THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number : 98/05
Reportable

In the matter between :

SAMSON SHONISANI RALUKUKWE

APPELLANT

and

THE STATE

RESPONDENT

CORAM :

CAMERON, CONRADIE et CLOETE JJA

HEARD :
16 MAY 2006

DELIVERED :
26 MAY 2006

Summary: Criminal Procedure Act, 51 of 1977, s 291; Law of Evidence
Amendment Act, 45 of 1988, s 3:
A confession of one accused cannot be used against a co-accused; an
admission can, provided the application to admit it in evidence is made
timeously; a confession, and an admission by a co-accused not admitted in
evidence, must be left entirely out of account.

Neutral citation: This judgment may be referred to as Ralukukwe v S [2006]
SCA 64 (RSA).

___________________________________________________________________

JUDGMENT

CLOETE JA/

CLOETE JA:

[1] On 27 March 2000 the appellant and five others were convicted by the Venda
High Court of murder and of robbery with aggravating circumstances. The appellant
was subsequently sentenced to life imprisonment on the murder charge and to
fifteen years’ imprisonment on the robbery charge. The trial judge (Hetisani J)
refused leave to appeal and the appeal is accordingly with the leave of this court.

[2] The admissible evidence against the appellant was to the following effect. On
15 November 1998 accused 1 travelled with accused 2, 3, 4 and 5 from the Reef to
Venda in a white BMW with GP number plates. Accused 1’s purpose in undertaking
the journey was, according to him, to make enquiries from the appellant, who owned
a security business, about tender proposals for the provision of security officers in
Venda. The purpose of accused 2 and 3 was, according to them, to visit a traditional
healer; this evidence was rejected by the trial court. Accused 4 and 5 did not give
evidence. The appellant, who was accused 6, said that he met with his co-accused
on 15 November at his office in Sibasa for the purpose stated by accused 1.

[3] After the meeting, the appellant made arrangements for accused 1, 2 and 3 to
stay overnight at an hotel in the area. The appellant went personally to more than
one establishment and he himself may have paid for their accommodation in whole
or in part. Accused 4 and 5 stayed the night with the appellant at his own home.

[4] Early the following morning accused 1 drove to Giyani in the BMW with
accused 2 and 3. All three of them testified that they began to experience
mechanical problems with the BMW. On their way back from Giyani, they came
across the appellant who was driving his light delivery van with his wife on the front
seat and accused 4 and 5 on the back. According to accused 1, this meeting was
purely coincidental; he told the appellant of the problems he was experiencing with
the BMW; and the appellant guided him to the premises of the deceased at Muraga
where the appellant said they would find a mechanic. The deceased was indeed a

mechanic. The appellant also said that the meeting with accused 1, 2 and 3 was
coincidental, but he said that it took place on the road outside the deceased’s
premises and he was corroborated by his wife on this point. The appellant denied
pointing out the premises of the deceased to accused 1 for any purpose; on his
version he had a completely pointless conversation with accused 1 before driving
away.

[5] After the two groups parted ways outside the deceased’s premises, the
appellant drove to Sibasa with accused 4 and 5. Accused 1, armed (to the
knowledge of accused 2 and 3) with a firearm, and accused 2 went into the yard of
the deceased’s premises. Accused 3 stayed outside in the BMW. In the yard
accused 1 asked two employees of the deceased where he would find a mechanic,
as he was experiencing car problems. The employees told accused 1 that the person
he was looking for was in the house. Accused 1 and 2 went to the house and
repeated their enquiry, but the deceased’s wife told them that the deceased was not
at home (which was not true; he was sleeping in the main bedroom of the house).
Accused 1 and 2 then left the premises, as did the two employees; but accused 1
and 2 returned almost immediately and asked the deceased’s wife if they could use
the telephone, which request she refused. An argument ensued between accused 1
and the deceased’s wife in the kitchen of the house during the course of which
accused 1 fired a shot. The deceased’s wife then ran up the passage to the bedroom
where the deceased had been sleeping. The deceased appeared, holding a firearm.
Accused 1 fired a number of shots at him, fatally wounding him. Accused 1’s version
that he acted in self defence was rejected by the trial court.

[6] Accused 1 then drove accused 2 and 3 to Sibasa in the BMW and parked in
front of the post office. Many policemen were in the area; they had been alerted to
what had happened at the deceased’s premises and they were on the lookout for a
white BMW with GP number plates, and its occupants. One of these policemen,
Sergeant Madzungunya, gave the following evidence. He said that he saw the
appellant outside the Ramakulukusha building with a person he did not identify. The

appellant was talking on a cellular telephone and he overheard the appellant say that
things were bad; that the police were all over the place; and that he wanted to hide
his people behind the Ramakulukusha building. The appellant then beckoned to
accused 4 and 5 and sent them behind the building, where they hid away and where
they were subsequently arrested. Before accused 4 and 5 were arrested, according
to Sergeant Madzungunya, he went into the Ramakulukusha building and overheard
accused 1 making a telephone call during the course of which accused 1 said that he
did not see anyone. Shortly thereafter accused 1 was arrested in Sibasa. So were
accused 2, who was found in possession of the deceased’s firearm, and accused 3,
who attempted to throw away a 9mm Pietro Beretta firearm that the ballistic evidence
established had been used to shoot the deceased.

[7] On 19 November 1998 accused 1 made a statement to the magistrate at
Thohoyandou. In the statement accused 1 said inter alia that on 15 November he
and the other accused he had conveyed to Venda met the appellant at the
appellant’s office in Sibasa; that at this meeting they planned how they would rob a
bank at Sibasa the following day; that the appellant told the rest of them that they
could obtain a vehicle for use during the robbery from the deceased’s premises; and
that the appellant had handed him a Pietro Beretta firearm. The statement was
admitted after a trial within a trial, but the parts to which I have referred were
repudiated by accused 1 when he testified in his defence: according to him, they
were fabrications by the police which he repeated before the magistrate because he
had been tortured by the police.

[8] Before us, the appellant’s counsel sought to have accused 1’s statement
excluded in evidence against his client because of the provisions of s 219 of the
Criminal Procedure Act, 51 of 1977, which reads:
‘No confession made by any person shall be admissible as evidence against another person.’
On the other hand, counsel representing the State sought to have the statement
admitted in terms of the provisions of s 3(1)(c) of the Law of Evidence Amendment
Act, 45 of 1988 (‘the 1988 Act’) which provides as follows:
‘3(1)
Subject to the provisions of any other law, hearsay evidence shall not be admitted as

evidence at criminal or civil proceedings, unless ─
…
(c)
the court, having regard to ─
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose credibility the probative
value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might entail;
(vii)
any other factor which should in the opinion of the court be taken into account,
is of the opinion that such evidence should be admitted in the interests of justice.’

[9] The Criminal Procedure Act does not define what a ‘confession’ is. In R v
Becker1 De Villiers ACJ construed s 273 of the Criminal Procedure and Evidence
Act, 31 of 1917, which dealt with the admissibility of confessions. In doing so the
learned acting chief justice considered several other sections of that Act including s
286 which provided that a court or jury trying a person for any offence might convict
him of such offence solely on his “confession of that offence” if proved to the
satisfaction of the court, in spite of the fact that the confession was not confirmed by
other evidence ─ subject only to the requirement that the fact that the offence had
actually been committed, was proved by evidence aliunde. Having considered s 286,
the learned acting chief justice continued:2
‘What is obviously contemplated is that a court or jury should be entitled to convict an accused person
in these circumstances only if there is an unequivocal acknowledgment of his guilt, the equivalent of a
plea of guilty before a court of law. The admission by an accused of facts which, when carefully
scrutinised and, may be, laboriously pieced together, may lead to the inference of guilt on the part of
the accused, however consonant that may be with the meaning of the term “confession” in the
abstract, is not a confession within the meaning of the Act. To look upon such a statement as
equivalent to a plea of guilty would be most dangerous. The legislature itself has supplied the test
which has to be applied to extra-judicial confessions, namely whether the acknowledgement of guilt

1 1929 AD 167 at 171-2.
2 At 171-2. The punctuation in the 1929 AD law report does not accord with the punctuation in the
original judgment filed in the archives of this court. The passage quoted retains the original
punctuation.

on the part of the accused is such that, if made in a court of law, it would have amounted to a plea of
guilty.’
It was therefore the view of De Villiers ACJ that ‘confession’ should be given the
same meaning wherever it appeared in the Act; and that for a statement to qualify as
a confession, and therefore to be subject to the provisions of s 273 which governed
its admissibility, every element of the offence charged had to be admitted. This
approach has been applied time and again in this court and in provincial divisions;
and Becker’s case has been cited by the Constitutional Court3 as authority for the
proposition that:
‘A confession by definition is an admission of all the elements of the offence charged, a full
acknowledgement of guilt.’

[10] The Criminal Procedure Act lays down less stringent requirements in s 219A
for the admissibility of an admission, and a distinction between the two is drawn in
express terms in subsection 1 which begins:
‘Evidence of any admission made extra-judicially by any person in relation to the commission of an
offence shall, if such admission does not constitute a confession of that offence and is proved to have
been voluntarily made by that person, be admissible in evidence against him at criminal proceedings
relating to that offence . . .’.
The Criminal Procedure Act contains no section, corresponding to s 219, that
prohibits the use of an admission by one accused against another. The consequence
is that such an admission, which constitutes hearsay evidence as defined in
subsection 3(4)4 of the 1988 Act, can be used against a co-accused if it is admitted
in terms of subsection 3(1) of that Act: S v Ndhlovu;5 Molimi v S;6 whereas a
confession cannot be admitted against a co-accused because of the provisions of s
219 of the Criminal Procedure Act read with the preamble to the 1988 Act (‘subject to
the provisions of any other law’) and subsection 3(2) of the latter Act, which provides:

3 S v Zuma 1995 (1) SACR 568 (CC) para 27.
4 The relevant part of that subsection reads as follows:
‘For the purposes of this section ─
“hearsay evidence” means evidence, whether oral or in writing, the probative value of which depends
upon the credibility of any person other than the person giving such evidence’.
5 2002 (2) SACR 325 (SCA).
6 [2006] SCA 38 (RSA) unreported judgment delivered on 29 March 2006.

‘The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on
any ground other than that such evidence is hearsay evidence.’7

[11] The justification for the approach which continues to confine the operation of s
219 to confessions narrowly construed is not hard to find. Courts are reluctant to
exclude evidence when the interests of justice ─ the touchstone for the admission of
hearsay evidence in terms of s 3(1) ─ require its admission.

[12] I return to the facts of the present appeal. The statement made by accused 1
does not satisfy the requirements set out in Becker. On the contrary, it suggests that
accused 1 was justified in shooting the deceased because the deceased aimed his
firearm at accused 1 after accused 1 had told him to drop it. Section 219 of the
Criminal Procedure Act is accordingly not applicable and the argument on behalf of
the appellant based on that section is without merit.

[13] The attempt by counsel representing the State to rely on s 3(1) of the 1988
Act is equally without merit. In contrast to both Ndhlovu8 and Molimi9 there was no
attempt whatever to invoke that section during the course of the trial; it was never
referred to at any stage of the proceedings. The appellant was never called upon to
deal with the contents of accused 1’s statement and he did not do so. To admit the
statement in evidence against the appellant at this stage of the proceedings would
cause him manifest prejudice.10 It is plainly in the interests of justice that the guilty
should be punished; but it is equally plainly in the interests of justice, and a
constitutional requirement,11 that accused persons should receive a fair trial.

[14] The statement made by accused 1 must accordingly be left entirely out of
account in determining the guilt of the appellant. It cannot be used even indirectly as
part of a chain of inferences drawn against the appellant or as corroboration of other

7 S v Makeba 2003 (2) SACR 128 (SCA) para 14.
8 Above, n 5.
9 Above, n 6.
10 cf S v Ramavhale 1966 (1) SACR 639 (SCA) at 650h-651h.
11 In terms of s 35(3) of the Constitution.

evidence: R v Kohlinfila Qwabe12; R v Baartman;13 S v Serobe;14 S v Makeba.15 The
cases to which reference has just been made deal with the position where the
statement by a co-accused is a confession; but the position is the same where the
statement contains admissions falling short of a confession ─ see Nkosi & another v
R16 discussed and applied in Baartman.17 The reason is, as Cameron JA said in
Ndlovu,18 ‘Hearsay not admitted in accordance with [the provisions of s 3(1) of 1988
Act] is not evidence at all.’

[15] Without the statement of accused 1, there was no case against the appellant.
The real reason why the accused met at the appellant’s office the day before the
deceased was killed and robbed, and the reason why the appellant provided
accommodation for the others, did not emerge from the evidence admissible against
the appellant. There is no admissible evidence to suggest that the appellant pointed
out the deceased’s premises to accused 1 (assuming, in favour of the State, that he
did) with the intention that the deceased should be killed or robbed of his firearm or
anything else, or to suggest that the appellant foresaw either of these possibilities.
There is not even admissible evidence to show that the appellant knew that accused
1 was armed; nor can it be inferred that he must have known this, because they
intended robbing a bank in Sibasa, inasmuch as there was no evidence admissible
against the appellant which established that this was their intention. Indeed, the
evidence admissible against the appellant suggests that the purpose for which
accused 1 went to the deceased’s premises was because he needed a mechanic. It
is pure speculation, on the admissible evidence, to suggest that accused 1 went

12 1939 AD 255 at 260-3.
13 1960 (3) SA 535 (A) at 542B-E.
14 1968 (4) SA 420 (A) at 425A-H.
15 Above, n 7, at para 14.
16 1950 (1) PH H91 (A). The statement of the first appellant, which was wrongly used to convict the
second appellant, did not amount to the confession. It was in fact exculpatory inasmuch as the first
appellant said she had no knowledge that the medicine which the second appellant gave her and
which she put into the deceased’s milk, was poison ─ see p 172 of the PH report.
17 Above, n 13 at 542E-543A where the case is cited as R v Nkosi and Zulu but the year of the law
report is incorrectly given as 1959 ─ the mistake does not appear in the original judgment filed in the
archives of this court.
18 Above, n 5 at para 14.

there to kill or rob the deceased of a vehicle in accordance with a pre-arranged plan
to which the appellant was a party. Even if it be accepted that the appellant lied
about pointing out the deceased’s premises to accused 1, this does not necessarily
lead to an inference of guilt; the lie could equally have been prompted by a desire to
distance himself from the murder and robbery which took place there even although
he did not foresee the possibility that either might occur. As Smalberger AJA said in
S v Mtsweni:19
‘By die beoordeling van leuenagtige getuienis deur ‘n beskuldigde moet daar, onder meer, gelet word
op:
…
(d)
Die neiging wat by sommige mense mag ontstaan om die waarheid te ontken uit vrees dat
hulle by ‘n misdaad betrek gaan word . . . ’.
The evidence of Sergeant Madzungunya that after the deceased had been killed and
robbed of his firearm, the appellant hid accused 4 and 5 behind a building in Sibasa
takes the matter no further, even assuming that the appellant and accused 1 were
speaking to each other during the telephone conversations overheard by Sergeant
Madzungunya. This evidence cannot serve as a foundation for a finding that the
appellant knew at that stage that the deceased had been killed and robbed, much
less that he intended or foresaw in advance that this might happen ─ whether as an
end in itself, or in the course of some nefarious plan to which the appellant was a
party and which had not yet reached fruition. In short, considering the evidence
admissible against the appellant in its totality, there is nothing which establishes that
the appellant had the necessary mens rea to commit either of the offences with
which he was charged, nor is there anything which establishes that he shared a
common purpose with accused 1 to commit them.

[16] Counsel representing the State urged upon us during the hearing of the
appeal that proof beyond a reasonable doubt does not mean proof beyond all doubt,
but on the evidence admissible against the appellant there is merely a suspicion as
to his guilt and this does not suffice for a conviction. The appellant’s appeal must
accordingly succeed.

19 1985 (1) SA 590 (A) at 594B-D.

[17] On the above analysis, and to put the position at its lowest, it would seem that
accused 4 and 5 may also have been wrongly convicted. Counsel representing the
State on appeal could point to no additional facts which would put them in a different
position to the appellant. I would accordingly request the Venda and Bloemfontein
Justice Centres, which represented the appellant in this appeal, to apply for leave to
appeal on behalf of accused 4 and 5 as a matter of urgency once the necessary
powers of attorney have been obtained. It would be desirable, particularly in view of
the length of the record, for any appeal by accused 4 and 5 to be heard by this court
as presently constituted and we have retained our copies of the record to obviate the
expense of a new record being prepared.

[18] In a matter such as the present, the remarks of Watermeyer JA in R v
Kohlinfila Qwabe20 are apposite:
‘I am aware that in coming to a decision on the question whether an accused person has committed
the crime with which he is charged, it is exceedingly difficult for the person called upon to decide that
question to discard from consideration facts and circumstances which, though inadmissible as
evidence, have nevertheless been brought to his knowledge. It is a difficult task even for the trained
judicial mind . . .’.
The learned trial judge would have been greatly assisted in this task had he
determined the facts found proved against each accused on the basis of the
evidence admissible against him.

[19] The appeal is upheld. The conviction of the appellant and the sentence
imposed on him are set aside.

______________

T D CLOETE
Concur:     Cameron JA

JUDGE OF APPEAL

Conradie JA

20 Above, n 12 at 262-3.