IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: CC08/2018

In the matter between:

THE STATE

And

ELTON LENTING AND 19 OTHERS ACCUSED


JUDGMENT – 11 AUGUST 2025

LEKHULENI J:

Introduction

[1] This is an application brought by the State in terms of section 3(1)(c) of the
Law of Evidence Amendment Act 45 of 1988, (the Hearsay Act) alternatively in terms
of section 222 of the Crim inal Procedure Act 51 of 1977 ( the CPA ). In this
application, the State seek s the admission of a warning statement made by one
Delani Saptoe, who is now deceased, in which he implicates accused 3 and 14 in
this matter. The State’s application raises a novel question. The pertinent question is
whether a warning statement of an accu sed person who passed away before he

could be charged, together with the twenty accused in the present matter, could be
admitted in terms of section 3(1)(c) of the Hearsay Act and be used against the
remaining co-accused who are implicated by that statement.

[2] Mr Damon, on behalf of the State, applied for the admission of a warning
statement of Delano Saptoe, an accused person who appeared in the lower court
with accused 13 and 14 on charges of Murder, Attempted Murder, Possession of a
Firearm and Unlawful Posse ssion of Ammunition. These offences constitute counts
75 to 78 in this matter. Delano Saptoe, who is now deceased, is not and has never
been an accused person in this trial. Ostensibly, he could have been charged with
the other accused before this Court, b ut he was not charged due to his untimely
demise before the twenty accused were charged and transferred to this Court for
trial.

[3] The State applied that Delano Saptoe’s warning statement be admitted as
evidence against accused 3 and 14. Mr De Villiers and Mr Klopper, the legal
representatives of accused 3 and 14, respectively, opposed the State’s application
and submitted that the warning statement of Mr Saptoe is inadmissible against
accused 3 and 14, respectively. The two defence counsels submitted t hat the
deceased's statement is inadmissible because it amounts to an admission by an
accused, which is inadmissible against a co -accused. Both counsels asserted that in
terms of section 3(2) of the Hearsay Act, the warning statement of Mr Saptoe, as an
accused at the time of making the statement, would have been inadmissible against
accused 3 and 14 as Mr Saptoe’s co -accused. To this end, both counsels submitted
that the contested statement cannot be rendered admissible in terms of section
3(1)(c) of the Hearsay Act.

Summary of the impugned statement

[4] In the disputed statement, the deceased (Delano Saptoe) implicated accused
3 and 14. Mr Saptoe stated that on a date and time he could not remember, he was

3 and 14. Mr Saptoe stated that on a date and time he could not remember, he was
with Lorenzo Coetzee, also known as ‘Draad’ (accused 3), and Wandisile, also
known as ‘the one’ (acc used 14), and they went through a footpath that leads to
another street. He then remained seated on the poles on the footpath and accused 3

and 14 proceeded further. He then saw two known young men (Denver and Theo)
on the opposite side of the footpath. Mr Saptoe stated that he did not know that
accused 3 and 14 had a firearm in their possession.

[5] According to him, accused 3 and 14 went down the footpath in the direction of
Denver and Theo. After that, he heard several gunshots going off. When he
observed, he saw accused 14 holding a black firearm in his hand, which had a brown
handle. Thereafter, accused 3 and 14 came back running, passed him and told him
to run away as the people they were shooting at would come and shoot him. The
witness stated that he also ran away. After that, they separated, and that was the
last time he saw accused 3 and 14. M r Saptoe asserted further that he did not shoot
anyone, but it was accused 3 and 14 who were shooting.

Principal submissions by the parties

[6] Mr Damon argued on behalf of the State that the deceased is not an accused
person in this matter and furthe r that the deceased was never part of these
proceedings at any stage. From the evidence, so the contention proceeded, the
charges of Murder, Attempted Murder, Possession of an Unlicensed Firearm and
Unlawful Possession of Ammunition that the deceased and accused 3 and 14 faced
in the lower court were either withdrawn or struck off the roll. Mr Damon submitted
that Mr Saptoe passed away in January 2016, and the indictment regarding this
matter was formally served on all twenty accused in 2018, after Mr Saptoe’s passing.
Simply put, Mr Damon contended that to the extent that the deceased was not
charged together with the accused in this matter, his statement can be admitted in
terms of section 3(1)(c) of the Hearsay Act.

[7] More pertinently, Mr Damon contended that the deceased’s warning
statement cannot be admitted in terms of section 219A or section 217 of the CPA
because it cannot be admitted into evidence as either a confession or an admission

because it cannot be admitted into evidence as either a confession or an admission
against any accused in thes e proceedings. However, in his view, nothing in law
prevents the deceased’s warning statement from being admitted as hearsay
evidence against the accused. Mr Damon further contended that if the Court finds
that Mr Saptoe’s statement was made by a co -accused, it should be regarded as an

executive statement rather than a narrative statement. Consequently, it would be
admissible against accused 3 and 14, given that it was made in furtherance of a
common purpose or conspiracy.

[8] In augmenting his argument, M r Damon referred the Court to the
Constitutional Court decision in S v Mhlongo ; S v Nkos i,1 where it was held that at
common law, there is an exception to the exclusion of extra -curial statements of co -
accused: if the statement constitutes an ‘executive statement’ by an accused, it may
be admissible against a co -accused if it was made in furthera nce of a common
purpose or conspiracy. Counsel drew the court’s attention to the fact that there must
be other evidence ( aliunde) to establish the existence of a common purpose before
the statements can be taken into account. To this end, Mr Damon argued that the
deceased, Mr Saptoe, was aware that the shooting was part of a prior agreement
between members of the Terrible Josters from Delft South, who were at war with
members of the Thug Lifes gang. He pointed out that the vict im who was shot was a
member of the Thug Lifes gang. Counsel also emphasised that the Terrible Josters
were aggressively seeking to expand their territory for selling drugs.

[9] In all circumstances, so the contention proceeded, the evidence aliunde
indicates that the statement amounts to an ‘executive statement’ of the three Terrible
Josters gang members acting in common purpose . Counsel implored the Court to
admit the warning statement in question as evidence in this trial against accused 3
and 14.

[10] Mr De Villiers, on the other hand, counsel for accused 3, opposed the
application and submitted that the deceased was an accused at the time when he
made the statement. According to Mr De Villiers, the deceased was the co -accused
of accused 3 and 1 4 in Delft Cas 1174/11/2014 (Counts 75 -78 in this matter).
Notably, counsel questioned the constitutionality of the statement. He asserted that

Notably, counsel questioned the constitutionality of the statement. He asserted that
the deceased had a constitutional right in terms of s 35(2)(b) of the Constitution to
consult with a legal repre sentative before giving a statement. Mr De Villiers further
submitted that Mr Saptoe was duly informed of his rights and that the deceased

1 2015 (8) BCLR 887 (CC) para 39.

clearly indicated that he wished to consult with a legal representative before he could
decide to give a statement. D espite the deceased’s request to first consult with a
legal representative, the police official proceeded to take a warning statement from
him. Mr De Villiers asserted that the deliberate infringement of Mr Saptoe’s
constitutional right to first consult wi th a legal representative should render the
warning statement inadmissible. Counsel implored the Court to rule against the
admissibility of this statement.

[11] Mr Klopper’ s argument on behalf of accused 14 was, in substance, aligned
with the submissions of Mr De Villiers. However, Mr Klopper also submitted that the
fact that Mr Saptoe is deceased does not change his status for the purpose of
tendering his warning statement as evidence. Counsel emphasised that at the time
of making the statement, the deceased was a suspect or co -accused, and the law
applicable to the admission of such a statement should apply. Apart from applying
the principles of hearsay evidence, the statem ent remains that of a co -accused,
which the State wants to prove as either direct or corroborative evidence against
accused 14. Mr Klopper submitted that the statement of Mr Saptoe, which is mostly
exculpatory in nature, is not an executive statement. In C ounsel’s view, the
deceased’s warning statement contains several admissions, and it is a narrative
statement. It is therefore not admissible against a co -accused. Mr Klopper
respectfully prayed the Court not to admit the warning statement as evidence in th is
matter.

Issues to be decided

[12] The central question to consider is whether a warning statement made by Mr
Saptoe who was charged together with accused 3 and 14 in the lower court can be
used against them in a subsequent trial in the High Court in an instance where the
maker of the warning statement (Mr Saptoe) is not charged together with accused 3
and 14 in this court in respect of the same offence.

Discussion

[13] For the sake of clarity, I recap the facts as they are germane to the order that I
make hereunder. It is common cause that the deceased, Delano Saptoe, was
charged with accused 3 and 14, and they appear ed together in the lower court and
applied for bail. The matter was subsequently withdrawn. In January 2016, Delano
Saptoe passed away. The indictment in respect of the present matter against all
twenty accused was formally served upon them in 2018, after the passing of Delano
Saptoe. It is also common cause that Delano Saptoe was never part of these
proceedings at any stage.

[14] When the matter was enrolled in this Court under the Prevention of Organised
Crime Act 121 of 1998 ( POCA), none of the three suspects, namely accused 3, 14
and Delano Spatoe, were co -accused. It is on this basis that the State argues that
Delano Saptoe is not an accused person, and as such, the common law prohibition
that an extra -curial statement of an accused person is inadmissible against a co -
accused is not applicable in this matter, as Delano Saptoe was not an accused
person in this matter. For the rea sons that follow, I d o not ag ree with the State's
proposition.

[15] As a point of departure, it is necessary to emphasise the fact that, at common
law, an extra -curial statement of an accused was inadmissible against the co -
accused. It is only in two exceptional situations that an extra-curial statement may be
admitted not only as evidence against its m aker but also as evidence against a co -
accused implicated thereby: the first is where the co -accused, by his words or
conduct, accepts the truth of the statement to make all or part of it a statement of his
own. The second exception applies in extra-curial statements made by a co-accused
in the execution or furtherance of a common purpose. Such statements are
admissible in evidence against any other party involved in the collusion.2

[16] The common law rule that an extra -curial statement by an accused is

[16] The common law rule that an extra -curial statement by an accused is
inadmissible against a co -accused was relaxed in S v Ndhlovu and Others .3 In that
case, the Supreme Court of Appeal held that an extra -curial admission, but not a

2 R v Miller and Another 1939 AD 106 at 115; See also R v Mayet 1957 (1) SA 492 (A) at 494F.
3 2002 (2) SACR 325 (SCA). (Ndhlovu)

confession, by an accused is admissible against a co-accused if: the requirements of
s 3 of the Hearsay Act, dealing with the admission of hearsay evidence, are satisfied;
no constitutional principles are offended; and it is in the interest of justice to admit
such evidence. However, in S v Litako and Others ,4 the Supreme Court of Ap peal
took a different approach from Ndhlovu and confirmed the common law prohibition
against the use of extra -curial statements against co -accused. The Court held that
s 219A of the CPA allows an admission to be admitted against its maker only and is
silent regarding other persons.

[17] Subsequently, in S v Mhlongo; S v Nkosi ,5 the Constitutional Court found that
the interpretation adopted in Ndhlovu, that extra -curial admissions but not a
confession, are admissible against co -accused in terms of s 3(1)(c) of the Hearsay
Act, created the differentiation that unjustifiably limits the s 9(1) right of accused
implicated by such statements. The Court concluded that the pre -Ndhlovu common
law position, which held that extra -curial confessions and admissions by an accused
are inadmissible against a co-accused, must be restored.

[18] Recently, in Mawanda Makhala and Another v Director of Public Prosecutions,
Western Cape , 6 the Constitutional Court embraced the reasoning of the Supreme
Court of Appeal in Litako, holding that s 219A of the CPA allows an admission to be
admitted against its maker only and is silent regarding other persons. The Court held
that this section does not contemplate extra -curial admissions being tendered as
evidence against any other accused and found that such reasoning was sound.

[19] In the present matter, the warning statement was made by the deceased
whilst he was an accused person appearing in the lower court with accused 3 and
14. It is correct that he never appeared in this matte r or was charged with the twenty
accused under POCA. As correctly pointed out by Mr Klopper, the fact that the

accused under POCA. As correctly pointed out by Mr Klopper, the fact that the
deponent is deceased does not alter his status for the purpose of tendering his
statement as evidence. At the time of making the warning statemen t, the deceased
was a suspect or a co -accused of accused 3 and 14. The law applicable to the

4 S v Litako and Others 2014 (2) SACR 431 (SCA).
5 2015 (8) BCLR 887 (CC) para 38.
6 2025 (1) SACR 275 (CC) para 74.

admission of such a statement against accused 3 and 14 should apply. Mr Saptoe
was charged together with accused 3 and 14 on the same charges as accused 3 and
14 in the lower court. The State now seeks to use his warning statement against the
remaining accused. In my view, the statement remains that of a co-accused.

[20] Furthermore, t he fact that the deceased did not appear with the twenty
accused in this matter is inconsequential. This Court accepted several statements of
state witnesses in terms of section 3(1)(c) of the Hearsay Act who are deceased and
could not testify in this matter. The status of those witnesses whose statements were
admitted in terms of s 3(1)(c) of the Hearsay Act did not change because they did not
testify and are now deceased. They are considered as witnesses even though they
are deceased and did not testify. Their status is considered and determined by their
position at the time of making a witness statement.

[21] Similarly, Delano Saptoe’s status as a co -accused of accused 3 and 14
should accordingly be determined at the time he made the statement. The warning
statement was clearly made by an accused person or suspect who, in this instance,
appeared as a co -accused with accused 3 and 14 in the lower court. Consequently,
based on the legal principles discussed above, the impugned statement of Delano
Saptoe is inadmissible against accused 3 and 14.

The common law exception - An Executive or a Narrative Statement?

[22] Mr Damon asserted that if the Court determines that Mr Spatoe was indeed
an accused person and that his warning statement should be excluded in
accordance with s 219A of the CPA, the State maintains that the statement falls
within the common law exception. This exception has been succinctly articulated by
the Constitutional Court in S v Mhlongo; S v Nkosi,7 as follows:

‘At common law, there is an exception to the exclusion of extra -curial
statements of co -accused: if the statement constitutes an “executive

statements of co -accused: if the statement constitutes an “executive
statement” by an accused, it may be admissible against a co -accused if it was

7 2015 (8) BCLR 887 (CC).

made in furtherance of a common purpose or conspiracy. There must be
other evidence ( aliunde) to establish the existence of a common purpose
before the statements can be taken into account. The State would have us
pronounce on whether this common law exception survives a finding of
constitutional invalidity of the admissibility of extra -curial statements of an
accused against a co-accused.’8

[23] The State asserts that the warning statement by the deceased is an
‘executive statement’ in that it was made in the furtherance of a common purpose or
conspiracy, and as such it is admissible against accused 3 and 14 as an exception to
the exclusion of ext ra-curial statement of co -accused. Mr Damon posited that the
statement of Delano Saptoe is not a narrative statement as it was made in
furtherance of a common purpose with accused 3 and 14. As it will be demonstrated
below, this argument, with respect, is mistaken and does not square up with the legal
position on the admission of extra -curial statements made by one accused against
another in furtherance of a common purpose or conspiracy.

[24] To give context to the view I take on this issue , it is necessary to draw a
distinction between executive and narrative statements. Executive statements are
statements made in furtherance of a common purpose .9 In other words, to be an
executive statement, the statement must form part of the acts done in the
commission of the crime. For example, if A, B and C are engaged in a common
purpose, and A makes a statement in furtherance of that common purpose, it will be
admissible against B and C.10 This also ext ends to verbal declarations made during
the commission of an offence where the perpetrators act in cahoots with each other.

[25] For instance, if A and B burst into a bank and, as agreed by both of them, A
exclaims 'this is a robbery; we will shoot anyone who resists us or disobeys what we
demand', then that incriminating statement, although it was actually uttered by A,

demand', then that incriminating statement, although it was actually uttered by A,
must be attributed to B as well, as it was part of the mandate between them and was

8 At para 39. See also S v Ffrench-Beytagh 1972 (3) SA 430 (A) at 455F.
9 State v Bondi 1962 (4) SA 671 (A) at 678D-F.
10 See Schwikkard PJ and Van Der Merwe SE Principles of Evidence (2015) 4 ed at 345. See also R
v Mayet 1957 (1) SA 492 (A); S v Ffrench-Beytagh 1972 (3) SA 430 (A) at 432 and 433.

executed in furtherance of the common pur pose to rob.11 Such a statement amounts
to an ‘executive statement’.

[26] Narrative statements, on the other hand, are statements which are not made
in furtherance of the common purpose but, rather, as an account or admission of
past events, in which case they are not admissible against anyone other than the
maker of that statem ent.12 Narrative statements are not admissible against a co -
accused because admissions in general are not vicariously admissible but may be
admissible against the person making them.

[27] Therefore, acts and declarations in furtherance of a common purpose are
receivable when they are relevant. They are regarded as relevant when they are
executive statements. However, they are inadmissible when they constitute an
account or admission of even ts past, and not made in furtherance of a common
purpose, that is narrative statements. 13 An admission contained in narrative is
inadmissible precisely because admissions are not, in general, vicariously
admissible; but they may be received against the persons making them. Notably,
before executive statements can be admitted into evidence, the conspiracy and the
accused’s participation in it must be proved.14

[28] In deciding these preliminary issues, the Court is allowed to consider the
statements of the alleged conspirators. 15 There must be some evidence aliunde
establishing the existence of the common purpose before the relevant statements
can be considered at the end of the case.16

[29] R v Blake and Tye ,17 provides an example of the distinction drawn between
executive and narrative statements. The accused were charged with a conspiracy to
pass goods through customs without paying duty. Tye had made entries

11 See Zeffertt DT South African Law of Evidence (2017) at 534.
12 S v Banda and Others 1990 (3) SA 466 (B) at 503D.
13 Zeffertt DT, Paizes AP & Skeen A The South African Law of Evidence (2003) at 444.
14 S v Sibanda 1993 (1) SACR 691 (ZS).

14 S v Sibanda 1993 (1) SACR 691 (ZS).
15 R v Mayet 1957 (1) SA 492 (A) at 494.
16 S v Ffrench-Beytagh 1972 (3) SA 430 (A).
17 1844 6 QB 126 (UK).

incriminating both himself and Blake in two books. T he entry in one book was a
necessary part of the fraud, whereas the entry in the other book was solely a record
for his own private purposes. It was held that the first entry was admissible against
Blake as something done in the furtherance of the common p urpose (an executive
statement). However, the second entry merely constituted evidence against Tye
because it did not advance the common purpose (a narrative statement).18

[30] Significantly, a statement made after arrest does not fall within this exception
as the common purpose no longer exists. In S v Mangena and Another, 19 the court
held that the reception of such evidence is premised upon a rational and logical
deduction that depends for its efficacy on the statement being made in furtherance of
the common purpose. In addition, the court found that confining the rule in this
manner precludes the r eception of an extra-curial statement made by one
conspirator against the other after his arrest. The court observed that i t is a rule that
appears to be of general application in other common -law jurisdictions, as evident
from the United States Supreme Court cases.20 In the court’s view, these cases from
the United States Supreme Court confirm the exclusion of a statement made by one
conspirator against another at a time when the objectives of the conspiracy are no
longer pursued or capable of being pursued.21

[31] For the sake of certainty, it is essential to emphasise that this common law
exception remains an integral part of our legal system. In S v Mhlongo; S v Nkosi ,22
the Constitutional Court was invited to determine whether th is common law
exception that allows for the admission of extra -curial statements made by an
accused, in furtherance of a common purpose, would infringe the Constitution when
used against a co -accused. The Court declined the i nvitation and found that it was
not necessary to determine this issue as the facts before it in that matter did not

not necessary to determine this issue as the facts before it in that matter did not
arise.


18 Schwikkard PJ and Van der Merwe SE Principles of Evidence 4 ed at 345.
19S v Mangena and Another 2012 (2) SACR 170 (GSJ) para 54.
20 Krulewitch v United States 336 US 440 (1949) (69 S Ct 716; 93 L Ed 790; 1949 US 3006);
and Wong Sun v United States 371 US 471 (1963) at 490.
21 S v Sibanda 1993 (1) SACR 691 (ZS).
22 Note 1 above, at paras 39 and 40.

[32] Notwithstanding, from the princip les enunciated above, it is precisely evident
that the warning statement of Mr Saptoe was made long after the offence was
committed. At the time the statement was made, the objectives of the alleged
conspiracy as submitted by the State were no longer capab le of being pursued. As I
see it, the statement of the deceased, which is mostly exculpatory in nature, is not an
executive statement. Mr Saptoe stated that he heard and witnessed gunshots and
saw a firearm in the possession of a co -accused. According to h im, he was not
aware that there was a firearm present until he saw it. He further stated that he did
not shoot anyone, but the people who were with him did, and he makes no reference
to a common goal or common purpose. To my mind, this statement, which contains
a number of admissions, is a narrative statement and is therefore not admissible
against a co-accused.

[33] Finally, there is, in any event, another reason why the Court must not accept
this warning statement. As correctly pointed out by Mr De Villiers, this warning
statement was made in conflict with Mr Saptoe’s constitutional right to legal
representation. At the time of making the statement, Mr Saptoe was duly informed of
his constitutional right to legal representation, and he indicated that he wished to
consult with a legal representative before he could decide to give a statement.
Despite Mr Saptoe’s request to first consult with a legal representative, the police
official proceeded to take a warning statement from him. To this end, I agree with the
views expressed by the defence that the deliberate infringement of Mr Sapto’s right
to first consult with a legal representative renders the statement inadmissible.

Order

[34] Consequently, given all these considerations, the State’s application for the
admission of the warning statement of Delano Saptoe against accused 3 and 14 is
hereby dismissed.


_________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT

APPEARANCES:

For the State: Adv Damon
Instructed by: NPA

For Accused 3: Adv De Villiers
Instructed by: Legal Aid South Africa

For Accused 14: Adv Klopper
Instructed by: Legal Aid South Africa