EXTRA CURIAL CONFESSIONS AND ADMISSIONS INADMISSIBLE

S v MHLONGO;
S v NKOSI 2015 (2) SACR 323 (CC)

Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — Admissibility as against accused of extra-curial statement by co-accused — Differentiation between accused implicated by confessions and those implicated by admissions could not be lawfully sustained — Such differentiation not designed to achieve any legitimate purpose and was irrational distinction which violated s 9(1) of Constitution and could not be saved by limitations clause since not reasonable and justifiable in open and democratic society — Common-law position that extra-curial confessions and admissions by accused were inadmissible against co-accused to be restored.

Two applicants in applications for leave to appeal against their convictions and sentences were tried in a High Court on a number of counts, including murder and robbery with aggravating circumstances. They were convicted on some of the counts and sentenced to terms of imprisonment which included sentences of life imprisonment. Their convictions were substantially based on the extra-curial statements of their co-accused, whose evidence was accepted by the court after a trial-within-a-trial held to determine the admissibility of those statements. Their appeal to the full court was unsuccessful, the court holding that the extra-curial statements relied on to convict the applicants became ‘automatically admissible’ as those accused confirmed portions of the statements in their oral testimony. The court also ruled that the statement of one of the co-accused was admissible in the interests of justice as provided for in s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 (the Evidence Amendment Act). In the present application it was contended on behalf of the two applicants that the Constitution did not permit the admission of an extra-curial statement by an accused against a co-accused as it infringed an accused’s fundamental rights protected in the Bill of Rights. It was contended that the relaxation of the common-law rule that an extra-curial statement by an accused was inadmissible against a co-accused, in the case of S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760; [2002] ZASCA 70), was wrongly decided.
Held, that the reasoning in S v Ndhlovu could not be supported for a number of reasons: (1) it did not deal with the common-law rule against allowing admissions to be tendered against a co-accused and the court appeared to assume that the hearsay aspect of the evidence was its major pitfall and could be rescued by s 3 of the Evidence Amendment Act; (2) the court did not deal with the provisions of s 3(2) of the Evidence Amendment Act; (3) the court did not seem to have regard to the provisions of s 219A of the CPA which expressly allowed an admission to be admitted only against its maker and was silent regarding other persons; and (4) the court seemed not to have had regard to whether the Evidence Amendment Act had altered the common law.
Held, further, that the differentiation between accused implicated by confessions and those implicated by admissions could not be lawfully sustained. The differentiation was not designed to achieve any legitimate purpose and was an irrational distinction which violated s 9(1). It could not be saved by the limitations clause contained in s 36 of the Constitution since this restriction of the right to equality before the law was not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Held, further, that the interpretation adopted in S v Ndhlovu created a differentiation that unjustifiably limited the s 9(1) right of accused implicated by such statements, and that the common-law position prior to that decision, namely that extra-curial confessions and admissions by an accused were inadmissible against co-accused, had to be restored. Appeals upheld.

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