Donrich W Thaldar
  University of KwaZulu-Natal

  51 Volume 1 2018 pp 184-191
  Download Case Note in PDF
 Not yet reported

The right to be discharged at the end of the prosecution’s case in the context of possible co-accused incrimination

1 Introduction

The subject of this note is whether or not a co-accused person in criminal proceedings has a right to be discharged at the end of the state’s case, where there is insufficient evidence on which a reasonable court might convict him or her; but there is a reasonable possibility that the other co-accused persons may incriminate him or her and hence supplement the state’s case. This subject was recently argued before the Constitutional Court in Mhlongo v S; Nkosi v S 2015 (2) SACR 323 (CC); however, apparently because a decision in this regard was not deemed necessary, the Constitutional Court did not make a conclusive decision on the subject and left the door open (par 41). I suggest that this constitutes an unfortunate missed opportunity that our country’s apex court could have used to ensure the alignment of this aspect of our law with our country’s commitment to human rights. This note is structured as follows: Part 2 describes the background of the Makuna murder trial from which Mhlongo v S; Nkosi v S arose; Part 3 describes the various appeals against the convictions in the Makuna murder trial and the relevant aspects of the Constitutional Court’s judgement in Mhlongo v S; Nkosi v S; Part 4 critically analyses the current legal position regarding the subject of this note with illustrative reference to the conduct of the Makuna murder trial; Part 5 concludes this note with a critical assessment of the post-Mhlongo v S; Nkosi v S legal landscape.

2 The Makuna murder trial

On 3 August 2002, Warrant Officer Johannes Makuna was shot twice in front of his home in an apparent botched attempt to rob him of his bakkie. His daughter, who was present during the incident, saw two assailants, and a neighbour also saw two men running away from the scene following the shots. The assailants only managed to rob Warrant Officer Makuna’s service pistol. Warrant Officer Makuna was rushed to hospital, but died of his injuries.

After police investigations failed to deliver any leads, a substantial monetary reward for information was published by the police. About two months after the murder on Warrant Officer Makuna, a certain Mr Thabo Matjeke, who has been incarcerated for another serious offence subsequent to the murder on Warrant Officer Makuna, saw the reward notice and contacted the investigating officer. Mr Matjeke promised information in return for the reward. Soon, he made two extra-curial confessions: One to a magistrate and one to a police officer during a pointing-out excursion. Although the storyline of these two confessions is similar, there are material differences between the two confession statements. Also, I suggest that the basic components of the storyline, namely that eight men crammed into one Toyota Cressida sedan and then ventured through the streets looking for a bakkie to rob, is inherently improbable. In these confessions, Mr Matjeke incriminated not only himself, but also seven other persons, who were subsequently all arrested. Three of the implicated persons also made extra-curial statements, ranging from partial corroboration of Mr Matjeke’s version, to complete denials. Mr Matjeke and all seven the persons whom he incriminated were charged with the murder of Warrant Officer Makuna, the robbery of his firearm, and some lesser offences. They stood trial in the then Bophuthatswana High Court. As this case is unreported, I refer to it as the ‘Makuna murder trial’.

The admissibility of the various extra-curial incriminating statements was challenged, and a trial-within-a-trial was conducted, during which all the co-accused who made incriminating statements disavowed the content thereof and averred that the police enticed or forced them to make the statements. At the conclusion of the trial-within-a-trial, the trial judge decided to admit all the extra-curial statements into evidence against the makers thereof. These extra-curial statements essentially constituted the prosecution’s entire case: no fingerprints, no DNA evidence, and no reliable eyewitness testimony as to the identity of the assailants could be presented. Despite this dearth of independent corroborative evidence, the trial court decided to admit the extra-curial statements as evidence against all the co-accused, purportedly (but erroneously) relying on the judgement of Supreme Court of Appeal (SCA) in S v Ndhlovu 2002 (2) SACR 325 (SCA). The Ndhlovu rule entailed that an extra-curial admission, but not a confession, by one co-accused is admissible as evidence against another co-accused if required by the interests of justice. The interests of justice in turn required inter alia ‘strong corroboration in all the other evidence’ of the incrimination of the co-accused (par 44). Most disturbingly, the trial court initially consistently referred to Mr Matjeke’s extra-curial statement to the magistrate as a ‘confession’ (which it was), but later - in a transparent attempt to have this statement superficially fit the Ndhlovu mould - the trial court made a volte face and reclassified Mr Matjeke’s ‘confession’ as an ‘admission’.

Given the trial court’s erroneous application of the Ndhlovu rule, and its consequent finding that the extra-curial statements are evidence against all the co-accused, none of the co-accused was discharged, and the trial proceeded against all the co-accused. In his testimony in the main trial, Mr Matjeke again disavowed his extra-curial statements and denied any involvement in the crime. However, later during the trial, he requested to re-open his defence, which request was granted. During his second testimony in the main trial, Mr Matjeke came up with a newfangled version of events that incriminated all his co-accused while attempting to underplay the involvement of himself and Mr Makhubela (Accused 3). Mr Makhubela testified directly after Mr Matjeke’s second testimony in the main trial, and essentially rehashed Mr Matjeke’s latest version of events, which differed materially from Mr Makhubela’s own self-incriminatory extra-curial statement. The four co-accused persons who did not make extra-curial statements responded as follows: Mr Boswell Mhlongo (Accused 2), Mr Alfred Nkosi (Accused 4), and Mr Thembekile Molaudzi (Accused 5) testified in their own defence and insisted that they knew nothing about the crimes that were committed; Mr Leonard Motloung (Accused 6), who was released on bail, disappeared.

The trial court explicitly rejected Mr Matjeke’s last version as per his second testimony and the corroboration thereof by Mr Makhubela as a last-minute concoction. However, relying on the extra-curial statements (by these very men whom the trial court declared liars) that were admitted into evidence against all the co-accused, the trial court convicted all seven remaining co-accused and sentenced them all to life imprisonment. In so doing, the trial court lent credence to the basic narrative of Mr Matjeke’s extra-curial statements that is premised on an inherent improbability and ignored the material differences between Mr Matjeke’s extra-curial statements, and the material differences between Mr Matjeke’s extra-curial statements and the other extra-curial statements. Moreover, the trial court ignored the complete void of independent corroborative evidence.

3 The appeals; the Constitutional Court’s decision

After a prolonged struggle to get the transcripts of the trial court proceedings, all seven the co-convicted appealed to the full bench of the Northwest High Court. However, the full bench confirmed the trial court’s decision and dismissed the appeal. All the co-convicted except Mr Matjeke and Mr Makhubela then petitioned the SCA, but without success. One of the co-convicted, Mr Molaudzi, then applied for leave to appeal to the Constitutional Court, but again without success (Molaudzi v S 2015 (2) SACR 341 (CC)). However, sensing that the tide may be turning after the SCA’s denouncement of Ndhlovu in Litako & others v S [2014] 3 All SA 138 (SCA), Mr Mhlongo and Mr Nkosi approached the Constitutional Court, which decided to grant them a hearing. In Litako, the SCA held inter alia that the differentiation between confessions and admissions inherent in the Ndhlovu rule infringes on a co-accused persons right to equality, and restored the common law status quo ante Ndhlovu, namely that no extra-curial statements - whether confessions or admissions - by one co-accused can ever be used as evidence against his or her co-accused.

The gist of the applicants’ argument in Mhlongo v S; Nkosi v S was that the Ndhlovu rule is unconstitutional; in the alternative, should the Constitutional Court find that the Ndhlovu rule is constitutional (contra Litako), it was argued that the courts below applied the Ndhlovu rule erroneously given the lack of independent corroborative evidence. Of particular relevance to the subject of this note, it was specifically argued on behalf of Mr Mhlongo and Mr Nkosi that the paucity of evidence presented by the prosecution against these co-accused - either based on the unconstitutionality of the Ndhlovu rule or on the erroneous application thereof - should have caused the trial court to mero moto discharge these men at the end of the prosecution’s case.

In a unanimous judgement penned by Theron AJ, the Constitutional Court held that the Ndhlovu rule is unconstitutional and that the extra-curial statements by some of their co-accused should not have been admitted as evidence against Mr Mhlongo and Mr Nkosi. However, the Constitutional Court did not make a conclusive ruling on the question of whether Mr Mhlongo and Mr Nkosi should have been discharged at the end of the prosecution’s case in the trial court, but left the door open. The Constitutional Court held as follows in Mhlongo v S; Nkosi v S (par 41, my emphasis):

The extra-curial statements being inadmissible, the question is now: what remains of the case against the applicants? At the close of the State’s case, the only evidence against the applicants was the extra-curial statements of the co-accused. If the trial court had correctly declared the evidence inadmissible, the applicants may have been entitled to be discharged at that stage.

The reason why the Constitutional Court did not feel obliged to rule on the question of whether Mr Mhlongo and Mr Nkosi should have been discharged at the end of the prosecution’s case in the trial court is explained in the subsequent sentence:

In any event, at the end of the trial, the evidence as a whole was insufficient to ground the applicants’ convictions. Counsel for the State correctly conceded this.

Accordingly, the Constitutional Court vitiated the convictions and sentences of Mr Mhlongo and Mr Nkosi, but without deeming it necessary to consider the issue of discharge at the end of the prosecution’s case, given the overall insufficiency of evidence against the applicants. In a ground-breaking judgement on the principle of res judicata, Molaudzi v S 2015 (2) SACR 341 (CC), the Constitutional Court also vitiated the conviction and sentence of Mr Molaudzi, who was similarly situated to the applicants in Mhlongo v S; Nkosi v S, but whose application for leave to appeal to the Constitutional Court was previously dismissed.

4 Critique on the current legal position

In S v Shuping 1983 (2) SA 119 (BSC) the Supreme Court of Bophuthatswana per Hiemstra CJ reviewed the case law history of discharge applications and formulated the test for discharge as follows (at 120):

At the close of the State case, when discharge is considered, the first question is: (i) is there evidence on which a reasonable man might convict; if not (ii) is there a reasonable possibility that the defence evidence might supplement the State case? If the answer to either question is yes, there should be no discharge and the accused should be placed on his defence.

Part (ii) of the Shuping test (‘Shuping (ii)’) was considered by the SCA in S v Lubaxa [2002] 2 All SA 107 (A). While rejecting Shuping (ii) in the context of possible self-incrimination based on an accused person’s rights to dignity and freedom (parr 18-19), the SCA - albeit obiter - accepted Shuping (ii) in the context of possible co-accused incrimination. Regarding the latter context, the SCA reasoned as follows (parr 20-21):

The prosecution is ordinarily entitled to rely upon the evidence of an accomplice and it is not self-evident why it should necessarily be precluded from doing so merely because it has chosen to prosecute more than one person jointly. While it is true that the caution that is required to be exercised when evaluating the evidence of an accomplice might at times render it futile to continue such a trial ...that need not always be the case.

Whether, or in what circumstances, a trial court should discharge an accused who might be incriminated by a co-accused, is not a question that can be answered in the abstract, for the circumstances in which the question arises are varied. While there might be cases in which it would be unfair not to do so, one can envisage circumstances in which to do so would compromise the proper administration of justice. What is entailed by a fair trial must necessarily be determined by the particular circumstances.

I suggest that this obiter dictum fails to convince. Why should an accused person’s rights to dignity and freedom - and the consequent right to be discharged in the absence of a prima facie case - be of less import if the accused person happens to be prosecuted together with other persons? The decision to prosecute accused persons together or separately is the prerogative of the prosecution; as such, the prosecution must accept the consequences of its decision. (It should also be noted that the prosecution can of course apply for the separation of trials.) Accused persons should have equal protection and benefit of the law - irrespective of whether they are prosecuted on their own or with co-accused.

Furthermore, the premise on which the SCA built its argument in Lubaxa, namely that the ‘prosecution is ordinarily entitled to rely upon the evidence of an accomplice’ must be qualified. A corollary of the presumption of innocence is that the duty to prove the prosecution’s case rests exclusively on the prosecution, and not on the defence. In the event that one co-accused incriminates another, the prosecution can rely on such incriminating testimony; however, this happenstance does not mean that the prosecution can shift its duty to any degree to the co-accused to prove the prosecution’s case.

This interlinks closely with an accused person’s right to a fair trial, and in particular the right to remain silent. Consider the following exchange between counsel for Mr Motloung (Accused 6) and the trial judge in the Makuna murder trial (Record of the trial before the Constitutional Court p284 lines 3-24):


MR MOJUTO: Depending on the evidence of accused 1, we will testify.

COURT: No, do not come with that. It is either he will testify or he will not testify. You make a decision. The state’s [case] is closed. Your case does not depend on accused 1. Where do you get this new concept? If accused 1, 2, 3 and 4 were not there, what were you going to say?

MR MOJUTO: M’Lady, the evidence against accused 6 solely depends on the statement made by accused 1.

COURT: Mr Mojuto, I am not here to play games.

MR MOJUTO: That is correct.

COURT: Yes, what do you decide?

MR MOJUTO: May I take instruction?

COURT: Yes. l do not know if also you understand the implication of the hearsay evidence that was just admitted, whether you do understand how it works.

MR MOJUTO: I do, M’Lady.

COURT: So, it was not necessary for you to even make a submission that it will depend on accused 1’s evidence or accused 2’s evidence. Yes?

MR MOJUTO: M’Lady, the accused will testify.

I suggest that the above is a vivid illustration of the negation of an accused person’s right to a fair trial: An accused person can only properly exercise the right to remain silent if he or she knows what case he or she must meet; if the case that an accused must meet is not the prosecution’s case (given that the prosecution failed to make a prima facie case) but rather the ‘reasonable possibility’ of incrimination by his or her co-accused - the nature and scope of which is entirely unknown - the accused person’s right to remain silent is clearly violated.

Even before the onset of our new constitutional dispensation, Shuping (ii) was not followed in the context of possible co-accused incrimination by the Venda Supreme Court in S v Phuravhatha & others 1992 (2) SACR 544 (V) 551G-J. After the dawn of our constitutional dispensation, the Witwatersrand Local Division (WLD) - after a thorough human rights analysis - resoundingly rejected Shuping (ii) in the context of possible co-accused incrimination in S v Mathebula & another 1997 (1) SACR 10 (W) 31D. However, the SCA in Lubaxa merely mentioned Mathebula and Phuravhatha¸ but failed to consider the arguments presented in these cases. This constitutes the most conspicuous shortcoming of the Lubaxa judgement. Furthermore, as I have argued above, the SCA’s own arguments in favour of keeping Shuping (ii) alive in the context of possible co-accused incrimination fail to convince. In the subsequent case of Nkosi & another v S 2011 (2) SACR 482 (SCA), the SCA had a second opportunity to properly analyse this issue, but missed the opportunity by uncritically relying on its prior Lubaxa obiter dictum.

5 Conclusion

In Mhlongo v S; Nkosi v S the Constitutional Court was invited to engage with the issue of an accused person’s right to discharge at the end of the prosecution’s case, but declined. I suggest that this omission may prevent the Ndhlovu rule to rest in peace and allow it to haunt our criminal justice system, as illustrated by the following possible argument based on Shuping-Lubaxa-Nkosi: Although the extra-curial statement by co-accused X is inadmissible against X’s co-accused (because the Ndhlovu rule is valid no more), the existence of such an extra-curial statement that incriminates X’s co-accused (as if the Ndhlovu rule is still quasi-valid) constitutes a ‘reasonable possibility’ that the prosecution’s case might be supplemented by the testimony of X, should X decide to testify; in the premises X’s co-accused are not entitled to discharge. Should any court be persuaded by this argument, the result may likely be a spectacle similar to the one seen in the Makuna murder trial: An unconstitutional fracas between co-accused who are all fighting in the darkness of not knowing what case they must meet. Absent a clear rejection of Shuping-Lubaxa-Nkosi, the ghost of the Ndhlovu rule may still wreak havoc.

At least, by holding that an accused person in the context of possible co-accused incrimination ‘may’ have the right to be discharged at the end of the prosecution’s case, the authoritativeness of the Shuping-Lubaxa-Nkosi judgements are now questionable. However, the Constitutional Court appears to be waiting for a specific constitutional challenge to these judgements before making a definite decision on the issue of the right of an accused person to be discharged at the end of the prosecution’s case in the context of possible co-accused incrimination.