About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 54
|
|
Litako and Others v S (584/2013) [2014] ZASCA 54; [2014] 3 All SA 138 (SCA); 2014 (2) SACR 431 (SCA); 2015 (3) SA 287 (SCA) (16 April 2014)
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO:584/2013
Reportable
In
the matter between:
MOSES
MOSHE
LITAKO
...................................................................................
First
Appellant
THABO
MBAOLA
...........................................................................................
Second Appellant
PHILEMON
GUMEDE
......................................................................................
Third
Appellant
GREATERMAN
MORONGWA MATHLARE
.................................................
Fifth Appellant
NDABUKO
DOCUS
SIMAMANE
......................................................................
Sixth
Appellant
and
THE
STATE
................................................................................................................
Respondent
Neutral
Citation:
Litako & others v S
(584/2013)
[2014] ZASCA 54
(16 April 2014).
Coram:
Navsa, Ponnan, Leach & Petse JJA
and Swain AJA
Heard:
7 March 2014
Delivered:
16 April 2014
Summary: Evidence
–
s 3
of the
Law of Evidence Amendment Act 45 of 1988
–
extra–curial admission of one accused not admissible against
another – discussion of applicable legal principles
–
S
v Ndhlovu
& others
2002 (2) SACR 325
(SCA)
reconsidered.
ORDER
On
appeal from
: The North West High Court,
sitting at Rustenburg Circuit Court (Hendricks J sitting as court of
first instance).
The
following order is made:
The
appeal is upheld and the convictions and sentences are set aside.
JUDGMENT
Navsa
& Ponnan JJA
(
Leach
& Petse JJA, Swain AJA concurring
):
[1]
During the night of 4 February 2007, at Mmatau Village in the
district of Madikwe, North West Province, the owner of the White
House Tavern and one of her patrons were robbed of R5 000 and
their cellular telephones. Another patron, Mr Godfrey Moleta
Ngema,
was assaulted. During the robbery, shots were fired as a result of
which Mr Ben Seretse Motshwaedi (the deceased) was killed.
The five
appellants and a co-accused (the fourth accused in the court below,
who has not prosecuted an appeal)
[1]
were arrested and, in relation to the events described above, were
charged in the North West High Court with murder; two counts
of
robbery with aggravating circumstances; assault with intent to do
grievous bodily harm; four counts of possession of firearms
in
contravention of
s 3
read with
ss 1
,
103
,
117
,
120
(1)(
a
)
and Schedule 4 of the
Firearms Control Act 60 of 2000
; and finally,
one count of unlawful possession of ammunition, in contravention of
s
90
read with
ss 1
,
103
,
117
,
120
(1)(
a
),
121 and Schedule 4 of the
Firearms Control Act. In
the summary of
substantial facts attached to the indictment, the State alleged that
the appellants had acted in furtherance of
a common purpose in
perpetrating the offences.
[2]
In respect of the robbery charges it was alleged in the indictment
that the owner of the tavern, Ms Christinah Sibanda, was
robbed at
gunpoint of R5 000 in cash and a cellular telephone and that the
patron, Mr Bafana Elias Tshose, was assaulted and
robbed of his
cellular telephone.
[3]
The appellants pleaded not guilty to all the charges. At the end of
the ensuing trial they and their co-accused were convicted
by
Hendricks J as follows:
(i) The first, third
and sixth appellants as well as their co-accused were convicted on
the murder count and on the two counts of
robbery.
(ii) The second
appellant was convicted on the murder count, the two counts of
robbery and the count of unlawful possession of ammunition.
(iii)
The fifth appellant was convicted on the murder count, the two counts
of robbery and one count of unlawful possession of a
firearm.
[4]
The accused were convicted principally on the basis of a statement
made by the first appellant to a magistrate which, although
exculpatory in respect of him, implicated the other appellants to a
greater or lesser degree. The first appellant contested the
admissibility of the statement, denying the truth of its content and
that it had been freely and voluntarily made. Although the
first
appellant testified during a trial-within-a-trial held to determine
the admissibility of his statement, he did not testify
in his defence
in relation to the merits of the case against him. The other
appellants and their co-accused all testified and denied
any
involvement in the events on which the charges were based.
[5]
The appellants and their co-accused were sentenced as follows:
(i) On the murder
count, each to life imprisonment.
(ii) On each count
of robbery, the appellants were sentenced to 15 years’
imprisonment.
(iii) Their
co-accused was sentenced to 20 years’ imprisonment on each of
the robbery counts.
(iv) The second
appellant was sentenced to two years’ imprisonment in respect
of the conviction of unlawful possession of
ammunition.
(v)
The fourth appellant was sentenced to five years’ imprisonment
for unlawful possession of a firearm and two years’
imprisonment for unlawful possession of ammunition.
[6]
The five appellants, with the leave of this court, appeal against
their convictions and related sentences.
[7]
It is necessary, at this stage, to set out in some detail the
evidence adduced in the court below. The first witness to testify
was
the tavern owner, Ms Sibanda. She testified that the incident in
question occurred on Sunday 4 February 2007 at approximately
22h00.
One of the robbers approached her wanting to purchase tobacco. After
handing it to him, she departed to drink water and
then heard the
report of a firearm. The door of the tavern was apparently struck.
Another bullet hit a window. Two other armed
robbers came in through
the back door and overpowered her. Her patrons were made to lie down
on the floor on the other side of
the counter. They threatened her
and asked for money which she handed over. It was an amount of
approximately R5 000. They
also took her cellular telephone.
[8]
Ms Sibanda’s description of the robbers who had taken the money
from her was insubstantial. She described one of them
as being tall
and dark in complexion. She testified that he had been wearing a cap
pulled towards his face so that it could not
be seen. She described
the second as being light in complexion. Asked whether she could
identify them, she answered in the affirmative.
It is common cause
that subsequent to the robbery Ms Sibanda attended an identification
parade at which she identified two persons
who were not any of the
accused in the court below. Her reason for what she now accepts was a
misidentification is that she had
suffered a dizzy spell and had been
‘over-frightened’. She did not, however, at that time
communicate this to the police.
In court, she was adamant that the
second appellant was one of the two robbers.
[9]
Under cross-examination, Ms Sibanda stated that the persons she had
identified at the identification parade looked like the
robbers who
had taken the money from her. Later, she realised that she had
identified the wrong people, but insisted in court that
‘they’
– the accused she saw in the dock – were the people who
had robbed her. The following part of her
testimony, under
cross-examination, is significant:
‘
I
did inform the second policeman that the people that I have pointed
out at the parade were not the correct people, now today when
I came
to court I then saw that they are here.’
[10]
Ms Sibanda was unable to explain her earlier contradictory testimony
that she had not informed the police about the misidentification
at
the identity parade. It appears from Ms Sibanda’s evidence that
the identification parade had been held shortly after
the robbery. In
a statement to the police Ms Sibanda was emphatic that the first
person she had identified at the identification
parade was the one
that had threatened her with a firearm, demanding money, and that the
second person she identified at the identification
parade was the one
that had both a firearm and a knife and that he was the person who
had taken the money. The reason provided
in her statement to the
police for identifying two people at the identification parade is as
follows:
‘
I
have pointed the two suspects because I spent plus seven minutes with
them.’
[11]
For the first time, whilst she was under cross-examination, Ms
Sibanda included the third appellant as being amongst the robbers.
In
explaining how she came to this belated awareness she said the
following:
‘
[I]
told this court that this thing has happened a long time back but now
as I am testifying their faces are now coming clearer
to my memory.’
[12]
Asked why she had not implicated the third appellant in her evidence
in chief, she responded as follows:
‘
I
do not know, My Lord, but as you are rewinding in your mind it then
come to you that now this one was also present.’
It
appears that she was then identifying the third appellant as the one
who had bought the tobacco from her.
[13]
Mr Tshose testified about how the robbers had made him and others lie
on the ground, had searched them and had taken a cellular
telephone
from him. He testified that during the incident the robbers had taken
the deceased to a separate room. Tshose too attended
an
identification parade at which he identified two people who had
robbed him. However, he looked at the accused in the dock and
said
the following:
‘
It
is the first time for me to see them today.’
This
meant that the people he identified at the identification parade were
not amongst the accused.
[14]
The next witness to testify in support of the State’s case was
Inspector Moses Lesenya. He testified that on 19 February
2007 he and
two colleagues were tracing a suspect in respect of a house robbery
and rape case in a township near Rustenburg. Whilst
driving in that
vicinity an informer pointed out two persons who they then pursued.
During the pursuit he saw one of them throw
something onto the grass.
They retrieved a Norinco 9 millimetre pistol which had five live
rounds of ammunition in its magazine.
Inspector Lesenya identified
the second appellant as the person from whom the firearm was
retrieved.
[15]
Inspector Stephen Rantsho testified that he had accompanied Inspector
Lesenya to investigate the house robbery and rape case.
His evidence
was largely in line with Inspector Lesenya’s. He confirmed that
a Norinco firearm and magazine and bullets were
found. He sent them
for forensic testing in a specially marked bag.
[16]
Captain Dennis Selabele testified that he was the investigating
officer and that he had arrested certain suspects, none of
whom
included the accused. He testified about how he had traced the
cellular telephone taken by the robbers from Mr Tshose. Following
on
reports received from cellular telephone service providers and after
preliminary investigations, he ultimately travelled to
Phokotweni
Section, Malukela Village in the North West Province. There he found
the cellular telephone in the possession of a woman
who told him that
she had obtained it from someone else, presently in Rustenburg. He
confronted that person who told him that he
had obtained it from yet
a further person. When that further person was approached he informed
Captain Selabele that he had obtained
it from Moses Litako, the first
appellant, who it appears had, at that time, already been arrested.
None of the other persons in
this hearsay chain were called as
witnesses.
[17]
Captain Selabele testified that when he asked the first appellant
about the cellular telephone, he was told by the latter that
he was
willing to make a clean breast of it and would make a statement about
his involvement in the incident in question.
[18]
Doctor Sobantu Nkosi testified that he had conducted a post-mortem
examination on the deceased and determined the cause of
death to be
gunshot injuries to the chest. He had recovered a bullet head that
was lodged in the deceased’s body. Mr Kuduku
Huma testified
that he had taken the bullet that had been retrieved from the
deceased’s body by the doctor and placed it
in an envelope
which he had marked with a distinctive number. Mr Huma was present
when the doctor recovered the projectile from
the deceased’s
body.
[19]
Captain Selabele also testified that he had received a bullet head
that had been removed by the State pathologist during the
post mortem
examination from the deceased’s body and sent for forensic
analysis. In this regard, he supplied a laboratory
number under which
the item had been despatched. He had also sent four firearms that he
had received from the South African Police
Service’s (SAPS)
stores to the forensic laboratory. The four firearms were a silver
and black Norinco 9 millimetre pistol
with four rounds of live
ammunition in the magazine, a black Forjas Taurus revolver with two
live rounds in the chamber, one black
9 millimetre Llama pistol with
three 9 millimetre rounds of live ammunition, and finally, a black
Norinco 9 millimetre pistol with
a holster and 19 rounds of live
ammunition.
[20]
Inspector Kleinbooi Ndlovu testified that on 11 February 2007 he was
on duty and on standby in respect of serious and violent
crime when
he received information from a complainant in an attempted murder
case concerning a suspect who had allegedly shot at
the complainant
with a firearm. He acted on that information to trace the suspect who
turned out to be the fourth appellant. He
travelled to a location
where he met the fourth appellant coming out of a shack in a back
yard. According to Inspector Ndlovu the
fourth appellant gave him
permission to search the shack. Inspector Ndlovu and a colleague
lifted a bed in the room and found a
firearm. The firearm that was
found was a 9 millimetre Norinco from which the serial number had
been erased. Its magazine contained
nine rounds of live ammunition.
They also found an additional magazine and additional rounds of live
ammunition. He seized the
firearm and the magazines and ammunition
and sent it for forensic testing. He could not recall the number
allocated to the forensic
bag in which the seized items were sent.
After a short adjournment, Inspector Ndlovu was able to supply the
number.
[21]
Inspector Abisai Molelekeng testified that he was called to the
tavern where the robbery had occurred and took photos of the
scene
and drew a sketch plan. Furthermore, he retrieved three bullet
casings and one bullet head which he put in an evidence bag
and
numbered.
[22]
Inspector Olebile Sereo, a ballistics specialist, testified about a
Norinco firearm which had been handed to him for investigation.
It
appears that all he had concluded was that the firearm operated
normally without any obvious defects. Captain Zachariah Makola,
also
a ballistics expert, testified concerning firearms and bullets that
he had received for ballistics testing. All of the evidence
that I
have just sketched was intended to link one or more of the accused to
the crime scene. But the chain evidence which sought
to link the
firearms and ammunition recovered to the ballistic tests conducted on
them was woefully inadequate. The evidence concerning
the ballistics
testing is conspicuously unhelpful. There is thus no acceptable
ballistics evidence linking any of the appellants
to the robbery in
respect of which they were charged. Before us, the State was
constrained to concede as much.
[23]
The State’s case therefor rested upon eyewitness evidence,
ballistics evidence and the extra-curial statement of the
first
appellant. The eyewitness and ballistics evidence in and of
themselves were inadequate to found a conviction on any of the
charges preferred against the appellants. The State’s case
therefor hinged on the extra-curial statement of the first appellant.
We turn now to deal with that statement.
[24]
The first appellant adopted the attitude that he had been forced by
the police to make the extra-curial statement referred
to above and
disputed its admissibility. The magistrate who took the statement
from the first appellant testified that he meticulously
followed the
procedure of informing him of his constitutional rights and took care
to enquire whether he had been assaulted or
in any other way
influenced to make a statement. It was only when he was satisfied
that this was not the case that he proceeded
to take the statement.
[25]
The first appellant testified that he had been assaulted by the
police and threatened in order to induce the statement upon
which the
State relied. At the end of a trial-within-a-trial the court
ruled the statement by the first appellant to be admissible.
In the
statement the first appellant describes a robbery that took place at
a tavern. According to the statement he had accompanied
his
co-accused in the belief that they were going to be buying and
consuming liquor. When they got to the tavern, and had been
there for
a while, he realised then that he was caught up in the middle of an
armed robbery perpetrated by his companions. According
to the
statement, several cellular telephones were taken during the robbery.
Put simply his statement exonerated him in respect
of the charges
that had been brought against them.
[26]
Hendricks J rejected the first appellant’s evidence that he had
been assaulted in order to induce the extra-curial statement.
He
thereafter held the statement to be admissible against his
co-accused, purportedly in terms of s 3 of the Law of Evidence
Amendment
Act 45 of 1988 (the Act).
[27]
The first appellant chose not to testify in his defence. All the
other accused testified and denied any involvement in the
incident.
It appears to us that all the appellants underwent cross-examination
unscathed.
[28]
In convicting the accused Hendricks J found the extra-curial
statement to be corroborative of the evidence of Ms Sibanda, and
without properly scrutinising the evidential chain in relation to the
forensic evidence, he concluded that the firearms found in
possession
of the second and fourth appellants were positively linked to the
robbery.
[29]
In relation to the statement by the first appellant being admitted
against the other accused, Hendricks J stated that he could
see no
prejudice to them, particularly as they had all been provided with a
copy of the statement before the trial commenced. In
his view, the
appellants could not complain about a trial by ambush. He referred to
the judgment of this court in
S v Ndhlovu
& others
2002 (2) SACR 325
(SCA) and the judgment of the Constitutional Court
in
S v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) as authority for
admitting the statement by the first appellant as evidence against
the others in terms of the provisions
of s 3(1)(
c
) the Act.
The following part of the judgment is significant:
‘
The
purpose of this Act is to allow the admission of hearsay evidence in
circumstances where the interests of justice dictates its
reception.
If the interests of justice requires the reception of hearsay
evidence the right of an accused person to challenge the
admissibility of the evidence does not include the right to
cross-examine the declarant.’
[30]
Hedricks J accepted that
Molimi
precluded the admission of a confession by one accused against his
co-accused. The learned judge emphasised, however, that in the
present case, unlike in
Molimi
,
the accused all knew in advance the extent of the evidence against
them. The court below held against the first appellant his
failure to
testify, and rejected the evidence of the other accused that they had
not been involved in the robbery. In relation
to the doctrine of
common purpose, the court had regard to the decision of this court in
S v Mgedezi
1989 (1) SA 687
(A) and concluded that all of the accused had acted
in concert in perpetrating the offences listed above.
[31]
The judgment in
Ndhlovu
featured prominently in the judgment of the court below. In
Molimi
the Constitutional Court, in dealing
with the admissibility of both admissions and confessions, pointedly
declined to pronounce
on the correctness of
Ndhlovu
.
As reflected in the judgment of the court below and in other
judgments discussed later, and as has become evident from a number
of
appeals in this court, the law in this area is not without its
complexities. For reasons that will become apparent, it is necessary,
in our view, to engage in a three-pronged exercise. First, a look at
the development of our law in relation to the acceptance of
evidence
in the form of confessions and admissions by a co-accused, and
consideration of the philosophy underlying certain
safeguards
and cautions both at common law and by way of statutory regulation is
called for. Second, the decision in
Ndhlovu
–
its ambit, application and
correctness – is subject to closer scrutiny
.
Finally, we will determine whether the
convictions in the present case were well-founded.
[32]
It is, in our view, instructive to have regard to the historical
position of admissions and confessions in English criminal
law,
particularly since the English law of procedure and evidence played
such an influential role in the development of our own
system of
criminal justice.
[2]
Following
on from the disaster that was the Star Chamber and the re-embracing
of a distaste for torture, the English have since
regarded the
privilege against self-incrimination as fundamental to their system
of justice. Concomitant is the rule that before
a confession may be
admitted, it must be proved to have been freely and voluntarily
made.
[3]
The following dictum
will, no doubt, strike a chord with most triers of fact and appeal
tribunals in South Africa:
‘
I
would add that for my part I always suspect these confessions, which
are supposed to be the offspring of penitence and remorse,
and which
nevertheless are repudiated by the prisoner at the trial. It is
remarkable that it is of very rare occurrence for evidence
of a
confession to be given when the proof of the prisoner’s guilt
is otherwise clear and satisfactory; but, when it is not
clear and
satisfactory, the prisoner is not unfrequently alleged to have been
seized with the desire born of penitence and remorse
to supplement it
with a confession; - a desire which vanishes as soon as he appears in
a court of justice.’
[4]
[33]
In the case of
R v
Moore
(1956) 40 Cr App Rep 50, CCA,
Goddard LCJ said the following at 54:
‘
[T]he
fact that he has pleaded Guilty is no evidence against his
co-prisoner. That was laid down by both Hale (
Pleas
of the Crown
, Vol. I, p. 585n.) and
Hawkins (
Pleas of the Crown
,
Book 2, c. 46, s. 34) and also in Tonge
(1662) 6 St.Tr. 225
, the
accepted principle being that a man’s confession is evidence
only against himself and not against his accomplices. If
a prisoner
pleads Guilty, it does not affect his co-prisoner.’
[34]
The decision of the Privy Council in
Surujpaul (called Dick) v R
[1958] 3 All ER 300
at 304A-B is of significance:
‘
A
voluntary statement made by an accused person is admissible as a
“confession”. He can confess as to his own acts,
knowledge or intentions, but he cannot “confess” as to
the acts of other persons which he has not seen and of which
he can
only have knowledge by hearsay. A failure by the prosecution to prove
an essential element in the offence cannot be cured
by an “admission”
of this nature.’
[35]
In relation to the admissibility of extra-curial admissions, the
Court of Criminal Appeal in the decision of
R v George Cecil
Rhodes
(1960) 44 Cr App Rep 23 at 28 spoke as follows:
‘
This
court has accordingly come to the conclusion that, by inviting the
jury first to consider the case against Mills in the light
of his
alleged admission and then, if they convicted Mills, to proceed to
deal with the case against Rhodes on the footing that
the two men
were together throughout the material time, the learned Chairman was,
for all practical purposes, negativing and nullifying
his previous
warning that Mills’ alleged admission was not evidence against
the appellant. Alternatively, and more simply
stated, it was a
misdirection to tell the jury that the conviction of Mills could be
regarded as forming any part of the case against
Rhodes.
Although
at first sight it might appear odd that, in the light of the evidence
given by the two co-defendants themselves, one should
go free while
the other is convicted, proof must precede conviction, and in our
judgment the offence charged, while proved against
Mills, was not
proved against Rhodes. For these reasons we thought it right to allow
Rhodes’ appeal and to quash his conviction.’
[36]
The decision in
R v Spinks
[1982] 1 All ER 587
(CA) at 589D-E
is similarly instructive:
‘
In
the judgment of this court the offence with which the appellant was
charged and the means of establishing it do not provide any
exception
to the universal rule which excludes out of court admissions being
used to provide evidence against a co-accused, whether
indicted
jointly or separately.’
[37]
The English common law, in relation to the admissibility of
extra-curial statements, is usefully summarised in the following
passage from Lord Hailsham of St. Marylebone
Halsbury’s Laws
of England
(4 ed, 1990) vol 11(2) para 1131:
‘
Confession
by one of two or more accused.
Where
several persons are accused of an offence, and one of them makes a
confession or an admission, that confession or admission
is evidence
only against the party making it. Where the statement is admissible,
the information in it may be used to extract from
an accused, in the
form of evidence on oath, all that he has formerly said about a
co-accused. Statements made, like acts done,
by one of several
accomplices or co-conspirators in pursuance of the common design, are
evidence against the others, but statements
which are not made in
pursuance of the common design are evidence only against the makers.’
There
have been fairly recent statutory developments in England which
appear not to affect these general propositions.
[5]
[38]
Unsurprisingly, our law relating to the admissibility of admissions
and confessions developed along the same lines. The prohibition
against the confession of one accused being used against another is
captured in s 219 of the Criminal Procedure Act 51 of 1977
(the CPA).
Admissions are regulated by s 219A of the CPA. It provides that
evidence of an admission made extra-curially by any
person in
relation to the commission of an offence shall, if such admission
does not constitute a confession of that offence and
is proved to
have been voluntarily made by that person, be admissible in evidence
against him at criminal proceedings in relation
to that offence. It
does not contemplate such an admission being tendered as evidence
against anyone else.
[39]
Up until the decision in
Ndhlovu
it had not been suggested that s 3 of the Act was applicable to an
admission made by one accused being admitted against his co-accused.
It is now necessary to consider decisions of this court leading up to
Ndhlovu
.
As far back as
R
v Matsitwane
1942 AD 213
, Centlivres JA
stated (at 218):
‘
Mr.
de Villiers
,
to whom the Court is indebted for arguing the case on behalf of the
accused, took as his first point that the statements made
by the
accused were not confessions of guilt. It is unnecessary to consider
whether this point is sound because, assuming that
the statements are
not confessions of guilt they contain certain admissions and recitals
of facts which are supported by evidence
aliunde
and which in the circumstances of the case are fatal to the accused .
. . Now each of the accused admitted in the statement made
by him
that he was present in the deceased’s house taking part in the
crime of housebreaking at the time when the deceased
was killed but
each tried to throw the blame for striking the fatal blow upon the
other. As the statement made by the one accused
is not evidence
against the other accused, it is necessary to consider each statement
separately in regard to each accused.’
The
learned Judge of Appeal added (at 220):
If
the statements contain admissions of fact material to the Crown case
such admissions can be used as evidence to prove these facts
but only
against the accused who made such admissions. Consequently, in
deciding the case against one of the accused the Court
can pay no
regard to the contents of the statement made by the other and it
follows that conflicts between the two statements are
irrelevant for
the purpose of coming to a decision.’
[40]
In
R v Baartman
1960
(3) SA 535
(A) this court considered the common law rule that an
extra-curial statement of one accused was inadmissible against a
co-accused.
At 542C-E the following appears:
‘
It
follows that Baartman and Kock were convicted because the trial Court
found on his confession that Honey [a co-accused] was one
of the
murderers, and that they had been in his company not long before and
not long after the murder. In so convicting Baartman
and Kock the
trial Court excluded from its consideration the statements in Honey’s
confession which directly implicated them,
but
it used the confession to establish an essential part of the chain of
inference leading to their conviction, namely, that Honey
had taken
part in the murder. This was clearly wrong.
The general principle is stated in
Wigmore
3
rd
ed., para. 1076. It is illustrated by
Rex
v. Turner
,
168 E.R. 1298.
In this Court
the case of
Rex v. Nkosi and Zulu
,
reported only at 1959 P.H. H.91 (A.D.), is much in point.
’
(Our emphasis.)
[41]
The relevant excerpt from the judgment of Hoexter JA in
Nkosi
cited with approval in
Baartman
reads:
‘
The
trial Court did not give any reasons for finding that,
as
against the second appellant
, the
evidence established that the first appellant had administered poison
to the deceased. It appears to have assumed that, because
the first
appellant had been convicted, it followed that the guilt of the first
appellant had been proved also as against the second
appellant. The
first appellant, however, would never have been convicted but for her
statement that she put the “muti”
into the sour milk of
the deceased. It follows that, in finding as against the second
appellant that the first appellant had administered
poison to the
deceased, the trial Court fell into the error of relying on the
statement of the first appellant, which was not admissible
against
the second appellant.’
[42]
As best as we can discern, the first reported case in which the State
appears to have invoked the Act in application to the
admissions of
one accused being tendered against his co-accused was
S
v Ndhlovu
2001 (1) SACR 85
(W) (per
Goldstein J) (
Ndhlovu
in the high court). On appeal to this court, Cameron JA identified
‘the main question in the appeal’ as ‘whether
an
accused’s out-of-court statements incriminating a co-accused,
if disavowed at the trial, can nevertheless be used in evidence
against the latter’. That question, as a perusal of the
judgment reveals, was answered, with reference to the Act, in the
affirmative. It thus represented a seismic shift in our law.
[43]
It is necessary to consider the facts of
Ndhlovu
more closely. In that case four accused were arraigned on charges of
murder and armed robbery. At the trial the eyewitnesses were
of no
assistance in identifying the perpetrators. The high court had regard
to extra-curial statements made by accused 3 and 4.
Both disavowed
the statements but, following a trial-within-a-trial, oral statements
attributed to accused 3 and a written statement
attributed to accused
4 were ruled admissible. The oral statement by accused 3 was that he
had told an arresting officer that he
was not alone when they ‘shot
a white man’. Accused 3 went on to state that there were four
of them but that he had
not pulled the trigger. Asked who did, he
answered ‘Vusi’, which later turned out to be accused 1.
Accused 3 also told
the police how the shooting had taken place and
how, after accused 1 had shot the man, they had taken his cellular
telephone and
run away. Accused 3 led the police to his co-accused. A
witness testified that he had purchased the cellular telephone of the
deceased
from accused 2 and 3.
[44]
In
Ndhlovu
,
the written statement by accused 4 implicated his co-accused as well
as himself in the murder and robbery. During the trial before
Goldstein J there was a constitutional challenge to the State’s
reliance on s 3 of the Act in tendering the oral and written
statements referred to above against the other co-accused. It is
clear that this court in
Ndhlovu
,
without more, proceeded to consider the constitutionality question
and ultimately found that the safeguards built into s 3(1)
of the Act
in permitting the use of hearsay evidence were such that they did not
offend against constitutional principles. In this
regard reference
was made to the law on this aspect in both Canada and the United
States of America.
[45]
In dealing with the provisions of s 3(1) of the Act, this court in
Ndhlovu
considered that a co-accused witness’ disavowal
of an extra-curial statement does not change the nature of the
essential enquiry,
which is whether the administration of justice
requires its admission. Moreover, this court held that the probative
value of that
extra-curial statement did not depend on the
credibility of such co-accused at the time of the trial, but on their
credibility
at the time of the arrest. At para 33 of the judgment the
following appears:
‘
And
the admissibility of those statements depended not on the
happenstance of whether they chose to testify but on the interests
of
justice.’
[46]
Ndhlovu
has, however, not found universal favour. Thus in
Balkwell v S
[2007] 3 All SA 465
(SCA) paras 32-35 (albeit in
a minority judgment) the following was said:
‘
My
anxiety stems from the seeming absence, in certain instances, of any
legal armoury at the disposal of a person who is implicated
by an
extra-curial statement of which he is not the maker, to counteract
the threat posed by it during the course of a subsequent
criminal
trial. If having made an extra-curial statement that implicates Y,
the maker of the statement (X) disputes its admissibility,
an
admissibility trial would ensue to determine whether or not the
contested statement is indeed admissible. To discharge the onus
resting upon it, namely to prove the statement admissible against its
maker X, the prosecution would have to meet the fairly stringent
requirements set respectively by
sections 217
and
219A
of the
Criminal Procedure Act. During
the course of the admissibility trial,
Y would ordinarily be but a passive bystander. If the statement is
ruled admissible but
its contents disavowed by X when he testifies,
how – it must be asked – does Y even begin to
cross-examine X. In those
circumstances it may well prove tactically
foolhardy for Y to put any questions to X, much less to test by
cross-examination the
veracity of the statement. The only reason, it
seems to me, for having fewer safeguards available to a person who is
not the maker
of a statement but who for some reason finds himself
implicated by its contents, is because it has historically been
accepted that
such a person is free of any risk from such a
statement. Where, however, a statement might ultimately weigh equally
in evidence
against the maker who has implicated himself in it, and
against another also implicated by it, to grant greater protection to
the
former than to the latter, would be irrational and indefensible.
And yet, that would be the effect of invoking
section 3
in this way.
If however, X had
confirmed the contents of his statement during his evidence, or not
having made an extra-curial statement, had
implicated Y during his
viva voce
testimony, then not only could his version be
legitimately tested under cross-examination by Y, but the cautionary
rules relating
to the receipt of such evidence would be invoked by
the trier of fact (see
S v Hlapezula
1965 (4) SA 439
(A) at
440D-H). One would have thought that the cautionary rules relating to
the reception of
viva voce
evidence of accomplices should
apply even more stringently to their extra-curial statements. But, no
such caution applies to an
extra-curial statement that implicates a
co-accused even though the inherent dangers of fabrication, or
substitution, downplaying
and exaggerating of roles, are no less
real. That, in those circumstances, an extra-curial statement which
has to pass a lower
threshold of scrutiny than
viva voce
evidence from the same source could be as damning as the latter is,
to my mind, incomprehensible.
The approach
postulated by my learned Sister is not without precedent. It has its
roots in the judgment of this Court in
S v Ndhlovu
2002 (6) SA
305
(SCA). In my view,
Ndhlovu
(
supra
) too readily
dismissed concerns expressed in
S v Ramavhale
1996 (1) SACR
639
(A), which cautioned (at 649C-D) that a court should hesitate
long in admitting hearsay evidence that plays a decisive or even a
significant part in convicting an accused person.
Ndhlovu
(
supra
)
makes no attempt to reconcile the incongruity between the bar created
by
section 219
of the
Criminal Procedure Act 51 of 1977
and its
application of
section 3
of the
Law of Evidence Amendment Act 45 of
1988
. Moreover, in dealing with the constituent parts of
section 3
,
Ndhlovu
offers no guidance as to how the receipt of the
extra-curial admissions which it allows under that section, should be
approached
given the rationale at common-law for their exclusion or
what role, if any, the various common-law safeguards should play. In
effect
it is as if a pen has been struck through those well
recognised common-law safeguards and they have been summarily
jettisoned.
What
is envisaged it seems in the case of an accused implicated by the
extra-curial statement of another, is that he should go into
legal
battle without the sword of cross-examination or the shield of the
cautionary rules of evidence. That can hardly conduce
to a fair
trial, as in my view, it impacts in a direct and substantial way on
the fairness of the process. Moreover, how is an
accused person to
regulate his conduct and to make informed choices about the conduct
of his defence? For, surely now his decision
to apply for a discharge
at the close of the prosecution’s case or to close his case
without testifying or to enter the witness-box
in his defence or to
call other evidence in his defence may well have to be informed not
just by the evidence implicating him in
the commission of the offence
charged and the strength or weakness of the prosecution’s case
but also by what is contained
in an extra-curial statement that has
in any event been disavowed by its maker in evidence.’
[47]
In
S v Mamushe
[2007]
4 All SA 972
(SCA) this court, while professing to approve of
Ndhlovu
,
nevertheless recorded in para 16, in accordance with what was stated
in
S v Ramavhale
1996
(1) SACR 639
(A), that it is axiomatic that courts apply considerable
restraint in allowing or relying on hearsay evidence against an
accused
person in criminal proceedings. We are constrained to point
out that in
Mamushe
this
court, with respect, wrongly concluded that
Ndhlovu
had held that
s 3(1)(
b
)
only renders an extra-curial statement admissible if it is confirmed
by the maker in evidence during the court proceedings.
[48]
S v Libazi & another
2010 (2) SACR 233
(SCA) appears to
have shared some of the reservations expressed in
Balkwell
, in
stating (para 14):
‘
An
even more compelling consideration militating against the wholesale
application of the rule in
Ndhlovu
is rooted in the injunction to courts to treat co-accused or
accomplice evidence with caution. While the prejudice to the accused
of admitting the co-accused statement is very high and limits
constitutional rights to challenge evidence and remain silent,
various
cautionary rules operate to make the probative value of the
co-accused statement very low. In this regard, it is a widely
acknowledged
rule that the evidence of an accomplice should be
treated with extreme caution, since, as Holmes JA put it:
“
First,
[the accomplice] is a self-confessed criminal. Second, various
considerations may lead him falsely to implicate the accused,
for
example, a desire to shield a culprit or, particularly where he has
not been sentenced, the hope of clemency. Third, by reason
of his
inside knowledge, he has a deceptive facility for convincing
description – his only fiction being the substitution
of the
accused for the culprit.”’
[49]
Because the challenge in
Ndhlovu
concerned
the constitutionality of s 3 of the Act, and because the enquiry
focused primarily on that issue, no attention was paid
to the earlier
decisions of our courts in which the rule against allowing admissions
and confessions to be tendered against a co-accused
was stated and
restated. A reading of the high court judgment in
Ndhlovu
indicates
that there was predictably no submission, on behalf of the accused,
that the statements in question amounted to a confession.
[6]
Goldstein J stated that, because of this stance of the accused, which
he accepted, the bar to the admissibility of confessions
in s 219 of
the CPA did not operate. We have set out above the essence of the
oral and written statements and on the face of it
they might well
constitute confessions to robbery.
[50]
In
Ndhlovu
in the high court, no more than four lines of the judgment were
devoted to the rule at common law that extra-curial statements
by one
accused cannot be tendered against another. The high court considered
that s 3 of the Act enabled it to disregard the common
law rule.
[7]
In
Ndhlovu
in this court no attention at all was paid to the common law rule.
[51]
In
Ndhlovu
in the high court, the provisions of s 3(2) of the
Act were glossed over. That subsection provides:
‘
The
provisions of subsection (1) shall not render admissible any evidence
which is inadmissible on any ground other than that such
evidence is
hearsay evidence.’
The
common law rule was not only an aversion to the admissibility of
hearsay evidence, but it developed because of the inherent
dangers of
permitting the use of extra-curial statements by one accused against
another. It recognised the potential conflicts
between the interests
of co-accused persons. Furthermore, because a co-accused person
cannot be compelled to testify, the common
law rule appreciates that
fair trial rights, including the right to fully challenge the State’s
case, may be hampered. These
are aspects that will be discussed more
fully later in the judgment, especially in para 62.
[52]
It is significant that the introductory words to s 3 of the Act read
as follows:
‘
Hearsay
evidence
– (1)
Subject
to the provisions of any other law
,
hearsay evidence shall not be admitted as evidence at criminal or
civil proceedings, unless – . . . .’ (Our emphasis.)
As it was put in
Dhanabakium v Subramanian & another
1943 AD 160
at 167:
‘
[T]he
position under the common law must be borne in mind in construing the
statute.’
In
Johannesburg
Municipality v Cohen’s Trustees
1909 TS 811
at 823 it was
stated:
‘
In
considering the question of the extent to which the common law is
abrogated by statute, the rule which has been adopted by the
English
Courts is thus laid down by BYLES, J., in
Reg.
v Morris
(1 CCR 95): “It is a
sound rule to construe a statute in conformity with the common law
rather than against it, except where
and so far as the statute is
plainly intended to alter the course of the common law.”’
In
a similar vein
Casserley v Stubbs
1916 TPD 310
at 312 stated:
‘
It
is a well-known canon of construction that we cannot infer that a
statute intends to alter the common law. The statute must either
explicitly say that it is the intention of the legislature to alter
the common law, or the inference from the Ordinance must be
such that
we can come to no other conclusion than that the legislature did have
such an intention.’
Those
dicta were cited with approval in
Stadsraad
van Pretoria v Van Wyk
1973 (2) SA 779
(A) at 784F-H. See also EA Kellaway
Principles
of Legal Interpretation
(1995) at 101
and 103 and the authorities there cited, including
Voet
.
Significantly,
Ndhlovu
arrived
at its conclusion without having embarked upon that exercise.
[53]
In
S v Ralukukwe
2006 (2) SACR 394
(SCA) this court thought it important to draw a
distinction between admissions and confessions, reasoning that s
219A, referred
to above, did not in express terms bar the use of
admissions by an accused against his co-accused. Section 219A
was contrasted
with s 219 which expressly forbade the use of a
confession by one person against another.
[54]
It is not immediately apparent on what basis such a distinction can
be drawn. As we have shown with reference to the earlier
authorities,
no such distinction existed at common law. Moreover, s 219A in terms
provides that ‘[E]vidence of any admission
made
extra-judicially by
any person
in relation to the commission of an offence shall . . . be admissible
in evidence against
him
’
(our emphasis). Quite clearly the ‘any person’ and ‘him’
refer to one and the same person –
the maker of the statement.
Thus although there is no statutory bar as with a confession, the
legislature, consistent with the
common law, albeit less
emphatically, has secured the same protection in s 219A for a
co-accused in respect of an admission as
it did in respect of a
confession in s 219. Moreover, from the perspective of the one
accused, who may be implicated in the statement
of another, one
strains to discern a sound jurisprudential basis for the distinction.
In application of this distinction, let us
assume that A makes a
statement that implicates his co-accused, B, as well as himself:
Whether or not the statement constitutes
a confession or merely an
admission would no doubt be determined solely with reference to its
maker, A. If it is ruled to be a
confession, then irrespective of
what it says in respect of B it will not be admissible against B. If,
on the other hand, it is
held to be an admission, then it would be
admissible against B. It thus matters not whether A’s
confession only touches tangentially
upon B or that his admission,
although largely exculpatory in respect of himself, is devastating in
respect of B. That the characterisation
of a statement as a
confession or an admission could determine, without more, whether it
falls to admitted as evidence against
a co-accused in and of itself
provokes anxiety. What of where a trial court rules incorrectly that
a statement is an admission
and admits it into evidence against a
co-accused and then a court of appeal subsequently characterises the
statement a confession?
This appears to have happened in
Molimi
(see paras 26–29). What if the
co-accused is cross-examined on a statement that ought not to have
been admitted into evidence
against him? It is possible to imagine a
range of other irregularities that could possibly flow from that
incorrect characterisation.
But the more important question that
those hypothetical postulations provoke is whether, flowing from
that, there is a danger of
the conviction being vitiated. None of
this has hitherto occupied the attention of our courts perhaps
because prior to
Ndhlovu
the position was quite straightforward – an extra-curial
statement was inadmissible against a co-accused. And that rule
applied to both admissions and confessions alike.
[55]
It is worth noting that
Ralukukwe
relied, inter alia, on the
Molimi
decision in this court which was overturned by the decision in the
Constitutional Court. In
Molimi
the
Constitutional Court, in hearing an appeal from this court, was
dealing with two extra-curial statements by co-accused persons.
One
was clearly a confession and the other an admission. The
Constitutional Court held that this court had erred in treating both
statements as admissions and admitting the confession as hearsay
evidence in terms of s 3 of the Act because of the bar in s 219
of
the CPA. In determining whether the admission by the co-accused in
that matter could be admitted as hearsay evidence, the Constitutional
Court specifically refrained from expressing a view on the
correctness of
Ndhlovu
.
It nevertheless went on to state that both the trial court and the
Supreme Court of Appeal had failed to adhere to the procedure
laid
down in
Ndhlovu
for the admission of hearsay evidence. The Constitutional Court
considered that there had been no timeous and unambiguous ruling
on
the intended use of the hearsay evidence and that this resulted in
prejudice to the accused. It accordingly held that the admission
ought to have been excluded. In this reasoning, the Constitutional
Court noted that the right to a fair trial requires a substantive
approach that has to instil confidence in the criminal justice
system.
[8]
It also stated that
in criminal proceedings, fair trial rights must be observed, and the
essential adversarial nature thereof should
not be undermined and
that an accused should not be left in uncertainty as to the case he
has to meet.
[56]
The Constitutional Court recognised that there might be some force to
the argument that there was no justification for the
distinction
between confessions and admissions. However, because it would be
sitting both as a court of first and last instance,
it declined to
rule on that question, inasmuch as it had been raised for the first
time on the basis of an equality challenge.
[9]
[57]
Since
Ndhlovu
,
and on the strength of it, commentators now appear to agree that,
despite the common law rule and the concerns expressed in the
judgments above, s 3 of the Act nevertheless enables an extra-curial
admission by one accused to be admitted against a co-accused.
In this
regard see inter alia PJ Schwikkard ‘Confessions in Criminal
Trials’ in PJ Schwikkard & SE van der Merwe
(eds)
Principles of Evidence
(3
ed, 2010) at 357 and Du Toit, De Jager, Paizes, Skeen and Van der
Merwe
Commentary on the
Criminal
Procedure Act
(2013
) from 24-70A to
24-70G. DT Zeffertt and AP Paizes
The
South African Law of Evidence
(2 ed,
2009) at 494, is however, equivocal.
[58]
Subsequent to the judgments in
Ndhlovu
and
Molimi,
and
unlike in the past, it appears that there has been a concerted effort
by prosecutors to have extra-curial statements by co-accused
persons
categorised as admissions rather than confessions. Conversely, and
almost perversely, defence counsel representing co-accused
persons
are now driven to do the opposite.
[59]
In appreciation of the Constitutional Court’s concerns about
fair trial rights, we took the time to consider the position
in
countries in which such rights are constitutionally enshrined, in
order to determine whether they have followed the
Ndhlovu
path. Put simply, we embarked on an enquiry to see whether those
countries, the first two of which have legislation permitting
the
admission of hearsay evidence, allowed the use of extra-curial
admissions made by one accused against another.
[60]
In England the current position is set out in C Tapper
Cross &
Tapper on Evidence
(12 ed, 2010) at 580 thus:
‘
Although
admissions are often said to be received on account of the
unlikelihood of a person saying something to his disadvantage,
it can
also be argued that the adversarial nature of litigation plays a part
and the reason resides rather in the absurdity of
a party seeking to
assert his own unreliability except when speaking on oath, or the
fact that he had no opportunity to cross-examine
himself. The
exception was extended to include inextricable exculpatory parts, of
otherwise inculpatory statements. In general,
it operated only
against the party making it, and against him only in a representative
capacity if so made. If the party had no
personal knowledge of the
matter admitted, then the admission was worthless.’
[61]
In Australia, the state of the law in relation to the admissibility
of extra-curial admissions is the same as our common law,
pre-
Ndhlovu
. The following appears in A Ligertwood
Australian
Evidence
(3 ed, 1998) at 8.94:
‘
Out-of-court
admissions or confessions are, strictly speaking, only admissible in
exception to the hearsay rule against the parties
making them. Thus,
for example, where the nominal defendant is sued, the out-of-court
“admissions” of the driver for
whom the nominal defendant
is responsible are not admissible by virtue of this exception.
Similarly, admissions by co-defendants
or co-accused are inadmissible
hearsay as against the other parties to the proceedings. The
out-of-court admission or confession
can operate assertively only
against the party making it.’
[62]
In
R v Perciballi
(2001), 54 O.R. (3d) 346, the Court of
Appeal for Ontario dealt, inter alia, with the question whether the
statement of a co-accused,
introduced in a joint trial against its
maker, can be used to support evidence against another accused in the
trial. At para 84
the following is said:
‘
The
statement must nonetheless be excluded from consideration . . ., not
because it lacks corroborative value from a logical or
a common sense
standpoint, but for the same policy considerations that define the
scope of admissibility of an accused’s
out-of-court statement
and limit its use as against its maker only. The underlying principle
is one of fairness to the party who
cannot cross-examine the maker of
the statement. While the maker can hardly complain about the
inability to cross-examine himself,
the same cannot be said of the
co-accused.’
This
was upheld on appeal by the Supreme Court of Canada in
R
v Perciballi
,
2002 SCC 51
;
[2002] 2 SCR 761.This
is
in line with the comments made in para 51 above.
[63]
More recently in this country, in
S v
Mangena
2012 (2) SACR 170
(GSJ) para 70
that court observed that for more than 15 years after the Act came
into effect ‘no reported case existed where
the state
understood the legislation to allow for the utilisation of an
admission made by one conspirator against the other. Had
the state
understood the legislation in this manner then one would have
expected the point to be argued from inception of the legislation’.
[64]
Any legal practitioner or presiding officer in a criminal trial would
readily confirm that, up until
Ndhlovu
,
evidence led in a trial-within-a-trial regarding a confession by one
accused rarely, if ever, interested legal representatives
of his
co-accused. This was so because the common law rule against the use
of extra-curial statements made by one co-accused against
the other
was deeply ingrained in our legal psyche.
[65]
This rule excluding the use of extra-curial statements made by one
accused against another, was not solely based on its hearsay
nature,
although that in itself would have constituted sound reason for
excluding such evidence. It has always been stated that
an admission
made by one person is normally irrelevant when tendered for use
against another. From the State’s perspective
it would usually
be dealing with statements made by co-accused persons which, in
itself, ought to bring with it a caution. The
shifting of blame from
one co-accused to another to avoid conviction is not uncommon in our
criminal justice system. Furthermore,
other than when one is dealing
with vicarious admissions or statements made in furtherance of a
conspiracy,
[10]
neither of
which is applicable in the present case, it is difficult to see how
one accused’s extra-curial statement can bind
another.
Co-accused, more often than not, disavow extra-curial statements made
by them and often choose not to testify. They cannot
be compelled to
testify, and in the event that an extra-curial statement made by one
co-accused and implicating the others is ruled
admissible and he or
she chooses not to testify, the right of the others to challenge the
truthfulness of the incriminating parts
of such a statement is
effectively nullified. The right to challenge evidence enshrined in s
35(3)(
i
)
of the Constitution is thereby rendered nugatory. In this regard, the
decision of the Canadian Supreme Court in
Perciballi
is instructive.
[66]
We would do well to recall a dictum in
Ramavhale
which was cited with apparent approval in both
Ndhlovu
and
Balkwell
.
Schutz JA had this to say:
‘
Hearsay
evidence may be accepted subject to the broad, almost limitless
criteria set out in s 3(1). But the facts of life do not
simply
vanish at the flourish of the legislator’s pen. Hearsay
evidence was long recognised to tend to be unreliable, and
continues
to tend to be so. The old works are replete with warning, based on
the accumulation of the experience of centuries. I
take as an example
Taylor’s
A Treatise
on the Law of Evidence
12th
ed (1931) at para 567:
“
For
it is deemed indispensable to the proper administration of justice,
first, that every witness should give his testimony under
the
sanction of an oath, or its equivalent, a solemn affirmation; and,
secondly, that he should be subject to the ordeal of
cross-examination
by the party against whom he is called, so that it
may appear, if necessary, what were his powers of perception, his
opportunities
for observation, his attentiveness in observing, the
strength of his recollection, and his disposition to speak the truth.
But
testimony from the relation of third persons, even where the
informant is known, cannot be subjected to these tests. As Buller J,
observes: “If the first speech were without oath, another oath
that there was such a speech makes it no more than a mere
speaking,
and is of no value in a court of justice.””’
See
also
Hoffmann and Zeffertt (
above
at 125) and
Theron v AA Life Assurance
Association Ltd
[1995] ZASCA 61
;
1995 (4) SA 361
(AD) at
369E-H, 382G-H.
[67]
It is clear that the Act was intended to permit hearsay evidence in
both civil and criminal proceedings, but is subject to
preconditions
for the reception of such evidence. It has to be borne in mind that
viva voce
evidence on oath in court is always to be preferred. A logical
concomitant is that investigating authorities will be encouraged
to
present the best possible evidence and not resort to having accused
persons themselves supplement a poorly investigated or badly
presented case. In respect of criminal trials, the caution enunciated
by Schutz JA in
Ramavhale
must
be heeded. One can rightly ask how the rights of an accused person to
challenge evidence adduced against him can be more circumscribed
under our new constitutional order than they were under the old
regime. It has been suggested by commentators that s 3(1) has
sufficient safeguards to ensure the preservation of fair trial
rights, more particularly, that s 3 permits a court to admit hearsay
evidence only if it ‘is of the opinion that such evidence
should be admitted in the interests of justice’. Considering
the rationale at common law for excluding the use of extra-curial
admissions by one accused against another, it appears to us that
the
interests of justice is best served by not invoking the Act for that
purpose. Having regard to what is set out above, we are
compelled to
conclude that our system of criminal justice underpinned by
constitutional values and principles which have, as their
objective,
a fair trial for accused persons, demands that we hold, s 3 of the
Act notwithstanding, that the extra-curial admission
of one accused
does not constitute evidence against a co-accused and is therefore
not admissible against such co-accused.
[68]
There is no difficulty in respect of the admissibility of the first
appellant’s statement, which puts him on the scene.
However,
that statement by itself is wholly inadequate to found convictions on
any of the charges preferred against him, including
murder and
robbery. The difficulty arises in relation to the admissibility of
the first appellant’s extra-curial statement
against the second
to fifth appellants. It is clear that the only evidence upon which
the convictions of the second to fifth appellants
in the high court
could have been founded was the extra-curial statement of the first
appellant. Before us it was accepted on behalf
of the State that
absent the evidence contained in the first appellant’s
statement, their convictions and sentences fall
to be set aside. As a
result of the conclusions reached above, that result must follow.
[69]
In relation to the reception of hearsay evidence in general, the
Constitutional Court in
Molimi
referred to the decision of
this court in
Makhathini v Road Accident Fund
2002 (1) SA 511
(SCA) with apparent approval, stating the following at para 35:
‘
In
comparison to the common law the Act allows a more nuanced approach
to the admission of hearsay evidence. As the Supreme Court
of Appeal
stated in
Makhathini v Road Accident
Fund
, in the application of the Act in
the context of a civil case, the Act requires the court to take a
contextual approach. The court
said that the statutory preconditions
for the reception of hearsay evidence are now designed to ensure that
the evidence is received
only if the interests of justice justify its
reception. A court making a determination whether it is in the
interests of justice
to admit hearsay evidence must –
“
have
regard to every factor that should be taken into account, more
specifically, to have regard to the factors mentioned in s3(1)(
c
).
Only if, having regard to all these factors cumulatively, it would be
in the interests of justice to admit the hearsay evidence,
should it
be admitted.”’
[70]
To a similar effect is the following dictum by Schutz JA in
Ramavhale:
‘
The
Judge
a quo
then
addressed the question whether that part of the statement which
depended upon the credibility of the deceased should be admitted,
having regard to the considerations set out in s 3(1)(
c
)
of the Act. Before setting out those considerations it is necessary
to emphasise what has already been mentioned, that s 3(1)
is an
exclusionary subsection and that the touchstone of admissibility is
the interests of justice, as is made clear by the words:
“. . .
hearsay, evidence shall not be admitted as evidence . . . unless - .
. . the court, having regard to (the considerations
in ss (
c
))
is of the opinion that such evidence should be admitted in the
interests of justice.”’
[71]
We reaffirm that approach in relation to the reception of hearsay
evidence in general just as we are emphatic about the bar
on the use
of confessions and admissions by one accused against his co-accused.
[72]
It follows that for the reasons already stated, the following order
is made:
The
appeal is upheld and the convictions and related sentences are set
aside.
MS
NAVSA
JUDGE
OF APPEAL
V
PONNAN
JUDGE
OF APPEAL
APPEARANCES:
FOR
APPELLANT: Adv N L Skibi
Instructed
by
Legal
Aid South Africa, Mafikeng
Legal
Aid South Africa, Bloemfontein
FOR
RESPONDENT: Adv. Ndimande
Instructed
by
The
Director of Public Prosecutions, Mafikeng
Matsepes
Inc., Bloemfontein
[1]
We were assured by counsel for the appellants from the bar in this
court that should the appeal succeed an appeal will in due
course be
prosecuted on behalf of that accused. The appellants were cited in
relation to the sequence in which they were accused
in the high
court.
[2]
For
a useful discussion see ‘The History of South African Criminal
Procedure’ in J Dugard
South
African
Criminal Law and Procedure
(vol 4,
1977) at 1 to 56.
[3]
For
the rationale, elegantly stated, see
Queen
v Thompson
(1893) QBD 12
at 15 to 18.
[4]
Queen
v Thompson
above
at 18.
[5]
Lord
Mackay of Clashfern
Halsbury’s
Laws of England
(5ed, 2010) vol 28 paras 659 to 671.
[6]
Defence
counsel, for obvious reasons, usually resist having statements made
by their clients being characterised as confessions.
[7]
Paras
48 and 49.
[8]
Molimi
para
42.
[9]
Molimi
paras
48 and 49.
[10]
In
R
v Mayet
1957
(1) SA 492
(A) at 494 the following passage from
Phipson’s
Law of Evidence
was cited:
‘
[O]n
charges of conspiracy, the acts and declarations of each conspirator
in furtherance of the common object are admissible against
the rest;
and it is immaterial whether the
existence
of the conspiracy, or the participation of the defendants be proved
first, though either element is nugatory without the other.’
Immediately
thereafter Schreiner JA said the following:
‘
Although
this principle may have originated in the English law of criminal
conspiracy it applies also where parties are charged
with a crime
and the case against them is that they acted in concert to commit
it; it makes no difference whether the particular
trial is of one or
some or all of the conspirators. Words that are said as part of the
carrying out of a purpose stand on the
same footing as acts done;
they differ from a mere narrative.’