Litako & others v S

During the night of 4 February 2007 at the White House Tavern, Mmatau Village, a robbery occurred in which cash and cellular telephones were taken, a patron was assaulted, and shots were fired resulting in the death of Mr Ben Seretse Motshwaedi. The appellants and a co-accused were charged with murder, robbery with aggravating circumstances, assault with intent to cause grievous bodily harm, and various firearm- and ammunition-related offences. The State alleged that the accused acted in furtherance of a common purpose. The trial court convicted the appellants primarily on the basis of an extra-curial statement made by the first appellant to a magistrate, which implicated the others, together with weak eyewitness and forensic evidence.

The appeal was upheld and all convictions and sentences of the appellants were set aside.

This case is a leading authority on the inadmissibility of extra-curial admissions by one accused against co-accused in South African criminal trials. It clarified and corrected the interpretation of s 3 of the Law of Evidence Amendment Act and effectively reconsidered and limited the reach of S v Ndhlovu, reinforcing fair trial rights and the privilege against self-incrimination.