S v Mpetha and Others (2)

• Jurisdiction: South Africa
• Judge: Williamson J
• Judgment Date: 31 August 1982
• Citation: 1983 (1) SA 576 (C)
• Court: Cape Provincial Division

Williamson J:

After many months of evidence and lengthy argument the time has come for me to give judgment on the question of the admissibility of various written statements made by ten of the accused. Many different factual and legal considerations apply and the task before me has been complex and difficult.

I am indebted to counsel, both for the State and the defence, for

Williamson J

their helpful and detailed arguments. It seems to me that the best way of dealing with the matter is, firstly, to discuss generally the law and thereafter to deal with the facts relevant to the making of each statement and then evaluate admissibility in the light of the appropriate legal considerations.

The law:

Section 217 of the Criminal Procedure Act 51 of 1977 A (the Act) provides, inter alia, that a confession by an accused shall be admissible in evidence if it is proved to have been freely and voluntarily made by such person in his sound and sober senses B and without having been unduly influenced thereto.

Section 219A of the Act provides that an admission shall be admissible if it is proved to have been voluntarily made.

One of the problems in the present case is to decide just what these criteria of admissibility really mean.

A further problem arises from the fact that many of the C statements were obtained while the persons concerned were detained either under s 22 of the General Law Amendment Act 62 of 1966 or under s 6 of the Terrorism Act 83 of 1967 for the lawful purpose of interrogation. This raises the issue as to whether or not a statement obtained as the result of a D statutorily authorised interrogation conducted under the express or implied threat of further lawful detention can in law be said to be freely and voluntarily made without there being undue influence present. Then, again, there is the question whether the word "voluntarily" in the recently introduced s 219A, dealing with admissions, has the same meaning as the phrase "freely and voluntarily" in s 217 and, if E it has not the same meaning, then just what is the difference between the two concepts?

Another matter which was argued was whether a Judge has a discretion "in the interests of justice" not to admit a statement. If he has such a discretion a question arises as to the precise nature and extent of that discretion. It is trite F law that, before a statement by an accused can be admitted in evidence, the State has to prove beyond reasonable doubt that the various criteria or prerequisites for admissibility have been satisfied. The requirement that the confessor should be in his sound and sober senses normally presents no difficulties. It was in no way an issue in the present case and it is not necessary for me to say more than that, on the evidence as a G whole, there is no question but that each one of the accused was manifestly in his sound and sober senses when he made the statement sought to be put in by the State.

The phrase "freely and voluntarily" in s 217 and the word "voluntarily" in s 219A seem to me to convey essentially the same idea and for all practical purposes I am unable to discern H any meaningful difference between them. In the Concise Oxford Dictionary "voluntary" is defined, inter alia, as "done, acting, able to act of one's own free will, not constrained or compulsory". There is then a reference to "voluntary confession" which is defined as being not prompted by promise or threat. In this context then the word "free" does not seem to connote anything different from the word "voluntary", for it, too, is defined in relation to an act of will which is voluntary.

Williamson J

Although the Legislature uses different words in the two sections under consideration there is in essence no difference in underlying concept.

Both sections in this regard then appear to express the rule of A the common law in regard to all statements made by an accused. This, too, seems to have been the view of VAN HEERDEN AJA who, in an obiter dictum in S v Yolelo 1981 (1) SA 1002 (A) at 1009C - D, said:

"Wat dadelik opval is dat die inleidende bepaling in hoofsaak slegs 'n kodifikasie is van 'n gemeenregtelike reël wat soos volg in R v Barlin 1926 AD 459 te 462 geformuleer is:

B 'The common law allows no statement made by an accused person to be given in evidence against him 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. That is a principle covering all admissions or statements made by the accused.'"

C The common law rule is somewhat artificial in that the ordinary ambit of the concept "freely and voluntarily" is narrowed by the requirement that the threat or promise must proceed from a person in authority. A question then arises as to whether the word "voluntarily" in s 219A must be given the narrower common law meaning or whether it should be given its ordinary meaning. D This problem is discussed by Hoffmann and Zeffertt in the South African Law of Evidence 3rd ed at 175 as follows:

"There is as yet no authority as to whether the words 'voluntarily made' in s 219A will be given the same meaning as at common law or whether they will be given their usual meaning, namely made of one's own free will or choice and not by constraint. On the one hand it can be argued that the new provision has to be construed as not having been intended to do E violence to the common law, that the intention of the Legislature was to create a presumption as regards the voluntariness of statements made to or confirmed and reduced to writing in the presence of magistrates and that it was not concerned otherwise in tampering with what may properly be regarded as voluntary. On the other hand it could be submitted that the same word should have the same meaning wherever it appears in the Act, that the words 'voluntarily made' in s 217 F (1) which relates to confessions are not confined to excluding statements induced by a person in authority. It is suggested that it would be preferable not to limit them to their common law sense because it would give greater protection to accused persons against the reception of unduly influenced statements if the same interpretation were to be given as that which is given to those words as regards confessions and that in any event the words should be given their ordinary meaning and not their rather technical significance at common law."

G In a footnote the following appears:

"At the time of writing since then S v Yolelo 1981 (1) SA 1002 (A), without apparently considering whether there was any problem of interpretation, has held that s 219A, except for its proviso, merely codifies the common law."

There is much to be said for the learned authors' views that, as a matter of policy, the ordinary meaning should be given as H this would indeed extend the ambit of the protection afforded to an accused. However, I do not follow their submission when they say that it could be argued that the meaning of the word "voluntarily" as used in relation to confessions under s 217 is not confined to statements induced by a person in authority. As I understand the position the law is the exact opposite of what this argument suggests. One only has to look at a further passage in Barlin's case supra for this to be made clear. At the foot of 462 the learned CHIEF JUSTICE says:

Williamson J

"But s 273 deals specially with confessions of the commission of an offence in terms wider in one respect than the rule of the common law. For the words 'without having been unduly influenced thereby' are elastic and may operate to enlarge in some degree the area of exclusion."

In my view the learned CHIEF JUSTICE manifestly interpreted the A statutory requirement of "free and voluntary" in the restricted common law sense of those words.

There is of course the further consideration that, where a statute deals with a specific matter also specifically dealt with by the common law, one does not readily give the same words or concepts different meanings. The concept of B voluntariness in regard to admissions by an accused has an accepted meaning at common law, and it seems to me that stronger indications than are to be found in the provisions of ss 217 and 219A are required in order to justify a departure from the accepted common law meaning. I am accordingly of the view that in interpreting s 219A of the Act a court must accord C to the word "voluntarily" its ordinary common law meaning. It is not necessary for the purposes of this case to consider the ambit of the concept "person in authority", for on any basis the policemen concerned with the taking of the statements now in issue were clearly persons in authority vis-à-vis the various accused.

D I turn next to a consideration of the degree of voluntariness required for a statement to be admitted. A useful contribution to this subject is to be found in an article by A P Paizes in the South African Journal of Criminal Law and Criminology vol 5 No 2 (July 1981) at 122 entitled "Undue Influence and Involuntary Admissions and Confessions". Hand in hand with this E question goes the matter of undue influence. The question arises as to when is influence undue and what degree of such undue influence is required in order to render a confession inadmissible. Is the test an objective or a subjective one?

In the first place it seems to me clear that the concept of undue influence is wider than the concept of "free and F voluntary". As pointed out by INNES CJ in Barlin's case supra the words are elastic and may operate to enlarge in some degree the area of exclusion. This was the view, too, of DE BEER JP in R v Zwane 1950 (3) SA 717 (O) where at 720H the learned Judge said:

"I can well conceive of a case where a person makes a statement freely and voluntarily and where he may have been...