Abstract
On 16 April 2014, the Supreme Court of Appeal handed down judgment in the matter of S v Litako 2014 2 SACR 431 (SCA) ("Litako"). The judgment reconsiders the landmark decision of the same court, S v Ndhlovu 2002 2 SACR 325 (SCA) ("Ndhlovu") in which the court held that an informal admission made by one accused could be admitted against a co-accused even if the accused in court denies making the statement and the statement itself is therefore considered to be hearsay. The court in Ndhlovu applied section 3 of the Law of Evidence Amendment Act 45 of 1988 and found that the hearsay extra curial admission could be admitted in the interests of justice. In Litako the court found that section 3 did not overrule an existing common law rule, which is that the extra curial statement of an accused (whether an informal admission or a confession) cannot be tendered against a co-accused. This is because section 3 does not expressly overrule this common law rule. Rather, the provision itself requests that its application be subject to the common law. The judgment is important for various reasons. Firstly, it is generally in keeping with the existing rule on the cautionary treatment of accomplice evidence. Secondly, the judgment highlights the current confusion in the relationship between statute and common law with regards to informal admissions and confessions. Thirdly, the court employs methods of statutory interpretation to re-examine the principle from Ndhlovu and finds that the court in that case did not apply its mind correctly in disregarding the common law rule. The court undertook a teleological approach to interpretation by infusing the meaning of the words with the spirit, purport and objects of the Bill of Rights and found that the statute had not overruled the common law rule.
Highlights
On 16 April, 2014 the Supreme Court of Appeal handed down judgment in the matter of S v Litako.1 The judgment reconsiders the landmark decision of the same court, S v Ndhlovu,2 in which the court held that an informal admission made by one accused could be admitted against a co-accused even if the accused in court denies making the statement and the statement itself is considered to be hearsay
Upon a careful reading of section 219A(1) relating to the admissibility of informal admissions, the provision requires that a voluntary extra curial admission, which does not amount to a confession, made "by any person" shall be admissible "against him." Interestingly, this was interpreted by the court in Litako to have the same effect as section 219, and indicated to the court that the legislature did not contemplate such an admission's being tendered as evidence against anyone else
The court here was focused on the enquiry submitted i.e. whether section 3 was constitutional in the light of the accused's right to adduce and challenge evidence, rather than the applicability of the common law rule
Summary
On 16 April, 2014 the Supreme Court of Appeal handed down judgment in the matter of S v Litako. The judgment reconsiders the landmark decision of the same court, S v Ndhlovu, in which the court held that an informal admission made by one accused could be admitted against a co-accused even if the accused in court denies making the statement and the statement itself is considered to be hearsay. This is in keeping with the existing treatment of accomplice evidence. The court undertook a teleological approach to interpretation by infusing the meaning of the words with the spirit, purport and objects of the Bill of Rights and found that the statute had not overruled the common law rule In this way, the applicable statutory provisions were interpreted through the "prism of the Bill of Rights." It is argued that this interpretation is not "unduly strained" and is appropriately used by the court. It is useful at this juncture to look at the law regarding the admission of extra curial statements in criminal proceedings to determine whether the court was correct in its analysis of the common law rule
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