FORMS OF EVIDENCE

CH 11
DOCUMENTARY EVIDENCE
 THE DEFINITION OF DOCUMENTARY EVIDENCE

• Documentary evidence is “evidence by way of a written instrument”.

• R v Daye - any written thing capable of being evidence
• Seccombe v Attorney-General 1919 TPD 270 at 277: “everything that contains
the written or pictorial proof of something”.
• The Oxford Dictionary defines document as a “thing, especially title-deed,
writing, or inscription, furnishing evidence”.
• The concept of writing (or drawing) is central to the definition of a document.
• According to s 33 CPEA, “document” includes “any book, map, plan, drawing or
photograph”.
• S 221 CPA includes within the definition of a document - any device by means of
which information is stored or recorded, such as computer output,
• Document examples - contracts, letters, pictures, photographs, birth
certificates, accounting records, wills (testaments) and contracts.
 Difference between documents and real evidence
The difference between documentary evidence and real evidence lies in the reason for
admitting the evidence at trial;

Document:
• Evidence is defined as a document if the contents are in issue;
• Example -- a copy of a typed contract will be documentary evidence if it is admitted in court to
establish the terms of the contract - its content;

Real evidence:
• A document is defined as real evidence when it is admitted in court as an object to be considered
by the court
• Example -- a copy of a typed contract will be real evidence if it is submitted to prove the existence
of the contract/document as an object, for instance if one of the parties denies that a contract
was ever signed
 Admissibility of documents and hearsay
Where the document’s contents are in issue:
• Where documentary evidence is admitted at trial to prove the contents of the document then
the document falls within the parameters of statutory hearsay set out in s 3 of the Law of
Evidence Amendment Act 1988.
• This means that the author of the document must be called to give testimony about the
authenticity of document’s contents

Where the document’s existence as an object is in issue:

• Where documentary evidence is admitted at trial as an object (i.e. to prove its existence) it
falls within the parameters of real evidence – and not hearsay
• This means that the document as real evidence is admissible solely on its being relevant
to the dispute
 CATEGORIES OF DOCUMENTS

 Private documents
 Public documents
 Official documents – a sub-category of public documents
 Ancient documents - older than 20 years
 Foreign documents – created abroad & certified by apostille in SA
 Electronic documents
  PUBLIC DOCUMENTS

A public document is defined in Northern Mounted Rifles v Callaghan 1909 TS 174 at 177 as:
• Drawn up by a public official: A public document must be drawn up by a state, provincial or
local official.
 Note: a register kept by a private body is not a public document, even though it may record
matters of public interest – (i.e. a baptismal or degree certificate are not public documents).
• In the execution of a public duty: The document must have been made in the course of a public
duty to ascertain the truth of a matter and to make an accurate entry thereof.
• Which is intended for public use: The document must have been made as a permanent record
for public use.
• to which the public has a right of access
  PRIVATE DOCUMENTS

• The majority of documents in legal practice are private documents.

• A private document is defined, somewhat negatively, as “any document which is not a public
document”.
• Many private documents, especially those in e-commerce, are typed, communicated and stored
in an electronic digital format on computers.
 Note: Electronic private documents are subject to the statutory regime imposed by the
Electronic Communications and Transactions (ECT) Act 2 of 2002.
 THE DISTINCTION BETWEEN OFFICIAL AND PUBLIC DOCUMENTS

• S 19 CPEA defines an official document as “in the custody or under the control of a state
official, by virtue of his/her office”.
• An official document is produced on the orders of the head of a state office for a government
purpose.
• Where the creation of the document by a public official is the distinguishing feature of the
public document ----------- the official document is distinguished by the fact that it has been
placed in the custody of an official of the state.

• From this emphasis on custody, it is possible to distinguish between official documents and
public documents, although the two may often overlap.
• An official document is therefore usually a sub-category of a public document.
 DISTINCTION BETWEEN PUBLIC AND PRIVATE DOCUMENTS

PUBLIC DOCUMENTS PRIVATE DOCUMENTS

Public documents are drafted for administrative Private documents are negatively defined as ‘all
purposes & public use & controlled by a State documents which are not public documents’.
official in terms of a public duty.

• Are an exception to the hearsay rule. • Must comply with the hearsay rule when the
• Are subject to a claim of public privilege. document’s contents are in issue.
• Are subject to a claim of private privilege.

The original may not be produced at trial without In terms of the best evidence rule the original must
the permission of the State official in whose custody be produced & authenticated in order to be
it is. admissible at trial.

True copies/extracts may be admitted at trial in Secondary evidence or a true copy may be admitted
terms of a number of statutory exceptions when at trial on good cause shown either in terms of a
certified by a State official entrusted with the bona fide common law reason or statutory law
custody of the document. exception.

A public or a private document is defined as an ancient document when it is older than 20 years and has
been properly archived & maintained.

A public or private document is defined as a foreign document when executed/created abroad and
authenticated for use in a South African court in terms of High Court Rule 63.
 ADMISSIBILITY OF DOCUMENTARY EVIDENCE

The general requirements for the admissibility of any document as evidence in court:
(a) establish a document as relevant to the facts-in-issue
(b) the contents of a document must be proved by handing in the original.
(c) the authenticity of a document must be established to the court’s satisfaction.
(d) The document must be stamped in accordance with the Stamp Duties Act 77 of 1968 (now
repealed) – only applies to documents signed before 2009 .

The admissibility of private documents in civil disputes involves a two step procedural
process:
• The first is to identify - which documents exist that might be relevant to the proposed litigation -
the process of discovery is relevant.
• The second aspect is determining the originality and authentication of the document, as well as
the question of whether it has been properly executed (signed or attested).
 DISCOVERY, INSPECTION AND PRODUCTION OF A DOCUMENT
 Civil cases (see Theophilopoulos Fundamentals of Civil Procedure (Lexisnexis) ch 18):
To establish which documents might be relevant to the proposed litigation is accomplished in civil cases
by of a document discovery, inspection and production

The procedure is prescribed in the court rules HCR 35; MCR 23:
• These rules determine that the opposing party is required to discover by way of a discovery
affidavit of all documents relevant to the facts in issue which are in the opposing party’s possession:
Medical reports – inspection of property presentation of diagrams etc, expert witness summaries
• When the document is in the hands of a third party (not involved in the litigation) – the document is
admitted in court by means of the subpoena duces tecum (“a summons to the third party to bring it
with you”) - to appear before the court and to bring any identified documents requested by a
particular party.
 Criminal cases (see Theophilopoulos Criminal Procedure (Oxford Uni Press) ch 16):
• In criminal proceedings there are no formal rules of discovery:
• Obtain the charge sheet & s 144 summary attached to an indictment
• Request access to police books, registers, police expert witness summaries etc
• S 87(1) CPA, request the state to provide further particulars in writing:
 the purpose of this request - if the state has provided a list of documents which it
intends using, other documents not listed in the further particulars will be excluded from
the trial
• Request access to the police docket - subject to police docket privilege
ORIGINAL - PRIMARY & SECONDARY EVIDENCE - CONCEPT OF
ORIGINALITY & AUTHENTICITY
  ORIGINALITY OF A DOCUMENT

 The best evidence principle:

• No evidence is admissible to prove the contents of a private document except the original
document itself – Standard Merchant Bank Ltd v Creaser 1982 (4) SA 671 (W) 674B
• The requirement of originality is also set out in s 14 of the ECTA which requires a data
message to be in its original integral form for purposes of admissibility

The best evidence principle states that only primary evidence in the form of an original document
is preferable over a copy or secondary evidence:
• In practice most documents consist of only one original but some document may be drawn up in
duplicate or triplicate originals with each original being signed by the parties – referred to as
duplicate/multiple originals – i.e. such as duplicate invoices or duplicate contracts etc.
R v Amod 1947 (3) SA 32 (A) - the best evidence requirement of an original document is only necessary
where the contents of the documents are directly in dispute.

• The best evidence rule will not apply where the dispute concerns the existence of the
document rather than its contents

The best evidence rule will also not apply where a document’s contents are admitted at trial to
prove a fact which is capable of being proved by other evidence:
• Where the dispute is about the existence of a relationship or status flowing from a document – i.e.
where proof of marriage is required but there is no marriage certificate available, the marriage may
still be proved by producing evidence of co-habitation or that a marriage ceremony took place etc.
• the purchase price of an object in a shop can be proved by an eyewitness without producing the
invoice
• the appearance of a person can be proved by oral evidence without producing a photograph,
• the existence of a partnership may be proved without producing the written partnership
agreement.
 Secondary evidence of a document is admissible in certain circumstances:
• Secondary evidence of a private document is admissible if there is an acceptable explanation for
the non-availability of the original.
• Any secondary copy is acceptable – even the oral evidence of a person who can remember the
contents of a document;
• Where a statute requires a particular form of a copy (usually in the form of a certified copy) - a
party may not adduce other secondary evidence unless the party has a reasonable explanation for
the absence of the original and the statutorily required copy.

The listed exceptions for the admissibility of copies are:

 Where the original has been lost or destroyed. It must be proved that a proper search was made
for the missing original before the copy is admissible. Where the original has been intentionally
destroyed by a party in contemplation of litigation, that party cannot admit a copy.
 Where the original has been destroyed in the ordinary course of business a copy is admissible.
 Where it can be shown that lack of storage space resulted in the destruction of the original a copy
may be admitted – Barclays Western Bank v Creser 1982 (2) SA 104 (T).
 Where the document is in the possession of the opposing party and that party has failed to
produce it after reasonable notice to do so - (Singh v Govender Bros Construction 1986 (3) SA 613
(N).
 Where the document is in the possession of a third party and the document cannot be obtained by
means of a subpoena duces tecum.
 Where the production of the original is impossible or inconvenient. For example, the document in
question may be defamatory statements spray-painted on the external walls of a 10-storey building,
making it impossible to produce the original written statements in court.
 Where both parties consent to the admission of a copy.

NOTE:
 Where the document is a public document (s 233 of CPA; s 18 of CPEA) or an official document
admitted at a criminal trial (s234 of CPA) – copies certified by the relvant state official are sufficient.
 Entries in accounting books or banker’s books may be admitted by way of a sworn affidavit (s
236 of CPA; s 28 of CPEA);
 Part VI of the Civil Proceedings Evidence Act 25 of 1965, or various other statutory enactments
create statutory ecptions for the admissibility of certified copies or sworn affidavits (See 222 of the
CPA)).
 AUTHENTICATION OF A DOCUMENT

A document is usually handed in by a competent witness (or an expert witness) who can identify
the document and can help prove its is authenticity.

A document may be handed in and authenticated by the following persons:

 The author, executor or signatory.
 A witness who signed the document.
 A person who can identify the signature.
 Someone who has lawful control and custody of the document.
 An attested document is signed in front of witnesses who are able to testify that the author
has signed the document and has done so before their very eyes as confirmed by their signatures
as witnesses.
 A notary public serves is a good example of a reliable witness to a signature
 In civil procedure by serving a notice in terms of HCR 35(9) requiring an opposing party to
admit that the identified document was properly executed and authenticated.
A document need not be identified or authenticated:
• When it is a public/official document with attached state signature, seal, public stamp or certification
(s 231 - 234 CPA, 18-20 CPEA))
 When a party has produced it on request of the opposing party at trial.
 When the court takes judicial notice of the document.
 When the opposing party acknowledges its authenticity.
 When it is an ancient document (more than 20yrs old) (s 37 CPEA).
 When various other statutory provisions creating exceptions to the general rule apply.
 When foreign documents have been authenticated in their country of origin.

 Current applicability of the Stamp Duties Act, 1968

• S12 of the Stamp Duties Act 77 of 1968 provided that certain instruments, as defined in the Act, could
not be used in evidence or made available in any court unless the instrument concerned had been
stamped as required by the Act. This requirement applied only to civil and not criminal proceedings.
• S 103 of the Revenue Laws Amendment Act 60 of 2008, which came into operation on 1 April 2009,
repealed the Stamp Duties Act, 1968. The scrapping of the Stamp Duties Act, 1968 was, however, not
retrospective and stamp duties are still payable on documents produced before 31 March 2009.
 SECONDARY EVIDENCE MAY BE ADMITTED IN TERMS OF THE COMMON LAW IN THE FOLLOWING
INSTANCES
 the existence of the document rather than its contents is a fact in issue.

 it can be shown that the original has been destroyed and a diligent search has failed to locate the
original.
 the production of the original may result in a criminal charge.

 the production of the original is impossible.

 the original is in the possession of an opposing party who has been given notice to produce it and
has failed to do so.
 the original is in the possession of a third party who refuses to produce it.

STATUTORY PROVISIONS WHICH WAIVE THE REQUIREMENT OF ORIGINALITY

S 233 CPA Copies/extracts of public documents are admissible at trial when certified as
S 18(1) CPEA true by an officer in control/custody of the document.
Public document
S 234(1) CPA Copies/extracts of official documents certified by a State official in
S 19(1) & control/custody of the original document & by permission of the head of the
S 20 CPEA particular department in civil matters or the DPP in criminal matters are
Official admissible at trial.
documents