Litako and Others v S (SCA) (unreported case no 584/2013, 16-4-2014)

By Arthur Henry Olsen

The law has many areas that are unclear and require a lucid mind and analytical bent in order to see the wood for the trees. Sometimes our courts take an issue which the common law both eloquently and concisely defines, and with one judgment create considerable confusion and uncertainty, as evidenced below.

How many times has an attorney not consulted with a client and come away from the initial consultation confident that the client’s version is reasonably possibly true only to be bedevilled, on receipt of the further particulars, with a delightfully incriminatory statement by a co-accused?

The law in respect of confessions has been clear in that s 219A of the Criminal Procedure Act 51 of 1977 provides that a confession shall be admissible only against the maker thereof, and the common law provided that admissions by a co-accused were only admissible against the maker thereof. Into this certainty stepped the Supreme Court of Appeal and slightly muddied the waters.

In S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) the court allowed the admission of an extra-curial admission made by one accused against all the accused in terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988. In Litako and Others v S (SCA) (unreported case no 584/2013, 16-4-2014), the Appellate Division paraphrased the approach in the Ndhlovu case and held that: ‘The purpose of this Act is to allow the admission of hearsay evidence in circumstances where the interests of justice dictates its reception. If the interests of justice requires the reception of hearsay evidence the right of an accused person to challenge the admissibility of the evidence does not include the right to cross-examine the declarant’ (Litako at para 29).

This created uncertainty because, although the court did not explicitly say that the Law of Evidence Amendment Act replaced or removed the common law position, it was certainly implicit in the judgment of the court.

The above-mentioned judgment was met with much criticism from both academic writers and experts in the field of criminal law, with the totally correct and unassailable objection being raised that in doing so, the court had erred in changing and altering the common law in a manner that was on dubious constitutional footing since it infringed seriously on the accused’s right to adduce and challenge evidence, which is implicit in his or her right to a fair trial.

In S v Molimi 2008 (3) SA 608 (CC) the Constitutional Court was faced with a similar type of matter but chose not to rule on the correctness of the approach adopted in the Ndhlovu case above.

In Balkwell and Another v S [2007] 3 All SA 465 (SCA) concern was expressed in a minority judgment as to the correctness of the approach enunciated in the Ndhlovu case. However, the effect was lessened by the tacit approval of Ndhlovu given by the SCA in Mamushe v S [2007] 4 All SA 972 (SCA). Although the aforementioned showed a slight shift in attitude for the better, in that the court warned that courts should be very cautious to admit hearsay evidence.

The result of all of this remained the admission of extra-curial admissions of one accused against another, and much trial time has been spent by prosecutors attempting to have such admissions declared admissible, despite the fact that our common law prohibits the admissibility of such evidence and solely because of the decision in the Ndhlovu case.

Fortunately the Supreme Court of Appeal recently reconsidered the matter in Litako and proceeded in a systematic manner to evaluate all the decisions mentioned above and the English law in respect of the admissibility of co-accused admissions. At para 65 the court found that: ‘The shifting of blame from one co-accused to another to avoid conviction is not uncommon in our criminal justice system. Furthermore, other than when one is dealing with vicarious admissions or statements made in furtherance of a conspiracy, neither of which is applicable in the present case, it is difficult to see how one accused’s extra-curial statement can bind another. Co-accused, more often than not, disavow extra-curial statements made by them and often choose not to testify. They cannot be compelled to testify, and in the event that an extra-curial statement made by one co-accused and implicating the others is ruled admissible and he or she chooses not to testify, the right of the others to challenge the truthfulness of the incriminating parts of such a statement is effectively nullified. The right to challenge evidence enshrined in s 35(3)(i) of the Constitution is thereby rendered nugatory. In this regard, the decision of the Canadian Supreme Court in R v Perciballi [2002] 2 SCR 761 is instructive.’

In addition, at para 67 in Litako the court said: ‘One can rightly ask how the rights of an accused person to challenge evidence adduced against him can be more circumscribed under our new constitutional order than they were under the old regime. It has been suggested by commentators that s 3(1) has sufficient safeguards to ensure the preservation of fair trial rights, more particularly, that s 3 permits a court to admit hearsay evidence only if it “is of the opinion that such evidence should be admitted in the interests of justice”. Considering the rationale at common law for excluding the use of extra-curial admissions by one accused against another, it appears to us that the interests of justice is best served by not invoking the Act for that purpose. Having regard to what is set out above, we are compelled to conclude that our system of criminal justice underpinned by constitutional values and principles which have, as their objective, a fair trial for accused persons, demands that we hold, s 3 of the Act notwithstanding, that the extra-curial admission of one accused does not constitute evidence against a co-accused and is therefore not admissible against such co-accused.’

This judgment is of seminal importance for two major reasons. First it recognises that for too long extra-curial admissions have been the poor relation of confessions when it came to admissibility, with almost no safeguards in place. More importantly, an admission may be as incriminatory as any confession depending on its content and not its designation.

Secondly, that as a constitutional state under law the right of an accused to challenge and adduce evidence is integral to his or her right to a fair trial and once that is effected, it cannot be said that he or she has had a fair trial and our courts will intervene timeously.

Arthur Henry Olsen LLB (Unisa) is an attorney at Cyster Borchards Attorneys in Cape Town.

This article was first published in De Rebus in 2014 (July) DR 42.