and can be obtained. Previous admissions by third parties are sometimes admitted as vicarious admissions: that is, admitted against a party even though not made by that party. The probative value of the evidence: What will it prove, and how reliably?
The following are a few of the requirements for legal professional privilege to operate: Payment or non-payment of fees to legal counsel is not automatically decisive. An argument broke out about its distribution.
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. Below are some categories of private privilege: On the question of whether or not other professions enjoy privilege, see below. Obtaining of evidence should be fair to the accused and comply with the Constitution. In Pillay’s case, it held that the privilege only operates where public policy requires it, and will be relaxed, at least, in the following circumstances: Is informer privilege constitutional? [112], In S v Kotze, the police received information that a diamond racket was going on in a town. The court said that on some counts the evidence against him was not strong, but if regard was had to the evidence on the other counts, it should be allowed. That something is said to a lawyer does not automatically make it privileged information; it must have been said to a lawyer. Section 3(3) provides that, if that person does not in fact testify, the evidence will not be taken into account, unless it is admitted by consent or the court allows it under section 3(1)(c).
The court said no. witness must have verified accuracy whilst still fresh in witness's mind. Is it an application as opposed to a trial? [36], How does this fit in with right not to incriminate oneself in s 35(3)(j) of Constitution?[37][38].
The basic rule is that communications between a lawyer and a client may not be disclosed without the client’s consent. In S v Mathonsi, the court admitted hearsay under this section in the form of a former inconsistent statement of a witness who had been discredited. The party in question does not have to realise that something is adverse to his case for it to qualify as an admission.
This does not mean that hearsay will never be allowed in criminal proceedings. See also S v Mokoena at 45-48 for a similar example of the court’s using its power to allow hearsay in the form of the proved statements of the co-accused. National security, in other words, was again the decisive issue. Formal admissions are in a way part of the proceedings in a case. The English case of Duncan v Cammell Laird, which concerned sinking of HMS Thetis, is important in this regard.
Periodic reports were made on staff performance, and the official in question had been given a rating which upset him, so he sued for defamation.
The nature of the proceedings: Are they civil or criminal?
14 It is trite in South African law that we adopt the principle of audi alterum partum.11 [91], Note that this issue is now governed by legislation. [20][21], The CPA creates special rules for the admissibility of confessions.