S v Mpetha and Others (2)

• Jurisdiction: South Africa
• Judge: Williamson J
• Judgment Date: 09 February 1982
• Citation: 1982 (2) SA 406 (C)
• Hearing Date: 15 December 1981
• Court: Cape Provincial Division

Williamson J:

G Five of the 19 accused in this marathon trial have made written statements to magistrates. The State is seeking to have these statements admitted as evidence, but the defence contest their admissibility. Thus far, during what is commonly called a trial - within a - trial, the two magistrates and the two interpreters involved have given H evidence and the statements in dispute are before me. The issue at this stage of the proceedings is whether the presumption created by s 217 (1) (b) (ii) of the Criminal Procedure Act 51 of 1977 in regard to confessions and the somewhat similar presumption created by s 219A (1) (b) in regard to admissions has come into operation.

In essence what s 217 provides is that, once certain defined prerequisites of a relatively formal nature are satisfied, then, if it appears from the document in which a confession is contained that such confession was made by a person

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(a)

freely and voluntarily; and

(b)

in his sound and sober senses; and

(c)

without having been unduly influenced thereto,

A it is presumed, unless the contrary is proved, that such confession was made in the manner set out in (a), (b) and (c) above.

To much the same effect is s 219A. It is concerned with admissions where the only requirement for admissibility, apart from certain relatively B formal ones, is that the statement should have been voluntary. Here too there is a change of onus from the State to the accused. There must be proof on a balance of probabilities if this onus is to be discharged. (See S v Yolelo1981 (1) SA 1002 (A) at 1009G.)

As anyone with experience of the workings of criminal law knows, the practical consequence of a statutory shift of onus from the State to an C accused is to present such accused with an obstacle not only formidable but not infrequently well nigh insurmountable.

It is axiomatic, therefore, that strict compliance with the terms of the sections must be required.

This approach was adopted by ACKERMANN J in S v Dhlamini en Andere1981 (3) SA 1105 (W) D when at 1114F the learned Judge, in dealing with s 219A, said:

'Voorbehoudsbepaling (b) tot die gemelde artikel het 'n ingrypende verandering met betrekking tot die strafregtelike bewysreg meegebring deur die bewyslas op die beskuldigde te plaas, en ek is gevolglik van mening dat die slagspreuk 'in poenis strictissima verborum significatio acipienda est' wel deeglik in die uitleg van hierdie artikel toepassing vind en dat dit streng ten gunste van die beskuldigde uitgelê moet word. E (Sien Steyn Uitleg van Wette 4de uitg te 117.)'

I proceed then to consider s 217. Much of what I will say will obviously apply to s 219A as well.

Before the presumption comes into operation it must appear 'from the F document in which the confession is contained' that such confession was made freely and voluntarily, etc. Normally no confession of itself would refer to questions of voluntariness or undue influence. A person making a confession is most unlikely to volunteer the fact that he is confessing freely and voluntarily, that he is in his sound and sober senses and that he has not been unduly influenced to make such confession. It is manifest therefore that implicit in the whole G procedure envisaged by the section is a questioning by the magistrate of the person confessing. These questions as well as the answers must be recorded for it to be able to appear from the document that the confession was made under the required conditions of voluntariness, etc. This, of course, is also in accordance with long-standing practice. It H is well known that over a period of many years departmental instructions and the decisions of the Courts have built up a series of guidelines designed to ensure that confessions are in fact freely and voluntarily made without the exercise of undue influence. It is not unreasonable to suppose, therefore, that, when the Legislature recently introduced the presumptions referred to, it was mindful of the manner in which the law relating to the taking of confessions had developed and that, relying on the safeguards built into the system, it decided that a shift of onus would not be unfair provided the safeguards appeared to have been observed.

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For an understanding of why these safeguards were introduced and how they developed it is instructive to look at some of the cases.

The common law rules as to the admissibility of statements by an accused A were summed up by INNES CJ in R v Barlin1926 AD 459 at 462 as follows:

'The common law allows no statement made by an accused person to be given in evidence against himself unless it is shown by the prosecution to have been freely and voluntarily made - in the sense that it has not been induced by any promise or threat proceeding from a person in authority.'

B Section 273 (1) of the Criminal Procedure and Evidence Act 31 of 1917 allowed a confession to be proved in evidence, inter alia, if it was proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto.

C The practical difficulties that arose in connection with the taking of confessions by magistrates are well illustrated in the case of R v Gumede and Another1942 AD 398. At 433 FEETHAM JA said:

'In this case admissions were obtained from both accused by the police and the accused were then produced before the magistrate to make statements. Nothing was said to the magistrate as to what had taken place between the accused and the police prior to the appearance of the D accused before him. The magistrate took down what they said as new statements and not as confirmation to statements previously made, and this seems to be a practice commonly followed, namely that an accused or a suspected person is interrogated by the police and that, when as a result of such interrogation he has been brought to a confessing state of mind, he is taken to a magistrate and then makes his statement before E him as if he were making it for the first time. The result is that the proceedings before the magistrate as faithfully recorded by him may convey a very misleading impression of spontaneity on the part of the person making the statement when, as a matter of fact, the statement is not really made spontaneously, but as a result of a series of interrogations in the course of which illegitimate methods may have been applied for the purpose of inducing the person concerned to make his statement, including possibly admissions of guilt. Thus, this proviso, F though devised in part at least for the protection of accused or suspected persons, may actually work very much against them and tend to facilitate the obtaining of statements by improper means which may not come to light, owing to the dropping of a veil between the previous interrogations by the police and the subsequent appearance of the interrogated person before the magistrate. If this second proviso is to be retained in the law in its present form some rule of procedure should G be laid down as to questions to be asked by a magistrate so that the person making a statement before a magistrate may be encouraged to disclose what has led up to his appearance before the magistrate for the purpose of making his statement.'

At 400 DE WET CJ approved of FEETHAM JA's remarks and added the following observations:

'I also wish to associate myself with the concluding remarks of my H Brother FEETHAM on the second proviso to s 273. This proviso was no doubt inserted for the protection of the accused, but I am afraid that in some cases its practical working has had the contrary effect. The evidence as to how the confession was made before the magistrate is, as a rule, entirely satisfactory but one's experience shows that in the case of natives a formal warning and caution by the magistrate seldom brings out the fact, where such is the case, that there had been antecedent threats or promises to induce the accused to make the confession. I would suggest very earnestly for the consideration of the Minister of Justice the desirability of issuing instructions to all magistrates and justices of the peace that, when an accused is brought before them for the purpose of

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making any statement in the nature of a confession, they should in the first place enquire from him whether he has already made a statement and, if so, the nature of such statement, and especially the reasons A actuating him in wishing to repeat the statement.'

The result of these judicial comments is recorded by OGILVIE THOMPSON AJA (as he then was) in R v Mtabela1958 (1) SA 264 (A) at 268C where the learned Judge said:

'As is well known, a comprehensive set of departmental instructions in relation to these matters, together with a specific form containing the B various questions to be asked, has, as a result of Gumede's case, been in existence for some time; and one of the matters thus prescribed is that the person wishing to make a statement should be asked whether he has previously made a similar statement and, if so, where, to whom and why he wishes to repeat it. Salutary though this rule is, it remains an administrative rule only, the mere non-observance of which will not C necessarily render the statement inadmissible. The question remains one of fact: has it been established in the particular instance that the statement was voluntary? (R v Kuzwayo1949 (3) SA 761 (A) at 768; R v Jacobs1954 (2) SA 320 (A) at 327.)'

The duty of the recording magistrate to investigate the background to the accused's presence before him is emphasised in a further passage at 268H where the learned Judge said:

D 'Before proceeding to examine Mr Boshoff's next submission, it is apposite to remark that, not only should magistrates be meticulous in making the appropriate preliminary enquiries of persons brought before them...