Informal admissions in South African law are part of the South African law of evidence. Briefly, an admission is a statement made by a party, in civil or criminal proceedings, which is adverse to that party's case. Informal admissions, which are usually made out of court, must be distinguished from formal admissions, made in the pleadings or in court. Formal admissions are binding on the maker, and are generally made in order to reduce the number of issues before the court; an informal admission is merely an item of evidence that can be contradicted or explained away.
Informal admissions may be admitted to prove the truth of their contents. The rationale for admitting such evidence would appear to be that a person is unlikely to make an admission adverse to his interests if the contents of that admission are not true. Since, however, a statement may constitute an admission even though a party is unaware that what he is saying is contrary to his interests,The test employed in determining whether a statement or conduct constitutes an admission is an objective one. See R v Barlin 1926 AD 459 at 465; S v Grove-Mitchell 1975 (3) SA 417 (A) 420.
[i]t is probably better to say that admissions or confessions do not have some of the drawbacks inherent in hearsay because a party can hardly complain that when he made the statement he was not on oath or did not have an opportunity to cross-examine himself.Zeffertt, Paizes & Skeen 429.See Randfontein Transitional Council v ABSA Bank Ltd 2000 2 SA 1040 (W).
Nevertheless, informal admissions in many instances will be hearsay in nature. Section 3(4) of the Law of Evidence Amendment ActAct 45 of 1988. defines hearsay evidence as “evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.” When the probative value of an informal admission depends primarily on its maker (which will almost invariably be the case), it will be a hearsay statement. As, however, section 3 of the Law of Evidence Amendment Act is “subject to the provisions of any other law,”s 3(1). existing statutory provisions will remain the primary route to admission, and the common law will remain “any other factor” to be taken into account by the court in the exercise of its discretion to admit hearsay in the interests of justice.s 3(1)(c)(vii).
While Paizes also takes the view that section 3(4) brings confessions and admissions within the hearsay rule, and that the probative value of a statement depends on the credibility of its maker,Paizes in Du Toit et al Commentary 24-50J.See Paizes 1985 SALJ 258.See S v Holshauzen 1984 (4) SA 852 (A). he concludes that section 3 does not require any significant departure from the traditional approach to the admission of confessions and admissions, because
the more contentious aspects of the problem of the admissibility of confessions or admissions are not the concern of s 3. And, since it is difficult to imagine how the interest of justice could be served by the exclusion of a relevant, voluntarily made admission or confession which satisfies the other statutory requirements, it is submitted that subjecting such evidence to the scrutiny required in s 3 will be a harmless but usually futile exercise. The hearsay objection will be met, in any event, should the accused himself testify at his trial.Paizes in Du Toit et al Commentary 24-50K.
Once part of a statement has been allowed into evidence as an admission, the maker is entitled to have the whole statement put before the court, even where it includes self-serving statements,R v Valachia 1945 AD 826.S v Cloete 1994 (1) SACR 420 (A). provided the two components form part of a single statement.R v Vather 1961 (1) SA 350 (A).See also S v Telani 1989 2 SA 43 (A).S v Mkire 1992 (2) SACR 347 (A).
An informal admission, which is made extrajudicially, must also be distinguished from a statement made against a party's interest during the course of a trial. The latter is treated as ordinary evidence.
Requirements for Admissibility
In civil matters, there is only one general requirement for admissibility: relevance.In respect of informal admissions, the effect of section 42 of the CPEA is to apply the English law as it was on May 30, 1961. An additional requirement must be met where statements are made in the course of negotiations for the settlement of a dispute, in that such statements cannot be disclosed without the consent of both parties. In criminal matters, an admission must be proved to have been made voluntarily before it can be admitted into evidence.
Admissions by conduct
Admissions may be contained in a verbal or written statement, and may also be inferred from conduct. For example, in S v Sheppard,1966 (4) SA 530 (W). it was held that a party's payment of an invoice was an admission that the services specified in that invoice had been performed. Conduct, however, does not need to be positive if it is to constitute an admission, and an admission may be inferred from silence. The constitutional right to remain silent, and the presumption of innocence, "will no doubt severely restrict the inferences that can be drawn from an accused's silence."Schwikkard & Van der Merwe Evidence 307.See also Schwikkard Presumption of Innocence (1999) 118-25.
Admissions by silence
Silence in the face of an accusation may amount to an admission when it forms the basis of a commonsense inference against a party.See Van der Merwe (ed) Evidence 219.See also Elliot (ed) Elliot & Phipson Manual of The Law of Evidence 12 ed (1987) 181 for discussion of the dangers which may arise from drawing “commonsense inferences.” For example, in Jacobs v Henning,1927 TPD 324. the plaintiff, in bringing an action for damages for seduction, led evidence that the defendant, when confronted and accused by the plaintiff's father of having caused his daughter's pregnancy, remained silent and simply lowered his head. The court found that this conduct was sufficient corroboration of the plaintiff's version.
The nature of the inference that can be drawn from silence will always depend on the surrounding circumstances.Elliot Elliot & Phipson 182. In the past, one of the reasons for not readily drawing an inference from the accused's silence was the common-law right to remain silent and the presumption of innocence, which requires the prosecution to make out a prima facie case before there can be any obligation on the accused to speak.R v Weger 1958 (3) SA 467 (G).Gosschalk v Rossouw 1966 (2) SA 476 (C).See also R v Barlin 1926 AD 459. These rights now enjoy protection in the Constitution.s 35(1)(a).s 35(3)(h).
The right to remain silent may be described as the absence of a legal obligation to speak.S v Thebus 2003 (2) SACR 319 (CC) para 55.R v Esposito (1985) 49 CR (3d) 193 (Ont CA). Its rationale is three-fold:
concern for reliability (by deterring improper investigation), which relates directly to the truth-seeking function of the court; a belief that individuals have a right to privacy and dignity, which, while not absolute, may not be lightly eroded; and the necessity of giving effect to the privilege against self-incrimination and the presumption of innocence.Thebus para 55.See also S v Manamela 2000 (3) SA 1 (CC).Osman v Attorney-General Transvaal 1998 (2) SACR 493 (CC).
In the constitutional context, an issue that has been the subject both of nationalSee South African Law Commission, Project 73, Simplification of Criminal Procedure A More Inquisitorial Approach to Criminal Procedure—Police Questioning, Defence Disclosure, the Role of Judicial Officers and Judicial Management of Trials (2002).See also Van Dijkhorst (2001) 118 SALJ 26.Nugent (1999) 116 SALJ 501.Schwikkard "Silence and Common Sense" (2003) Acta Juridica 92. and of internationalSee, for example, Easton The Case for the Right to Silence 2 ed (1998).See also Dennis “Silence in the Police Station: The Marginalisation of Section 34” Criminal Law Review 25.Jackson, Wolfe & Quinn Legislating Against Silence: The Northern Ireland Experience (2000). debate is whether or not a negative inference may be drawn from an accused's election to exercise his right to remain silent. Although the issue of a negative inference will arise only at the trial stage, there are significant policy issues differentiating silence prior to trial from silence at trial.
At common law, the right to remain silent prohibited a court from drawing adverse inferences from silence at the investigative stage of the proceedings. If, however, an alibi defence is raised for the first time at trial, then the court, in determining whether the alibi is reasonably possibly true, may take into account, in terms of the common law, that there has been no opportunity for the state to investigate the alibi properly.R v Mashele 1944 AD 571.S v Zwayi 1997 (2) SACR 772 (Ck).
The constitutionality of the common-law approach to the late disclosure of an alibi was considered by the Constitutional Court in S v Thebus, where the court also applied its mind to the issue of the permissibility of drawing an adverse inference of guilt from pre-trial silence and the constitutionality of drawing an adverse inference as to the credibility of the accused from pre-trial silence.
These issues were raised on appeal by one of two co-accused, whose conviction on a charge of murder and two counts of attempted murder had been confirmed by the Supreme Court of Appeal. On arrest, the accused had been warned of his right to remain silent, but nevertheless elected to make an oral statement in which he described the whereabouts of his family at the time of the shooting. At trial, he testified that this statement had not been intended to include himself. (If it had been, it would have contradicted the details of his alibi defence.) After making this initial oral statement, the accused refused to make a written statement and only disclosed his alibi defence two years later, when the matter came to trial. The alibi defence was rejected by the trial court, and the accused was convicted. The accused's appeal to the Supreme Court of Appeal failed, and the matter then proceeded to the Constitutional Court, where the accused contended that the Supreme Court of Appeal had erred in drawing a negative inference from his failure to disclose his alibi defence timeously. Although there was concurrence on the ultimate fate of the appeal on this point, it attracted four separate judgments.
Moseneke J (Chaskalson CJ and MadalaJ concurring) emphasised the distinction between pre-trial silence and trial silence. In terms of this distinction, the objective of the right to silence during trial is to secure a fair trial, whereas "the protection of the right to pre-trial silence seeks to oust any compulsion to speak."Para 55.See also S v Sithole 2005 (2) SACR 504 (SCA) n 4, para 11 for a brief summary of the four separate judgments in Thebus. Moseneke J then categorically stated that, "in our constitutional setting, pre-trial silence of an accused can never warrant the drawing of an inference of guilt,"Para 57. as this would undermine both the right to remain silent and the right to be presumed innocent.Para 58. It is the ambiguity of pre-trial silence that prohibits an inference from silence being drawn. On Moseneke J's account, the drawing of an inference would render the mandatory warning of the right to remain silent "a trap instead of a means for finding out the truth in the interests of justice."
Moseneke J drew a distinction between an inference as to guilt and an inference pertaining to credibility on the basis of a person's pre-trial silence. The latter would not necessarily infringe on the presumption of innocence.Para 59. "This distinction," argues PJ Schwikkard,