INTRODUCTION
1.6 Admissibility of confessions and admissions compared and distinguished
The distinction between a confession and an admission is that a confession is an unequivocal acknowledgment of guilt, an equivalent of a plea of guilty if made in a court of law, whereas an admission is merely an acknowledgment of some of the facts that tend to prove guilt. An admission does not refer to all the elements of a crime, and a suspect may raise a ground of justification in spite of the fact that he has made some admissions.
section 219A of the Criminal Procedure Act governs the admissibility of informal admissions." The requirements for admissibility of an admission are three-fold. The statement l'lust not constitute a confession. It must appear from the document on which i t appears that i t was made voluntarily. Lastly, an admission made to a magistrate or confirmed and reduced in writing before a magistrate shall be admissible upon mere production at the criminal trial.
The question is whether the voluntariness of an
70 Act 51 of 1977.
admission and that of a confession is determined according to the same criterion. n
It is a requirement of our common law that there must be proof beyond a reasonable doubt that a statement was made freely and voluntarily before it is admitted in evidence.n This requirement applies to all extra-judicial statements by an accused. The purpose of this rule is to ensure that an accused is given a fair trial and that justice is done. In BarlinD the appellate division summed up the common law rule as follows:
"The common law allows no statement made by an accused person to be given in evidence against himself unless it is shown by the prosecution to have been freely and voluntarily made - in the sense that i t has not been induced by any threat or promise proceeding from a person in authority."
The question is whether the phrase "freely and voluntarily" in section 217 of the Criminal Procedure Act and the word "voluntary" in section 219A have the same meaning. In Mpetha (2) Williamson J concluded
71 A detailed analysis of the concept is done in chapter 4 infra.
72 Cele 1965 1 SA 82 (A); Hoffmann and Zeffertt 200.
73 1929 AD 459 462.
that these criteria convey essentially the same idea. u The opinion of the court was that the word "free" in the phrase "freely and voluntarily" does not seem to connote anything different from the word "voluntary".
The common law rule is somewhat artificial or technical in that the ordinary ambit of the concept
"free and voluntary" is narrowed by the requirement that the threat or promise must proceed from a person in authority. The next question is whether the word
"voluntary" in section 219A must be given the narrow common law meaning or whether i t should be given its ordinary meaning. Williamson J~ held:
"The concept of voluntariness in regard to admissions by an accused has an accepted meaning at common law, and i t seems to me that stronger indications than are found in the provisions of sectio~s 217 and 219A are required in order to justify a departure from the accepted common law meaning. I am accordingly of the view that in interpreting section 219A of the Act a court must accord to the word "voluntary" its ordinary common
1aw mea;-lJ.ng .... ..
The approach adopted by the court in Mpetha (2) is supported. The voluntariness of a confession and an admission is determined in terms of the same common
74 1983 1 SA 576 (C) 579.
75 Mpetha(2) supra 581.
law criteria. But a confession may be perfectly free and voluntary yet may be inadmissible solely because of undue influence.~
~.7 Fair trial procedures
The admissibility of confessions is closely connected with the principle of fair trial procedures.
It is reasonable to conclude that the fundamental aim of a criminal trial could be described as the attainment of "justice" which encompasses the establishment of criminal liability and the determina- tion, where applicable, of an appropriate penalty." In any criminal dispute between the prosecution and an accused, the protection of the latter is effected firstly through the presumption of his innocence.7S That implies that the prosecution must show cause for any interference with an accused's rights.
The factual dispute between the prosecution and an accused should be settled by the truth and the punish- ment imposed should not be excessive in relation to
76 Pietersen 1987 4 SA 98 (C) 100 per Williamson J.
77 Steytler The Undefended Accused (1988) 1.
78 steytler 3.
the harm done. Van der Merwe rightly points out that:~
"It is reasonable to assume, as a matter of principle, that the procedural and eviden- tial systems of all enlightened countries are honest attempts to discover and protect the truth. They have a common goal. The existence of several different methods of discovering and protecting the truth can be explained in the light of history, because the main principles of procedure and evidence are not the products of scientific observation, but rather embody and represent a system of values shaped by the sometimes curious course of political, sociological and cultural history of a people, country of SUb-continent."
It is clear, therefore, that justice is attained when the truth is discovered and acted upon. Ideally justice requires that the truth be attained." This implies that the guilty must be convicted and the innocent acquitted in a criminal case. It is in this way that the truth is not only discovered but is acted upon. It is however, a fundamental principle of our criminal procedure that the truth should not be attained anyhow including the use of third-degree methods. Our criminal procedure is therefore based on certain values which must be upheld even to the
79 Van der Merwe "Accusatorial and inquisitorial procedures and restricted and free systems of evidence" in Sanders (ed) Southern Africa in Need of Law Reform (1981) 141; see Dlamini The Role of Chiefs in the Administration of Justice in KwaZulu unpUblished LLD thesis UP (1988) 82-83.
80 Dlamini 82.
sacrifice of the truth.81 In this regard Hahlo and Kahn rightly point out that:~
"truth is an elusive goddess, and jUdges, like other mortals, are not omniscient. An accused person or a party to a civil law suit may fail to avail himself of the opportunity of stating his case or may state i t badly; there may have been no witnesses to an occurrence or it may not be possible to find them, or, if witnesses do given evidence, they may be lying or mistaken.
Moreover, in the nature of things, on the same evidence one court may convict the accused, another acquit him, one find for the plaintiff in a civil case, another for the defendant."
Although the philosophy behind procedural and evidential rules in various systems is an honest attempt to discover and protect the truth,83 the accusatorial and inquisitorial approaches differ in their way of protecting the truth. The essential characteristic of the accusatorial system of criminal procedure is that the onus is on the parties to advance their cases for a decision to be made by the jUdicial officer, who remains passive throughout the
81 Compare Steytler 2.
82 Hahlo and Kahn (eds) The South African Legal System and Its Background (1968) 49; see Dlamini 82 ..
83 Van der Merwe 141; Dlamini 181.
proceedings." In the inquisitorial system, on the other hand, the jUdicial officer plays the most active role by conducting the proceedings to their conclusion.SS
1.8 Rationale for exclusion of coerced/involuntary