SOUTH AFRICAN LAW
3.1 Introduction
3.3.1 Threat or promise of benefit
Any words or conduct which suggest to the suspect that he or she may be dealt with leniently if he or she makes a statement, or more severely if he or she does not, will render a statement made under those circumstances involuntary and inadrnissible.~The facts
35 Hoffmann and Zeffertt 201; Barlin supra 462.
36 See chapter seven Infra; Hoffmann and Zeffertt 201;
Van der Merwe et al 253.
37 Hoffmann and Zeffertt 201; Rimmer 1954 1 SA 469 (C);
Scott 1959 2 SA 786 (C).
38 Hoffmann and Zeffertt 202.
of each case would indicate whether words or conduct amount to a threat or promise and previous decisions are of little assistance."
A threat or promise cannot render a statement involuntary if it was made when its effect has been dissipated by the time the statement is made. In
Mulke~ an employer said to a servant whom he suspected of theft:
"If you have done it, you better acknowledge it, and a more lenient view will probably be taken by the directors."
These remarks did not elicit an immediate response.
Two weeks later the servant wrote a letter confessing his guilt. The court did not find the confession involuntary as a result of an earlier promise of benefit. The confession was admitted into evidence.
3.3.2 Persons in authority
In Deokinanan'l the English court (i. e. the privy council) held that undue influence must be held out by a "person in authority", and that this forms part of
39 See Magoetie 1.959 2 SA 322 (A) 325; Hoffmann and Zeffertt 202.
40 1.932 WLD 16.
41. 1.968 All ER 146.
the common law. Similarly, In Barlin's case the threat or promise of benefit must not be one coming from a person in authority or it must not be attributable to him.·z The definition of a "person in authority" has been given in several cases. In Dhlamini,~ the court expressed the view that the concept of "person in authority" includes the complainant, who investigated an alleged theft by interrogating suspects including the accused. In Robertson~ this concept was given a liberal interpretation. The court held that the term refers to:
"enigiemand, of hy 'n amptelike posisie beklee al dan nie, wat 'n mate van outoriteit (uitoefen), bv. die van 'n vader teenoor 'n seun of 'n com teenoor In neef of
'n werkgewer teenoor 'n werknemer."45
The approach of the court in Robertson supra to the term is welcomed.
In American law" the term "person in authority" refers to anyone who is legally entitled to control the
42 Barlin supra 462; Hoffmann and Zeffertt 203.
43 1949 3 SA 976 (N).
44 1981 1 SA 860 (C).
45 Van der Merwe et al 238 welcomes the liberal interpretation.
46 Chamberlayne 1933; Tompkins 554-56.
liberty of the accused or to decide what shall be done to him. In other words, it refers to a person who has some authority to direct the course of the criminal proceedings. since authority may be delegated expressly or by implication, the term "person in authority" may extend to designate anyone who acts in the presence of a person clothed with legal authority.
However, the person extending the misleading inducement must actually and legally have been in authority.47
In Pietersen," a detective misled the accused by bluffing them into thinking that the alleged case against them was much stronger than i t really was.
This he did by playing one accused off against the other and untruthfully representing to each accused that there was incriminating eV~dence against him when he knew well that such evidence did not exist.
Williamson J held that the behaviour of the detective amounted to a practice repugnant to the principles upon which our criminal law is based and that in law i t constituted undue influence." The confession was held inadmissible. The reason for this is that whereas a confession may be perfectly free and voluntary, it
47 Chamberlayne 1934.
48 1987 4 SA 9B (Cl.
49 Pietersen supra 101i see Mpetha(2) supra 58B.
influence."
In Kasikos~' the Rhodesian appellate division remarked obiter that improper influence in vacuo does not avail an accused; i t must exercise itself upon the mind. In casu, the court remarked that should a police officer, having met with no success in obtaining any admission from a suspect, indicate to the suspect that he was prepared to accept a lesser version, for the purpose of securing his admission that he was at the scene of the crime and, thereafter, of reverting to the more serious version of the offence, that would be improper influence brought to bear upon the accused which would render that statement inadmissible." The reason for this is that that practice amounted to an undue influence by lulling the suspect into a false belief that the prosecution was accepting, as the correct version of the case against him a less blameworthy account and thus improperly inducing the suspect to make a statement.
Jones J has defined a "person in authority" in case of
Peters~ as follows:
50 Pietersen supra 100.
51 1971 3 SA 251 (RAD) 257.
52 Kasikosa supra 226.
53 1992 1 SACR 292 (0) 295.
It,n Persoon in 'n gesagsposisie is enige persoon wat die loop van die vervolging moontlik mag beinvloed. Dit slaan nie op staatsgesag alleen nie. Enige persoon wat, afhangende van die omstandighede, die vervolging mag beinvloed, kan 'n persoon in 'n gesagsposisie wees. Na my oordeel sluit dit onder hierdie omstandighede nie lede van 'n lid van die bende onder die gesag van die leierskap daarvan nie en in iedere geval kon hulle nie die loop van die vervolging beinvloed nie."
The jUdgment of Jones J is welcomed because it clearly defines a person in authority. There must be proof that X is in a position to influence the prosecution ei ther way before he is regarded as a person in authority. This means that any person who is unable to influence the course of the prosecution is not a person in authority notwithstanding the pressure he may exercise on the confessor. In Peters supra the accused made admissions as a result of coercion by a prison gang. The accused was not a member of that gang and the gang was unable to influence the course of the prosecution. It was held that the gang members were not in a position of authority vis-a-vis the accused .
•
The admission was held admissible in evidence.
The l i s t of persons in authority includes a magistrate, police officer, the complainant and the complainant's employer.~
54 Dlamini supra.
3.3.3. The requirement of voluntariness under section 217 of