Nndwambi v S

The appellant was one of four co-accused charged with murder and robbery with aggravating circumstances in the Limpopo Division of the High Court, Thohoyandou. Three of the four accused (including the appellant) pleaded not guilty. The first accused made an extra-curial admission that largely exculpated himself while incriminating the other three accused, including the appellant. The trial judge (Makgoba AJ) accepted this extra-curial admission and convicted all four accused solely on the strength of that admission on 22 August 2005. The appellant denied any involvement in the commission of the offences. The appellant was sentenced to life imprisonment for murder and 20 years' imprisonment for robbery. The trial court refused leave to appeal on 16 March 2007. The appellant obtained leave to appeal from the Supreme Court of Appeal in January 2017, but the appeal lapsed due to delay in prosecution. The appellant has been detained in custody for over ten years.

• Whether an extra-curial admission made by a co-accused is admissible as evidence against other co-accused
• Whether the conviction based solely on a co-accused's extra-curial admission is lawful
• Whether the use of a co-accused's out-of-court statement against an accused violates the constitutional right to a fair trial
• Whether condonation should be granted for the delay in prosecuting the appeal

1. The appeal against the convictions for murder and robbery with aggravating circumstances was upheld, and the convictions and sentences on those counts were set aside. 2. The order of the trial court was replaced with: 'The fourth accused is found not guilty on the charges of murder and robbery with aggravating circumstances.' 3. The Registrar was directed to immediately transmit the order to the detention centre where the appellant was being held so that he could be released from custody immediately.

An extra-curial admission made by a co-accused is not admissible as evidence against other co-accused. The common law principle that admissions made extra-curially cannot be used against a co-accused prevails, and is not displaced by s 3(1)(c) of the Law of Evidence Amendment Act. Any out-of-court statement by a co-accused that incriminates another accused compromises the constitutional right to a fair trial and should not be admitted against that accused. A conviction cannot be sustained when it is based solely on an extra-curial admission by a co-accused, without any other evidence linking the accused to the offence, where the accused has denied involvement in the commission of the offences.

The court observed that while the explanations for the delay in prosecuting the appeal (tardiness of court processes and illness of counsel) were not particularly compelling, condonation should be granted where the delay is not the fault of the appellant and there would be a grave miscarriage of justice if the appeal were not considered. The court also noted that the appellant had been detained in custody for well over ten years, emphasizing the urgency and injustice of the situation. The court directed that the order be immediately transmitted to the detention centre to ensure the appellant's prompt release, demonstrating concern for rectifying the wrongful imprisonment as quickly as possible.

This case reinforces the fundamental principle of South African criminal law and evidence that extra-curial admissions made by one co-accused cannot be used as evidence against other co-accused. It applies and confirms the binding precedent established in S v Litako 2015 (3) SA 287 regarding the inadmissibility of such evidence, even under the hearsay exception provisions of the Law of Evidence Amendment Act. The case demonstrates the constitutional protection of the right to a fair trial and the strict requirements for proving guilt beyond reasonable doubt in criminal proceedings. It serves as an important reminder to trial courts that convictions cannot be sustained solely on the basis of incriminating statements made by co-accused. The case also illustrates the willingness of appellate courts to grant condonation where there has been a grave miscarriage of justice, particularly where the delay in prosecution is not attributable to the appellant and where the person has been wrongly imprisoned for an extended period.