Samson Shonisani Ralukukwe v The State

On 27 March 2000, the appellant and five co-accused were convicted by the Venda High Court of murder and robbery with aggravating circumstances. The appellant was sentenced to life imprisonment for murder and 15 years for robbery. On 15 November 1998, accused 1 travelled with four others from the Reef to Venda in a white BMW. The appellant, who owned a security business, met with them at his office in Sibasa. The next morning, accused 1 encountered the appellant on the road near the premises of the deceased, a mechanic. Accused 1 and accused 2 entered the deceased's premises, purportedly seeking a mechanic. During the encounter, accused 1 shot and killed the deceased and the deceased's firearm was stolen. All the accused were arrested in Sibasa. Accused 1 made a statement to a magistrate on 19 November 1998 implicating the appellant in planning a bank robbery and providing a firearm, but accused 1 later repudiated these parts of the statement, claiming they were fabricated under police torture. The trial judge admitted accused 1's statement after a trial within a trial.

• Whether a confession by one accused can be admitted as evidence against a co-accused in terms of section 219 of the Criminal Procedure Act, 51 of 1977
• Whether accused 1's statement constituted a confession or an admission
• Whether an admission by a co-accused could be admitted against the appellant in terms of section 3(1)(c) of the Law of Evidence Amendment Act, 45 of 1988
• Whether the State had made a timeous application to admit the hearsay evidence under the 1988 Act
• Whether there was sufficient admissible evidence to convict the appellant of murder and robbery

The appeal was upheld. The conviction and sentence of the appellant were set aside. The court also indicated concerns about the convictions of accused 4 and 5, requesting legal representatives to apply for leave to appeal on their behalf as a matter of urgency.

A confession by one accused cannot be admitted as evidence against a co-accused by virtue of section 219 of the Criminal Procedure Act, 51 of 1977. An admission by a co-accused, which does not constitute a confession, may be admitted against another accused as hearsay evidence under section 3(1) of the Law of Evidence Amendment Act, 45 of 1988, but only if a timeous application is made during trial to admit it. Failure to make such application during trial causes manifest prejudice to the accused who has no opportunity to address the statement's contents, violating the constitutional right to a fair trial under section 35(3). Hearsay evidence not admitted in accordance with section 3(1) of the 1988 Act is not evidence at all and must be left entirely out of account - it cannot be used even indirectly as part of a chain of inferences or as corroboration. A confession is defined as an unequivocal acknowledgment of guilt admitting every element of the offence charged, equivalent to a plea of guilty. In multi-accused trials, courts must determine the facts proved against each accused on the basis of evidence admissible against that particular accused.

The court observed that it is exceedingly difficult even for a trained judicial mind to discard from consideration facts and circumstances which, though inadmissible as evidence, have been brought to the court's knowledge (citing R v Kohlinfila Qwabe 1939 AD 255). The court expressed concern that accused 4 and 5 may also have been wrongly convicted on the same evidentiary basis as the appellant, and requested their legal representatives to apply for leave to appeal as a matter of urgency. The court noted that lies by an accused do not necessarily lead to an inference of guilt, as they may be prompted by a desire to distance oneself from a crime even when not foreseeing it would occur. The court retained copies of the record to facilitate any subsequent appeal by accused 4 and 5 to be heard by the same bench.

This case is significant in South African criminal procedure and evidence law as it clarifies the critical distinction between confessions and admissions by co-accused and their admissibility against other accused persons. It reinforces that: (1) confessions by one accused cannot be used against a co-accused under section 219 of the Criminal Procedure Act; (2) admissions can be used against co-accused but only if properly admitted through a timeous application under section 3(1) of the Law of Evidence Amendment Act, 45 of 1988; (3) failure to make such application during trial causes prejudice and violates fair trial rights under section 35(3) of the Constitution; (4) statements not properly admitted are not evidence at all and must be entirely disregarded, even indirectly; and (5) courts must carefully assess evidence admissible against each accused separately in multi-accused trials. The judgment emphasizes procedural fairness and the constitutional right to a fair trial.