Civil Procedure

Spoliation (Evidence)

The destruction, concealment, or tampering with evidence that a party had an obligation to preserve. South African courts can draw adverse inferences against a party who spoliated evidence.

Legal Definition

Spoliation of evidence occurs when a party destroys, alters, or conceals evidence relevant to litigation when they had a duty to preserve it. South African courts can draw an adverse inference (negative inference) against the spoliating party — i.e., that the destroyed evidence would have been unfavourable to them. In extreme cases, a court can strike out the spoliating party's case or claim.

📖 Constitutional / Statutory Basis: Section 34 (fair trial)

Practical Example

A company is sued for medical negligence. Before litigation, the hospital destroys the patient's medical records. The court draws a negative inference that the records would have supported the patient's case.

Frequently Asked Questions

Is destruction of evidence a crime in South Africa?

Destroying evidence with the intent to obstruct justice is the common law crime of defeating the ends of justice, which is a serious criminal offence. Even without criminal prosecution, spoliation gives rise to adverse inferences in civil proceedings.

Does spoliation doctrine apply before litigation has started in South Africa?

The duty to preserve evidence can arise as soon as litigation is reasonably anticipated — even before any summons is issued. Companies that destroy documents after receiving a pre-litigation demand can face spoliation consequences.

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