S v Duna and Others

• Jurisdiction: South Africa
• Judge: De Wet CJ
• Judgment Date: 04 August 1983
• Citation: 1984 (2) SA 591 (CkS)
• Hearing Date: 04 August 1983
• Court: Ciskei Supreme Court

De Wet CJ:

After having delivered my judgment in regard to the admissibility of exhs, "DD", "EE" and "FF", Mr Jurgens and Mr Moerane informed me that I would be required to resolve a further dispute between the State and the defence, sitting without assessors.

B The facts are common cause between the parties. The State alleges that accused No 2 circulated handwritten pamphlets in Mdantsane in contravention of certain provisions of the security legislation. In order to link the accused with these documents the State intends proving inter alia that he had written these pamphlets.

C In order to do so the State will call a handwriting expert who has compared the writing on the pamphlets with the writing of the accused in a statement which he wrote in his own hand after arrest and whilst in detention. The expert has apparently photographed at random about 20 words appearing in the D statement of the accused and compared their characteristics with the writing on the pamphlets.

It is common cause that the statement written by the accused after his arrest is an inadmissible confession.

Mr Moerane's submission can be summarised thus. The confession is inadmissible and therefore the State may not extract portions of the confession as these portions too are E inadmissible. Even single words in this confession may not be referred to, as each and everyone of them form part of the confession. He submitted that the confession is inadmissible by reason of the provisions of s 217 (1) of the Criminal Procedure Act 51 of 1977.

The State, he says, cannot invoke the provisions of s 217 (3) F as the facts do not make out the pre-conditions set out therein.

Section 217 (1) of the Act reads as follows:

"(1)

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 such person in his sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person G at criminal proceedings relating to such offence: provided

(a)

that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace officer referred to in s 334, a confession made to such peace officer which relates to an offence with reference to which such peace officer is authorised to exercise any power conferred upon him under that section, shall not be admissible in H evidence unless confirmed and reduced to writing in the presence of a magistrate or justice; and

(b)

that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question -

(i)

be admissible in evidence against such a person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person; and

De Wet CJ

(ii)

be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, if it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober senses, and A without having been unduly influenced thereto.

(3)

Any confession which is under ss 1 inadmissible in evidence against the person who made it, shall become admissible against him -

(a)

if he adduces in the relevant proceedings any evidence, either directly or in cross-examining any witness, or any oral or written statement made by him either as part of or in connection with such confession; B and

(b)

if such evidence is, in the opinion of the Judge or the judicial officer presiding at such proceedings, favourable to such person."

I might mention that Mr Moerane was not able to refer to any authority to support his submission that every single word in C an inadmissible confession is excluded from disclosure.

Mr Jurgens, for the State, contended that he has no intention of proving the statement of the accused or any portion of the statement, nor does he wish to use any portion as a...