CHAPTER 15

PART 2 - THE SPECIFIC TEST OF RELEVANCE

 admissible
where

(A) LOGICALLY
RELEVANT
inadmissible
of an evidentiary fact

where
ADMISSIBILITY

(B) PROBATIVE VALUE

IS OUTWEIGHED BY
PROCEDURAL
DISADVANTAGE

or
(C) FALLS WITHIN A
LEGAL RULE OF
EXCLUSION
Relevance is a function of a number of variables:

(A) First variable - (determining logical relevance)

Logical relevance is assessed in terms of a common-sense standard based

on experience & logic. – see R v Mathews 1960

(B) Second variable - (weighing probative value of evidence against

trial disadvantages/prejudice) – see R v Wilson NZ

(C) Third variable - (certain legal rules of exclusion render higly

probative evidence inadmissible for public policy or constitutional
reasons)

(B) Requires - the probative value of logically relevant facts must be

weighed/balanced against competing considerations, and
- a high degree of probative value is required before admittance of an
evidentiary fact which is likely to cause prejudice, confusion or result in
any other material disadvantage at trial.
 The test of relevance consists of three related inquiries:

 First, the threshold inquiry of logical relevance – based on assessing

logical possibilities;
(Leg one (A))

 Secondly, the weight of probative value - which applies a balancing test

and excludes logically relevant evidence where its degree of probative
value is outweighed by trial procedural inconvenience or prejudice;
(Leg two (B))

 Also excluded is logically relevant evidence when it is conflict with

another defined exclusionary evidentiary rule, or where it is an
unjustifiable infringement of a constitutional right;
(Leg two (C))
 (A) LOGICAL RELEVANCE
Establish what inference can be drawn from the
closeness or remoteness of the connection between
a fact-in-issue and an evidentiary fact:
 Where a strong inference can be drawn about the
probable existence or non-existence of the fact-in-issue -
the evidentiary fact is relevant & admissible;
 Where no inference can be drawn about the probable
existence or non-existence of the fact-in-issue - the
ADMISSIBILITY

evidentiary fact is irrelevant & inadmissible.

(B) PROCEDURAL DISADVANTAGE

Where the probative value of a relevant evidentiary
fact outweighs its procedural prejudice it will be
admissible;
Where the procedural prejudice of a relevant
evidentiary fact outweighs its probative value it will
be inadmissible.

(C) LEGAL RULES

 Exclusionary rules – policy reasons: privilege,
infringements of dignity, privacy, etc;
 Constitutional exclusion: s 35(5) illegally obtained
evidence;
 Inclusionary rules: res gestae; credibility
 The determination of logical relevance -
(leg one)

(1) A close or remote logical common sense connection

(2) Relevance is a causal relationship
(3) A process of inferential reasoning
(1) A close or remote logical common sense
relationship/connection:
S 210 CPA; (s 2 CPEA) - define the relationship between an evidentiary fact
and a fact-in-issue in terms of relevance:

‘no evidence as to any fact, matter or thing shall be admissible which is

irrelevant or immaterial and which cannot conduce to prove or
disprove any point or fact-in-issue'.
(Word – conduce means a close causal influence)

(2) Relevance is a causal relationship between:

 an evidentiary fact [part of the facta probantia] and a fact-in-issue [part

of the facta probanda]
 from which an inference must be drawn in order to prove, or disprove,
the existence, or non-existence, of a fact-in-issue.
Relevance is explained in terms of a logical common sense
connection between an evidentiary fact and a fact-in-issue:

 Where the connection between an evidentiary fact and a fact-in-issue

is causally close, the evidentiary fact has a high logical relevance
and renders the existence of the fact-in-issue more probable.

 Where the connection is remote, the evidentiary fact has a low

logical relevance and renders the existence of the fact-in-issue less
probable.

 Where the connection is extremely remote, or non-existent, the

evidentiary fact has no logical relevance and has no effect on the
fact-in-issue.

 So relevance is always a matter of degree determined by the

closeness or remoteness of the logical connection between the
evidentiary fact and the fact-in-issue.
 (3) A process of inferential reasoning:
R v Mpanza 1915 AD 348 - explains the logical relationship connection
between an evidentiary fact and a fact-in-issue as:

 Allowing for an inference to be drawn from the existence of the

evidentiary fact about the existence of the fact-in-issue.
 This kind of inferential reasoning depends on the strength or
weakness of the common sense connection between the evidentiary
fact and the fact-in-issue and cannot be based on mere speculation or
conjecture.

R v Trupedo 1920 AD 58 states that:

 An evidentiary fact is relevant when inferences can be properly

drawn from it as to the existence of a fact-in-issue.
 The relevance of the evidentiary fact is dependent on the strength of
the inference to be drawn.
 A strong inference means the evidentiary fact is highly relevant and
admissible, and a weak inference means the evidentiary fact has low
relevance and is likely to be inadmissible
Applying Trupedo and Shabalala

R v Trupedo serves as a good example of this kind of inferential

reasoning.

The police, on investigating a breaking-in at a house, and discovering

two footprints outside the house, brought in a tracker dog to follow the
scent trial left by the alleged thief.
The tracker dog sniffed its way to a nearby building where a number of
individuals were sleeping and began barking at a particular individual
who was then arrested by the police.

 The Appeal Court overturned the trial court’s conviction on the

reasoning that no inference could be drawn from an evidentiary
fact in the form of a tracker dog’s identification of the accused.
 Such an inference was based on uncertainty and amounted to
conjecture and was irrelevant.
 The evidentiary fact – the dog’s evidence – was also based on
untrustworthy hearsay – cannot put a dog on the witness stand &
cross-examine
S v Shabalala 1986 (4) SA 734 (A) - the facts-in-issue where materially
the same as in Trupedo:

 The Appeal Court held that it was bound by Trupedo precedent - a

tracker dog’s identification was untrustworthy and inadmissible.

 The court also held that where the probative weight of evidence is
so inconsequential and its relevance accordingly so problematic
there would be little point in adducing such evidence.
Procedural disadvantage in the determination of
relevance
(leg two – B)

1) The relevance of probative value - a balance of

competing considerations;
2) Distinguishing probative value from probative weight;
3) Explaining procedural disadvantage/prejudice.
(1) The relevance of probative value - a balance of
competing considerations

There is also a common sense connection between logical

relevance and the probative value/weight attached to a relevant
evidentiary fact:

 Relevance is not only an inquiry (leg one) into the logical

inferential reasoning required to determine the admissibility of an
evidentiary fact but also an inquiry (leg two) into the degree of
sufficient probative value required by some kinds of evidentiary
facts in order to overcome their inherent procedural defects.

 The purpose of the second inquiry is to establish the practical utility

of some kinds of evidentiary facts
The second inquiry is a cost benefit test which balances/weighs the
probative value of a logically relevant evidentiary fact against a
likely procedural defect associated with that fact.

 When a strong inference can be drawn between an evidentiary fact

and a fact-in-issue it is said that such a logically relevant evidentiary
fact is highly relevant and is therefore admissible.

 When no inference can be drawn at all an evidentiary fact is irrelevant

and inadmissible.

 Between these two parameters lie evidentiary facts which,

although possessing some degree of logical relevancy, are not
sufficiently relevant to be admissible because their probative
value is outweighed by certain material procedural disadvantages
inherent in such evidence.
The second inquiry is an inquiry about the sufficient or insufficient
probative value of a logically relevant evidentiary fact which renders
it either admissible or inadmissible:

Logically relevant evidentiary facts are likely to cause material

procedural prejudice resulting in:
 undue delay,
 unnecessary expense,
 result in a lengthy investigation into collateral side issues,
 raise problematic questions of credibility are generally
inadmissible at trial simply because these material procedural
disadvantages do not warrant their reception.

• R v Trupedo & Delew v Town Council of Springs 1945 TPD 128 -

authority that the material procedural prejudice of admitting tracker dog
evidence far outweighed whatever little probative value could be
attached to it

• It is clear that evidence which is logically relevant may not necessarily

be admissible where it has weak probative value.
(2) Distinguishing probative value from
probative weight
 Where the probative value of the logically relevant evidentiary
fact outweighs its procedural prejudice the evidentiary fact will be
admissible,
 but where the procedural prejudice of the evidentiary fact
outweighs its probative value the evidentiary fact is inadmissible.

 In other words probative value means a certain threshold of

reliability is required before an evidentiary fact is deemed
admissible.
The problem with using the term probative value – it has two
different evidentiary meanings and may result in confusion:

 (Beginning of a trial): At the stage of the inquiry into admissibility it

refers to the logical relevance value to be attached to a potential
evidentiary fact in order to determine whether the fact should be
admitted or not,

 (At judgment stage of the trial): Also used by a court for its
persuasive value in assessing the weight/cogency of evidence in
order to determine if a party has adduced sufficient quantity & quality
of evidentiary facts to meet its standard of proof.

 Both meanings of probative value are rationally linked together

because when the court makes a determination of the admissibility of
an evidentiary fact it is also at the same time making a provisional
evaluation of the potential probative weight which the evidentiary fact
may have in assisting a court in reaching a judgment.
(3) Explaining procedural disadvantage/prejudice

• The term material procedural inconvenience/prejudice refers to

the defects in certain kinds of evidentiary facts which
unfavourably impact on the trial process.

• It simply means that an evidentiary fact, although logically

relevant, and with some probative value, is insufficiently
probative to assist the court in deciding on its judgment/verdict.
 Examples of procedural disadvantages:

 An evidentiary fact which results in time consuming investigation into

collateral/subsidiary side issues diverting the court’s attention into a
inquiry about reliability – eg scientific validity of lie-detector tests, brain-
scan testing; behaviour modification therapy, hypnosis therapy;

 The lack of trustworthiness and reliability of tracker dog identification

may waste the court’s time - admitting hearsay evidence places an
unfair burden on an opposing party;

 Admitting similar fact evidence or character evidence is prejudicial to

a party’s case and inadmissible.

 Admitting procedurally prejudicial evidence may result in added court

costs, wasted court time, an unreasonable burden being placed on a
party; possible confusion; duplication of issues, etc.
 The exclusion or inclusion of relevant and
irrelevant evidence
(leg two – C)

(1) Exclusion of relevant evidence

(2) Exclusion of manufactured evidence
(3) Inclusion of immaterial evidence
(4) Inclusion of evidence not connected to a fact-in-issue
(5) Precedent
(1) Exclusion of relevant evidence:

 Public & private privileged evidence is relevant evidence which is

inadmissible for certain policy reasons.

 Relevant admissions; confessions & pointings out may be

inadmissible when involuntarily induced from an accused.

 Any relevant evidentiary fact which is obtained in violation of the

constitutional right to a fair trial (s35(5)) or obtained by infringing a
party’s right to dignity or privacy will be inadmissible (commonly
referred to as excluding illegally obtained evidence).
(2) Exclusion of manufactured evidence:

 The degree to which an evidentiary fact is relevant decreases in

proportion to the likelihood/ease of it having been fabricated.

 character evidence, opinion evidence, similar fact evidence, prior

consistent statements and other kinds of manufactured evidence are
generally inadmissible;

 Note: manufactured evidence in the form of a prior consistent

statement can never be relevant to a fact-in-issue and may only be
admitted to establish credibility and in order to rebut a charge of
recent fabrication made by an opposing party.
(3) Inclusion of immaterial evidence
 Res gestae principles of completeness - it may be necessary in certain
instances to admit irrelevant facts to allow a court to properly
understand a witness’s testimony.
 A witness may introduce immaterial facts of time, place and context in
order to give coherent testimony (commonly referred to as completing
the whole picture).

(4) Inclusion of evidence not connected to a fact-in-issue

 Evidentiary facts which are not relevant to a fact-in-issue may be admitted
because they are relevant to another fact only indirectly related to a
fact-in-issue.
 Example, evidence may be adduced which goes to the credibility of a
witness, or an expert witness may be asked to show evidence of
expertise.

(5) Precedent
 S v Shabalala - the precedent established by the previous judgment in R v
Trupedo is binding and determines the admissibility of a certain kind of
evidence – i.e. tracker dog evidence
THE TEST FOR
RELEVANCE
(SUMMARY)
(Leg one): DETERMINING LOGICAL RELEVANCE:
 Identify all the material facts-in-issue which make up a civil/criminal dispute;
 Collect all potential evidentiary facts and sift through these facts in order to
establish which of these potential evidentiary facts are logically connected to
the existence of the facts-in-issue;
 Establish what type of inference may be drawn from the closeness or
remoteness of the connection:
 Where a strong inference may be drawn the evidentiary fact is highly
relevant and admissible – (the existence of a fact-in-issue is more probable);
 Where only a weak inference can be drawn the evidentiary fact has a low
relevance and may or may not be admitted – (the existence of a fact-in-
issue is less probable);
 Where no inference can be drawn the evidentiary fact is irrelevant and
inadmissible – (no effect on the existence of a fact-in-issue).

(Leg two – part B): WEIGHING PROBATIVE VALUE WHERE PROCEDURAL

DISADVANTAGE IS PRESENT:
 Some kinds of evidentiary facts require a balancing of probative value against
the procedural prejudice inherent in them in order to establish admissibility;
 Where the probative value of an evidentiary fact outweighs its procedural
disadvantage/prejudice it will be admissible;
 Where the procedural disadvantage/prejudice of receiving the evidentiary
fact outweighs its probative value it will be inadmissible.
(Leg two – part C): ESTABLISHED RULES OF EXCLUSION OR INCLUSION:
 Exclusion of relevant evidentiary facts;
 State and private privileged relevant evidence is inadmissible
 involuntary obtained relevant admissions/confessions & pointings out
are inadmissible
 relevant hearsay evidence is inadmissible

 Constitutional exclusions;
 Relevant illegally obtained evidence is inadmissible
 Relevant evidence obtained by infringing the rights to dignity & privacy is
inadmissible

 Inclusion by way of precedent;

 Any evidentiary fact admitted by way of precedent

 Inclusion of immaterial evidentiary facts;

 res gestae evidence as to time and place to establish evidentiary
coherence of witness testimony
 evidence of witness credibility
 (A) LOGICAL RELEVANCE
Establish what inference can be drawn from the
closeness or remoteness of the connection between
a fact-in-issue and an evidentiary fact:
 Where a strong inference can be drawn about the probable
existence or non-existence of the fact-in-issue - the
evidentiary fact is relevant & admissible;
 Where no inference can be drawn about the probable
existence or non-existence of the fact-in-issue - the
ADMISSIBILITY

evidentiary fact is irrelevant & inadmissible.

(B) PROCEDURAL DISADVANTAGE

Where the probative value of a relevant evidentiary
fact outweighs its procedural prejudice it will be
admissible;
Where the procedural prejudice of a relevant
evidentiary fact outweighs its probative value it will
be inadmissible.

(C) LEGAL RULES

 Exclusionary rules – policy reasons: privilege,
infringements of dignity, privacy, etc;
 Constitutional exclusion: s 35(5) illegally obtained
evidence;
 Inclusionary rules: res gestae; credibility