Weekly Lecture/Comment: Lecture 6 (Learning

Units 14 and 15)

Learning Unit 14 (The admissibility of admissions and

confessions)
General

This is a very important part of the work and you will get questions about it in the exam.
From the outset, it is important that you understand the difference between admissions
and confessions or you will get confused in the exam.

While admissions can occur in both civil and criminal matters, confessions are, for
obvious reasons, only found in criminal matters. When making a confession, you fully
confess to a crime. When making an admission in a civil matter, you will admit one or
more facts in dispute. When making an admission in a criminal matter, you only admit to
one or more of the elements in dispute (only one or more elements of the specific
crime), but not all the elements. If you admit all the elements of the specific crime, this
would be a confession. Note that absence of any ground of justification, like self-
defense, is one of the elements of a crime. If there is any question of a ground of
justification in any statement by the accused, his or her statement would not be a
confession, but an admission. Also note that there is a big difference between
determining whether a statement is an admission or a confession and the requirements
for admissibility of such statements. Because these statements have different
requirements for admissibility, it is therefore very important to firstly determine the
nature of a specific statement.

All confession must meet three requirements: freely and voluntarily, done by someone
in his or her sound and sober senses and without having been unduly influenced
thereto. In addition, a confession made to a peace officer must be confirmed and
reduced to writing in the presence of a magistrate or peace officer. It is therefore
necessary that you know the persons who are peace officers and justices of the peace.
Note that it is not necessary that all confession be reduced to writing.

DEFINITION OF AN ADMISSION

Note that an admission can be in the form of a statement or conduct and that there are
various forms of admissions. It is also possible to make an unintentional admission and
an admission on behalf of someone else (vicarious admission). If you do not understand
the last statement, you must make sure you study Activity 14.1. Take note that formal
admissions occur in both civil and criminal matters and different admissibility rules apply
depending on whether it is a criminal or a civil matter. It is another example where you
should orientate yourself in the exam before answering a question. You must ensure
that you understand what a “statement made without prejudice” is and when such
statements will be protected from disclosure.
An important type of admission occurs when a suspect points out facts connected with a
crime. This often happens in consequence of an inadmissible admission or confession.
His or her act of pointing out is considered to be an admission and must therefore firstly
be voluntary done. Note that it is possible to allow for two different types of evidence
here: firstly, the accused’s act of pointing out the relevant facts can be allowed as
evidence (section 218(2) of the Criminal Procedure Act). Secondly, the fact that the
evidence was discovered, for example, in the accused house can be also be allowed
(section 218(1) of the Criminal Procedure Act). This usually happens when the initial act
of pointing out was not voluntary done and cannot be used as evidence.

DEFINITION OF A CONFESSION

It is very important that you understand the meaning of a confession and that you study
the feedback at Activity 14.6. Note that a statement, once determined to be a
confession, remains a confession and cannot become something else because the
requirements for its admissibility have not been complied with. It can only be and
admissible confession or an inadmissible confession. It is, however, possible that an
otherwise inadmissible confession may later become admissible – see paragraph 14.6.4
in this regard.

ADMISSIONS AND CONFESSIONS AND THE CONSTITUTION

Note that the fact that the technical requirements for the admissibility of admissions and
confessions in term of the Criminal Procedure Act 51 of 1977 have been complied with,
does not mean that the admission or confession automatically becomes admissible. The
Constitution also stipulates certain requirement that must be complied with – see
Learning Unit 3 for a discussion of the rights of arrested and detained persons.
However, any violation of the Constitution does not mean that an admission or
confession will automatically be inadmissible - section 35(5) of the Constitution must
first be applied.

It is very important that you do the activities and the questions for self-evaluation in this
learning unit.

Learning Unit 15 (The privilege against self-incrimination, marital

privilege, legal-professional privilege and the police-docket
privilege)

General
“Privilege” is a legal term that is used for a situation where certain evidence may be
excluded from the evidence presented in court as a privilege. Even though such
evidence may be very relevant and reliable, it is excluded because of a privilege that
belongs to a person or party. Only that person or party can decide to include the
evidence in court.
The privilege against self-incrimination
When you study die section dealing with the privilege against self-incrimination, take
note that this privilege is relevant as far as two persons in the criminal process are
concerned:

• The accused

• The witness in criminal proceedings

Different rules and principles apply depending upon whether it is the accused’s or the
witness’s privilege against self-incrimination that is at issue. As far as the accused is
concerned, note that there is a difference between the actual trial and pre-trial
proceedings. Also ensure that you study the case of Magmoed v Janse van Rensburg
as is indicated in the study guide. Sections 200 and 203 of the Criminal Procedure Act
51 of 1977 must also be studied. Remember that all feedback to the activities must be
studied for purposes of the exam.

Compile your own answer to the following question: Explain how the Constitution
protects the privilege against self-incrimination as far as the accused and the witness in
criminal proceedings are concerned. Does a detained person also have a privilege
against self-incrimination?

Marital privilege
In Lecture 2 it was explained that a spouse may be forced to testify about what she saw
if the relevant exceptions mentioned in the Criminal Procedure Act applies and because
it is a criminal case, but that she cannot be forced to testify about any communication
made to her by her spouse (because spousal privilege will apply or because it is
possibly a civil case). When you get a question about spouses in the exam, remember
to orientate yourself by asking whether it is about marital privilege (communications
between spouses) or about what a spouse saw regarding a crime (compellability to
testify). The feedback to Activity 15.5. must be studied for the exam.

Legal-professional privilege
It is important to study the requirements for legal-professional privilege and to know that
it applies to both criminal and civil matters. It is also very important that you are able to
explain whether legal-professional privilege applies to “agents” and “independent third
parties”.
The police docket privilege
It is important that you read Shabalala v Attorney-General of the Transvaal according to
the guidelines in the study guide. The feedback at Activity 15.8 must be studied for the
exam.

Compile your own answer to the following question: Is there a difference between
access to the police docket for purposes of a fair trial and access to the police docket
for purposes of a bail hearing? Fully explain.