Khanye and Another v S

On 3 August 2002, Warrant Officer Dingaan Makuna was shot and killed at his home in Mothutlung, North West Province. His service pistol was stolen. The applicants, Samuel Sampie Khanye and Victor Zandile Moyo, were arrested along with five co-accused and charged with murder, robbery with aggravating circumstances, and unlawful possession of firearms and ammunition. The State's case relied heavily on extra-curial statements made by the accused, which implicated one another. During trial, the accused challenged the admissibility of these statements, alleging they were made under duress following police assaults and promises of bail. A trial-within-a-trial was held, and the Trial Court admitted the statements. Khanye's statement indicated he had been asked by co-accused to find a vehicle for hijacking and had pointed out the deceased's house. Moyo denied any knowledge of the killing and raised an alibi that he was in Limpopo at the time. Both applicants were convicted on the basis of common purpose and sentenced to life imprisonment for murder, 15 years for robbery, and 6 years for unlawful possession of firearms.

• Whether extra-curial statements made by one accused are admissible as evidence against a co-accused
• Whether the evidence, excluding inadmissible extra-curial statements of co-accused, was sufficient to warrant convictions
• Whether condonation should be granted for the late filing of the application for leave to appeal

1. Leave to appeal granted. 2. The appeal is upheld. 3. The convictions and sentences of the applicants (sixth and seventh appellants in the Full Bench) on counts 1, 2, 4 and 5 are set aside. 4. The applicants must be released from prison immediately.

Extra-curial admissions and confessions made by one accused person are inadmissible as evidence against a co-accused. Section 219A of the Criminal Procedure Act provides that an admission can only be admitted against its maker and does not contemplate extra-curial admissions being tendered as evidence against another person. The only exception at common law is where the statement constitutes an 'executive statement' made in furtherance of a common purpose or conspiracy, but there must be independent evidence (aliunde) to establish the existence of such common purpose before the statements can be taken into account. Where the primary evidence against an accused consists of inadmissible extra-curial statements by co-accused, and insufficient independent evidence remains after excluding such statements, the conviction cannot be sustained. Mere presence at or near the scene of a crime in the company of suspected perpetrators is insufficient to warrant a conviction.

The Court noted that while the explanation for the delay in filing the application was inadequate and 'left much to be desired', condonation could still be granted where there are prospects of success, no prejudice to the State, and particularly where co-accused in the same matter had already been successfully released by this Court. The Court emphasized that an applicant seeking condonation seeks an indulgence and must provide an adequate explanation for delay, but the interests of justice remain paramount. The Court also expressed gratitude to Adv Manaka and the Johannesburg Bar for their willingness to provide pro bono assistance at the Court's request, noting the Bar's continuing provision of such assistance in deserving cases.

This case reinforces and applies the Constitutional Court's decision in Mhlongo v S, which restored the common law position that extra-curial statements and admissions by one accused are inadmissible against a co-accused, except in limited circumstances involving executive statements made in furtherance of a proven common purpose. The case demonstrates the practical application of this evidentiary principle and its impact on criminal convictions based primarily on co-accused statements. It emphasizes the constitutional and common law protections against the use of extra-curial admissions in a manner that would prejudice co-accused persons. The case is significant for criminal procedure and evidence law in South Africa, particularly in multi-accused criminal trials.