In court, it’s not what you know, but what you can prove.
The Law of Evidence contains strict and complex rules, determining what facts are admissible in legal proceedings, what process is to be followed in presenting such facts, and what weight an adjudicator should attach to proven facts.
You cannot succeed in court unless you present the necessary evidence and follow the correct procedure.
Who bears the onus of proof?
• In court, parties are responsible to present their own evidence before a presiding officer. The general rule is that he who alleges, must prove.
• In criminal proceedings, the State must prove the guilt of the accused person.
• If the State seems to have made out a proper case ( a “prima facie case”), the accused will have to present evidence in rebuttal, which must at least create reasonable doubt as to his guilt, if he wants to be acquitted.
• In civil matters, the person instituting the dispute (plaintiff or applicant) must prove his case against the defendant or respondent.
• A defendant or respondent will have an evidentiary burden to rebut the plaintiff’s or applicant’s evidence once the latter seems to have made out a “prima facie” case against the former.
What standard of proof is applied?
• In criminal proceedings, the State must prove its case “beyond reasonable doubt”. If the court is of the view that the accused’s version is reasonably possibly true, he must be acquitted.
• In civil cases and in instances where the accused bears an evidentiary burden to rebut evidence adduced by the State, the standard is “on a balance of probabilities”. In basic terms, the court must decide which version is more likely than the other.
How is evidence adduced?
• Oral evidence: People testify under oath in support of their case and are cross-examined by their opponent in order to test the reliability, truthfulness and accuracy of their testimony. Criminal and civil trials are conducted in this manner.
• Documentary evidence: In court applications, the evidence is adduced by way of an affidavit with supporting documents such as a written contract, for instance.
• Real evidence: This consists of objects such as a murder weapon, video footage, or even an inspection by the court of a crime scene.
• The general rule is that documentary or real evidence “cannot speak for itself”. Someone with personal knowledge of the particular document’s or object’s involvement would need to provide testimony to confirm such involvement. For instance, a photographer would testify that he took a particular photograph.
Admissibility, relevance and value of evidence
Courts may exclude evidence for various reasons, including:
• The inherent nature thereof. Hearsay evidence, for instance, is generally inadmissible because the person upon whose credibility the evidence depends, is not present and his reliability cannot be tested.
• The irrelevance thereof since it does not assist the court in deciding the issues at hand.
• The manner in which it was obtained. There are, for instance, strict procedures to be followed in obtaining evidence against an accused person. Incorrect procedures, such as not warning an accused that he may remain silent, could lead to his subsequent statement being excluded.
• After evidence is admitted, the court has to decide how much value to attach to it. Various factors will impact upon how strongly the court will rely on evidence in making a finding.
The importance of presenting the right evidence in the right manner
The success of a party’s court case depends on his ability to present admissible evidence in the best possible way. Failure to do so can result in a criminal being acquitted, an innocent person being punished, or a party in civil proceedings not being granted the necessary relief.
The process of gathering the right evidence and planning the most effective presentation thereof, starts long before you get to court. Ensure that you obtain legal assistance from the outset.
Juan Kotze and Francois de Kock of Juan Kotze Attorneys may be reached at 011 892 1019, francois@therescueshop.co.za or juan@therescueshop.co.za.
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