S v Molimi

JurisdictionSouth Africa
Citation2008 (3) SA 608 (CC)

S v Molimi
2008 (3) SA 608 (CC)

2008 (3) SA p608


Citation

2008 (3) SA 608 (CC)

Case No

CCT 10/07

Court

Constitutional Court

Judge

Langa CJ, Moseneke DCJ, Madala J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van Der Westhuizen J, Yacoob J and Mpati AJ

Heard

August 23, 2007

Judgment

March 04, 2008

Counsel

CE Thompson for the applicant, instructed by the Johannesburg Justice Centre.
GL Roberts (with R Vos) for the respondent.
S Budlender for the amicus curiae.

Flynote : Sleutelwoorde B

Criminal procedure — Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — Extra-curial statements of accused against co-accused in criminal trial — Admissibility considered in context of rules of hearsay evidence in C Act 45 of 1988, s 3, as well as right to fair trial and need to prevent procedural abuse.

Criminal procedure — Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — Preconditions laid down in s 3 designed to ensure that hearsay D evidence received only if interests of justice so require — Court to have regard to all factors mentioned in s 3(1)(c), and must also be careful to ensure respect for fair trial rights set out in s 35(3) of Constitution, 1996 — In casu court a quo hardly dealing with factors listed in s 3(1)(c), and paying insufficient attention to applicant's fair trial rights — Court a quo incorrectly concluding that unexplained late admission of hearsay evidence not E prejudicial to applicant — Remaining evidence against applicant insufficient to justify conviction — Conviction and sentence set aside.

Criminal procedure — Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — In criminal proceedings, timeous and unambiguous ruling on admissibility of evidence being procedural safeguard — Beyond question that ruling on F admissibility after accused testifies likely to have adverse effect on his right to fair trial — Applicant having right to know case against him, to cross-examine authors of statements, and not to be expected to challenge hearsay evidence that not only inadmissible, but disavowed under oath by those giving it — Improper admission of inadmissible evidence resulting in fundamental prejudice to applicant.

Headnote : Kopnota

G The applicant stood trial in the High Court as the second of three accused, and was ultimately convicted of robbery, two counts of murder, attempted murder and related firearms charges. The crucial evidence implicating the applicant was contained in two statements, made after their arrest by accused 1 and 3, respectively. According to these statements, the H applicant - who was the manager of the store which had been robbed - had been intimately involved in the planning and execution of the offences. The admissibility of both these statements was contested in the trial court on the grounds that they had not been made freely, voluntarily, and without undue influence but, following trials-within-a-trial, both were admitted. In its judgment, the trial court admitted the statements against the applicant on I the basis of their probative value and that it was in the interests of justice to do so.

The applicant challenged his conviction in the Supreme Court of Appeal (SCA) on the grounds that the two statements ought not to have been admitted against him because of their hearsay character. The SCA set aside certain of his convictions but upheld others, concluding that there had been no J prejudice to the applicant, nor had the fairness of trial been compromised.

2008 (3) SA p609

In a further appeal to the Constitutional Court the following points arose for A determination: whether the statements made by accused 1 and 3 were confessions or admissions; whether the statements were admissible against the applicant; whether the trial court and the SCA had complied with s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 (the Act); and what the appropriate consequence was.

Held, that, while the statement of accused 1 had been understood at the trial as B constituting a confession, the SCA had dealt with both this statement and that of accused 3 as extra-curial admissions. However, a perusal of accused 1's statement, read with his warning statement, clearly established that it was an unequivocal admission of guilt and, accordingly, a confession. Since s 219 of the Criminal Procedure Act 51 of 1977 provided that no confession made by any person was to be admitted as evidence against C another person, accused 1's confession should have been excluded by both the trial court and the SCA when determining the guilt or otherwise of the applicant. As to the statement of accused 3, objectively viewed it amounted to an admission. It showed that accused 3 had not taken an active part in the robbery, and it had been open to him to raise a defence of dissociation from the common purpose to rob: it could not, therefore, be said to have D amounted to an unequivocal acknowledgment that he had participated in the robbery. Accused 3's statement was an admission, rather than a confession, and had been correctly accepted as such by both the trial court and the SCA. The question then arose as to whether accused 3's admission ought to have been admitted against the applicant in terms of s 3(1) of the Act. (Paragraphs [29] - [32] at 622D - 625C.) E

Held, further, that the preconditions laid down in the Act for the reception of hearsay evidence were designed to ensure that such evidence was received only if the interests of justice required its reception. A court determining whether it was in the interests of justice to receive hearsay evidence must have regard to all the factors mentioned in s 3(1)(c) of the Act, and must also be careful to ensure respect for the fair trial rights set out in s 35(3) of F the Constitution of the Republic of South Africa, 1996. In casu the SCA had hardly dealt with the factors listed in s 3(1)(c) of the Act, and had paid attention only to certain of the safeguards laid down by that court in S v Ndhlovu and Others 2002 (6) SA 305. It had also paid insufficient attention to the applicant's fair trial rights. While it had correctly acknow- ledged that vague provisional rulings on the admission of hearsay might be G prejudicial to an accused, it had found that the 'inexplicit' and late admission of the hearsay in casu had not been prejudicial to the applicant. (Paragraphs [35] - [38] at 626B - 627H.)

Held, further, that the SCA had been incorrect in observing that counsel for the applicant should have asked the trial judge for clarity regarding the admissibility of the hearsay evidence before deciding whether his clients H should testify in their defence. The statement had not been admitted against the applicant, and counsel had no duty to ask for clarification. It was the prosecutor and the trial judge who had failed to discharge their legal duties - a timeous and unambiguous ruling on the admissibility of evidence in criminal proceedings was a procedural safeguard. (Paragraphs [39] - [41] at 627I - 628E.) I

Held, further, that it was beyond question that a ruling on the admissibility of evidence after the accused had testified was likely to have an adverse effect on the accused's right to a fair trial. Proceedings in which little or no respect was accorded to the fair trial rights of the accused had the potential of undermining the fundamental adversarial nature of judicial proceedings and could threaten their legitimacy. In order for the applicant to have J

2008 (3) SA p610

A received a fair trial he must have known what the case against him was; he must have been able to cross-examine the authors of the statements to test their credibility and truthfulness; and he ought not to have been expected to challenge hearsay evidence that was not only inadmissible against him, but which had been disavowed under oath by those who had given it. Accordingly, neither the trial court nor the SCA had complied with the B approach enunciated in Ndhlovu nor with the requirements of s 3(1) of the Act. The improper admission of inadmissible evidence had resulted in fundamental prejudice to the applicant. Rather than having been admitted, everything said out of court by accused 3 incriminating the applicant ought to have been disregarded entirely. (Paragraphs [42] - [44] at 628F - 629E.)

Held, further, that the remaining admissible evidence did not amount to a C complete mosaic justifying the applicant's conviction. The evidence contained in cellphone records, while incriminating, could not, without further evidence, create a sufficient basis upon which to convict the applicant. In the result, no matter how strong the suspicion of the applicant's complicity in the commission of these crimes might have been, his conviction had to be set aside. (Paragraphs [51] - [54] at 631D/E - 632E.)

D Appeal upheld. Conviction and sentence set aside.

Cases Considered

Annotations

Reported cases

Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) (1998 (4) BCLR 415): referred to

Christian Education South Africa v Minister of Education 1999 (2) SA 83 (CC) (1998 (12) BCLR 1449): referred to E

Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd 2007 (5) BCLR 453 (CC): referred to

Dormehl v Minister of Justice and Others 2000 (2) SA 987 (CC) (2000 (5) BCLR 471): F referred to

Du Toit v Seria 2006 (8) BCLR 869 (CC): referred to

Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC) (1996 (2) SACR 113; 1996 (6) BCLR 788): referred to

Lane and Fey NNO v Dabelstein and Others 2001 (2) SA 1187 (CC) (2001 (4) BCLR 312): referred to

Makhathini v Road...

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26 practice notes
  • S v Molaudzi
    • South Africa
    • Invalid date
    ...([2015] ZACC 19): followed S v Molaudzi 2014 (7) BCLR 785 (CC) ([2014] ZACC 15): overruled on appeal F S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 (5) BCLR 451; [2008] ZACC 2): referred S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760; [2002] ......
  • S v Mzwempi
    • South Africa
    • Invalid date
    ...2009 (1) SACR 631 (C): referred to S v Mgedezi and Others 1989 (1) SA 687 (A): discussed and applied S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 (5) BCLR 451): H referred to S v Motaung and Others 1990 (4) SA 485 (A): referred to S v Musingadi and Others 2005 (1) SACR 395 (SCA):......
  • Savoi and Others v National Director of Public Prosecutions and Another
    • South Africa
    • Invalid date
    ...discussed S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793; [1995] ZACC 4): referred to S v Molimi 2008 (3) SA 608 (CC) (2008 (2) SACR 76; 2008 (5) BCLR 451; [2008] ZACC 2): referred to D S v Ndhlovu and Others 2002 (6) SA 305 (SCA) (2002 (2) SACR 325; [2002......
  • Savoi and Others v National Director of Public Prosecutions and Another
    • South Africa
    • Invalid date
    ...and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793; [1995] ZACC 4): referred to S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 (5) BCLR 451; [2008] ZACC 2): referred S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; I [2002] 3 All SA 760; [2002] ZA......
  • Request a trial to view additional results
24 cases
  • S v Molaudzi
    • South Africa
    • Invalid date
    ...([2015] ZACC 19): followed S v Molaudzi 2014 (7) BCLR 785 (CC) ([2014] ZACC 15): overruled on appeal F S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 (5) BCLR 451; [2008] ZACC 2): referred S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760; [2002] ......
  • S v Mzwempi
    • South Africa
    • Invalid date
    ...2009 (1) SACR 631 (C): referred to S v Mgedezi and Others 1989 (1) SA 687 (A): discussed and applied S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 (5) BCLR 451): H referred to S v Motaung and Others 1990 (4) SA 485 (A): referred to S v Musingadi and Others 2005 (1) SACR 395 (SCA):......
  • Savoi and Others v National Director of Public Prosecutions and Another
    • South Africa
    • Invalid date
    ...discussed S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793; [1995] ZACC 4): referred to S v Molimi 2008 (3) SA 608 (CC) (2008 (2) SACR 76; 2008 (5) BCLR 451; [2008] ZACC 2): referred to D S v Ndhlovu and Others 2002 (6) SA 305 (SCA) (2002 (2) SACR 325; [2002......
  • Savoi and Others v National Director of Public Prosecutions and Another
    • South Africa
    • Invalid date
    ...and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793; [1995] ZACC 4): referred to S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 (5) BCLR 451; [2008] ZACC 2): referred S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; I [2002] 3 All SA 760; [2002] ZA......
  • Request a trial to view additional results
2 books & journal articles
  • Recent Case: Law of evidence
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...Neither did the court in casu consider itself as being bound by the Constit utional Court judgment S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 (5) BCLR 451) as it had no ‘direct bearing’ to the cur rent question, or by the test set out in S v Ndhlovu 2002 (2) SACR 325 (SCA) (at ......
  • Recent Case: Law of Evidence
    • South Africa
    • Juta South African Criminal Law Journal No. , March 2021
    • 4 March 2021
    ...during cross-examination was automatically also rejected. He argued that this was contrary to the nding in S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC); 2008 (5) BCLR 451 (CC) at para [54], where Nkabinde J explained that it is essential to the fairness of trials that accused persons kno......

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