The South African law of evidence forms part of the adjectival or procedural law of that country. It is based on English common law.

There is no all-embracing statute governing the South African law of aspects: Various statutes govern various aspects of it, but the common law is the main source. The Constitution also features prominently.

All types of legal procedure look to the law of evidence to govern which facts they may receive, and how: civil and criminal trials, inquests, extraditions, commissions of inquiry, etc.

The law of evidence overlaps with other branches of procedural and substantive law. It is not vital, in the case of other branches, to decide in which branch a particular rule falls, but with evidence it can be vital, as will be understood later, when we consider the impact of English law on the South African system.

Admissions The general rule is that the parties must prove their cases by evidence. Admissions constitute an exception to this rule.

An admission is a statement by a party which is adverse to that party's case. The party in question does not have to realise that something is adverse to his case for it to qualify as an admission. Whether or not something is adverse to a party's case can depend on the context.

One cannot, by definition, admit something in one's own favour.

Admissions may be divided into two categories: formal and informal.

Formal admissions are in a way part of the proceedings in a case. Examples include a plea in a criminal case, a formal admission under section 220 of CPA in a criminal case ( 220 Admissions :An accused or his or her legal adviser or the prosecutor may in criminal proceedings admit any fact placed in issue at such proceedings and any such admission shall be sufficient proof of such fact) and pleadings in a civil case. They can be used against a party, and they constitute conclusive proof of the facts they cover. Informal admissions are extra-curial statements by a party which can be used against that party during legal proceedings. They do not constitute conclusive proof of the facts they cover, but they can constitute an item of proof. They are put in the scale and assessed at the end of the case. Sometimes informal admissions can be made in very formal circumstances, as when a suspect appears before a magistrate out of court in order to make a statement about his alleged involvement in an offence.

Informal admissions Below are the requirements for the admissibility of informal admissions.

In civil cases, the only requirement is relevance. Additionally, where statements are made in the course of settlement negotiations, they may not be received without the consent of the party making them. See Naidoo'''s case.

In criminal cases, the requirements are

that the statement be relevant; and that it have been made voluntarily.

Admissions may be made verbally or in writing, or they may be inferred from conduct, or in any combination of these ways.

Admissions by conduct

Silence Common sense may indicate that the silence is in effect an admission of an accusation.Jacobs v Henning. Note, however, the effect of the Constitution in criminal cases.ss 35 (1)(a).s (3)(h).

Failure to answer letters The courts will not as readily conclude that failure to respond to a letter is an admission by silence as in the case of a failure to deny orally.R v West. Surrounding circumstances must permit the reasonable inference that the failure to respond can be equated with an admission, as in commercial practice, especially when there has been correspondence on an issue.<ref>McWilliamss case.</ref>

Statements made in the presence of a party The reaction of a party may be put before the court, including such reactions as silence and denial with uncomfortable demeanour. Note the possible effect of section 35 of Constitution in criminal cases.

Failure to challenge in cross-examination See S v Mathlare and S v Boesak.

Vicarious admissions 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 three main situations in which they were admitted were

where there is implied or express authority to make the admission; where the litigant adopts the statement of the third party and ratifies it as his/her own; and where the litigant and a third party shared privity or identity of interest.

The SCA has now held that such statements are generally not admissible, on the grounds that they are hearsay. They only become admissible if the court exercises its power to admit hearsay evidence under Law of Evidence Amendment Act.<ref>See Mdani'''s case.</ref>

Below are some categories where vicarious admissions have been held to be admissible:

Express or implied authority: Agents and servants Partners Legal representatives Spouses Referees

Evidence by a director or trustee in an insolvency or similar inquiry under company legislation is not binding on others.O'Shea v Van Zyl.

Privity or identity of interest: Predecessors in title Master and servant Nominal and real parties

Even if Mdani stands as law, it is possible that the courts would allow such evidence in the future on the basis of their power to admit hearsay evidence in certain circumstances.See below.

Executive statements Statements made in execution of conspiracy or common purpose have been admitted against co-conspirators.See R v Mayet. The judgment of Squires J in S v Shaik allows an executive statement to be received in evidence, but unfortunately does not deal in detail with the legal principles, or reconcile the principle with constitutional values. Although it is not entirely clear, the SCA in the Shaik appeal seems to say that executive statements which are adduced to prove the truth of their contents should be dealt with under the statutory law relating to hearsay evidence.See Topic 6.

Statements made without prejudice In course of negotiations to reach compromise in a civil dispute, parties sometimes make statements "without prejudice." For policy reasons such statements are not admissible in civil proceedings.<ref>Naidoos case.</ref> To qualify for inadmissibility such statements must be made in a bona fide attempt to reach a settlement.

Admissibility of statements not amounting to full confessions by accused in criminal trial At common law, statements made informally by the accused are only admitted if proved to have been made freely and voluntarily. "Freely and voluntarily" means only that the statement has not been induced by threat or promise from someone in authority.

A threat or promise per se is insufficient to render the statement inadmissible, if it did not influence the mind of the accused.

"Person in authority" This term has been interpreted in two ways:

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.S v Peters. S v Robertson gave it an extended meaning, referring to any person with some measure of authority over accused, like parent or dominant gang member. Les Roberts believes that this one will continue to be preferred.

Separate rules apply for statements qualifying as confessions. The Constitution, in section 35(1)(c), may well provide an opportunity for courts to overrule the arbitrary distinction previously made between the admissibility of confessions and the admissibility of admissions.

See S v Orrie and S v Molimi.

Onus of proving that statement made freely and voluntarily At common law, the onus is on the State to prove beyond reasonable doubt that statement was made freely and voluntarily.

Section 219A of the CPA purports to place an onus on the accused to show that an admission made in writing was not made freely and voluntarily if it appears ex facie the document that it was made freely and voluntarily. The Constitutional Court has ruled, in S v Zuma, that similar provisions for confessions are unconstitutional; almost certainly it would rule similarly in the case of admissions.

Method of determining in criminal trial whether admission made freely and voluntarily Admissibility is determined by way of a "trial within a trial," on the basis of evidence led by the parties on this specific issue, in a form similar to that of a trial proper. See the case of S v Andile and another.

Formal admissions The general rule is that parties must prove their case by evidence. Formal admissions constitute an exception to this general rule.

The rationale for formal admissions is that they save time and costs. The system encourages people to admit facts which are not in dispute, so that the trial is not derailed and unnecessarily delayed by extraneous and superfluous issues.

Distinct from informal admissions Informal admissions, on the one hand, are usually made out of court, although they can be made in formal settings (even to a magistrate, for example); that, however, does not make them formal. Formal admissions, on the other hand, are usually made as part of the pleadings, or in the court itself.

Informal admissions constitute merely an item of evidence helping to prove the other party's case, whereas a formal admission, once made, is conclusive proof of the fact admitted.

The weight to be accorded to an informal admission depends on the circumstances. Formal admissions cannot be withdrawn or contradicted without compliance with certain formalities.

Formal admissions need to be clear and unequivocal, because of their implications.AA Mutual Insurance Association Ltd v Biddulph.

Formal admissions in civil trials Formal admissions may be made during pleadings, or during the trial itself. Section 15 of the CPEA provides that it is not necessary for a party to prove a fact formally admitted; nor is it competent to disprove a fact so admitted.

Withdrawal of formal admission is only possible in the event of compliance with formalities. The court will only allow withdrawal if satisfied that it was a bona fide mistake, and that there is no prejudice to opposing party.

The party seeking withdrawal must give a full and satisfactory explanation for the withdrawal, supported by evidence (like an affidavit).

Even after withdrawal, a formal admission may still be taken into account as an item of evidence; it may still constitute an informal admission, in other words.

Formal admissions in criminal trials

Formal admissions under s 220 of CPA In criminal trials, either side (the defence or the prosecution) may now make formal admissions in favour of the other side. They are made under section 220 of the CPA.

Previously statutory provision was made only for the defence to make admissions, although at common law it was accepted as a matter of practice that the State could also make admissions.

Section 220 has now been amended to cover admissions made by either side. Section 220 provides that formal admissions are “sufficient proof” of the facts they cover.

In S v Malebo, Hiemstra CJ held that "sufficient proof" meant conclusive proof. Therefore, a formal admission under section 220 immediately became conclusive of the fact covered thereby.

In S v Sesetse, however, the Appellate Division held that an admission only becomes conclusive proof at end of the trial.

Not much turns on this disagreement.

Withdrawal of a formal admission in criminal trial is possible, if the formalities have been complied with, but a withdrawn admission may still have some evidentiary value.

There is a need for clarity: Formal admissions should be worded and recorded carefully, to eliminate ambiguity.S v Mdladla. A formal admission need not necessarily be in writing, but this is preferable, for the purposes of clarity.