Boswell John Mhlongo v The State; Alfred Disco Nkosi v The State

On 3 August 2002, Warrant Officer Johannes Dingaan Makuna was shot and killed at his home. The applicants, along with six co-accused, were charged with murder, robbery with aggravating circumstances, attempted robbery, and unlawful possession of firearms and ammunition. The applicants pleaded not guilty. During a trial-within-a-trial, the trial court ruled that extra-curial statements made by four of the co-accused (accused 1, 3, 6 and 7) were admissible against the applicants. The trial court relied on S v Ndhlovu, which held that such statements were admissible under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988. The applicants were convicted primarily on the basis of these extra-curial statements made by their co-accused and sentenced to life imprisonment for murder and additional concurrent sentences. The Full Court dismissed their appeal, finding that the hearsay evidence had become "automatically admissible" because the declarants confirmed portions of their statements in oral testimony. The Supreme Court of Appeal refused leave to appeal. The applicants then applied to the Constitutional Court for leave to appeal, arguing that the admission of extra-curial statements against co-accused violated their constitutional rights to equality and a fair trial.

• Whether extra-curial statements (admissions) made by an accused are admissible as evidence against a co-accused in a criminal trial
• Whether section 3 of the Law of Evidence Amendment Act 45 of 1988 renders such statements admissible against co-accused
• Whether the distinction between admissions and confessions in the admissibility of extra-curial statements against co-accused violates the right to equality before the law in section 9(1) of the Constitution
• Whether the admission of such statements violates the right to a fair trial under section 35(3) of the Constitution
• Whether there was sufficient evidence to sustain the convictions once the extra-curial statements were excluded

1. Condonation granted for late filing of applications for leave to appeal. 2. Leave to appeal granted in both applications. 3. The appeals were upheld. 4. The Full Court order was set aside: the appeals by the applicants (second and fourth appellants in the Full Court) against their convictions and sentences on counts 1, 2, 4 and 5 were upheld, and their convictions and sentences on those counts were set aside. 5. The applicants were ordered to be released from prison immediately.

The binding legal principles established are: (1) Extra-curial statements (whether confessions or admissions) made by an accused are inadmissible as evidence against a co-accused. This restores the common law position that existed before S v Ndhlovu. (2) Section 3 of the Law of Evidence Amendment Act 45 of 1988 does not render such statements admissible against co-accused. Section 3(2) provides that section 3(1) does not render admissible evidence that is inadmissible on grounds other than being hearsay, and extra-curial statements are inadmissible against co-accused on grounds beyond their hearsay nature. (3) The differentiation between accused implicated by extra-curial admissions versus confessions is irrational and violates section 9(1) of the Constitution's guarantee of equality before the law. There is no rational reason why admissions should be admissible against co-accused while confessions are not—the same dangers and concerns apply to both types of statements. (4) Section 219A of the Criminal Procedure Act 51 of 1977 contemplates admissions being admitted only against their maker, not against other persons. (5) A statute must be interpreted in a manner that makes the least inroads into the common law, and it cannot be inferred that a statute alters the common law unless there is a clear intention to do so. The Evidence Amendment Act did not evince such an intention.

The Court declined to pronounce on whether the common law exception for "executive statements" made in furtherance of a common purpose or conspiracy survives a finding of constitutional invalidity regarding extra-curial statements generally. The Court held it was unnecessary to decide this issue because the facts did not arise (the statements in this case were not executive in nature, as conceded by the State), and the question had not been fully ventilated before the Court. The Court also noted, without deciding, that there may have been an irregularity in the trial court initially characterizing certain statements as confessions only to later re-characterize them as admissions, which the applicants argued was an attempt to make them admissible and could undermine judicial integrity. While the Court found it unnecessary to consider whether admission of extra-curial statements violates the right to a fair trial under section 35(3) (having decided the matter on equality grounds under section 9(1)), the judgment suggests the fair trial concerns would also have merit given the inherent dangers of using statements by co-accused who cannot be properly cross-examined.

This judgment is a landmark decision in South African criminal evidence law. It overruled the Supreme Court of Appeal's approach in S v Ndhlovu and restored the common law position that extra-curial statements (whether confessions or admissions) made by an accused are inadmissible against co-accused. The Court held that the distinction between admissions and confessions for purposes of admissibility against co-accused was irrational and violated the constitutional right to equality before the law in section 9(1). The judgment clarifies that section 3 of the Law of Evidence Amendment Act 45 of 1988 was not intended to alter the common law prohibition on using extra-curial statements against co-accused, and that section 3(2) expressly preserves other grounds of inadmissibility beyond the hearsay nature of evidence. The decision protects accused persons from being convicted primarily on the basis of statements made by co-accused who cannot be properly cross-examined on those statements, thereby upholding principles of procedural fairness and equality in criminal trials.