Mhlongo v S; Nkosi v S

The applicants, Boswell John Mhlongo and Alfred Disco Nkosi, were tried with several co-accused in the North West High Court on charges including murder, robbery with aggravating circumstances, and unlawful possession of firearms and ammunition arising from the fatal shooting of Warrant Officer Johannes Dingaan Makuna in August 2002. At trial, the State relied almost exclusively on extra-curial statements made by some co-accused implicating the applicants. These statements were admitted as evidence against the applicants under section 3 of the Law of Evidence Amendment Act 45 of 1988, following the approach in S v Ndhlovu. The applicants were convicted and sentenced to life imprisonment. Their appeals to the Full Court and the Supreme Court of Appeal were unsuccessful, leading to applications for leave to appeal to the Constitutional Court.

Leave to appeal was granted. The appeals were upheld. The applicants’ convictions and sentences on counts of murder, robbery with aggravating circumstances, unlawful possession of firearms, and unlawful possession of ammunition were set aside. The applicants were ordered to be released from prison immediately.

This case definitively overturned S v Ndhlovu and clarified that extra-curial statements by an accused, whether admissions or confessions, are inadmissible against co-accused. It reinforced fair trial rights and equality before the law, and restored the orthodox common law rule in South African evidence law.