S v Mhlongo; S v Nkosi

• Jurisdiction: South Africa
• Citation: 2015 (2) SACR 323 (CC)

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

2015 (2) SACR p323

Citation	2015 (2) SACR 323 (CC)
Case No	CCT 148/14; [2015] ZACC 19
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
Heard	March 10, 2015; March 25, 2015
Judgment	June 25, 2015
Counsel	D Jordaan for the applicants at the request of the court.; N Carpenter for the state.

Flynote : Sleutelwoorde

Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — Admissibility as C 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 D democratic society — Common-law position that extra-curial confessions and admissions by accused were inadmissible against co-accused to be restored.

Headnote : Kopnota

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 E 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 F 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 G

2015 (2) SACR p324

A 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; B [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 C 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. (Paragraphs [27]–[31] at 333f–335c.)

Held, further, that the differentiation between accused implicated by confessions D 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 E and freedom. (Paragraph [37] at 337d–e.)

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. (Paragraph [38] at 337f–338a.) F Appeals upheld.

Cases cited

Southern Africa

Blom and Another v Brown and Others [2011] 3 All SA 223 (SCA) ([2011] ZASCA 54): dictum in para [21] applied G

Casserley v Stubbs 1916 TPD 310: referred to

Da Silva v Road Accident Fund and Another 2014 (5) SA 573 (CC) (2014 (8) BCLR 917; [2014] ZACC 21): dictum in para [7] applied

Dhanabakium v Subramanian and Another 1943 AD 160: referred to

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): dicta in paras [42] – [43] applied H

Johannesburg Municipality v Cohen's Trustees 1909 TS 811: referred to

Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759; [1997] ZACC 5): dicta in paras [24] – [26] read with para [56] applied

R v Baartman and Others 1960 (3) SA 535 (A): followed I

R v Barlin 1926 AD 459: followed

R v Becker 1929 AD 167: dicta at 171 – 172 discussed

R v Cilliers 1937 AD 278: referred to

R v Hans Veren and Others 1918 TPD 218: discussed

R v Levy and Others 1929 AD 312: referred to

R v Matsitwane 1942 AD 213: followed J

2015 (2) SACR p325

R v Mayet 1957 (1) SA 492 (A): referred to A

R v Miller and Another 1939 AD 106: referred to

R v Nkosi and Zulu 1959 PH H91 (A): referred to

S and Another v Acting Regional Magistrate, Boksburg and Another 2011 (2) SACR 274 (CC) (2012 (1) BCLR 5; [2011] ZACC 22): referred to

S v Balkwell and Another [2007] 3 All SA 465 (SCA) ([2007] ZASCA 91): dicta in paras [30] – [36] approved B

S v Davids [2014] ZASCA 74: referred to

S v Ffrench-Beytagh 1972 (3) SA 430 (A): referred to

S v Hlapezula and Others 1965 (4) SA 439 (A): referred to

S v Khumalo 1998 (1) SACR 672 (N): referred to

S v Kimberley and Another [2005] ZASCA 78: referred to

S v Libazi and Another 2010 (2) SACR 233 (SCA) ([2010] ZASCA 91): C dicta in paras [9] – [16] approved

S v Litako and Others 2014 (2) SACR 431 (SCA) ([2014] 3 All SA 138; [2014] ZASCA 54): followed

S v Mamushe [2007] 4 All SA 972 (SCA) ([2007] ZASCA 58): referred to

S v Matjeke and Others [2013] ZANWHC 95: overruled on appeal

S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 (5) BCLR 451; D [2008] ZACC 2): applied

S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760; [2002] ZASCA 70): overruled

Weare and Another v Ndebele NO and Others 2009 (1) SA 600 (CC) (2009 (4) BCLR 370; [2008] ZACC 20): dictum in para [46] applied.

England E

R v Hayter [2005] 2 All ER 209 ([2005] UKHL 6; [2005] 1 WLR 605; [2005] All ER (D) 36; [2005] 2 Cr App R 3): dicta in paras [7] – [8] followed

R v Moore (1956) 40 Cr App R 50 (CCA): referred to

R v Rhodes (1960) 44 Cr App Rep 23: referred to F

R v Spinks [1982] 1 All ER 587 (CA) ((1981) 74 Cr App R 263): referred to

R v Turner 168 ER 1298 ((1832) 1 Mood CC 347): followed

Surujpaul (called Dick) v R [1958] 3 All ER 300 ([1958] 1 WLR 1050): referred to.

Legislation cited

Statutes G

The Constitution, 1996, ss 9(1) and 36: see Juta's Statutes of South Africa 2014/15 vol 5 at 1-27 and 1-30

The Criminal Procedure Act 51 of 1977, s 219A: see Juta's Statutes of South Africa 2014/15 vol 1 at 2-390

The Law of Evidence Amendment Act 45 of 1988, s 3, 3(1)(c) and 3(2): see Juta's Statutes of South Africa 2014/15 vol 1 at 2-842. H

Case Information

D Jordaan for the applicants at the request of the court.

N Carpenter for the state.

An application for leave to appeal from convictions and sentences in the North West High Court, Mafikeng (Leeuw J). I

Order

1.

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

2.

Leave to appeal is granted in respect of both applications. J

i2015 (2) SACR p326

3.

A 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)

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

(ii)

B 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.

Judgment

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)

...