Case Review: Evidence

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Citation: (2005) 18 SACJ 106
• Pages: 106-109
• Date: 16 August 2019
• Author: Nicci Whitear-Nel

106 SACJ • (2005) 1

Evidence

NICCI WHITEAR-NEL

University of Kwa Zulu-Natal

Admissibility of statement made to magistrate:

Voluntariness

One of the issues raised in the case of S v Buda 2004 (1) SACR 9 (T)

was whether a statement made by one of the accused was admissible.

The challenge to admissibility hinged on whether in fact the statement

to the magistrate had been made voluntarily. The court held that for

the requirement of voluntariness to be satisf‌i ed the accused must be

shown to have had full realization of the implications of his statement

at the time of making it. In this case, the magistrate had recorded that

the accused had stated that he was making the statement because he

thought it would assist him. The court held that this showed that the

accused clearly did not understand the full implications of his statement.

This meant that he had not given real consent which negated the element

of voluntariness. Accordingly the statement was declared inadmissible.

There is no detail regarding the content of the statement in the judgment.

Child witness: Oath, admonition

The case of S v Chalale 2004 (2) SACR 264 (W) was yet another case in

which the evidence of the child complainants (in this instance aged 15 and

17 ) was declared inadmissible because the magistrate failed to correctly

follow the procedures regarding admonishing them to tell the truth rather

than administering the oath. The principles governing the election to

admonish are clear, and were set out by the Supreme Court of Appeal in

the case of S v B 2003 (1) SACR 52 (SCA). They are as follows: Although

the presiding off‌i cer does not necessarily have to hold an enquiry prior

(2005) 18 SACJ 106

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