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Bluebook 21st ed.

F. G. Richings, Admission of Facts Outside a Party's Knowledge, 92 S. AFRICAN L.J.
246 (1975).

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F. G. Richings, Admission of Facts Outside a Party's Knowledge, 92 S. African L.J.
246 (1975).

APA 7th ed.

Richings, F. F. (1975). Admission of facts outside party's knowledge. South African
Law Journal, 92(3), 246-250.

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Journal 92, no. 3 (August 1975): 246-250

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F. G. Richings, "Admission of Facts Outside a Party's Knowledge" (1975) 92:3 S
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246 THE SOUTH AFRICAN LAW JOURNAL

ADMISSION OF FACTS OUTSIDE A PARTY'S KNOWLEDGE

'[Wihat a party himself admits to be true', said Parke B in Slatterie v

Pooley (1840) 6 M & W 664 at 669 (151 ER 579 at 581), 'may reasonably
be presumed to be so.' But is this necessarily the case where the facts
admitted lie outside the knowledge of the party in question? This is of
particular importance in prosecutions where the charge is one of
unlawfully possessing, or dealing in, substances such as dependence-
producing drugs, liquor, or uncut diamonds in contravention of
statute. In the absence of the substance as an exhibit at the trial, and,
therefore, of expert testimony as to its nature, may the State rely on an
admission by an accused, who lacks the necessary qualifications to speak
thereto?
In S v Coyne 1974 (4) SA 957 (E) the accused had been charged in the
magistrate's court with the crime of dealing in heroin in contravention
of s 2(a) of the Abuse of Dependence-producing Substances and
Rehabilitation Centres Act 41 of 1971. In support of the charge, the
State called two witnesses, who testified that on at least two occasions
the accused had injected them with a solution prepared by dissolving
tablets in water. At this juncture, the accused formally admitted that the
tablets had contained heroin and that he had administered the injections
to the two witnesses, and altered his plea to guilty. He was duly con-
victed and, after his previous convictions for possessing dagga had been
proved, was sentenced to eight years' imprisonment.
On appeal, the appellant's counsel applied for leave to lead further
evidence in order to establish that the solution derived from the tablets
could not, in fact, have contained heroin. This was refused, Kotz6 J
holding (at 958F-G) that '[i]n view of the categorical concession [sic]
made on behalf of the accused at his trial' there had been ample proof
of the nature of the tablets and the conviction could not be attacked on
this ground. However, as it appeared from the evidence that the
accused was a person who qualified for admission to a rehabilitation
centre in terms of s 29(1)(a) of the Act, the conviction and sentence were
set aside so that the appropriate inquiry before a magistrate could be
held.
A contrary conclusion was recently arrived at in Australia, in a case
noted in the (1973) 47 Australian LJ 395. The writer of the note says:
'The identification of an organic plant material or psychotropic drug requires
expertise and skill, not generally possessed by laymen. The statement, therefore,
that "I have smoked pot" is no more than the belief, by the smoker, that the
material he ingested was the plant cannabis sativa and contained the drug tetra-
hydrocannibinol.... In Queensland in a recent case, Police v Jones, Haupt SM
refused to commit for trial an accused charged with possession of a pipe [for use in
connection with the administration or consumption of a dangerous drug] which
was chemically "clean", merely on the statement by the accused that he had used
that pipe for smoking cannabis, on the basis that the accused, having no scientific
qualifications, was unable to say whether what he had smoked was cannabis or
not' (at 395).
RECENT CASES 247
Although it has to be accepted that expert testimony is normally
required to identify a substance such as dagga or heroin -at least where
its identity is put in issue (see S v Malefane 1974 (4) SA 613 (0); Police v
Drury [1974] 2 NZLR 493)-it would appear from the authorities that
the Australian case was incorrectly decided and that such an admission,
be it formal or informal, will not be excluded by an accused's lack of
expert knowledge.

(a) Formal admissions

In South Africa provision is made by s 15 of the Civil Proceedings
Evidence Act 25 of 1965 for formal admissions in civil cases. Such
admissions, which are normally made for the purpose of shortening the
proceedings, are conclusive, in that it is not competent for a party to dis-
prove a fact thus admitted without the leave of the court (C W H
Schmidt Die Bewysreg (1972) 156). This confirms the common-law
position (see The Buteshire [1909] P 170; Phipson on Evidence 11 ed (1970)
21). In criminal cases formal admissions dispensing with proof were not
permitted at common law (see R v Thornhill (1838) 8 C & P 575 (173
ER 624); Cross on Evidence 3 ed (1967) 137). In South Africa, however,
in terms of s 284(1) of the Criminal Procedure Act 56 of 1955 such
admissions may be made either by the accused or his legal representa-
tive. A similar provision has now been introduced in England by s 10 of
the Criminal Justice Act 1967 (c 80). In the case of these admissions, it is
submitted, the question of personal knowledge does not arise, as this is
nowhere stated to be a requirement for admissibility. On this basis,
Coyne's case was correctly decided. A formal admission is a waiver of
proof.
(b) Informal admissions
In civil matters a long line of English decisions has held that admis-
sions not based on personal knowledge are nevertheless admissible (see
Digby v Steel (1811) 3 Camp 115 (170 ER 1324); Rees v Bowen (1825)
M'Cle & Yo 383 (148 ER 461); Hayslep v Gymer (1834) 1 A & E 162
(110 ER 1169); Bishop ofMeath v Marquess of Winchester (1836) 4 Cl & F
445 (7 ER 171); Trimlestown (Lord)v Kemmis (1843) 9 Cl & F 749 (8 ER
601); Bulley v Bulley (1874) LR 9 Ch 739). This is also the view taken by
Cross op cit 434-5 and Wigmore Evidence 3 ed IV § 1053. The principle
underlying these decisions was stated in the American case of Kitchen v
Robbins 29 Ga 713 at 716 (1880) as follows:
'Admissions do not come in on the ground that the party making them is speaking
from his personal knowledge, but upon the ground that a party will not make
admissions against himself unless they are true. The fact that he makes them against
his interest can be reasonably explained only on the supposition that he is con-
strained to do so by the force of the evidence. The source from which a knowledge
of the facts is derived, is a circumstance for the jury to consider, in estimating the
value of the evidence, but that is all.'
248 THE SOUTH AFRICAN LAW JOURNAL

But as was stated by the High Court of Australia in the leading case of
Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 143-4:
'When admitted in evidence... its probative force must be determined by reference
to the circumstances in which it is made and may depend altogether upon the party's
source of knowledge. If it appears that he had no knowledge, or that, although he
had some means of knowledge, he had formed no certain or considered belief and
indicated nothing amounting to a personal judgment or conclusion of his own, the
probative force of the admission may be so small that a jury ought not to be
allowed to act upon it alone, or in preference to opposing evidence.'
It seems, therefore, that while such statements are admissible, the
weight to be attached to them will vary from case to case depending on
the circumstances. In Smith vJoyce (1954) 89 CLR 529 it was held by the
High Court of Australia that an admission by an employer that his
employee had been negligent was admissible in an action for damages
against the former, for although he had no personal knowledge of the
circumstances in which the plaintiff had been injured, he must have
been satisfied after making inquiries that this was in fact so.
In criminal cases, however, courts-at least in England-have dis-
played a reluctance to rely on admissions of this nature. In Surujpaul v
The Queen [1958] 3 All ER 300 (PC), [19581 1 WLR 1050, an appeal to
the Privy Council from British Guiana, the appellant had been con-
victed of being an accessory before the fact to the murder of a policeman
in that he had counselled or procured his death at the hands of his
co-accused. The co-accused had been acquitted of committing the
murder, but the appellant had been convicted, partly on the basis of a
statement he had made to the police in which he admitted that his
co-accused had committed it. The Board held that, as this admission
was based on hearsay, it could not be used against him and, further, that,
as the commission of murder by any of the co-accused had not been
proved, the appellant could not be found guilty of having counselled
them to commit it. The conviction was accordingly set aside. In the
more recent Privy Council case of Comptroller of Customs v Western
Lectric Co Ltd [1966] AC 367 (PC), an appeal from the Supreme Court
of Fii, the company had been convicted before a magistrate of making
a false declatation on a customs import entry form about the country of
origin of certain goods. The effect was to qualify the goods for a
preferential tariff. In order to prove the falsity of the declaration, the
prosecution relied upon an admission made by an authorized agent of
the company a few days later to the effect that the origin of the goods
had been wrongly declared, this being based on markings and labels on
the goods in question. In affirming the judgment of the Supreme Court
setting aside the conviction, the Board held (per Lord Hodson at
371E-F) that
'... the conviction ought not to be allowed to rest on the admission alone. If a man
admits something of which he knows nothing it is of no real evidential value.
'The admission made by the respondents' agent was an admission made upon
reading the marks and labels on those goods and was of no more evidential value
than those marks and labels themselves.'
RECENT CASES 249
It is difficult to reconcile these two cases with the earlier decision of
R v Turner [1910] 1 KB 346 (CCA) at 362, in which it was held that a
statement by an accused as to his age would be sufficient proof of that
fact to qualify him for declaration as an habitual criminal. And in the
Canadian case of R v Schmidt [1948] 4 DLR 217, [1948] SCR 333 an
admission out of court by an accused charged with incest as to his
degree of relationship to the complainant was held by the Supreme
Court to be sufficient to prove that fact, Kerwin J stating that 'admis-
sions are not subject to the rule for testimonial qualifications of personal
knowledge'. It seems that the reluctance of the court in the Surujpaul
and Western Lectric cases to rely on the accused's admissions stemmed
from the peculiar circumstances of each case-the one a crime for which
the death penalty had been imposed and the other a crime of strict
liability in which the bona fides of the company was no defence-and
that they cannot be read as excluding such admissions in all criminal
cases.
Admissions of facts outside a party's knowledge have been held
admissible in a number of South African cases as prima facie proof. In
R v Swart 1932 TPD 168 the accused had been convicted of the statu-
tory offence of inciting another person to buy unwrought gold. In
order to prove the existence of the gold, the Crown had relied on the
accused's statement to the intending purchaser that he had a quantity
for sale. On appeal it was urged that the Crown had not proved that the
material in question was gold, but this was rejected by the court.
Tindall J said (at 170):
'it seems to me that that argument cannot succeed.... It seems to me that in a
prosecution of this kind, in the absence of any evidence by the appellant in regard
to the nature of the material in question, the court is entitled to take the appellant at
his word.'
The same principle was applied in R v Panter1932 TPD 121 (incitement
to buy uncut diamonds) and Engel v Race Classification Board & another
1967 (2) SA 298 (C) (an admission as to the appellants' racial origins).
Proof of an accused's or the complainant's age is always of importance
in cases where, for example, an accused is charged with carnal know-
ledge of a girl under the age of 16 or where a particular punishment may
not be imposed on an accused above or below a certain age. Here,
although a statement by an accused as to his own or another's age is
clearly hearsay (see R v Corris 1931 TPD 471), the State, apparently,
may tender such a statement as an admission to prove the fact asserted
(see R v Franciset Cie 1933 TPD 233).
The only contrary view in South Africa is a dictum of Van Blerk JA
in Van LutterveldvEngels 1959 (2) SA 699 (AD) at 702H to the effect that
an admission by a defendant to a paternity suit that he is the father of
the child 'is ... geen bewys van sy vaderskap nie, want so 'n erkenning
kan slegs gebaseer wees op 'n vermoede aan sy kant omdat hyself geen
sekerheid daaromtrent kon gehad het nie'. But in the light of the
25U THE SOUTH AFRICAN LAW JOURNAL

authorities, this statement does not seem to be correct.

In conclusion, it appears (a) that the admission of a fact outside a
party's knowledge is receivable against him; (b)that this applies equally
in civil and criminal proceedings; and (c)that the weight to be attached
to each admission will vary, depending on the circumstances in which
it was made.
F G RICHINGS

DIFFCULTIES IN SAPRO V SCHLINKMAN

The decision in Sapro v Schlinkman 1948 (2) SA 637 (AD) has given
rise to much discussion: seeJ C de Wet &J P Yeats Die Suid-Afrikaanse
Kontraktereg en Handelsreg 3 ed (1964) 273n(r); A J Kerr The Law of
Lease (1969) 121-4; W E Cooper The South African Law ofLandlord and
Tenant (1973) 143-4; and AJ Kerr 'Incompatible Remedies for Breach
of Contract: Is Lease a Special Case?' (1973) 90 SALJ 228 at 230-2. The
decision was reviewed again, obiter, in Alphedie Investments (Pty) Ltd v
Greentops (Pty) Ltd 1975 (1) SA 161 (T) at 164-5.
Before exanining the approach in the Aiphedie Investments case, one
must recall that in Sapro's case the lessor (plaintiff in the court a quo,
respondent in the Appellate Division) sued the lessees (defendants in the
court a quo, appellants in the Appellate Division) for, inter alia, -§576,
which was claimed to be the balance owed on rental payments up to
28 February 1947. Following a breach of the lease by the lessor, the
lessees' attorneys had written conditionally cancelling the lease from
31 May 1947. (Note that in Sapro's case Davis AJA (at 642) said that on
receipt of the further incomplete document on 5 February 1947 the
lessees 'repeated the terms of their letter of 6 January': for the terms of
the second letter, which is clearer than the first, see (1973) 90 SALJ 228
at 231). As the lessees cancelled only from the 31 May they remained in
occupation, presumably at least until that date. Neither the report of the
decision a quo (Schlinkman v Van der Walt & others 1947 (2) SA 900 (E))
nor that of the decision in the Appellate Division discloses when they
actually left. This is not surprising, as the hearing in the court a quo took
place on 22 May 1947, ic before the date set in the conditional notice of
cancellation had arrived.
The passage in the Alphedie Investments case which requires comment
appears at 164E-F (italics in original):
'For the proposition that rent can be claimed for occupation simpliciter after termina-
tion of a lease the court [in Tooth v Maingard & Mayer (Pty) Ltd 1960 (3) SA 127 (N)]
relied, inter alia, on Sapro v Schlinkman 1948 (2) SA 637 (AD). But in Sapro's case
the situation dealt with was one where the tenant remained in occupation after the
lessor had committed a breach of the contract and the tenant had purported to
cancel the contract (see especially at 644 and 646). The legal nature of a tenant's
liability to compensate his lessor in respect of occupation after the contract had been
effectively cancelled by agreement or by notice of termination duly given was not
in terms adverted to in the judgment, nor was the question of proper pleading in
relation to such a situation considered.' (Per Hiemstra J, Botha J concurring.)