Recent Case: Law of evidence

• Jurisdiction: South Africa
• Pages: 402-414
• Date: 24 May 2019
• Citation: (2015) 28 SACJ 402
• Published date: 24 May 2019
• Author: Lirieka van der Walt

Law of evidence

LIRIEKA MEINTJES-VAN DER WALT

University of Fort Hare

The admissibility of an extra curial admission by one co-

accused against another

S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC)

Introduction

The admissibilit y of extra-cur ial statements made by an accused

against a co-accused i n a criminal t rial has long been a vexed issue

in South Africa n law (S v Ndhlovu 2002 (2) SACR 325 (SCA); Litako

v S 2014 (2) SACR 431 (SCA)) and formed the crux of this case. To

understand the signicance of the Con stitutional Court dec ision in

S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC); it is important to

contextualise the case. T he decision in Ndhlovu supra was seen as a

‘seismic shift in our law’ (see Ponnan JA in Lita ko supra at para [42])

in respect of the admission of ext ra-curial s tatements of a co-accused

against any person implicated by the maker, even if the maker decided

not to testify or to recant the adm ission. In Ndhlovu it was held that

extra-cur ial statements that could be categorised as adm issions, could

become admissible hearsay evidence in terms of s 3 of the L aw of

Evidence Amendment Act 45 of 1988 (in this part referred to as ‘t he

Act’), even if the maker of the statement denies making it. The Ndhl ovu

decision has been subjected to criticism in subse quent Supreme Court

of Appeal judgments (Balkwell v S [2007] 3 All SA 465 (SCA) at paras

[32]–[35] (minority judgment); S v Libazi 2010 (2) SACR 233 (SCA) at

para [14]) and was nally rejected in Litako supra, where the common-

law rule excluding the use of extra-c urial statements made by one

co-accused against anot her was endorsed.

402 SACJ . (2015) 3

(2015) 28 SACJ 402

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