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[2018] ZASCA 99
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Nndwambi v S (168/2018) [2018] ZASCA 99 (14 June 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 168/2018
In
the matter between:
NTSHAVHENI
SAMUEL
NNDWAMBI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Nndwambi
v S
(168/2018)
[2018] ZASCA 99
(14 June 2018)
Coram:
Lewis
and Saldulker JJA and Mothle AJA
Heard:
No
oral hearing in terms of
s 19(a)
of the
Superior Courts Act 10 of
2013
Delivered:
14
June 2018
Summary:
An
extracurial admission made by a co-accused is not admissible against
other co-accused. Conviction set aside.
ORDER
On
appeal from:
Limpopo
Division of the High Court, Thohoyandou (Makgoba AJ sitting as court
of first instance):
1 The appeal against the
convictions for murder and robbery with aggravating circumstances is
upheld, and the convictions and sentences
on those counts are set
aside.
2 The order of the trial
court is replaced with:
‘
The
fourth accused is found not guilty on the charges of murder and
robbery with aggravating circumstances.’
JUDGMENT
Lewis
JA (Saldulker JA and Mothle AJA
concurring)
[1]
This is an appeal against convictions of the appellant for murder and
robbery with aggravating circumstances, handed down by
the then
Limpopo Division of the High Court, Thohoyandou, (Makgoba AJ) on 22
August 2005. The appellant was one of four co-accused,
three of whom
pleaded not guilty. The first accused made an extra-curial admission
exculpating himself to a large degree and incriminating
the other
three accused, including the appellant. Makgoba J accepted the
extra-curial admission and convicted all four of the accused
on the
strength of that admission alone. The appellant was sentenced to life
imprisonment for the murder and 20 years’ imprisonment
for the
robbery. Makgoba AJ refused the appellant’s application for
leave to appeal against conviction and sentence on 16
March 2007.
[2]
The appellant has been detained in custody for well over ten years
now. This court gave leave to appeal to it in January 2017.
The
appeal was not timeously prosecuted and lapsed. The appellant seeks
condonation for the delay in prosecuting the appeal and
its
reinstatement on the roll. The explanations proffered for the delay
relate in the main to the tardiness of the court processes
and the
illness of counsel representing the State. In my view, while the
explanations are not particularly compelling, the delay
is not the
fault of the appellant and there would be a grave miscarriage of
justice if the appeal were not to be considered. Condonation
is
accordingly granted and the appeal reinstated.
[3]
As the State has conceded, the admission incriminating the appellant
should not have been sufficient to discharge the State’s
onus
of proving the appellant’s guilt beyond a reasonable doubt. The
appellant denied any involvement in the commission of
the offences
and no evidence was led by the State other than that of the accused
who incriminated his co-accused.
[4]
In the seminal decision of
S
v Litako
[2014] ZASCA 54
;
2015 (3) SA 287
, this court (per Navsa and Ponnan
JJA) held that s 3(1)
(c)
of the Law of Evidence Amendment Act (which permits the admission of
hearsay evidence in exceptional circumstances) did not prevail
over
the principles of the common law that admissions made extra-curially
were not to be used against a co-accused. This court
examined the
South African common law, as well as the law of other jurisdictions,
in particular England from which our law of evidence
derives, and
concluded that since any out-of-court statement by a co-accused would
compromise the constitutional right to a fair
trial, it should not be
admissible against an accused. See paras 67 and 68 of
Litako
in particular.
[5]
Given the State’s concession in this regard, as well as its
referral to
Mulaudzi
v S
[2016] ZASCA 70
, in which this court upheld the appeal of one of the
appellant’s co-accused in the trial court (on the basis that
the evidence
adduced by the State before the trial court was not
satisfactory in all respects), this court considers it unnecessary to
hold
an oral hearing for the appeal.
Section 19(a)
of the
Superior
Courts Act 10 of 2013
provides that a court may dispose of an appeal
without the hearing of oral argument.
[6]
Accordingly, despite the fact that the appeal has been set down for
hearing on 15 August 2018, we have agreed, having considered
counsels’ heads of argument and the record of the trial, that
the appeal should be upheld, the convictions being bad in law.
The
Registrar of this court is directed immediately to transmit the order
of this court to the detention centre in which the appellant
is being
held, so that he can be released from custody immediately.
[7]
Accordingly:
1 The appeal against the
convictions for murder and robbery with aggravating circumstances is
upheld, and the convictions and sentences
on those counts are set
aside.
2 The order of the trial
court is replaced with:
‘
The
fourth accused is found not guilty on the charges of murder and
robbery with aggravating circumstances.’
________________________
C
H Lewis
Judge of Appeal
APPEARANCES
For
Appellant: A A Ramanyimi
Instructed
by:
Sigwavhulimu
Attorneys, Thohoyandou
Bokwa
Inc, Bloemfontein
For
Respondent: N R Nekhambele
Instructed
by:
Director
of Public Prosecutions, Thohoyandou
Director
of Public Prosecutions, Bloemfontein