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14 Cards in this Set

  • Front
  • Back

Customary law of evidence

• Trials in indigenous courts are still governed by the indigenous law of evidence (S20 (2) of Act 38 of 1927) Rule 1 GN R2082 of 1967) provided that the rules applies are not in conflict with the principles of public policy and natural justice

• An appeal to the Magistrate’s Court against judgment in an indigenous court, the general South African Law of evidence will apply to the evidence given in the Magistrate’s court (Nombona v Mzileni et al 1961 NAC 22 (S))

• The indigenous law of evidence is based on customs rather than rules, and disregarding or violating them does not constitute a contravention of the law

• The indigenous law of evidence is therefore fairly information, and is based largely on reasonableness and effectiveness

• The court is interested in the merits of the case and technical grounds for judgment are unknown

• Two characteristics of the indigenous law are 1) its inquisitorial procedure (the court plays an active part in examining the parties and their witnesses to determine the “truth”), and2) its free system of evidence (no evidence is excluded; all evidence is admissible)

Burden of proof

• Determines which party loses the case if the court does not have enough grounds to make a finding on an issue of fact – this is inconceivable in indigenous law because extra-judicial methods of proof are known• Evidence is so informal and free in nature – there is no scientific reasoning concerning the burden of proof• The court decides on the merits of the evidence, which rendering of the facts is true• If it is difficult to come to a decision, the court may use extra-judicial means of proof, i.e. referring the party to a traditional healer (inyanga)

Measure of proof

• Any person present in court may submit evidence during the trial• The court is interested in the “truth” and for this reason, all evidence is tested and weighed• In indigenous law – the measure of balance of probabilities does not apply in civil cases (i.e. the person, who in the view of the court gives the most probable rendering of facts is entitled to judgment in his favour)• The principle of “beyond reasonable doubt” does not apply in criminal cases• The primary aim of an indigenous hearing is not to prove who is right and who is wrong; it is to determine the “truth” and to reconcile the parties with one another as well as with the court and community• Judgment is given by the court after all the parties and their witnesses have given their rendering of the case• The court is interested in the “truth”• There is no specific test i.e. the “reasonable man”• In Mpumalanga a spokesman remarked that a particular set of facts could possible be true but within their cultural experience and perception it would not be probable• Facts and evidence are therefore evaluated within the local cultural context• In indigenous courts, parties are allowed to submit their unabridged version of the case• No case is decided without everybody having been heard• In a civil case, the claim is first argued by the respective family group, and only after no agreement could be reached the matter is referred to the headman’s court• Then the parties ought to know whether the case is founded or not


• Evidence is the oral statement made in court by a part or a witness, either voluntarily or in answer to a question• This is the most important form of evidential material in an indigenous court, because a case is tried on the basis of evidence submitted to the court

Direct evidence

• evidence of a person who has seen or heard something directly is the best evidence• evidence of an eye witness is considered important• It is also emphasized that a person who presumes or sees a potential wrong should preferably take along a witness• Direct evidence on its own is not enough proof, and is always considered together with other evidence
Circumstantial evidence
• Is used to supplement other evidence and other evidential material• In such matters as seduction or adultery special value is attached to circumstantial evidence supporting the evidence of the girl – as direct evidence is seldom at hand• In such cases the evidence of a singular person may be accepted as sufficient evidence, provided the other party cannot disprove this evidence
Hearsay evidence
• Is admissible, and is considered together with other evidence

• A case relying mainly on hearsay has little chance of success

Concrete evidential material (can consist of a pair or trousers, or a kierie)

• Has especially strong evidential value• A piece of clothing or some other personal belonging of an offender shown to the court has special evidential value, since no person would entrust a personal belonging to a “stranger” without a sound reason• This is a form of judicial notice and a presumption• The court takes note that a person does not voluntarily entrust his personal belongings to others – this also leads to the presumption that the person is involved in a wrongful deed of crime• Sometimes a person caught in the act is “marked” by giving him one or two blows on the body, preferrably the back • That person must explain to the court how is property came to be in the possession of another, or how he was injured or wounded• Concrete evidential material together with other evidence is often decisive (considered enough proof)


• Civil cases are first discussed by the agnatic groups concerned• If this process does not lead to a settlement the case is taken to the court of the headman• There must already be clarity about the facts – therefore it is not necessary for the court to ask the parties to admit certain facts• In criminal cases, the case is usually investigated by the accused’s local headman and his councillors• If the accused admits all the facts, he is punished without a further hearing• If he admits certain facts and denies others, the facts that have been admitted are accepted as proven• If all the facts against a party are admitted, the case judgment may be given• Admissions made by a party outside the court may be used as evidence in court

Judical Notice

• The court takes notice of known facts without proof being submitted in this regard• This is particularly true where the personal particular of the parties are concerned• This also applies to matters known to the members of the court by virtue of their position in the administration of the traditional authority such as, where certain places are situated• The court also takes notice of cultural customs i.e. that a person may not enter another person’[s hut in the other person’ absence• Notice is also taken of animal behaviour – i.e. a cow will not reject her calf in the suckling stage


• A presumption is an assumption made by the court about a fact that ha snot been proven directly by evidence• The fact presumed is accepted by the court as correct until it is rebutted

• The following presumptions are known :

1) the children of a married woman are the children of her husband

2) an adult is mentally sound – until there is evidence to the contrary

3) a person does not voluntarily entrust pieces of personal clothing to a stranger

4) a person does not voluntarily remain prostrate (i.e. lying with face downwards) so that another person may hit him on the back5) an action is instituted without delay – Plaintiff’s who fail to institute an action therefore have the intention to harm their opponents• A person who refuses to answer a question in court is withholding information from the court (not a presumption – rather conduct having a harmful effect)

Extraordinary evidential material

• In former time, if the facts of a case were difficult to prove, the court would sent the parties with two or more messengers to an inyanga• Today members of tribal police are used for this purpose• The task of the inyanga, by means of extra-judicial methods (i.e. throwing bones) determine if the accused is guilty• These messengers then convey the findings of the inyanga to the court – the inyanga does not appear in court to give evidence• The findings of the inyanga is accepted as decisive by the court – no further evidence is reuired• All that remains is for the court to give judgment

Competence to give evidence or to testife

• all persons, except insane or intoxicated, are competent to testify in an indigenous court

• Even a young child who can remember or relate an incident or can identify a person can testify in court

• Co-accused may also testify against each other

• A person who is too intoxicated to testify is first allowed to get sober – the case is usually postponed

• A wife may testify for or against her husband and visa versa

• The court will weigh such evidence carefully• Such evidence must usually be corroborated by other evidence

• Chiefs and headmen may not act as witnesses in a case

• The same applies to members of the court council

• They do not have to withdraw themselves form am a case because they know something about the case

• They must convey their evidence to the court

q• In former times, the chief usually testified in private to a chief councillor, who passed this information on to the court

Giving evidence

• In a traditional court, evidence is not given under oath- therefore perjury is unknown• No action is taken against a party or a witness who tells lies• The parties to an action are responsible for seeing to it that their witnesses are present on te day of the trial• If a witness cannot attend the trial, the court may on request, postpone the trial once• The court proceedings may also continue without the witness until it appears that particular witness is necessary and then the case is postponed• The court itself may call upon any person to testify if it is of the opinion that the person concerned has some information • If a party cannot attend, he must give reasons before hand, and if these reasons are acceptable the case will be postponed• Today, the names of the plaintiff’s witnesses are given to the headman when the case is reported.• The defendant is then notified in writing of the case against him and fo the date of the trial• He is also asked to bring his witnesses on the day• In court, evidence is given orally in the presence of the parties concerned• Each party and all the witnesses are given full opportunity to testify at their discretion to the court, without interruption• If the court fees it is very long-winded, he will be asked to come to the point• If he does not do so, it can harm his case• It is the court who determines the relevance of the evidence• If later it appears that a person is wasting the court’s time, he can be fined.