THE ADMISSIBILITY OF EXTRA-CURIAL STATEMENTS BY A NON-TESTIFYING ACCUSED

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)).