The Impact of the Rules of Court 2021 on the Law of Evidence
(2022) 34 SAcLJ 328
The Rules of Court 2021, effective April 2022, are meant to modernise the litigation process for civil cases by enhancing the efficiency and speed of adjudication and keeping costs at reasonable levels. At the heart of this discernible shift to a less adversarial system of civil litigation is the enlargement of the court’s discretionary powers vis-à-vis case management. This article considers, however, the potential ripple effects of the new legislation on the contiguous domain of evidence law. Three distinct but related areas of evidence law most likely to be impacted have been identified. First, would the introduction of the “interests of justice” test across various provisions of the Rules of Court 2021 have any bearing on the court’s existing powers regarding the admissibility of evidence? Secondly, how would the reception of expert opinion now operate, given what seems to be a fundamental change in terms of party autonomy over the choice of expert and the threshold to be met for allowing expert opinion? Finally, can the current common law position that draws a link between confidentiality and privilege still be sustained?