Constitutional Court in Mhlongo v S; Nkosi v S (CC) (unreported case no 148/14, 149/14, 25-6-2015) (Theron AJ) restores common law position existed before Ndhlovu and Others v S [2002] 3 All SA 760 (SCA)

September 30th, 2015
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By Ananias Tshabalala

The Constitutional Court (CC) has restored the common law position that extra-curial statements against co-accused are inadmissible. The court held that admitting extra-curial admissions against a co-accused unjustifiably offends against the right to equality before the law. The court further held that if the extra-curial statements were excluded, there is insufficient evidence to secure convictions against the applicants.

Prior to the court arriving at its decision, the court questioned what the remaining case against the applicants was. It was very clear that 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 conviction.

Traditionally the common law prohibited the admission of extra-curial statements against co-accused. This common law prohibition stemmed from English common law. Halsbury’s Laws of England 4 ed (Durban: LexisNexis 1990) vol 11 (2) at para 1131 summarised the position of English common law as that: ‘Where several persons are accused of an offence, and one of them makes a confession or an admission, that confession or admission is evidence only against the party making it. Statements made, like acts done, by one of several accomplices or co-conspirators in pursuance of the common design, are evidence against the others, but statements which are not made in pursuance of the common design are evidence only against the makers.’

South African common law indicates that admission by one accused against a co-accused is inadmissible, even if it is made to a magistrate or peace officer.

The CC had jurisdiction – since there are constitutional issues involved in the case – namely, the right 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 the appeal, was 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 the CC to intervene.

In R v Barlin 1926 AD 459 at 462 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.’

Section 216 of Criminal Procedure Act 51 of 1977, before it was repealed, provided that: ‘[N]o 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’. The effect of this section had been to prohibit, subject to defined common law exceptions, the admission of hearsay evidence.

In the Ndhlovu case, the main question before the Supreme Court Appeal (SCA) was whether an accused’s extra-curial statements incriminating a co-accused, if disallowed at the trial, can nevertheless be used as evidence against the other accused. The court allowed the admission of an extra-curial admission made by one accused against all the accused as hearsay evidence in terms of s 3(1)(1) of the Law of Evidence Amendment Act 45 of 1988 even if it is disavowed by its maker. The reason behind this was that the probative value of an extra-curial admission depends on the credibility of its maker at the time of making it and not at the time he appears in court.

The common law rule that an extra-curial statement by an accused is inadmissible against a co-accused was relaxed in Ndhlovu.

Section 3 of the Law of Evidence Amendment Act 45 of 1988 (LEA Act) provides that ‘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 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.’

Section 219A of Criminal Procedure Act 51 of 1977 provides that: ‘(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 document in which the admission is contained that the admission was made voluntarily by such person’.

In Litako and Others v S 2014 (3) All SA 138 (SCA) the accused were convicted principally on the basis of a statement made by the first appellant to a magistrate which, although exculpatory in respect of him, implicated the other appellants to a greater or lesser degree. The first appellant contested the admissibility of the statement, denying the truth of its content and that it had been freely and voluntarily made. Although the first appellant testified during a trial-within-a-trial held to determine the admissibility of his statement, he did not testify in his defence in relation to the merits of the case against him. The other appellants and their co-accused all testified and denied any involvement in the events on which the charges were based. The trial judge in his decision made reference to the judgment of Ndhlovu and S v Molimi 2008 (3) SA 608 (CC) as authority for admitting the statement by the first appellant as evidence against the others in terms of the provisions of s 3(1)(c) the LEA Act. In relation to the doctrine of common purpose, the court in Litako had regard to the decision of this court in S v Mgedezi and Others 1989 (1) SA 687 (A) and concluded that all of the accused had acted in concert in perpetrating the offences.

The SCA in Litako imposed a blanket exclusion of all extra-curial statements against co-accused. This was irrespective of the relevance of the evidence in question and the minor contribution it could have to the state’s case. The SCA recently held in Machaba and Another v S [2015] 2 All SA 552 (SCA) at para 23 that it has authoritatively held in Litako ‘that the extra-curial confession or admission of one accused is inadmissible as evidence against another accused’.

The common law position has long been in existence as in R v Baartman and Others 1960 (3) SA 535 (A) at 542 the Appellate Division considered the common law rule that an extra-curial statement of one accused was inadmissible against a co-accused. ‘It follows that Baartman and Kock were convicted because the trial court found on his confession that Honey [a co-accused] was one of the murderers, and that they had been in his company not long before and not long after the murder. In convicting Baartman and Kock the trial court excluded from its consideration the statements in Honey’s confession which directly implicated them, but it used the 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 court in Ndhlovu seemed not to have had regard as to whether the LEA Act altered the common law. In interpreting a statute it cannot be inferred that it alters the common law unless there is a clear intention to do so. The CC in Mhlongo held that the LEA 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.

Section 9(1) of the Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law.

The court held that 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 that violates s 9(1). It cannot be saved by the an open and democratic society based on human dignity, equality and freedom limitations clause contained in s 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’.

Section 15 (1) of the Canadian Charter of rights and freedoms provides that ‘… [e]very individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’

 Conclusion

Since there were some scholars who felt that the decision of the SCA in Litako to have imposed a blanket exclusion of all extra-curial statements against co-accused, irrespective of the relevance of the evidence in question and the minor contribution it could have had to the state’s case it left some questions unanswered. The CC has now brought this issue of extra-curial admission by an accused against a co-accused to finality. The CC has realised that admission of extra-curial admission against co-accused unjustifiably offends against the right to equality before the law and held that the interpretation adopted in Ndhlovu, that extra-curial admissions are admissible against co-accused in terms of s 3(1)(c) of the Evidence Amendment Act, creates a differentiation that unjustifiably limits the s 9(1) right of accused implicated by such statements, and as a result of that found that it was so fair and justifiable to restore the common law position that existed prior Ndhlovu. The current position now is very clear that should extra-curial statements be excluded, and the evidence left before the court is insufficient to secure convictions against an accused, he must be acquitted.

Ananias Tshabalala LLB (Unisa) is a law graduate in Mafikeng.

This article was first published in De Rebus in 2015 (Oct) DR 49.