S v Mhlongo; S v Nkosi

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
• Judgment Date: 25 June 2015
• Citation: 2015 (2) SACR 323 (CC)
• Docket Number: CCT 148/14 [2015] ZACC 19
• Counsel: D Jordaan for the applicants at the request of the court. N Carpenter for the state.

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and Tshiqi AJ C concurring):

Introduction

[1] The central issue is the admissibility of extra-curial statements of an accused against a co-accused in a criminal trial. It arises in two D applications in which the applicants seek leave to appeal against their convictions and sentences. This court is called upon to determine the constitutional validity of the admissibility of these statements.

[2] On 25 March 2015 this court made the following order:

'1.

Condonation is granted for the late filing of the applications for E leave to appeal.

2.

Leave to appeal is granted in respect of both applications.

3.

The appeals are upheld.

4.

The order under case No CAF 08/2012 of the full court of the North West High Court, Mafikeng, is set aside to the extent set out below:

(i)

F The appeals by the second and fourth appellants against their convictions and sentences on counts 1, 2, 4 and 5 are upheld.

(ii)

Their convictions and sentences on those counts are set aside.

5.

The applicants must be released from prison immediately.

6.

Reasons for this order shall be given at a later date.'

G It was in the interests of justice to release the applicants prior to the handing down of these reasons. Paragraph 6 of the order recorded that reasons would be given at a later date. These reasons are set out below.

Factual background

H [3] On 3 August 2002, the deceased, Warrant Officer Johannes Dingaan Makuna, was shot at his home. It was alleged that the applicants were part of a group of men who shot Mr Makuna and planned to steal his bakkie. He died later in hospital. At the time, the deceased had been in possession of his service pistol. It was never recovered.

Trial court proceedings I

[4] Arising out of this incident, the applicants (accused Nos 2 and 4), together with six co-accused, [1] stood trial before a single judge in the

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and Tshiqi AJ concurring)

North West High Court, Mafikeng (trial court), [2] on charges of murder A (count 1), robbery with aggravating circumstances (count 2), attempted robbery (count 3), unlawful possession of firearms (count 4) and unlawful possession of ammunition (count 5). In the alternative to murder they were charged with conspiracy to commit robbery in contravention of s 18(2)(a) of the Riotous Assemblies Act. [3] They B pleaded not guilty to the charges. The trial commenced in 2003 and continued into 2004.

[5] A trial-within-a-trial was held to determine the admissibility of extra-curial statements made by accused Nos 1, 3, 6 and 7. The C admissibility of these statements was contested by the accused on the basis that they were not made freely and voluntarily but under threat of assault or promise of reward. The court nevertheless ruled that the statements were admissible. It also found that the statements were admissions and not confessions, [4] and admissible against the other D accused in terms of s 3(1)(c) of the Law of Evidence Amendment Act [5] (Evidence Amendment Act). In this regard the High Court relied on Ndhlovu, where the Supreme Court of Appeal held that such statements were admissible in terms of the Evidence Amendment Act. [6] The evidence supporting the conviction of the applicants was based almost exclusively on the extra-curial statements made by their co-accused. [7] E

[6] The trial court found that the accused had a common purpose to murder and rob the deceased and convicted them of four of the five counts. [8] On 22 July 2004 they were sentenced to life imprisonment for F the murder; 15 years' imprisonment for the robbery; and three years' imprisonment in respect of each of the two remaining charges relating to possession of the firearms and ammunition. The sentences imposed for counts 2, 4 and 5 were ordered to run concurrently with the life sentences. The accused were acquitted of the alternative charge of conspiracy to commit robbery. G

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and Tshiqi AJ concurring)

Full court and Supreme Court of Appeal A

[7] The accused appealed to the full court against their convictions and sentences. [9] The appeal was largely grounded on the inadmissibility of the extra-curial statements. [10] It was dismissed, amongst other reasons, B on the ground that the hearsay evidence of Mr Thabo Matjeke (accused No 1) and Mr George Makhubela (accused No 3), which was relied on to convict the applicants, became 'automatically admissible' because these accused confirmed portions of the statements in their oral testimony. The full court concluded that the statements —

'(are) not hearsay evidence but evidence envisaged in section 3(1)(b) of C the [Evidence Amendment] Act. Once the declarant of the statement confirms it under oath, the evidence becomes automatically admissible. The question of whether the interests of justice require it, has no application here.' [11]

D [8] The court ruled that the statement of Mr Samuel Khanye (accused No 7) [12] was admissible in the interests of justice, as provided for in s 3(1)(c) of the Evidence Amendment Act, and it was corroborated by aspects of the testimony of Mr Matjeke and Mr Makhubela. The full court also found that there was no reason to interfere with the sentences E imposed.

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and Tshiqi AJ concurring)

[9] A petition to the Supreme Court of Appeal for leave to appeal was A dismissed. The applicants then applied for leave to appeal to this court.

In this court

[10] Although the applicants submitted two separate applications, their B legal submissions are virtually identical. The primary basis of each application is that the admission of extra-curial statements against co-accused violates constitutionally protected rights to equality [13] and to a fair trial. [14]

[11] The state concedes that in terms of the common law an accused's C extra-curial statement is inadmissible as evidence against a co-accused. It further concedes that the Supreme Court of Appeal in Litako, [15] which took a different approach from Ndhlovu, was correct in confirming the common-law prohibition against the use of extra-curial statements against co-accused. However, the state suggests that s 3 of the Evidence D Amendment Act might render such statements admissible, provided that the requirements set out in Ndhlovu are complied with. The state concedes, however, that both the High Court and full court did not properly apply the guidelines set out in Ndhlovu.

[12] The state argues that, as the applicants were charged, in the E alternative, with conspiracy to commit robbery, the common-law exception to the inadmissibility of hearsay evidence was relevant. In terms of this exception, vicarious admissions or extra-curial statements made in furtherance of a conspiracy are admissible against a co-accused without violating fair trial rights. [16] While the state ultimately agrees that this exception is not applicable to the facts of this case, it asks the court to pronounce on the continued existence of this exception. F

Condonation

[13] The applicants seek condonation for the late filing of their applications G for leave to appeal. Their counsel, Mr Jordaan, appeared at the request of the court. [17] The court is indebted to him for his assistance in this matter.

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and Tshiqi AJ concurring)

A [14] The petition to the Supreme Court of Appeal was refused on 6 August 2013. Mr Mhlongo filed his application for leave to appeal to this court on 8 September 2014 and Mr Nkosi on 10 September 2014.

[15] The applicants have been incarcerated for over a decade and do not have sufficient financial resources to fund an appeal of this nature. They B applied to Legal Aid South Africa for assistance with their intended appeal to this court, but without success. Eventually a fellow prison inmate, a law student, assisted the applicants to draft their application to this court. The explanation advanced for the delay is reasonable and, when measured with the prospects of success, the interests of justice dictate that condonation should be granted.

Leave to appeal C

[16] The primary question for consideration, whether the Constitution permits the admission of an extra-curial statement by an accused against a co-accused in a criminal trial, was not directly before the trial court or D the full court. In Molimi this court was presented with a similar situation and declined to decide the issue. It was reluctant to act as court of first and last instance on a contentious issue when it had not been fully ventilated. [18] Although the constitutional challenge now before us was not raised or considered by the courts below, we have had the benefit of full argument from counsel, and the Supreme Court of Appeal has had E an opportunity to consider the same question, albeit in other matters. [19]

[17] This matter engages this court's jurisdiction as it implicates the rights to equality before the law and to a fair trial. These are fundamental rights protected in the Bill of Rights. The issue at the heart of this appeal, F namely the constitutional tenability of the decision in Ndhlovu, which allows extra-curial statements to be admitted against a co-accused if it is in the interests of justice to do so, is a constitutional issue and is of significant public importance. Accordingly it is in the interests of justice for this court to grant leave to appeal.

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