The legal implications of S v Ndhlovu and Litako v S on the South African law of hearsay evidence: A critical overview

• Jurisdiction: South Africa
• Author: ‘Mampolokeng’ Mathuso Mary-Elizabeth Monyakane
• Pages: 308-332
• Citation: (2016) 29 SACJ 308
• Published date: 24 May 2019
• Date: 24 May 2019

The legal implications of

S v

Ndhlovu

and

Litako v S

on the South

African law of hearsay evidence: A

critical overview

‘MAMPOLOKENG’ MATHUSO MARY-ELIZABETH

MONYAKANE* and STEVEN MOSWETSI MONYE**

ABSTRACT

The change in course on the ad mission of extra- curial statement s in S v

Ndhlovu in 20 00 caused concern about the cor rect way admissions of co -

accused are to be admit ted by the courts. Whilst many writer s believed that

s 3 (1)(c) of the Law of Evidence Amendm ent Act 45 of 1988 accommodated

admissions of co-acc used against another, the ca se of Litako v S pointed

out the anomalies that m itigated against that posit ion. This art icle supports

the view in Litako v S that corr ected the earlier position of t he court. It is

the argument in th is article that cour ts should not make out cases for the

state and that it is the dut y of the prosecution to establish a c ase to answer

for each accused person, whether co -accused or not. It is fur ther argued

that the Law of Evidence Amend ment Act never repealed the common-

law principles regarding adm issions, and that, if th at were the case, the

legislature should have expressly done so. Fur thermore, it is argued t hat

the approach in S v Ndhlovu opened too wide s 3 of t he Law of Evidence

Amendment Act.

1 Introduction

In 2000 the case of S v Ndhlov u 1 dramatically changed2 how the

admission of extra-c urial statements was dealt with u nder common

la w.3 It was the rst judgment to accept th at extra-curia l admissions

could be allowed within the prescripts of s 3 of t he Law of Evidence

Amendment Act 45 of 1988. The legal consequence of this judgment

* BA Law (NUL) LLB (N UL) LLM (UOFS) LLM (Stellen bosch), Senior Lectu rer, Law of

Evidence: Depart ment of Criminal and Proce dural Law, UNISA, and Advocate of the

High Court of Sout h Africa.

** B Criminal Just ice (Unibo) LLB (UNW ) LLM (UOFS). Lecturer, Law of E vidence:

Department of C riminal a nd Procedural Law, UNISA .

1 S v Ndhlovu 2002 (2) SACR 325 (SCA).

2 Ponnan J in Litako v S [2014] 3 All SA 138 (SCA) refer red to this change as repr esenting

a ‘seismic shift i n our law’. See para [42].

3 The Supreme Court o f Appeal judgment concludes the high cour t matter of the year

2000 in S v Ndhlovu 2001 (1) SACR 85 (W).

308

(2016) 29 SACJ 308

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was that, although confessions could be admitted on ly against the

maker, extra-curial ad missions could be presented to the court again st

any person implicated by the maker, even when the maker chose not

to testify, or disavowed the statements. This also implied th at a co-

accused who has been implicated in an admi ssion by another accused

could be found guilty on the basis of such a statement, even when

the maker distanced him or hersel f from making such a statement.

Indirectly, the co-accused so implicated would be requi red to challenge

the admissibility of such a st atement under the hearsay rules.

Even though the applicants argued in S v Molimi4 eight years later

that it was unconstitutional to di fferentiate between the admissibilit y

of confessions and admissions, and pointed out the procedural

irregularit y of s 219A of the Criminal Procedure Act 51 of 1977, the

court did not make a ruli ng on whether this argument was correct

or not. This left the state of law expressed in N dhlovu untouched.

Earlier attempts to question the logic in Ndhlo vu, although obiter

dictum, were made by Ponnan J in Balkwell v S5 a nd Spilg J in S v

Mangena.6 The remarks were not taken seriously. As a result other

courts7 followed the decision in Ndhlovu w ithout question. Thus it

continued to be regarded as a principle that changed the common-law

denition of the admissibil ity of hearsay for almost 14 years. It was

cited with approval by courts as well as legal writers, who endorsed

the nding of t he courts.8

In April 2014 when deciding Litako, the Supreme Cour t of Appeal,

presided over by Ponnan J amongst other judges, reconsidered the

ruling in Ndhlo vu, and found it lacking i nsofar as hearsay evidence is

concerned.

This article evaluates the Li tako9 holding. It will a rgue for the Litako

principle as a clarication of the pur pose of the law of evidence in

general; and in particul ar, as determining the role of admissions

4 S v Molimi 2008 (2) SACR 76 (CC).

5 Balkwell v S [2007] 3 Al l SA 465 (SCA) at paras [32]-[35].

6 S v Mangena 2012 (2) SACR 170 (GSJ) at para [70].

7 For examp le, S v Mamushe [2007] 4 Al l SA 972 (SCA); Mpungose v S (460/10) [2011]

ZASCA 60 (31 March 2 011); S v Saeed [2012] JOL 29299(FB) at para [41]; S v Libazi

2010 (2) SACR 233 (SCA).

8 Apart from cour ts, various evidence writers expr essed a view that actually sugges ts

that it is appropriate to subj ect the extra- curial adm issions to the provisions of s 3

of the Law of Evidence Ame ndment Act 45 of 1988. See BC Naudé ‘Admissibi lity

of extra-cu rial statement s against a non-tes tifying acc used’ (2008) 29 Obiter 247 at

250, who, the authors understa nd is, commenting, as fa r as the current pr inciple

under scruti ny, that the principle in S v Ndhlovu is a p ositive development and

that this good move mus t also include admis sibility of confes sions. See as well,

M Watney ‘Admissibility of ex tra-curi al admissions as he arsay evidence again st a

co-accused’ 20 08 TSAR 834.

9 Litako v S supra (n2) at para [27].

The legal implications of S v Ndhlovu and Litako v S on the

South African law of hearsay evidence: A cricital overview 309

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