SOUTH AFRICAN LAW
4.4 Assaults or threats of assault
The Kasikosa case reiterated the well-known dictum in sibanda67 that:
" ... where an accused does not allege that confrontation or interrogation affected his freedom of volition, the hypothetical argument that it may have done so is not of much force. [Even] an unsophisticated accused must know what really induced him to make the statement. It may well be, and in fact often happens, that he may wish to gild the lily and say in addition that he was assaulted and ill-treated when he was not, but i f he makes no reference to the fact that confrontation and interrogation had any bearing on his making the statement, or i f he positively says that it had no such bearing, then that must always be a very cogent 'fact to be taken into account in determining whether or not interrogation and confrontation did, in fact, induce him to make the statement, because, if it did that fact must be in the very forefront of his mind, and one would expect even a simple person to make some mention of it."
65 Mpetha(21 supra 581.
66 Mpetha(21 supra 581.
67 Sibanda 1968 1 SA 236 (HAD).
Many accused may experience problems with the above remark. It is common knowledge that accused complain of assaults or even threat or assault prior to the making of confession. Since the accused are usually not represented during the making of confessions, they only reveal this fact for the first time in court. The presiding jUdge considers the evidence of the accused against the evidence of experienced witnesses in the name of police officers. Obviously, the police witnesses would be regarded as reliable and honest witnesses because they are familiar with the witness- box and they are familiar with the court procedures.
The accused may be frightened by the very fact of opposing police witnesses. He has no clue about the importance of his demeanour in the witness box. The scales are immediately weighed against an accused.
Moreover, the jUdges have always found an allegation of assault by the police to be false, and that the accused were horrible witnesses.M The court proceed to look for other reasons for excluding confessions other than the alleged assaults. Maybe this is the correct procedure. But, the crux of the matter is that any absence of assault must be verified by medical evidence. The current practice of disposing of that on the basis of credibility of witnesses is in favour of the prosecution. To illustrate this point, Williamson J made the following remark in Mpetha(2)~:
"in my more than 30 years involvement in the practice of law in our courts my experience is that by far the most common ground of complaint by an accused who has made a confession is that he was induced to confess by assault or threats of assault. Very often these complaints are baseless, but yet they form, as virtually every practising lawyer knows, the most frequent of all complaints.
In my opinion therefore any proper question- ing should of necessity involve an investigation into the poss ibi I i ty of assaults or threat of assaults. Anything less would be to turn a blind eye to one of the unhappy realities of life."
The procedural problem created by the court's attitude towards allegations of assaults or threats of assault is that the prosecution is rarely required to lead medical evidence. It is difficult to support a statement like the one quoted above where the evidence of assault or threats of assault is rejected on other grounds. The evidence of an unsophisticated accused cannot be reasonably expected to be more cogent than that of experienced policemen. Moreover, i t is irregular to approach an allegation of assault as a pack of lies. What if the accused was assaulted? It is necessary to suggest some changes to the law in order to compel the prosecution to rebut any allegation of assault or threats of assault by either medical evidence or evidence of a psychologist.
68 See Kasikosa supra 253; Mpetha(2) supra 412.
69 1982 2 SA 406 (C) 412.
In Chenisso,10 Myburgh J took the following factors into account in deciding that the confession was inadmissible: that the accused had been arrested after fleeing lOO kilometres on foot; that in his confession the accused stated that he had not been given water between the place where he had been arrested and the office where he was questioned; that the accused was subjected to 30 hours' continuous questioning by the police; and that despite such lengthy interrogation, the accused had only changed his story once he was before a magistrate. It is clear that the cumulative effect of these factors was such that as to induce the accused to make a confession as he did.
4.5 critique of the undue influence requirement
The definition of "undue influence" is far from being clear and precise." Our courts have defined "undue influence" as that influence which if i t is introduced in a court of law would be repugnant to the general principles on which the criminal law is based." What does this mean in a simple language? A court of law
70 (A) •
1983 4 SA 912 (T) 9l4-l6; cf Christie 1982 l SA 464 71 See Grano "Voluntariness, free will and the law of
confession" 1979 Va.L.Rev. 861.
72 see Hackwell supra 400.
operates in terms of rules of both the criminal procedure and the law of evidence as well as the substantive criminal law. Which are the rules which are used in defining "undue influence"? The definition is not clear in this regard. The general principles of criminal law are well known and well documented. n But the definition of "undue influence" as enunciated by our courts does not identify specific rules to which an influence must be repugnant in order to be undue.
The definition leaves one with a doubt.
reason it cannot be regarded as satisfactory.
For that
The voluntariness requirement is defined in terms of undue influence. Here one finds a legal term used to define another legal term. For obvious reasons, i t would appear that there was not need to retain the two terms as separate requirements of the admissibility of a confession. In terms of the common law, the voluntariness of a confession may be excluded by an undue influence emanating only from a person in authority.
I t would appear that in practice i t has been recognised that the differences between the terms
73 See Snyman Criminal Law (1989) 2nd 1-300; Milton and Burchell Cases and Materials on Criminal Law (1992) 1 et seq.
"undue influence" and "voluntariness" do not serve any useful purpose. u This is an indication that the only concern is whether the requirements of section 217 of the Criminal Procedure Act are met before the confession is admitted into evidence. Consequently, it will be reasonable to recommend that these two requirements be merged into one, namely voluntariness without bringing in the requirement that the source of the improper influence be a person in authority.