BWR 320

SEMESTER TEST 2

UNIT 3 INFORMAL ADMISSIONS, POINTINGS OUT AND CONFESSIONS

UNIT 4 UNCONSTITUTIONALLY OBTAINED EVIDENCE IN CRIMINAL TRIALS

 UNIT 3
I N F O R M A L A D M I S S I O N S , P O I N T I N G S O U T A N D CO N F E S S I O N S

2|Page
 INTRODUCTION

DEFINITIONS

TERM DEFINITION
ADMISSION Formal or informal - A statement adverse to the interest of its maker

INFORMAL ADMISSION Statements by a party in a criminal or civil case that are averse to that party’s case.

CONFESSION An unequivocal acknowledgment of guilt equivalent to a plea of guilty before a court of

law. (Rex v Bekker)
POINTING OUT An informal admission by conduct that cannot amount to a confession. Its an overt act
where the accused physically indicates the presence or location of something visible to
an inquisitor.

FREELY & VOLUNTARY Common law meaning: statement must not be induced by promise or threat from a
person in authority

CONCEPTS

TERM EXPLANATION

It occurs when the maker admits, out of court, to all elements of the crime charged.
CONFESSION
Confessions are specific to criminal matters & are formal & clear admissions of guilt

It encompasses both formal & informal admissions & includes any statement
ADMISSION
against the maker's interest. It is a special type of comprehensive admission.

An accused may admit to specific details or circumstances surrounding the alleged

INFORMAL ADMISSION
crime, such as being present at the scene or engaging in certain activities, without

3|Page
 formally confessing guilt. These admissions are typically made out of court & may
constitute evidence that can be contradicted or explained away.

Accused, their legal representative, or the prosecutor may admit any fact placed in
FORMAL ADMISSION issue in criminal proceedings & such admission is conclusive proof of the fact
admitted

It involves actions or gestures that may imply involvement in a crime BUT DO NOT
meet the strict criteria for a confession. Pointing out evidence or locations is not
considered a confession.
POINTING OUT Pointing out involves a physical action by the accused, where they physically
indicate the presence or location of something visible to an inquisitor (e.g., a police
officer).
It does NOT include any words, oral or written, in the act

Under common law, a statement is considered freely & voluntary if it is NOT

FREELY & VOLUNTARY
induced by a promise or threat from a person in authority.

Accused must have understood what she was saying.

Accused must have been in a state where she could understand & appreciate the
SOUND & SOBER SENSES significance of her statement.
Even extreme emotions or physical conditions DO NOT contradict the ability to
make a statement with sound & sober senses

External factors that extinguish accused’s freedom of will. Any external influence,
not limited to persons in authority, that impairs the accused's free will & leads to
WITHOUT UNDUE INFLUENCE
the statement is considered undue influence. It includes various forms of influence,
such as violence, promises, or threats.

Involves actions or payments that indirectly acknowledge the validity of a claim or

POSITIVE CONDUCT
service, serving as an admission

Occurs when a party remains silent in response to allegations, leading to common-

sense inferences against them. Admissions by silence imply that a party cannot
ADMISSION BY SILENCE
explain suspicious circumstances & are inferred from their silence in response to an
accusation

Involves presenting evidence & arguments about the circumstances of obtaining a

TRAIL – WITHIN – A – TRAIL
statement to assess its admissibility

4|Page
 EXCLUDING INVOLUNTARY ADMISSIONS & CONFESSIONS

DANGER OF UNRELIABILITY
REASONS FOR EXCLUDING PROTECTION OF HUMAN DIGNITY
CONSTITUTIONAL RIGHTS
DANGER OF UNRELIABILITY

• MAIN REASON
• When statements are obtained involuntarily, through coercion, duress, or other improper means, there is a
chance they may not accurately reflect the truth.

PROTECTION OF HUMAN DIGNITY:

• Excluding involuntary admissions & confessions aligns with the principle of protecting human dignity &
ensuring that individuals in custody or charged with offenses are treated fairly and respectfully.
• The use of improper methods to extract confessions is considered incompatible with a civilized society's
values and legal principles.

S v January; Prokureur-Generaal, Natal v Khumalu

 Main reason for excluding evidence of involuntary confession & admissions was policy

 In society it’s NB persons in custody should not be exposed to ill treatment of improper use in order to extract confessions

CONSTITUTIONAL RIGHTS:
• SA has constitutional provisions that protect the rights of accused individuals.
• These provisions highlight the importance of ensuring that individuals are not compelled to make self-incriminating
statements against their will.
The right to remain silent & the right to be promptly informed of the right to remain silent, along with the
S 35 (1) (a) & (b)
consequences of not remaining silent.
An arrested person shall have the right to not be compelled to make a confession or admission that could
S 35 (1) (c)
be used in evidence against him
Privilege against self-incrimination as NB part of a fair trial
S 35 (3) & (j)
Every accused person has the right to a fair trial.

S 35 (4) A person must be informed on his rights in an understandable language.

DISTINGUISHING BETWEEN ADMISSIONS & CONFESSIONS

5|Page
 ASPECT ADMISSIONS CONFESSIONS

LEGAL May require additional corroborating
CONSEQUESNCES evidence to lead to a conviction.
May allow the accused to present
DEFENSIVE
evidence or arguments that could
POSSIBILITIES
contradict their guilt
Has more weight if specific criteria is met
Can result in a conviction on their own
Require higher threshold of unequivocal
admission of guilt
Characterized by direct acknowledgment of guilt
May leave little room for potential defences

RELEVANT CASES

 S v Erasmus & Section 209 of CPA

o An accused may be convicted of an offence on the single evidence of a confession if the confession is confirmed
in a material respect OR if the offence is proved by evidence, other than such confession, to have been actually
committed

 S v Grove-Mitchell:
o Accused was charged with murder
o The accused made statements when he told the police he “shot the deceased 6 times” & had “emptied the gun
on her” & he said he “shot her full of holes”
o The court ruled that these statements did not amount to a confession because they did not exclude the
possibility of a valid defence.
o This case highlights that a statement will not be considered a confession unless it unequivocally admits guilt &
excludes the possibility of a defence.

NOT A CONFESSION VALID CONFESSION

“I shot the deceased 6 times” “I murdered her”
“I emptied the gun on her” “I lawfully killed her”
“I shot her full of holes”

 R v Khumalu:
o Accused was charged & convicted for the statutory offence of having an unlicensed revolver in his possession
o Accused, while driving a vehicle, had been stopped by the police who found a revolver near the driver’s seat
o The accused claimed ownership of an unlicensed revolver found in a vehicle he was driving.
o He admitted not having a license

6|Page
 o The prosecution invoked a statutory presumption which provided that “any person who is in charge of any
vehicle in which there is any arm, shall, until the contrary is proved, be deemed for the purposes of this Act to be
the possessor of such arm”
o The court did not consider this a confession because the accused could have still presented evidence to
demonstrate that he was not in possession of the firearm.
o This case illustrates that an admission alone does not constitute a confession if there's still room for a defence.

 R v Xulu:
o Accused was charged with unlawfully possessing dagga for purpose of sale/ supply, breaking Act 13 of 1928
o Section 90 of that Act placed the onus of proving that possession was lawful on the accused
o The accused admitted to possessing dagga when questioned by the police
o The court did not treat this admission as a confession because it was not a clear admission of guilt.
o The accused could still have tried to prove a legitimate reason for possessing the substance.
o This case underscores that an admission must be an unequivocal acknowledgment of guilt to be considered a
confession.

 Zeffertt, Paizes & Skeen:

o These cases collectively prove that the accused's actions alone is unlikely to amount to a confession in crimes
requiring mens rea  CRIMINAL INTENT
o To be a confession  must be an unequivocal admission of guilt & overall context of statement must imply guilt.
o These cases highlight the importance of ensuring that a confession is truly definite & indicative of guilt.

1. ADMISSIONS

7|Page
 FORMAL ADMISSIONS & INFORMAL ADMISSIONS

FORMAL ADMISSION IN CRIMINAL PROCEEDINGS

➢ They are governed by Section 220 of the CPA

THE ACCUSED
➢ FORMAL ADMISSIONS THE LEGAL REPRESENTATIVE OF THE ACCUSED THEY MAY ALL ADMIT ANY FACT
PLACED IN ISSUE
THE PROSECUTOR

THE STATE
➢ FORMAL SUBMISSIONS CAN BE MADE BY
THE ACCUSED

Once a fact is formally admitted it serves as conclusive proof

➢ CONCLUSIVE PROOF THE FACT IS ACCEPTED AS TRUE
NO FURTHER EVIDENCE OR PROOF IS REQUIRED regarding that specific fact

➢ A formal admission must be made with the clear intention that the statement operates as an admission.

➢ Once made, it cannot be withdrawn or contradicted unless certain legal requirements have been satisfied

➢ Presiding officer in the case should record precisely which facts are being admitted to ensure clarity & accuracy.

➢ If a legal representative makes a formal admission on behalf of the accused, the accused must confirm that they
instructed their representative to admit the facts.

➢ Formal admissions are automatically admissible in court proceedings

 ∴ They are accepted as evidence without the need for further proof.

➢ Debate on Conclusive Proof:

There has been debate about whether a formal admission constitutes sufficient or conclusive proof of a fact

S v Sekele & S v Seesetse

 Both cases indicated an accused could retract a formal admission by leading evidence that contradicts it.
 However, the ultimate decision depends on the court's assessment of all the evidence in the case.
If the formal admission remains uncontradicted by the overall evidence  IT STANDS AS EVIDENCE

If the evidence as a whole contradicts it  formal admission fails to hold as conclusive proof.
8|Page
 INFORMAL ADMISSIONS

➢ Informal admissions in criminal & civil cases, refer to statements made by party that are averse to their own case.
➢ Informal admissions are typically made out of court & can be part of a larger statement or conversation
➢ The maker of an informal admission is always free to lead evidence to contradict or explain away the admission.
 ∴ The admission is not necessarily conclusive & can be challenged or countered by the party who made it.

➢ The person making an informal admission is not bound by it and can provide additional evidence to refute or
clarify the statement.
➢ This often leads to further issues, such as questions about whether the admission was made freely & voluntarily.
➢ If part of a statement is allowed into evidence as an informal admission, the maker of the statement is
generally entitled to present the entire statement to the court if it is relevant and part of the same context.

➢ Informal admissions can include both incriminating & exculpatory parts of a statement.
 This means that a party may make statements that support & contradict their case
 The court will weigh all relevant statements in making its determination
 Incriminating & exculpatory parts of a statement are both eligible for admission

Example:
A defendant's legal representative admits to the court that the defendant was at the victim's house the night of the
rape  incriminating part of the statement
But the defendant denies being the rapist  exculpatory part of the statement

THE MAKING OF ADMISSIONS

INFORMAL ADMISSIONS
 FORMS OF ADMISSIONS
FORMAL ADMISSIONS

9|Page
It is important to distinguish between formal & informal admissions for 2 reasons:

(1) THEY ARE PROVEN IN DIFFERENT WAYS In terms of when the admission is made

(2) THE EVIDENTIAL VALUE OF FORMAL ADMISSIONS DIFFERS FROM THAT OF INFORMAL ADMISSIONS.

10 | P a g e
 ADMISSIONS

WHEN ARE ADMISSIONS MADE PROBATIVE VALUE

INFORMAL FORMAL INFORMAL FORMAL

EXTRA CURIAL INTRA CURIAL evidence can be

CONTRADICTED OR BINDING ON MAKER
∴ made out of court ∴ made in court or pleadings EXPLAINED AWAY

• Casual & less structured statements

• Explicitly & formally made statements
• A suspect saying to a friend
• A person stating during a court proceeding
• "Yeah I was there when it happened."
• "Yes, I was at the location on the day of the incident,"

11 | P a g e
 FORMS OF ADMISSIONS

ADMISSIONS CAN BE CONTAINED IN

ORAL STATEMENTS WRITTEN STATEMENTS POSITIVE CONDUCT NEGATIVE CONDUCT

ADMISSIONS BY SILENCE

 Admission by Silence involves interpreting an individual's silence in response to an accusation as an admission

of guilt or wrongdoing.

 This admission can be inferred from the person's lack of response

 Silence in face of accusation can be regarded as an admission if it forms the basis of commonsense inference
against party

Jacobs v Henning Case

• The plaintiff claimed damages from the defendant for seduction.

• When the plaintiff's father accused the defendant of causing the pregnancy, the defendant remained silent &
lowered his head.
• The court found this conduct to be sufficient corroboration of the plaintiff's claim

12 | P a g e
THE NATURE INFERENCES FROM SILENCE:

 Drawing inferences from silence depends on the surrounding circumstances.

 WHAT IS THE RELEVANCE OF THE ACCUSED’S SILENCE

 When an accused chooses to remain silent in response to an accusation or questioning, it's NB to recognize
that there can be various reasons for this behaviour that have nothing to do with a consciousness of guilt.

 Such as:
REASONS UNRELATED TO GUILT:

 The accused may have valid reasons for not responding that is unrelated to guilt.
 Example, fear misinterpretation of words, misunderstand question, prefer to exercise right to
remain silent as a matter of principle.

PERCEPTION OF THE ACCUSATION:

 The accused might not believe that the accusation or question is worth dignifying with a response.
 They may observe the accusation as baseless or irrelevant.
 Consequently, they choose to remain silent because of not believing the accusation is worth answering

EMOTIONAL STATE:

 The accused's emotional state at the time of the accusation or questioning can play a significant role in
their decision to remain silent.
 May be in a state of shock, surprise, or confusion, making it difficult for them to formulate a response.
 Silence might be a natural reaction to overwhelming emotions rather than an admission of guilt.

TACTICAL APPROACH:

 Silence can also be a tactical approach adopted by the accused or their legal counsel.
 They may choose not to respond in order to protect their legal rights or to avoid saying anything that could
potentially incriminate them.

13 | P a g e
 ADMISSIBILITY OF ADMISSIONS

REQUIREMENTS FOR ADMISSIBILITY

CIVIL MATTERS

 S 42 of the CPEA applies

 The general requirement for admissibility is RELEVANCE

 But the court may at its own discretion exclude the admission if it was obtained illegally

 Admissions made in context of settlement negotiations may only be disclosed with consent of both parties

CRIMINAL MATTERS

 Regulated by SECTION 219A OF CPA

Proven beyond reasonable doubt

 Extra-curial statements NOT ADMITTED AS ADMISSIONS UNLESS
Statement was made freely & voluntarily

FREELY & VOLUNTARILY

WHAT DOES VOLUNTARY MEAN

VOLUNTARY – S v YOLELO
• S 219A merely codified common law w/r/t meaning of voluntariness of admission

Voluntarily Meaning - R v Barlin

• Formulated the common law test for voluntariness
• An informal admission is voluntarily made if it was not induced by a promise or threat from person in authority.

TEST VOLUNTARINESS

 To test whether an informal admission was made voluntarily?

YES
 Did threat or promise affect accused’s freedom of volition?
NO

14 | P a g e
COMMON LAW INTERPRETATION ON VOLUNTARINESS

 How does it affect the voluntariness

 Factor when the admission is received:

 Where admission is made under statutory obligation to speak

 Where accused is too drunk to know what he was saying
 Where accused is deceived by trick into making admission
 Where threat / promise is made by someone not “in authority”

WHAT DOES THE CONSTITUTION SAY?

Section 35(1)(c) -Pre trial Privilege Against Self-Incrimination:
 an arrested person shall have the right not to be compelled to make any confession or admission that could
be used as evidence against him or her.

 Interpretation & Implications:

• Section 35(1)(c) does not draw a distinction between admissions & confessions.
• Therefore, it treats both types of statements equally in terms of the privilege against self-incrimination.
• Section 35(1)(c) likely favours interpretation of involuntariness as equal to undue influence
• This means that if an admission or confession is obtained through any form of undue influence, it may be
deemed involuntary & therefore inadmissible
• Apart from S 35(1)(c), S 35(5) provides for the exclusion of evidence obtained in violation of the BoR
• This means that if admissions or confessions are obtained in a manner that infringes upon an accused
person's constitutional rights, such as the right to remain silent & the right to legal representation, they
may be excluded from the proceedings.

 S v Agnew
 The accused (A) was arrested at home in early hours of morning
 A made a telephone call to his attorney who told the arresting officer (AO) that he would meet AO & A at
police station
 The AO pressurised A into making incriminating statement before A was able to consult with his attorney
 Court held that the Statement was not made voluntarily, but a result of threatening behaviour of the AO
 The Statement should be excluded in terms of section 35(5) as it was obtained in violation of accused’s
constitutional right to remain silent and the right to legal representation
 This case illustrates the application of the Constitution in safeguarding an accused person's rights.

15 | P a g e
 THREAT OR PROMISE

THREAT
PROMISE

Words / conduct that suggests to accused Words / conduct that suggests to accused
some advantage if she should speak some disadvantage if she Does not speak

induce the accused to make a statement

 THE THREAT OR PROMISE MUST
effective on mind of accused at time statement is made

WHAT CONSTITUTES A THREAT OR PROMISE:

ADMISSION INDUCED BY VIOLENCE / THREAT OF VIOLENCE PROBABLY INVOLUNTARY

ADMISSION INDUCED BY PROMISE OF COMPASSIONATE TREATMENT Probably involuntary

Not necessarily involuntary

ADMISSION IS MADE DURING POLICE INTERROGATION
Only if induced by threat / promise
Depends on surrounding circumstances
INVITATION TO SPEAK In certain circumstances may carry
implication of threat / promise

PERSON IN AUTHORITY

BROAD
❖ Courts adapted a BROAD & NARROW APPROACH • Anyone regardless of whether holds official position or not
with measure of authority
• Father—son
❖ PERSON IN AUTHORITY • Employer — employee
 Defined as someone whom the prisoner • S v Robertson
believes can influence prosecution's course. NARROW
• Person the accused might reasonably suppose could
 Defined as someone the accused believes to influence course of prosecution
be capable of carrying out what she says • A police officer
• S v Peters

16 | P a g e
 PROCEDURAL MATTERS

BURDEN OF PROOF

❖ The state is responsible for proving beyond a reasonable doubt that the accused made an admission
voluntarily, aligning with the presumption of innocence.
❖ Section 219A(1) of the CPA introduces a reverse onus provision regarding the voluntariness of admissions
made to a magistrate and reduced to writing.
❖ A presumption of voluntariness for admissions made to a magistrate & reduced to writing
❖ S V ZUMA & UNCONSTITUTIONAL PRESUMPTION
 In S v Zuma, the CC declared a similar presumption related to confessions unconstitutional.
 CC struck down the equivalent presumption applying to confessions in terms of section 217(1)(b)(ii) of
CPA as it violated the presumption of innocence

TRIAL – WITHIN – A - TRIAL

 The admissibility of an admission is decided through a "trial within a trial

Both the prosecution and the defence present evidence regarding the circumstances
under which the admission was obtained.

The court then evaluates this evidence to make a determination about the
admissibility of the admission.

The content of the admission is not considered during this stage, the focus is solely on
its admissibility.

Until the court determines the admissibility of the admission, the content of the
statement itself remains irrelevant

The prosecution is not allowed to disclose the content of the admission to the court
during the trial-within-a-trial.

 EXCEPTIONS FOR FALSE CONTENTS ALLEGATIONS:

o An exception exists when the accused claims that the contents of the admission are false & were
influenced by police instructions.
o In such cases, the court can allow the statement to be presented for cross-examination purposes.

17 | P a g e
 2. CONFESSIONS

INTRODUCTION

 A CONFESSION IS AN EXTRA-CURIAL STATEMENT EITHER WRITTEN OR ORAL WHERE AN INDIVIDUAL ADMITS TO

ALL THE ELEMENTS OF A CRIME

Mens rea, involves acknowledging

intention to commit crime
Mens Rea Element

ACT ITSELF IS NOT SUFFICIENT

The concept of mens rea is a necessary element that FOR CRIMES THAT REQUIRE
refers to the mental state or must be proven MENS REA SUCH AS
intention of the accused separately Cannot admit MURDER SIMPLY
WHEN committing a crime. to intention (mens rea) ADMITTING TO THE ACT
simply by physical act of ITSELF IS NOT SUFFICIENT
pointing TO CONSTITUTE A
CONFESSION

MEANING OF A CONFESSION

 No statutory definition of confession

 At common law, courts have interpreted word “confession” as strictly as possible

R V BECKER MEANING OF A CONFESSION

 Confession = unequivocal acknowledgment of guilt to all the elements of the crime

 equivalent of plea of guilty in court
 Because of this, the accused's statements are carefully examined to determine whether there
is still room for lack of clarity.

❖ The case of S v Yende introduced the idea that the circumstances surrounding a statement can help determine if
it's a confession - only circumstances that clarify the true meaning of the words used are considered.

18 | P a g e
PRINCIPLES OF CONFESSIONS
IN CRIMINAL LAW EXPLANATION

The court examines the circumstances surrounding a statement to

CONSIDERATION OF determine if it qualifies as a confession.
CIRCUMSTANCES
It assesses whether the statement excludes any possible defence.

The court considers only those circumstances that assist in understanding

RELEVANCE OF the true meaning of the statement.
CIRCUMSTANCES
It does not consider facts unknown to the maker at the time.

Even simple words like "yes" can constitute a confession if they are in
response to a direct question implying guilt.
USE OF WORDS
Example: "Did you murder him?" - "Yes."

REQUIREMENTS FOR ADMISSIBILITY

 SECTION 217(1) of the CPA

FREELY & VOLUNTARILY
3 REQUIREMENTS FOR ADMISSIBILITY OF ALL CONFESSIONS. PERSON WITH SOUND & SOBER SENSES
WITHOUT BEING UNDULY INFLUENCED

FREELY & VOLUNTARILY

 COMMON LAW MEANING: statement must not be induced by promise or threat from person in authority

 The concept of undue influence IS BROAD & covers cases where external influences extinguish the accused's
freedom of will.

SOUND & SOBER SENSES

 The accused must understand what they are saying.

 Being angry, in pain, or excited does not necessarily mean the accused couldn't appreciate their statement.

19 | P a g e
WITHOUT UNDUE INFLUENCE

 Undue influence involves external factors that eliminate the accused's freedom of will.

 It doesn't have to come from a person in authority.

 Includes
VIOLENCE THREATS PROMISES DETENTION

And other practices that repudiate principles of criminal law.

TEST FOR UNDUE INFLUENCE

TEST FOR UNDUE INFLUENCE S V MPETHA

SUBJECTIVE QUESTION Did this accused exercise her will freely?

FACTUAL CAUSATION Would this accused have made confession if not for the undue influence?

ACTUAL EFFECT ON ACCUSED Counts, not calculated effect

Confession after lengthy interrogation or detention without trial is not

EXAMPLE
necessarily undue influence

Not whether the undue influence was calculated to force the accused to
FOCUS OF THE QUESTION
confess, but whether it actually caused the accused to confess

APPLICATION TO SPECIFIC Depending on the circumstances of the particular case

CASES

FAILURE TO AFFORD Failure to afford a young person assistance of parent or guardian before
ASSISTANCE taking confession could conceivably amount to undue influence (S v M)

Failure to advise the accused of the right to legal representation may amount
to undue influence when considered with all circumstances of the case; no
FAILURE TO ADVISE OF RIGHTS
general principle that failure to advise the accused of the right to legal
representation amounts to undue influence

20 | P a g e
 CONFESSIONS MADE TO PEACE OFFICERS

WHERE CONFESSION IS CONFESSION MUST BE IN PRESENCE OF A

S 217(1)

MADE TO PEACE OFFICER CONFIRMED / REDUCED IN MAGISTRATE / JUSTICE OF

WRITING PEACE

who is not a magistrate or a justice of the peace

 Provisions must be strictly complied with IF NOT  ENTIRE STATEMENT CONTAINING CONFESSION NOT ADMISSIBLE

 Onus on accused to prove that the person they confessed to is a peace officer.

 Confession must be directly addressed to the peace officer.

 NOT A CONFESSION IF Made merely in the officer's presence

The officer acts only as an interpreter

 WHO IS A PEACE OFFICER?

S 217 (1)

JUSTICE OF THE TRAFFIC

MAGISTRATE POLICE OFFICIAL METRO POLICE
PEACE OFFICERS

CORRECTIONAL
HEADMEN CHIEFS appointed by municipality
not a regional magistrate
OFFICIAL

21 | P a g e
 ROLE OF MAGISTRATE & JUSTICE OF THE PEACE:

 They ensure the confessor is

 Sound
 Sober
 Making the statement freely & voluntarily
 Without undue influence

 Magistrate/justice doesn't interrogate the person wishing to confess

Confession Before Not an

confirmed & magistrate/just Treated as new extension of
Reduced in ice of the confession. any previous
writing peace statements

CONFESSIONS MADE TO PEACE OFFICERS WHO ARE ALSO MAGISTRATES

OR JUSTICES OF THE PEACH

 Confessions to peace officers who are magistrates/justices  don't need to be reduced to writing

 Confessions to peace officers who are magistrates/justices are admissible if

(1) made freely

(2) voluntarily

(3) in sound & sober senses

(4) without undue influence

 S 217(1)(b)(ii) of the CPA

The magistrate or justice Confirms & records the The document itself provides a
confession presumption of voluntariness

22 | P a g e
 PROCEDURAL MATTERS

BURDEN OF PROOF

 After Zuma case clear that

FREELY & VOLUNTARILY

STATE WILL ALWAYS BEAR BURDEN OF PROVING CONFESSION WAS MADE: SOUND & SOBER SENSES
WITHOUT UNDUE INFLUENCE

TRIAL – WITHIN – A - TRIAL

➢ A "trial-within-a-trial" is used to determine the admissibility of a confession or admission made by an accused

person during a criminal trial.
➢ This procedure is used when the admissibility of a confession, is challenged by the accused
➢ When the state wishes to introduce a confession or admission made by the accused as evidence during the
main trial, the accused may object to its admissibility.
➢ Common objections include claims that the statement was made involuntarily, under undue influence, or in
violation of the accused's constitutional rights.

➢ WHY THIS PROCEDURE?

 Aims to insulate the inquiry into the statement's admissibility from the main trial
 Allows the accused to challenge evidence against them without violating right to remain silent
 Accused can dispute admissibility of statement without having to testify or incriminate themselves further.
 If accused disputes admissibility of confession the court must hold trial-within-a-trial = Court has no discretion

23 | P a g e
FAILURE TO COMPLY:
• Violates accused’s constitutional right to remain silent
• Constitutes material irregularity
• State & accused will lead evidence as to circumstances under which confession was made
• To avoid potential prejudice to accused - court will not consider content of confession
• Purpose of inquiry in not to establish guilt or innocence but admissibility of confession
• Accused may not be cross-examined on issue of guilt

GENERAL RULE  The accused may not be cross-examined on whether confession is true or not

Exceptions to the Rule - Cross-examination on truth of confession is allowed in 2 specific situations

(1) Accused Alleges the Confession Is False
(2) Accused Alleges Police Involvement

COURT'S DECISION I.T.O ADMISSIBILITY OF A CONFESSION DURING A TRIAL-WITHIN-A-TRIAL

 Admissibility Determination
• The court evaluates whether a confession should be admitted as evidence in the main trial.
• This assessment is based on the admissibility requirements specified in section 217(1)

 Confession Admitted If Requirements Met:

• If the court is satisfied that the confession meets the admissibility requirements outlined in section
217(1), it will admit the confession as evidence in the main trial.
• This means that the confession can be presented & considered by the court when determining the
accused's guilt or innocence.

 Interlocutory Decision:
• The court's decision to admit or exclude the confession is considered interlocutory
• Meaning it is not a final judgment on the accused's guilt or innocence.
• Instead, it is a preliminary decision related to the admissibility of evidence.
• During the course of the main trial, if new evidence or circumstances emerge that cast doubt on the
court's earlier ruling regarding the admissibility of the confession, the court has the authority to overrule
its previous decision.
• In such cases, the court can find the confession inadmissible, even if it had initially admitted it.

24 | P a g e
 No Provisional Admittance:
• The court cannot provisionally admit the confession with the expectation that evidence may emerge later
in the main trial to justify its admission.

 Separation of Admissibility and Guilt Issues:

• The key principle here is the separation of the issues of admissibility and guilt.
• In the main trial, the state is not allowed to lead evidence or arguments related to the accused's
testimony during the trial-within-a-trial.
• The presiding officer in the main trial CAN NOT consider the accused's evidence presented during the
trial-within-a-trial when determining the accused's guilt or innocence.

3. POINTING OUT

INTRODUCTION

POINTING OUT REFERS TO AN OVERT PHYSICAL ACT WHERE AN ACCUSED INDICATES THE PRESENCE OR
LOCATION OF SOMETHING TO AN INQUISITOR & IT IS CONSIDERED A FORM OF COMMUNICATION BY CONDUCT.

.
The physical action
It is an informal Pointing does not
of pointing is the
admission contain words
pointing out

words would either be an admission or confession

Example:
if accused points to stolen television with his index finger & says, ‘This is the television set I stole from the house,’
 The physical action of pointing is the pointing out.
 The oral statement that the accused made at the same time as the pointing out must be separately assessed
to determine whether it contains any informal admission or amounts to a confession.

25 | P a g e
 ADMIISSIBILITY

S V SHEEHAMA

 POINTING OUT = A COMMUNICATION BY CONDUCT

 A statement that the accused has knowledge of the relevant facts which prima facie operates to his
disadvantage & amounts to an extra curial admission  informal admission

S V SHEEHAMA - FACTS

 The accused was charged with murder & sabotage in connection with three bomb explosions in Walvis Bay.
 His conviction was based mainly on admissions & confessions made by him, and also on certain acts of
pointing out accompanied by explanatory confessions.
 The Appellate Division found that there was sufficient evidence that the accused had been mistreated by
defence force personnel during a period preceding the confessions.
 He was also threatened with death should he not co-operate, and was subjected to protracted interrogation.
 The court ruled that, provided it is relevant, a pointing out essentially amounts to an extra-judicial admission.
 Evidence concerning the pointing out may thus be admissible only if it complies with the requirements for an
admission, namely that it was freely and voluntarily made. If it is made under duress, the evidence
regarding the pointing out is inadmissible

S V JANUARY; PROKUREUR-GENERAAL, NATAL V KHUMALO

 POINTING OUT = EXTRA-CURIAL ADMISSION THROUGH CONDUCT

 Held that in terms of s 219A evidence of extra-curial admission ONLY ADMISSIBLE in evidence after State has
proven that it was made freely & voluntarily.

 INVOLUNTARY POINTINGS OUT = INADMISSIBLE

26 | P a g e
 S V JANUARY
 In the January decision the appellant stood trial with four co-accused on, among other murder.
 During the investigation of the crime, the appellant made a statement, and pointed out the location of the
deceased’s body to the investigating officers.
 During the trial, the appellant argued that the statement and the pointing out were made because he was
assaulted by the investigating officers.
 The question before the Appeal Court was whether proof of an involuntary pointing out by an accused is
admissible if, in consequence of the pointing out, a relevant fact is discovered.
 In S v January, it was decided that such evidence is not admissible

SECTION 218(2) OF CPA

 Section 218(2) of CPA  deals with the admissibility of evidence obtained through a process called "pointing
out" in a criminal case

 Pointing out refers to the act of an accused person providing information that leads to the discovery of certain
facts or objects relevant to the case.

 Evidence obtained through pointing out may be considered admissible if it's not otherwise inadmissible.

 This means that if the pointing out was done voluntarily, even if the initial admission or confession is
considered inadmissible, the evidence resulting from the pointing out could still be admitted.

 this provision allows for the introduction of evidence obtained from a pointing out action, even if the original
admission or confession leading to the pointing out might be deemed inadmissible.

27 | P a g e
 UNIT 4
U N C O N S T I T U T I O N A L LY O BTA I N E D E V I D E N C E I N C R I M I N A L T R I A L S

28 | P a g e
 THE PRINCIPLES

RELIABILITY PRINCIPLE DISCIPLINARY PRINCIPLE PROTECTIVE PRINCIPLE

THE RELIABILITY PRINCIPLE

❖ Improperly obtained evidence should be received IF SUCH EVIDENCE IS RELIABLE

❖ It’s not the function of the rules of evidence to punish impropriety on the part of law enforcement officers

• This means the rules of evidence are not designed to serve as a way of punishing misconduct by law enforcement officers
• The main purpose is to ensure integrity & fairness in the legal process by admitting evidence that is reliable & relevant to the case.

THE PROTECTIVE PRINCIPLE

• The principle focuses on importance of protecting the rights of individuals who are entitled to specific rights & protections.
• It specifically focuses on protecting these rights from being violated or abused by agents or officials of the government

Evidence has been BY IMPROPER /ABUSIVE ACTIONS

TAINTED EVIDENCE
COMPROMISED OR TAINTED taken by goverment officials

• The Protective Principle suggests that one effective way to prevent individuals from suffering prejudice or disadvantage
as a result of the abuse of their rights is to exclude any evidence that was obtained through such abuse.

29 | P a g e
 THE DISCIPLINARY PRINCIPLE

• The Disciplinary Principle acknowledges the role of deterrence & punishment as a function of the rules of evidence
 This means that the rules of evidence can serve as a means to discourage improper or unethical behaviour

• The Disciplinary Principle Accepts limitation of other civil measures to address impropriety
 This means that relying solely on other civil measures may not be sufficient to deter misconduct in the legal system

• The Disciplinary Principle Places certain responsibility on the court

INVOLVES ADRESSING THE IMPROPRIETY

RESPONSIBILITY OF THE COURT
INVOLVES HEARING THE MATTER & TAKING APPROPRIATE ACTION

• A fundamental goal of the Disciplinary Principle is to prevent individuals who engage in impropriety or misconduct from
benefiting from their actions - This includes preventing them from using improperly obtained evidence against accused.

30 | P a g e
 APPROACHES TO THE ADMISSIBILITY
THEOF IMPROPERLY OBTAINED EVIDENCE
APPROACHES

THE INCLUSIONARY APPROACH THE STRICT EXCLUSIONARY APPROACH THE INTERMEDIATE APPROACH

• This approach beliefs that all relevant evidence should • The strict exclusionary approach, beliefs in the • The intermediate approach is positioned between the

be admissible regardless of how it was obtained. inadmissibility of all evidence that has been improperly inclusionary & strict exclusionary approaches
or illegally obtained.
• The fact that evidence was improperly obtained should • This approach recognises the need for a compromise

not automatically lead to its exclusion • In other words, all evidence improperly obtained is in handling improperly obtained evidence
PROHIBITED
• In more modern approach, it may allow for the exclusion • Under this approach, evidence may be excluded if its

of evidence in certain circumstances or through the • The United States, have made exceptions to this strict admission would bring the justice system into
exercise of judicial discretion. exclusionary rule by considering "good faith" or disrepute or if allowing it would severely undermine
"reasonable mistakes" when determining whether the integrity of the legal process.
• In other words, while the default stance is that all
evidence should be excluded.
evidence is admissible, exceptions can be made in
specific situations where fairness & justice require it.

31 | P a g e
 THE POSITION REGARDING IMPROPERLY OBTAINED
EVIDENCE IN SOUTH AFRICA

Position before the Interim Constitution Act 200/1993

 Historical Development in South Africa Position under the Interim Constitution 1994–1996
Position under the Constitution 1996

Focus on relevance of evidence

Position before the Interim
Judicial discretion for fairness
Constitution Act 200/1993
Right against self-incrimination

Position under the Interim Introduction of "appropriate relief" for rights violations
Constitution 1994–1996 Variations in approaches by different courts

Section 35(5) and its significance

Position under the Constitution
Emphasis on fairness and rights protection
1996
Criteria for excluding unconstitutionally obtained evidence

THE POSITION IN RSA BEFORE THE INTERIM CONSTITUTION ACT 200/1993

• Prior to the Interim Constitution Act of 1993, SA courts mainly concerned with the relevance of evidence, & NOT how
it was obtained.
• Evidence was considered admissible if it was relevant to the case
• This principle was also recognized in SA.
• Evidence might be allowed if its probative value outweighed its prejudicial effect.
• The accused had the right not to be compelled to give evidence against themselves
• Evidence obtained from an accused under duress could not be used against them.

R v Kuruma Son of Kaniu

• It was established that courts had the judicial discretion to disallow evidence if strict rules of admissibility would operate
unfairly against the accused.
32 | P a g e
 THE POSITION IN RSA UNDER THE INTERIM CONSTITUTION 1994 – 1996
• The exclusion of improperly obtained evidence could be considered appropriate relief for the violation of certain
fundamental rights.
• Different courts adopted varying approaches during this time, leading to some uncertainty regarding the admissibility
of such evidence.

THE POSITION IN RSA UNDER THE CONSTITUTION 1996

• Section 35(5) of the Constitution stipulates that evidence obtained in a manner that violates any right in the BoR must
be excluded if admitting that evidence would render the trial unfair or be otherwise detrimental to the administration
of justice.
• It allows for the exclusion of improperly obtained evidence when its admission would compromise the fairness of the
trial or undermine the proper administration of justice.

THE THRESHOLD TEST

➢ The Threshold Test is a legal concept used to determine the admissibility of evidence obtained in breach of fundamental
rights listed in the BoR

When fundamental rights

Threshold Test ONLY APPLIES
have been violated

➢ If the breach pertains to a rule or right other than a fundamental or constitutional right
 The admissibility of the evidence will be determined based on the common law discretion of the court.
 Common law discretion  judicial discretion

33 | P a g e
 SECTION 35(5) OF THE CONSTITUTION

Qualified Exclusionary Scope of Exclusion Criteria for Exclusion Duty & Discretion Value Judgment
Rule

S 35(5) is a qualified S 35(5) imposes a duty on Determining whether the

Apply only to unconstitutionally
exclusionary rule
obtained evidence.
Meaning evidence obtained
Does not relate to evidence
unconstitutionally must be
obtained through lawful
excluded
means.
2 conditions must be met
for the admission of
unconstitutionally obtained
evidence directive to
become active
1. Admission would render
the trial unfair.
2. Must be determined that
admitting evidence would
be detrimental to the
administration of justice.
courts to exclude
unconstitutionally obtained
evidence.
It is NB to note that the
term duty implies that this is
not a discretion it's a rule
admission of unconstitutionally
obtained evidence would result
in unfairness or be detrimental
to the administration of justice,
the court is required to make a
value judgment.
This entails carefully considering
• the facts of each case
• the principles of a fair trial
• public policy considerations.

34 | P a g e
 THE NEXUS BETWEEN A VIOLATION OF THE RIGHT & PROCUREMENT

NEXUS BREAK IN THE NEXUS

CHAIN OF EVENTS If there is a break in the nexus
between the violation of a
constitutional right and the
When evaluating whether unconstitutionally A break in the nexus essentially means that the violation of the procurement of evidence, the
right did not directly influence the procurement of evidence. unconstitutionally obtained
obtained evidence should be admitted in court,
evidence may become admissible.
the entire sequence of events leading to the
2 cases illustrate the concept of
procurement of that evidence is taken into a break in the nexus
account.
S v Soci
S v Mark
This includes considering how a constitutional right In the Soci case, the police failed to
was violated & whether this violation had a direct Witnesses were assaulted by prison wardens to disclose inform the accused of their right to
info about a murder. However, the court held that there consult with a legal practitioner before
connection to the way the evidence was obtained.
was a sufficient break in the chain of events because the a confession was made. However, the
witnesses insisted on giving voluntary testimony in court, court found that the evidence obtained
and their later testimony was not influenced by the earlier through the pointing out procedure
CASE LAW infringement of their constitutional rights. should be excluded because it was
S v Mthembu obtained in violation of the accused's
rights. Nevertheless, the subsequent
Case dealt with evidence obtained through the use of torture.
confession made before a magistrate,
A witness in criminal matter was tortured, & statement made by witness led to the discovery of incriminating where the accused waived their right to
evidence. consult with a legal practitioner, was
The court held that, even though the evidence was obtained in violation of the witness's constitutional right, the considered voluntary and constituted a
application of Section 35(5) (which governs the admissibility of unconstitutionally obtained evidence) was not break in the chain of events.
barred because there was an inextricable link between the torture and the nature of the evidence obtained
35 | P a g e
 5 CLASSES OF CASES

• The 5 classes of cases considered refer to specific situations where evidence may have been obtained
improperly or in violation of constitutional rights.

• These classes help in understanding the principles & major factors involved in the application of Section
35(5) & whether the evidence should be admitted or excluded in legal proceedings.

(a) CASES WHERE THE ACCUSED WAS NOT PROPERLY INFORMED OF HIS RIGHTS PRIOR TO MAKING A STATEMENT
OR POINTING OUT

• Such cases involve situations where the accused may have provided testimonial evidence that comes from
themselves & relies on their cooperation for its existence.
• To protect accused individuals against improper self-incrimination, there are specific constitutional & statutory
provisions in SA that safeguard their rights.
• Some of these provisions include:

SECTION RIGHT DESCRIPTION

Accused individuals have the right to remain
S 35(1)(a) Right to Remain Silent silent & avoid self-incrimination during
criminal proceedings
The court is prohibited from drawing adverse
S 35(1)(b) Consequences of Remaining Silent inferences from the accused's decision to
exercise the right to remain silent.
Accused individuals cannot be compelled or
Right to Not Be Compelled to Make Any
S 35(1)(c) forced to make admissions or confessions
Admission or Confession
against their will
Accused individuals have the right to consult
Right to Consult with Legal Practitioner &
S 35(2)(b) & (4) with a legal practitioner of their choice, and
Be Informed of This Right
they must be informed of this right.
This section encompasses various elements
of a fair trial, including the presumption of
S 35(3) Right to a Fair Trial
innocence and the right not to be compelled
to provide self-incriminating evidence.

36 | P a g e
➢ In cases involving improper obtaining of testimonial evidence, courts consider various factors to
determine whether the accused's rights were violated & whether the evidence should be admitted.

➢ Some of the factors considered include:

the factors considered

Accused's Education
Legal Representation Awareness of Rights Prejudice
and Experience

Whether any prejudice

Whether the accused would be caused to the
if the accused was aware The level of education &
was legally represented accused if the evidence
of rights & understood experience of accused in
at the time of making were received. Prejudice
the consequences of exercising legal options,
the statement or is a key factor in
making a statement such as remaining silent
pointing out. assessing the fairness of
the trial

One case that falls into this category is S v Soci

Case related to the proper informing of rights & the potential violation of the accused's rights in obtaining testimonial evidence.

The court's decision in this case would have considered these factors to determine admissibility of evidence & fairness of the trial

37 | P a g e
 EVIDENCE OBTAINED AS A RESULT OF ILLEGAL SEARCHES
• Such evidence is not automatically deemed inadmissible in a court of law.
• Several factors are considered when determining the admissibility of such evidence

the admission of evidence

obtained through an
EVIDENCE OBTAINED THROUGH ILLEGAL SEARCHES illegal search is not
automatic and should be
approached with caution

FACTORS DETERMINING ADMISSIBILITY EVIDENCE EXCLUDED IF

Good Faith of Law Inevitability Emergency Serious Privacy Harm to the

Enforcement Doctrine Circumstances Infringement Administration of Justice

The fact that a police
officer acted in good faith
during the search may be
taken into account.
If the evidence would have
been discovered legally
anyway, its admission may
be considered.
Where there was a
legitimate & immediate
need for law enforcement
action, may be admitted.
If the reception of the evidence
The infringement of the would harm the administration of
accused's right to privacy justice more than it would
was serious & not merely a enhance it, it may be excluded.
technical violation. For example, if there was a fatally
defective search warrant or if the
admission of the evidence would
undermine the fundamental
values of the Constitution, it may
be considered inadmissible.

38 | P a g e
EVIDENCE OBTAINED AS A RESULT OF ILLEGAL MONITORING / INTERCEPTION OF COMMUNICATIONS

 When it comes to evidence obtained as a result of the illegal monitoring or interception of communications,
courts may adopt different approaches in determining its admissibility.
 A key case illustrating these considerations is S v Pillay and others

 S v Pillay and others

• The accused Pillay, was charged with involvement in a robbery.

• The police had conducted an illegal telephone tap & subsequently raided her house, where they
discovered stolen money hidden in the ceiling.
• The discovery of the money was made possible through the telephone tapping.
• When the police entered Pillay's premises, they informed her that they intended to use her & her family as
witnesses for the state, which influenced her to make a statement.
• This statement ultimately led to the discovery of the money.
• Later, representatives of the state agreed that Pillay & her family would not be prosecuted if they testified
against the robbery perpetrators.
• However, the case against the perpetrators ultimately fell apart, leading to the prosecution of Pillay & her
family members.
• Pillay was convicted as an accessory after the fact to the robbery.
• On appeal, the court held several important points:

1. The violation of Pillay's rights did not render the trial unfair. However, the statement made by her was
deemed inadmissible.
2. The court considered whether the money would likely have been found by the police even if the
statement had not been made. It concluded that it probably would have been discovered during a search.

• The court determined that admitting the evidence would be detrimental to the administration of justice.
• Therefore, it was better to exclude the evidence than to receive it.

THE ADMISSIBILITY OF EVIDENCE OBTAINED AS A RESULT OF THE IMPROPER TREATMENT OF WITNESSES OTHER
THAN THE ACCUSED

This is an important aspect of criminal trials.

Two cases, S v Mthembu & S v Mark, shed light on this issue:

39 | P a g e
 EXCLUSIONARY RULE – S 35(5)

FIRST PILLAR: TRIAL FAIRNESS INQUIRY

• Right to a fair trial is a comprehensive & integrated right

• Content of right will be established on a case-by-case
The nature of the right to S v Dzukuda basis
trial fairness S v Tshilo
• NO exhaustive list of factors court should take into
account
• Severity of rights violations is NB in assessing trial
fairness.
FIRST PILLAR: TRIAL FAIRNESS INQUIRY

• Rights violations are severe if police conduct was

deliberate
• Rights violations are NOT severe if police conduct was
factors determining trial
S v Tandwa
fairness objectively reasonable & neither deliberate
• The degree of prejudice is weighed against the public
policy interest in bringing criminals to justice.
• A high degree of prejudice exists when there is a close
causal connection between the rights violation &
subsequent self-incriminating acts of the accused
• Right to be presumed innocent
Section 35(3)(h) • Right to remain silent
• Right not to testify during proceeding
privilege against • Right to not be compelled to give self-incriminating
compelled self- evidence
incrimination
Section 35(3)(j) • All inextricably linked to right to fair trial
• Certain fundamental rights protected at the pre-trial
stage

S v Lottering Court exercises discretion & considers competing interests.

Application of S 35(5) Exclusion of evidence based on how a suspect would have

S v Soci
acted with proper warnings.

40 | P a g e
  S v Tandwa - The relevant factors for determining trial fairness

• The severity of rights violations is a key factor in assessing trial fairness.

• Rights violations are considered severe if police conduct was deliberate in nature
• Rights violations are NOT severe if police conduct was objectively reasonable & neither deliberate
• The degree of prejudice faced by the accused is weighed against the public policy interest in bringing criminals to justice.
• A high degree of prejudice exists when there is a close causal connection between the rights violation & subsequent
self-incriminating acts of the accused

 S v Lottering [1999 N]
FACTS:

• Accused (A) stabbed the deceased in the back and runs into a night club
• Witness (D) informs the police officer (M) that the accused was in the night club
• D goes into the nightclub with M and points out A to M
• M informs A of the allegations against him, M arrests A; and demands to know where the weapon is
• A point out L who hands the knife to M
• A objects to the evidence in reliance on sec 35(5)
• His basis for the objection was: After A’s arrest, but before A pointed out L, M did not warn A of his
constitutional rights to silence and legal representation

Court held:

• Regarding the application of sec 35(5) generally:

• This section does not require exclusion of all evidence obtained in violation of a constitutional right
• The court must make a value judgment
• Court exercises its discretion by weighing up competing interests

Regarding fair trial issue specifically:

• Court is entitled to consider M acted expeditiously to recover the knife – he did what any reasonable police
officer would do
• He did not obtain evidence after a lengthily interrogation during which he deliberately did not inform A of his
constitutional rights
• M’s violations of A’s constitutional rights were not flagrant, also a not deliberate strategy to trap A
• M did not engage in threats/intimidation/force
• Thus, the accused acted voluntarily

41 | P a g e
  S v Soci [1998 E]
• Accused makes pointing out without having been informed of his right to legal representation
• Court held:
 Must be accepted that the accused had been properly informed
 He would have secured the services of an attorney
 The attorney would have advised him not to make the pointing out
 The accused would have followed the attorney’s advice

• Thus, the court excluded the evidence of pointing out

SECOND PILLAR: INTEREST OF JUSTICE

➢ The fundamental question of this leg of the test is = whether admission would otherwise be
detrimental to the administration of justice?

➢ If admission of unconstitutionally obtained evidence would NOT render the trial unfair then the
evidence must nevertheless be excluded if the court is satisfied that admission would be detrimental
to administration of justice

➢ The second leg of test is final filter in determining admissibility of unconstitutionally obtained evidence

42 | P a g e
 SECOND PILLAR

INTEREST OF JUSTICE THE FACTORS

The
presence/absence
Urgency and public Deterrence or
2 STEPS The balancing test of good faith &
safety disciplinary factors
reasonable police
conduct

S V PILLAY & S V
STEP 2- to determine S v Mphala S V MADIBA S V SOCI
NAIDOO
STEP 1 - to determine whether it shall be in
fairness of the inquiry the interest of justice
for the admission of to admit such
unconstitutionally evidence in the light
obtained evidence of the public opinion
and interest

43 | P a g e
 THE BALANCE

S V MPHALA

• With regards to the administration of justice – there must be a balance between

(1) Respect for the bill of rights

• Particularly by law enforcement agencies
• Overemphasis would lead to acquittals on what the public perceives as ‘technicalities’

(2) Respect for the judicial process

• Particularly by the man in the street
• Overemphasis would lead to dilution/negation of the bill of rights

THE FACTORS

➢ In the second leg – public opinion is an important factor to take into account
➢ Thus, high crime rates are currently prevalent in SA – which is directly relevant when the court is required to
respond to the second leg in sec 35(5)
➢ Although it is important to take into account the views of the community
➢ Our courts should also recognise that public opinion is subject to the “shifting winds of passion” dissenting
judgment in S v Pillay 2004
➢ In resolving the balance required of the 2ND leg in S 35(5) courts have considered a number of factors, including:

(1) The presence/absence of good faith and reasonable police conduct

(2) Urgency and public safety

(3) Deterrence/disciplinary factors

(1) THE PRESENCE/ABSENCE OF GOOD FAITH AND REASONABLE POLICE CONDUCT

• One of the purposes of exclusion is to discourage unconstitutional police conduct

• Good/bad faith in the conduct of the police will have a large impact on the weight given to the inclusion/exclusion
of evidence that was obtained in an unconstitutional manner
• Not in interests of justice to allow police to deliberately flout those rules that govern their investigative powers and
that seek to protect constitutional rights
• This was not case where police made reasonable mistake or inadvertently failed to comply with technical statutory
provision - Had there been reasonable mistake or inadvertent technical error — results may have been different

S v Naidoo [1998 N]

Deals with a robbery

During robbery, one used a cellphone
FACTS State wanted to rely on evidence of intercepted telephone conversations
Court was satisfied that police had given false or misleading information to a judge to get
permission to intercept accused’s telephone conversations

This conduct was an infringement of the accused’s right to privacy

Admission of the intercepted conversations would render the trial unfair
COURT
Although not strictly necessary to decide on the issue of “interests of justice” – the court
did so anyway

S v Mphala [1998 W]

police officer took the accused’s confession

at the time the PO knew that A’s attorney did not want A to make any statement
before consulting with the attorney
FACTS
Without informing A of that fact and the fact that A’s attorney was on his way
after the PO had misled the attorney as to the time the statement would be taken

cannot accept that the PO’s conduct was anything but intentional o presence of
bad faith left the court with no option but to conclude that the admission of the
COURT evidence would be detrimental to the administration of justice (quite apart from
rendering the trial unfair)

45 | P a g e
(2) URGENCY AND PUBLIC SAFETY

 S v Madiba [1998 D]

 This was not the case where a police officer made a reasonable mistake or inadvertently failed to comply
with technical statutory provisions
 Had there been a reasonable mistake/inadvertent technical error – results may have been different
 two police officers made an “aggressive entry”
 kicked in the door and entered the room unannounced and with firearms drawn
 they obtained two firearms in the course of searching the premises
 the court was satisfied that the police officers violated the accused’s right to privacy
 the court exercised discretion in favor of admitting the evidence
 the court carefully weighed the breach of the constitutional right against the circumstances of the case

 Court paid must attention to the police officers’ explanation for their decision to make an ‘aggressive entry’
o A suspected of very serious crimes – using firearms to kill another person
o Information that the police had was that A was in possession of a firearm and was likely to resist arrest
o They anticipated that a shoot-out might occur

 In reality of a criminal investigation that Pos will sometimes – under pressing circumstances and through no
fault of their own – have to make snap decisions on constitutional issues
 In this case, the Pos overstepped the constitutional line only insofar necessary to eliminate the serious
personal and public safety risks that they encountered
 This was a clear indication of good faith and reasonable police conduct

(3) DETERRENCE/DISCIPLINARY FACTOR

 A court may exclude evidence even though an individual PO acted bona fide

 S v Soci
o The court excluded the pointing out that A made without having received constitutional warnings as it
violated a fundamental right to A
o But failure of PO to inform A properly of the right to legal representation was NOT mala fide
o The PO complied conscientiously with SAPS prescriptions
o Fault lied with the prescription drafted by the SAPS legal advisors

46 | P a g e
 PROCEDURAL MATTERS

TRIAL – WITHIN – A - TRIAL

 A court must hold a trial-within-a-trial if there is a challenge to the admissibility of unconstitutionally obtained
evidence and not merely to the weight of such evidence
 It is necessary to ensure that the accused can testify as to the admissibility of the impugned evidence without
exposing herself to cross-examination on the issue of guilt
 Also for the accused to exercise her right to either testify or not at the end of the state’s case in the main trial
 Entitled to know what evidence has been admitted against her as part of the state’s case

BURDEN OF PROOF

STEP 1 - ACCUSED ALLEGES VIOLATION:

• In the first step, it is the accused's responsibility to allege, but not necessarily prove, that a violation of a
fundamental right has occurred, which is subject to exclusion under Section 35(5) of the Constitution.
• This step establishes the initial claim of the accused that the evidence in question was obtained
unconstitutionally.

STEP 2 - TRIAL-WITHIN-A-TRIAL:

• The second step involves conducting a trial-within-a-trial.

• The primary purpose of this trial is to determine the admissibility of the evidence obtained unconstitutionally,
not to assess the weight or credibility of the evidence itself.
• During this phase, the State has the burden to prove certain factual matters beyond a reasonable doubt.
• If State fails to meet burden, accused will receive benefit of the doubt, meaning the evidence may be excluded
from the trial.

47 | P a g e
STEP 3 - COURT'S DISCRETION:

• In the final step, the court exercises its discretion to make a determination based on the information
presented during the trial-within-a-trial.
• The court considers various factors, including the severity of the rights violation, the presence or absence of
good faith on the part of law enforcement, the level of prejudice faced by the accused, and the public policy
interest in administering justice.
• Based on these considerations, the court decides whether to admit or exclude the unconstitutionally obtained
evidence

48 | P a g e
Jacobs v Henning Defendant's silence when accused of seduction did not constitute a confession.

R v Barlin Formulated the common law test for voluntariness regarding informal admissions.

R v Khumalu Claim of ownership coupled with an admission that lacked details didn't amount to a confession.

R v Kuruma Judicial discretion to disallow evidence if strict rules of admissibility would operate unfairly against the accused.

R v Xulu Admitting to possessing an illegal substance didn't constitute a confession.

Rex v Bekker Defines a confession as an unequivocal acknowledgment of guilt.

S v Agnew Pressure by arresting officer led to an involuntary statement; it should be excluded.

S v Dzukuda and S Consideration of factors for determining trial fairness and severity of rights violations
v Tshilo

S v Grove-Mitchell A statement doesn't amount to a confession unless it excludes the possibility of a valid defense.

S v January Excludes evidence of involuntary confession and admissions based on policy.

S v Lottering Exclusion of evidence obtained after accused not properly informed of rights.

S v Madiba Entry into premises infringing the right to privacy and weighing breach against urgency and public safety.

49 | P a g e
 Must be “sufficient link” between oral testimony in court and earlier infringement of their constitutional rights to
dignity and bodily integrity
S v Mark All witnesses insisted that they gave their oral testimony voluntarily Statements that witnesses gave prison warders
shortly after assault was “unquestionably tainted”
But their oral testimony in court was not Fact that they testified voluntarily caused break in chain of events.

S v Mpetha Test for undue influence in confessions, focusing on the accused's will and actual effect.

Balancing respect for the Bill of Rights and judicial choices.

S v Mphala and Administration of justice: balance between Respect for the bill of rights and respect for judicial process.
Another Presence of bad faith left the court with no option but to conclude that the inclusion of the evidence would be
detrimental to the administration of justice.

Admissibility of evidence obtained through torture.

Evidence in breach of a constitutional right of a witness not accused.
S v Mthembu Fact that evidence obtained in breach of constitutional right of witness and not A no bar to application of s 35(5)
Apparent from R’s testimony that even four years after torture, R still subject to fearsome and traumatic effects of
torture

S v Pillay & others Evidence obtained through illegal telephone tapping and its impact on the administration of justice.

50 | P a g e
S v Sekele & S v
Seesetse Accused could retract a formal admission by presenting contradictory evidence.

S v Soci Failure to inform the accused of the right to consult a legal practitioner before a pointing out.

S v Yende Created a strict definition for what constitutes a confession based on the circumstances surrounding it.

S v Zuma Struck down a presumption in the CPA as it violated the presumption of innocence.

Zeffertt, Paizes &

Skeen In crimes requiring mens rea, an account of actions rarely amounts to a confession.

51 | P a g e
 PAST QUESTIONS

1. Mention the requirement(s) for the admissibility of informal admissions in civil cases.

2. Explain the present South African legal position regarding the nature as well as the admissibility of a pointing
out. (5)

3. Comprehensively discuss the admissibility of confessions (you should not only mention the admissibility
requirements, but also extensively discuss these). (10)

4. Vusi and Paul are arrested at their commune by Constable Dhlamini, for the murder of their roommate.
Constable Dhlamini separates Vusi and Paul. Constable Dhlamini goes to Vusi first and explains to Vusi his rights.
After Vusi’s rights were explained to him, Vusi says to Constable Dhlamini, “It was Paul who stabbed her with
the knife. I just held her down.” What is the nature of the statement that Vusi made to Constable Dhlamini?

5. With regard to the application of section 35(5) of the Constitution:

6. What are the so-called “legs” of which the provision in section 35(5) of the South African Constitution is made
up? (2)

7. Distinguish between the duty and the discretion which this provision places on the court.

8. A writes a letter containing a confession that he killed his girlfriend, S, by putting rat poison in her food. He is
charged with murder and pleads not guilty.

a. May A be convicted solely on the ground of his confession in the letter? Motivate your answer by
referring to legislation and case law. (3)

b. With reference to the facts of R v Blom (1939) AD 188, mention four (4) “pieces” of circumstantial
evidence upon which the court relied to find the accused guilty. (2)

52 | P a g e
 c. Briefly explain the position with regards to the evaluation of the identification evidence of a single
witness. Refer in your answer to the facts and outcome in the Mavangwana case. (3)

d. A is charged with assault to do grievous bodily harm. He tells his attorney that he acted in self-defence.
Briefly explain what it means that an accused has a procedural duty to introduce a defence. (2)

e. A is charged with theft. After the state closes its case, the accused’s attorney brings an application for
discharge.

TEST YOUR KNOWLEDGE

Section A: True or False

1. A confession is equivalent to an informal admission.

2. A formal admission can be retracted once it is made.

3. Admissions, both formal and informal, are automatically admissible as evidence in court.

4. Informal admissions can include both incriminating and exculpatory statements.

5. Excluding involuntary admissions and confessions aligns with the protection of human dignity and
constitutional rights.

6. Admission by Silence involves interpreting an individual's silence in response to an accusation as an admission

of guilt or wrongdoing.

7. Inferences from silence can be drawn solely based on the accused's failure to respond to an accusation
without considering the surrounding circumstances.

8. When an accused chooses to remain silent, it is always indicative of a consciousness of guilt.

9. In criminal matters, admissions made by the accused are automatically admissible as evidence without further
scrutiny.

10. Section 35(1)(c) of the Constitution treats admissions and confessions equally regarding the privilege against
self-incrimination.

11. A confession is an extra-curial statement, either written or oral, where an individual admits to all the elements
of a crime.

53 | P a g e
12. According to common law, the term "confession" has been broadly interpreted to include any statement that
clarifies the true meaning of the words used.

13. The circumstances surrounding a statement are not considered when determining if it qualifies as a
confession.

14. Even simple words like "yes" can constitute a confession if they are in response to a direct question implying
guilt.

15. Section 217(1) of the CPA provides a strict statutory definition of a confession

16. Pointing out refers to an overt physical act where an accused indicates the presence or location of something
to an inquisitor and is considered a form of communication by conduct.

17. In the case of S v Sheehama, pointing out is defined as a communication by conduct and is considered an
informal admission.

18. According to S v January and Prokureur-Generaal, Natal v Khumalo, evidence of extra-curial admission through
pointing out is admissible only after the state has proven that it was made freely and voluntarily.

19. Section 218(2) of the CPA deals with the admissibility of evidence obtained through pointing out in a criminal
case.

20. Evidence obtained through pointing out may be considered admissible even if the initial admission or
confession is considered inadmissible.

21. A confession and an admission are the same concepts in criminal proceedings.

22. A formal admission can be withdrawn or contradicted without specific legal requirements.

23. Admissions made to peace officers who are also magistrates or justices of the peace must be reduced to
writing or confirmed.

24. The burden of proof is on the accused to show that the person to whom they made a confession is a peace
officer.

25. A confession can only be made in writing, not orally.

26. Pointing out is an oral statement made by the accused.

27. Informal admissions are generally more reliable than formal admissions.

28. The probative value of an admission made in sound and sober senses is generally low.

29. Admissions by silence are always considered as admissions of guilt.

54 | P a g e
30. The Constitution of South Africa, Section 35(1)(c), may impact the common law interpretation of
"voluntariness" regarding admissions and confessions.

Section B: Short Questions

1. Explain the difference between a formal admission and an informal admission.

2. What is the significance of an admission by silence in legal proceedings?

3. How can an accused retract a formal admission, and under what circumstances?

4. Define "pointing out" as it relates to admissions.

5. Why is it important to distinguish between admissions and confessions in legal matters?

6. Explain the concept of "Admission by Silence" and when it can be inferred.

7. What are some reasons unrelated to guilt that might explain an accused person's decision to remain silent in
response to an accusation?

8. What is the general requirement for the admissibility of admissions in civil matters, and under what
circumstances can they be excluded?

9. Define "voluntariness" in the context of admissions, and what factors can affect the voluntariness of an
admission according to common law?

10. What does Section 219A(1) of the CPA introduce regarding the burden of proof in relation to admissions made
to a magistrate and reduced to writing?

11. Explain the concept of "freely and voluntarily" in the context of confessions in criminal law.

12. What is the role of a magistrate or justice of the peace in ensuring the validity of a confession?

13. Under what circumstances are confessions made to peace officers who are also magistrates or justices of the
peace admissible?

14. After the Zuma case, what is the burden of proof regarding the voluntariness of confessions made to a
magistrate and reduced to writing?

15. What is the purpose of a "trial within a trial" in the context of determining the admissibility of a confession?

16. What is the definition of "pointing out" as described in the provided notes?

17. What does S v Sheehama establish regarding pointing out?

18. What condition must be met for evidence of extra-curial admission through pointing out to be admissible
according to S v January and Prokureur-Generaal, Natal v Khumalo?

55 | P a g e
19. What does Section 218(2) of the CPA deal with?

20. Under what circumstances can evidence obtained through pointing out be considered admissible?

21. Explain the purpose of the Reliability Principle in the context of evidence admissibility.

22. What does the Protective Principle focus on, and how does it suggest protecting individuals' rights?

23. How does the Disciplinary Principle deter improper or unethical behavior within the legal system?

24. How did the position regarding evidence admissibility differ in South Africa before and after the Interim
Constitution Act of 1993?

25. What is the Threshold Test, and how is it used to determine the admissibility of evidence in breach of
fundamental rights?

Section C: Scenario-Based Long Question

Question 1

John is arrested by the police on suspicion of theft. During interrogation, he admits to being at the scene of the
crime but denies stealing anything. He later retracts this admission, claiming that the police pressured him into
making the statement. John's lawyer argues that his admission was not made freely and voluntarily.

1.1. Analyze whether John's initial admission qualifies as a confession or an informal admission, and explain your
reasoning.

1.2. Discuss the circumstances under which an admission can be considered as having been made freely and
voluntarily.

1.3. Evaluate the argument made by John's lawyer regarding the pressure applied by the police, and its potential
impact on the admissibility of John's admission.

1.4. Explain the potential consequences of admitting to being at the scene of the crime while denying the theft
itself, in the context of a criminal trial.

1.5. How might John's retraction of his initial admission affect the court's decision on its admissibility?

2. John has been accused of theft from his workplace. During a meeting with his supervisor, John remained silent
when asked about the missing items from the office. Later, John's silence in response to the accusation was
interpreted as an admission of guilt.

2.1. Analyze whether John's silence can be considered an admission by silence based on the provided
information.

56 | P a g e
 2.2. Explain what it means for an admission to be "freely and voluntarily" made in a legal context.

2.3. If John claims that he remained silent due to feeling shocked and overwhelmed by the accusation, how
might this affect the voluntariness of his admission by silence?

2.4. Discuss the potential consequences of using John's admission by silence as evidence in a criminal trial,
considering his explanation for remaining silent.

2.5. In a "trial within a trial" to determine the admissibility of John's admission by silence, what factors would
the court likely consider, and how might the burden of proof come into play?

3. John, a suspect in a criminal investigation, was brought in for questioning by Detective Smith. During the
interrogation, Detective Smith accused John of committing a serious crime and asked, "Did you commit the
crime?" John remained silent and did not provide a response. Detective Smith recorded this interaction and
intends to use John's silence as evidence of guilt during the trial.

3.1. In this scenario, does John's silence qualify as a confession, and why or why not? Consider the principles of
confessions in criminal law.

3.2. Define what "freely and voluntarily" means in the context of confessions and explain how it applies to
John's situation.

3.3. If John claims that he remained silent due to feeling shocked and overwhelmed by the accusation, how
might this impact the assessment of whether his silence was voluntary?

3.4. What are the potential consequences of using John's admission by silence as evidence in a criminal trial,
considering the principles discussed in the notes?

3.5. If John challenges the admissibility of his silence as evidence, how would the court proceed, and what
factors would be considered in the "trial within a trial"?

4. Sarah, the accused, is arrested for a theft case. During the police interrogation, she voluntarily points out the
location where she had hidden the stolen items. However, she later claims that her pointing out was made
under duress and not voluntarily. The prosecution intends to use the evidence obtained through pointing out in
the trial.

Based on the provided information and the principles discussed in the notes, discuss whether the evidence
obtained through Sarah's pointing out should be considered admissible in the trial. Consider factors such as the
definition of pointing out, voluntariness, and the relevant legal provisions.

57 | P a g e
5. Imagine a scenario where evidence was obtained through an illegal search, and the accused claims that their
rights were violated during the process. Discuss the factors that a court might consider when determining the
admissibility of such evidence. Include references to relevant constitutional and statutory provisions.

6. Imagine a scenario where evidence was obtained by police officers who made an aggressive entry into a
suspect's residence without proper authorization. The suspect claims that this entry violated their right to
privacy and that the evidence obtained should be excluded. Apply the steps of the exclusionary rule, including
the trial-within-a-trial process and the court's discretion, to determine whether the evidence should be
admitted or excluded in this case. Consider factors such as good faith, urgency, public safety, and the
disciplinary aspect.

Remember to provide a comprehensive analysis based on the provided notes and principles of the exclusionary
rule.

7. John, the accused, was arrested for theft. During questioning by the police, he pointed to a location where the
stolen items were hidden.

7.1. Is John's pointing out considered a confession?

7.2. Explain the admissibility of John's pointing out based on the common law and Section 219A of the CPA.

8. In a criminal case, the accused made a formal admission through his legal representative in court. However, the
accused later wanted to retract this formal admission.

8.1. Can the accused retract a formal admission, & what legal requirements must be satisfied for it to be
withdrawn?

8.2. How does a formal admission differ from an informal admission in terms of admissibility and retraction?

58 | P a g e
9. Mary, the accused, was accused of fraud. When confronted by her employer about the missing funds, she
remained silent and did not respond to the accusations.

9.1. Is Mary's silence considered an admission of guilt, and under what circumstances can silence be regarded
as an admission?

9.2. Discuss the relevance of the silence of the accused in the context of admissions.

10. During a criminal trial, the accused confessed to committing the crime in a written statement, which was
obtained after a lengthy police interrogation.

10.1. Explain the requirements for a confession to be admissible in court.

10.2. Assess whether confession in this scenario meets the criteria for admissibility under S 217(1) of the CPA.

11. Sarah, the accused, made a formal admission in court about her involvement in a minor traffic violation. Her
legal representative presented the admission.

11.1. Define the concept of formal admissions in criminal proceedings.

11.2. Discuss the key aspects of formal admissions, including their admissibility and legal requirements.

12. Kaliski killed his mother by shooting her multiple times. After hearing gunshots, the neighbours immediately
alerted the police who arrived at the scene with Kaliski standing over the body of his mother. The police officer
immediately asked, “Where is the gun?” Kaliski pointed to a desk with a drawer; the gun was found inside the
drawer. Whilst pointing to the desk Kaliski said, “There is the gun I shot my mother with. I shot her several
times while she was sleeping but I regret nothing. I am happy that she can no longer nag me to do things.”

Based on the set of facts above has Kaliski made an informal admission and/or confession? Substantiate your
answer. (5)

13. Frikkie professional South Africa tennis player is charged in the with fraud. The charge sheet alleges that he
unlawfully and intentionally made a misrepresentation to a Quinton, an Australian, that he would lose the
game, Quinton bets that the English player, Nidil (who is set to play Frikkie in the Wimbledon final) would win.
The game is played, and Frikkie defeats the English player.

Quinton refuses to come to SA to testify at the trial, therefore the state has to prove the case against Frikkie
without his evidence

59 | P a g e
 The prosecutor also wants to call you as a witness, because she has a copy of a tape recording that was made
of a consultation between Frikkie and yourself, in which he admitted that he never intended to lose but made
the representation in order to get rid of Quinton

14. Read the following set of facts and answers all questions. Where applicable substantiate your answers by
referring to relevant case law or legislation.

M is a popular South African YouTuber with 10 million subscribers who regularly posts documentary -style
videos, focussing on illegal wildlife trade, on his YouTube channel. M wants to expose wildlife traffickers and
spread awareness of the harm that the trade causes. Through his investigative journalism he believes to have
uncovered a crime syndicate that facilitates wildlife trafficking from Africa to Asia. According to the information
M received a logistics company owned by S is involved. During one of his YouTube video’s M is seen confronting
S at his business premises, resulting in an altercation between the two.

Two months after the video was posted on YouTube S disappeared without a trace and the police suspected
foul play. Sergeant C took M in for questioning about S’s disappearance and invited him to tell them what
happened, assuring him that they were also animal rights activists. M indicated to the police that he knew
nothing but an hour later he shared an emotional live stream video on YouTube in which he told his viewers
that “Scum like S do not deserve to live. I did what I had to do. S’s body will never be found! After causing so
much suffering to animals at least the lions that he was fed had a hearty meal.”

M was arrested soon after and charged with the murder of S.

14.1. What is the nature of the statement M made to his viewers in the livestream video? Explain your answer.

14.2. Will the M’s statement be admissible? Substantiate your answer. (6)

60 | P a g e
15. On the evening of 10 September 2019, Abel showed up at Kane’s house to talk to his brother to see if they
could come to a resolution of their differences without having to continue the litigation. Later that evening,
Kane was arrested for assault with the intent to inflict grievous bodily harm of his brother Abel. Upon his arrest,
Kane asked to contact his attorney. The arresting officer, Sergeant Seth, told Kane that he would contact Kane’s
attorney on Kane’s behalf. Sergeant Seth then left the room for five minutes with Kane’s phone. Upon his
return, Sergeant Seth informed Kane that his attorney had said that he (the attorney) would join them as soon
as possible, but in the meantime, Kane should tell Sergeant Seth exactly what happened. Kane made the
following statement to Sergeant Seth: “Abel tried to reason with me. But Abel had always been my parents’
favourite. I had had enough. I took the only thing my father left me, his walking stick, and I started hitting Kane.
I stopped when I saw that I had split open his scalp. I’m not sorry. I know I have no excuse, but my brother had
it coming for a long time.” Kane then accompanied Sergeant Seth to a garden shed at the back of the house,
where he showed Sergeant Seth where he had hidden the bloody walking stick. It has since come to light that
Sergeant Seth never contacted Kane’s attorney.

15.1. What is the nature of the statement that Kane made to Sergeant Seth? (1)

15.2. What is the requirement(s) for the admission of the statement? (4)

61 | P a g e