Informal admissions

Below are the requirements for the admissibility of informal admissions.

In civil cases, the only requirement is relevance. Additionally, where statements are made in the course of settlement negotiations, they may not be received without the consent of the party making them. See Naidoo's case.

In criminal cases, the requirements are

• that the statement be relevant; and
• that it have been made voluntarily.

Admissions may be made verbally or in writing, or they may be inferred from conduct, or in any combination of these ways.

Formal admissions

The general rule is that parties must prove their case by evidence. Formal admissions constitute an exception to this general rule.

The rationale for formal admissions is that they save time and costs. The system encourages people to admit facts which are not in dispute, so that the trial is not derailed and unnecessarily delayed by extraneous and superfluous issues.

Requirements of s 217 of CPA

Privilege against self-incrimination

One may not be made to say something that incriminates oneself. This is the natural consequence or corollary of the presumption of innocence, and it applies both to criminal and to civil cases. Sometimes, in civil cases, one might be in danger of saying something that could lead subsequently to one's criminal prosecution. Privilege protects one in such circumstances.

The privilege against self-incrimination originates in the unpopularity of the harsh Star Chamber in England, which forced suspects to talk when interrogated under oath. This was abolished, as a result of growing opposition (since the politically powerful aristocracy were often victims of the Star Chamber), in 1641. The principle against self-incrimination became very important to English system thereafter.

The United States Supreme Court, in the case of Miranda v Arizona, held that the constitutional foundation for the privilege is the respect that government must accord to the dignity and integrity of its citizens. This decision came after the accused had been asked and made to answer self-incriminating questions by the police. Now suspects in the US must be "mirandised."

Legal professional privilege

Most South African writers and cases treat this as one branch of privilege. Zeffertt et al., in Chapter 17 of their book, treat it as two separate branches. This article treats it as one branch with different rules for different situations.

Legal professional privilege applies to both criminal and civil cases.

The basic rule is that communications between a lawyer and a client may not be disclosed without the client’s consent. The communications “belong” to the client, not to the lawyer. It is the client’s choice to consent to or refuse their disclosure.

The rationale for this privilege is that society sees the need for lawyers to help resolve civil and criminal disputes. Lawyers could not do their work properly if there were a danger that they could be forced to disclose communications with their clients.

This is a fundamental right of procedural justice.^[53] It existed even before advent of the constitutional dispensation in South Africa, but it has even greater importance in that context.

The following are a few of the requirements for legal professional privilege to operate:

• The person to whom the communication is made must be a legal adviser. To seek legal advice from a non-lawyer is therefore not a good idea if privilege is an important consideration.
• The legal adviser must be acting in his professional capacity a such. That something is said to a lawyer does not automatically make it privileged information; it must have been said to a lawyer acting as a lawyer. Whether or not a lawyer was acting in professional capacity depends on the facts of each case. In S v Kearney, where Kearney was charged with various white-collar crimes, involving business that had gone sour. Much money was lost, leading to his prosecution. Prior to the trial, there arose and was heard a civil dispute on a similar set of facts, during which Kearney was called as a witness by one of the parties. During preparation for him to give evidence, he had a consultation with legal counsel, and said certain things relevant to the criminal matter. The legal counsel was subsequently called during the criminal trial. Kearney objected to this, but the court said there was nothing amiss, since the legal counsel in question was not Kearney's legal counsel.
• The communication must have been made in confidence. If you shout out the information at top of your voice to your lawyer, such that everyone hears it, you cannot realistically claim privilege. Much the same applies if a police officer is present during the communication between lawyer and client.
• The communication must have been made either for the purpose of obtaining professional legal advice, or for the purpose of pending litigation.

Payment or non-payment of fees to legal counsel is not automatically decisive. The situation appears to cover communications to salaried legal advisers.^[54]

Whether or not the communication was made in confidence depends on the facts of each case. Whether or not it was made for the purpose of legal advice, again, depends on facts of each case.^[55][56]

There will be no privilege if the statement made for the purpose of furthering some criminal plan. In Harksen v Attorney-General, Cape, Harksen had sought advice from a lawyer so as to further a criminal plan, asking the lawyer for the best way to avoid detection or prosecution. It need not be the case that the lawyer is complicit, or aware of the purposes to which his advice was to be put.

The privilege belongs to the client, not to the legal adviser, although the legal adviser would usually raise privilege in the first place.

The privilege falls away if there is waiver, express or implied or imputed, by the client. The legal adviser in that case must give the evidence, since his client has consented to its disclosure. S v Tandwa is an important case on the imputed variety. Tandwa was one of a number of accused charged with a big bank robbery. Tandwa was the bank manager, and it was contended that he was complicit. Tandwa chose not to give evidence at the trial, and was convicted. On appeal, he claimed that the trial had been vitiated by irregularity: Counsel had closed the case without allowing him to give evidence, which would have been a gross dereliction of duty on part of counsel. Counsel said that this was not so, but Tandwa contended that counsel was not allowed to say that, owing to privilege. Judge Edwin Cameron told Tandwa that he was not permitted to have it both ways, for policy reasons. It had therefore been imputed that Tandwa had waived his privilege.

Privilege attaches not just to communications with legal advisers, but also to communications with the employees of legal advisers, like clerks, secretaries and interpreters. In S v Mushimba, such an employee had been passing on privileged information to the police. After a conviction, this came to notice of the Appellate Division, which set aside the conviction on the basis of gross irregularity.

The privilege also attaches to communications between legal advisers and third parties gathering potential evidence at the instance of legal advisers for clients, for the purpose of litigation. An example would be where a legal adviser hires a private detective to obtain certain information for use in contemplated litigation. This is what Zeffertt et al. refer to as litigation privilege.^[57] This privilege only arises once the litigation is contemplated, unlike the ordinary type of legal professional privilege, which can come into existence prior to the contemplation of litigation.

Section 37 of the Financial Intelligence Centre Act expressly preserves legal professional privilege despite the stringent reporting requirements of the Act.

Other professional privilege

At common law, other professionals, such as doctors, accountants and ministers of religion, are not covered by professional privilege.

There is some argument that under the new constitutional dispensation communications with such professionals ought also to be covered by privilege.

In England, there is recent authority to the effect that professional privilege does not extend beyond the legal profession.^[58]

In South Africa the courts have on occasion given some protection to this type of situation by applying section 189 of CPA.^[59] Under this section the court may refrain from punishing a recalcitrant witness if there is a “just excuse” for his not testifying. This development is not on all fours with legal professional privilege: Under section 189, the court has held that a receiver of communication is not bound to testify where it would clash with professional ethics; the court did not say, however, that this protection covered the maker of the communication. The section-189 situation is different from privilege in that it is not a blanket legal protection, but a decision not to punish in a given situation.

Marital privilege

Marital privilege is covered by section 198 of the CPA and section 10 of the CPEA. It originates in public policy.

Note the meaning of "marriage."^[60]

The privilege only covers communications made during the course of the marriage.

The privilege attaches to the spouse receiving the communication.

Section 199 of CPA and section 12 of CPEA extend the privilege to a spouse who may decline to answer any question which the other spouse may lawfully have declined to answer.

Parent/child privilege

At common law no special privilege attaches to the parent-child relationship.

If, however, a parent assists a child accused in criminal proceedings,^[61] the privilege attaches, as the parent is then in a similar position to a legal adviser.

In the US the courts have recognised a constitutional right to confidential communications between parent and child.

Under section 14 of the South African Constitution (on the right to privacy), there is scope for the development of such a right in South Africa.^[62]

Development in English common law

In Duncan v Cammell Laird, the House of Lords held that the court could never question a claim of State privilege, if the privilege was claimed in the proper form. But note the extreme conditions prevailing when this decision was taken.

In Conway v Rimmer, twenty-five years later, the House of Lords revisited the issue and reasserted judicial control. The court said it had been wrong in Duncan; court must always apply its mind; must always make up its own mind as to whether the circumstances justify State privilege. This case involved a probationary policeman who was not going to have his probation confirmed; he wanted access to confidential staff files that the police had on his performance, that he might make his case stronger thereby. The Minister issued a certificate invoking Crown privilege. This was challenged. The court a quo said it was bound by Duncan, and for perhaps the first time the House of Lords revisited an earlier decision. What could be the harm to the State, it asked, if the performance of an individual policeman is put on table? It might be slightly embarrassing, but it was no national security issue. It was for the court to decide, and the court decided in casu that records should be revealed.

The context and prevailing circumstances in these two were important, especially as regards national security; indeed, they were probably decisive.

Development in South Africa

Duncan v Cammell Laird was binding on South Africa, but the Appellate Division, in Van der Linde v Calitz broke away from the House of Lords authority, deciding that the court had the final say. This decision anticipated Conway v Rimmer. South Africa got there first, in other words, in remarkably similar circumstances, involving a fairly junior official working for the Free State provincial administration. Periodic reports were made on staff performance, and the official in question had been given a rating which upset him, so he sued for defamation. He wanted to get hands on confidential reports as to his performance, that he might prove his case. The court noted the absurdity of invoking national security on such an issue as this.

Parliament unhappy with this decision and passed legislation in 1969 to restore the situation to the Cammell Laird position. The executive had absolute and unquestionable power to block the disclosure of evidence, no reasons required. The Minister’s certificate was conclusive.^[63] In 1972 the legislation was relaxed somewhat, so that the ouster of the court’s power to decide applied only where national security at stake. National security, in other words, was again the decisive issue.

The General Law Amendment Act was replaced by section 66 of the Internal Security Act,^[64] which was repealed (on Parliament’s own initiative, without direction from the Constitutional Court) in 1996. The situation thus effectively reverts to Van der Linde v Calitz, subject of course to constitutional considerations.

Under the Freedom of Info Bill, 2010, section 46 leaves discretion to the court to order disclosure.

In the constitutional era, anything in the common law which conflicts with the Constitution will not be tolerated, unless it is a justifiable limitation.

Swissborough Diamond Mines v Government of RSA related to a diamond mining co-operative in Lesotho, whose government was going to interfere with its mining rights. The company wanted South Africa to pressure Lesotho not to do so. South Africa refused, and the company brought application against the South African government seeking information about the background. The government was opposed. The court applied its mind, ordered disclosure and enunciated some principles:

• The court is not bound by the ipse dixit of the Cabinet Minister.
• The court itself is entitled to scrutinise the evidence, in order to apply its mind properly.
• In making its decision, the court must balance the necessity of the evidence for the litigant against public interest. The greater the public interest in secrecy, the more likely the court will find the information to be sensitive, and therefore in keeping with State privilege.
• The onus should be on the State to show why disclosure should not be permitted.
• In a proper case, the court should call for oral evidence about reasons, in camera if necessary.

Schwikkard and Van der Merwe^[65] suggest two further requirements or principles:

1. There should be heavy onus on the State to motivate non-disclosure. There must be a likelihood of harm, not a mere possibility. The onus on the State is to justify the exclusion, not on the other party to justify inclusion or disclosure. In a proper case, the court can call for oral evidence about reasons for the exclusion, in camera if necessary.
2. The court, which may have privately inspected the documents in question, should consider the possibility of a partial disclosure, blocking out the sensitive parts.

Note the difference or distinction here from administrative law, which deals with access to information outside of the judicial arena. State privilege, in contrast, deals with whether certain information may be laid before the court by way of evidence.

In Independent Newspapers v Minister for Intelligence Services, the applicant had applied for the compelled public disclosure of restricted material contained in the records of certain court proceedings. The Minister objected to the disclosure on national-security grounds. The court held that a fair and objective assessment required the striking of a harmonious balance between the two competing claims—the applicant’s right to “open justice” and the constitutionally-derived power and duty of the executive to make and implement national-security policy. Although this case deals with sensitive state security issues, it is not about privilege as such.

Detection of crime

At common law the State is protected against disclosure of communications which would tend to reveal the identity of an informer or otherwise expose methods of detection of crime. The term “informer privilege” is often encountered when one species of this branch is under discussion.^[66] There are at least three reasons for the preservation of informer privilege:

1. protection of the informer and his family;
2. ensuring that the informer (usually “professional” informers, doing it on a permanent or semi-permanent basis) can be used in future; and
3. encouraging public to come forward and report crime.

Privilege against disclosure of methods to detect crime is needed to safeguard the criminal justice system.

The Appellate Division set certain bounds to informer privilege. In Pillay’s case, it held that the privilege only operates where public policy requires it, and will be relaxed, at least, in the following circumstances:

• when material to interests of justice;
• if necessary to show the accused’s innocence; and
• when the reasons for the privilege no longer exist, as when the identity of informer is already known.

Is informer privilege constitutional? In US the Supreme Court has held that it could be, provided it does not have effect of denying the accused a fair trial.^[67][68]

"Any other factor"

Principles of Evidence, in Chapter 14, suggests that common-law exceptions to the hearsay rule could be relevant under this heading.

See also S v Mnyama and S v Hewan.

For an illustration of the careful application of section 3(1)(c), see S v Shaik.^[82] See also S v Ralukukwe.

In S v Mpungose, the victim of a rape was killed in a manner suggesting that the purpose was to prevent her testimony. She had previously said something devastating, but hearsay, to the accused, who was subsequently convicted. This conviction was overturned on appeal.

Common-law exceptions to hearsay

There are two main categories under the common law:

1. statements by deceased persons; and
2. spontaneous exclamations.

Spontaneous exclamations

The basis for allowing spontaneous exclamations is their reliability. There are four main requirements:

• a startling occurrence;
• spontaneity;
• no reconstruction of past events permissible; and
• narrative parts excluded.

Statutory exceptions to hearsay

The following are the statutory exceptions hearsay:

• affidavits under section 212 of the CPA;
• Part VI of the CPEA (applied also to criminal cases via section 222 of the CPA); and
• birth and death certificates.^[83]

Exceptions to general rule

Identification

Such evidence is potentially problematic, since people make mistakes. In the case of dock identification of the accused, the witness can testify that he had previously identified witness, at an ID parade, for example. Others may also testify to show such prior identification by the witness.

Prior statements by the witness

These are sometimes admissible under Part VI of the CPEA, and are also applicable to criminal cases by virtue of section 222 of CPA. Such prior statements do not constitute corroboration of the witness.

Res gestae (the things that happened)

Sometimes the prior consistent statement is so closely related to res gestae as not to be permitted. In S v Moolman, Moolman was a policeman investigating stock-theft cases. He was very successful, because it turned out he had been torturing suspects to get them to confess. Put on trial, he was charged with numerous assaults. Moolman led evidence from his police pocket book; in other words, his notes. The court held, on appeal, that the pocket-book entries had been made as part of his daily routine, and were too intimately bound up with the events themselves.

Refreshing memory

Note here the requirement of the "primacy of orality"—viva voce evidence—and the general rule against proving previous consistent statements.

There are statutory exceptions,^[90] but it is not necessary to go into in detail on them here.

The common law covers the many areas not covered by those provisions. The common law allows for a quasi-exception, in the case of refreshing memory from a previous written statement.

It is important to distinguish between refreshing one's memory prior to giving evidence (always permitted, because this does not cause the possible privilege attaching to the statement to be lost) and refreshing one's memory in the witness box. What follows deals with latter situation.

The following requirements must be met before a witness will be permitted to refresh his memory from a prior written statement:

• He must have personal knowledge of the event.
• He must be unable to recollect unaided.
• Verification of document: must have been created by witness, but
  • actual recording of particulars may have been recorded by other person, who will also have to be called; or
  • witness must have verified accuracy whilst still fresh in witness's mind.
• The prior statement must have been made while the events were still fresh in the witness's mind. Strict contemporaneity is not required; what is fresh will be decided on facts of each case.

There is no need for the witness to have an independent recollection of the event or a portion of the event.^[91]

In the United States, a distinction is drawn, based on modern psychological theory, between "present recollection revived" and "past recollection recorded." This distinction is not watertight.

The South African courts have not yet gone into this distinction in any depth.

Formulation of rule

The case of Makin v Attorney General for New South Wales, decided in the Privy Council in the 1890s, is the leading case on the exceptional circumstances in which the courts will allow similar-fact evidence:

• Similar-fact evidence is not admissible merely to show a propensity to commit crimes.
• Even evidence which does show such a propensity is nevertheless admissible if it is relevant to the issue before the court: for example, whether certain events were designed or accidental, or to rebut some defence which would otherwise be open to the accused. In the Makin case, rather a lot of dead babies were lying around. This was rather suggestive of a design; it could not have been accidental.

This is known as the "Makin rule."

The Makin rule has been criticised as not accurately reflecting all the situations in which courts have allowed similar fact evidence in the past.^[93][94]

See, for example, R v Straffen, where the court came close to saying the accused was guilty because of two very similar murders he had previously committed. The court allowed evidence that he had previously done similar deeds, even though he had done them while in a state which excluded criminal culpability.

The better view seems to be that the Makin rule should have the following qualification added: "In some cases evidence which proves only a disposition will be admitted if on the facts it is a disposition highly relevant to the issue before court."

See R v Bond for a more helpful formulation than in Makin: "In proximity of time, in method or in circumstances there must be a nexus between the two sets of facts, otherwise no inference can be safely induced therefrom."

The court in DPP v Boardman approved expressly of the Makin rule, but in fact applied a more supple test: Similar-fact evidence is admissible where its probative value exceeds its prejudicial effect.

Lord Wilberforce's judgment provided as follows:

• Similar fact evidence is only admissible in exceptional circumstances.
• A strong degree of probative force is required.
• There must be such a striking similarity that the only possible inference is that the conclusion is true, or that it has been concocted by a witnesses, or that it is a sheer coincidence.

Below are some of the leading English cases:

• In R v Ball, a brother and sister were charged with incest, having been found in bed together in a flat. It could not be shown, however, that they were having intercourse. Evidence was allowed, though, that they had previously been convicted of incest.
• In R v Smith, the famous "brides in the bath" case, Smith had committed multiple bigamy offences. In each case, his bride was monied, and had made out will, leaving her possessions to Smith. On each of three cases, she had then suffered epileptic attacks and died in her bath. Smith was convicted, and the House of Lords confirmed his conviction, on the basis that this was all a bit too good to be true.
• R v Bond was decided when abortions were illegal. Bond was charged with having in his possession instruments that could have been used for abortion. He claimed that the opposition had not shown that the instruments were intended to be used for that purpose. The prosecution sought to get around this defence by showing that he had previously been convicted of illegal abortions.
• In DPP v Boardman, Boardman was a housemaster at an English school. He had been charged with sexually fooling around with the boys in their dorms. On one count, the evidence of a complainant was not very strong, but court said his evidence did not stand alone, since there was other evidence, and a pattern of strikingly similar circumstances.

In the South African case of S v D, the court applied DPP v Boardman, using the evidence on one count to prove another, because of the striking similarity of the accused's modus operandi. The accused in question was charged with a number of rapes and robberies in area of Johannesburg. In each case, when accosting his victim, he had gotten her to remove her valuables and then, before raping her, said, “Sleep down,” meaning “Lie down.” In one count, the witness was unable to identify him, but her description of what happened to her was so strikingly similar to other instances that, on similar-fact evidence, it was good enough. Note the distinction between this case and that of Makin.

For a good example of the Southern African application of these principles, see the recent case R v Sole. There was a dam construction in Lesotho, and Sole was a highly placed official, who oversaw contracts, etc. He started taking bribes, and was duly charged. The court said that on some counts the evidence against him was not strong, but if regard was had to the evidence on the other counts, it should be allowed. So the conviction followed even on the counts where the evidence standing alone would not have been strong enough.

Note that similar fact evidence is only permissible to resolve facts in issue. What is in issue will depend on the nature of the defence. For example, where the defence is an alibi, the presence or absence of the accused at the particular place is crucial, and similar fact evidence could conceivably be relevant. If the defence is self-defence, however, different considerations apply.

In the past, the courts have sometimes put cases into categories in order to decide whether similar fact evidence is admissible. There is a danger in this method, however, as principles cannot always be easily pigeonholed. It is nevertheless useful to note these categories.^[95]

The following are some of the categories under which the exceptions were dealt with:

• Res gestae: Certain acts form part of the transaction. If acts were so closely connected to the crime charged as to be relevant to explain it, they may be allowed in evidence: for example, a series of assaults.
• Presence at a place, or possession of a weapon: The commission of another offence shortly before or after the charged offence is sometimes allowed to prove the accused's presence at scene. For example, the accused is charged with possessing a weapon, and evidence is allowed that he had used it for a criminal purpose shortly before or after the commission of the charged offence.
• Previous course of dealing: The nature of the transaction between parties may not be understandable without reference to previous dealings. For example, a person approaches a drug dealer and asks for "the usual."
• Proof of motive: For example, an accused is charged with theft, the allegation being that he stole the money to cover previous thefts. In such a case the prosecution would be allowed to prove the previous thefts in order to show motive.^[96]
• Sexual passion: In R v Ball, as we have seen, previous acts of incest were allowed in as evidence to show the likelihood that the accused had been committing incest on this occasion.
• Acts of preparation: In R v Troskie, too, the accused was charged with incest with his sister. Evidence was allowed that he had previously attempted to have sexual relations with her. See also R v Hair, where the accused was charged with the theft of shares. Evidence was allowed that he had forged certain documents in order to obtain them.
• Corroboration of witness on material point: In R v D, the accused was charged with sodomy with a young boy. The boy said the accused had shown him indecent pictures. Evidence was allowed that such photographs were found in the accused's house. In S v Banana, evidence was allowed on one count of sodomy to corroborate evidence on another count (striking similarity).
• Corroboration of a confession: In R v Evans, the accused was charged with murdering a child. He had made a confession to murdering the wife and child. Evidence of both confessions was allowed to corroborate the confession about killing child.
• Knowledge: In R v Keller & Parker, the accused was charged with selling pieces of glass as diamonds. Evidence that the accused had previously attempted to sell glass as diamonds was allowed to show that the accused had guilty knowledge.
• Intent: In R v Pharenque, the accused was charged with buying goods on credit without the intention to pay. Evidence was allowed of previous convictions for similar conduct, to show that the accused had no intention of paying.
• Design or system: In R v Khan, the accused was charged with murder during a robbery. Evidence was allowed that some months previously the accused had invited a witness to join him in a robbery on the deceased.
• Accident or mistake: R v Smith, discussed above, also applies here. In R v Mortimer, the accused was charged with deliberately running down a female cyclist. Evidence was allowed that he had recently run down several other female cyclists.
• Identity: In Thompson v R, the accused was charged with an indecent act on young boys. He said the young boys had been mistaken about his identity. Evidence was allowed that he had had indecent photographs and powder puffs in his possession when arrested. This evidence confirmed the identity evidence by the young boys.
• Innocent association: In R v Sims, the accused was charged with indecency committed with four different men in his house. The accused denied the charges; he said the men had come to visit for innocent purposes. Evidence was allowed on one count to corroborate the other counts, that there was no innocent association.
• Innocent possession: In R v Armstrong, the accused was charged with poisoning his wife with arsenic. His defence was that he had bought the arsenic innocently, and that his wife must have tried to commit suicide with it. Evidence was allowed that, soon after his wife's death, he tried to poison someone else with arsenic.

Note the two different types of situation that can arise in practice:

• the Makin-type situation, where evidence is admitted of other events not otherwise before court; and
• the use of the evidence before court on one count to prove or corroborate the evidence on another count.^[97]

In the first situation, the issue will arise at the stage when the similar-fact evidence is sought to be admitted.

In the second, the similar fact evidence is already legitimately before court. The issue will be whether the court may take it into account when considering the strength of the case on the other count, as in DPP v Boardman.

Note that in certain jurisdictions in the United States there has been radical statutory intervention in the common-law rule relating to certain types of crimes (especially sexual crimes), allowing much more evidence of previous deeds.^[98] A similar provision in California led to the admission in the Michael Jackson trial of evidence of alleged prior misconduct in circumstances where it would probably have been excluded under common-law rules.

In England the common-law rules have been repealed and replaced by recent statutory provisions.^[99] These provisions seem less radical than those in the US. Because of statutory amendment to the English common law rules, it is likely that future English cases on the point will be of less relevance to South African law.

Similar fact evidence in civil cases

The issue of similar fact evidence can also arise in civil cases. The applicable rules are substantially the same as in criminal trials, but in practice the courts tend to be more inclined to accept such evidence, as the prejudicial aspect is less problematic.^[100]

In Delew v Town Council of Springs, Delew did not believe the council was right about the amount of power he had consumed. The court excluded similar-fact evidence.

In Laubscher v National Foods, Laubscher sued the producer of animal food, since his animals, after consuming it, had subsequently died. He wanted to lead evidence that others who had bought food from the same source had suffered the same kinds of trouble. The court said no.

In Gosschalk v Rossouw, there was an alleged assault by the police on a detainee.

Guidelines by DPP

The DPP may issue general or specific guidelines on the conduct of traps. There are two considerations here:

1. the likelihood of compromising the prosecution’s case; and
2. the likelihood of harm to society.

Note that it is not obligatory for the DPP to issue guidelines.

No criminal liability on part of trap

A trap does not incur criminal liability who acts in good faith.^[120]

There may be no prosecution, without the written authority of the DPP, of a trap who possibly exceeds the good-faith requirement.

Onus to show admissibility

The prosecution bears onus of showing admissibility,^[121] but only on a balance of probabilities.^[121] This is in contrast to the normal onus to show admissibility beyond reasonable a doubt. The statute, in other words, has lowered the onus. This onus is of doubtful constitutionality. In S v Kotzè, the facts of the case did not make it necessary to consider this issue, but the court said obiter that the onus ought to be beyond reasonable doubt, and also stressed need for compliance with section 252A(6). The accused must be given an indication of basis of challenge. See also S v Naidoo, where the court held that the onus is beyond reasonable doubt.

Note that there is a duty on the accused to set out the grounds of objection.

The method of determining admissibility is, generally, by way of a trial within a trial.^[122]

Some cases dealing with section 252A include

• S v Hammond;
• S v Mkhonto;
• S v Odugo; and
• S v Makhanya.

Criticism of s 252A

There has been some criticism of section 252A, mainly on the basis that it appears to conflict with section 35(5) of Constitution, in that it seems to apply different admissibility requirements to those set out in that constitutional provision.^{[123][124][125]}

Trap evidence treated with caution

It is a basic principle of the common law that the courts are to treat trap evidence with caution.^[126]

A confession to an undercover police official is not hit by the proviso to section 217 of CPA.^[40]

Entrapment in civil cases

Note that section 252A of the CPA does apply to civil cases.^[127]

Previously the common law did not disallow evidence in civil cases which had been secured by entrapment. The question now is whether the court has any discretion to disallow such evidence.

The courts have begun to develop a discretion to disallow trap and other evidence obtained in violation of constitutional rights.^{[128][129][130][131]}

Books

• Du Toit, E. Commentary on the Criminal Procedure Act (vol. i). Juta & Company, 1987.
• Schwikkard, P.J. & Van der Merwe S.E. (eds) Principles of Evidence 3 ed, 2010.

Cases

• Ashford v Thornton (1818) 106 ER 149 (KB).
• DPP v Kilbourne 1973 AC 729.
• DPP, Transvaal v Mtshweni 2007 (2) SACR 217 (SCA).
• Ex parte Minister of Justice: In re R v Jacobson & Levy 1931 AD 466.
• Ex parte Minister of Justice: In re R v Pillay 1945 AD 653.
• Ex parte Minister van Justise: In re S v Wagner 1965 (4) SA 507 (A).
• Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC).
• Holtzhauzen v Roodt 1997 (4) SA 766 (W).
• Jacobs v Henning 1927 TPD 324.
• Kruger v President Insurance Co Ltd 1994 (2) SA 495 (D).
• Magmoed v Janse van Rensburg 1993 (1) SA 777 (A).
• McWilliams v First Consolidated Holdings 1982 (2) SA 1 (A) at 10.
• Mdani v Allianz Insurance Ltd 1991 (1) SA 184 (A).
• Minister of Public Works v Haffejee 1996 (3) SA 745 (A).
• Naidoo v Marine & Trade Insurance Co Ltd 1978 (3) SA 666 (A) at 677.
• O'Shea v Van Zyl 2012 (1) SA 90 (SCA).
• Pillay v Krishna 1946 AD 946.
• R v Ahmed 1958 (3) SA 313 (T).
• R v Baartman 1960 (3) SA 535 (A).
• R v Becker 1929 AD 167.
• R v Blyth 1940 AD 355.
• R v Carson 1926 AD 419.
• R v Dlamini 1960 (1) SA 880 (N).
• R v Goliath 1941 CPD 3.
• R v Jacobs 1954 (2) SA 320 (A).
• R v Khumalo 1949 (1) SA 620 (A).
• R v Kumalo & Nkosi 1918 AD 500.
• R v Kuzwayo 1949 (3) SA 761 (A).
• R v Mayet 1957 (1) SA 492 (A).
• R v Samhando 1943 AD 608.
• R v Trupedo 1920 AD 58.
• R v Tshetaundzi 1960 (4) SA 569 (A).
• R v West 1939 CPD 393.
• S v Boesak 2000 (1) SACR 632 (SCA).
• S v Boesak 2000 (3) SA 381 (SCA).
• S v Chabalala 2003 (1) SACR 134 (SCA).
• S v Eadie 2002 (1) SACR 663 (SCA).
• S v Grove-Mitchell 1975 (3) SA 417 (A).
• S v January: Prokureur-generaal Natal v Khumalo 1994 (2) SACR 801 (A).
• S v January 1994 (2) SACR 801 (A).
• S v Latha 1994 (1) SACR 447 (A).
• S v Lebone 1965 (2) SA 837 (A).
• S v Makeba 2003 (2) SACR 128 (SCA).
• S v Mathlare 2000 (2) SACR 515 (SCA).
• S v Matlou 2010 (2) SACR 342 (SCA).
• S v Mcasa 2005 (1) SACR 388 (SCA).
• S v Molimi 2008 (2) SACR 76 (CC).
• S v Mpetha (2) 1983 (1) SA 576 (C) at 585.
• S v Ndika 2002 (1) SACR 250 (SCA) at [16].
• S v Nieuwoudt 1990 (4) SA 217 (A).
• S v Orrie & Another 2005 (1) SACR 63 (C).
• S v Peters 1992 (1) SACR 292 (E).
• S v Pillay & Others 2004 (2) SACR 419 (SCA).
• S v Ralukukwe 2006 (2) SACR 394 (SCA) at [9] – [11].
• S v Robertson 1981 (1) SA 460 (C).
• S v Shabalala 1986 (4) SA 734 (A).
• S v Shaik [2005] 3 All SA 211 (D) at 273-4.
• S v Shaik 2007 (1) SACR 247 (SCA) at [168] – [169].
• S v Sheehama 1991 (2) SA 860 (A).
• S v Thebus 2003 (2) SACR 319 (CC).
• S v Yawa 1994 (2) SACR 709 (SE).
• S v Yende 1987 (3) SA 367 (A).
• S v Zuma 1995 (1) SACR 568 (CC).
• S v Zuma 1995 (1) SACR 568 (CC).
• Tregea v Godart 1939 AD 16.
• Van der Linde v Calitz 1967 (2) SA 239 (A).

Legislation

• Civil Proceedings Evidence Act 25 of 1965 (CPEA).
• Criminal Procedure Act 51 of 1977 (CPA).
• Law of Evidence Amendment Act 45 of 1988.