Brief Summary

Criminal Law — Extra-curial admissions — Admissibility against co-accused — Applicants convicted based on extra-curial statements made by co-accused — Trial Court relied on common purpose doctrine — Applicants challenged admissibility, alleging duress — Constitutional Court found extra-curial admissions inadmissible against co-accused, insufficient evidence for convictions — Convictions and sentences set aside, applicants ordered to be released from prison immediately.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application for leave to appeal to the Constitutional Court against a decision of the North West High Court, Mafikeng (the Trial Court), and the subsequent dismissal of an appeal by a Full Bench of that Division. The matter reached the Constitutional Court after the Supreme Court of Appeal dismissed applications for leave to appeal.

The parties were Mr Samuel Sampie Khanye (first applicant) and Mr Victor Zandile Moyo (second applicant), who had been tried together with five co-accused, and the State as respondent (represented by the National Director of Public Prosecutions). The applicants had been convicted, on the basis of common purpose, of murder, robbery with aggravating circumstances, and unlawful possession of firearms and ammunition, and were sentenced to life imprisonment for murder, 15 years’ imprisonment for robbery, and six years’ imprisonment for the firearms and ammunition counts.

The general subject matter of the dispute was the admissibility and use of extra-curial statements made by certain accused persons, and whether—once those statements were excluded in accordance with the Constitutional Court’s later authority—the remaining evidence was sufficient to sustain the applicants’ convictions. The application was also accompanied by an application for condonation for a materially late filing.

The Constitutional Court had already issued an order on 22 March 2017 granting leave to appeal, upholding the appeal, setting aside the applicants’ convictions and sentences, and directing their immediate release, with reasons to follow. This judgment (reasons delivered on 10 August 2017) provides the Court’s explanation for that order.

2. Material Facts

On 3 August 2002, Warrant Officer Dingaan Makuna (the deceased) arrived at his home in Mothutlung, North West Province, with his service pistol tucked into his waist. Two motor vehicles, described as a Toyota Camry and a bakkie, were parked outside the premises. Two armed men entered the premises and shot the deceased three times in the presence of his daughter. He was taken to hospital and died later that night. His service pistol was never recovered.

The applicants and five co-accused were arrested and charged with murder, armed robbery, and unlawful possession of firearms and ammunition. During the investigation and after arrest, the accused made extra-curial statements to an investigating officer and to a magistrate; some also made pointings-out (including identifying the deceased’s house and a tavern where the group allegedly gathered before the incident).

The admissibility of these extra-curial statements and related evidence was contested in the Trial Court. The accused alleged the statements were not made freely and voluntarily, alleging assaults by police and promises of money and bail. A trial-within-a-trial was held. The Trial Court ruled that statements made by certain accused (including Messrs Matjeke and Makhubela) and pointings-out by Mr Khanye and Mr Matjeke were admissible, and treated these statements as forming the basis of the State’s case.

As regards Mr Khanye, the facts the Constitutional Court treated as remaining material after excluding inadmissible co-accused statements were limited. The Court identified that, once the extra-curial statements of the co-accused were excluded, the only remaining evidence implicating him was that the investigating officer (Inspector Nkosi) testified that Mr Khanye pointed out the deceased’s house. In his own defence at trial, Mr Khanye testified to an alibi (that he worked at a golf course in Brits on the day) and claimed his pointing-out was done under duress; however, for purposes of the Constitutional Court’s disposition, the decisive point was that even accepting the pointing-out, it did not prove participation in the offences or common purpose.

As regards Mr Moyo, the Constitutional Court treated the position as starker. Mr Moyo’s own extra-curial statement to a magistrate was to the effect that he had no knowledge of the killing. The Constitutional Court accepted the State’s position that the only direct evidence implicating him in the offences was contained in the extra-curial statements of co-accused. Mr Moyo testified at trial advancing an alibi, stating he was at Seshego in Limpopo and attended a party there on the day in question. After the exclusion of co-accused extra-curial statements, the Court considered there to be no evidence capable of sustaining his convictions.

3. Legal Issues

The central legal issue was whether, in light of the Constitutional Court’s earlier decision in Mhlongo v S; Nkosi v S, the extra-curial admissions or statements of an accused person could be used as evidence against a co-accused, and what the consequences were for convictions that materially depended on such evidence.

Closely connected to that was whether, once those statements were excluded, the remaining admissible evidence was sufficient to prove beyond reasonable doubt that each applicant participated in the offences, including through common purpose.

The dispute was primarily one of law, namely the admissibility and permissible evidential use of extra-curial statements against co-accused (and the interaction between common-law principles and section 219A of the Criminal Procedure Act). It also involved the application of law to the evidential record to determine whether the admissible evidence met the criminal standard of proof.

A preliminary procedural issue was whether condonation should be granted for the applicants’ very late filing, which required an interests of justice assessment informed by the adequacy of the explanation and the prospects of success.

4. Court’s Reasoning

On condonation, the Court applied the settled approach that condonation is an indulgence and requires an adequate explanation for delay, together with an assessment of whether granting condonation is in the interests of justice. Although the Court regarded the explanation for the delay as inadequate, it considered that the applicants had prospects of success, that some of their co-accused had already succeeded in the Constitutional Court and been released, and that the State would suffer no prejudice. Those considerations led to condonation being granted.

On leave to appeal, the Court reasoned that it was in the interests of justice to grant leave because the Constitutional Court had previously granted leave and upheld appeals for co-accused convicted in the same incident (including in Mhlongo v S; Nkosi v S and Molaudzi v S). The applicants stood in a comparable position because their convictions were also dependent on the impugned use of extra-curial statements.

On the merits, the Court treated Mhlongo v S; Nkosi v S as dispositive of the evidential question. It summarised that Mhlongo confirmed the common-law position that extra-curial admissions tendered by an accused are not admissible against a co-accused. It also relied on the statutory framework, noting that section 219A of the Criminal Procedure Act 51 of 1977 expressly provides that an admission may be admitted only against its maker, and is silent about use against others; the Court construed this as meaning the provision does not contemplate extra-curial admissions being evidence against another person.

The Court further noted the limited common-law exception identified in Mhlongo, namely that where a statement constitutes an “executive statement” made in furtherance of a common purpose or conspiracy, it may be admissible against a co-accused, but only where there is other evidence (aliunde) establishing the existence of the common purpose before the statement is taken into account. The Court did not treat the present matter as falling within that exception on the record it considered.

Applying these principles, the Court assessed each applicant’s case without reference to the co-accused extra-curial statements.

In Mr Khanye’s case, the Court held that the extra-curial statements of Messrs Matjeke and Makhubela were inadmissible against him and therefore could not be used to implicate him. On that footing, the Court identified the only remaining evidence as the investigating officer’s evidence that Mr Khanye had pointed out the deceased’s house. The Court reasoned that even if the pointing-out were accepted, it did not, on its own, prove that Mr Khanye participated in the offences, that he shot the deceased, or that he acted in common purpose with the perpetrators. The Court concluded that the remaining evidence was insufficient to sustain the convictions.

In Mr Moyo’s case, the Court reasoned that once the co-accused extra-curial statements were excluded, no evidence remained that could warrant a conviction. The Court explicitly held that mere alleged presence at or near the scene, in the company of suspects, was not sufficient to convict in the absence of admissible evidence establishing participation or liability on the State’s charges. This led the Court to conclude that his convictions and sentences also could not stand.

The Court noted that the matter was decided without oral argument, on written submissions. It also recorded that the State conceded that, in light of Mhlongo, the evidence against the applicants was insufficient and their convictions could not be sustained, and requested their immediate release. The Court accepted that concession as correct.

5. Outcome and Relief

The Constitutional Court granted condonation for the late filing.

It granted leave to appeal and upheld the appeal. It set aside the order of the Full Bench of the North West High Court to the extent that it related to the applicants, upheld their appeal against convictions and sentences on counts 1, 2, 4 and 5, and set aside their convictions on those counts.

The Court ordered that the applicants must be released from prison immediately. The reasons judgment does not record a distinct costs order.

Cases Cited

Khanye and Another v S (CCT86/16) [2017] ZACC 29; 2017 (11) BCLR 1399 (CC); 2017 (2) SACR 630 (CC).

Matjeke v S [2013] ZANWHC 95.

Mhlongo v S; Nkosi v S [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC).

Molaudzi v S [2015] ZACC 20; 2015 (8) BCLR 904 (CC); 2015 (2) SACR 341 (CC).

S v Ndhlovu & Others [2002] ZASCA 70; 2002 (2) SACR 325 (SCA).

S v Litako and Others [2014] ZASCA 54; 2014 (2) SACR 431 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977 (section 219A).

Law of Evidence Amendment Act 45 of 1988 (section 3(1)(b)).

Constitution of the Republic of South Africa, 1996 (referred to generally in relation to admissibility against co-accused).

Rules of Court Cited

No specific rules of court are cited in the reasons provided.

Held

Extra-curial admissions and confessions by an accused are inadmissible against a co-accused, and section 219A of the Criminal Procedure Act 51 of 1977 supports the position that admissions are receivable only against their maker. Once the co-accused extra-curial statements were excluded in accordance with Mhlongo v S; Nkosi v S, the remaining evidence against each applicant was insufficient to sustain their convictions on murder, robbery with aggravating circumstances, and unlawful possession of firearms and ammunition. The convictions and sentences were accordingly set aside and the applicants were ordered to be released immediately.

LEGAL PRINCIPLES

The common-law rule, confirmed in Mhlongo v S; Nkosi v S and applied here, is that an accused person’s extra-curial admission or confession is generally not admissible as evidence against a co-accused.

Section 219A of the Criminal Procedure Act 51 of 1977 was applied on the basis that it contemplates the admissibility of admissions only against the person who made them, and does not authorise their use against others.

A limited exception exists at common law for an “executive statement” made in furtherance of a common purpose or conspiracy, but such a statement may be used against a co-accused only where the existence of the common purpose is established by evidence aliunde before the statement is considered.

In assessing sufficiency of evidence, the Court applied the principle that the State must prove guilt beyond reasonable doubt on admissible evidence, and that alleged presence near the scene or association with suspects is insufficient without admissible proof of participation or liability (including under common purpose).

In relation to condonation, the Court applied the principle that condonation is an indulgence requiring consideration of the explanation for delay and, crucially, whether granting condonation is in the interests of justice, including the presence of prospects of success and absence of prejudice.

Khanye and Another v S (CCT86/16) [2017] ZACC 29; 2017 (11) BCLR 1399 (CC); 2017 (2) SACR 630 (CC) (10 August 2017)