R v Ndoyana and Another

• Jurisdiction: South Africa
• Judge: De Villiers JP and Wynne J
• Judgment Date: 09 April 1958
• Citation: 1958 (2) SA 562 (E)
• Hearing Date: 31 March 1958
• Court: Eastern Cape Division

De Villiers, J.P.:

The appellants were convicted by the magistrate of Elliot of the theft of three sheep from a farmer in the district and were sentenced to eighteen months' imprisonment with compulsory labour each and to a compensatory fine of £18 or a further one month imprisonment with compulsory labour.

The appellants had pleaded not guilty. The Crown proved that the three A sheep had been stolen and led evidence to indicate that the appellants had made and signed written confessions before a justice of the peace.

The admissibility of the confessions was unsuccessfully assailed in the court below on the ground that the Crown had failed to prove that they were freely and voluntarily made and without undue influence. B

Appeal is now brought on the ground that the confessions were wrongly admitted. Sec. 244 of the Criminal Code deals with confessions and in terms requires the Crown as a prerequisite to its admissibility to prove that a confession was freely and voluntarily made by an accused while in his sound and sober senses and without having been unduly influenced thereto.

C It has been held that these matters are questions of fact which must be proved by the Crown beyond reasonable doubt. See R v Mtabela, 1958 (1) SA 264 (AD).

Whether an accused's person's confession has been free and voluntary and without undue influence depends on the surrounding circumstances from D before the time that he first expresses the desire to make a confession until he finally puts his signature or mark on the written confession.

The circumstances which led up to an accused person's appearance before a magistrate or justice of the peace to make a confession are no less E important than the circumstances surrounding the actual making of the confession.

From the time an accused person is arrested until he is allowed on bail or brought to trial he is in the custody, power and control of the police. If before his trial he expresses the desire to make a confession the police will know the exact circumstances under which he came to F express this wish and everything that went before and led, or could have led, up to it.

Evidence of these circumstances should be given.

The real check whether the provisions of sec. 244 have been fulfilled should be made by the judicial officer before whom the accused appears to make his confession.

G It must be carefully explained to an accused person, especially where he is an illiterate native, that he is in the presence of a magistrate or justice of the peace, who has no connection with the police and that he has nothing to fear and can speak freely.

He should be questioned whether he has made any similar statement H before, and why he wishes to make his present statement. He should be told that there is no obligation on him to make any statement at all and if he does that it will be used in evidence and he should be specially asked whether he has been assaulted or threatened to induce him to make the statement, or been advised to make the statement or whether any promise or inducement has been made to him.

De Villiers JP

It is a comparatively simple matter where the desire is there to ascertain whether an accused person who wishes to make a confession does so freely and voluntarily of his own accord, or whether he has been assaulted or threatened or whether any promise or inducement has been held out to him or whether he has been advised to do so.

A Where the only evidence for the Crown implicating an accused person is an alleged confession it is immediately suspect. Especially, to my mind, is this the case where the offence was for material gain and has a commercial savour, as distinct from one of passion.

B In the former class of case accused persons do not readily confess their crimes.

Where the police are morally convinced of an arrested person's guilt but have failed to find sufficient evidence thereof, the temptation to extract a confession from the accused must be great, and where moral persuasion has failed the temptation may lead to violence or threats of violence.

C The evidence in the instant case is extremely meagre as to the circumstances under which the confessions were made.

The first appellant was kept at the police station at Lagg since his arrest. On the 24th December, 1957, he was brought to Sergeant Myburgh D by a native policeman who stated that the appellant wished to make a statement. Sergeant Myburgh understands no Xhosa and the appellant does not speak English or Afrikaans. The native constable who brought the appellant to Myburgh was not called, nor any other witnesses to tell the court how the appellant came to decide to make a confession.

E The only information on this point is the hearsay, and therefore inadmissible evidence of Myburgh.

The witness van Gass, the justice of the peace before whom the confessions were made, stated vaguely that the appellants made voluntary confessions to him or said they wished to make 'voluntary' confessions, F and that he then questioned them and wrote down their answers. He then read over to them everything that he had written before he obtained their thumbprints. The confessions do contain the statement that they are made freely and voluntarily and without undue influence, but there is nothing to indicate that van Gass satisfied himself, in the manner indicated above, before he took down the appellants' statements.

G It is also clear that the statements are in the words of van Gass and not of the appellants.

The two statements agree word for word almost entirely. The statement of an accused person purporting to be a confession should be recorded H exactly as given by him. The whole of it should be given, and in the ipsissima verba. Having satisfied himself that the prerequisites of sec. 244 of the Code are satisfied, the magistrate or justice of the peace should record word for word what the accused says. He should not act as editor.

There are some peculiar pieces of evidence in connection with the confessions. Van Gass in cross-examination was asked whether he asked the first appellant whether he came of his own free will. Van

Wynne J

Gass' answer was as follows: 'Yes: He said he wanted to make a statement and the police brought him.' In respect of the second appellant van Gass stated that he, unlike the first appellant, at first denied, but after he...