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

JurisdictionSouth Africa
Author‘Mampolokeng’ Mathuso Mary-Elizabeth Monyakane
Pages308-332
Citation(2016) 29 SACJ 308
Published date24 May 2019
Date24 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that the Law of Evidence Amend ment Act never repealed the common-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
© Juta and Company (Pty) Ltd
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
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
© Juta and Company (Pty) Ltd

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