S v Naidoo

• Jurisdiction: South Africa
• Judge: Van Heerden AJP, Howard J and Thirion J
• Judgment Date: 30 November 1984
• Hearing Date: 20 November 1984
• Citation: 1985 (2) SA 32 (N)
• Court: Natal Provincial Division

Thirion J:

This review has been referred to the Full Court for argument. B The accused was charged in the magistrate's court with a contravention of s 140 (2) (a) of Ord 21 of 1966 (N) which makes it an offence for any person to drive a vehicle on a public road while the concentration of alcohol in any specimen of blood taken from any part of his body is not less than 0,08 gram per 100 millilitres. The accused, who was unrepresented, pleaded guilty to the charge and, after having been C questioned by the magistrate in terms of s 112 (1) (b) of the Criminal Procedure Act 51 of 1977, was convicted on his plea of guilty without evidence having been led and was sentenced to a fine in excess of R100.

The Judge President, before whom the case was laid on review, entertained a doubt as to the correctness of the majority judgment in S D v Ndlela ; S v Janjie ; S v Jonas ; S v MacGregor ; S v Soobramoney; S v Mazeka ; S v Naidoo 1984 (4) SA 131 (N) and considered that on an application of the law as laid down in the majority judgment the conviction ought to be set aside for want of compliance with the provisions of s 112 (1) (b) in that it was not possible for the court to be satisfied of the accused's E guilt on the accused's admission concerning the concentration of alcohol in his blood. Consequently the Judge President referred the matter for argument.

In his judgment in S v Ndlela (supra) LAW J, with whose approach LEON J agreed "in general", held that, apart from such exceptional cases as those mentioned in the judgment, it is not, in the case of an F unrepresented accused charged with a contravention of s 140 (2) (a) of Ord 21 of 1966, possible for a court in proceedings under s 112 (1) (b) to be satisfied of the accused's guilt on the accused's admission concerning the concentration of alcohol in his blood. The learned Judge reasoned that, since the accused does not have personal knowledge of the G concentration of alcohol in his blood, the court cannot be satisfied that the accused's admission concerning the concentration of alcohol in his blood is correct and therefore the court cannot on such an admission be satisfied that the accused is guilty.

It is the correctness of this conclusion which is called in question.

It is clear that the learned Judge reached his conclusion because of the H view which he held that an admission by an accused, or at least an unrepresented accused, of facts which are not within his personal knowledge, has no or little probative value. It is therefore necessary, at the outset, to examine the rationale for the reception of an accused's admission as evidence of the fact asserted in the admission I - particularly the admission of a fact which is not within the accused's personal knowledge.

Phipson on Evidence 12th ed s 673 states that the most generally accepted ground for the reception of a party's admission is that a party's declarations, whether for or against his interest when made, may always be taken to be true as against himself. For this statement reliance is placed on Slatterie v Pooley (1840) 151 ER 579 (Ex) (6 M&W J 664) in which it was

Thirion J

A held that a party's admissions are receivable in evidence against him even though such admissions "may involve what must necessarily be contained in some deed or writing". PARKE B said in that case that the reason why such parol statements are admissible without accounting for the absence of the written instrument is that they are not open to the same objection as that which applies to parol evidence from other B sources where the written evidence might have been produced,

"for such evidence is excluded from the presumption of its untruth, arising from the very nature of the case, where better evidence is withheld; whereas what a party himself admits to be true may reasonably be presumed to be so. The weight and value of such testimony is quite another question. That will vary according to the circumstances".

C Lord ABINGER CB concurred in this judgment and added that he had always considered it as clear law that a party's own statements were in all cases admissible against himself.

Wigmore on Evidence s 1053 says that personal knowledge by the party making an admission of the truth or existence of the facts admitted is not a condition for its admissibility. The justification which is D advanced for the reception of a party's admissions as evidence of the existence of the facts admitted, in cases where the party has no personal knowledge of these facts, is that no one is likely to admit the existence of a fact, whether it be one of which he has personal knowledge or not, unless such admission is made as a result of evidence E or information which is sufficient to convince him of the correctness thereof. This is brought out clearly in the following passage from Kitchen v Robbins (1880) 29 Ga 713 at 716, which is quoted by Wigmore in s 1053:

"Are no admissions good against a party, unless founded on his personal knowledge? The admissions would not be made except on evidence which satisfies the party who is making them against his own interest, that F they are true, and that is evidence to the jury that they are true. Admissions do not come in on the ground that the party making them is speaking from his personal knowledge, but upon the ground that a party will not make admissions against himself unless they are true. The fact that he makes them against his interest can be reasonably explained only on the supposition that he is constrained to do so by the force of the evidence. The source from which the knowledge of the facts is derived is a circumstance for the jury to consider, in estimating the value of the G evidence, but that is all."

In English law, too, personal knowledge of the existence of the facts admitted, it would seem, is not a prerequisite for the reception of a party's admissions as evidence of the existence of the facts which are so admitted. Cross Evidence 5th ed at 521; Phipson on Evidence 12th ed s 683. In this regard the case of Comptroller of Customs v Western Lectric H Co Ltd [1965] 3 All ER 599 (PC) should be mentioned. An issue in that case was what the country of origin of certain goods was. It was held that an admission in regard to the country of origin based solely on certain markings appearing on the goods was insufficient to prove the fact so admitted. Delivering the judgment of the Privy Council, Lord I HODSON said at 601:

"Their Lordships are of opinion that the conviction ought not to be allowed to rest on the admission alone. If a man admits something of which he knows nothing it is of no real evidential value. The admission made by the respondents' agent was an admission made on reading the marks and labels on those goods and was of no more evidential value than those marks and labels themselves. A somewhat similar admission was made J in the case of Bulley v Bulley (1874) 9 Ch App 739

Thirion J

A where an admission was made based on an inference which a solicitor drew from the state of the title to land. MELLISH LJ in rejecting the admission said that...