Informal admissions.

Chapter 16.
Introduction.
• 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, whereas informal
admissions merely constitute an item of evidence that can be
contradicted or explained away.
• As a general rule an admission is not admissible against anyone except
its maker.
• An informal admission is a statement that is usually made extra-
judicially, but it may also be made in court without the intention of
reducing the facts in issue.
• Normally it is made by a litigant, but it could also be a statement by a
third party to the detriment of a litigant, which is attributed to the
litigant.
• Unlike a formal admission, an informal admission is adduced as
evidence, usually by a person who heard or saw the admission.
Requirements for Admissibility
• In civil matters there is only one general requirement for admissibility,
and that is relevance. Relevance is a foundational requirement for the
admissibility of all evidence.
• In criminal matters an admission must be proved to have been made
voluntarily before it can be admitted into evidence.
Admissions by Conduct
• An admission is not necessarily an oral or written account of the facts
admitted.
• Any conduct by a party which is relevant to an issue in the case may be
proved against that party as an admission.
• S v Shepard and Others 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.
• In Moriarty v London, Chatham and Dover Railway Co (1870) LR 5 QB 314
323, 14 Digest (Repl) 419 4086, the plaintiff's attempts to bribe witnesses
were viewed as an admission of the falsity of his allegations.
• An admission made under compulsion is inadmissible.
• An admission must be a communication confirming a prejudicial fact.
The communication may be by words or conduct.
• Conduct that does not amount to a communication but from which a
prejudicial fact may be inferred, is not an admission but circumstantial
evidence.
• Such conduct is admissible simply because it is relevant and does not
have to be tested against the admissibility requirements for
admissions.
• However, conduct does not need to be positive to constitute an
admission, and an admission may be inferred from silence.
Admissions by silence.
• Silence in the face of an accusation may amount to an admission
when it forms the basis of a common-sense inference against a party.
• Silence may, in certain circumstances, amount to an admission, such
as where it suggests that a party is unable to explain suspicious or
incriminating circumstances.
• The nature of the inference that can be drawn from silence will always
depend on the surrounding circumstances.
• But in criminal cases, in particular, there are complicating factors.
• The first is that it is important to establish the relevance of an
accused's silence.
• He may have reasons for keeping silent which have nothing to do with
a consciousness of guilt: it could mean that the accused did not
believe an accusation to be worth answering, or it could be shock,
surprise or confusion on his part.
• Section 35(1) of the Constitution now gives any person who is
arrested for allegedly committing an offence the right both "to remain
silent" and to be "informed promptly" of the right and of the
"consequences of not remaining silent".
• The right to remain silent can be described as the absence of a legal
obligation to speak.
• The right to remain silent is necessary to give effect to the privilege
against self-incrimination and the presumption of innocence.
• In S v Thebus & another 2003 (2) SACR 319 (CC) Moseneke J held that
"[i]n our constitutional setting, pretrial silence of an accused person
can never warrant the drawing of an inference of guilt", and that "an
obligation on an accused to break his or her silence or to disclose a
defence before trial would be invasive of the constitutional right to
silence“.
• HOWEVER: if there is evidence that requires a response and if no
response is forthcoming, the court may be justified in concluding that
the evidence is sufficient, in the absence of an explanation, to prove
the guilt of the accused. See S v Thebus and Another supra at [58].
• Admissions may also be excluded in terms of s 35(5) of the
Constitution which provides for the exclusion of evidence obtained in
violation of the Bill of Rights.
Alibi defence in criminal trials
• Justifiably limits the right to remain silent.
• Though no inference of guilt may be drawn from late raising of an alibi
defence, little weight may be attached to the evidence of the alibi
defence.
• A distinction must be drawn between an inference as to guilt and the
effect of late disclosure on the evaluation of the weight to be
accorded the alibi evidence.
• Late disclosure precludes the prosecution from properly investigating
the alibi defence. As a result, the alibi evidence will not be fully tested
and less weight must be attached to it.
Failure to cross-examine.
• In certain circumstances the failure to cross-examine may also
constitute an informal admission.
• The failure to challenge the admissibility of the evidence at trial
precluded the appellant from challenging its admissibility at the
appeal stage. S v Boesak 2001 (1) SACR 1 (CC).
Vicarious admissions
• Under the common law, an out of court statement by a third party is in
principle not admissible against a party to litigation.
• It would be hearsay evidence, and if the third party were to testify, it would
in any event normally be considered an irrelevant previous consistent
statement.
• Therefore an admission by a third party could not be held against a litigant.
• Only the litigant's own admissions could be used against him.
• There were, however, some exceptions to this rule of inadmissibility.
• A third party's extra-curial statement would be admissible (and this is still
the case) if the litigant adopted or ratified it and thereby effectively made it
his own.
• One consequence of the enactment of the Evidence Amendment Act
45 of 1988, which altered the law relating to hearsay evidence, was
that vicarious admissions had to be reassessed.
• The admissibility of extra-curial admissions made by a person who is
not a party to the suit will depend solely on whether the statement is
exceptionally admissible as hearsay in terms of s 3(1) of the Law of
Evidence Amendment Act.
• The leading case in this connection is that of Mdani v Allianz
Insurance Ltd 1991 1 SA 184 (A) in the Appellate Division.
• Although there was some criticism of the judgment in Mdani,47 it
was followed in Makhathini v Road Accident Fund 2002 1 All SA 413
(A) and the matter must now be considered settled.
Statements Made Without Prejudice.
• The general rule in civil matters is that an admission will be accepted into
evidence provided that it is relevant.
• However, admissions included in a statement by a person involved in a
dispute and which are genuinely aimed at achieving a compromise are
protected from disclosure.
• Such admissions may only be accepted into evidence with the consent of
both parties.
• The rationale of the rule is based on public policy which encourages the
private settlement of disputes by the parties themselves.
• A “without prejudice” offer will only be protected from disclosure if it is
made in good faith.
Admissions by the Accused.
The requirements for admissibility.
• Part of s 219A of the CPA provides:
• “Evidence of any admission made extra-judicially by any person in
relation to the commission of an offence, shall, if such admission does
not constitute a confession to that offence and is proved to have been
voluntarily made by the person, be admissible in evidence against him
at criminal proceedings relating to that offence . . .”
• An extra-curial admission of an accused is inadmissible against a co-
accused and that s 219A of the CPA does not contemplate an extra-
curial admission being received against anybody else other than its
maker. NB: S v LITAKO 2014 SACR 431 (SCA).
• At common law an extra-judicial statement made by an accused may not be
admitted into evidence unless it is proved to have been made freely and
voluntarily. S v Cele 1965 (1) SA 82 (A)
• In this context the words “freely and voluntarily” have a technical and
restricted meaning and an admission will be found to be involuntary only if it
has been induced by a promise or threat proceeding from a person in
authority.
• A threat or a promise will be found to have been made if a person, by means
of words or conduct, indicates to the accused that they will be treated more
favourably if they speak, or less favourably if they don’t.
• The test of whether the threat or promise actually affected the accused’s
freedom of volition is subjective.
• It follows from the subjective nature of the test that the threat or promise
must be operative on the mind of the accused at the time that the admission
is made.
• Clearly, an admission induced by violence or a threat of violence will
not be admissible, nor will an admission made in response to a
promise of lenient treatment be admitted.
• However, an admission made under police interrogation will not
necessarily be inadmissible. It will be excluded only if on the facts it
appears that it was induced by a threat or promise.
• In the absence of Supreme Court of Appeal authority to the contrary,
there would appear to be no reason for further restricting the
concept of “person in authority” to mean only a person capable of
influencing the course of the prosecution.
Plea proceedings.
Section 115.
• What is the evidentiary value of an admission made by an accused who
pleads not guilty and makes certain admissions in response to questions
raised by the presiding officer, but does not consent to having them
recorded as formal admissions or is not asked whether he so consents?
• In S v Sesetse en ’n Ander 1981 (3) SA 353 (A) the Appellate Division held
that in these circumstances the state is still required to prove the facts
admitted in the informal statement. However, the court held that such
informal admissions still constitute probative material.
• This means that it can be proved against the accused in evidence, it can
be the subject of cross-examination, and its probative value will be
assessed in the light of all the surrounding circumstances.
Section 112
• The status of s 112 admissions that are subsequently retracted is not
entirely clear.
• In S v Sewela the appellant had initially pleaded guilty in terms of s
112 of the CPA and handed in a written statement in terms of s 112(2)
admitting to a number of facts relevant to establishing guilt.
• He was convicted on the basis of s 112(2) but prior to sentencing
proceedings indicated that he wished to change his plea in terms of s
113 of the CPA.
• In doing so the accused handed in a written statement clearly
indicating that his s 112(2) had not been made voluntarily and was
false.
• On appeal the issue to be determined was whether the admissions
made in terms of s 112(2) were admissible.
• Goldstein J held that the state had failed to discharge its burden of
proving voluntariness and consequently the court a quo had erred in
taking the accused’s s 112(2) admissions into account.
The burden of proof.
• In accordance with the presumption of innocence, the prosecution
bears the burden of proving beyond a reasonable doubt that the
accused made an admission freely and voluntarily.
• Trial within a trial – The admissibility of an admission is determined
at a “trial within a trial”. At this stage of the criminal proceedings both
the defence and the prosecution will lead evidence as to the
circumstances in which the admission was obtained. The presiding
officer will then make a determination with regard to admissibility.
The contents of the statement are irrelevant until admissibility has
been determined.