Abstract
Section 219 of the Criminal Procedure Act 51 of 1977 determines that “no confession made by any person shall be admissible as evidence against another person”. Section 219 deals with the situation where an accused has made a confession that also incriminates a co-accused. The parts which incriminate the co-accused are inadmissible. Even indirect usage of a confession against someone other than the declarant is prohibited.Section 219 does not deal with the admissibility of statements that are considered to be vicariously made.The Constitutional Court recently dealt with the admissibility of extra-curial statements by a non-testifying accused that incriminate a co-accused in S v Molimi (2008 2 SACR 76 (CC)). The case came before the Constitutional Court by way of an application for leave to appeal against the judgment and order of the Supreme Court of Appeal in S v Molimi (2006 2 SACR 8 (SCA)).
Highlights
The case came before the Constitutional Court by way of an application for leave to appeal against the judgment and order of the Supreme Court of Appeal in S v Molimi (2006 2 SACR 8 (SCA))
If admissions made by a non-testifying accused that incriminate another accused can be admitted in terms of the Law of Evidence Amendment Act 45 of 1988, this should even more so be possible in the case of confessions
A court that has to decide about the admissibility of a confession by a non-testifying accused that incriminates a co-accused will clearly have difficult task, but it is submitted that section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 provides adequate guidelines to ensure that the presumptive unreliability of such statements can effectively be dealt with
Summary
As far as the admissibility of admissions by one accused that incriminate, another is concerned, the court refrained from deciding on the “correctness or otherwise” of the approach stipulated by the Supreme Court of Appeal in S v Ndhlovu (2002 2 SACR 325 (SCA)) and applied the principles in that case to conclude that the admission by accused 3 was inadmissible as evidence against the applicant (par [47]-[49]). A second point of criticism from the amicus curiae in S v Molimi (supra) is based on the differential treatment of admissions and confessions by an accused as evidence against a co-accused (par 48) To substantiate this point of view, it is first of all necessary to submit that there should be no difference between admissions and confessions, when referring to the admissions and confessions in the above case
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