S v Molimi (CCT 10/07) [2008] ZACC 2; 2008 (3) SA 608 (CC) ; 2008 (2) SACR 76 (CC) 2008 (5) BCLR 451 (CC) (4 March 2008)

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S v Molimi (CCT 10/07) [2008] ZACC 2; 2008 (3) SA 608 (CC) ; 2008 (2) SACR 76 (CC) 2008 (5) BCLR 451 (CC) (4 March 2008)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 10/07
[2008]
ZACC 2
RICHARD DITSHELE MOLIMI                                                                             Â
Applicant
versus
THE STATE                                                                                                           Â
Respondent
Heard on         :           23 August 2007
Decided on     :           4 March 2008
JUDGMENT
NKABINDE J:
Introduction
[1]       This
case raises issues of considerable importance regarding the admissibility of
extra-curial statements of an
accused against a co-accused in a criminal
trial.  More specifically, we are asked to consider the rules governing the
admissibility
of hearsay evidence under the provisions of the Law of Evidence
Amendment Act
[1]
(the Act) in the context of the right to a fair trial and the need to prevent,
among other things, procedural abuse.
[2]       It
is convenient to state the relevant provisions of the Act from the outset. Section
3 of the Act reads:
“(1)      Subject to the provisions of any other law, hearsay
evidence shall not be admitted as evidence at criminal or civil
proceedings,
unless─
   Â
(a)        each party against whom the evidence is to be adduced
agrees to the admission thereof as evidence at such proceedings;
(b)        the person upon whose credibility the probative value of
such evidence depends, himself testifies at such proceedings;
or
(c)        the court,
having regard to─
(i)         the nature of the proceedings;
(ii)        the nature of the evidence;
(iii)       the purpose for which the evidence is tendered;
(iv)       the probative value of the evidence;
(v)        the reason why the evidence is not given by the person
upon whose credibility the probative value of such evidence
depends;
(vi)       any prejudice to a party which the admission of such
evidence might entail; and
(vii)      any other factor which should in the opinion of the
court  be taken into account,
is of the
opinion that such evidence should be admitted in the interests of justice.
(2)
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.
(3)
Hearsay evidence may be provisionally admitted
in terms of subsection (1)(b)
if the court is
informed that the person upon whose credibility the probative value of such
evidence depends, will himself testify
in such proceedings:  Provided that if
such person does not later testify in such proceedings, the hearsay evidence
shall be left
out of the account unless the hearsay evidence is admitted in
terms of paragraph (a) of subsection (1) or is admitted by the court
in terms
of paragraph (c) of that subsection.
(4)
For the purpose of this section─
‘hearsay
evidence’ means evidence, whether oral or in writing, the probative value of
which depends upon the credibility of
any person other than the person giving
such evidence;
‘party’ means
the accused or a party against whom hearsay evidence is to be adduced,
including the prosecution.”
[3]       This
case comes before us by way of an application for leave to appeal against the
judgment and order of Cachalia
AJA with Zulman JA and Van Heerden JA
concurring, in the Supreme Court of Appeal.
[2]
Â
That court dismissed the appeal by the appellants against their convictions by
Makgoba AJ in the Johannesburg High Court
[3]
on the counts of robbery with
aggravating circumstances,
[4]
murder and attempted murder and upheld the appeal against their convictions on
counts of murder, unlawful possession of firearms,
[5]
unlawful possession of
ammunition
[6]
and kidnapping.  The
applicant also
seeks condonation for the late filing of the application for leave to appeal.
Factual
background
[4]       The
facts have been summarised in the judgment of the Supreme Court of Appeal.  The
applicant, Mr Molimi, was accused
2 at the trial.  He was indicted and
convicted of various counts
[7]
with two other accused in the High Court.  He was the manager of Clicks Store
(Clicks) in Southgate Mall, Johannesburg, when it
was robbed during a routine
money collection by Fidelity Guards (Fidelity) on 30 October 2007.  It is
common cause that accused
1 was caught red-handed.  Accused 3 was a former
employee of Fidelity.  The applicant and his co-accused had communicated with

one another using their cell phones prior to and on the day of the robbery.
Â
[5]       A
security officer employed by Fidelity arrived at Clicks at approximately 11:00am
to collect money.  He entered
the cash office and found the applicant and his
co-employee who handed the money to him.  He then transferred the money into a

container.  As the officer left the store in possession of the container, two
of the four armed men who had just entered the store
confronted him and ordered
him back into the cash office.  They instructed him to empty the contents of
the container into a black
bag, which he did.  The robbers fled with an amount
of R45 737,40 and a revolver was taken from the Fidelity security officer.
[6]       As
the robbers fled the scene, there was a barrage of gun fire between one of the
robbers and a security guard in
the employ of Clicks who fatally wounded each
other.
[8]
Â
The remaining three robbers fled and were confronted by a bystander who drew
his firearm upon being pointed at with firearms
by the fleeing robbers.  The
bystander warned them to stop.  When the robbers ignored his warning, he pursued
accused 1 who then
dropped the black bag and took shelter in a store near the
exit of the mall.  Accused 1 pointed his firearm at the bystander and
the
latter reacted by discharging one shot in the direction of accused 1 and
accidentally shot and wounded an employee in the store.
[9]
  Accused 1 then took a young
man in the store hostage.
[10]
Â
The bystander fired another shot towards accused 1, this time accidentally
killing the hostage.
[11]
Â
Accused 1 ultimately surrendered and was arrested immediately.  The applicant
was arrested a day after the robbery and accused
3 some two months later.
[7]       On
the date of his arrest and after being cautioned by the police, accused 1 made
a statement to a senior police
officer incriminating himself, the applicant,
accused 3 and several other alleged members of the group involved in the
robbery.Â
The statement gives his version of how the robbery was orchestrated
and the manner in which the cell phones of the applicant and
accused 1 were to
be used to alert the men when the Fidelity officer arrived at and left the
store.  The statement further tells
of a meeting that took place between
accused 3 and two other perpetrators, where accused 3 allegedly informed the
members of the
party about a tip-off concerning
money that could be
“taken” from Clicks.
[12]
[8]       Accused
3 also made a statement to a senior police officer implicating himself, the
applicant and accused 1.  The
statement describes the planning of the robbery
including how accused 3 recruited accused 1 to rob Clicks, the subsequent
meetings
between him, accused 1 and the applicant, and the communication he had
with accused 1 on the morning of the robbery before he left
the mall and before
the robbery took place.
[13]
Â
The applicant made no statement to the police.  Thus, this case is about the
admissibility of the statements made by accused
1 and accused 3 against the
applicant.
High Court
Proceedings
[9]       The
accused pleaded not guilty to all counts, made formal admissions
[14]
and elected to remain silent.
[10]     When
the statement of accused 1 was tendered at the trial, an objection was taken to
its admission.  The admissibility
of this statement was challenged on the
ground that it had not been proved to have been made freely, voluntarily and
without undue
influence, within the meaning of section 217 of the Criminal
Procedure Act 51 of 1977
[15]
(CPA).  The record of the
proceedings at the High Court reveals that the statement of accused 1 was
generally understood by the
parties as constituting a confession.  The High
Court conducted a trial-within-a-trial
[16]
and heard evidence regarding the admissibility of the statement of accused 1.Â
The Court admitted the statement against accused
1 and a copy was handed in.
[17]
[11]     An objection
was raised to the admissibility of the statement of accused 3 on the basis that
the police fabricated
his version.  Accused 3 said that he was threatened and
assaulted by the police before signing the statement.
[18]
  The High Court, relying on
S
v Khuzwayo
[19]
and
S v Lebone,
[20]
allowed the state to cross-examine accused 3 on the contents of the statement
to test its reliability.  At the conclusion of the
trial-within-a-trial, the court
admitted the statement provisionally against accused 3 and reserved reasons for
its ruling.
[12]     At
the close of the state’s case, counsel for the applicant and accused 3
unsuccessfully applied for discharge in
terms of section 174 of the CPA.
[21]
  In the course of making a
ruling the Judge remarked—
“at this stage of the proceedings [the
statements] are part of the record and I admit [them].  The two statements by
accused
1 and [3] implicate [the applicant].”
[22]
The case
continued against the three accused who all testified in their own defence.Â
Accused 1 denied complicity in the robbery
and all allegations against him and
disavowed the contents of his statement.  Counsel for the applicant and accused
3 did not
cross-examine accused 1.
[13]     Accused
3’s testimony was to the effect that upon his arrest and on arrival at the
police station, he informed the
police officers that he was only prepared to
make a statement to a magistrate but was told that the magistrate was not
available.Â
He said that he signed the statement under duress.  He denied
involvement in the robbery.
[14]     The
applicant testified that he was on duty the day of the robbery.  He explained
that he had an appointment with
accused 3 to discuss a “deal” to buy the rims
of his vehicle.  After the robbery he contacted accused 3 and arranged another

appointment.  He made several cell phone calls to accused 3 allegedly pleading
with him not to cancel the “deal”.  He also
denied complicity in the robbery.
[15]     It became apparent during the proceedings and in the
context of the admissibility of the statements by accused 1 and
3 against the
applicant that counsel and the prosecutor were aware of the decision in
S v
Ndhlovu and Others.
[23]
  The admissibility of the statements by accused 1 and 3 against the
applicant was considered for the first time and as a “critical
issue” only in
the course of the judgment on the merits and after the applicant testified.  The
trial court admitted the statements
against him on the basis of the probative
value of the evidence and that the interests of justice required its admission.
[16]     Although
the statement of accused 1 was generally understood as amounting to a
confession,
[24]
the trial Judge, when delivering judgment on the merits, said that both
statements remained hearsay evidence against the applicant
irrespective of
whether accused 1 and 3 testified.
[25]
Â
He rejected the evidence tendered for and on behalf of the defence of all three
accused as being devoid of credence.  On the
strength of the evidence contained
in the statements, coupled with the information contained in the cell phone
records, the court
convicted the applicant and his co-accused on all counts and
sentenced each to imprisonment on each of the seven counts.
[26]
  The applicant and accused 3
applied for and were granted leave by the High Court to appeal to the Supreme
Court of Appeal against
their convictions.
Supreme
Court of Appeal proceedings
[17]     On appeal
the applicant challenged his convictions on the basis that, inter alia, the two
statements were inadmissible
against him because of their hearsay character.Â
In the same proceedings, accused 3 also sought an appeal to this extent about

the statement of accused 1, arguing that he had not made the statement
voluntarily.  The correctness of
Ndhlovu
was not challenged on appeal.Â
The contention was that the trial court disregarded the rule governing the
admissibility of hearsay
evidence under section 3 of the Act, and the approach as
laid down in
Ndhlovu.Â
The effect of the rule in
Ndhlovu
is
basically that (1) the reception of the hearsay evidence must not surprise the
accused; (2) the reception should not come at
the end of the trial when the
accused is unable to deal with it; and (3) that the accused must understand the
full evidentiary
ambit of the case against him or her.Â
[18]     The
Supreme Court of Appeal dismissed the appeal in respect of the convictions on
counts 1, 2 and 4, and upheld it
in respect of counts 3, 5, 6 and 7. Â
[19]     The
Supreme Court of Appeal decided the applicant’s case on the basis that the
statements were admissions and not
confessions.  The court recognised the
effect of the rule formulated in
Ndhlovu.Â
It nevertheless found that
the court in
Ndhlovu
was “clearly not laying down an inflexible rule.”
[27]
  Relying on
Key v Attorney
General, Cape Provincial Division and Another,
[28]
the court said that the
question is whether, in the circumstances of the case, the reception of the
hearsay evidence was unfair
to the appellants and therefore not in the
interests of justice and not whether the rule formulated in
Ndhlovu
had
not been “strictly complied with”.
[29]
Â
The court then analysed the way in which the trial court dealt with the
admissibility of the two statements and concluded that―
“[d]espite it being unclear from the
Judge’s ruling whether the extra-curial statements by accused 1 and the second
appellant
were admissible against their co-accused, there could have been no
doubt in the minds of counsel for the appellants, in the light
of what had
transpired during the ‘trial-within-a-trial’ of accused 1 and the discharge
application, that the extra-curial
statement by accused 1 was not only part of
the state case against him, but also against them.  They should, if there was
doubt,
have asked the Judge to clarify the position before deciding whether or
not their clients would testify in their defence.  For
[the applicant], he had
the added problem that he would have to deal with the second appellant’s
incriminating statement.”
[30]
[20]     The
Supreme Court of Appeal found that a “vague provisional ruling, as was made in
this case, is not conducive to
. . . an appreciation [of the full evidentiary
ambit the accused may face] and may be prejudicial to an accused . . . ” and “may

leave an accused unfairly in a state of uncertainty.”
[31]
  It nonetheless concluded that
(a) the
applicant was able to
cross-examine the accused;
[32]
(b) accused 1’s subsequent disavowal of the statement was correctly found by
the trial court to have been untruthful;
[33]
(c) the corroboration of important aspects of the statement by the cell phone
records confirmed its probative value;
[34]
(d) there was no prejudice to the applicant;
[35]
(e) the fairness of the trial was not compromised;
[36]
and (f) the admission of the
hearsay evidence was in the interests of justice having regard to the factors
listed in section 3(1)(c)
of the Act.
[37]
 The Court found that the prosecutor’s and the Judge’s failures did not render
the trial of the applicant unfair.
[38]
In this
Court
[21]     The
applicant sought leave to appeal and condonation
[39]
for the late filing of the
application for leave to appeal.  His counsel, Advocate CE Thompson, was
requested by this Court to
appear and argue the case on his behalf.
[40]
 The Court is indebted to
Advocate Thompson for acceding to the request.  Accused 3 has not sought leave
to appeal to this Court.Â
Nothing more need be said about him.  The applicant’s
first constitutional challenge was that
Ndhlovu
had the effect of
generally discriminating against accused persons because of the differentiation
accorded between confessions
and admissions.  It was argued that the differentiation
violates section 9 of the Constitution.  Secondly, the applicant contended
that
the statements should have been recognised as confessions and that a confession
of an accused cannot be used as evidence against
a co-accused.  Accordingly,
the two statements should not have been used as evidence against him.  This
submission was made in
response to the question raised in the directions issued
out of this Court by the Chief Justice.
[41]
Â
Thirdly, the applicant challenged the timing of the ruling on the admissibility
of the statements as evidence against him and
argued that his right to adduce
and challenge evidence, enshrined in section 35(3)(i) of the Constitution, was
violated.  If the
evidence of the statements was inadmissible against the
applicant, it was argued, the admissible evidence could not sustain his

conviction.Â
[22]     The
amicus curiae (the amicus), appointed pursuant to the further directions, not
only generally supported the contentions
raised by the applicant but also
contributed a different perspective, for which this Court is grateful.  In
essence, he contended
that the approach by the Supreme Court of Appeal,
following
Ndhlovu
,
in admitting hearsay was incorrect and at odds
with the applicant’s fair trial rights, including his right to challenge
evidence
particularly in circumstances where the declarants disavowed their
statements under oath.
[42]
 In the
alternative, the amicus challenged the timing of the
determination of admissibility of the extra-curial admission against the
co-accused.Â
He argued that a proper consideration should have been given to
all of the factors in section 3(1)(c) of the Act.
[43]
 Regarding the merits, the
amicus also submitted that the admissible evidence could not sustain a
conviction.Â
[23]     The
state opposed the application for leave to appeal and maintained that
extra-curial admissions against a co-accused
are not excluded from
admissibility, provided the admissions were in terms of section 3(1) of the
Act.  Accordingly, the state
defended the approach in
Ndhlovu
.  Relying
on the factors set out by Moseneke J in
S v Thebus and Another
[44]
regarding whether
accused 3 actively acted in association with the group, the state argued that
the perusal of his statement revealed
that it constituted an admission because
when the robbery took place, he had left the mall.  In response to the section
9 challenge,
the state argued that there is no differentiation between persons
who make confessions and those who make extra-curial admissions.Â
Regarding the
accused’s fair trial rights the state contended that the applicant’s fair trial
rights were not violated.  The
state submitted that the merits favoured the
conviction on the basis of common purpose.
[24]     Before
I consider the issues raised for determination in this matter, it is necessary
to deal with preliminary issues:
whether applications for condonation and leave
to appeal, respectively, should be granted.
Condonation
[25]     The
applicant sought condonation for the late filing of the application for leave
to appeal.
[45]
Â
There is no gainsaying that the indulgence should be granted.  Having had
regard to the explanation advanced for the delay,
the absence of apparent
prejudice to and opposition by the state, as well as the fact that reasonable
prospects of success do exist,
condonation should be granted.
Leave to
appeal
[26]     This
Court may decide only constitutional matters and issues connected with
decisions on constitutional matters.
[46]
Â
A constitutional matter includes any issue involving the interpretation,
protection or enforcement of the Constitution.
[47]
Â
The substantive issues raised for determination do raise constitutional issues
of great public importance.  One of the issues
relates broadly to the
admissibility of extra-curial admissions
[48]
under the provisions of the Act which impacts significantly on the right of
every accused to a fair trial.
[49]
 In particular, the issues are (a) whether the statements by accused 1 and 3
are confessions or admissions; (b) whether the statements
are admissible
against the applicant; (c) whether the High Court and the Supreme Court of
Appeal complied with section 3(1)(c)
of the Act and the approach set out in
Ndhlovu
;
and (d) the appropriate consequence.
[27]     As I have indicated above, reasonable prospects
of success exist.  Accordingly, it is in the interests of justice that
leave to
appeal should be granted.
[50]
[28]     There
is no definition of “confession” in the statute.  However, courts define
“confession” narrowly as “an
unequivocal acknowledgement of guilt, the
equivalent of a plea of guilty before a court of law.”
[51]
  Du Toit et al
[52]
describe an admission “as a
statement or conduct adverse to the person from whom it emanates.”  Such
admissions are made out
of court and tendered in evidence against their maker.Â
If made to a magistrate and reduced to writing, they are admissible upon
their
mere production provided the legal requirements are met.
[53]
[29]     The
statement of accused 1
[54]
was understood at the trial
[55]
as constituting a confession.Â
The Supreme Court of Appeal labelled and dealt with both statements under the
Act as extra-curial
admissions.  I do not agree that the statement of accused 1
is an admission.  A perusal of that statement, read in conjunction
with accused
1’s warning statement, establishes an admission of the elements of the robbery
with aggravating circumstances and
thus an unequivocal acknowledgment of
guilt.  This much was conceded during argument in this Court by counsel for the
applicant
and the state as well as by the amicus.  A question thus arises
whether the trial court and the Supreme Court of Appeal were entitled
to use
that confession as part of the evidence to establish the guilt of the applicant.
Â
[30]     Section
219 of the CPA provides that “[n]o confession made by any person shall be
admissible as evidence against
another person.”
[56]
Â
It is noteworthy that
section 3 of the Act, at the outset, places itself “[s]ubject to the provisions
of any other law.”  The
prohibition regarding the admission of confessions of
one accused against another therefore remains in force.  It follows that
the
confession of accused 1 should have been excluded by the trial court and the
Supreme Court of Appeal when determining the guilt
or otherwise of the
applicant.
[57]
Â
The Supreme Court of Appeal and the trial court, therefore, erred in admitting
the confession of accused 1 as evidence against
the applicant.
[31]     The
status of the statement of accused 3,
[58]
the subject of section 219A
of the CPA,
[59]
is controversial.  It was labelled an extra-curial admission and was admitted
as such at the trial, albeit provisionally and without
any indication whether
it was admitted against the applicant.  The labelling was confirmed on appeal.Â
It was contended on behalf
of the applicant that the trial court disregarded
the rules governing the admission of hearsay evidence under section 3(1) of the

Act.
[32]     Objectively
viewed, the statement of accused 3 amounts to an admission.  That was the view
taken by the parties in
argument.  The statement, as correctly contended by the
state, shows that accused 3 did not play any active part in the robbery.Â
It
was still open to accused 3 to raise a defence of dissociation from the common
design to rob Clicks.
[60]
Â
What is critical is that accused 3 left the scene after an assurance by accused
1 that everything was still fine and even before
the robbery took place.  The
statement, coupled with his sudden departure, cannot be said to amount to an
unequivocal acknowledgement
that accused 3 participated in the robbery under a
common purpose with those who actually committed the robbery.  On the contrary,

it is quite consistent with the defence of dissociation.
[61]
  It is immaterial that it
might have turned out to be untenable.
[62]
Â
It is for these reasons that I consider the statement of accused 3 to be an
admission rather than a confession.  Accordingly,
I am satisfied that the High
Court and the Supreme Court of Appeal correctly accepted the statement of
accused 3 as an admission.Â
This then heralds the determination of a cardinal
issue: whether an admission by accused 3 ought to have been admitted in terms

of section 3 of the Act against the applicant.
Did the
High Court and the Supreme Court of Appeal comply with section 3(1)(c) and the
approach in
Ndhlovu
?
[33]     Two
fundamental principles of criminal law lie at the heart of this appeal.  The
first is the rule against the admission
of inadmissible hearsay and the second
is the principle that evidence which is admissible only against one accused
cannot be taken
into account when assessing the guilt of another accused.  Under
the common law, an admission made to a magistrate or a peace officer
by one
accused is inadmissible against another accused.
[63]
[34]     Prior
to the advent of the Act, the rule was that evidence of an extra-judicial
admission by an accused that incriminates
a person other than its maker
remained hearsay and was governed by section 216 of the CPA.
[64]
  Such hearsay was excluded
subject to the recognised common law and statutory exceptions which need not be
discussed for the purpose
of this judgment.
[65]
Â
The admissibility of extra-judicial admissions is subject to section 219 of the
CPA.
[35]     In
comparison to the common law the Act allows a more nuanced approach to the
admission of hearsay evidence.
[66]
Â
As the Supreme Court of Appeal stated in
Makhathini v Road Accident Fund
,
[67]
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
s 3(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.”
[68]
[36]     When
addressing the safeguards that must be adhered to when receiving hearsay
evidence under the Act, the Supreme Court
of Appeal in
Ndhlovu
said that
courts must be careful to ensure respect for the fair trial rights in section
35(3) of the Constitution.  It said—
“First, a presiding judicial officer is
generally under a duty to prevent a witness heedlessly giving vent to hearsay
evidence.Â
More specifically under the Act, ‘[it] is the duty of a trial Judge
to keep inadmissible evidence out, [and] not listen passively
as the record is
turned into a papery sump of “evidence”.’
. . .
Third, an accused cannot be ambushed by the
late or unheralded admission of hearsay evidence.  The trial court must be
asked clearly
and timeously to consider and rule on its admissibility.  This
cannot be done for the first time at the end of the trial, nor in
argument,
still less in the court’s judgment, nor on appeal.  The prosecution, before
closing its case, must clearly signal
its intention to invoke the provisions of
the Act, and, before the State closes its case, the trial Judge must rule on
admissibility,
so that the accused can appreciate the full evidentiary ambit he
or she faces.”
[69]
Â
(Footnote omitted.)
[37]     The
admissibility of the statements has been criticised on various grounds.  It was
contended that the vague and late
ruling on the admissibility of the statements
against the applicant was prejudicial to him and thus rendered the trial
unfair.Â
Section 3 indeed permits the provisional admission of hearsay evidence
subject to the conditions set out in subsection (3).  However,
the provisional
admission of hearsay evidence is not, in my view, without problems.  This case
clearly exemplifies the prejudice
created by not having a clear and timeous
ruling on the admission of hearsay evidence that plays a significant part in
convicting
the accused and is admitted only at the end of the case.  The
Supreme Court of Appeal, in
S v Ramavhale,
[70]
cautioned that in such
a situation a judge should hesitate in admitting such evidence.Â
[38]     The
Supreme Court of Appeal hardly dealt with the numerated factors in section
3(1)(c) and paid attention only to the
first and third safeguards mentioned in
Ndhlovu
.Â
It paid insufficient regard to the applicant’s fair trial rights and did not
ensure that he knew what the evidence against
him was at the end of the state’s
case or that inadmissible evidence was left out of account at that stage.  The
Supreme Court
of Appeal correctly acknowledged that vague provisional rulings
“may be prejudicial to an accused and conflate the admissibility
of the
evidence with its weight and may leave an accused unfairly in a state of
uncertainty.”
[71]
Â
The Court nevertheless found that the inexplicit and late admission of the
hearsay evidence was not prejudicial to the applicant.
[39]     What
compounds the problem is that even though the Supreme Court of Appeal expressed
regret about the manner in which
the trial court discharged its judicial
obligation when determining the admissibility of the hearsay evidence, it
opined that counsel
for the applicant should have requested the trial Judge to
clarify the position before deciding whether his clients should testify
in
their defence.  I cannot agree.  The statement had not been admitted against
the applicant and counsel had no duty to ask
for clarification. Â
[40]     As
the Supreme Court of Appeal correctly observed, both the prosecutor and the
trial Judge failed to discharge their
legal duties.  There is no obligation on
the defence to assist the prosecution in the execution of its duties and the
advancement
of its case.  If that were so, an unwarranted burden would be
imposed on the accused who has to contend with the allegations levelled
against
him or her.  That might also have the potential of increasing the risk of
convictions which are likely not to be in accordance
with justice.
[41]     A
timeous and unambiguous ruling on the admissibility of evidence in criminal
proceedings is, as correctly contended
by the amicus, a procedural safeguard.Â
I do not share the views expressed by the Supreme Court of Appeal that, despite
the late
ruling by the trial Judge,
“there could have been no doubt in the
minds of counsel for [the applicant], in the light of what had transpired
during the ‘trial-within-a-trial’
of accused 1 and the discharge application,
that the extra-curial statement by accused 1 was not only part of the state
case against
him, but also against [the applicant].”
[72]
That is not
the point, however.  The only question is whether the evidence should have been
admitted against the applicant.
[42]     This
Court has said that the right to a fair trial requires a substantive rather
than a formal or textual approach
[73]
and that “it has to instil confidence in the criminal justice system with the
public, including those close to the accused, as
well as those distressed by
the audacity and horror of crime.”
[74]
Â
It is not open to question that a ruling on the admissibility of evidence after
the accused has testified is likely to have an
adverse effect on the accused’s
right to a fair trial.  It may also have a chilling effect on the public
discourse in respect
of critical issues regarding criminal proceedings.  More
importantly, proceedings in which little or no respect is accorded to
the fair
trial rights of the accused have the potential to undermine the fundamental
adversarial nature of judicial proceedings
and may threaten their legitimacy.  There
are further adverse consequences.  For example, when a ruling on admissibility
is made
at the end of the case, the accused will be left in a state of
uncertainty as to the case he is expected to meet and may be placed
in a
precarious situation of having to choose whether to adduce or challenge
evidence.
[75]
[43]     In
the circumstances, I do not agree that the late admission of hearsay evidence
against the applicant was not prejudicial
to him and in the interests of
justice.  The reliance on
Key
by the Supreme Court of Appeal is
misconceived as the case was not concerned with the admissibility of hearsay
evidence.  In order
for it to be said that the
applicant
had a fair trial, he must first have known what the case against him was.  Second,
he must have been able to cross-examine
the authors of the statements to test
their credibility and truthfulness of their testimonies.  The applicant cannot
be expected
to have been able to challenge hearsay evidence that was not only
inadmissible against him but had also been disavowed under oath
by the makers.
[44]     Without
expressing any view on the correctness or otherwise of
Ndhlovu,
I
conclude that neither the trial court nor the Supreme Court of Appeal complied
with the approach enunciated in that case
[76]
and the provisions under section 3(1) of the Act, thereby resulting in an
improper admission of inadmissible evidence against the
applicant.  Needless to say, that resulted in fundamental
prejudice to the applicant, thus not affording him a fair trial.  Accordingly,

everything said out of court by accused 3 incriminating the applicant ought to
have been and must be disregarded entirely.
[45]     There
is one matter relating to
Ndhlovu
which requires some attention.  In
that case, the Supreme Court of Appeal remarked—
“[T]he admission of hearsay evidence ‘by
definition denies an accused the right to cross-examine’ since the declarant is
not
in court and cannot be examined.  The Court did not, however, accept that
the ‘use of hearsay evidence by the State violates
the accused’s right to
challenge evidence by cross-examination’, if it is meant that inability to
cross-examine the source
of a statement in itself violates the right to
‘challenge’ evidence.”
[77]
 (Footnotes omitted.)
The Court
went on to say—
“The Bill of Rights does not guarantee
entitlement to subject all evidence to cross-examination.  What it contains is
the right
(subject to limitation in terms of s 36) to challenge evidence.Â
Where that evidence is hearsay, the right entails that the accused
is entitled
to resist its admission and to scrutinise its probative values, including its
reliability.  The provisions enshrine
these entitlements.
 But where the
interests of justice, constitutionally measured, require that hearsay evidence
be admitted, no constitutional right
is infringed.  Put differently, where the
interests of justice require that the hearsay statement be admitted
,
the
right to ‘challenge evidence’ does not encompass the right to cross-examine the
original declarant.
”
[78]
Â
(Emphasis added.)  (Footnotes omitted.)
[46]     The
amicus criticised
the approach in
Ndhlovu.Â
He argued that
allowing hearsay evidence in the interests of justice under section 3(1)(c), as
envisaged in the preceding quoted
passage, infringed the right to challenge
hearsay evidence because there is no opportunity to cross-examine.
Â
[47]     While
this approach may be understood as narrowing the ambit of the right to
challenge evidence as guaranteed in section
35(3)(i) of the Constitution, I
refrain from making a determination on the correctness or otherwise of the
approach adopted in
Ndhlovu
regarding the accused’s right to challenge hearsay
evidence admitted under section 3(1)(c).  As I indicated earlier, the
correctness
of the approach in
Ndhlovu
was not challenged in the Supreme
Court of Appeal.
Equality
argument
[48]     During
argument, the amicus sought to persist with the equality argument.  He invited
this Court to adopt an interpretation
of section 3(1)(c) read with section 219A
of the CPA as having the effect that extra-judicial admissions are generally
not admissible
against a co-accused or against their maker.  He urged this
Court to read section 219A narrowly so as to
exclude admissions being
used against a co-accused in precisely the same way section 219 prohibits the
admission of a confession
against another accused.  This challenge boils down
to the fact that section 3(1)(c) and the approach in
Ndhlovu
have the
effect of generally discriminating against accused persons because of the
alleged irrational declarations of differentiation
between confessions and
admissions.
[79]
 The amicus contended that the ban on admitting confessions against an accused
was enacted in recognition of the inherent prejudice
against the accused that
admission of such evidence would present and yet there is no similar ban in
relation to admissions.
[49]     The
equality challenge is raised for the first time in this Court.  Although the
argument may be sound, it would not
be in the interests of justice to make a
determination on such a potentially contentious issue as the Court of first and
final
instance,
[80]
particularly when the issue was not well ventilated in argument before us.
Appropriate
consequence
[50]     It
is a cardinal principle of our criminal law that when the state tries a person
for allegedly committing an offence,
it is required, where the incidence of
proof is not altered by statute (and it is not in this case), as is the case in
this matter,
to prove the guilt of the accused beyond reasonable doubt.
[81]
  That standard of proof,
“universally required in civilised systems of criminal justice,”
[82]
is a core component of the fundamental fair trial right that every person
enjoys under section 35(3) of the Constitution.  In
S v
Zuma and
Others
,
[83]
this Court, per Kentridge AJ, held that it is always for the prosecution to
prove the guilt of the accused person, and that the
proof must be beyond
reasonable doubt.  The standard, borrowing the words used by Plasket J in
S
v T
, “is not part of a charter for criminals and neither is it a mere
technicality.”
[84]
 When the state fails to discharge the onus at the end of the case against the
accused, the latter is entitled to an acquittal.
[51]     Having
concluded that the evidence of the confession and hearsay remains inadmissible
against the applicant, the question
remains whether his conviction ought to be
upheld on the remaining admissible evidence comprising the information in the
cell phone
records and other evidence that does not directly implicate him.Â
The answer is in the negative.  The evidence does not amount
to a complete
mosaic justifying the applicant’s conviction.  The Supreme Court of Appeal
correctly found that the evidence contained
in the cell phone records, while
incriminating, would not, without further evidence, have created a sufficient
basis upon which
to convict the applicant.
[52]     When
all is said and done, the evidence contained in the statements by accused 1 and
3 indeed raise a strong suspicion
of the applicant’s complicity in the
commission of the robbery.  Sad to say, innocent people lost their lives during
the botched
robbery.  Crimes of this nature, resulting in loss of life in the
quest for money, not only touch every one of us because they
offend our deepest
principles of human rights – the right to life and the right to freedom and security
of the person - but also,
understandably, evoke exceptionally strong emotions
from many quarters in society.  Be that as it may, the applicant cannot, in
these
circumstances, be convicted merely because the Court finds his story devoid of
credence.
[53]     It
must be stressed that there is no onus on the applicant to prove his innocence.
 A mere suspicion, strong as it
might be, is not adequate to confirm his
conviction.  Convictions based on suspicion or speculation, as the court stated
in
S v T
, are “the hallmark of a tyrannical system of law” and “South
Africans have a bitter experience of such a system and where
it leads to.”
[85]
  That system cannot and ought
not, in our constitutional democracy, be countenanced.
[54]     Indeed,
the adherence to the accepted principles regarding the admissibility of hearsay
evidence and confessions may
well result in the acquittal of an accused against
whom the evidence, if admitted, would make a strong case for his guilt.  However,

if the only admissible evidence which the accused knew he had to meet cannot on
its own sustain a conviction, the conviction must
be set aside.  This result
must follow however strong the suspicion of his complicity in the commission of
the crime might be.
 The right of the accused at all important stages to know
the ambit of the case he or she has to meet goes to the heart of a fair
trial.
[55]     The
record in this matter reveals a number of material misdirections by the trial
court which resulted in the proceedings
not being in accordance with justice.  On
a conspectus of all the admissible evidence, I conclude that the state failed
to discharge
its onus in respect of the applicant.  Consequently, the
conviction of the applicant should be set aside.  It follows that the
order of
the Supreme Court of Appeal should be set aside in its entirety to the extent that
it relates to the applicant.
Order
[56]     In
the result, the following order is made:
1.
Condonation for the late filing of the
application for leave to appeal is granted.
2.
Leave to appeal is granted.
3.
The appeal is upheld.
4.
The order of the Supreme Court of Appeal is set
aside to the extent set out below:
“The appeal by the first appellant against his convictions and
sentences on counts 1, 2, 3, 4, 5, 6 and 7 is upheld.  His convictions
and
sentences on those counts are set aside.”
Langa CJ, Moseneke DCJ,
Madala J, Mpati AJ, Ngcobo J, Sachs J, Skweyiya J, Van der Westhuizen J and
Yacoob J all concur in the judgment
of Nkabinde J.
Counsel for Applicant:                     Advocate
CE Thompson
instructed by the Johannesburg Justice Centre
Counsel for Respondents:                Advocate
GL Roberts, Advocate R Vos
instructed by State Attorney, Witwatersrand Local Division
Amicus
Curiae:                                  Advocate S Budlender
                                                            appointed
by
the Johannesburg Bar Council
[1]
Act 45 of 1988, which came into effect on 3
October 1988.  The relevant provisions are contained in section 3.
[2]
S v Molimi and Another
2006 (2) SACR 8 (SCA).
[3]
S v Mbambo Sifiso and Others
CC165/01, 9 October
2003, unreported.
[4]
‘
Aggravating circumstances’ is described in
section 1(1)
of the
Criminal Procedure Act 51 of 1977
, which provides:
“(1)         In this Act, unless the
context otherwise indicates—
                ‘aggravating
circumstances,’ in relation to—
                . . .
(b)           robbery
or attempted robbery, means—
(i)            the wielding of a fire-arm or any other dangerous
weapon;
(ii)           the infliction of grievous bodily harm; or
(iii)          the threat to inflict grievous bodily harm,
by the
offender or an accomplice on the occasion when the offence is committed,
whether before or during or after the commission
of the offence;”
[5]
In contravention of section 2 read with
sections 1 and 39 of the Arms and Ammunition Act 75 of 1969.
[6]
In contravention of section 36 read with
sections 1 and 39 of the Arms and Ammunition Act 75 of 1969.
[7]
Namely:
robbery, two counts of murder,
attempted murder, unlawful possession of firearms, unlawful possession of
ammunition and kidnapping.
[8]
The death of the security guard formed the
basis of the murder in count 2.
[9]
The accidental wounding of the employee formed the basis of the
attempted murder in count 4.
[10]
The taking of the young man hostage formed
the basis of the kidnapping in count 7.
[11]
The accidental fatal shooting formed the basis of the murder in
count 3.
[12]
The statement is set out in full in note 54 below.Â
[13]
The statement is set out in full in note 58 below.
[14]
In terms of section 220 of the CPA.  These
admissions included the following: that firearms were recovered by the police
at the
scene on the day of the robbery; the identities of the deceased in
counts 2 and 3; the post-mortem reports in counts 2 and 3; photographs
of the
deceased in counts 2 and 3; and the photo album, the key and sketch plan of the
scene of the crime.
[15]
Section 217 provides:
“(1)         Evidence
of any confession made by any person in relation to the commission of any
offence shall, if such
confession is proved to have been freely and voluntarily
made by such person in his sound and sober senses and without having been

unduly influenced thereto, be admissible in evidence against such person at
criminal proceedings relating to such offence: Provided─
(a)           that
a confession made to a peace officer, other than a magistrate or justice, or,
in the case of a peace
officer referred to in section 334, a confession made to
such peace officer which relates to an offence with reference to which
such
peace officer is authorised to exercise any power conferred upon him under that
section, shall not be admissible in evidence
unless confirmed and reduced to
writing in the presence of a magistrate or justice; and
(b)           that
where the confession is made to a magistrate and reduced to writing by him, or
is confirmed and reduced
to writing in the presence of a magistrate, the
confession shall, upon the mere production thereof at the proceedings in
question─
(i)            be
admissible in the evidence against such person if it appears from the document
in which the confession
is contained that the confession was made by a person
whose name corresponds to that of such person and, in the case of a confession

made to a magistrate or confirmed in the presence of a magistrate through an
interpreter, if a certificate by the interpreter appears
on such documents to
the effect that he interpreted truly and correctly and to the best of his
ability with regard to the contents
of the confession and any question put to
such person by the magistrate; and
(ii)           be
presumed, unless the contrary is proved, to have been freely and voluntarily
made by such person in
his sound and sober senses and without having been
unduly influenced thereto, if it appears from the document in which the
confession
is contained that the confession was made freely and voluntarily by
such a person in his sound and sober senses and without having
been unduly
influenced thereto.
(2)           The
prosecution may lead evidence in rebuttal of evidence adduced by an accused in
rebuttal of the presumption
under proviso (b) to subsection (1).
(3)           Any
confession which is under subsection (1) inadmissible in evidence against the
person who made it, shall
become admissible against him─
(a)           if
he adduces in the relevant proceedings any evidence, either directly or in
cross-examining any witness,
or any oral or written statement made by him
either as part of or in connection with such confession; and
(b)           if
such evidence is, in the opinion of the judge or the judicial officer presiding
at such proceedings,
favourable to such person.”
[16]
 Zeffert et al
The South African Law of
Evidence
4ed
(LexisNexis Butterworths, Durban 2003) 506 describe a
trial-within-a-trial as a:
“…procedural
device which is essential to prevent the collision or attenuation of two
important rights of the accused, both
of which have now found constitutional
expression: the right to elect not to testify at the close of the prosecution’s
case and
the right to challenge evidence adduced against him or her and, thus,
to prevent inadmissible evidence from being received against
the accused.”
[17]
The original statement of accused 1 went
missing at the trial.  Counsel for accused 1 argued that the copy was not
reliable and
that it should not be admitted.  The state argued however that
there was nothing wrong on the face of the document to suggest that
it had been
interfered with more so that accused 1 had testified and confirmed the writing.
[18]
The police, according
to him, promised him
that he would be released if he signed the statement.
[19]
1990 (1) SACR 365 (A).
[20]
1965 (2) SA 837 (A).
[21]
S
ection 174 provides:
“
If, at
the close of the case for the prosecution at any trial, the court is of the
opinion that there is no evidence that the accused
committed the offence
referred to in the charge or any offence of which he may be convicted on the
charge, it may return a verdict
of not guilty.”
[22]
Above n 3, Application for Discharge at 6.
[23]
2002 (6) SA 305
(SCA);
2002 (2) SACR 325
(SCA);
[2002] 3 All
SA 760
(SCA).
[24]
The parties seemed to have laboured under an impression that
Ndhlovu
applies to confessions.
[25]
Above n 3 at 29.
[26]
Count 1 (robbery) 15 years; Count 2 (murder
of the Clicks security guard) life imprisonment; Count 3 (murder of the
hostage) 15
years; Count 4 (attempted murder of the injured employee) three
years; Count 5 (unlawful possession of firearm) four years; Count
6 (unlawful
possession of ammunition) one year; and Count 7 (kidnapping of the hostage)
three years.  Effectively, each accused
was to undergo imprisonment for life.
[27]
Above n 2
at para 13.
[28]
[1996] ZACC 25
;
1996 (2) SACR 113
(CC);
1996 (6) BCLR 788
(CC) at para 13.Â
Notably, the case was not concerned with the admissibility of hearsay evidence
but with section 25(3) of the
interim Constitution. It concerned the search of
the residence and offices of the applicant and seizure of documents. The
question
was whether the evidence obtained as a result of the search and seizure
was admissible in the criminal proceedings against the applicant.
The search
and seizure had taken place before the commencement of the interim
Constitution. The complaint was that the admission
of the evidence obtained
consequent to the search and seizure infringed the applicant’s fair trial
rights.
[29]
Above n 2 at para 14.
[30]
Id at para 20.
[31]
Id at para 27.
[32]
Id a
t para 24.
[33]
Id.
[34]
Id.
[35]
Id.
[36]
Id.
[37]
Id.
[38]
Id at para 28.
[39]
The state did not oppose the application for condonation.
[40]
This was in accordance with the directions issued out of this Court
by the Chief Justice on 5 April 2007. Â
[41]
The parties were directed to lodge written argument on the merits
of the appeal including the following issues:
“(a)         Whether the
statements by accused 1 and 3 constituted confessions on any of the offences
disclosed in the
charge sheet or on any offence that constituted a competent
verdict on any of the charges in the charge sheet; and
(b)           Whether vicarious
admissions by co-accused ought to be admitted in terms of section 3 of [the
Act] (in this
regard counsel’s attention is drawn to the decision in
S v
Ndhlovu
2002 (6) SA 305 (SCA)).”
[42]
The rights to be presumed innocent, to remain silent and not
to testify during proceedings, enshrined in section 35(3)(h) of the

Constitution, were also invoked by the amicus.
[43]
Above n 1.
[44]
[2003] ZACC 12
;
2003 (2) SACR 319
(CC);
2003 (10) BCLR 1100
(CC) at para 45.
[45]
The application for leave to appeal was lodged just under a year
late, the judgment in the Supreme Court of Appeal having been delivered
on 29
March 2006.Â
The reason given for the delay was that the applicant was
refused legal assistance by the Legal Aid Board.  He then, seemingly without
a
legal practitioner, lodged this application.
[46]
See section 167(3)(b) of the Constitution.
[47]
See section 167(7) of the Constitution.  See also
S v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) SACR 1
(CC);
2001 (1) BCLR 36
(CC) at
paras 13-14.
[48]
The s
tate conceded in oral argument that the case raises
constitutional matters and that this case is not similar to the case of
Boesak,
above n 47.
[49]
Section 35(3) of the Constitution provides:
“Every accused person has
a right to a fair trial, which includes the right─
                (a)           to
be informed of the charge with sufficient detail to answer it;
                (b)           to
have adequate time and facilities to prepare a defence;
                (c)           to
a public trial before an ordinary court;
                (d)           to
have their trial begin and conclude without unreasonable delay;
                (e)           to
be present when being tried;
(f)            to choose, and be
represented by, a legal practitioner, and to be informed of this right
promptly;
(g)           to have a legal
practitioner assigned to the accused person by the state and at state expense,
if substantial
injustice would otherwise result, and to be informed of this right
promptly;
(h)           to be presumed
innocent, to remain silent, and not to testify during the proceedings;
                (i)            to
adduce and challenge evidence;
                (j)            not
to be compelled to give self-incriminating evidence;
(k)           to be tried in a
language that the accused person understands or, if that is not practicable, to
have the
proceedings interpreted in that language;
(l)            not to be
convicted for an act or omission that was not an offence under either national
or international
law at the time it was committed or omitted;
(m)          not to be tried for
an offence in respect of an act or omission for which that person has
previously been
either acquitted or convicted;
(n)           to the benefit of
the least severe of the prescribed punishments if the prescribed punishment for
the offence
has been changed between the time that the offence was committed
and the time of sentencing; and
(o)           of
appeal to, or review by, a higher court.”
[50]
In
S v Bierman
[2002] ZACC 7
;
2002 (5) SA 243
(CC);
2002 (10) BCLR
1078
(CC) at para 9, this Court considered the ambit of prospects of success as
including the prospects that the Court will overturn
the result in the court
a
quo
(as this Court is minded to do in this case) rather than merely finding
for the applicant on a particular point of law.
[51]
R v Becker
1929 AD 167
at 171.  It is, according to
Du Toit et al
Commentary on the
Criminal Procedure Act
Service
issue
37, 2007 (Juta, Cape Town) at 24-51, an extra-curial admission of all the
elements of the offence charged.
[52]
Id, Service issue 38, 2007 at 24-74.
[53]
See
section 217(1)(b)
of the CPA, above n 15.
[54]
The pertinent parts of the statement of accused 1 incriminating the
applicant and accused 3 reads:
“Verlede week Dinsdag het Ishmael vir my, Ngcobo en
Xolani gebel op my selfoon.  Ons het hom ontmoet by die Shell Garage te
Ormondi.
Daar het ek vir Ishmael ontmoet.  Dit was ek, Xolani,
Mabutho Ngcobo, Ishmael het gese dat hy ‘n tip van die manager van Clicks
South
Gate gekry het en dat ons die geld moes kom vat daar by Clicks.
Laasweek Donderdag het ons die bestuurder Limela
ontmoet by FNB.  Sy van is moontlik Molime.  Hy het gese daar is geld wat ons

moet gaan vat by Clicks.  Hy het gese FG sal die geld kom haal en hy sal ons
bel en dan moes ons  die geld by FG vat binne in
sy die manager se kantoor.
Hy het gese as FG inkom sal hy ons bel.  As FG uitgaan
sal hy ons weer bel.
Gister weer by FNB Stadium het ons weer die manager
ontmoet.  Ons het weer gepraat oor die ding en het klaargepraat.
Vandag Maandag 2000-10-30 om 07:30 het ons ontmoet by
die k/v Edith Cavelle en Peterson Strate, Hillbrow.  Dit was ek, Xolani,
Ishmael, Mzwethu Ngcobo, Mokwelani Mbabmo, Mabutha, Mkize en nog een was saam
met Ishmael gekom het.  Ek ken hom nie.  Ons het
almal vuurwapens gehad.  Ons
het met my broer se Conquest, BMW wit van kleur en ‘n Honda gery na South Gate
Shopping Centre.
Die manager het eers vir Ishmael op sy selfoon gebel
en het my toe op my selfoon gebel my sel no is 082 866 4344.  Dit was tussen

ons en die manager afgespreek dat hy ons net sal skakel.  Ons moes nie praat
nie.  Die 1ste oproep was die teken dat FG gekom
het en die 2de oproep ‘n teken
dat FG uit die winkel gegaan.
Ons het gegan na Clicks.  Xolani het sy vuurwapen op
die sekuriteitswag gerig.  Dit is FG se Sekuriteiswag.  Xolani, Mdwaleni,

Mbambo en ek is in by die kantoor.  Xolani het die geld in a swartsak gesit en
die ander geld ook in ‘n ander swart sak gesit.Â
Xolani het die een sak vir
Ncobe gegooi en die ander sak vir Mkize.  Die manager was ook in die kantoor.
Ons is uit die kantoor.  Skote het begin klap en ek
het gesien dat Mkize en die sekuritetswag op mekaar skiet.  Ek het ook ‘n
sak
geld by my gehad.  Ons het weggehardloop.  Ek het die geld neergegooi.
‘n Kleurlingman het op my
begin skiet.  Daar was ‘n ander man ek het agter hom gaan wegkruip.  Die
kleurlingman het die persoon
geskiet.  Ek is daar gevang deur die sekuriteit.Â
Ek het my vuurwapen op die grond neergesit en hulle het dit gevat.  Die
sekuriteitswagte
het my toe aangerand.  Die Polisie het my later gevat by
hulle.”
[55]
Save for counsel for accused 3 who did not accept that the
statement of accused 1 amounted to a confession.
[56]
The ban was in recognition of the prejudice to the accused
presented by the admission of such evidence.  That is now fortified
by the
right to fair trial enshrined in the Constitution.
[57]
See
R v Baartman and Others
1960 (3) SA 535
(A) at
542D; [1960] 3 All SA at 542 , quoted with approval in
S v Banda and Others
1990
(3) SA 466
(BG);
1991 (2) SA 352
(B) at 506.  See also
S v Makeba and
Another
2003 (2) SACR 128
(SCA) at para 14.
[58]
The statement reads thus:
“Molemi
came to about a week before October. Molemi works at Clicks and I knew him from
the time I use to work for FG.  I picked
up money when I was working for FG
(Fidelity Guards).  He asked me who I know or if I can find people to come and
take some money
from Clicks.  So I promised him that I will get some people who
is naughty who will do this job.  I then approached Sifiso who
I knew used to
rob some stores in JHB.  Then I took Sifiso to meet Molemi at Nando’s.  There
we spoke about organising a robbery
at Clicks.  Sifiso told us that he will
bring some other guys to help with the job . . .  On the day of the robbery I
was by
myself and I went to Southgate to see if everything was going as
planned. I knew what time they were supposed to rob Clicks . .
. . I was in
contact with Sifiso by cellphone.
He phone
me that morning and confirmed that everything was still on for the day and that
they planned to rob between 08:00 and 09:00
am.  I went to Southgate at 08:00
am and waited in the car where I could see the entrance.  Whilst I was waiting
I phoned Sifiso
just to be sure  that everything was going smoothly I waited
for a long time and nothing happened. I phoned Sifiso and told him
it is
getting late, it was after 10:00 already.  He assured me that everything was
still fine.  I then left and Molemi phoned
me that same day after 11:00 am and
told me that Sifiso came to Clicks and tried to rob, but that they failed.  He
was very angry
that the planned robbery did not succeed. I just left it alone.Â
I never spoke to Sifiso or Molemi again . . . The last time I
spoke to Sifiso
was before the robbery when he phoned me on my private cellphone.  I never
spoke to any of them again up to now
. . . . ”
[59]
Section 219A provides:
“(1)         Evidence
of any admission made extra-judicially 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 relating
to that offence: Provided that where the admission is made
to a magistrate and
reduced to writing by him or is confirmed and reduced to writing in the
presence of a magistrate, the admission
shall, upon the mere production at the
proceedings in question of the document in which the admission is contained—
(a)           be
admissible in evidence against such person if it appears from such document
that the admission was made
by a person whose name corresponds to that of such
person and, in the case of an admission made to a magistrate or confirmed in

the presence of a magistrate through an interpreter, if a certificate by the
interpreter appears on such document to the effect
that he interpreted truly
and correctly and to the best of his ability with regard to the contents of the
admission and any question
put to such person by the magistrate; and
(b)           be
presumed, unless the contrary is proved, to have been voluntarily made by such
person if it appears from
the documents in which the admission is contained
that the admission was made voluntarily by such person.
(2)           The
prosecution may lead evidence in rebuttal of evidence adduced by an accused in
rebuttal of the presumption
under subsection (1).”
[60]
In his statement accused 3 said—
“[T]hey
planned to rob between 08:00 and 09:00 am.  I went to Southgate at 08:00 and
waited in the car . . . for a long time
and nothing happened.  I phone Sifiso
and told him it is getting late, it was after 10:00 already.  He assured me
that everything
was still fine.  I then left.
”
[61]
See in this regard
S v Nzo and Another
[1990] ZASCA 10
;
1990 (3) SA 1
(A);
[1990] 2 All SA 181
(A);
S v Nomakhala and Others
1990 (1) SACR 300
(A);
[1990] 3 All SA 985
(A);Â
S v Singo
[1992] ZASCA 219
;
1993 (2) SA 765
(A);
[1993] 1 All SA
465
(A); and
S v Nduli and Others
1993 (2) SACR 501
(A);
[1993] 2 All SA
612
(A).
[62]
See in this regard
S v Grove-Mitchell
1975 (3) SA 417
(A);
[1975] 3 All SA 423
(A) at 419.
[63]
See above n 57 at 542.
[64]
Section 216 (repealed by section 9 of the Act), reads:
“Except where this Act provides otherwise, no evidence
which is of the nature of hearsay evidence shall be admissible if such evidence

would have been inadmissible on the thirtieth day of May 1961.”
[65]
The rationale of excluding hearsay as inadmissible is a recognition
of the unreliability and unfairness emanating from such evidence.Â
I
ts
unreliability and susceptibility is said to be based on the so-called ‘hearsay
damages’ of insincerity and defective memory,
perceptive powers and narrative
capacity.
[66]
Comparatively, other jurisdictions, such as the United States and
Canada, have grappled with the proper approach to use when evaluating
the
admissibility of hearsay. In
Ohio v Roberts
448 US56 (1980) at 64-66,
the Supreme Court held that the Confrontation Clause in the Sixth Amendment to
the Constitution would
not be violated, thus allowing the admission of hearsay
where the maker of the statement was unavailable and where the evidence
bears
adequate “indicia of reliability”.  Interestingly, that Court has, since
Crawford
v Washington
541 US 36
(2004), departed from the approach in
Roberts
requiring that hearsay evidence be admitted where there are sufficient “indicia
of reliability”, stating that “[w]here testimonial
statements are at issue, the
only indicium of reliability sufficient to satisfy constitutional demands is
the one the Constitution
actually prescribes: confrontation.”
The Canadian Supreme Court’s approach moves away from
the rigid and inflexible application of the rule against the admission of

hearsay evidence.  The Court has the power to develop the common law, thus
creating new exceptions when the need arises.  Such
power is subject to
safeguards described in the dissenting judgment of Lord Pearce in
Myers v
Director of Public Prosecutions
[1965] AC 1001
at 1040-41.  Briefly, the
safeguards include the following: (1) the case must be one in which it is
difficult to obtain other
evidence; (2) the declarant must be disinterested –
disinterested in the sense that the declaration was not made in favour of
his
interest; (3) the declaration must be made before the litigation or dispute so
that it was made without bias.  This approach
has been adopted in
Ares v
Venner
[1970] SCR 608
at 618 and in
R v Khan
[1990] 2 SCR531.Â
In the latter case the Court introduced an exception
for the admission of hearsay evidence of children in sexual abuse cases.  It

described Lord Pearce’s safeguards as resulting in two general requirements of
“necessity and reliability”.  The Court retains
a discretion to exclude
evidence that meets the criteria of reliability and necessity if its admission
would result in a Charter
violation.
[67]
2002 (1) SA 511
(SCA);
[2002] 1 All SA 413
(SCA) at paras 21-22.
[68]
S v Shaik and Others
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA);
[2007] 2
All SA 9
(SCA) at para 170.
[69]
Above n 23 at paras 17-18.
[70]
1996 (1) SACR 639
(A) at 649d-e.
[71]
Above n 2 at para 27.
[72]
Above n 2 at para 20.
[73]
See
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995
(1) SACR 568
(CC);
1995 (4) BCLR 401
(CC) at para 16, applied in
S v Legoa
2003 (1) SACR 13
(SCA);
[2002] 4 All SA 373
(SCA) at para 21. See also S v
Shaik and Others 2008 (1) SACR 1 (CC).
[74]
See
S v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC);
2005 (5) BCLR
423
(CC) at para 29.
[75]
In
Ramavhale
above n 70 at 651c-d, the Supreme Court
of Appeal correctly remarked:
“[t]he frequent practice of admitting evidence
provisionally, though appropriate in some situations, often works most
unfortunately.Â
Instead of forcing practitioners to prove relevant facts by
admissible evidence it may allow them to range around vaguely, which
is not
good for the administration of justice or for anybody, except perhaps the
beneficiaries of costs unnecessarily incurred.”
[76]
Among others, that (1) the reception of the hearsay evidence
should not come at the end of the trial when the accused is unable to
deal with
it and that (2) the accused must understand the full evidentiary ambit of the
case against him.
[77]
Above n 23 at para 24.
[78]
Id.
[79]
They argued that the discrimination is at odds with section
9(1) of the Constitution which provides: “everyone is equal before
the law and
has the right to equal protection and benefit of the law”.
[80]
This is a practice repeatedly found wanting by this Court.  See in
this regard
Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd
[2007] ZACC 2
;
2007 (5) BCLR 453
(CC);
Du Toit v Seria
[2006] ZACC 25
;
2006 (8) BCLR 869
(CC);
Phenithi
v Minister of Education and Others
2003 (11) BCLR 1217
(CC);
Lane NO and
Another v Dabelstein and Others
[2001] ZACC 14
;
2001 (2) SA 1187
(CC);
2001 (4) BCLR 312
(CC) at para 5;
Dormehl v Minister of Justice
2000 (2) SA 987
(CC);
2000
(5) BCLR 471
(CC) at para 5;
Bruce and Another v Fleecytex Johannesburg CC
and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 8;
Christian
Education South Africa v Minister of Education
1999 (2) SA 83 (CC); 1998
(12) BCLR 1449 (CC).
[81]
The standard does not vary according to the extent of the
seriousness of the crime.
[82]
S v T
2005 (2) SACR 318
(E) at para 37.
[83]
Above n 73 at para
25.
[84]
Above n
82.
[85]
Id.