SHOULD MAGISTRATES TAKE DOWN CONFESSIONS?

Section 217(1) of the Criminal Procedure Act 51 1977 (the Act) sets forth requirements for admissibility a confession made by any person in relation to commission an offence. 217(1)(a) provides that where is peace officer who not magistrate or justice peace, such must be confirmed reduced writing presence magistrate. Pursuant section 217(1)(b), has been and magistrate, it deemed admissible evidence upon mere production (ss (b)(i)); presumed, unless contrary proved, accused freely voluntarily, while she he was her his sound sober senses, without having unduly influenced making (b)(ii)).In S v Zuma (1995 (1) SACR 568 (CC)), Constitutional Court found 217(1)(b)(ii) violated right fair trial as embodied 25(3) Constitution Republic South Africa, 1996 Constitution). It longstanding principle both English African law state bore burden proving on which wished rely voluntarily made. placed balance probabilities recorded free voluntary. This section, therefore, created legal rebuttal – so-called “reverse onus”.The court held common rule requiring prove integral inherent remain silent after arrest, compelled make confession, compellable witness against oneself. These rights are necessary reinforcement prosecution guilt beyond reasonable doubt. Reversing proof seriously compromises undermines these rights. The thus declared provisions 200 1993 interim Constitution) invalid.In authors’ view, with Court’s decision Zuma, principal rationale sections (b) seems have fallen away. After all, main reason specifically provide would ease process need test its at trial-within-a-trial. whether if contests presiding hold trial-within-a-trial bears onus probabilities.This raises possibility did exist prior namely whom can called authors question conducive central tenets judicial function independence impartiality magistrates take confessions required testify matter persons challenge taken down magistrates.