Moses Moshe Litako and Others v The State

During the night of 4 February 2007, at Mmatau Village in the district of Madikwe, North West Province, the owner of the White House Tavern and a patron were robbed of R5,000 and cellular telephones. Another patron was assaulted and Mr Ben Seretse Motshwaedi was killed. Six accused persons were charged with murder, two counts of robbery with aggravating circumstances, assault with intent to do grievous bodily harm, and firearm-related offences. The State alleged the accused acted in furtherance of a common purpose. All accused pleaded not guilty. The first appellant made an extra-curial statement to a magistrate which was exculpatory as to himself but implicated the other appellants. After a trial-within-a-trial, the statement was ruled admissible. The first appellant did not testify at trial, while the other accused testified denying involvement. The eyewitness identification evidence was unreliable, with Ms Sibanda initially identifying two wrong persons at an identification parade, then later claiming to recognize the accused in court. The ballistics and chain-of-evidence was inadequate to link the accused to the crime scene. Five accused were convicted principally on the basis of the first appellant's extra-curial statement.

• Whether an extra-curial admission made by one accused is admissible as evidence against a co-accused under section 3 of the Law of Evidence Amendment Act 45 of 1988
• Whether the common law rule prohibiting the use of one accused's extra-curial statement against another has been abrogated by section 3 of the Law of Evidence Amendment Act
• Whether the admission of such evidence violates the constitutional right to a fair trial, including the right to challenge evidence
• Whether the decision in S v Ndhlovu 2002 (2) SACR 325 (SCA) was correctly decided
• Whether there is a sustainable distinction between admissions and confessions in relation to their admissibility against co-accused persons

The appeal was upheld and all convictions and sentences were set aside for all five appellants.

Section 3 of the Law of Evidence Amendment Act 45 of 1988, notwithstanding its provisions for the admission of hearsay evidence in the interests of justice, does not render admissible the extra-curial admission of one accused as evidence against a co-accused. The common law rule that an extra-curial statement by one accused is inadmissible against another accused has not been abrogated by section 3. This rule is grounded not only in hearsay concerns but also in the fundamental principle that it would be unfair to convict a person based on a statement made by another which that person cannot challenge through cross-examination, particularly where the maker cannot be compelled to testify. The rule applies equally to both confessions and admissions. The introductory words of section 3 ("Subject to the provisions of any other law") preserve the common law rule, which constitutes a ground of inadmissibility other than hearsay under section 3(2). The interests of justice, properly considered in light of constitutional fair trial rights, require the exclusion of such evidence. Statutes should not be interpreted as altering the common law unless the intention to do so is clear, and section 3 does not clearly express such an intention.

The court made several important observations. It questioned the jurisprudential soundness of distinguishing between admissions and confessions for purposes of admissibility against co-accused, noting that from the perspective of the implicated co-accused, there is no rational basis for such a distinction. The court expressed concern about the practical difficulties that would arise from such a distinction, including the possibility of incorrect characterization by trial courts and the resulting irregularities. The court noted that the approach in Ndhlovu had encouraged prosecutors to characterize statements as admissions rather than confessions and defense counsel to do the opposite, creating perverse incentives. The court observed that the shifting of blame between co-accused to avoid conviction is not uncommon in the criminal justice system, which should heighten caution regarding such statements. The court commented that investigating authorities should be encouraged to present the best possible evidence rather than relying on accused persons to supplement poorly investigated cases. The court reaffirmed the general approach to hearsay evidence under section 3, emphasizing that hearsay evidence should only be admitted after a contextual consideration of all relevant factors and that courts should exercise considerable restraint in allowing hearsay evidence against an accused in criminal proceedings. The court noted that no country with similar fair trial protections (England, Australia, Canada) had followed the Ndhlovu approach of allowing extra-curial admissions by one accused to be used against another.

This judgment fundamentally altered South African criminal evidence law by holding that section 3 of the Law of Evidence Amendment Act does not permit the extra-curial admission of one accused to be used as evidence against a co-accused. The judgment effectively overruled the approach in S v Ndhlovu 2002 (2) SACR 325 (SCA), which had allowed such use of admissions (but not confessions). The judgment reaffirmed the common law rule that extra-curial statements by one accused are inadmissible against co-accused persons, finding this rule to be grounded not only in hearsay concerns but also in fundamental fair trial principles protected by the Constitution. The court clarified that the "interests of justice" test in section 3 does not override this rule. The judgment emphasized the importance of the right to challenge evidence through cross-examination and held that this right would be nullified if co-accused persons could be convicted based on statements they cannot challenge because the maker chooses not to testify. The decision also rejected any meaningful distinction between admissions and confessions for purposes of admissibility against co-accused. This case is essential reading for understanding the interplay between statutory hearsay provisions, common law rules, and constitutional fair trial rights in South African criminal procedure.