The applicants, Boswell John Mhlongo and Alfred Disco Nkosi, were accused 2 and 4 in a multi-accused criminal trial arising from the fatal shooting of Warrant Officer Johannes Dingaan Makuna on 3 August 2002. The State alleged that the applicants were part of a group that planned to rob and killed the deceased. At trial in the North West High Court, the applicants pleaded not guilty. Their convictions for murder, robbery with aggravating circumstances, and unlawful possession of firearms and ammunition were based almost exclusively on extra-curial statements made by certain co-accused. These statements were admitted 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 sentenced to life imprisonment and lengthy concurrent sentences on the other counts. Appeals to the Full Court and a petition to the Supreme Court of Appeal were unsuccessful, prompting applications for leave to appeal to the Constitutional Court.
Condonation and leave to appeal were granted. The appeals were upheld. The convictions and sentences of the applicants on counts 1, 2, 4 and 5 were set aside, and the applicants were ordered to be released from prison immediately.
This judgment authoritatively overturned the approach in S v Ndhlovu and clarified South African evidence law by restoring the common law prohibition against the use of extra-curial statements of an accused against a co-accused. It strengthened fair trial rights and equality before the law, ensuring that accused persons are not convicted on the untested statements of others, and provided definitive constitutional guidance on the limits of section 3 of the Law of Evidence Amendment Act.