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[2015] ZACC 19
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Mhlongo v S; Nkosi v S (CCT148/14; CCT149/14) [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC) (25 June 2015)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Cases
CCT 148/14 and CCT 149/14
In
the matter between:
BOSWELL
JOHN
MHLONGO
Applicant
and
THE
STATE
Respondent
And
the matter between:
ALFRED
DISCO
NKOSI
Applicant
and
THE
STATE
Respondent
Neutral
citation:
Mhlongo
v S; Nkosi v S
[2015] ZACC 19
Coram:
Moseneke DCJ, Cameron J, Froneman J, Jappie AJ,
Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and
Tshiqi AJ
Judgment:
Theron AJ (unanimous)
Heard
on:
10 March 2015
Order
on:
25 March 2015
Reasons
on:
25 June 2015
Summary:
Extra-curial admissions of an accused
inadmissible against a co accused — not admissible in
terms of
section 3
of the
Law of Evidence Amendment Act 45 of 1988
—
admission of extra curial admissions but not confessions
violates section 9(1) of the Constitution — common
law position
restored
REASONS FOR
ORDER
THERON
AJ (Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J,
Madlanga J, Molemela AJ, Nkabinde J and Tshiqi AJ
concurring):
Introduction
[1]
The central issue is the admissibility of
extra-curial statements of an accused against a co-accused in a
criminal trial. It
arises in two applications in which the
applicants seek leave to appeal against their convictions and
sentences. This Court
is called upon to determine the
constitutional validity of the admissibility of these statements.
[2]
On 25 March 2015 this Court made the
following order:
“
1.
Condonation is granted for the late filing of the applications for
leave to appeal.
2.
Leave to appeal is granted in respect of both applications.
3.
The appeals are upheld.
4.
The order under case number CAF 08/2012 of the Full Court of the
North West High
Court, Mafikeng, is set aside to the extent set out
below:
(i)
The appeals by the second and fourth appellants against their
convictions and
sentences on counts 1, 2, 4 and 5 are upheld.
(ii)
Their convictions and sentences on those counts are set aside.
5.
The applicants must be released from prison immediately.
6.
Reasons for this order shall be given at a later date.”
It
was in the interests of justice to release the applicants prior to
the handing down of these reasons. Paragraph 6 of the order
recorded
that reasons would be given at a later date. These reasons are
set out below.
Factual
background
[3]
On 3 August 2002 the deceased, Warrant
Officer Johannes Dingaan Makuna, was shot at his home. It was
alleged that the applicants
were part of a group of men who shot Mr
Makuna and planned to steal his bakkie. He died later in
hospital. At the time,
the deceased had been in possession of
his service pistol. It was never recovered.
Trial
court proceedings
[4]
Arising
out of this incident, the applicants (accused 2 and 4), together with
six co-accused,
[1]
stood trial before a single judge in the North West High Court,
Mafikeng (trial court)
[2]
on charges of murder (count 1), robbery with aggravating
circumstances (count 2), attempted robbery (count 3), unlawful
possession
of firearms (count 4) and unlawful possession of
ammunition (count 5). In the alternative to murder, they were
charged with
conspiracy to commit robbery in contravention of section
18(2)(a) of the Riotous Assemblies Act.
[3]
They pleaded not guilty to the charges. The trial
commenced in 2003 and continued into 2004.
[5]
A
trial-within-a-trial was held to determine the admissibility of
extra-curial statements made by accused 1, 3, 6 and 7. The
admissibility of these statements was contested by the accused on the
basis that they were not made freely and voluntarily but
under threat
of assault or promise of reward. The Court nevertheless ruled
that the statements were admissible. It
also found that the
statements were admissions and not confessions,
[4]
and admissible against the other accused in terms of section 3(1)(c)
of the Law of Evidence Amendment Act
[5]
(Evidence Amendment Act). In this regard, the High Court relied
on
Ndhlovu
,
where the Supreme Court of Appeal held that such statements were
admissible in terms of the Evidence Amendment Act.
[6]
The evidence supporting the conviction of the applicants was
based almost exclusively on the extra curial statements
made by
their co-accused.
[7]
[6]
The
trial court found that the accused had a common purpose to murder and
rob the deceased and convicted them of four of the five
counts.
[8]
On 22 July 2004, they were sentenced to life imprisonment for
the murder; fifteen years’ imprisonment for the robbery;
and
three years’ imprisonment in respect of each of the two
remaining charges relating to possession of the firearms and
ammunition. The sentences imposed for counts 2, 4 and 5 were
ordered to run concurrently with the life sentences. The
accused were acquitted of the alternative charge of conspiracy to
commit robbery.
Full
Court and Supreme Court of Appeal
[7]
The
accused appealed to the Full Court against their convictions and
sentences.
[9]
The appeal was largely grounded on the inadmissibility of the
extra-curial statements.
[10]
It was dismissed, amongst other reasons, on the ground that the
hearsay evidence of Mr Thabo Matjeke (accused 1) and Mr George
Makhubela (accused 3), which was relied on to convict the applicants,
became “automatically admissible” because these
accused
confirmed portions of the statements in their oral testimony. The
Full Court concluded that the statements—
“
[are]
not hearsay evidence but evidence envisaged in section 3(1)(b) of the
[Evidence Amendment] Act. Once the declarant of
the statement
confirms it under oath, the evidence becomes automatically
admissible. The question of whether the interests
of justice
require it, has no application here”.
[11]
[8]
The
Court ruled that the statement of Mr Samuel Khanye (accused 7)
[12]
was admissible in the interests of justice, as provided for in
section 3(1)(c) of the Evidence Amendment Act, and it was
corroborated
by aspects of the testimony of Mr Matjeke and Mr
Makhubela. The Full Court also found that there was no reason
to interfere
with the sentences imposed.
[9]
A petition to the Supreme Court of Appeal
for leave to appeal was dismissed. The applicants then applied
for leave to appeal
to this Court.
In
this Court
[10]
Although
the applicants submitted two separate applications, their legal
submissions are virtually identical. The primary
basis of each
application is that the admission of extra-curial statements against
co-accused violates constitutionally protected
rights to equality
[13]
and to a fair trial.
[14]
[11]
The
State concedes that in terms of the common law an accused’s
extra-curial statement is inadmissible as evidence against
a
co-accused. It further concedes that the Supreme Court of
Appeal in
Litako
,
[15]
which took a different approach from
Ndhlovu
,
was correct in confirming the common law prohibition against the use
of extra-curial statements against co-accused. However,
the
State suggests that section 3 of the Evidence Amendment Act might
render such statements admissible provided that the requirements
set
out in
Ndhlovu
are complied with. The State concedes, however, that both the
High Court and Full Court did not properly apply the guidelines
set
out in
Ndhlovu
.
[12]
The
State argues that as the applicants were charged, in the alternative,
with conspiracy to commit robbery, the common law exception
to the
inadmissibility of hearsay evidence was relevant. In terms of
this exception, vicarious admissions or extra-curial
statements made
in furtherance of a conspiracy are admissible against a co accused
without violating fair trial rights.
[16]
While the State ultimately agrees that this exception is not
applicable to the facts of this case, it asks the Court to pronounce
on the continued existence of this exception.
Condonation
[13]
The
applicants seek condonation for the late filing of their applications
for leave to appeal. Their counsel, Mr Jordaan,
appeared at the
request of the Court.
[17]
The Court is indebted to him for his assistance in this matter.
[14]
The petition to the Supreme Court of Appeal
was refused on 6 August 2013. Mr Mhlongo filed his application
for leave to appeal
to this Court on 8 September 2014 and Mr
Nkosi on 10 September 2014.
[15]
The applicants have been incarcerated for
over a decade and do not have sufficient financial resources to fund
an appeal of this
nature. They applied to Legal Aid South
Africa for assistance with their intended appeal to this Court, but
without success.
Eventually a fellow prison inmate, a law
student, assisted the applicants to draft their application to this
Court. The
explanation advanced for the delay is reasonable
and, when measured with the prospects of success, the interests of
justice dictate
that condonation should be granted.
Leave
to appeal
[16]
The
primary question for consideration, whether the Constitution permits
the admission of an extra-curial statement by an accused
against a
co-accused in a criminal trial, was not directly before the trial
court or the Full Court. In
Molimi
,
this Court was presented with a similar situation and declined to
decide the issue. It was reluctant to act as court of
first and
last instance on a contentious issue when it had not been fully
ventilated.
[18]
Although the constitutional challenge now before us was not
raised or considered by the courts below, we have had the benefit
of
full argument from counsel and the Supreme Court of Appeal has had an
opportunity to consider the same question, albeit in other
matters.
[19]
[17]
This matter engages this Court’s
jurisdiction as it implicates the rights to equality before the law
and to a fair trial.
These are fundamental rights protected in
the Bill of Rights. The issue at the heart of this appeal,
namely the constitutional
tenability of the decision in
Ndhlovu
,
which allows extra-curial statements to be admitted against a
co-accused if it is in the interests of justice to do so, is a
constitutional issue and is of significant public importance.
Accordingly, it is in the interests of justice for this Court
to grant leave to appeal.
History
of the common law prohibition on extra-curial statements against
co-accused
[18]
At
common law the extra-curial statement of an accused was inadmissible
against a co-accused.
[20]
This
common law prohibition stemmed from English common law. In 1832
the Court for Crown Cases Reserved in
R
v Turner
was
called upon to pronounce on a conviction for theft.
[21]
The
conviction was based on the evidence tendered in a confession of a
co-accused, who was an employee of the complainant.
The Court
unanimously held that the confession of an accused was inadmissible
against a co-accused and the conviction was thus
wrongly made.
[22]
[19]
In
Barlin
,
[23]
the Appellate Division confirmed that statements by an accused were
admissible against
their
makers
:
“
The
common law allows no statement made by an accused person to be given
in evidence against himself unless it is shown by the prosecution
to
have been freely and voluntarily made in the sense that it has not
been induced by any promise or threat proceeding from a person
in
authority. See
R
v Thompson
and
Ibrahim
v R
.
That is a principle covering all admissions or statements made
by the accused; and apart from statute it would govern
the
admissibility of confessions properly so called.”
[24]
(Citations omitted.)
Then,
in
Matsitwane
,
the Court made it plain:
“
If the
statements contain admissions of fact material to the Crown case such
admissions can be used as evidence to prove these facts
but only
against the accused who made such admissions. Consequently,
in
deciding the case against one of the accused the Court can pay no
regard to the contents of the statement made by the other
”.
[25]
(Emphasis added.)
[20]
This
principle was further considered and applied in
Baartman
[26]
where the Court cautioned against relying on evidence of a co-accused
because its admissibility was precluded under the common
law:
“
In
so convicting Baartman and Kock the trial Court . . . used the
[statements in Honey’s] confession to establish an essential
part of the chain of inference leading to their conviction, namely,
that Honey had taken part in the murder. This was clearly
wrong. The general principle is stated in
Wigmore
3 ed at para 1076. It is
illustrated by
R v
Turner
168
ER 1298.
In this Court the case of
R
v
Nkosi
and Zulu
, reported only at 1959 PH H 91
(A), is much in point . . . Hoexter JA said—
‘
in
finding as against the second appellant that the first appellant had
administered poison to the deceased, the trial Court fell
into the
error of relying on the statement of the first appellant, which was
not admissible against the second appellant.’”
[27]
[21]
In
Molimi
,
Nkabinde J confirmed this common law rule recognising that an
“admission made to a magistrate or a peace officer by one
accused is inadmissible against another accused”.
[28]
Codification
of the common law
[22]
Before
1918, the common law did not distinguish between statements of an
accused as either admissions or confessions.
[29]
The Criminal Procedure Code Act 31 of 1917 (1917 CPA), which
came into force on 1 January 1918, introduced the term “confession”.
The 1917 CPA specifically prohibited confessions from being
admissible against any person other than the maker.
[30]
There was no provision in respect of admissions. In
addition, section 273 of the 1917 CPA introduced different, more
stringent requirements for the admission of “confessions”
against their maker. It contained a proviso that required
a
confession made to a peace officer to be confirmed and reduced to
writing in the presence of a magistrate or justice of the peace.
[23]
In
Hans
Veren
,
[31]
Wessels J concluded that this proviso should be interpreted as
strictly as possible and only an absolute confession of guilt (being
an admission of every element of the crime) would fall under the
proviso. A mere statement which, together with other evidence,
may lead to the conviction of an accused would not.
[32]
This
is how the differentiation between admissions and confessions arose.
This strict interpretation of the meaning of a confession
was
approved by the Appellate Division in
Barlin
[33]
and
Becker
.
[34]
[24]
The
1917 CPA was repealed by the Criminal Procedure Act 56 of 1955
(1955 CPA). The distinction between admissions and
confessions was retained in this Act, and made even more
explicit.
[35]
Section
273 of the 1917 CPA was virtually re enacted as section 244 of
the 1955 CPA. In terms of section 246 of the 1955
CPA,
confessions continued to be inadmissible against “any other
person”.
[25]
The
Criminal Procedure Act 51 of 1977 (current CPA) replaced the 1955
CPA. Sections of the current CPA relevant to this enquiry
are
sections 217, 219 and 219A. Section 217 governs the
admissibility of confessions against an accused and sets out the
requirements to be complied with in order to render a confession
admissible. Section 219 precludes the admissibility of
confessions against another person.
[36]
Section 219A stipulates the requirements relating to the
admissibility of an admission and, in relevant part, provides:
“
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”.
Impact
of Ndhlovu on the common law
[26]
The
common law rule that an extra-curial statement by an accused is
inadmissible against a co-accused was relaxed in
Ndhlovu
.
In that case, the Supreme Court of Appeal held that an extra-curial
admission, but not a confession, by an accused is admissible
against
a co-accused if: the requirements of section 3 of the Evidence
Amendment Act, dealing with the admission of hearsay evidence,
are
satisfied;
[37]
no constitutional principles are offended; and it is in the interests
of justice to admit such evidence.
[38]
[27]
The
reasoning in
Ndhlovu
cannot
be supported for a number of reasons. First, it did not deal
with the common law rule against allowing admissions to
be tendered
against a co-accused.
[39]
The Court appeared to assume that the hearsay aspect of the
evidence was its major pitfall and could be rescued by section
3 of
the Evidence Amendment Act.
[28]
Second,
the Court in
Ndhlovu
did
not deal with the provisions of section 3(2) of the Evidence
Amendment Act.
Extra-curial
admissions and confessions are hearsay by nature: their probative
value depends on the credibility of a person (the
accused) other than
the person who gave such evidence. Under the common law,
hearsay evidence was generally excluded.
[40]
Section
3(1) of the Evidence Amendment Act codified this common law
principle,
[41]
providing
that hearsay evidence is inadmissible, subject to certain
exceptions.
[42]
[29]
Section
3(2) of the Evidence Amendment Act provides that section 3(1) “shall
not render admissible any evidence which is inadmissible
on any
ground other than that such evidence is hearsay evidence”.
The statements of co-accused, with which we are confronted
in this
case, are inadmissible for reasons outside of their hearsay
nature.
[43]
[30]
Third,
Ndhlovu
did not seem to have regard to the provisions of section 219A of the
current CPA – which expressly allows an admission to
be
admitted only against its maker and is silent regarding other
persons. The reasoning of the Supreme Court of Appeal in
Litako
,
that this section does not contemplate extra-curial admissions being
tendered as evidence against anyone else, is sound.
[44]
[31]
Fourth,
the Court in
Ndhlovu
seemed not to have had regard to whether the Evidence Amendment Act
altered the common law.
[45]
In
interpreting a statute it cannot be inferred that it alters the
common law unless there is a clear intention to do so.
[46]
A
statute must be interpreted in a manner that makes the least inroads
into the common law.
[47]
Together with section 3(2), another indicator that the Evidence
Amendment Act did not alter the common law is to be found
in section
3(1) which provides that “
subject
to the provisions of any other law
hearsay
evidence shall not be admitted as evidence” unless certain
stipulated requirements are met.
[48]
The Evidence Amendment Act altered the common law in relation to
hearsay evidence but it did not alter or intend to alter
the common
law in relation to the admissibility of extra-curial statements made
by an accused against a co-accused.
Equality
before the law
[32]
It
was contended by the applicants that the distinction drawn by
Ndhlovu
between admissions and confessions, effectively leads to indirect
differential treatment between different groups of accused.
[49]
Those implicated by an admission, on the one hand, and a
confession, on the other. A confession is inadmissible against
another person, while, according to
Ndhlovu
,
an admission may be admissible. The applicants maintain that
the distinction is unjustifiable, rigid and arbitrary.
It
violates section 9(1) of the Constitution, which provides that
everyone is equal before the law and entitled to equal protection
and
benefit of the law.
[33]
The distinction between confessions and
admissions is determined solely by the extent to which the statement
implicates its maker.
This distinction becomes relevant in
determining the safeguards that are put in place to ensure the
voluntariness of the confession
or admission. If a confession
can be used, with little more, to secure the conviction of its maker
(as opposed to an admission
which would still require the State to
prove various elements of the crime), then there may be logic in
applying more stringent
requirements on its admission against that
accused. This distinction is apparent in the differences
between sections 217
and 219A of the current CPA. However, the
distinction has nothing to do with a third party. Accordingly,
there is no
rational reason why, when used against another person,
there should be a difference in the admissibility of the two types of
statements.
The Supreme Court of Appeal in
Litako
said:
“
From
the perspective of the one accused, who may be implicated in the
statement of another, one strains to discern a sound jurisprudential
basis for the distinction.”
[50]
While
this Court, in
Molimi
,
declined to pronounce on the issue, it did state that the “argument
may be sound”.
[51]
[34]
The
differentiation must be evaluated in terms of section 9(1) of the
Constitution. This Court has held that a distinction
made in
the law will contravene section 9(1) if it is irrational.
[52]
The purpose of this is to ensure that the State functions in a
rational manner, in order to enhance the coherence and integrity
of
the law.
[53]
This is essential to the rule of law – the fundamental premise
of the constitutional state.
[54]
[35]
It
must be ascertained whether the differentiation complained of is
rationally connected to the achievement of a legitimate government
purpose,
[55]
as opposed to being arbitrary or capricious.
[56]
To this end, a legitimate purpose must be identified. It is
difficult to conceive of any rational reason why an admission
ought
to be admissible against a co-accused but not a confession. The
State offered no reasons for this differentiation.
The
rationale for precluding the admissibility of a confession –
the inherent dangers in using statements by co-accused
[57]
– which is expressly guaranteed in section 219 of the current
CPA, applies equally to admissions.
[36]
Litako
expressed
concern that the mere characterisation of a statement as a confession
or admission could determine its admissibility.
[58]
That
concern became manifest in this matter. The High Court
initially characterised the extra-curial statements by Mr Matjeke
and
Mr Khanye as confessions, only to later re-characterise them as
admissions.
[59]
It
was contended by the applicants that this was an attempt to force
open the door to the admission of these statements as evidence
against them and that this could undermine the integrity of the
courts. Even though admissions and confessions are distinctly
defined, it is possible for courts to get it wrong with possible
prejudicial consequences for an accused.
[60]
[37]
The
differentiation between accused implicated by confessions versus
admissions cannot be lawfully sustained. It is not designed
to
achieve any legitimate purpose. It is an irrational distinction
which violates section 9(1). It cannot be saved
by the
limitations clause contained in section 36 of the Constitution
because this limitation on the right to equality before the
law is
not “reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom”.
[61]
Nor did the State seek to justify this limitation.
[38]
The interpretation adopted in
Ndhlovu
,
that extra-curial admissions are admissible against co-accused in
terms of section 3(1)(c) of the Evidence Amendment Act, creates
a
differentiation that unjustifiably limits the section 9(1) right of
accused implicated by such statements. The pre-
Ndhlovu
common law position that extra curial
confessions and admissions by an accused are inadmissible against
co accused must
be restored.
As
a result of this finding, it is not necessary to consider the
applicants’ additional argument that the admission of
extra-curial
statements of an accused against a co-accused offends
against the right to a fair trial.
Common
law exception
[39]
At
common law, there is an exception to the exclusion of extra-curial
statements of co-accused: if the statement constitutes an
“executive
statement”
[62]
by an accused, it may be admissible against a co-accused if it was
made in furtherance of a common purpose
[63]
or conspiracy.
[64]
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.
[40]
It is not necessary to determine this
issue. The facts do not arise. The extra curial
statements here were not
“executive” in nature, as
conceded by the State, and would not fall under this exception.
Determining this matter
without any factual matrix to guide our
understanding is unnecessary and undesirable. This question was
not fully ventilated
before us and we thus have insufficient
information to make a determination in that regard.
The
remaining case against the accused
[41]
The
extra-curial statements being inadmissible, the question is now: what
remains of the case against the applicants? At the
close of the
State’s case, the only evidence against the applicants was the
extra-curial statements of the co-accused.
If the trial court
had correctly declared the evidence inadmissible, the applicants may
have been entitled to be discharged at
that stage. In any
event, at the end of the trial, the evidence as a whole was
insufficient to ground the applicants’
convictions.
[65]
Counsel for the State correctly conceded this.
[42]
The
remainder of the evidence consisted of the oral testimony by two of
the applicants’ co-accused, Mr Matjeke and Mr Makhubela.
[66]
Having
regard to the cautionary rule, the evidence should have been
corroborated by independent evidence.
[67]
This
is due to the fact that both the trial court and the Full Court were
of the view that their testimony was inconsistent with
their
extra-curial statements and previous oral evidence.
[68]
In
addition, the trial court did not believe large portions of their
evidence and concluded that they were unreliable witnesses.
[69]
Both
sets of testimony were treated with caution but instead of
corroborating these versions with independent evidence, they were
used to corroborate each other. The Full Court’s
conclusion that, because the various inconsistent versions confirmed
each other in certain respects, this constituted sufficient evidence
to implicate the applicants, must be rejected.
[70]
[43]
It follows that whatever meagre evidence
against the applicants remains after the extra-curial statements are
excluded, was unreliable,
uncorroborated and cannot justify their
convictions.
Conclusion
[44]
The common law position before
Ndhlovu
,
that extra-curial statements against co-accused are inadmissible,
must be restored. Admitting extra-curial admissions against
a
co-accused unjustifiably offends against the right to equality before
the law. If the extra-curial statements here are
excluded,
there is insufficient evidence to secure convictions against the
applicants. For these reasons their convictions
and sentences
were set aside and their immediate release ordered.
For
the
Applicants:
D Jordaan at the request of the Court.
For the
Respondent:
N Carpenter instructed by the Office of the Director of Public
Prosecutions, North West.
[1]
During
the course of the proceedings in the trial court, accused 6
disappeared and failed to attend court.
[2]
Known
then as the Bophuthatswana Provincial Division of the High Court.
[3]
17 of
1956.
[4]
The
trial court was initially of the view that some of the statements
were confessions. See the trial court judgment at
49 and 51.
(All page references to the trial court judgment in these footnotes
have been referred to, for ease of reference,
by this Court’s
own numbering – starting at page one of the judgment (labelled
as 1) and onwards.)
[5]
45 of
1988.
[6]
S v
Ndhlovu and Others
[2002] ZASCA 70
;
2002
(2) SACR 325
(SCA) (
Ndhlovu)
.
[7]
This
is dealt with later at [41] and below n 65.
[8]
Murder
(count 1), robbery with aggravating circumstances (count 2),
unlawful possession of firearms (count 4) and unlawful possession
of
ammunition (count 5).
[9]
A Full
Court is the statutory term for a bench of three High Court judges,
usually sitting as an appeal court of that Division,
in terms of
sections 1
and
17
(6)(a) of the
Superior Courts Act 10 of 2013
.
It was defined as a court consisting of two or more judges in terms
of
section 1(v)
of the repealed Supreme Court Act 59 of 1959.
[10]
The
other grounds upon which the appeal was based in the Full Court, and
no longer at issue on appeal before this Court, were:
(1) An
irregularity in the proceedings in that the State closed its case
before the trial court made a ruling on the reception
of hearsay
evidence against the co-accused; (2) The accused testified out of
sequence to the prejudice of their co-accused; (3)
Mr Matjeke
(accused 1) was allowed to reopen his case without good reason; (4)
The extra-curial evidence of Mr Matjeke was given
involuntarily, he
was not warned of his rights beforehand and his in-court testimony
was contradictory and unreliable; (5) The
Court failed to apply the
cautionary rule to the evidence of Mr Matjeke and Mr Makhubela
(accused 3); and (6) The use of hearsay
evidence in the form of
extra-curial statements by some of the accused against other accused
was contrary to the principles laid
down in
S
v Molimi
[2008] ZACC 2; 2008 (3) SA 608 (CC); 2008 (5) BCLR 451 (CC).
[11]
Matjeke
and Others v S
[2013]
ZANWHC 95
(Full Court judgment) at para 44.
[12]
Appellant
6 before the Full Court.
[13]
Section
9(1) of the Constitution provides that “[e]veryone is equal
before the law and has the right to equal protection
and benefit of
the law”.
[14]
Section
35(3) of the Constitution, in relevant part, provides:
“
Every
accused person has a right to a fair trial, which includes the
right—
.
. .
(i)
to adduce and challenge evidence”.
[15]
S v
Litako and Others
[2014]
ZASCA 54
;
2014 (2) SACR 431
(SCA);
[2014] 3 All SA 138
(SCA)
(
Litako
).
[16]
S v
Ffrench-Beytagh
1972
(3) SA 430
(A). See also id at para 65.
[17]
This
was in accordance with a letter from this Court to the Chairperson
of the Pretoria Society of Advocates, dated 11 December
2014.
[18]
Molimi
above
n 10 at para 49.
[19]
See
Litako
above
n 15 at para 54
.
See
also
S
v Libazi and Another
[2010]
ZASCA 91
;
2010 (2) SACR 233
(SCA) at paras 9-16 and
Balkwell
and Another v S
[2007]
ZASCA 91
;
[2007] 3 All SA 465
(SCA) (
Balkwell
)
(the judgment of Ponnan JA) at paras 30-6
.
In
these cases the Court found that the principle in
Ndhlovu
that extra curial admissions were admissible against co-accused
while confessions were inadmissible, was inconsistent with
the
constitutional right to a fair trial and, in
Litako,
the
Court also found that the distinction was irrational and implied
that it was inconsistent with the right to equality before
the law.
[20]
R v
Matsitwane
1942
AD 213
and
R
v Baartman
1960
(3) SA 535 (A).
[21]
R v
Turner
168 ER 1298.
The Court for Crown Cases Reserved was an English
Appellate Court which heard criminal cases from 1848 to 1907.
[22]
This
principle remains a part of English law. In
R
v Hayter
[2005]
2 All ER 209
;
[2005] UKHL 6
at paras 7 8, the House of
Lords held that out-of-court confessions made by a defendant are
admissible against the
maker but as a general rule are not
admissible against anyone implicated in the confession. In
English law, a confession
includes any statement made wholly or
partly adverse to its maker – see section 82(1) of the Police
and Criminal Evidence
Act 1984. See also
Litako
above n 15 at paras 32-7 which cites the following English cases:
R
v Moore
(1956) 40 Cr App Rep 50 CCA;
Surujpaul
(called Dick) v R
[1958] 3 All ER 300
at 304A-B;
R
v George Cecil Rhodes
(1960) 44 Cr App Rep 23 at 28; and
R
v Spinks
[1982] 1 All ER 587
(CA) at 589D-E. All these cases find that
extra-curial evidence that incriminates a co-accused is
inadmissible. See
also
Molimi
above n 10 at para 35 and fn 66.
[23]
R v
Barlin
1926
AD 459.
[24]
Id at
462.
[25]
Matsitwane
above n 20 at 220.
[26]
Baartman
above
n 20, referring to the Appellate Division judgment in
R
v Nkosi and Zulu
1959
PH H 91 (A).
[27]
Baartman
id
at 542.
[28]
Molimi
above
n 10 at para 33.
[29]
Barlin
above
n 23 at 462.
[30]
Section
275 provided that “[n]o confession made by any person shall be
admissible as evidence against any other person”.
[31]
R v
Hans Veren and Others
1918 TPD 218.
[32]
Id at
222.
[33]
Barlin
above n 23 at 462 and 465-6.
[34]
R v
Becker
1929 AD 167
at 171-2.
[35]
Section
67 of the 1955 CPA provides:
“
Nothing
in this Chapter contained shall prevent any prosecutor from
tendering as evidence any
admission or
confession
or other statement made or
any evidence given by the accused which under Chapter XIV, would be
admissible in evidence against
him.” (Emphasis added.)
[36]
This
section shares the same wording as its predecessor: section 275 of
the 1917 CPA above n 30.
[37]
In
terms of section 3(4) of the Evidence Amendment Act, hearsay
evidence is defined as “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”.
[38]
Ndhlovu
above
n 6 at paras 12-6.
[39]
Id at
para 49.
[40]
Mamushe
v S
[2007] ZASCA 58
;
[2007] 4 All SA 972
(SCA) at para 13. See
also i
d at para
30, which states that the “principal reason for not allowing
hearsay evidence is that it may be untrustworthy
since it cannot be
subjected to cross-examination”
.
[41]
Mamushe
id.
This replaced section 216 of the current CPA which contained a more
stringent prohibition on hearsay evidence, subject
to limited common
law exceptions. See also
Ndhlovu
above n 6 at para 12.
[42]
Section
3(1) provides:
“
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless—
(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.”
[43]
This
was noted in
Litako
above
n 15 at para 51 and
Balkwell
above
n 19 at paras 33-4.
[44]
The
Court held in
Litako
id
at para 54:
“
Quite
clearly the ‘any person’ and ‘him’ refer to
one and the same person – the maker of the statement.
Thus, although there is no statutory bar as with a confession, the
Legislature, consistent with the common law, albeit less
emphatically, has secured the same protection in section 219A for a
co-accused in respect of an admission as it did in respect
of a
confession.”
[45]
In
Dhanabakium
v Subramanian and Another
1943
AD 160
at 167 the Appellate Division held that the common law
position must be borne in mind when interpreting a statute.
[46]
S v
Kimberley and Another
[2005] ZASCA 78
at para 13.
[47]
Blom
and Another v Brown and Others
[2011]
ZASCA 54
;
[2011] 3 All SA 223
(SCA) at para 21 and
Dhanabakium
above
n 45. See also this Court’s confirmation of this
principle in
S
and Another v Acting Regional Magistrate, Boksburg: Venter and
Another
[2011] ZACC 22
;
2011 (2) SACR 274
(CC);
2012 (1) BCLR 5
(CC) at para
19. In
Litako
above
n 15 at para 52, the Supreme Court of Appeal, with reference to
Casserley
v Stubbs
1916 TPD 310
at 312 and
Johannesburg
Municipality v Cohen’s Trustees
1909
TS 811
at 823, confirmed the well-established canon of
interpretation that a statute must be interpreted in conformity with
the common
law unless a contrary intention is expressed, in the
context of the Evidence Amendment Act and its effect on the common
law prohibition
of the use of extra-curial admissions against
co-accused.
[48]
Emphasis
added.
[49]
In
Molimi
above
n 10 at para 28,
this
Court defined confessions as an “unequivocal acknowledgment of
guilt, the equivalent of a plea of guilty before a court
of law”
and defined admissions as a “statement or conduct adverse to
the person from whom it emanates”.
[50]
Litako
above
n 15 at para 54.
[51]
Molimi
above
n 10 at paras 48-9.
[52]
Prinsloo
v Van der Linde and Another
[1997]
ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at paras 24-6
read with para 56.
[53]
Id at
para 25.
[54]
Id.
[55]
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) at
paras 42-3.
[56]
Weare
and Another v Ndebele NO and Others
[2008] ZACC 20
;
2009 (1) SA 600
(CC);
2009 (4) BCLR 370
(CC) at para
46. See also, for example,
Da
Silva v Road Accident Fund and Another
[2014] ZACC 21
;
2014 (5) SA 573
(CC);
2014 (8) BCLR 917
(CC) at para
7.
[57]
In
S
v Hlapezula and Others
1965
(4) SA 439
(A) at 440D-E, the Court pointed out the inherent dangers
of in court testimony of an accused implicating a co-accused:
an accused may be a self-confessed criminal; she might try to shield
or implicate others involved; she might hope for preferential
treatment in sentencing; and she may be able to convincingly
implicate a co-accused because of her inside knowledge of the
crime. See also
Litako
above
n 15 at para 65;
Libazi
above n 19 at para 14; and
Balkwell
above
n 19 at paras 32-5. These dangers are intensified when the
statement was made out-of-court and its maker cannot be
subject to
cross examination.
[58]
Balkwell
id
at para 54.
[59]
Trial
court judgment at: 49, lines 6-9 and 18-21 (Mr Matjeke); 51, lines
1-2 (Mr Khanye); 56, lines 4-6 (Mr Matjeke); 63,
lines 16-9 (Mr
Matjeke), as compared with 69, lines 3-11 and 71, lines 5-12.
See also
Litako
above
n 15 at para 110.
[60]
As in
this case and in
Molimi
above n 10 at paras 10 and 19. In
Molimi
,
the record of the proceedings at the High Court revealed that the
statement of one of the accused was generally understood by
the
parties as constituting a confession. The Supreme Court of
Appeal however decided the accused’s case on the basis
that
the statement was an admission and not a confession.
[61]
Section
36(1) of the Constitution.
[62]
Hoffmann
and Zeffertt
The
South African Law of Evidence
4 ed (Butterworths, Durban 1988) at 190, explains this by
distinguishing between two types of statements that relate to common
purpose. These are “executive statements” and
“narrative statements”. The former are made
in
furtherance of a common purpose and are admissible evidence against
a co-accused while the latter are an account or an admission
of a
past event. 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.
In other words in order to be admissible, the statement
needs to
form part of the acts done in the commission of the crime.
[63]
As
held in
R
v Miller and Another
1939 AD 106
at 115-6 hearsay evidence, with the exception of
confessions, can be used to incriminate a co-accused provided that
it is in
furtherance of the common purpose and not an account of the
alleged past event. See also
Litako
above
n 15 at para 65.
[64]
R v
Mayet
1957 (1) SA 492
(A). See also
Ffrench-Beytagh
above n 16;
R
v Cilliers
1937 AD 278
; and
R
v Levy
and
Others
1929 AD 312.
[65]
Trial
court judgment at 46:
“
Now
as I have already stated the evidence of the State in this matter is
mainly based on the statements that were made by the
accused to the
magistrate and the pointing out.”
Later
at 69, the trial court reiterates that “the State’s
evidence is dependent on the statements that have been admitted
which are not confession statements”. In the trial
court’s critical evaluation of the evidence against the
accused at 68-76, the evaluation appears to depend almost
exclusively on the extra-curial statements of the co accused.
However, in the Full Court judgment at para 40, the Court only
states that
part
of the evidence upon which Mr Mhlongo and Mr
Nkosi were convicted are the extra-curial statements of Mr Matjeke,
Mr Makhubela
and Mr Khanye. However, this does not accord
with the emphasis of the trial court judgment.
[66]
Mr
Matjeke (in his second, drastically different testimony) and Mr
Makhubela (who testified straight after this amended version
came to
light) both testified that Mr Mhlongo was driving the vehicle and
placed Mr Nkosi in the car at the scene of the shooting.
[67]
See,
for example,
Davids
v S
[2014]
ZASCA 74
at paras 12 and 17 read with para 11 and
S
v Khumalo
1998
(1) SACR 672
(N) at 679B.
[68]
In the
trial court judgment at 75, the trial court found that the
statements of Mr Matjeke and Mr Makhubela were different in
certain
respects but that “[a]ll of a sudden the statement of [Mr
Matjeke] and that of [Mr Makhubela] here in
c
ourt
no
w
is
one
,
they
ar
e
actually singing the same song
”.
In
the Full Court judgment at para 35, the Court held that Mr Matjeke’s
testimony in court was “a total contradiction
of what he is
alleged to have told the magistrate and Captain Ncube”.
It also found that his first oral testimony
was at odds with his
second evidence-in-chief and that the magnitude of this difference
was significant. The Court concluded
at para 36 that he
had given three contradictory versions.
Indeed,
the Full Court acknowledged at para 34, that where “an
accomplice or a single witness or any other witness has made
a
previous inconsistent statement, he/she must give a convincing
account for such different explanations”. No such
explanation was forthcoming or accepted by the trial court or the
Full Court.
[69]
The
trial court held at 75 that it did not believe Mr Matjeke.
From his testimony, the Full Court at para 36, concluded
that Mr
Matjeke was an “unreliable witness” and “a
reckless liar”. The Full Court at para 37
considered Mr Makhubela’s final version to be “not
reasonably possibly true”.
[70]
In
addition, the Full Court acknowledged at para 37 that Mr Nkosi was
only vaguely implicated by Mr Makhubela, and Mr Matjeke’s
statement said nothing about the role Mr Nkosi played.