oa De Rebus - Constitutional Court in Mhlongo v S; Nkosi v S restores common law position existed before Ndhlovu andOthers v S : case note
The Constitutional Court (CC) has restored the common law position that extra-curial statements against co-accused are in admissible. The court held that admitting extra-curial admissions against a co-accused unjustifiably offends against the right to equality before the law. The court further held that if the extra-curial statements were excluded, there is insufficient evidence to secure convictions against the applicants.
Prior to the court arriving at its decision, the court questioned what the remaining case against the applicants was. It was very clear that 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. In any event, at the end of the trial, the evidence as a whole was insufficient to ground the applicants conviction.
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