INTRODUCTION
1.4 Aim of the research/thesis
The problem regarding the admiss ibi 1 i ty of a confession is not new. The views of the Roman Dutch writers on the use of torture in the past in order to extract confessions were divided, but the majority of writers supported it.# Roman-Dutch law was applied in the Cape since 1652 by the Dutch East India Company.~
The system of criminal procedure which was used was inquisitorial in character. Where the death penalty was a competent sentence, the accused had to make a confession. Torture was used as a method of extracting a confession.
The use of torture in order to extract a confession created a danger of receiving a false confession into evidence. This in turn created a need for excluding confessions which were not reliable from evidence. The use of torture in order to extract confessions was formally abolished in 1795 when the British took control of the Cape. The admissibility of confessions was governed by the common law until 1917 when the
44 See chapter 2 infra for details 45 In terms of the octrooi.
Criminal Procedure and Evidence Act was enacted by our legislature."
This inquiry is aimed at reviewing the criteria or prerequisites for the admissibility of a confession as set out in section 217 of the Criminal Procedure Act.~
The reason for this is that although the prerequisites for the admissibility of a confession have been interpreted by our courts in many reported and unreported decisions, the reason for retaining the concepts of "voluntariness" and "undue influence" as separate requirements has yet to be spelt out. The concept of voluntariness is defined in terms of undue influence emanating from a person in authority, whereas "undue influence" per se is defined in terms of a practice which if introduced in a court of law would be repugnant to the pr lnciples on which the criminal law is based.
An analysis, of our case law indicates that in practice, the question whether the requirements of
46 See chapter 2 infra for details. The criminal Procedure Act 56 of 1955 repealed the 1917 Criminal Procedure and Evidence Act. In 1977 the new Criminal Procedure Act 51 of 1977 was passed. Section 217 of the 1977 Act governs the admissibility of confessions.
47 Act 51 of 1977 (hereinafter referred to as the criminal code).
section 217 of the Criminal Procedure Act are met is determined by the trial court after having regard to the preliminary questioning by a magistrate or a justice of the peace prior to the minuting of a confession and the replies of the suspect. This procedure will be reviewed in order to ascertain whether i t is satisfactory. A confession recorded by a police officer who is a justice of the peace and who is attached to the police unit investigating the crime presents problems in practice.~
The procedure developed by our courts for determining the admissibility of confessions will be reviewed. The problem to be researched in this regard relates to the burden of proof, in general, the shift of onus to the accused in the case of confessions reduced to writing by magistrates, the admissibility of similar fact evidence, cross-examination of an accused in a trial within a trial and other related issues. The reason for all this is to endeavour to point out areas that require legal reform.
48 See chapter 8 infra for details.
A confession must relate to the commission of an offence. A crime or an offence may be defined as conduct which the common or statute law prohibits and expressly or impliedly sUbjects to punishment which is remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted.U One may also define a crime as an unlawful human act, which is accompanied by a blameworthy state of mind and which is punishable by the state." These definitions of a crime indicate that the law does not prohibit a mere act in abstracto. A confession must cover all the crime to which it refers. If one or more elements of a crime are not admitted in the confession then section 217 of the criminal Procedure Act is not applicable. Similarly, a suspect can admit certain elements of a crime and the admissibility of his admission is governed by section 219A of the Criminal Procedure Act.
A confession must always relate to the commission of, an offence by a perpetrator either as a perpetrator, co-perpetrator, a socius criminis or an accessory
49 Burchell and Hunt South African Criminal Law Procedure Vol 1 General Principles of Criminal
(1970) 46 and 55.
and Law 50 Hosten et al Introduction to South African Law and
Legal Theory (1977) 690.
after the fact. In other words, the confession must connect the confessor with the commission of the crime and this should constitute an unequivocal admission of guilt on his part. In our law, a confession made by X is admissible only against X and not against y.;1
A trial within a trial is a technical procedure for an unsophisticated accused. Is this procedure satisfactory? Or should the law be reformed to ensure that an accused is apprised of his procedural rights prior to making a confession? An attempt would be made to answer this question in this thesis.
There is no law governing the length of period of interrogation of a suspect by the police. Our constitution does not incorporate a Bill of Rights enforceable by the courts. Such a Bill of Rights would protect fundamental rights of citizens. Yet one of the fundamental rights of citizens is that no person shall be deprived of his liberty, life and property without the due process of law; and that no person shall be obliged to be a witness against himself. This sounds American, but it is basic to our common law.
51 See section 219 of the Criminal Procedure Act 51 of 1977.
Police interrogation is inquisitorial in character and a criminal trial is based on our predominantly accusatorial system of criminal procedure. The apparent contradiction here is that the police use inquisitorial methods prior to the onset of an accusatorial trial. The police have access to the accused and may question him whereas the accused must not interfere with witnesses for the prosecution. Does the law take sides?~
The overall problem to be investigated in this study is whether the criteria for the admissibility of a confession are adequate to ensure the protection of the rights of the accused. Should section 217 of the criminal code be retained or does it need to be amended? An attempt will be made to give an answer to this question.