The admissibility of an extra-curial admission by an accused as hearsay evidence against a co-accused in South Africa

Abstract

In S v Ndhlovu & others the Supreme Court of Appeal invoked s. 3(1)(c) of the Law of Evidence Amendment Act to hold that an extra-curial admission by one accused was admissible against a co-accused as hearsay evidence even if it is disavowed by its maker. The rationale behind this reasoning was that the probative value of an extra-curial admission depends on the credibility of its maker at the time of making it and not at the time he appears in court. Recently, in Litako and others v S the same court reconsidered the principle in S v Ndhlovu & others and held that an extra-curial admission by an accused is inadmissible against a co-accused. The purposes of this note are: to highlight the decision in S v Ndhlovu & others and in Litako and others v S; and to highlight the contributions that Litako and others v S has made to the South African law of evidence.