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 admissibility of extra-curial statements made by an accused

against a co-accused in a criminal trial has long been a vexed issue

in South African 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 Constitutional Court decision in

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

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

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

in respect of the admission of extra-curial statements of a co-accused

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

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

extra-curial statements that could be categorised as admissions, could

become admissible hearsay evidence in terms of s 3 of the Law of

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

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

decision has been subjected to criticism in subsequent 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-curial statements made by one

co-accused against another was endorsed.

402 SACJ.(2015) 3

(2015) 28 SACJ 402

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