Should magistrates take down confessions?

Abstract

Section 217(1) of the Criminal Procedure Act 51 of 1977 (the Act) sets forth the requirements for the admissibility of a confession made by any person in relation to the commission of an offence. Section 217(1)(a) provides that where a confession is made to a peace officer who is not a magistrate or a justice of the peace, such a confession must be confirmed or reduced to writing in the presence of a magistrate. Pursuant to section 217(1)(b), where a confession has been made to a magistrate or has been confirmed and reduced to writing in the presence of a magistrate, it is deemed to be admissible in evidence upon mere production (ss (b)(i)); and presumed, unless the contrary is proved, that the accused made the confession freely and voluntarily, while she or he was in her or his sound and sober senses, and without having been unduly influenced in making it (ss (b)(ii)).