Mhlongo v S; Nkosi v S (CCT148/14; CCT149/14) [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC) (25 June 2015)

Mhlongo v S; Nkosi v S (CCT148/14; CCT149/14) [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC) (25 June 2015)

The Constitutional Court held that the common law position prior to Ndhlovu, which prohibited the admission of extra-curial statements by an accused against a co-accused, must be restored. The Court found that the distinction drawn in Ndhlovu between admissions and confessions is irrational and unjustifiable, as it leads to differential treatment of accused persons without a legitimate purpose. Section 219A of the Criminal Procedure Act and section 3(2) of the Law of Evidence Amendment Act do not alter the common law prohibition. Admitting extra-curial admissions against co-accused unjustifiably limits the right to equality before the law under section 9(1) of the Constitution. The...

Citation
[2015] ZACC 19
Parties
Applicant: Boswell John Mhlongo; Applicant: Alfred Disco Nkosi; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
25 June 2015
Case Number
CCT148/14; CCT149/14
Procedural Posture
Leave to Appeal / Reasons for Order Following Grant of Leave to Appeal and Release of Applicants
Outcome
Appeal upheld; convictions and sentences set aside; applicants released from prison.
Judges
Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ, Tshiqi AJ
Legal Topics
Admissibility of Evidence, Extra Curial Statements, Hearsay Evidence, Right to Equality, Fair Trial Rights, Law of Evidence Amendment Act
Criminal Law Constitutional Law Admissibility of Evidence Extra Curial Statements Hearsay Evidence Right to Equality Fair Trial Rights Law of Evidence Amendment Act

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Parties

Boswell John Mhlongo

Applicant

Alfred Disco Nkosi

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Reasons for Order Following Grant of Leave to Appeal and Release of Applicants

Legal Issues

  1. 1 Whether extra-curial statements made by an accused are admissible against a co-accused in a criminal trial.
  2. 2 Whether the admission of extra-curial statements against co-accused violates the right to equality before the law under section 9(1) of the Constitution.
  3. 3 Whether the Law of Evidence Amendment Act 45 of 1988 alters the common law prohibition on the admissibility of extra-curial statements against co-accused.

Ratio Decidendi

The Constitutional Court held that the common law position prior to Ndhlovu, which prohibited the admission of extra-curial statements by an accused against a co-accused, must be restored. The Court found that the distinction drawn in Ndhlovu between admissions and confessions is irrational and unjustifiable, as it leads to differential treatment of accused persons without a legitimate purpose. Section 219A of the Criminal Procedure Act and section 3(2) of the Law of Evidence Amendment Act do not alter the common law prohibition. Admitting extra-curial admissions against co-accused unjustifiably limits the right to equality before the law under section 9(1) of the Constitution. The...

Court Disposition

Appeal upheld; convictions and sentences set aside; applicants released from prison.

Orders

  • Condonation is granted for the late filing of the applications for leave to appeal.
  • Leave to appeal is granted in respect of both applications.