S v Mjoli and Another

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Jansen JA and Viljoen JA
• Judgment Date: 29 May 1981
• Hearing Date: 20 November 1980
• Court: Appellate Division

Rumpff CJ:

I have read the judgments of my Brothers JANSEN and VILJOEN. What has to be recognized is the danger of a conviction on a false G confession. The confessor may make a false confession, inter alia, by mistake, or in order to shield someone or because he is of unbalanced mind. When an accused pleads guilty in a court of law, and the plea is accepted by the prosecutor, a confession has in fact been made to the court. Act 51 of 1977 provides what the court may do or shall do when a H plea of guilty is so accepted. When an accused pleads not guilty he is ex hypothesi putting himself in a position to deny or explain any extra-curial confession which the State might seek to use against him. The court has therefore not before it a person who has made a confession before it. Section 209 of the Act reads as follows:

"An accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence, other than such confession, to have been actually committed."

Jansen JA

This section must be read with s 112 and, if so read, it would appear to apply only to a case where the accused pleads not guilty, or to a case where an accused pleads guilty and in terms of s 112 (b) a death A sentence is contemplated. In my view the amendments brought about by Act 51 of 1977 must be considered as a whole. In this connection it is significant that s 209 requires a confession to be confirmed "in a material respect", whereas Act 56 of 1955 required the confirmation to be B "by competent evidence" (s 258 (2)). "In the construction of statutes a deliberate change of expression is prima facie taken to import a change of intention", see Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd 1947 (2) SA 1269 (A) at 1279.

Section 115 of the Act specifically deals with the procedure to be adopted C when an accused pleads not guilty. It is a new procedure and, whether one likes it or not, the section enjoins a formal enquiry within the limits described by the section. The accused may make a statement indicating the basis of his defence. If he does not make a statement he may be questioned by the court to establish which allegations are in dispute. Admissions concerning facts may be recorded as such and shall then be D deemed to be admissions under s 220 of the Act, ie they are then regarded sufficient proof of such facts. The fact that certain admissions may be made which then constitute proof does not mean that other statements made by an accused at such enquiry have no evidential value at all. On the contrary, the court must consider whatever the accused has said. It must do so because the court is required to find out what the basis of the E accused's defence is and what allegations in the charge are in dispute. The statement of the accused and all answers given by him are presumed to constitute the facts upon which his defence is based. It is information given to the court voluntarily and for a specific purpose. In the present case the trial Judge entered a plea of not guilty on the charge of murder. F The plea of not guilty was in fact entered after an interrogiation by the trial Judge in terms of s 115 in order to ascertain what the appellants' plea really amounted to. During the proceedings in the Court a quo, under s 115, both accused admitted having taken part in a robbery. It was obvious that this was the same robbery as the one to which each had G confessed to a magistrate five months earlier. These admissions clearly confirmed what they had confessed before the magistrate. The danger of a conviction on a false confession was averted when the plea of not guilty was entered and when the requirements of s 209 were satisfied.

In the circumstances I agree that the question of law should be answered H in favour of the State and that the appeals be dismissed.

Judgment

Jansen JA:

The appellants appeal against their conviction of robbery with aggravating circumstances, for which they were sentenced to 20 years and 25 years' imprisonment respectively. The facts appear from the judgment a quo reported in 1980 (3) SA 172 (D). The appellants are before us by leave of that Court and on a question of law reserved in the following terms:

"Whether an admission made by an accused person in his statement under s 115 of Act 51 of 1977, or in his answers to questions

Jansen JA

put to him in that connection, is capable in law of furnishing the confirmation of a confession by him which s 209 requires, although the admission was never formally recorded in terms of s 115 (2) (b)."

A As will appear from the judgment a quo, this question arises as a result of the Court convicting each appellant on his confession to a magistrate (duly admitted at the trial) and his admissions made during proceedings in the Court a quo in terms of s 115 of Act 51 of 1977. The respective B admissions were considered to confirm the respective confessions for the purposes of s 209, although the appellants had not agreed that they should be deemed to be admissions under s 220.

The value of an extra-judicial confession, as evidence of the truth of the contents thereof, is a matter of debate (cf Wigmore on Evidence para 866). There is the recognized danger of a false confession (cf Wigmore para 867 C n 1; Best on Evidence 10th ed para 551 et seq; R v Citha 1920 TPD 115 at 117) but Wigmore considers that "cases of that sort are of the rarest occurrence". No doubt it is according to an assessment of that danger that the question whether a confession alone will suffice for a conviction, will be approached. In England there appears to be no fixed rule requiring corroboration (Wigmore para 270; Archbold Criminal Pleading D Evidence and Practice 40th ed para 1377e; Phipson on Evidence 12th ed para 802; Halsbury 4th ed vol 11, Criminal Law, Evidence and Procedure para 407, para 360 n 1). In the United States however "except in a few jurisdictions, the general rule is well settled... that a naked extra-judicial confession of guilt by one accused of crime uncorroborated E by any other evidence, is not sufficient to warrant or sustain a conviction" (30 Am Jur 2d Evidence para 1136; cf Wigmore para 2071); "the corroborative evidence must consist of facts or circumstances appearing in evidence which are independent of the confession and consistent therewith which tend to confirm and strengthen the confession" and "according to F nearly all the cases on the subject. .. such corroborating evidence must relate to, and tend to establish the corpus delicti" (30 Am Jur 2d Evidence para 1137; cf Wigmore para 2071). In this country the insufficiency of a confession standing alone has been recognized for over a century and a half, as reference to the following statutes will show:

Cape Ordinance 72 of 1830 s 29:

"And be it further enacted and declared, that it shall be lawful and competent for any Court or jury, by which any person prosecuted for any G crime or offence shall and may lawfully be tried, respectively, to convict such person of any crime or offence charged in the indictment, information, or complaint, under trial, in respect and by reason of any such confession of the commission of such crime or offence, which shall be H proved to the satisfaction of such Court or jury, respectively, to have been made as aforesaid, although not confirmed, by any other evidence: provided always, that such crime or offence shall, by competent evidence, other than the single and unconfirmed evidence of such confession, be proved to the satisfaction of such Court or jury, respectively, to have been actually committed."

Transvaal Proclamation 16 of 1902 s 18:

"It shall be lawful for any Court or jury by which any person prosecuted for any crime or offence shall and may lawfully be tried respectively to convict such persons of any crime or offence charged in the indictment or complaint under trial in respect and by reason of any such confession of the commission of such crime or offence which shall be proved to the satisfaction of such Court or jury respectively to have been made as aforesaid although not confirmed by

Jansen JA

any other evidence: provided always that such crime or offence shall by competent evidence other than the single and unconfirmed evidence of such confession be proved to the satisfaction of such Court or jury A respectively to have been actually committed."

Act 31 of 1917 s 286:

"Any Court or jury which is trying any person on a charge of any offence may convict him of any offence alleged against him in the indictment, summons or charge, under trial, in respect of and by reason of any confession of that offence proved to the satisfaction of the Court or jury B (as the case may be) to have been made by him, although the confession is not confirmed by any other evidence: Provided that the offence has, by competent evidence, other than the single and unconfirmed evidence of such confession, been proved to the satisfaction of the Court or jury (as the case may be) to have been actually committed:

Provided further that, in an inferior court, if no offence is charged C other than a contravention of a statutory regulation or bye-law, or drunkenness, a plea of guilty by the accused to the charge shall be sufficient to enable the court to convict him of such offence; but the Court may, in its discretion, hear evidence in order to determine the punishment to be imposed."

Section 286 of Act 31 of 1917 as replaced by s 51 of Act 46 of 1935:

"286.

...

(2)

D Any Court or jury which is trying any person on a charge of any offence may convict him of any offence alleged against him in the indictment, summons or charge under trial, by reason of any confession of that offence...