Richard Ditshele Molimi v The State

Molimi was the manager of a Clicks Store in Southgate Mall when it was robbed during a routine money collection by Fidelity Guards on 30 October 2000. Accused 1 was caught red-handed. Accused 3 was a former Fidelity employee. The applicant and co-accused communicated via cell phones before and during the robbery. During the robbery, R45,737.40 was stolen, shots were exchanged resulting in two deaths (a security guard and a hostage) and one injury. Accused 1 was arrested immediately, the applicant the next day, and accused 3 two months later. Accused 1 made a statement to police incriminating himself, the applicant, and accused 3. Accused 3 also made a statement implicating himself, the applicant, and accused 1. The applicant made no statement. Both accused 1 and 3 later disavowed their statements under oath at trial. The statements were admitted as evidence against the applicant, and all three accused were convicted on multiple counts. The High Court admitted the statements after trials-within-a-trial, but the ruling on admissibility against the applicant came only at the end of the trial after he had testified. The applicant appealed to the Supreme Court of Appeal, which partially upheld his appeal, and then to the Constitutional Court.

• Whether the statements by accused 1 and 3 constituted confessions or admissions
• Whether extra-curial statements of accused persons are admissible against a co-accused in criminal trials
• Whether the rules governing admissibility of hearsay evidence under section 3 of the Law of Evidence Amendment Act 45 of 1988 were properly applied
• Whether the approach in S v Ndhlovu [2002] 3 All SA 760 (SCA) was followed
• Whether the timing of the ruling on admissibility violated the applicant's right to a fair trial under section 35(3) of the Constitution
• Whether the applicant's right to adduce and challenge evidence was violated
• Whether the remaining admissible evidence could sustain the conviction

Appeal upheld. Convictions and sentences on all counts (counts 1, 2, 3, 4, 5, 6, and 7) set aside. The order of the Supreme Court of Appeal was set aside to the extent it related to the applicant. Condonation for late filing granted. Leave to appeal granted.

A confession by one accused is inadmissible against a co-accused by operation of section 219 of the Criminal Procedure Act, and this prohibition is preserved by section 3 of the Law of Evidence Amendment Act 45 of 1988 which is expressly subject to other law. Extra-curial admissions (as opposed to confessions) by one accused may be admissible as hearsay against a co-accused under section 3 of the Act, but only if admitted in accordance with the procedural requirements of the Act and the constitutional right to a fair trial. This requires: (a) a clear ruling on admissibility before the accused is required to testify, so the accused knows the full evidentiary case to meet; (b) proper consideration of all factors in section 3(1)(c); and (c) a determination that admission is in the interests of justice taking into account fair trial rights under section 35(3) of the Constitution. A ruling on admissibility made only after the accused has testified violates fair trial rights and renders the admission of hearsay evidence impermissible, resulting in fundamental prejudice. Where inadmissible evidence must be excluded, a conviction can only be sustained if the remaining admissible evidence proves guilt beyond reasonable doubt; suspicion, however strong, is insufficient.

The Court declined to rule on the correctness of the approach in S v Ndhlovu regarding whether the right to challenge evidence under section 35(3)(i) encompasses the right to cross-examine the maker of hearsay evidence admitted under section 3(1)(c) in the interests of justice. The Court noted this was not challenged in the Supreme Court of Appeal and refrained from expressing a view on whether Ndhlovu correctly narrowed the ambit of the right to challenge evidence. The Court also declined to decide the equality challenge raised by the amicus curiae - that the differential treatment between confessions (inadmissible against co-accused under s 219) and admissions (potentially admissible under s 3 and s 219A) constitutes unfair discrimination under section 9 of the Constitution. The Court held it would not be in the interests of justice to decide such a potentially contentious constitutional issue as court of first and final instance when the issue was not well ventilated in argument and was raised for the first time. The Court expressed concern about provisional rulings on admissibility, noting they can be problematic and prejudicial, and cited S v Ramavhale's caution that judges should hesitate in admitting evidence at the end of the case. The Court observed that while the inadmissible evidence raised strong suspicion of the applicant's complicity, and innocent lives were lost in the robbery, convictions based on suspicion or speculation are "the hallmark of a tyrannical system of law" which South Africans have bitter experience of and which cannot be countenanced in a constitutional democracy.

This case is significant for clarifying the law on admissibility of extra-curial statements in multi-accused criminal trials. It establishes that: (1) Section 219 of the CPA continues to prohibit the use of one accused's confession against a co-accused, notwithstanding the broader hearsay provisions in the Law of Evidence Amendment Act. (2) Courts must make clear and timeous rulings on the admissibility of hearsay evidence before the accused testifies, so the accused knows the full evidentiary case to meet. Vague or late provisional rulings violate fair trial rights. (3) The right to a fair trial under section 35(3) of the Constitution requires substantive, not merely formal, compliance with procedural safeguards. (4) The prosecution and trial judge have duties to ensure proper admission of evidence; there is no obligation on the defense to assist the prosecution or seek clarification of vague rulings. (5) Convictions cannot be sustained on suspicion alone, however strong; the state must prove guilt beyond reasonable doubt on admissible evidence. The case reinforces the constitutional imperative of fair trial rights even in serious criminal cases, and establishes important procedural protections for accused persons facing hearsay evidence from co-accused.