Recent Case: Law of evidence

• Jurisdiction: South Africa
• Date: 24 May 2019
• Author: Lirieka Meintjes-van der Walt
• Pages: 295-307
• Citation: (2018) 31 SACJ 295
• Published date: 24 May 2019

Law of evidence

LIRIEKA MEINTJES-VAN DER WALT

University of Fort Hare

1 Admissibility of a confession

In S v Diya [2018] 2 All SA 488 (ECM) the accused was prosecuted for

the murder of an elderly woman, who was the mother of a relative

of the accused (T). It was the prosecution case that T had entered

into an agreement with the accused to ki ll his mother for which T

would pay the accused R10 000. Although T was initia lly charged with

the accused, the case was withdr awn against him (at para [3]). The

accused pleaded not guilty to the charge and elected not to tender a

plea explanatio n.

The state indicated it wanted to have a confession, made in terms of

s 217 of the Criminal Procedure Act 51 of 1977, admitted as part of t he

record and requested that there be a trial-wit hin-a-tria l to determine

its admissibility (at para [45]). Section 217 provides that evidence of

any confession made by any person in relation to the commission of

any offence shall, if such confession is proved to have been freely and

voluntarily made by a person in his or her sound and sober sen ses

and without having been unduly inuenced thereto, be admis sible in

evidence against such a person. The cour t held that this must be seen

in the light of the over-arching provision of s 35(5) of the Constitution

of the Republic of South Africa, 1996, which provides that evidence

obtained in a manner th at violates any rights in the Bill of Rights mus t

be excluded if the admission of the evidence would render the trial

unfair or otherw ise be detrimental to the adm inistration of justice

(at para [61]). The accused, however, denied that he made the statement

voluntarily and said that he was told what to say by the investigating

ofcer who took the statement. He also alleged that the statement was

induced by sustained torture by t he police. ‘The accused did not tell

Captain Ntlangula about being ass aulted, tortured or even threatened,

despite being asked about these matters repeatedly in the con fession

form’ (at para [86]).

‘The detail contained i n the confession is such as to leave no doubt

that it was given by someone who knew how the deceased was killed’

(at para [85]). ‘The deceased’s injuries were as described by the accused

in his confession before Captain Ntlangu la in most material respects’

(at para [84]). This was further ‘corroborated by other evidence li ke the

photographs as well as the post mortem report ‘(at para [84]). The court

held that the evidence before the court did not match the description

Recent cases 295

(2018) 31 SACJ 295

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