S v Zuma and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O'Regan J, Sachs J, Kentridge AJ
• Judgment Date: 05 April 1995
• Docket Number: CCT/5/94
• Court: Constitutional Court
• Hearing Date: 23 February 1995
• Citation: 1995 (2) SA 642 (CC)

Kentridge AJ:

[1] This case arises from a criminal trial before Hugo J in the Natal J Provincial Division. In this Court it was heard together with the case of

Kentridge AJ

Mhlungu and Four Others v The State (case No CCT/25/94) which also arose from a criminal trial in the Natal Provincial Division. Each of them has come to this Court by way of a referral by the Judge presiding over the trial. In each case the Judge referred to this Court for decision the question whether s 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977 B is inconsistent with the provisions of the Republic of South Africa Constitution Act 200 of 1993. If we so find it will be our duty under s 98(5) of the Constitution to declare the provision invalid. In the Mhlungu case the Judge also referred to us the question whether, having regard to s 241(8) of the Constitution, the provisions of chap 3 of the C Constitution apply to the proceedings before him. Section 241(8) raises important issues which do not directly touch the Zuma case. Consequently, we propose to give judgment at this stage only in the Zuma case, and to deal with the Mhlungu case in due course in a separate judgment. A

[2] In this case (as in the Mhlungu case) this Court itself has raised the D issue whether the referral was competent. It is necessary to set out in some detail the circumstances of the criminal trial which led to the referral to this Court. Before doing so, however, I must outline the history and effect of the challenged subparagraph of s 217 of the Criminal Procedure Act.

[3] The section deals with the admissibility in evidence of a confession E made by an accused person before trial. Subsection (1) and proviso (a) thereto read 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 F and without having been unduly influenced thereto, be admissible in evidence against such person 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 G with reference to which such peace officer is authorized to exercise any power conferred upon him under that section, shall not be admissible in evidence unless confirmed and reduced to writing in the presence of a magistrate or justice; . . . .'

It will be seen that this subsection requires the prosecution, if it H wishes to put the confession in evidence, to prove that it was freely and voluntarily made, and was not unduly influenced. This means, at the least, proof that it was not induced by violence, or by threats or promises made by a person in authority. R v Barlin 1926 AD 459 at 462; R v Nhleko 1960 (4) SA 712 (A); S v Mpetha and Others (2) 1983 (1) SA 576 (C). I This rule, which reflects a long-standing principle of the English law of criminal procedure and evidence, was embodied in the Evidence Ordinance of the Cape Colony in 1830. The rationale of the rule excluding involuntary confessions (or admissions) has been much discussed. See Hoffmann and Zeffertt South African Law of Evidence 4th ed at 205, 216-17; Cross on Evidence 6th ed at 601-3. I shall return in due course to the historical development of the rule. At this stage it is sufficient to say that J before the

Kentridge AJ

A Union of the four provinces in 1910 it was well established in all parts of South Africa that it was for the prosecution to prove that any confession on which it wished to rely was freely and voluntarily made.

[4] Proviso (a), on the other hand, has no counterpart in English law. It B was introduced into South African law by the Criminal Procedure and Evidence Act 31 of 1917. Its general effect is that confessions made to members of the police force who are not justices of the peace are inadmissible. An accused person who has confessed, or expressed a wish to confess, to a police officer who is not a justice of the peace should be taken to a magistrate or justice of the peace who may take down the C confession in writing. Even where the police officer is a justice of the peace the accused person may be taken to a magistrate who may take down the confession in writing. The magistrate ought, of course, to be satisfied that the confession is freely and voluntarily made, and should record that fact in the document containing the confession. It is at that D stage that proviso (b) to s 217(1) becomes relevant. That proviso reads:

'Provided -

. . .

(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 E presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question -

(i)

be admissible in evidence against such person if it appears from the document in which the confession is contained that the F confession was made by a person whose name corresponds to that of such person and, in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the confession and any question put to such person by the magistrate; and

(ii)

be presumed, unless the contrary is proved, to have been freely G 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 without having been unduly influenced thereto.'

It is subpara (ii) of this proviso that is under attack in the present H case. It was introduced into the Criminal Procedure Code in 1977. In the circumstances set out in the subparagraph it places on the accused the burden of proving that the confession recorded by the magistrate was not free and voluntary. The words 'unless the contrary is proved' place an onus on the accused which must be discharged on a balance of probabilities. He does not discharge the onus merely by raising a doubt. I If, at the end of the voir dire (or trial-within-a-trial) the probabilities are evenly balanced the presumption prevails. See Ex parte Minister of Justice: In re R v Bolon 1941 AD 345 at 360-1; S v Nene and Others (2) 1979 (2) SA 521 (D); S v Mkanzi en 'n Ander 1979 (2) SA 757 (T) J ; S v Mphahlele and Another 1982 (4) SA 505 (A) at 512.

Kentridge AJ

A [5] I add, by way of completeness, that ss (2) of s 217 provides that the prosecution may lead evidence in rebuttal of evidence advanced by an accused in rebuttal of the presumption under proviso (b).

[6] In the case before us the prosecution tendered confessions which had been made by two of the accused before a magistrate and reduced to B writing, and invoked the presumption in proviso (b).

[7] The accused were indicted on two counts of murder and one of robbery. At their trial before Hugo J and assessors they pleaded not guilty. Two of the accused had made statements before a magistrate which counsel for C the State tendered as admissible confessions. Admissibility was contested by counsel for the accused and a trial-within-a-trial ensued. At the outset defence counsel raised the issue of the constitutionality of s 217(1)(b)(ii) of the Criminal Procedure Act, and counsel for both the defence and the prosecution consented (in terms of s 101(6) of the Constitution) to the trial Judge's deciding that issue. The D trial-within-a-trial nonetheless proceeded. The accused testified that they had made their statements by reason of assaults on them by the police and the threat of further assaults. The policemen concerned denied this, but two women called as witnesses by the defence said that they had seen the police assaulting the accused. At the end of the evidence the Court concluded unanimously that while they were not satisfied beyond a E reasonable doubt that the statements had been freely and voluntarily made, the accused had failed to discharge the onus upon them under proviso (b) on a balance of probabilities. In his judgment, given on 10 August, 1994 and reported as S v Zuma and Others 1995 (1) BCLR 49 (N), Hugo J said:

'Had we been convinced that s 217(1)(b) of the Criminal Procedure Act was F still valid and constitutional we would therefore have had little hesitation in accepting that the accused had not discharged the onus placed upon them by that section. The constitutionality therefore of s 217(1)(b) of the Criminal Procedure Act is therefore crucial to the decision of this case.'

Later in his judgment he said:

'It is quite clear from what I have said that the site of the onus will be G decisive in this case, at least in so far as the admissibility of this evidence is concerned. If it is held by the Constitutional Court that s 217(1)(b)(ii) is unconstitutional it will lead to the most unfortunate result that two persons who have in effect admitted under oath in this Court that they indeed committed these offences may be acquitted but that may well be the effect of the constitution or the provisions of the constitution upon matters of this nature. It is also the effect of the H hearing of matters of this nature in a separate trial-within-a-trial, the evidence of which is not admissible in deciding the merits of the conviction.'

The reference to the admissions of the two accused that they had committed the offences arose from the evidence which they had given in the course of the trial-within-a-trial. As Hugo J...