Law of evidence : recent cases

The South African law in respect of the admissibility of admissions and confessions by accused persons against their co-accused is based on the English common-law position, which states that '[w]here several persons are accused of an offence, and one of them makes a confession or an ad'; and that 'statements which are not made in pursuance of the common design are evidence only against the makers' (Halsbury's Laws of England 4ed (1990) vol 11(2) para 1131). An overview of South African common law (as discussed in R v Matsitwane 1942 AD 213 at 218; R v Baartman 1960 (3) SA 535 (A) at 542C-E; S v Banda 1990 (3) SA 466 (B) at 506; S v Molimi 2008 (2) SACR 76 (CC) at para [33]) indicates that admissions by one accused against a co-accused are inadmissible. Furthermore section 219 of the Criminal Procedure Act 51 of 1977 specifically states that a confession by an accused would not be admissible evidence against another accused person. Section 219A states that '[e]vidence of any admission made extra-judicially by any person in relation to the commission of an offence shall ... be admissible in evidence against him' (that is the maker of the admission). However, in 2002 the case of Ndhlovu v S [2002] 3 All SA 760 (SCA) brought a dramatic change.